Havel v. The Decatur County Abstract Company

• Decision Date: 05 July 1907
• Docket Number: 15,163
• Citation: 76 Kan. 336,91 P. 790
• Parties: ROZI HAVEL v. THE DECATUR COUNTY ABSTRACT COMPANY
• Court: Kansas Supreme Court

91 P. 790

76 Kan. 336

ROZI HAVEL v. THE DECATUR COUNTY ABSTRACT COMPANY

No. 15,163

Supreme Court of Kansas

July 5, 1907

Decided July, 1907.

Error from Rawlins district court; ABEL C. T. GEIGER, judge.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. TAX DEED--Recorded Five Years--Statutory Recitals--Construction. A tax deed which has been recorded more than five years and under which the purchaser and his grantee have since its issuance been in the actual continuous possession of the land, making valuable improvements thereon, will not be held void on its face by reason of not being in the exact form prescribed by the statute, provided all the essential facts prescribed in the statutory form are, by a fair construction of the language of the deed, therein recited.

2. TAX DEED--Residence of Purchaser. The residence of the purchaser who is named in a tax deed and who is not fictitious is not, in a legal sense, a recital therein, and the omission thereof will not render the deed void upon its face.

J. P. Noble, for plaintiff in error.

Dempster Scott, for defendant in error.

OPINION

SMITH, J.:

The plaintiff in error brought suit in the district court of Rawlins county to quiet her title to a tract of land which she claimed to own in that county. The defendant abstract company answered denying the plaintiff's title, and set up a mortgage on the land and asked a foreclosure thereof.

At the trial it developed that the plaintiff's title rested upon a tax deed issued to C. F. McGrew more than five years before the commencement of the suit. The court adjudged the tax deed void, allowed the plaintiff a first lien for taxes paid and awarded the defendant a second lien for the amount of its mortgage, and ordered a foreclosure and sale of the land to satisfy the liens. The plaintiff brings the case here.

As was said in the brief of each party, the only question in this case is whether the tax deed is void upon its face. If the deed is void, the judgment should be affirmed; otherwise, the plaintiff is entitled to all the relief prayed for in her petition and the defendant is entitled to nothing.

The deed was duly acknowledged and was duly recorded on the day following its issuance. The court found that the plaintiff and her immediate grantors had been in the actual possession of the land from the date of the deed to the time of the trial, and had paid all the subsequent taxes and had made valuable improvements thereon. The tract of land in question is the southeast quarter of section 17, in township 3, of range 32, in Rawlins county. The tax deed was offered in evidence and on objection was excluded as void upon its face. Omitting the acknowledgment and certificate of filing and recording it reads:

"Know all men by these presents: That whereas, the hereinafter described tracts or pieces of ground situated in the county of Rawlins and state of Kansas were subject to taxation for the year A. D. 1894; and whereas, the taxes assessed upon said respective tracts and pieces of real property, for the year aforesaid, remained due and unpaid at the date of the sale hereinafter mentioned; and whereas, the treasurer of said county did, on the 3d day of September, A. D. 1895, by virtue of the authority in him vested by law, at (an adjourned sale of) the sale begun and publicly held on the first Tuesday of September, A. D. 1895, expose to public sale at the county seat of said county in substantial conformity with all the requisitions of the statute in such case made and provided each of said tracts and pieces of ground separately for the payment of the taxes, interest and costs, then due and remaining unpaid upon said tracts and pieces of ground respectively; and whereas, at the place aforesaid, said tracts and pieces of ground could not be sold for the amount of taxes and charges thereon, and was, therefore, bid off by the county treasurer for said county, for the whole amount of taxes and charges then due thereon; the said amount being herein stated as follows; to wit:

"The SE 1/4 of Sec. 1, Town. 1, Range 31, for $ 20.46.

The NE 1/4 of Sec. 12, Town. 1, Range 32, for $ 13.57.

The NE 1/4 of Sec. 10, Town. 1, Range 35, for $ 19.76.

The E 1/ 2 N.E. 1/4 of Sec. 9, Town. 2, Range 32, for $ 5.42.

The SW 1/4 of Sec. 25, Town. 2, Range 32, for $ 21.70.

The NE 1/4 of Sec. 20, Town. 2, Range 34, for $ 12.45.

The SW 1/4 of Sec. 15, Town. 2, Range 36, for $ 10.80.

The SE 1/4 of Sec. 17, Town. 3, Range 32, for $ 9.83.

The SW 1/4 of Sec. 24, Town. 4, Range 31, for $ 19.02.

"And whereas, for the sums of

"$ 30.65 for the SE 1/4 of Sec. 1, Town. 1, Range 31, and

$ 20.22 for the NE 1/4 of Sec. 12, Town. 1, Range 32, and

$ 29.46 for the NE 1/4 of Sec. 10, Town. 1, Range 35, and

$ 8.13 for the E 1/ 2 N.E. 1/4 of Sec. 9, Town. 2, Range 32, and

$ 32.55 for the SW 1/4 of Sec. 25, Town. 2, Range 32, and

$ 18.65 for the NE 1/4 of Sec. 20, Town. 2, Range 34, and

$ 16.20 for the SW 1/4 of Sec. 15, Town. 2, Range 36, and

$ 14.70 for the SE 1/4 of Sec. 17, Town. 3, Range 32, and

$ 28.50 for the SW 1/4 of Sec. 24, Town. 4, Range 31,

aggregating the sum of one hundred ninety-nine dollars and six cents, paid to the treasurer of said county, on the 7th day of December, A. D. 1898, the said treasurer did give to C. F. McGrew, certificate of that date, as in such case provided by law, for and concerning said property, and the county clerk of said county did on the same day duly assign to the purchaser aforesaid the said certificate of sale, and all the interest of said county in said property;

"And whereas, three years have elapsed since the date of said sale, and the said tracts or pieces of ground have not been redeemed therefrom as provided by law;

"Now, therefore, I, Frank Johnson, county clerk of the county aforesaid, for and in consideration of the sum of one hundred ninety-nine dollars and six cents, taxes, costs and interest due on said land for the year A.D. 1894, by him to the treasurer paid as aforesaid, and by virtue of the statute in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said C. F. McGrew, his heirs and assigns, the real property hereinbefore described, to have and to hold, unto him, the said C. F. McGrew, his heirs and assigns, forever; subject, however, to all rights of redemption provided by law.

"IN WITNESS WHEREOF, I, Frank Johnson, county clerk as aforesaid, by virtue of authority aforesaid, have hereunto subscribed my name and affixed the official seal of said county, on this 7th day of December, A. D. 1898.

50c. I. R. S.

FRANK JOHNSON, County Clerk."

affixed to document.

(SEAL.)

The deed does not literally follow the form prescribed by the statute, and mainly for this reason it is reproduced here. It does not follow that the deed is void because not in the exact statutory form, but to sustain it we must find therein all the essential statutory requirements. (Martin v. Garrett, 49 Kan. 131, 30 P. 168.) The objections to the deed are set forth in the following conclusions of the court, to wit:

"(5) The deed fails to describe any property taxed. It describes only property which was sold.

"(6) The deed is for a large number of tracts, and fails to state the amount of tax, interest and penalty for which each separate tract is sold and conveyed, and the sums or amounts which are given do not, when computed, make the gross or aggregate consideration of the deed.

"(7) None of the several tracts is so numbered or marked in any way that reference can be made thereto.

"(8) The county and the state of the residence of the assignee, C F. McGrew,...