Cave v. Rinehart

• Decision Date: 11 May 1912
• Docket Number: 17,588
• Citation: Cave v. Rinehart, 123 P. 766, 87 Kan. 81 (Kan. 1912)
• Parties: CLAUDE M. CAVE, Appellee, v. S. RINEHART et al., Appellants
• Court: Kansas Supreme Court

123 P. 766

87 Kan. 81

CLAUDE M. CAVE, Appellee, v. S. RINEHART et al., Appellants

No. 17,588

Supreme Court of Kansas

May 11, 1912

Decided January, 1912.

Appeal from Haskell district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

TAXATION--Redemption Notice--Error in Amount Stated--Tax Deed. While the statute was in force requiring that the notice of the expiration of the time allowed to redeem land sold for taxes should state the amount of taxes and interest computed to the time of redemption, a tax deed was voidable which was based upon a notice purporting to give the amount of taxes, fees, charges and interest, even although the amount named was in fact less than the taxes and interest.

William Easton Hutchison, and C. E. Vance, for the appellants.

R. W Hoskinson, and Albert Hoskinson, for the appellee.

OPINION

MASON, J.:

A tax deed was issued and recorded. For more than five years thereafter the land remained unoccupied. Then the holder of a later tax deed took possession and held it for more than two years. Then ejectment was brought under the first tax deed, the second one being less than five years old. The plaintiff's tax deed was good upon its face, and in this situation was not open to attack for any latent defect. (Cone v. Usher, 86 Kan. 880, 122 P. 1049.) The defendants' tax deed, which was issued in 1903, upon a sale made in 1900, was also good upon its face, so that the only inquiry remaining is whether it was rendered invalid as a conveyance of title by certain facts that were admitted, including this:

In the redemption notice the amount named in connection with each tract was described as being "the amount of taxes and fees, charges and interest calculated to the last day of redemption." Under the statute as it then existed the notice should have stated "the amount of taxes, charges and interest calculated to the last day of redemption." (Gen. Stat. 1909, § 9474.) The inclusion of the other charges is sufficient to avoid the deed based upon such a notice. (Casner v. Gahlman, 6 Kan.App. 295, 51 P. 56, 60 Kan. 857, 56 P. 1131; Shinkle v. Meek, 69 Kan. 368, 76 P. 837; Harp v. Wilson, 84 Kan. 45, 113 P. 309.)

A peculiar feature of the present case is that while the notice purported to state the sum of all the charges against the land, the amount actually named was in fact less than the taxes and interest. In Watkins v. Inge, 24 Kan. 612 there was an intimation that an understatement in the redemption notice of the amount required to redeem would not vitiate a deed, because it could not mislead the owner to his prejudice. There the notice, published in November, 1876, relating to redemption from sales made under the former law in May, 1874, omitted the taxes of 1876 from the computation, the omission being expressly mentioned. The statute, enacted in March, 1876, forbade the holder of a tax-sale certificate to pay subsequent taxes until after December 21 of the year in which they accrued. (Laws 1876, ch. 34, § 123.) ...