Douglass v. Carmean

• Decision Date: 05 November 1892
• Citation: 31 P. 371,49 Kan. 674
• Parties: JOHN C. DOUGLASS v. PEARSON CARMEAN et al
• Court: Kansas Supreme Court

31 P. 371

49 Kan. 674

JOHN C. DOUGLASS v. PEARSON CARMEAN et al

Supreme Court of Kansas

November 5, 1892

Error from Jackson District Court.

ACTION by Pearson Carmean, Charles Broderick, Case Broderick, Mary D. Smith, John Q. Myers and Emmet Rafter against John C. Douglass, to quiet title to certain land. Judgment for plaintiffs, at the June term, 1889. Defendant brings error.

Judgment affirmed.

John C. Douglass, plaintiff in error for himself:

The chief defect in the form of the deed is in the certificate of acknowledgment. Under our statute, the certificate of acknowledgment is part of the deed, and in fact the most important part, as it is the evidence part of it. Such deed conveys the absolute title; such deed is prima facie evidence. See said section 112, giving the form. Such deed starts the statute of limitations to running. Both the form and the law of conveyances which it follows make the statement in the certificate of the title of the officer an essential statement. 13 Ohio 260, 268; 2 id. 55; 3 id. 155, 156; 20 Ohio St. 119; 11 Conn. 129; 7 id. 527; 11 Serg. & R. 347; 2 Kent's Comm. 150; 12 Pet. 345; 4 Mich. 568; 14 P. 479; 4 id. 377; 2 id. 874; Martindale, Law of Convey., p. 210, §§ 248, 249.

The title of the officer should be recited. 14 P. 479; 13 id. 211; 12 id. 931; 11 id. 151; 8 id. 214; 10 id. 14; 2 id. 874; 1 id. 275; 28 N.W. 433, 434; 21 id. 111; 6 Iowa 475, 478; 36 id. 22; 24 Mich. 145, 152; 18 id. 82; 37 id. 426; 36 id. 222; 28 id. 218; 16 id. 135, 34; 1 Gilm. 160.

Decisions of courts made under statutes not making the acknowledgment of a deed, or the certificate thereof, a necessary part of the deed, are not in point in this case. In tax deeds in Kansas both are essential. Blackwell on Tax Titles, 438, P 7; id., pp. 91 to 112; 1 Gilm. 167; 2 id. 271; 6 Watts, 269; 8 Eng. 242.

Tax deeds in Kansas are treated with greater strictness than sheriff's deeds. Pritchard v. Madren, 31 Kan. 38. This provision of the law should be strictly construed. Potter's Dwarris, p. 224, 225, note; 5 Mich. 153; 3 N.W. 198; 6 Bac. Abr. 377; 6 Mass. 307; Plow. 206.

Compare the very instructive cases, Edward v. Flannigan, 104 U.S., p. 562; same case, 26 L. C. P. Co. 842; Elliot v. Piersol, 1 Pet. 326; same case, 7 L. C. P. Co. 164; and no presumption will be permitted to supply any defects in certificate. Bell v. Morrison, 1 Pet. 351; same case, 7 L. C. P. Co. 174. The seal of the notary must be affixed. 35 Kan. 46, 49; 10 Iowa 305; 49 Ala. 242; 12 Ill. 162.

In the absence of express statutes to the contrary, the powers of an officer are limited to the territory of which he is an officer. 23 Kan. 32, 35, 36; 25 id. 260; 26 id. 780; 30 id. 755.

We submit the following among the numerous decisions of this court showing the strictness required in construing the law as to tax deeds, notwithstanding said § 113 of the tax law, as to irregularities: 35 Kan. 46, 382; 31 id. 38, 87; 36 id. 252, 191; 34 id. 213; 37 id. 156; 25 id. 522; 38 id. 255. Compare 4 Mich. 565, 567, 568; 2 Kent 150; 8 Cow. 277; 12 Pet. 345; 1 Me. 380; 1 Hill, 121; 49 Mo. 178, 302, 307; Cooley, Taxation, 353; 32 N.W. 459; 64 Iowa 621; 18 Mich. 218; 21 N.W. 111; 36 Iowa 22; 41 Mich. 708; 28 N.W. 433; 9 Ohio St. 599; 28 Wis. 685; 10 L. C. P. Co. 38; 13 Pet. 17; 61 Ala. 263; 2 L. C. P. Co. 101, note; 6 Har. & J. 141; 1 McLean, 525; 41 N.Y. 397; 18 L. C. P. Co. 653, 657; 6 Ill. 160; 1 Pet. 351; 49 Ill. 153; 96 Pa. 427; 60 Ill. 93; 56 Cal. 527, 522; 41 Ill. 149; 69 Mo. 144; 47 Ill. 514; 68 id. 426.

That a justice of the peace cannot act outside of his county, we refer to Beamer v. Winter, 41 Kan. 297, 596; 39 id. 365.

Even if the tax deed of Bishop was valid on its face, the defendant Hattie R. Douglass should have been permitted, as a matter of defense, to show by evidence aliunde the deed that it was void. Boh v. Walker, 32 Kan. 354.

James H. Lowell, Rafter & Robinson, and Hayden & Hayden, for defendant in error Case Broderick:

The only attempted compliance on the part of plaintiff in error with rule 6 of this court is the service on defendant Broderick of a copy of plaintiff's brief filed in Douglass v. Bishop, 45 Kan. 200, which plaintiff states is submitted mutatis mutandis. As the only point presented by the record in this case which was ever worthy of consideration was correctly decided against plaintiff in Douglass v. Bishop, supra, we submit that, for the reasons therein stated, the judgment of the court below should be affirmed.

OPINION

Per Curiam:

The proposition decided in the case of Douglass v. Bishop, 45 Kan. 200, 25 P. 628, is identical with the question involved in this case. For the reasons given in that case, the judgment of the district court is affirmed in this case.