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Ponzio v. Arap. Investment Enterprises

Supreme Court of Colorado. In Department
Nov 21, 1966
420 P.2d 398 (Colo. 1966)

Opinion

No. 21438

Decided November 21, 1966. Rehearing denied December 19, 1966.

Action to quiet title. Judgment for plaintiff.

Affirmed

1. ADVERSE POSSESSIONDisseisin — Failure of Proof — Appeal and Error. Trial court's finding that defendants failed to establish disseisin by adverse possession will not be disturbed on review.

2. TAXATIONQuiet Title — Sale — Notice — Possessor — Evidence — Sufficiency. In action to quiet title to tract of land, evidence was insufficient to show that brother of defendants was in actual possession or occupancy of subject property for purpose of compliance with statute that requires notice to possessor of property before property can be sold for taxes.

3. Treasurer — Issuance — Notice — Statute — Tax Sale — Validity. Where record indicates that brother of defendants, who was also one of the defendants in instant case and who was said to have been "in actual possession and occupancy" of the subject property as of the time the treasurer's deed issued, did receive notice as required by C.R.S. '53, 137-10-28, held, complaint that tax sale was invalid as to record owner because of failure to give notice is without merit.

Error to the District Court of Lake County, Honorable William H. Luby, Judge.

Laura Francis Riley, for plaintiffs in error.

Fred W. Mattson, A. B. Mattson, Fred W. Mattson, Jr., for defendant in error.


This is a companion case to DeCola v. Bochatey, 161 Colo. 95, 420 P.2d 395, and the basic issues posed by this writ of error are essentially the same as those presented in the DeCola case.

Arapahoe Investment Company, a Colorado corporation which will hereinafter be referred to as the plaintiff, brought an action under R.C.P. Colo. 105, seeking to quiet title in a tract of land consisting of about seven acres situated just north of the city of Leadville. This particular tract of land lies in close proximity to, if not in fact adjacent to, the property which was the subject of the separate quiet title action in the DeCola case.

The several children of Dominick Ponzio, as his heirs-at-law, appeared as unknown persons and filed an answer wherein they alleged that it was they who owned the property in question. The children of Dominick Ponzio, who will hereinafter be referred to as the defendants, alleged that their title to the subject property passed to them upon the death of their father, Dominick Ponzio, and that he in turn had acquired title to the subject property by virtue of his adverse possession thereof from 1926 to the time of his death in 1957. Also, the defendants alleged that the treasurer's deed, which formed the basis for the plaintiff's claim to ownership of a portion of the tract to which title was sought to be quieted, was invalid because of the failure to give Louis Ponzio adequate "notice" that a treasurer's deed was about to issue as required by C.R.S. '53, 137-10-28.

This case was separately tried to the same trial court as was the DeCola case, with the DeCola case having been heard and disposed of first. However, the same general result obtained in the instant case as in the DeCola case, namely, title was quieted in the plaintiff and the defendants were adjudged to have no right, title or interest in the subject property. By the present writ of error the defendants now seek to reverse this particular judgment and decree.

[1-3] The evidence before the trial court in the instant case is for all practical purposes about the same as that in the DeCola case. This is not surprising, inasmuch as the two tracts are apparently adjacent properties, and the defendants basically relied upon the same line of testimony in each case to establish their father's adverse possession of both tracts. Additionally, the evidence bearing upon the alleged invalidity of the treasurer's deed was about the same in each case. And in each case it was the defendants' position that Louis Ponzio, was said to have been "in actual possession and occupancy" of the subject property as of the time the treasurer's deed issued, had not received any notice as required by C.R.S. '53, 137-10-28.

This being the situation, no good purpose would be served by detailing our reasons for concluding that under the circumstances the judgment and decree of the trial court should be affirmed. Attention is of course directed to our opinion in the DeCola case.


The judgment is affirmed.

MR. JUSTICE DAY and MR. JUSTICE FRANTZ concur.


Summaries of

Ponzio v. Arap. Investment Enterprises

Supreme Court of Colorado. In Department
Nov 21, 1966
420 P.2d 398 (Colo. 1966)
Case details for

Ponzio v. Arap. Investment Enterprises

Case Details

Full title:Louis Ponzio, also known as Louis Ponzie, Rosie Ponzio Clark Toucher…

Court:Supreme Court of Colorado. In Department

Date published: Nov 21, 1966

Citations

420 P.2d 398 (Colo. 1966)
420 P.2d 398