Turner v. Raynolds

• Decision Date: 09 December 1922
• Docket Number: 24,020
• Citation: 210 P. 1093,112 Kan. 365
• Parties: E. F. LYLE and R. W. TURNER, Appellees, v. L. D. RAYNOLDS, Appellant, et al
• Court: Kansas Supreme Court

210 P. 1093

112 Kan. 365

E. F. LYLE and R. W. TURNER, Appellees, v. L. D. RAYNOLDS, Appellant, et al

No. 24,020

Supreme Court of Kansas

December 9, 1922

Decided July, 1922.

Appeal from Jewell district court; WILLIAM R. MITCHELL, judge.

Affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TAX DEED--Defect in Recitals--Not Called to Attention of Trial Court. A tax deed cannot be held invalid on appeal for a defect in its recitals which was not called to the attention of the trial court and upon which its ruling was not invoked.

2. SAME--Slight Miscalculation of Taxes Due--Will Not Vitiate Tax Deed. A slight and unintentional miscalculation of the amount due for delinquent taxes, interest and costs is not sufficient to vitiate a tax deed issued pursuant thereto.

3. SAME--Amount of Taxes Due--Facts Shown Insufficient to Compel Setting Aside Tax Deed. The result of an appellant's computation of the correct amount due for delinquent taxes interest and costs will not be considered sufficient to overturn a tax deed when the mathematical operation by which such result was reached is not shown, and when it does not appear that any error in computing the amount recited in the tax deed was fairly presented to the trial court.

4. SAME--Findings of Trial Court. The evidence considered and held insufficient to require a finding and judgment of the trial court that two items for printer's advertising fees had been erroneously included in the computation of taxes, interest, and costs, for the payment of which the tax deed involved was issued to plaintiffs.

D. M. McCarthy, W. L. Reynolds, both of Mankato, and R. M. Pickler, of Smith Center, for the appellants.

D. F. Stanley, R. B. Turner, and R. W. Turner, all of Mankato, for the appellees.

OPINION

DAWSON, J.:

This was an action in ejectment by the plaintiff holders of a tax deed against the defendant holder of the fee title and his tenants. The property involved was one and a fraction town lots in Mankato.

The principal defendant, L. D. Raynolds, filed an answer containing a general denial, and alleging that the plaintiffs went to the county treasurer on August 27, 1920, and "paid illegal, excessive and confiscatory taxes, unlawfully assessed against said real property," and that on August 28, 1920, the county clerk executed and delivered to plaintiffs--

"A purported tax deed . . . without authority of law, purporting to convey . . . said real estate . . . by reason of sale of said property for taxes for illegal, excessive and confiscatory taxes, unlawfully assessed against said premises; . . .

"That said payments so made . . . was voluntary and made wantonly, wilfully and maliciously, for the purpose of distressing this answering defendant and embarrassing him in the enjoyment and use of his said real property and to cloud and defeat his title by a wrongful, wilful and unlawful payment of illegal, excessive and confiscatory taxes, assessed against the real property . . . described . . ."

Accompanying this answer was a cross-petition in which defendant alleged that he was and at all times had been ready, able and willing to pay "all just, lawful and legal charges, assessments, taxes and any and all legal claims . . . lawfully chargeable against the real property" for the year 1914 and subsequent years; and he "hereby offers and tenders to pay the same into court . . . to the full amount . . . and asks that the same be found and determined by the court." He also alleged that plaintiffs' tax deed was null and void and a cloud on his title, and prayed for judgment to that effect.

Plaintiffs prevailed, and the principal defendant appeals.

The first point urged upon our attention is that the tax deed was void on its face because it did not recite that the property was bid off by the county treasurer for the county. As this tax deed was only a few months old when this action was begun, that defect under our precedents might have been serious (Jackson v. McCarron, 77 Kan. 776, 95 P. 402; Perkins v. Berry, 104 Kan. 104, 177 P. 530); but it is quite clear that no such issue was raised by the pleadings; and plaintiffs quote excerpts from the transcript which demonstrate that this particular infirmity in the recitals of the tax deed was not called to the attention of the trial court, and of course this court cannot say that the trial court erred on a point upon which its ruling was never invoked. (Robbins v. Brower, 74 Kan. 113, 116, 85 P. 815.)

In John v. Young, 74 Kan. 865, 867, 86 P. 295, another deed case, it was said:

"It is claimed the description contained in the deed is defective, but nowhere in the pleadings is the description assailed, and the conduct of the trial court cannot be questioned concerning matters not submitted to it for decision."

In Vogler v. Stark, 75 Kan. 831, 89 P. 653, it was said:

"The fact that the deed did not state the residence of the grantee was not submitted to the district court, and only such questions as were decided by that court can be reviewed here. In his pleading plaintiff points out specifically the supposed defects in the tax deed, and this was not one of them. There can be no...