40 Kan. 235 | Kan. | 1888
Opinion by
This is an action in ejectment, and the land in controversy was patented to Thaddeus PI. Walker, in 1860, who conveyed it to Joseph D. Hevelin in January, 1882, and Hevelin conveyed it to the plaintiff in error, Edwards, in January, 1885. This action was commenced in the Chase county district court on the 3d day of November, 1885, by the plaintiff in error against the defendant in error, to recover possession. The defendant in error relies on a tax deed filed for record on the 27th day of November, 1879, it being of record for nearly six years before the commencement of the action, and the operation of the limitation contained in §141, chapter 107, Compiled Laws of 1885, to defeat the recovery.
. The tax deed reads as follows:
“Know all men by these presents, that whereas, the following-described real estate, viz., northwest quarter of section thirteen, and the southwest quarter of section twelve, all iu township twenty, of range nine east, situated in the county of Chase and state of Kansas, was. subject to taxation for the year 1874; and whereas, the taxes assessed upon said real property for the year aforesaid remained due and unpaid at the date of the sale hereinafter mentioned; and whereas, the treasurer of said county did, on the 11th day of September, 1875, by virtue of the authority in him vested by law, at an adjourned sale of the sale begun and publicly held on the first Tuesday of September, 1875, expose to public sale at the
“In witness whereof, I, S. A. Breese, county clerk as aforesaid, by virtue of the authority aforesaid, have hereunto subscribed my name and affixed the official seal of said county, on this 10th day of November, 1879.
[Seal.] S. A. BREESE, County Clerk”
On the trial in the court below the parties agreed that the following facts should be taken as true upon the trial and all future proceedings therein without further proof:
“That the defendant. C. N. Sims. is. and for more than five
“And the parties further likewise agree that the following facts shall be taken as true upon this trial and all future proceedings herein without further proof, subject only to the objection of the defendant for incompetency, because of the statute of limitations having been in favor of the defendant’s tax deed, to wit: That no notice whatever was given of the meeting of the county board of equalization of Chase county, Kansas, for the equalization of the taxes of 1874, and no meeting of said board was held for that year. The county treasurer of Chase county, when he had received the county tax-roll for 1874, did not cause to be published in any newspaper any notice stating in said notice the amount of taxes charged for any purpose on each hundred dollars of valuation. The county treasurer of Chase county, did not, in the year 1875, make out any list of lands and lots subject to the sale, and no notice was given of the tax sale of the year 1875 in said county, by the county treasurer of said county. The county treasurer of Chase county neither gave nor caused to be published any notice that unless the land or lots sold at the tax sale in said county in 1875 should be redeemed on or before the days limited therefor, specifying the same, they would be conveyed to the purchasers, no final notice to redeem ever having, been given before the conveyance of the lands in question in this case, as shown by the tax deed to Anna E. Evans, under which defendant claims title. Each of the two quarter-sections of land in question in this case was separately listed for the taxation of 1874, and each was separately valued and assessed, and the tax of 1874 was levied on each quarter-section separately, and the tax
A jury was waived, and the case tried by the court. The court made special findings of fact and a conclusion of law as follows :
“ 1. The southwest quarter of section twelve and the northwest quai’ter of section thirteen, all in township twenty, range nine, in Chase county, Kansas, were duly patented and conveyed by the United States to Thaddeus H. Walker, on the 7th day of September, 1860, and said Thaddeus H. Walker duly executed, acknowledged and delivered a conveyance of said land in due form, his wife Margaret E. Walker joining therein, to Joseph D. Hevelin, on the 27th day of December, 1881, which conveyance was duly recorded January 4, 1882, in the register of deeds’ office of said county; and on the 26th day of December, 1884, said Joseph D. Hevelin, with his wife, duly executed, acknowledged and delivered his deed in due form of the conveyance of said lands to this plaintiff, which deed was, on the 15th day of January, 1885, duly filed and recorded in the office of the register of deeds of said county.
“2. On the 10th day of November, 1879, the county clerk of Chase county, Kansas, duly executed, acknowledged and delivered a tax deed of that date, in due form of law, conveying said lands to Anna R. Evans for delinquent taxes, which deed was, on the 24th day of November, 1879, duly filed and recorded in the office of the register of deeds of Chase county, Kansas, in book K, page 96, of the records of said office. Under said tax deed Albert Evans, husband of said Anna 'R. Evans, went upon said land in the month of April, 1880, and dug a cellar, and commenced to build a house and to improve said land. Up to that time said land had remained vacant and unoccupied prairie, and in the month of May, 1880, said Evans moved his family upon said land; and while residing on said land, and on the 21st day of January, 1881, said Albert Evans and Anna R. Evans his wife duly executed, acknowledged and delivered their deed of that date in due form,
“3. The defendant, C. N. Sims, was not, and before the commencement of this action never had been, a resident or citizen of the state of Kansas, and never was in the state of Kansas but once in 1881, and again in 1883, but not to exceed three weeks altogether.
“As a conclusion of law from the foregoing facts, the court finds that judgment should be rendered in this case in favor of the defendant.-’-’
To the foregoing findings of fact and conclusion of law and each and every one of them the plaintiff duly objected and excepted. There was a motion for a new trial, which was overruled, and all exceptions saved. The plaintiff in error contends that the tax deed is void on its face for several reasons:
“1. It shows that two tracts were sold together for one gross sum.
“2. The sale was at an adjourned sale, and held at a time when the notice required by law for an adjourned sale could not be given.
“ 3. It shows the amount which the county collected for the assignment of the certificate of sale to have been more than it was entitled to — more than four times the legal amount.
“4. It shows that the deed was made not only in consideration of the tax of 1874, for which the sale was made, and of the subsequent tax for the year 1878, paid by the purchaser, as provided by law, but also in consideration of the taxes of 1875, 1876, and 1877.
“5. It does not purport to convey all of the land in question.”
His last contention is that, conceding the tax deed to be good on its face, the tax-title holder has himself established that the two quarter-sections never having been occupied, were two “parcels” of real property, which must have been separately taxed and sold. The counsel for plaintiff in error undoubtedly
I. As to the first: It appears that the two tracts of land recited are adjoining, and are the southwest quarter of section twelve and the northwest quarter of section thirteen, in township twenty, range nine, in Chase county., Kansas. We take judicial notice of the fact that these two tracts are contiguous. It may be, if the deed is void on its face, that it affords no presumption of the regularity of the assessment; and assuming that this is so, still the assessment is supported by the presumption that the assessing officers have done their duty. It is said as a matter of statutory direction, or construction, that these tracts should be assessed separately; but this court has said that if the separate tracts adjoin, and are in compact form, and are used and occupied as a single tract, they may be listed and valued together, and may be sold at a tax sale for a single consideration, and as a single parcel. (Dodge v. Emmons, 34 Kas. 732.) So that the mere fact that two tracts are described in the deed as sold for one gross sum, does not make the deed void on its face, the presumption all the time being that it was rightfully assessed, as being used and occupied as a single tract. If the tracts were so far apart as to necessarily preclude an inference that the land was used and occupied together, the deed might be held to be void on its face, under previous rulings of this court; but in the phase of the question we are now considering, we do not think the deed is void for the reason assigned.
II. It is said that the deed is void on its face because it
III. The third reason was not insisted upon very strongly in the argument, but we have examined it sufficiently to satisfy ourselves that it is not tenable. The deed in fact substantially recites that it is made in consideration of the payment of the assignment of the certificate of sale held by the county
TV. By the fifth reason given it is sought to apply the ruling in the case of Spicer v. Howe, 38 Kas. 465, to the recitals in this deed; but this cannot be done for the very conclusive reason, among others, that there is only one description of real property in this deed, and that is, the N.W. qr. of sec. 13 and the S.W. qr. of sec. 12, all in township 20, of range 9; so that the words “the real property last hereinbefore described” have but one description to be applied to, while in the case cited there were three different descriptions of real property recited.
Y. The last and most persistent reason, that the deed is void on its face, is the fact that the defendant in error has shown in the course of his evidence that at the time the assessment was made these two quarter-sections of- land were vacant. The case of Town v. Miller, 31 Kas. 207, is invoked to aid this contention, and it is insisted with great vigor that it is conclusive. In that case a sheriff's deed, which was probably void upon its face, was admitted to be good by the party against whom it was introduced. In this case, the party who relies on the tax deed introduces evidence tending to show that the assessment was erroneous, or to make it stronger, was illegal. In the case cited there was no defense based on the statute of limitation; the pivotal question was whether Walker had notice of the proceedings subsequent to the confirmation of the first sale. In the course of the trial below, the defendant in error offered in evidence a sheriff's deed; the plaintiff in error objected to its introduction because it showed that the execution was issued on a dormant judgment. The court admitted the sheriff’s deed, subject to the objection, and subsequently the plaintiff in error admitted in open court that the judgment had not become dormant when the execution was issued. Being beaten below, he brought error to this court, and as
We have noticed all the objections urged against the tax -deed, and it not being pretended that the taxes were paid, the land redeemed, or that it was not subject to taxation at the time it was listed, it becomes to us a matter of positive duty, in obedience to the mandates of the law-making power of the state, to apply the limitation contained in § 141 of the tax law to the facts as shown by the record, and the result is that none ■of the matters alleged against the deed can be considered by the court, because the deed had been recorded for more than five years before the commencement of this action against the
We recommend that the judgment be affirmed.
By the Court: It is so ordered.