2021 Colorado Code
Title 38 - Property - Real and Personal
Article 41 - Limitations- Homestead Exemptions
Part 1 - Limitation of Actions Affecting Realproperty
§ 38-41-109. When in Possession Under Color of Title - Unoccupied Lands

Whenever a person having color of title, made in good faith, to vacant and unoccupied land pays all taxes legally assessed thereon for seven successive years, he shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land to the extent and according to the purport of his paper title. All persons holding under such taxpayer, by purchase, devise, or descent, before said seven years have expired, who continue to pay the taxes as provided in this section, so as to complete the payment of taxes for the period of time provided in this section, shall be entitled to the benefit of this section. If any person, having a better paper title to said vacant and unoccupied land, shall during the said term of seven years pay the taxes assessed on said land for any one or more years during the said term of seven years, then such person seeking title under claim of taxes paid, his heirs and assigns, shall not be entitled to the benefit of this section. For the purposes of this part 1 a redemption from a sale for taxes by the party claiming under any of the limitations set forth in this section shall be considered as the equivalent of a payment of taxes.

History. Source: L. 27: P. 602, § 38. CSA: C. 40, § 144. CRS 53: § 118-7-9. C.R.S. 1963: § 118-7-9. History. Source: L. 27: P. 602, § 38. CSA: C. 40, § 144. CRS 53: § 118-7-9. C.R.S. 1963: § 118-7-9.

For rights of a person in actual possession of lands and tenements for seven years, with color of title and payments of taxes, see § 38-41-108 .

Analysis

• I. GENERAL CONSIDERATION.
• II. PARTICULAR REQUIREMENTS.
  • A. In General.
  • B. Color of Title.
  • C. Payment of Taxes.
  • D. Good Faith.

• III. COMMENCEMENT AND INTERRUPTION OF STATUTE.

Law reviews. For article, “Curative Statutes of Colorado Respecting Titles to Real Estate”, see 26 Dicta 281 (1949). For note, “‘Color of Title ' in the Colorado Short Statutes of Limitation”, see 21 Rocky Mt. L. Rev. 226 (1949). For note, “Adverse Possession in Colorado”, see 27 Rocky Mt. L. Rev. 88 (1954).

This section is constitutional. Towner v. Schaffnit, 59 Colo. 242 , 149 P. 625 (1915).

This section is intended as a protection to a person holding in good faith under a mere colorable title, that is, under a title which is really no title. De Foresta v. Gast, 20 Colo. 307 , 38 P. 244 (1894).

This section is clearly designed to operate as a limitation upon actions involving conflicting titles to vacant and unoccupied lands. Morris v. St. Louis Nat'l Bank, 17 Colo. 231 , 29 P. 802 (1892).

Section focuses only on surface occupancy. Webermeier v. Pace, 37 Colo. App. 546, 552 P.2d 1021 (1976), aff'd, 193 Colo. 157 , 563 P.2d 950 (1977).

Section does not pertain to severed mineral interests, i.e., its applicability is dependent upon there being no one in possession of the surface which would give notice of a potential adverse claim to the surface or fee estate. Webermeier v. Pace, 37 Colo. App. 546, 552 P.2d 1021 (1976), aff'd, 193 Colo. 157 , 563 P.2d 950 (1977).

Section is parallel provision to § 38-41-108 . Winslett v. Rozan, 279 F.2d 654 (10th Cir. 1960).

Section must be considered in relation to § 38-41-108 . Webermeier v. Pace, 37 Colo. App. 546, 552 P.2d 1021 (1976), aff'd, 193 Colo. 157 , 563 P.2d 950 (1977).

To constitute a bar, a party must show complete performance under either this section or § 38-41-108 . He cannot show part performance under one section and part under the other and, thus, blend the provisions of both sections. The bar must be complete and distinct under the one or the other section, and a party cannot avail of the provisions of both sections at the same time. Vider v. Zavislan, 146 Colo. 519 , 362 P.2d 163 (1961).

Bar to be raised by pleadings. The benefit of this section cannot be allowed, where its bar was neither raised by the pleadings nor sustained by the facts developed at the trial. Fleming v. Howell, 22 Colo. App. 382, 125 P. 551 (1912).

Failure to plead limitations constitutes waiver. A defendant who, with full knowledge of all the facts, goes to trial without pleading this statute of limitations waives the defense, and he may not present the defense by a supplemental answer tendered months after the trial. Empire Ranch & Cattle Co. v. Chapin, 22 Colo. App. 538, 126 P. 1107 (1912).

Applied in Sullivan v. Collins, 20 Colo. 528 , 39 P. 334 (1895); Gibson v. Staghorn Cattle Co., 26 Colo. App. 148, 141 P. 507 (1914); Heini v. Bank of Kremmling, 93 Colo. 350 , 25 P.2d 1113, 89 A.L.R. 1442 (1933); Wright v. Yust, 118 Colo. 449 , 195 P.2d 951 (1948); Hand v. Rhodes, 125 Colo. 508 , 245 P.2d 292 (1952).

Additional requirements for title. Under this section, in addition to the fact that the land must have been vacant and taxes paid for seven successive years, three things are essential: (1) There must be color of title; (2) the party must claim under it; and (3) that claim must be made in good faith. If any one of these elements is lacking, the title will be defeated. Silford v. Stratton, 54 Colo. 248 , 130 P. 327 (1913). See Empire Ranch & Cattle Co. v. Howell, 22 Colo. App. 584, 126 P. 1096 (1912), rev'd on other grounds, 60 Colo. 192 , 152 P. 1177 (1915).

No possession whatever is necessary under this section and a court has no power to read such a condition of possession into the section. Thatcher v. Gottlieb, 59 F. 872 (8th Cir. 1894).

Void deed does not confer constructive possession of land, and the paramount owner is, in law, deemed to continue in possession until actual entry and possession taken by another, or until payment of taxes for the requisite period, concurrent with color of title made in good faith, as provided by this section shall, in the case of vacant lands, have become equivalent in law to an actual ouster. Fleming v. Howell, 22 Colo. App. 382, 125 P. 551 (1912).

Judgment record may be color of title. Marvin v. Witherbee, 63 Colo. 469 , 168 P. 651 (1917).

Treasurer's deed must describe the land in order to be color of title. Riley v. Lemieux, 24 Colo. App. 184, 132 P. 699 (1913).

A tax deed not recorded is not color of title to vacant lands under this section. Carnahan v. Hughes, 53 Colo. 318 , 125 P. 116 (1912); Marks v. Morris, 54 Colo. 186 , 129 P. 828 (1913); Empire Ranch & Cattle Co. v. Howell, 23 Colo. App. 348, 129 P. 521 (1913).

The mere record entry of a decree quieting title, not accompanied by the judgment roll, is not admissible as evidence of title. Miller v. Weldon, 26 Colo. App. 108, 140 P. 930 (1914).

One who holds under color of title must himself pay the taxes during the period he is in possession. Ballard v. Golob, 34 Colo. 417 , 83 P. 376 (1905); Webber v. Wannemaker, 39 Colo. 425 , 89 P. 780 (1907); Bowers v. McFadzean, 82 Colo. 138 , 257 P. 361 (1927).

Payment of taxes alone ineffective to perfect title. The payment of taxes on land and improvements is ineffective to perfect title where the party claiming fails to show color of title. Tilbury v. Osmundson, 143 Colo. 12 , 352 P.2d 102 (1960).

Proof of tax payment required. One claiming unoccupied lands under a treasurer's deed must, to avail himself of this section, show seven years' payment of taxes subsequent to the record of his deed and before the commencement of an action by the owner of the paramount title. Johnson v. Gibson, 24 Colo. App. 392, 133 P. 1052 (1913). See Bloomer v. Cristler, 22 Colo. App. 238, 123 P. 966 (1912).

When section available as defense to recovery action. This section is not available as a defense to an action to recover vacant land unless seven full years elapse between the first payment of taxes under color of title and the institution of the action. Evans v. Howell, 23 Colo. App. 219, 128 P. 879 (1912).

This section is not available to one claiming under a tax deed not of record for the full term of seven years, at a time when an action for the recovery of lands is instituted. Empire Ranch & Cattle Co. v. Howell, 22 Colo. App. 584, 126 P. 1096 (1912), rev'd on other grounds, 60 Colo. 192 , 152 P. 1177 (1915); Terry v. Gibson, 23 Colo. App. 273, 128 P. 1127 (1913).

Where one holding color of title pays all taxes upon the land for seven successive years, the payment of subsequent taxes by the holder of paramount title is of no avail. Newsom v. DeFord, 25 Colo. App. 582, 140 P. 207 (1914).

When section not available as defense. If the paramount owner brings his action to recover the land before the lapse of seven years succeeding the recording of a tax deed, the limitation of this section has no place. Empire Ranch & Cattle Co. v. Howell, 23 Colo. App. 348, 129 P. 521 (1913), rev'd on other grounds, 60 Colo. 192 , 152 P. 1177 (1915); Empire Ranch & Cattle Co. v. Brownson, 26 Colo. App. 228, 142 P. 421 (1914).

Tax past due when deed issued not counted. A tax past due when a treasurer's deed is issued is not to be counted to sustain a plea of the seven-year statute of limitations. Miller v. Weldon, 26 Colo. App. 108, 140 P. 930 (1914).

Effect of payment of part of total tax. One who assumes to pay taxes solely on improvements on land, or solely on the land, is merely paying a part of the total tax on the realty. French v. Golston, 105 Colo. 578 , 100 P.2d 581 (1940).

Good faith must be affirmatively shown. To entitle one claiming lands by virtue of this section under color of title, good faith must be affirmatively shown. Marvin v. Witherbee, 63 Colo. 469 , 168 P. 651 (1917).

Sufficient evidence of good faith. In the absence of proof to the contrary, the fact that a person has acquired, and for a period of 11 years has held, a tax deed to land, and has during said period paid all the taxes on the land, is sufficient evidence of his good faith in the transaction. De Foresta v. Gast, 20 Colo. 307 , 38 P. 244 (1894).

Claimant must show lapse of statutory period. One who, claiming under a void tax deed, would avail himself of the seven-year limitation prescribed by this section, must show the lapse of the statutory period, not only between the first payment of taxes and the institution of the action of the paramount owner, but between the record of his deed and the institution of this action. Marks v. Morris, 54 Colo. 186 , 129 P. 828 (1913).

Only way this section can be arrested, after color of title has been acquired and payment of taxes for a term of seven years thereunder has been made, is by the commencement of suit within seven years from the time the first payment under said color was made. Newsom v. DeFord, 25 Colo. App. 582, 140 P. 207 (1914).