The Lincoln Mortgage and Trust Company v. Davis

• Decision Date: 09 November 1907
• Docket Number: 15,195
• Citation: 92 P. 707,76 Kan. 639
• Parties: THE LINCOLN MORTGAGE AND TRUST COMPANY v. ROBERT DAVIS
• Court: Kansas Supreme Court

92 P. 707

76 Kan. 639

THE LINCOLN MORTGAGE AND TRUST COMPANY v. ROBERT DAVIS

No. 15,195

Supreme Court of Kansas

November 9, 1907

Decided July, 1907.

Error from Seward district court; WILLIAM EASTON HUTCHISON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TAXATION--Description in a Deed Conveying Several Tracts--Construction. In the case of a tax deed covering several tracts which has been of record for five years, the failure to add to the statutory form (which includes but one description) words showing explicitly that the recitals are meant to apply to the tracts severally, and not collectively is not fatal; such omission results at most in an ambiguity, and a construction must be adopted which will uphold the deed.

2. TAXATION--Assignment of Certificate. A tax sale certificate issued under the "compromise act" (Gen. Stat. 1901, §§ 7672, 7673) is assignable.

3. TAXATION--Residence of the Grantee in a Deed. The fact that a tax deed is based upon proceedings under the compromise act does not change the rule that it is not rendered void upon its face by a failure to disclose the residence of the grantee.

4. CONSTITUTIONAL LAW--Uniform Assessments--Delegation of Powers--Title of an Act. The compromise act, which authorizes the county commissioners, where property offered at tax sale remains unsold for three years for want of buyers, to cause a certificate to be issued for less than the full amount due thereon, does not violate the constitutional requirement that the rate of assessment and taxation shall be equal, nor is its title insufficient, nor is it void as an attempt to devolve judicial powers upon administrative officers.

Francis C. Price, for plaintiff in error.

M. W. Sutton, T. A. Scates, and Albert Watkins, for defendant in error.

OPINION

MASON, J.:

This case turns upon the question whether the trial court erred in holding a tax deed which had been of record more than five years to be good upon its face. Two deeds were in fact involved, covering different tracts, but as they were substantially similar in form the discussion may be confined to one of them. The deed covered several separate tracts and contained these recitals:

"And whereas, at the said sale, no person bid the said amount of taxes and charges on said tracts, . . . and whereas, said lands have remained unredeemed for three years and no person has offered to purchase the same for the taxes, charges and interest thereon."

It is argued that this language implies merely that all of the tracts together could not be sold for the total amount against them, and falls short of showing that as to each description there was a failure to sell because no one would bid the amount charged against that particular tract. It is true that inasmuch as the statutory form of tax deed relates only to a single tract it ought to be changed where several parcels are conveyed together, by inserting words showing that they are referred to distributively rather than collectively, in order to avoid all ambiguity. But, in view of the liberality of interpretation to which a five-year-old deed is entitled, there is no difficulty in the present case in reaching the same result by adopting a construction which upholds the acts of the public officers and sustains the deed upon the theory that by fair intendment it shows the proper proceedings to have been taken in respect to each tract referred to.

The deed was made under the "compromise act" (Gen. Stat. 1901, §§ 7672, 7673) to an assignee of the person to whom the certificate was issued. It is claimed that inasmuch as the general statute relating to tax-sale certificates (Gen. Stat. 1901, § 7648) in express terms declares that they shall be assignable, and these words are omitted in the compromise act, the certificates there provided for are not assignable. This act, however, provides for the payment of the redemption money to the purchaser or holder of the certificate, his heirs or assigns (§ 7673), thereby recognizing the assignability of the instrument. Moreover, certificates issued upon a compromise, although possessing some peculiar features, are still of the same general character as ordinary certificates, and recourse must be had to the general law (§ 7648) to determine their contents and effect.

The deed did not mention the residence of the grantee. The plaintiff in error urges this as a fatal defect notwithstanding this court has decided in Havel v Abstract Co., ante, p. 336, that although in the statutory form blanks are left after the names of the purchaser and his assignee in which to insert the counties of their residence this does not amount to a requirement that such blanks must be filled or that such residence must be stated. It is contended that the rule there laid down should not apply to a deed made in pursuance of a compromise, because in such case the owner of the land is interested in knowing the residence of the purchaser, inasmuch as if he...