Mack v. Price

The opinion of the court was delivered by

Horton, C. J.:

John M. Price is the owner of the patent title to the lots in controversy. These lots were subject to taxation for the year of 1862, and were sold for delinquent taxes, May 15, 1863, and bid in by the treasurer of Atchison county; the certificate of sale was assigned by the county clerk of said county, August 10,1869, to William Mack, and a deed issued to him for the lots on December 7, 1869, which was recorded May 25, 1871. In 1870, Mack took actual possession of the lots, and has ever since occupied them as a homestead for himself and family. The trial court determined that the tax deed under which Mack claims is not in substantial compliance with the provisions of law.

2. case distingmsAa. 1. Ejectment; ciaimantfáw; error,enonS-m toppei. Two questions are presented by the record: First, Is Mack estopped by the steps he has taken in order to avail himself of his rights as an occupying claimant from instituting proceedings in error to reverse the judgment? Seeond, Is the tax deed sufficiently regular on its face to set the statute of limitations iu operation? The trial court filed its findings of fact and conclusions of law on December 2,1884, and rendered judgment upon that day. The part of the judgment following the conclusions of fact and law was not actually entered upon the journal until December 6th. Price was adjudged the owner in fee simple of the lots in dispute, and entitled to the possession thereof, subject to all taxes, interest and costs allowed by law, and to the rights of Mack, if any, as an occupying claimant. On December 5, 1884, Mack filed in the office of the clerk of the district court his motion for the benefit of, the occupying-claimant act, which motion was allowed, and when the judgment was entered, it recited that Mack ha'd made claim for improvements as an occupying claimant. On January 16, 1885, Price filed in the office of the clerk of the district court his written demand for a jury to assess the value the improvements. In Bradley v. Rogers, 33 Kas. the defeated parties did not stop with merely requesting to be reimbursed for the taxes, interest and costs which they had paid upon the property in controversy, and for the benefit of the occupying-claimant law, but they went'further, and demanded a jury for the assessment of their improvements, and such jury was awarded to them by the court. In this case, Mack made no demand for a jury, and the action of Price in making such demand cannot be considered to his injury, and therefore cannot be urged as an election by him to take the rights of a defeated party. We followed, in Bradley v. Rogers, a Nebraska case, but are unwilling to extend the law of election, concerning the institution of proceedings under the occupying-claimant law, any further than already announced. (Buchanan v. Dorsey, 11 Neb. 373.) Mack excepted to the findings of fact and conclusions of law of the trial court, and also to the judgment as rendered. He filed a motion for a new trial, and when that was overruled, he excepted, and obtained twenty days’ time in which to make and serve a case-made to review the rulings of the trial court. Having made no demand for a jury for the assessment of his improvements as an occupying claimant, and hav-v G ; 1ÜS the exceptions he did, we do not think the steps taken by him after the rendition of the judgment debar him from instituting and maintaining these proceedings in error to reverse the judgment.

In support of the conclusion of the trial court that the tax deed is not in substantial compliance with the provisions of law, the following supposed irregularities are referred to:

First. It is said that “the tax deed recites that the sale was an adjourned sale begun and held on the first Tuesday of May, 1863;” but the recitation in fact is, “Whereas, the treasurer of said county did, on the 15th day of May, 1863, by virtue of authority in him vested by law, at an adjourned sale begun and publicly held on the first Tuesday of May, 1863,” etc. The words “of the sale” in the statutory form are omitted from the deed. Section 36, ch. 197, Comp. Laws of 1862, in force at the date of the tax sale provides:

“The county treasurer shall, immediately after the day specified in the preceding section, make out a list of all the lands and town lots, describing such lands and town lots, as the same are described on the tax-roll, with an accompanying notice, stating that so much of each tract of land or town lot described in said list, as may be necessary for that purpose, will, on the first Tuesday of May next thereafter and the next succeeding days, be sold by him at public auction, at some public place, naming the same, at the seat of justice of the county, for the taxes, penalty and charges thereon.”

And sec. 39 of said chapter 197 reads:

“On the day designated in the notice of sale, the county treasurer shall commence the sale of those lands and town lots on which the taxes, penalty and charges have not been paid, and shall continue the same from day to day (Sundays excepted,) until so much of each parcel thereof shall be sold as shall be sufficient to pay the taxes, penalty and charges thereon, including the cost of advertising and the fees for selling.”

3 Tax deed valid on face. As a tax deed need not be in the exact form prescribed by the statute, but is good if it is substantially in the form prescribed, we do not think the omission of the words “ of the sale” fatal. The recitation in the deed clearly shows that the treasurer sold the lots on the 15th of May, 1863, and that such sale was an adjourned sale succeeding the first Tuesday of May, 1863. The tax sale must of necessity have been an adjourned sale of the sale begun on the first Tuesday of May, 1863.

4' woraseprop- ' erly omitted. Second. The following words in the statutory form, “which was the least quantity bid for,” are also omitted in the deed, but this omission is proper in every respect. The statute in 1863 required, as now, that if any land could not be sold- for the amount of taxes and charges thereon, it should be bid off by the. county treasurer for the county for such amount. The county is not a voluntary or a com- # ^ . petitive bidder, and therefore, where a deed recites that no person offered to pay the taxes and charges and the county treasurer bid the same off for the county for the amount thereof, it would be improper to recite in a tax deed based upon.such a sale, that the land bid off for the county “was the least quantity bid for.” When the treasurer bids off property for the county, the county takes the whole property. (Larkin v. Wilson, 28 Kas. 513; Magill v. Martin, 14 id. 67.)

Third. Another objection to the deed is, that it shows on its face that it was executed for a less consideration than the amount due. If. this be true, the objection is without force, as it was disposed of in the case of Bowman v. Cockrill, 6 Kas. 311. We quote from that decision as follows:

“As to the second supposed irregularity in the tax deed, this court is of the opinion that the blank was not filled up with the proper amount, but that it should have been filled up with a much larger amount—an amount equal to and including all the taxes, costs and interest due on said lot at the time the deed was made and paid by the holder- or holders of the tax-sale certificate upon which said tax deed was made; but still, we think it is immaterial whether that blank was filled with the right amount or with a less amount, as a less amount can do no one any possible injury, unless it is the grantee of the tax deed himself. It can certainly do no injury to the original owner of the lot.”

ó. case aisHngmshea. In the case of Noble v. Cain, 22 Kas. 493, to which we are referred, the county commissioners, without any authority, made an order that Cain might purchase certain lots struck G0,mty ^ a tax sal® for want of bidders, for a surQ 0f money less than the cost of redemption. "We held that this order was void, and that the purchase by Cain thereunder was equally void. This and nothing more. We did not intend to overrule or modify Bowman v. Cockrill, supra. The tax deed, however, recites a sale to the county on May 15, 1863, and that the county clerk of Atchison county, on August 10, 1869, duly assigned the certificate of sale of these lots, and all the right, title and interest of said county in and to the lots, to Mack. Within the case of McCauslin v. McGuire, 14 Kas. 234, upon such a recitation it will be presumed that the certificate was duly assigned, and that the assignee paid the amount required by law at the time of the assignment.

Fourth. The tax deed is not void because it shows the two lots were assessed, sold and deeded as one tract of land. (McQuesten v. Swope, 12 Kas. 32; Watkins v. Inge, 24 id. 612; Cartwright v. McFadden, 24 id. 662.)

Fifth. From the attestation or conclusion of the deed, “by virtue of authority aforesaid,” and “my official seal,” are omitted. The attestation or conclusion is as follows:

“In witness whereof, I, Chas. W. Rust, county clerk as aforesaid, have hereunto subscribed my name and affixed my official seal, on this 7th day of December, 1869.

[Seal.] Chas. W. Rust, County Clerk.

Witnesses: Wm. H. Williams,

D. E. Merton.”

The statute provides that it shall be substantially in the form prescribed. The deed recites that the sale is made by Chas. W. Rust, county clerk of Atchison county, and is witnessed by Chas. W. Rust as county clerk. As Chas. W. Rust signs the deed as county clerk, “my official seal” evidently refers to his official seal as county clerk, and therefore “the official seal of said county.” We do not think the omission of the words noted renders the deed void. (Haynes v. Heller, 12 Kas. 381; Morrill v. Douglass, 14 id. 294; Bowman v. Cockrill, supra; Geekie v. Company, 9 Reporter, 37; Scheiber v. Kaehler, 5 N. W. Rep. 817; Barr v. Randall, just decided.) The substance of the words “by virtue of authority aforesaid” is fully expressed in other recitations of the deed, when the whole deed is taken and considered together.

Several cases in Wisconsin' and other- states are referred to by counsel, showing omissions in tax deeds which constituted, in those cases, fatal defects. So far as any of these decisions are in conflict with the prior adjudications of this court, we are not inclined to follow them. There is no doubt that the form of a tax deed prescribed by the statute must be substantially pursued, or the deed will be invalid, but all the tprms of the deed must be considered, and if everything substantially required by the statute as to form is found in the deed, the deed will be prima fade valid although some immaterial words are omitted therefrom. There are no equities in this case in favor of the original owner, and if the tax deed is valid on its face, the statute of limitations having completely run in its favor, the deed becomes conclusive evidence of the regularity of the tax proceedings, and vests in the grantee an absolute estate in fee simple of the lots therein described. The original owner seems to have abandoned these lots in 1862, and has never paid any taxes thereon since'that time— over twenty years—and no legal 'steps were-taken by such owner, or any person claiming under him, to regain possession of the lots, until July 28, 1883. No taxes having been paid upon the lots for 1862, they were bid off by the county on May 15, 1863'. On August 10, 1869, the county clerk of Atchison county assigned the certificate of sale to Mack, and on December 7, 1869, the county clerk issued to him a tax deed. In 1862, the lots were assessed at $20 each, and are now worth between $600 and $700 without any improvements on them. Mack took possession of the premises in the spring of 1870. During that year he built a house thereon, into which he moved with his family, and since that time has fenced the lots and planted a great many trees on them. He has continued in the actual and peaceable possession of the lots ever since 1870, and has paid all the taxes assessed against the lots since 1862.

Upon the findings of fact of the trial court, we are of the opinion its conclusions of law that the tax deed is not in substantial compliance with the provisions of the statute, and that the original owner of the real estate is not barred by the statute of limitations, are erroneous. Therefore, upon the findings of fact Mack is entitled to judgment.

The judgment'of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.

All-the Justices concurring.