23 Kan. 717 | Kan. | 1880
The opinion of the court was delivered by
This was an action brought by F. M. Johnson against the board of county commissioners of Jefferson county, to recover for money paid by him upon ,a certain tax sale claimed by him to be invalid. This sale was consummated on May 6, 1874, for the taxes of 1873. The plaintiff (defendant in error) claims that this sale was void, for the following reasons:
“2. The sale was for many times the amount of the taxes levied.
“3. No certified tax roll of 1873 was ever delivered to the county treasurer.”
We shall consider these reasons in the above order.
I. The description, under which said land was taxed and sold was as follows: “The S.W.¼ survey 18, 170 acres, K. H. B. I. L., Jefferson county, Kansas.” This description written out in full means as follows: The southwest quarter of survey 18,'containing 170 acres, of the Kaw or Kansas halfbreed Indian lands, situated in Jefferson county, Kansas. It appears from the facts admitted and proved in this case, that there was and is a piece of land containing about 682^^-acres, situated in said Jefferson county, designated on the official survey plats of the United States as “survey eighteen (18) of the Kansas half-breed lands;” that this land was never divided or subdivided by authority of the United States into quarter-sections or otherwise, but that in 1867 the county surveyor of Jefferson county divided and subdivided it, making the southwest division thereof to contain about one-fourth of the entire tract, or about 170 acres. And it also appears that this survey or division and subdivision of the tract made by the county surveyor was properly recorded in the county surveyor’s registry of Jefferson county, as provided by law; (Gen. Stat., pp. 289, 290;) that at this time said southwest subdivision was owned and occupied by Philipi Bowers; that from that time hitherto said south west, subdivision has been assessed and taxed and known to the county officers of Jefferson county by the description under which it was sold to the plaintiff; that said Bowers paid the taxes on said land as so assessed and taxed from 1867 up to 1871; that about 1871 or 1872 G. R. Hines became the owner of the land (said subdivision) by virtue of a sheriff’s deed and a deed of conveyance from Bowers to himself; that the land was afterward sold for the taxes of 1872; that Hines became the purchaser of the tax-sale certificate, and afterward procured a tax deed
' The facts admitted and proved also show that there was no other land in Jefferson county that would answer to the description by which this land was assessed, taxed, sold and conveyed, and this land was not assessed or taxed by any other description. The description used by Bowers and Plines in giving and receiving deeds, except said tax deed executed to Hines, was different from the description used in said tax proceedings, being by metes and bounds. With reference to descriptions of lands used in tax proceedings, we would refer to the following statutes: Gen. Stat. of 1868, p. 1049, §93; Comp. Laws of 1879, pp. 962, 970, §§ 119, 153. Said sections 93 and 119 read as follows :
“It shall be sufficient to describe lands in all proceedings relative to assessing, advertising or selling the same for taxes,*721 by initial letters, abbreviations and figures, to designate the township, range, section, or parts of section, and also the number of lots and blocks.”
Said section 153 reads as follows:
“In all advertisements, certificates, papers or proceedings rehdlng to the assessment and collection of taxes and proceedings founded thereon, any description of lands which shall indicate the land intended with ordinary and reasonable certainty, and which would be sufficient between grantor and grantee in an ordinary conveyance, shall be sufficient.”
With reference to irregularities, wo would cite the following statute:
“No irregularity in the assessment roll, nor omission from the same, nor mere irregularities of any kind in any of the proceedings, shall invalidate any such proceeding, or the title conveyed by the tax deed; nor shall any failure of any officer or officers to perform the duties assigned him or them upon the day specified work an invalidation of any such proceedings, or of said deed.” (Gen. Stat. of 1868, p. 1057, §113; Comp. Laws of 1879, p. 967, §139.)
Eor decisions with reference to the sufficiency and insufficiency of descriptions in general of land, see cases cited by Mr. Hilliard in 2 Hill, on Real Prop., ch. 88, pp. 517 to 549, §§51 to 115. Also see 4 U. S. Dig. (F. S.), pp. 529 to 544, ¶¶ 1437 to 1751.
The objections urged against the description in the present case are as follows: It would be difficult to ascertain the exact boundaries of the southwest quarter of said survey 18, as such boundaries have never been established except by the county surveyor of Jefferson county, and as said survey is of a trapezoidal form, bounded on the south side by the Kansas river, with its east-and-west boundary lines of unequal lengths, containing more than four times 170 acres of land, and the land in question being designated in said description by initial letters only.
Now under all the authorities, descriptions may be made in any form or in any manner which the parties may choose, provided such descriptions are not so uncertain or indefinite as to render it impossible to ascertain where the land lies.
We do not think that the description in the present case is void; and whether it is voidable, or not, we do not think that it is necessary now to decide. It contains but few more of the elements of uncertainty than descriptions usually do; and these elements of uncertainty are but slightly greater than such elements usually are. Certainly, none of the persons interested in knowing what this description. meant had any right to be misled it; and it can scarcely be possible that any person was misled by it. Hines owned the land, and knew that it was taxable; he knew that it had previously been taxed by this description; and he ought to have known that it was so taxed at this time. At this time, it was taxed by this description, and was not taxed by any other description. Hines ought to have known this; he knew whether he paid his taxes or not; he ought to have paid them, but he did not do so, and his land was sold for such taxes. And -it was sold by said description, and Johnson bought it, and afterward a tax deed was issued thereon to him. Now if the county is bound to pay these taxes back to Johnson, then Hines will probably be wholly relieved from paying the same, and the county will probably have to lose them. This would not be just. But if, on the other hand, the county does not pay these taxes, then Hines may have, to pay them, or lose his
II. The claim that “the sale was for many times the amount of taxes levied ” is founded upon the fact that the board of county commissioners, in levying the various taxes for the year 1873, on the taxable property of Jefferson county, did not, in every instance, and for each particular tax, state in their record that they levied a certain number of mills on the dollar, but merely stated that they levied such number of mills, omitting the words “on the dollar.” But no one seems to have been misled as to what the county commissioners meant, and we do not think that any person familiar with county business could have been misled as to what they meant. None of the county officers were misled. The county clerk calculated the taxes cqrrectly, and placed them upon the tax roll as usual, and they were collected in the ordinary way. In the present case the land was sold for just the amount of the taxes placed upon the tax roll, and the amount appearing to be due against the land, with interest, penalty and cost. It does not appear that any question has ever before been raised with regard to said levy. We think the failure on-the part of the county board to make the levy more definite was a mere irregularity, and that it did not render the tax sale or any of the other tax proceedings absolutely void.
III. Neither was the failure of the county clerk to attach his certificate to the tax roll of 1873 anything more than a mere irregularity; and we cannot now, at this late day and
The judgment of the court below will be reversed, and cause remanded for a new trial.