Gibson v. McClees

• Court: Kansas Supreme Court
• Writing for the Court: JOHNSTON, C. J.:
• Citation: Gibson v. McClees, 119 P. 870, 86 Kan. 254 (Kan. 1912)
• Decision Date: 06 January 1912
• Docket Number: 17,355
• Parties: CHARLES E. GIBSON, Appellee, v. CAROLINE MCCLEES et al., Appellants

119 P. 870

86 Kan. 254

CHARLES E. GIBSON, Appellee, v. CAROLINE MCCLEES et al., Appellants

No. 17,355

Supreme Court of Kansas

January 6, 1912

Decided January, 1912.

Appeal from Seward district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

TAX SALE--Voidable Tax Deed--Error in Redemption Notice. The inclusion in a redemption notice of an amount in excess of the taxes charged, with interest calculated to the last day of redemption, renders the tax deed voidable and subject to be defeated if attacked in due time.

F. S Macy, for the appellants; H. V. Tucker, of counsel.

Thomas A. Scates, and Albert Watkins, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action to quiet the title of Chas. E. Gibson in a tract of land, as against Caroline McClees. Service on defendant was obtained by publication and, no defense being made, judgment by default was taken against her. Thereafter the judgment was set aside, on motion, as provided by section 83 of the civil code, and J. V. Lycan, who had acquired the interest of McClees, was substituted as defendant. In the petition Gibson alleged he held the patent title to the land, which was vacant and wholly unoccupied, and that defendants claimed an interest therein, the nature of which was unknown to him. Lycan answered, claiming title under a tax deed issued to McClees in 1892, and that she had transferred her interest under it to him in 1908, and, further, that he had taken possession of the land in August, 1908, and had made improvements thereon. Gibson replied, alleging that the tax deed was invalid, because in the amount named in the redemption notice upon which the deed was based were included certain fees for advertising not lawfully chargeable. A trial resulted in a judgment for appellee Gibson.

The appellant insists that the petition of appellee was insufficient in that he failed to state the nature of appellant's claim of title or to show that it in fact constituted a cloud on appellee's title, or anything which called for the aid of a court of equity. If this be a defect, it was cured by the answer of appellant, who set out in his answer the source and nature of his claim of title. ( Casner v. Gahlman, 60 Kan. 857, 56 P. 1131; Harp v. Wilson, 84 Kan. 45, 113 P. 309; Brice v. Sayler, 82 Kan. 500, 108 P. 815; Parker v. Vaughn, 85 Kan. 324, 116 P. 882.) The issue was sharply drawn by the pleadings; appellee basing his claim on the patent title; appellant claiming under a tax title; and appellee responding that the tax title, which was not five years old when the action was commenced, was invalid. As the pleadings stood, the objection to the introduction of any testimony was not good.

The regularity of the proceedings upon which the tax deed was founded remains. A sale was made in September, 1898, for the unpaid taxes of 1897, amounting to $ 6.36. A tax deed was executed in September, 1902, the...