Penrose v. Cooper

• Citation: 81 P. 489,71 Kan. 720
• Decision Date: 07 July 1905
• Docket Number: 14,219
• Parties: W. B. PENROSE v. S. W. COOPER et al
• Court: United States State Supreme Court of Kansas

81 P. 489

71 Kan. 720

W. B. PENROSE v. S. W. COOPER et al

No. 14,219

Supreme Court of Kansas

July 7, 1905

Decided. July, 1905.

Error from Sedgwick district court; DAVID M. DALE, judge. First

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TAX DEED--Defective on its Face--Recorded Five Years --Setting Aside. A tax deed, based upon a certificate assigned by the county, which recites that the property conveyed could not be sold at the tax sale for the amount against it, and was bid off by the county treasurer, but omits to state the amount for which it was bid off or that it was bid off for the county, is defective upon its face and may be set aside on that account, even after it had been of record for five years. (See post, p. 725.)

2. EJECTMENT--Plaintiff's Title--Voidable Tax Deed. One who brings ejectment against the holder of a voidable tax deed, although he fails to prove a good paper title, may recover upon a showing that up to the time the defendant took possession under his tax deed the plaintiff and those under whom he claims had for several years held peaceable possession of the property in controversy under a claim of ownership.

S. W Shattuck, jr., for plaintiff in error.

J. A. Brubacher, for defendants in error.

MASON J. All the Justices concurring.

OPINION

MASON, J.

S.W. Cooper brought an action against W. B. Penrose for the possession of two town lots, and recovered judgment, from which the defendant prosecutes error. The claim of Penrose was based upon two tax deeds, one of which had been of record for more than five years. Cooper claimed to hold title by a chain of conveyances running back to the patentee from the federal government. The important questions presented are whether the tax deeds were good upon their face, and, if not, whether the plaintiff showed that he had any standing to question their validity.

The tax deeds were similar in form, and were based upon certificates assigned by the county. The most serious objection made to them has to do with the recital relating to the lots' being bid off by the county. The statutory form of tax deed adapted to such a case contains this language:

"And whereas, at the place aforesaid, said property could not be sold for the amount of tax and charges thereon, and was therefore bid off by the county treasurer for said county for the sum of dollars and cents, the whole amount of tax and charges then due." (Gen. Stat. 1901, § 7676.)

The corresponding part of the tax deeds in question reads:

"And, whereas, at the place aforesaid, said each respective piece or parcel of said real property could not be sold for the several sums of money, dollars and cents, placed opposite each respective piece or parcel of said real property as follows [giving descriptions and amounts], being the whole amount of tax and charges on each tract or parcel as aforesaid, the same was bid off by the county treasurer of said county."

The deeds fell short of a full compliance with the statute in that they failed to say for whom or for how much the property was bid off by the county treasurer. It is true that the treasurer could not legally have bid it off for any one except the county or for any price except the full amount of taxes and charges due against it, and these considerations might seem to aid the deeds and make their recitals substantially equivalent to those of the statute. The same line of argument, however, would dispense with the necessity for any recital at all with regard to this matter. The essential condition necessary to give the county authority to assign a certificate to a later purchaser is that the property has failed to sell at public auction for want of bidders, and this was fully set forth in these deeds. The purchase by the county is an affair of theory, requiring for its consummation no palpable act of any officer. The only contract involved is a constructive one. The new relation of the county to the property results by operation of law. In the absence of statutory provision, doubtless the transaction is not one that would need to be recited in order to show jurisdiction to issue a tax deed. To say that the property was bid off by or for the county gives no real information as to the steps actually taken; the statement seems purely formal, and of no practical importance. But because the legislature has seen fit to include a reference to it in the prescribed form it may not be ignored in the deed, and the same reasons that render it imperative that it shall be referred to at all make it necessary that the reference shall be in substantial conformity with the statute.

In the present case there was a plain departure...