McDonough v. Merten

• Decision Date: 10 March 1894
• Citation: 35 P. 1117,53 Kan. 120
• Parties: McDONOUGH v. MERTEN.
• Court: Kansas Supreme Court

35 P. 1117

53 Kan. 120

McDONOUGH v. MERTEN.

Supreme Court of Kansas

March 10, 1894

Syllabus

1. A tax deed is void upon its face if it fails to state, by description, acres, or otherwise, the property bid for at the tax sale, and the granting clause of the deed fails to cure or supply such defect. In such a case, the description of the land purporting to have been bid off at the tax sale, and conveyed in a tax deed, is not sufficiently specific or definite, and therefore is not designated with “ordinary and reasonable certainty.”

2. Dodge v. Emmons, 34 Kan. 732, 9 P. 951, referred to and distinguished.

Error from district court, Clay county; R. B. Spilman, Judge

The facts fully appear in the following statement by HORTON, C J.:

This was an action in the nature of ejectment, commenced on December 26, 1887, by Patrick McDonough against H. H. Merten, to recover the S. W. ¼ of section 6, in township 9, of range 3 E. of the sixth P. M., in Clay county, in this state. The defendant answered with a general denial. The first trial was had on the 19th day of June, 1889, and judgement was rendered in favor of the defendant. The plaintiff demanded another trial, which was granted, and the cause was again tried at the November term of the court for 1889, and on the 5th day of December of that year. The plaintiff relled upon a patent from the United States dated April 1, 1872. The defendant, to maintain the issues on his part, offered in evidence a tax deed dated the 30th day of May, 1876, reciting a tax sale on the 6th day of May, 1873, for the taxes of 1872. It also appeared upon the trial that the defendant and his grantors have been in possession of the property ever since 1873; that the plaintiff failed to pay the taxes for 1872, and has never paid the same. The trial court decided, as a matter of law, that the tax deed conveyed an absolute title, in fee simple, to Edward A. Small, the grantee of the deed, and one of the prior grantors of the defendant. Patrick McDonough excepted, and brings the case here. Reversed.

Harkness & Goddard, for plaintiff in error.

M. M. Miller and C. C. Coleman, for defendant in error.

OPINION

HORTON, C. J., (after stating the facts as above.)

The only question involved is as to the validity of the tax deed introduced upon the trial against objections of the plaintiff. The serious defect complained of is in the recital of the sale, which is as follows: "And whereas, at the place aforesaid, John R. Taylor, of the county of Clay and state of Kansas, having offered to pay the sum of thirty-four dollars and twenty-six cents, being the whole amount of taxes, interest, and costs then due and remaining unpaid on said property, for year 1872, ___ which was the least quantity bid for." The statutory form covering that portion of the deed reads as follows: "And whereas, at the place aforesaid, A. B., of the county of ___ and state of ___, having offered to pay the sum of ___ dollars and ___ cents, being the whole amount of taxes, interest and costs then due and remaining unpaid on said property, for (here follows a description of the property sold.)" The county clerk has failed to...