Reed v. Morse

• Decision Date: 08 April 1893
• Citation: 32 P. 900,51 Kan. 141
• Parties: JOHN REED v. J. S. MORSE et al
• Court: Kansas Supreme Court

32 P. 900

51 Kan. 141

JOHN REED v. J. S. MORSE et al

Supreme Court of Kansas

April 8, 1893

Error from Shawnee District Court.

ACTION by Reed against Morse and others. Judgment for defendants at the January term, 1889. The plaintiff brings the case here. The facts appear in the opinion.

Judgment reversed.

E. E Chesney, J. T. Ward, and Jos. Reed, for plaintiff in error:

"A tax deed must conform substantially to the requirements of the statute under which it is executed. If 'the seal of the county' be omitted in its authentication the deed is void. Nor is it admissible even to show color of title under the special limitation of the revenue act." Sutton v Stone, 4 Neb. 319.

"An auditor's deed for tax lands is inadmissible in evidence unless his official seal is attached." Day v. Day, 59 Miss. 318.

True, there is, contra, Bowers v. Chambers, 53 Miss. 259. But this was decided as it was because a form of tax deed was prescribed by the legislature in which no seal was given or required, and it is always sufficient to follow exactly the form laid down in the statute, even where the form in full is absurd.

The Kansas statute expressly directs the county clerk to execute, in the name of the county and by the county clerk, "under his hand and seal of the county," all tax deeds. Gen. Stat. of 1889, ch. 107, § 138. This is stronger than the Nebraska statute, and makes more forcible Sutton v. Stone, supra.

Where the statute prescribes a particular form for the deed, the form becomes substantive, and must be strictly pursued or the deed will be held void. It must be substantially followed.

2 Desty, Tax., § 144; Grimm v. O'Connell, 54 Cal. 522; Hubbell v. Campbell, 56 id. 532; Boardman v. Boone, 20 Iowa 134; Atkins v. Kinna, 20 Wend. 249.

N. B. Arnold, for defendants in error:

At common law, the purchaser at a tax sale, having received a conveyance from the proper officer reciting all the requirements, was bound to prove strict compliance. For the purpose of avoiding this, it has been enacted that the recitals of the deed should be prima facie evidence of the regularity of all proceedings. Every recital in the tax deed is prima facie true. Hobson v. Dutton, 9 Kan. 477. The clerk recites that he has affixed the official seal of the county; a recital that must be taken as prima facie true. The clerk of the county is directed to make a deed under his hand and seal of county, conveying to the purchaser the land sold. This he recites he has done. But if he has failed to do so, under our statutes it cannot work an invalidation of deed. It is still prima facie true, since the legislature has announced that a failure of any officer to perform the duties assigned to him, upon the day specified, shall not work an invalidation of the deed. Gen. Stat. of 1889, P 6993.

Besides, this is one of those tax deeds that should be liberally construed for the purpose of upholding and enforcing it. The deed bears date August 5, 1873. The evidence shows that the defendants in error have had possession under the deed for nearly 20 years. Sanger v. Rice, 43 Kan. 580.

ALLEN, J. All the Justices concurring.

OPINION

ALLEN, J.:

The only question we deem it necessary to consider in this case is whether a tax deed, signed by the county clerk, but without the seal of the county attached thereto, is void or not. The statute requires the county clerk to...