Jackson v. Guss

• Decision Date: 06 January 1912
• Docket Number: 17,380
• Citation: 86 Kan. 280,120 P. 353
• Parties: W. V. JACKSON, Appellant, v. EARLE GUSS et al., Appellees
• Court: Kansas Supreme Court

120 P. 353

86 Kan. 280

W. V. JACKSON, Appellant, v. EARLE GUSS et al., Appellees

No. 17,380

Supreme Court of Kansas

January 6, 1912

Decided January, 1912.

Appeal from Comanche district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SCHOOL LANDS--Sale--Notice--Time Required. The statute as it existed prior to 1909, providing that the county treasurer should offer school land for sale after giving "four weeks' notice thereof" in a newspaper, required that a publication should be made twenty-eight days before the day of sale.

2. SCHOOL LANDS--Same. A sale made under such statute without that requirement having been met was void, although four successive publications in a weekly paper had been made prior to the day of sale.

Fred S Jackson, and Charles D. Shukers, for the appellant.

Fred B. Stanley, and Claude C. Stanley, for the appellees.

OPINION

MASON, J.:

The statute in relation to the sale of school land, as it existed prior to 1909, contained this provision:

"The county treasurer shall then offer the unsold portion of all school lands for sale at public auction, after giving four weeks' notice thereof in some newspaper published in such county; and in case no such paper is published in such county, then said notice shall be given by posting the same at each voting precinct in such county at least four weeks previous to the sale." (Gen. Stat. 1901, § 6346.)

Under this statute an attempt was made to sell a tract of school land on January 2, 1906. Notice of such sale was given by publication in a weekly newspaper in the issues of December 8, 15, 22 and 29, 1905, but not otherwise. W. V. Jackson bid in the land for $ 1.25 an acre, and received a certificate of purchase from the county clerk.

The land was again offered for sale on January 15, 1907, upon a notice the sufficiency of which is not challenged, and was sold to Earle Guss for $ 3.50 an acre. Upon this sale a patent was issued in February, 1908, to Earle Guss and Clyde C. Guss.

In July, 1907, Jackson accepted from the county treasurer a return of the money he had paid, upon being told by him that the first sale was void.

In May, 1909, Jackson brought an action against the Gusses, claiming to be the equitable owner of the land. Judgment was rendered against him and he appeals.

The natural and ordinary meaning of the language of the statute authorizing a sale of school land to be made "after giving four weeks' notice thereof in some newspaper" seems to be that a notice shall be published at least four weeks before the day of sale. To give a four weeks' notice of an event is to give notice of it four weeks in advance of its happening. If the statute had read "after giving twenty-eight days' notice" this meaning would be too clear for controversy. The word "week" is usually regarded as referring to a period of seven consecutive days. (30 A. & E. Encycl. of L. 447.) Such doubt as there is in the present instance arises from an inclination to associate the word with the successive issues of a weekly paper. A statute requiring the publication of a tax notice "once in each week for four consecutive weeks prior to the day of sale" is satisfied by an insertion in the four issues of a weekly paper preceding the day of sale, although the first publication may have been only 22 days before the date named. (Tidd v Grimes, 66 Kan. 401, 71 P. 844.) The authorities are divided as to whether the use of the term "successive" would alone be sufficient to require that interpretation (29 Cyc. 1121), but...