| Kan. | Jan 15, 1873
The opinion of the court was delivered by
The decision of two questions will dispose of this case, .to-wit: First, Is a judgment against Robert Brimford, quieting title to a certain piece of land, rendered upon a default, and upon service by publication only, valid and binding as against the owner of the land whose name is Robert Binford? Second, Is a sale of land, in Miami county, for the taxes of 1858, begun and held on the 23d day of September 1859, valid and binding as against the owner of the land? Both of these questions must be answered in the negative.
I. The names “Brimford” and “Binford” are not idem sonans. To convert the name of Binford into Brimford, an “r” must be interpolated, and the “n” must be changed into “m,” which is not allowable; and under no rule of orthography or orthoepy can the two names be made to sound alike, or be pronounced alike. (See authorities cited in brief of defendants in error.) If Binford had made an appearance in said case, and defended the action, then this irregularity could have been cured by amendment, even after judgment. But Binford made no such appearance, and therefore the court never had sufficient jurisdiction so as to render any judgment, or make any order, or allow any amendment to be
II. There was no law in force in 1859, or indeed at other time, authorizing a tax-sale to be begun and held on the 23d day of September 1859, or on the 23d day of September of any other year. Hence said sale was void. Whether such a provision as may be found in the Comp. Laws of 1862, p. 879, § 10, or in the laws of 1866, p. 284, § 89, or in the Gen. Stat. of 1868, p. 1057, §113, curing irregularities, would have made this sale valid or not, we need not examine, for no such provision was in force in 1859. All the proceedings founded upon such a sale are necessarily void. The principle of law heretofore decided, that a recorded tax-deed, void upon its face, will not of itself and alone cause the statute of limitations to run in its favor, is applicable to this case. Hubbard v. Johnson, 9 Kan., 632" court="Kan." date_filed="1872-01-15" href="https://app.midpage.ai/document/hubbard-v-johnson-7883074?utm_source=webapp" opinion_id="7883074">9 Kas., 632. The judgment of the court below is affirqied.