34 Kan. 732 | Kan. | 1886
The opinion of the court was delivered by
The determination of this controversy depends upon the sufficiency of two tax deeds under which the defendant claims. The plaintiff challenges the validity of the deed dated January 29, 1877, for the reason, as he alleges, that it shows upon its face that two distinct parcels of land were assessed separately, but sold together for a single consideration, and therefore is void upon its face, and will not start the statute of limitations to running. Looking at the deed alone, we are unable to concur with the plaintiff that the lands sold and therein conveyed constitute more than a single parcel, or that they were otherwise assessed. The language employed in describing the land which was sold is as follows:
“Know all men by these presents, that whereas, the following described real property, viz.: Beg. at N.W. cor. of N.E. J of sec. 25, T. 10, R. 24, thence S. 80 P., E. 100 P., N. 80 P., W. 100 P., to beg., and cont’g 50 acres. Also beg. at N.E. cor. of N.W.i S. 25, T.10, R.24, thence S.80P., W.110P., N. 80P., E. 110P., to beg., and cont’g 55 acres, situated in the county of Wyandotte, and state of Kansas.”
An objection is taken by the plaintiff to the tax deed dated January 25, 1877. Pie contends that it is void upon its face because the description of the land purported to be conveyed is not sufficiently definite. In the commencement of the deed there is a complete description of the land, where it is recited that “the following-described real property, viz.: Beg. at the S.E. cor. of the S.W. j- of sec. 24, T.10, R. 24, thence N. 90 P., E. 160 P., S. 90 P., W. 160 P. to beg., and containing 90 acres, situated in the county of Wyandotte, and state of Kansas,” was subject to taxation for a certain year, and that the taxes thereon for that year were unpaid. It is then recited that at a certain time and place the treasurer of the county exposed to public sale “the real property above
“In all advertisements, certificates, papers or proceedings, relating 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.”
The remaining objection is, that the sale of the lands was void by reason of the manner in which it was conducted. The facts regarding the manner of the sale were found by the referee, and stated as follows:
“At the time of the sale upon which said tax deeds were issued, the person to whom certificates of sale were issued was not present, either by agent or by attorney, and no bid was made by anyone save and except as stated in the next finding. Sometime prior to the time of the sale, Mr. Welch, as agent for J. L. Beverly, placed money in the hands of the treasurer, with the instruction that in the event of no one else purchasing, the entire tract should be struck off to him. The lands in question were regularly offered, and there were no bids, and thereupon the said treasurer entered said tracts upon the books as having been sold to J. L. Beverly. The treasurer, in selling said tracts, as stated in the prior finding, acted in good faith, and without any thought of injury or of defrauding the county or anyone.”
“The evidence of the treasurer shows that his custom was to publicly offer the lands for sale for the taxes delinquent thereon; that if bids were handed in, and there were no other bids for the same land, he entered the same as sold without*740 further offering the land for sale. Now while, this may have been irregular, and not according to the manner in which the sales ought to have been made, it was nevertheless a sale in fact.” (Leavitt v. Watson, 37 Iowa, 93.)
The same rule has already been plainly recognized by this court. (Maxson v. Huston, 22 Kas. 643.) The finding of the referee settles it that no fraud was intended by the treasurer. As the lands were legally and fairly offered at public sale, it is immaterial to the owner whether they were stricken off to the county or to Beverly. The price for which they were sold was the same in either case, and the illegality of which he complains could not operate to the prejudice of the plaintiff.' The illegal action of the treasurer might have been taken advantage of by the plaintiff within five years from the time the deeds were recorded, but as the sale was in fact made, and as the deeds are valid upon their face, the lapse of time has cured this illegality, and the referee rightly held that the action was barred.
The judgment of the district court will be affirmed.