Cable v. Coates

• Decision Date: 04 February 1887
• Citation: 36 Kan. 191,12 P. 931
• Parties: RUFUS E. CABLE v. KERSEY COATES, as Assignee of the Mastin Bank
• Court: Kansas Supreme Court

12 P. 931

36 Kan. 191

RUFUS E. CABLE v. KERSEY COATES, as Assignee of the Mastin Bank

Supreme Court of Kansas

February 4, 1887

[Copyrighted Material Omitted]

Error from Wyandotte District Court.

ON January 29, 1884, Kersey Coates, as assignee of the Mastin Bank, brought his action against Rufus E. Cable to recover the immediate possession of a parcel of land situate in Wyandotte city, and containing one-sixth of an acre. The defendant filed an answer, setting up, among other things, a tax deed issued to him on September 5, 1881. Trial was had December 27, 1884, before the court, a jury being waived. The court took the case under advisement, and on January 29 1885, made the following findings of fact:

"1st. The plaintiff is the owner, has a legal estate in, of and to the premises described and demanded in his petition, by and through divers conveyances from the government of the United States of America down to himself as the assignee of the Mastin Bank, a banking corporation duly organized under the laws of the state of Missouri, and such assignment was made to plaintiff pursuant to the laws of said state.

"2d. No tender was made by plaintiff to defendant before the commencement of this action for taxes paid by defendant on the premises in controversy.

"3d. The defendant's sole claim of title to and right to possession of the demanded premises is predicated upon a tax deed issued to him for said premises by the county clerk of Wyandotte county, state of Kansas, bearing date September 5 1881, which was recorded in the office of the register of deeds on the same day; and said deed is based upon a sale of said premises made on the 4th day of September, 1878, for the delinquent taxes for the year 1877, and the sale certificate upon which said tax deed is based is No. 627, and recites a sale of said premises as herein stated on the 4th day of September, 1878, and recites that a tax deed will be due thereon on the 4th day of September, 1881. Said deed is in the words and figures following, to wit:

"'Know all men by these presents, that whereas, the following described real property, viz.: Beginning fifty-three poles east and thirty-eight poles south of northwest corner of the southwest quarter of the northeast quarter of section ten town eleven, range twenty-five; thence south sixty feet thence east to west line of Ferry street extended in the city of Wyandotte, fifty-nine feet; thence in a northeasterly direction to a point due east of beginning; thence west to beginning, and containing 24-100 acres, situated in the county of Wyandotte and state of Kansas, was subject to taxation for the year 1877; and whereas, the taxes assessed upon said real property for the year 1877 aforesaid remained due and unpaid at the date of the sale hereinafter mentioned and whereas, the treasurer of said county did, on the 4th day of September, 1878, by virtue of authority in him vested by law, at an adjourned sale of the sale begun and publicly held on the first Tuesday of September, 1878, expose to public sale at the county seat of said county, in substantial conformity with all the requirements of the statute in such cases made and provided, the real property above described, for the payment of taxes, interest and costs then due and unpaid upon said property; and whereas, at the time and place aforesaid the real property above described could not be sold for the amount of said taxes, penalty and charges thereon, to any person or persons in any parcel or parcels, at said public sale or any adjournment sale thereof, the said lands above described were bid off by E. S.W. Drought, county treasurer of said Wyandotte county, state of Kansas, for the sum of twelve dollars and thirty-six cents, being the whole amount of taxes, interest and costs then due and remaining unpaid on said real property, for said county of Wyandotte, in said state of Kansas; and whereas, the subsequent taxes of the year 1878-1879 amounting to the sum of twenty-four dollars and forty-six cents, were duly charged up to said sale as provided by law; and whereas, D. R. Emmons, county clerk of Wyandotte county, state of Kansas, did, on the 22d day of February, 1881, in consideration of the sum of fifty-one dollars and twenty-five cents, taxes, interest and costs due on said land for the years 1877, 1878, 1879, to William Albright, treasurer of said Wyandotte county, paid by Rufus E. Cable, of the county of Wyandotte and state of Kansas, duly assign the certificate of the sale of the property as aforesaid, and all the right, title and interest of said Wyandotte county to said property to said Rufus E. Cable; and whereas, the subsequent taxes of the year 1880, amounting to the sum of nine dollars and six cents, have been paid by the purchaser as provided by law; and whereas, three years have elapsed since the date of said sale, and the said property has not been redeemed therefrom as provided by law: now, therefore, I, D. R. Emmons, county clerk of the county aforesaid, for and in consideration of the sum of sixty dollars and thirty-one cents, taxes, costs and interest due on said lands for the years 1877, 1878, 1879, 1880, to the treasurer paid as aforesaid, and by virtue of the statute in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said Rufus E. Cable, his heirs and assigns, the real property last hereinbefore described, to have and to hold unto him, the said Rufus E. Cable, his heirs and assigns forever, subject, however, to all...