Casner v. Gahlman

• Court: Kansas Court of Appeals
• Writing for the Court: MCELROY, J. I.
• Citation: Casner v. Gahlman, 6 Kan. App. 295, 51 P. 56 (Kan. App. 1897)
• Decision Date: 15 November 1897
• Docket Number: 256
• Parties: NICHOLAS CASNER v. JOSEPH GAHLMAN

51 P. 56

6 Kan.App. 295

NICHOLAS CASNER v. JOSEPH GAHLMAN

No. 256

Court of Appeals of Kansas, Northern Department, Central Division

November 15, 1897

November 15, 1897.

Error from Saline District Court. Hon. R. F. Thompson, Judge. Affirmed.

This was ejectment, brought by defendant in error in the District Court of Saline County. The defendant below claimed under a tax deed. It was conceded that, unless he had been deprived of title by the tax deed, plaintiff below should have recovered. The judgment of the lower court was against the tax-deed holder. Two questions are presented for consideration: First, was the tax-sale notice sufficient under the law? second, was the final redemption notice a valid notice?

Judgment affirmed.

Fred W Casner, for plaintiff in error.

Burch & Burch, for defendant in error.

OPINION

MCELROY J. I.

Was the notice given of the tax sale a sufficient notice under the statutes? The notice as published reads:

"Notice is hereby given that the following described lands and town lots, or so much thereof of each tract as may be necessary for that purpose, will on Monday, October 27, 1890, and during the next succeeding days thereafter, be sold at public auction at my office in the courthouse in Saline County, Kansas, for the taxes and charges due thereon for the year A. D. 1889."

Before any real estate can be sold at tax sale on account of non-payment of taxes, notice of such sale is required to be given in accordance with paragraph 6955, General Statutes of 1889, which is as follows:

"The county treasurer shall, between the first and tenth of July in each year, make out a list of all lands and town lots subject to sale, describing such lands and town lots as the same are described on the tax roll, with an accompanying notice stating that so much of each tract of land or town lots described in said list as may be necessary for that purpose will, on the first Tuesday of September next thereafter, and the next succeeding days, be sold by him at public auction, at his office, for taxes and charges thereon," etc.

By this statute the Legislature has determined and expressed what shall be the essential and necessary elements of this notice: First, a description of land or lots to be sold; second, certainty as to the day of sale; third, that the sale shall be an official sale by the county treasurer; fourth, that the sale shall be at public auction; fifth, certainty as to the place of sale.

The notice does not state that the sale will be conducted by the county treasurer. This sale, to be a legal one, must be an official sale. The treasurer is an agent of the State. This sale might be conducted by any county officer, or any auctioneer, only that the Legislature has seen fit to require such sale to be made by the treasurer; and not only that the sale be made by the...