Gibson v. Kueffer
| Decision Date | 11 June 1904 |
| Docket Number | 13,688 |
| Citation | 77 P. 282,69 Kan. 534 |
| Parties | JAMES S. GIBSON v. GOTTFRIED KUEFFER |
| Court | Kansas Supreme Court |
Decided January, 1904.
Error from Ness district court; CHARLES E. LOBDELL, judge.
Judgment reversed.
SYLLABUS BY THE COURT.
1. TAXATION -- Sufficient Description in Tax Deed. In a tax deed reciting the sale of several disconnected tracts the use in the granting clause of the words "and each and every separate tract and parcel thereof," in addition to the statutory form designating the property conveyed as "the real property last hereinbefore described," indicates a purpose to convey all of the land sold.
2. TAXATION -- Tax Deed Invalid upon its Face -- Limitation of Action. A tax deed which covers several disconnected tracts of land and fails to state the amount for which each separate tract was conveyed is invalid upon its face and may be set aside on that ground, even after the lapse of five years from the time it was recorded.
W. H. Russell, for plaintiff in error.
N. H. Stidger, for defendant in error.
OPINION
The only question here presented is whether a certain tax deed was sufficient in form to resist an attack upon it made after it had been of record for more than five years for defects shown upon its face. The trial court upheld the deed by sustaining a demurrer to an answer which set out its contents in full and called attention to the matters claimed to invalidate it.
The deed included two disconnected tracts. Its granting clause described the property conveyed as "the real property last hereinbefore described and each and every separate tract and parcel thereof." Plaintiff in error contends that by reason of this language there was no conveyance of the tract first described in the deed, which is the land here involved, and the case of Spicer v. Howe, 38 Kan. 465, 16 P. 825, is relied on as supporting the contention. There the deed, after describing several tracts and reciting the various transactions relating to each, wound up by granting "the real property last hereinbefore described," and was therefore held to convey only one tract--that last designated. But the deed here involved resembles the one held good as a conveyance of several parcels in Cartwright v. Korman, 45 Kan. 515, 26 P. 48, in that its recitals throughout refer to the tracts collectively as "said property." Moreover, whatever doubt there might be as to the land indicated by the expression "the real property last hereinbefore described," which is adopted literally from the form prescribed by statute (Gen. Stat. 1901, § 7676), is removed by the addition of the words "and each and every separate tract and parcel thereof," which were manifestly employed for that very purpose.
The other objection made to the deed is that, while it states the amount for which each separate tract was sold, yet the subsequent taxes for three years, which were paid by the holder of the certificates and which formed a part of the consideration for the deed, are merely given in gross, so that it cannot be told from the face of the deed how much was paid for such taxes upon either tract separately. The statute provides (Gen. Stat. 1901, § 7677):
"In any case where any purchaser at any tax sale shall purchase more than one parcel or tract of land or lots, he may require the county clerk to include all such lands or lots in one deed, stating the amount of tax, interest and penalty for which each separate tract is sold and conveyed, the sum of which separate amounts shall be the gross or aggregate consideration of the deed."
That this statute requires a separate statement of the subsequent taxes paid upon each tract, as well as of the amount for which each tract was originally sold, appears from the requirement that the deed shall show the amount for which each is conveyed, as well as the amount for which it is sold. While the land is in the first instance sold for one year's tax, it is conveyed for this amount plus any subsequent payments indorsed on the certificate. That this is the meaning intended appears also from the concluding provision that the sum of...
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Bradley v. Bradley
...25 Ind.App. 662, 58 N.E. 859; Bartlett v. Houdlette, 147 Mass. 25, 16 N.E. 740; Potter v. Barthelet (C. C.) 20 F. 240, 242; Gibson v. Kueffer, 69 Kan. 534, 77 P. 282; Laney v. Johnson, 95 Ark. 131, 128 S.W. 859. The learned trial judge erred in not sustaining the demurrer, and in not dismis......
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