Sanger v. Rice

• Decision Date: 01 January 1890
• Citation: 23 P. 633,43 Kan. 580
• Parties: JANE SANGER v. DAVID R. RICE et al
• Court: Kansas Supreme Court

23 P. 633

43 Kan. 580

JANE SANGER v. DAVID R. RICE et al

Supreme Court of Kansas

January 1, 1890

Error from Bourbon District Court.

THIS was an action in the nature of ejectment, brought in the district court of Bourbon county on June 3, 1887, by David R Rice against I. S. Sanger and others, to recover the north half of lot number 12 in block number 102, in Fort Scott Kansas. Afterward Oscar Rice was substituted as plaintiff in the place of David R. Rice. At the December term, 1887, the case was tried before the court without a jury, and the court made special findings of fact and conclusions of law, and upon such findings and conclusions rendered judgment in favor of the plaintiff and against the defendant for the property in controversy; but on the other side rendered judgment that the defendant Sanger was entitled to receive from the plaintiff, for taxes paid and improvements made by Sanger the sum of $ 871.78. It is not necessary to give a copy of the findings of fact or conclusions of law, but as the principal question involved in this case is whether a certain tax deed is valid or not upon its face, it will be proper to give a copy of such tax deed. Such tax deed, omitting the acknowledgment, reads as follows:

"Know all men by these presents, That whereas, the following-described real property, viz., north half of lot No. twelve (12), in block No. one hundred and two (102), in the city of Fort Scott, situated in the county of Bourbon and state of Kansas, was subject to taxation for the year A.D 1873; and

"Whereas, the taxes assessed upon said 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 21st day of May, 1874, by virtue of the authority in him vested by law, at the sale begun and publicly held on the first Tuesday of May, A.D. 1874, expose to public sale, at the county seat of said county, in substantial conformity with all the requisitions of the statute in such cases made and provided, the real property above described, for the payment of taxes, interest and costs then due and remaining unpaid upon said property; and

"Whereas, at the time and place aforesaid there being no bidders for said property, said property could not be sold for the amount of taxes and charges thereon, said north half-lot 12, block 102, in the city of Fort Scott, Kansas, was bid off by the county treasurer for the county of Bourbon, for the sum of forty-one dollars and thirty-four cents, being the whole amount of taxes, interest and costs then due and remaining unpaid on said property; and

"Whereas, the said county of Bourbon did, on the 15th day of September, A. D. 1881, duly assign the certificate of the sale of the property, as aforesaid, and all its right, title and interest to said property, to John F. Cottrell, of the county of Bourbon and state of Kansas, for the sum of one hundred and ninety-two and 50-100 dollars, in full of taxes, costs, and interest on said property for the year 1873, for macadam tax only; and

"Whereas, over three years have elapsed since the date of said sale, and the said property has not been redeemed therefrom as provided by law:

"Now, therefore, I, L. B. Welch, the county clerk of the county aforesaid, for and in consideration of the said sum of one hundred and ninety-two dollars and fifty-nine cents, taxes, costs and interest due on said lands for the years aforesaid, to the treasurer paid as aforesaid, and by virtue of the statute in such cases made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said John F. Cottrell, his heirs and assigns, the real property last hereinbefore described; to have and to hold unto him, the said John F. Cottrell, his heirs and assigns forever; subject, however, to all the right of redemption provided by law.

"In witness whereof, I, L. B. Welch, the county clerk as aforesaid, have hereunto subscribed my name and affixed the official seal of said county, on the 16th day of September, A. D. 1881.

[Seal.]

L. B. WELCH, County Clerk."

The defendant Sanger, as plaintiff in error, brought the case to this court, making David R. Rice and Oscar Rice defendants in error. Since the case was brought to this court Sanger died, and the action has been revived in the name of Jane Sanger, individually, and as administratrix.

Judgment reversed and cause remanded.

J. D. McCleverty, for plaintiff in error.

Ware, Biddle & Cory, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

The substantial question involved in this case is, who owns the north half of lot number 12 in block number 102, in Fort Scott? The title of the defendants in error, plaintiffs below, is as follows: It is admitted that William Shaeffer, prior to his death, and by a chain of title from the government down to himself, owned the property in controversy. After his death, and on April 23, 1887, his heirs, by a quitclaim deed for the expressed consideration of $ 1, conveyed the property to David R. Rice, and on December 26, 1887, David R. Rice and wife, by a quitclaim deed, for the expressed consideration of $ 1, conveyed the property to Oscar Rice. The title of the plaintiff in error, defendant below, is founded upon a tax deed executed by the county clerk of Bourbon county to John F. Cottrell on September 16, 1881, for taxes of 1873, and recorded on September 19, 1881, and a quitclaim deed executed by Cottrell and wife to I. S. Sanger, on July 10, 1882, and the actual possession of the property by Sanger and his grantor from the date of the tax deed to the present time, and paying all the taxes and making improvements thereon. As the tax deed had been of record for more than five years before this action was commenced, and as the parties holding under the same were in theb actual possession of the property during all that time, and as except for the tax deed the plaintiff below, Rice, would hold the legal title to the property, it is admitted by both parties that the only question involved in the case with regard to the title is, whether the tax deed is void or valid upon its face.

The facts of the case concerning the taxes and the tax proceedings, as shown by the evidence outside of the tax deed, and stated very briefly, are substantially as follows: In the year 1873 the property in controversy was taxed for various purposes, and these taxes were placed upon the tax-rolls of Bourbon county. An amount was also assessed against the property by the city of Fort Scott for macadamizing the street immediately in front of such property, which amount was also placed upon the tax-rolls of the county for that year, and was designated and known as a "macadam tax." All the taxes except this macadam tax were paid, and this macadam tax was not paid. On May 21, 1874, the property was offered for sale, for this macadam tax, and there being no bidders it was bid off by the county treasurer for the county of Bourbon. On September 15, 1881, John F. Cottrell paid into the county treasury the sum of $ 192.59, being the amount that would be required at that time to redeem the property from the taxes, and received a certificate therefor from the county treasurer, which certificate and all the interest of Bourbon county in and to the property in controversy, were, for the consideration above named, assigned to Cottrell by the then county clerk of Bourbon county, and on the next day the tax deed was executed by the county clerk to Cottrell. These facts are certainly sufficient, if the tax deed properly states them, to give the tax-deed holder a good title. It is claimed, however, on the part of Rice, that the tax deed does not state the real facts, and that the facts which it does not state render it void upon its face, and this for the following reasons:

First: It is claimed that the tax deed shows that prior to the time of the tax sale other taxes besides the macadam tax had been assessed and levied upon the property in controversy for the year 1873; that all these taxes were still due and unpaid at the date of the sale; that the property was sold for all such taxes; that they all remained due against the land up to the assignment of the tax-sale certificate, and that the tax-sale certificate was assigned, not for all of them, but for the macadam tax only.

...