Shinkle v. Meek

• Court: Kansas Supreme Court
• Writing for the Court: CUNNINGHAM, J.:
• Citation: Shinkle v. Meek, 69 Kan. 368, 76 P. 837 (Kan. 1904)
• Decision Date: 07 May 1904
• Docket Number: 13,644
• Parties: C. F. SHINKLE et al. v. KIRK MEEK

76 P. 837

69 Kan. 368

C. F. SHINKLE et al. v. KIRK MEEK

No. 13,644

Supreme Court of Kansas

May 7, 1904

Decided January, 1904.

Error from Hamilton district court; WILLIAM EASTON HUTCHISON judge.

Judgment affirmed.

SYLLABUS

SYLLABUSUS BY THE COURT.

1. TAXATION -- Defective Notice of Redemption -- Deed Voidable -- Tender Unnecessary. If, in a final redemption notice, the sum stated as necessary to redeem be substantially greater than the amount of taxes charged, with interest calculated to the last day of redemption, the error will make voidable a tax deed based on such notice, if attacked in time. A tender of the sum actually due is not a condition precedent to the maintenance of an action to set aside such tax deed.

2. TAXATION -- Action to Quiet Title -- Pleading. A plaintiff may have his title quieted to land sold for taxes in an action for that purpose, where his petition counts upon general equitable considerations, and does not show in whom the possession is; especially so, when the answer avers that the land is vacant and unoccupied.

3. TAXATION -- Tax Deed Void -- Arbitrary Division of Costs -- Holder of Tax Title Estopped. A plaintiff in an action to quiet title to land sold for taxes made a tender of an amount which he claimed was sufficient to pay the defendants' tax lien. This tender was not accepted, and the trial proceeded upon the questions as to the validity of defendants' tax deed and the amount of the lien to which they would be entitled if the deed should be found invalid. The court adjudged the deed invalid, found the amount of their lien to be greater than the sum tendered, and adjudged that they pay all costs made after the tender. Held, that this division of costs was not erroneous as to the defendants, although it was an arbitrary one, for by continuing to litigate the title they made themselves properly chargeable with all costs.

George Getty, and George J. Downer, for plaintiffs in error.

W. H. Brown, and U. T. Tapscott, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

The meritorious question here involved is whether, in the final notice of redemption, the inclusion of a printer's fee of twenty-five cents and a county treasurer's fee of five cents in the amount necessary to redeem lands sold for taxes is sufficient to avoid a deed issued in pursuance of such sale, if attacked before the running of the statute of limitations in its favor.

The statute relating to this final notice (Gen. Stat. 1901, § 7671) provides that it shall contain "a list of all unredeemed lands and town lots, describing each tract or lot as the same was described on the tax-roll, stating the name of the person to whom assessed, if any, and the amount of taxes charged, and interest calculated to the last day of redemption, due on each parcel, together with a notice that unless such lands or lots be redeemed on or before the days limited therefor, specifying the same, they will be conveyed to the purchasers." The effect of this notice is to warn the owners of lands sold for taxes that they must redeem by a time certain, and that such redemption will be at a cost therein indicated. The items of cost of advertising and fee of the treasurer for making the lists are not by this statute to be included in the amount so designated. These statutory provisions, cutting off the original title as they do, must be substantially followed. If there may be included in this advertisement a substantial amount more than is warranted by the statute, then a larger and very excessive amount may be so included, and the owner, looking upon this final notice, might well conclude that he preferred to permit his title to be defeated by this proceeding rather than to pay the amount which this notice says must be paid to redeem. Upon this particular point it was said, in Casner v. Gahlman, 6 Kan.App. 295, 298, 51 P. 56:

"The notice required should state 'description of the land as described on the tax-roll,' the 'name of the person to whom assessed,' the 'amount of taxes charged, and interest to the last day of redemption.' The requirements of the statutes in this respect are mandatory and not directory merely, and such error invalidates the notice and renders voidable the deed."

We think the action of the trial court in the case at bar in so holding was correct.

Plaintiffs in error think that the case of Watkins v. Inge, 24 Kan. 612, is opposed to this view, but we do not so read it. That was a case where the redemption notice failed to state an amount large enough, the tax for one year being omitted. It did, however, plainly state that the tax of...