89 Kan. 481 | Kan. | 1913
The opinion of the court was delivered by
The plaintiff in ejectment recovered judgment against the holders of a tax deed less than five years old, who appeal.
The plaintiff traced title from the Atchison, Topeka & Santa Fe Railroad Company. A record was introduced showing a patent from the state to the company. The defendants maintain that there was a technical defect in the record and therefore that the plaintiff failed to prove title in himself. If the record was in fact defective, it was validated by the curative act. (Gen. Stat. 1909, §§ 1684, 1685; Hall v. Rea, 85 Kan. 675, 118 Pac. 693.) Moreover the land being in an odd-numbered section within ten miles of the main line of the railroad, the court takes judicial notice, in the absence of proof to the contrary, that it was patented to the company. (Worden v. Cole, 74 Kan. 226, 86 Pac. 464.)
A newspaper was introduced in evidence containing what purported to be the redemption notice upon which the tax deed was based — that is, the notice that the lands sold for taxes would be deeded unless redeemed by a time stated. Assuming the genuineness of the paper the tax deed was voidable, for the amount stated in the notice in connection with the tract in question exceeded the taxes and interest, and evidently included other charges, under a practice due to an error in an
The only question in the case not covered by prior decisions of' this court is whether .it1 was sufficiently shown that the notice given in evidence was in fact the official notice published by the county treasurer. The newspaper was produced by that officer, who found it among his files. The transcript does not show the name of the paper, but in support of the judgment it must be presumed to have been the Journal, as it was agreed that that was the official county paper in the year 1897, when the notice was published. No affidavit of publication was attached to the newspaper. If there had been, the treasurer’s office was not the proper place for its retention, since the statute makes the county clerk the permanent custodian of all “affidavits, notices of papers of reference to” tax sales. (Gen. Stát. 1909, § 9456.) The publication of the notice of the sale of land for taxes is required to be proved by the affidavit of the printer (Gen. Stat. 1909, § 9443), but no such requirement seems to be made as to the redemption notice. In Bergman v. Bullitt, 43 Kan. 709, 23 Pac. 938, it was held that the trial court erred in admitting in evidence a document certified by the county treasurer to be a true copy of the redemption notice on file in his office. In the opinion it was said:
“The county treasurer, . . . not having the official custody of these records, is not authorized to certify, and the copy of the notice which he chanced to find in his office, and which was offered in evidence, should have been rejected. The parties, however, are not foreclosed by the absence of such record evidence in the office of the county clerk. The facts with reference to this redemption notice may be obtained from the files of the official paper, and from the testimony of the publisher of the same; and they may be shown by still other competent evidence.” (p. 712.)
The judgment is affirmed.