Colorado § 38-41-111 - When action will not lie against person in possession.

§ 38-41-111. When action will not lie against person in possession.

(1) No action shall be commenced or maintained against a person in possession of real property to question or attack the validity of or to set aside, upon any ground or for any reason whatsoever any final decree or final order of any court of record in this state or any instrument of conveyance, deed, certificate of sale, or release executed by any private trustee, successor in trust, public trustee, sheriff, marshal, county treasurer, or any public official whatsoever, whether named in this section or not, or officer or any appointee of any court when such document is the source of or in aid of or in explanation of the title or chain of title or right of the party in possession or any of his predecessors or grantors insofar as the same may affect the title or explain any matter connected with the title in reference to said real property if such document has been recorded and has remained of record in the office of the county clerk and recorder of the county where said real property is situated for a period of seven years. All defects, irregularities, want of service, defective service, lack of jurisdiction, or other grounds of invalidity, nullity, or causes or reasons whereby or wherefore any such document might be set aside or rendered inoperative must be raised in a suit commenced within said seven-year period and not thereafter.

(2) This section shall not apply to any of the following cases:

(a) Forged documents;

(b) During the pendency of an action, commenced prior to the expiration of said seven-year period, to set aside, modify, or annul or otherwise affect such document, and notice of such action has been filed as provided by law;

(c) When such document has been, by proper order or decree of competent court, avoided, annulled, or rendered inoperative;

(d) Where the party, or his predecessor, who brings the action to question, to attack, or to set aside the validity of such documents, has been deprived of possession within two years of the commencement of said action.

Source: L. 27: p. 603, § 39. CSA: C. 40, § 146. L. 45: p. 272, § 1. CRS 53: § 118-7-11. C.R.S. 1963: § 118-7-11. L. 75: (2)(d) amended, p. 225, § 84, effective July 16.

ANNOTATION

Law reviews. For note, discussing this section as a limitation of action, see 6 Dicta 14 (1929). For article, "Curative Statutes of Colorado Respecting Titles to Real Estate", see 16 Dicta 35 (1939). 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 article, "Check Lists for Court Proceedings in Which Titles to Real Estate are Involved", see 23 Rocky Mt. L. Rev. 371 (1951). For article, "New Real Estate Standard", see 29 Dicta 331 (1952). For note, "The Effect of the Presumption of Death on Marketability of Title", see 25 Rocky Mt. L. Rev. 90 (1952). For article, "Marketable Title: What Certifiable Copies of Court Papers Should Appear of Record", see 34 Dicta 7 (1957).

Purpose of sections. The purpose of this section through § 38-41-114 is to make real estate titles more safe, secure, and marketable. Federal Farm Mtg. Corp. v. Schmidt, 109 Colo. 467, 126 P.2d 1036 (1942).

Sections to be construed harmoniously. In interpreting this section through § 38-41-114, it was necessary to construe them harmoniously. Federal Farm Mtg. Corp. v. Schmidt, 109 Colo. 467, 126 P.2d 1036 (1942).

Actual possession is prerequisite. Actual possession, at least at the time of the commencement of the action, is a prerequisite to the benefits of the section. Ginsberg v. Stanley Aviation Corp., 193 Colo. 454, 568 P.2d 35 (1977).

When mineral estate is severed from the surface estate, actual adverse possession of mineral estate must be established separate from any possession of the surface estate. Kriss v. Mineral Rights, Inc., 911 P.2d 711 (Colo. App. 1996).

Lack of actual possession is fatal to any claim under this section. Calvat v. Juhan, 119 Colo. 561, 206 P.2d 600 (1949).

Tax deed virtually invulnerable to attack. This section makes a title acquired by tax deed virtually invulnerable to attack after it has been of record seven years. Smith v. Town of Fowler, 138 Colo. 359, 333 P.2d 1034 (1959); Bald Eagle Mining & Ref. Co. v. Brunton, 165 Colo. 28, 437 P.2d 59 (1968).

Irregularities prior to expiration of limitation period. Although the statute of limitations provides sufficient protection for the purchasers of property under tax deeds without further limitations being imposed by the courts, until the applicable periods of limitation have expired, tax deeds, even though valid on their face, are subject to attack for irregularities in the proceedings; otherwise, there would be no need for statute of limitations. Bald Eagle Mining & Ref. Co. v. Brunton, 165 Colo. 28, 437 P.2d 59 (1968).

The statute of limitations does not apply to a claim for quiet title when the property was sold after the complaint was filed. The seven-year statute of limitations may have been applicable, but the quiet title claim became moot. Tafoya v. Perkins, 932 P.2d 836 (Colo. App. 1996).

Subsection (2)(d) exempts from operation of section persons who have been deprived of their possession within two years of the commencement of the action. Concord Corp. v. Huff, 144 Colo. 72, 355 P.2d 73 (1960).

Party must plead subsection (2)(d) exception. It is necessary for a party, if he wishes to take advantage of subsection (2)(d), to assert this exception in his pleading. Federal Farm Mtg. Corp. v. Schmidt, 109 Colo. 467, 126 P.2d 1036 (1942).

Applied in Cisneros v. Cisneros, 163 Colo. 245, 430 P.2d 86 (1967); Bd. of County Comm'rs v. Blanning, 29 Colo. App. 61, 479 P.2d 404 (1970); Joseph v. Joseph, 43 Colo. App. 533, 608 P.2d 839 (1980); LeSatz v. Deshotels, 757 P.2d 1090 (Colo. App. 1988); Dynasty, Inc. v. Winter Park Assocs., Inc., 5 P.3d 392 (Colo. App. 2000); Battle North, LLC v. Sensible Hous. Co., 2015 COA 83, 370 P.3d 238.