Schroeder v. Griggs

• Decision Date: 05 June 1909
• Docket Number: 16,060,16,059,16,061
• Parties: MAZIE SCHROEDER et al. v. MARY L. GRIGGS et al. E. B. WHITTIKER et ux. v. MARY L. GRIGGS et al. L. A. DOCKUM et ux. v. MARY L. GRIGGS et al
• Court: Kansas Supreme Court

102 P. 469

80 Kan. 357

MAZIE SCHROEDER et al. v. MARY L. GRIGGS et al.

E. B. WHITTIKER et ux. v. MARY L. GRIGGS et al.

L. A. DOCKUM et ux. v. MARY L. GRIGGS et al

Nos. 16,059, 16,060, 16,061

Supreme Court of Kansas

June 5, 1909

Decided January, 1909.

Error from Finney district court; WILLIAM H. THOMPSON, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. TAX DEEDS--Construction--Presumptions. A tax deed interposed in defense in an action of ejectment by the defendants holding possession and claiming title under it which has been of record more than five years before the action was commenced, should be read in the light of every reasonable presumption in its favor.

2. TAX DEEDS--Clerical Error--Statutory Recitals. Where the printed form of a tax deed, with blanks to be filled, prepared for use in cases where several tracts have been assessed and sold separately but are to be conveyed together, was so changed by striking out words and interlining others as to leave a recital to the effect that the land could be sold for the amount of tax and charges thereon, and was therefore bid off by the county treasurer for the county, held, that an examination of the whole instrument, with the changes so made, clearly shows that the omission of the word "not," which should have been inserted between the words "could be" after the word "neither" had been stricken out, was a mere clerical omission.

3. WRITTEN CONTRACTS--Construction--Clerical Error. The general rule is that a written contract should be construed according to the obvious intention, notwithstanding clerical errors and omissions therein which can be corrected by perusing the whole instrument.

4. TAX DEEDS--Construction. The foregoing rule of interpretation is applicable to the tax deed in question in the circumstances stated in the opinion.

William Easton Hutchison, for the plaintiffs in error.

R. W. Hoskinson, and Albert Hoskinson, for the defendants in error.

OPINION

BENSON, J.:

The question to be decided relates to the effect of a tax deed, under which the defendants are in possession and claim title in fee. The plaintiffs seek to recover the lands in question, to which they are entitled unless devested by the tax deed, which was recorded more than five years before the actions were commenced.

The plaintiffs contend that the deed is void (1) because it contained a recital that the land could be sold for the amount of the taxes and charges thereon, but was bid off by the county treasurer; (2) because in the granting clause it is recited that the conveyance is in consideration of the taxes, costs and interest due on the land for certain years, including 1891, but the deed does not show that the taxes for that year were included in the certificate or paid by the purchaser.

The deed was proved by the record in the register's office. A photograph of this record shows a printed form headed, "Several tracts. To assignee of county," under which the record of the deed appears. It is fair to presume that the original deed was made upon a like form or blank and that the printed and written parts respectively are the same as shown in the record. It appears, then, that the deed was made by using a printed form designed for use in cases where several tracts separately assessed and sold are conveyed by one deed. Parts of the printed matter were stricken out and interlineations were made in an attempt to adapt the form to this transaction, wherein the lots had been assessed and sold as a single tract. These changes resulted in a recital that this property "could be sold for the amount of tax and charges thereon, and was therefore bid off . . . for said county," etc., which, it is insisted, makes the deed void.

The following is a copy of that part of the deed considered important upon this inquiry. The words in brackets were stricken out by a line drawn through them. The words italicized were interlined above those stricken out:

"Whereas, each of the following-described [parcels, tracts and lots of land,] real property, viz.:

"[Number 1.] lots ten (10), eleven (11), and twelve (12), block twenty-one (21), J. A. Stevens addition to Garden City, Kan., situated in the county of Finney and state of Kansas, was, severally, subject to taxation for the year A. D. 1890; and, whereas, the taxes assessed upon each of said [several parcels, tracts and lots of] real property, respectively, 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 first day of September, A. D. 1891, by virtue of the authority in him vested by law, at Garden City, Kan., the sale begun and publicly held on the first Tuesday of September, A. D. 1891, expose to public sale, at the county-seat of said county, in substantial conformity with all the requisitions of the statute in such case made and provided, [offering separately each of the said several parcels, tracts and lots as in the regular course of said sale it was reached in its turn,] the real property above described, for the payment of the taxes, interest and costs then due and remaining unpaid upon [each of said parcels, tracts and lots of real] said property, [respectively]; and, whereas, at the place aforesaid, [neither of the said parcels, tracts and lots of] said property could be sold for the amount of tax and charges thereon, [and each of them was, therefore, as they were severally and in due course, as aforesaid, offered for sale] was therefore bid off by the county treasurer for said county, for the whole amount of taxes and charges then due thereon [and remaining unpaid on each of the said parcels, tracts and lots of said property.]"

Similar changes in the printed matter appear in other parts of the instrument to adapt the form to the conveyance of a single tract.

It will be observed that the words "neither of the said parcels, tracts and lots of" were stricken out and "said" was inserted before the word "property," thus adapting the recital to the case of a single tract; but this change struck out the negative "neither"; and the omission of the word "not" after "could" changed the negative form into an affirmative one, which is manifestly contrary to the intention.

The interlineation of the words "was therefore" before the word "bid" fairly indicates the intention. The recital that the property "could be" sold is in conflict with the statement that it "was therefore" bid off by the treasurer, and raises a strong implication that it could not be sold to other bidders, since the treasurer had no authority to bid if it could be so sold for the taxes and charges thereon. Indeed, the fact that it could be sold is, by the language used, made the reason why it was bid off by the treasurer, which is a manifest absurdity. The officer certainly did not intend to declare: ...