Opinion
No. 76-927
Decided March 30, 1978. Petition for rehearing granted and prior opinion of December 15, 1978, withdrawn Rehearing denied June 1, 1978. Certiorari denied July 10, 1978.
From summary judgment entered in favor of defendants in unlawful detainer proceeding which was initiated after plaintiff's purchase of the property at tax sale, the plaintiff appealed.
Reversed
1. JUDGMENT — Summary — Proper — No Genuine Issue — Material Fact — Defendant — Entitled to Judgment — Matter of Law. Judgment for the defendant is proper on a motion for summary judgment where the pleadings and affidavit show that no genuine issue of material fact exists, and where the court properly determines as a matter of law that defendant is entitled to judgment.
2. Summary — Defendants' Affidavit — Not Contravert — Plaintiffs Specific Allegations — Defendant — Not Entitled to Judgment. Where, in action for unlawful detainer by purchaser at tax sale, the defendants' affidavit in support of their motion for summary judgment did not contravert the specific allegations in plaintiff's affidavits relative to the validity of the sale, the defendants were not, as a matter of law, entitled to judgment.
3. TAXATION — Misdescription of Property — Tax Sale Advertisement — Wrong County — Public Notice Given — Not Substantially Misleading — In Substantial Compliance — Tax Deed — Valid. In action for unlawful detainer by purchaser at tax sale, the record contains no support for the trial court conclusion that misdescription in tax sale advertisement showing the property in Arapahoe rather than Denver County was such as to have been substantially misleading to purchaser, and that advertisement gave public notice of the place of the sale and clearly identified the property by street address; consequently, the advertised description was, as a matter of law, in substantial compliance with the statute and the deed which plaintiff received from the United States was valid.
Appeal from the District Court of the City and County of Denver, Honorable Harold D. Reed, Judge.
Boatright, Villano Deuben, George E. Boatright, for plaintiff-appellant.
Jaspar D. Gates, Mildred L. Gates, pro se.
Plaintiff appeals from a summary judgment entered in favor of defendants in an unlawful detainer proceeding. We reverse.
The United States acting through its Internal Revenue Service had made a deficiency assessment against defendants for non-payment of taxes and levied on certain property owned by defendants. When the assessment became final, the District Director advertised the property for sale and sold said property, describing it as follows:
"Tract Three (3) Swandora Lane Subdivision, County of Arapahoe, State of Colorado, and more commonly known as 950 South Dexter, Arapahoe County, Colorado, also known as 950 South Dexter, Denver, Colorado."
When defendants' period of redemption expired and they had failed to redeem the property, plaintiff received a quitclaim deed from the United States for the property described as follows:
"Lot 3, Swandora Lane Subdivision, City and County of Denver, Colorado, also known and numbered as 950 South Dexter, Denver, Colorado."
After obtaining the deed, plaintiff served a 3-day written notice upon defendant for possession of the property. Defendants answered, alleging that they were the owners of the property and that the quitclaim deed was void.
The parties filed cross-motions for summary judgment. The court directed both parties to submit affidavits and memoranda of law. Plaintiff submitted affidavits showing details of the federal income tax liability of the defendants and their failure to pay; seizure and sale of defendants' home by the United States Treasury Department; defendants' failure to redeem the property during the statutory period; the transfer of the property by quitclaim deed of the United States Treasury Department to the plaintiff for the sum of $16,117; and an attorney's opinion that plaintiff is the record title owner of the property. Defendants' affidavit alleged that defendants owned the property, that they had not sold it, that the property was located in Denver County and not in Arapahoe County, and that they owed the IRS nothing.
At the conclusion of the hearing the court found that "the subject property, contrary to the published Notice, was not located in the County of Arapahoe but rather in the City and County of Denver."
Accordingly, the court concluded that the advertised description was not in substantial compliance with the pertinent section of the Internal Revenue Code, I.R.C. § 6335 (b), which provides:
"Notice of Sale. — The Secretary shall as soon as practicable after the seizure of the property give notice to the owner, . . . and shall cause a notification to be published in some newspaper published or generally circulated in the county . . . Such notice shall specify the property to be sold, and the time, place, manner and conditions of the sale thereof."
The court based its conclusion that the sale was void on the assumption that because many properties with Denver mailing addresses are located outside of Denver County, the advertisement's designation of the county as Arapahoe rather than Denver was misleading and was likely to have had an "immediate chilling effect upon prospective purchasers. . . ."
[1] Judgment for the defendant is proper on a motion for summary judgment where the pleadings and affidavit show that no genuine issue of material fact exists, and where the court properly determines as a matter of law that defendant is entitled to judgment. Nicks v. Electron Corp., 29 Colo. App. 114, 478 P.2d 683 (1970). See also Bailey v. Clausen, 192 Colo. 197, 557 P.2d 1207 (1976).
[2] Defendants' affidavit was insufficient to create issues of fact in that it did not contravert the specific factual assertions in plaintiff's affidavits relative to the validity of the sale. Thus, the defendants were not as a matter of law, entitled to judgment. Indeed, we conclude that plaintiff was entitled to summary judgment.
[3] The record contains no support for the conclusion that the misdescription would have been substantially misleading to a prospective purchaser. There is no dispute between the parties that the property having been annexed by the City of Denver subsequent to its transfer to the defendants, is currently in the County of Denver. Plaintiff's complaint contains reproductions of defendants' warranty deed and deed of trust to the property. Both of these documents contain the designation "County of Arapahoe" on the legal description of the property, and are recorded in the Office of the County Clerk and Recorder, County of Arapahoe. The advertisement of the sale gave public notice of the place of the sale. The advertisement clearly identified the property by street address. Under these circumstances, we hold that the advertised description was, as a matter of law, in substantial compliance with the statute and that the deed which plaintiff received from the United States was valid. Keely v. Sanders, 99 U.S. 441, 25 L.Ed. 327 (1878); Bryant v. Chicago Mill Lumber Co., 120 F. Supp. 463 (E.D. Ark. W.D. 1954).
Accordingly, the documents submitted by plaintiff established him as entitled to possession of the property as against these defendants, and thus, he should have been granted summary judgment.
Judgment reversed and cause remanded with directions to enter judgment in favor of plaintiffs.
JUDGE BERMAN and JUDGE KELLY concur.