Tidd v. Grimes

• Decision Date: 07 March 1903
• Docket Number: 12,989
• Citation: 71 P. 844,66 Kan. 401
• Parties: CHARLES E. TIDD v. C. K. GRIMES
• Court: Kansas Supreme Court

71 P. 844

66 Kan. 401

CHARLES E. TIDD v. C. K. GRIMES

No. 12,989

Supreme Court of Kansas

March 7, 1903

Decided January, 1903.

Error from Stafford district court; ANSEL R. CLARK, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

TAXATION -- Publication of Sale Notice. A tax-sale notice published once in each week for four consecutive weeks prior to the day of sale complies with the requirements of section 7639, General Statutes of 1901, although the first publication was made twenty-five days only before the sale.

F. W Casner, and Paul R. Nagle, for plaintiff in error.

Israel Moore, and George E. Moore, for defendant in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

This was an action of ejectment. The plaintiff below based his right to possession on a tax deed. The trial court held that the deed was invalid for the reason that the tax-sale notice upon which the deed was based was published for twenty-five days only before the sale, but found that it was printed once in each week during four consecutive weeks prior to the day of sale, the first publication being on August 6, the second on August 13, the third on August 20, and the fourth on August 27. The sale was had on September 1.

The tax law (Gen. Stat. 1901, § 7639) provides that the county treasurer shall cause a notice to be published "once in each week for four consecutive weeks prior to the day of sale." We think the requirements of the statute were satisfied by the publication made.

The question has received consideration by other courts. In Frothingham v. March, 1 Mass. 247, it was held, under a statute which required notice of a judicial sale to be published "three weeks successively," that the law was complied with if the notice was printed once in each week for the time specified. See, also, Dexter v. Shepard, 117 Mass. 480. In Early v. Doe, 16 How. (U. S.) 610, 616, 14 L.Ed. 1079, the court was called on to consider the sufficiency of a tax-sale notice which was required by law to be published "once in each week for at least twelve successive weeks." It was concluded that the use of the words "at least" in the statute required the first publication to precede the sale eighty-four days. The court, however, said:

"So there were eleven insertions of the notice in the newspaper in different weeks (making, with the first twelve) after the expiration of the week from the first insertion, and the point to be settled is, whether the statute means that twelve insertions in successive weeks is...