Lowenstein v. Sexton

*325 Opinion of the court by Gillette, J.: Two propositions are presented for determination here: First, is the tax deed of plaintiff void upon its face ? Second, does the statute of limitations protect the plaintiff in his title notwithstanding defects in the deed? The deed conveyed six (6) separate parcels of land which were not contiguous and recited that they were sold to plaintiff, Lowenstein, for the sum of $133.78, on the 3rd day of September, 1894 at the office of the county treasurer. The lot in question was sold for $43.63, which fact is not recited in the deed, but is shown by evidence produced upon the trial. It is urged that it was necessary to the validity of the deed to this lot that the amount for which it was sold should have been recited therein. 'The “statute governing the execution of tax deeds, section 5657, statute of 1893, provides that the tax deed shall be substantially in the form which *326 is set forth in that section, and which form provides that the sum for which the property was sold should be set out. It was not substantially in that form if it failed to set out the amount for which the property was sold. The tax deed under consideration does not do this, but does set out the total sum for which the six several tracts described in the deed were sold. The language of the statute is mandatory in its terms and tenor, and has not been complied with in this respect, so far as the. lot in question is concerned as shown by the face of the deed. This' court in Weeks v. Murkle, 6 Ok. 714, uses the following language: “We find that the tax deed, upon its face, by its terms, purports to convey property not contiguous, which was jointly sold for taxes. Such fact, so found, is sufficient to invalidate the deed.” It is here then determined that a material fact to the validity of a tax deed found to be wanting upon the face of the deed, is sufficient to invalidate it. In other words, the deed must be sufficient upon its face to convey a title, or no title is conveyed. By a tax deed the property of a citizen is conveyed for a consideration that moves to the public and not to the owner of the property, and it may therefore be said to be a taking of private property for public use, which can only be done, in all eases, by a strict compliance with the law authorizing it. There is no contract and there are no equities as in • cases between individuals, which may be brought forward *327 to aid the court in determining the equities between the parties, and by the aid of which to determine the rights of either, and to order a reformation of the instrument of conveyance to conform to such rights. A strict compliance with the law alone, divests the citizen of his property for public use, and where, as in this case, the statute prescribes the substantial form of an instrument by which property shall be conveyed, at cannot be conveyed by an instrument which does not recite the existence of the facts required. Nor can we go behind the deed to prove the existence of facts which should have been set forth in it. The liberal construction with regard to tax proceedings required by see. 5667 of the statute, does not go to the extent of authorizing or directing the court to read a necessary provision which has been omitted therefrom by the official executing it, because such fact may be or has been proven to exist, and by so doing declare a deed to be valid which does not conform to the requirements of the statute. A liberal construction would, we think, require the court to declare an instrument valid where words are used declaring facts to exist which are equivalents to the statutory requirementg. - But in this case a compliance with the provisions of the statute which requires a tax deed to set forth the amount for which the property was sold, is entirely wanting, and there is, therefore, no room for a liberal construction to sustain the validity of the instrument. The deed does not recite the separate considerations paid for six separate and distinct tracts, of which the lot in question was one, and upon the *328 trial counsel for plaintiff offered evidence to show that this lot was sold for a sum less than the total consideration named, but this is not sufficient. The deed should have recited what this property sold for. We hold, therefore, that it is a material requirement to a valid tax deed that it should set forth, as required by the statute, the amount for which the property conveyed was sold and that the deed in question was wanting in this necessary requirement and was, therefore, void. Counsel for plaintiff in error urge that the rights of the defendant in error as set forth in his answer to the plaintiff’s petition, were barred by the statute of limitations, which answer among other things set forth the invalidity of the tax deed as herein determined, and for the reasons herein stated. The deed being void was a nullity and there was therefore nothing to start the statute of limitations to run. As stated by Judge Horton in Waterson v. DeVoe, 18 Kans. 233: “When the deed discloses upon its face that it is illegal, when it discloses upon its face that it was executed in violation of law, the law will not assist it. No statute of limitations can be brought to aid its validity. “The party accepting it and claiming under rgf has full notice of its illegality and must abide the consequences of such illegality.” See also upon the same subject Halls Heirs v. Dodge, 18 Kans. 277. This was an action to quiet title to the premises in question, in the plaintiff under his tax deed, which being void upon its face justified the defendant in bringing that fact *329 to the notice of the court by his answer, regardless of the provisions of the statute limiting the time in which an action might be brought to test the validity of a tax deed. Such a deed is not in fact a cloud upon the title and the court could not upon the facts disclosed quiet the title in the plaintiff, and was justified in entering judgment cancelling the same. Finding no error in the record the judgment of the court below is affirmed. Burwell, J., who presided in the court below, not sitting; Burford, C. J., and Irwin, J., dissenting; all the other Justices concurring.