McCauslin v. McGuire

— 244 — The opinion of the court was delivered by Valentine, J.: This was an action brought by plaintiffs in error against McGuire, for the partition of a certain quarter-section of real estate. The plaintiffs in error claim to own an undivided-half of said real estate. The defendant in error claims to own the whole of it. The plaintiffs’ title is as follows: Patent for the land from the United States to David Eckert, dated October 1st 1858; deed of general warranty for the land, from Eckert to Morris S. Knight, dated August 9th 1857; deed for an undivided-half of the land from Knight to two of the plaintiffs, dated August 7t¡h 1857. The defendant’s title is as follows: Said patent, and said deed from Eckert to Knight; sheriff’s deed conveying the interest of Morris S. Knight in said land (being the other undivided-half of said land) to Abel Whitney, dated Nov. 12th 1863; deed for an undivided-half of said land from Whitney to the defendant in error, dated January 25 1865 ; tax deed for the whole of said land from the county clerk of Jefferson county to the defendant in error, dated April 29th 1866. All the questions involved in this case are with reference . to the validity and effect of said tax deed. Said tax deed reads as follows : “Know all men by these presents, that whereas, the following described real property, viz., the S.W.f of section 31, in township 9, of range 18, containing 160 acres, situated in the county of Jefferson and state of Kansas, was subject to taxation for the year 1861: And whereas, the taxes assessed upon said real property for the year 1861 aforesaid remained due and unpaid at the date of the sale hereinafter named: And whereas, the treasurer of said county did on the 7th day of May 1862, by virtue of the authority in him vested by law, (an adjourned sale of) the sale begun and held on the first Tuesday of May 1862, exposed to public sale at the county-seat in said county, in substantial conformity with all the requisitions of the statute in' such cases made and provided, the real property above described, for the payment of the taxes, interests, and costs then due and remaining unpaid on said property: And whereas, at the time and place afore — 245 — said no person bid the amount of tax, penalty and charges on said land, the said land was bid off by the county treasurer for the county of Jefferson for said amount, to-wit, the sum of seven dollars and fifty-seven cents, being the whole amount of taxes, interests and costs then due and remaining unpaid on said property for the S.W.-J- of section 31, in township 9 of range 18, containing 160 acresj which was the least quantity bid for: And whereas, the said county treasurer did on the 6th day of October 1862 duly assign the certificate of the sale of the property as aforesaid, and all the right, title, and interest of the said county to said property, to Thomas McGuire, of the county of Jefferson and state of Kansas: And whereas,.two years have elapsed since the date of said sale, and said property has not been redeemed therefrom as provided by law: Now therefore, I, Terry Critchfield, county clerk of the county aforesaid, for and in consideration of the said sum of $18.61 taxes, interest and costs due on said lands for the year 1861, to the treasurer paid as aforesaid, and by virtue of the statute in such case made and provided, have granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said Thomas McGuire, his heirs and assigns, the real property last herein-before described, to have and to hold unto him the said Thomas McGuire, his heirs and assigns, forever, subject however to all rights of i’edemption as provided by law. “ In witness whereof, I, Terry Critchfield, county clerk as aforesaid, by virtue of the authority aforesaid, have hereunto subscribed my name, and affixed my official seal, on this 27th day of April 1866. [county seal.] Terry Critchfield, County Clerk L. J. Trower, Witness. State of Kansas, Jefferson County, ss. : I hereby certify that, before me, a register of deeds in and for said county, personally appeared the above Terry Critchfield, clerk of said county, personally known to me to be the clerk of said county at the date of the execution of the above conveyance, and to be the identical person whose name is affixed to and who executed the above conveyance as clerk of said county, and acknowledged the execution of the same to be his voluntary act and deed, as clerk of said county, for the purpose therein expressed. Witness my hand and official seal this 28th of April 1866. [seal.] “L. J. Trower, Register of Deeds.” — 246 — This deed was recorded in the county register’s office April 28th, 1866. There is nothing in the record of this case, as brought to this court, which shows when this action was commenced. But as the action was not tried until May 28th 1873, and as the court then found generally in favor of the defendant and against the plaintiffs, and rendered judgment in favor of the defendant and against the plaintiffs, thereby sustaining the regularity and validity of said tax deed, we should presume in favor of the findings and judgment of the court below that this action was not commenced until after more than two years had elapsed after the recording of said tax deed, and therefore that the two-years statute of limitations had run in favor of said tax deed before this action was commenced. Therefore we cannot declare the tax deed void unless it is void upon its face, or unless it is affected with some incurable irregularity not shown upon its face. The plaintiffs claim that it is void upon its face for about six supposed irregularities. We shall mention them in their order: 1st. It is claimed that the deed is not duly witnessed. This deed was witnessed by one witness, and only one. He was the same person -yho took the acknowledgment of the execution of the deed. The only reasons for claiming that said deed was not duly witnessed are as follows : In § 10 of the tax law then in force (Comp. Laws, 878,) there was a clause which reads as follows: “And such deed [a tax deed] duly witnessed and acknowledged, shall he prima fade evidence of the regularity of such proceedings from the valuation of the land by the. assessor inclusive up to the execution of the deed, and may be recorded with like effect as other conveyances of land.” And in the same section, at the bottom of the form given for tax deeds, where witnesses usually sign their names, the word, “ Witnesses,” is printed. It will be perceived that the statute quoted does not expressly require that a tax deed shall be witnessed, nor does the statute state how it shall be witnessed, whether by one, two, or a dozen witnesses. The statute simply says that “such deed duly — 247 — witnessed,” etc., “ may be recorded with like effect as other conveyances.” Now what does “ duly witnessed,” mean ? We think it means “witnessed according to law.” And how does the law require that a deed of conveyance should be witnessed ? It in fact does not require that a deed of conveyance shall be witnessed at all. The common law never did require that deeds of conveyance should be witnessed by attesting witnesses: Jacobs’ Law Dict., Deed, ii, 8; 2 Black. Com., 307, and note 21; Comyn’s Digest, Fait, B, 4; 4 Greenl. Cruise on Real Prop., 31, ch. 2, § 77, et seq., and notes; 4 Kent Com., 458; 2 Washb. Real Prop., 572; 2 Hil. on Real Prop., 208, § 153. And no statute can be found in this state that requires any such thing. Tax deeds were unknown to the common law, and our statutes do not require that they shall be witnessed in any different manner from other deeds, but leave the matter entirely optional with the parties executing and receiving them. The statutes above quoted were borrowed almost literally from Wisconsin, where attesting witnesses were necessary to all deeds; and this accounts for the words “witnessed,” and “witnesses,” being used. In this state the certificate of the officer taking the acknowledgment of a deed, with his signature, and seal if he has one, is considered a sufficient attestation of any deed; and with such a certificate the deed may be read without other proof. We think the deed in. this case was duly witnessed, that it is valid, (if it is in other respects sufficient,) and that it is prima jade evidence of title. 2d. It is claimed that the deed does not show that any consideration was paid for the tax-sale certificate, or the assignment thereof. The property was bid off at the tax sale by the county treasurer for the county of Jefferson, and the county was not required by any law to pay anything therefor. The deed recites that the certificate of sale was duly assigned to the defendant; and this it does in almost the exact language given in the form prescribed by the statute. This we think was sufficient. It will be presumed that the purchase-money, ánd all that was necessary, was paid when the eertifi — 248 — cate was “ duly assigned.” The certificate with all the right, title and interest of Jefferson county to the land in question, could not have been “duly* assigned” to the defendant, as is stated in the deed, if the purchase-money was not paid. 3d. The sale seems to have been on May 7th 1862, which was Wednesday. But the deed plainly enough shows that the sale was “an adjourned sale of the sale begun and held on the first Tuesday of May 1862.” 4th. The name of. the officer taking the acknowledgment is not given in the body of the certificate. That is not material. The officer certifies “that before me, a register of deeds,” etc., and then signs his name, “L. J. Trower, Register of Deeds.” There can be no misunderstanding as to whom the pronoun “me” refers. It personates unmistakably the person signing the certificate, and with its connection clearly expresses his official character. 5th. The property was bid off by the county treasurer for the county, and the certificate of sale was issued to the county, and afterward assigned by the county treasurer to the defendant. It is claimed that no tax deed could be made on such a sale, or such a certificate. Everything seems to have been done in accordance with the law as the law existed at the time the same was done. We think a valid tax deed may be made on such a sale and such a certificate, when the certificate and the interest of the county has been duly assigned, as in this case. A valid tax deed may be made under the laws of Kansas to the assignee of a county, the legal holder of the tax-sale certificate. (Sprague v. Pitt, McCahon, 212.) 6th. It is claimed that the middle portion of said tax deed is not in the statutory form. This is true; but still it is in the proper form to express the facts as they exist in this case, and as they must exist under the law in all such cases. The form of this deed is varied from the statutory form only far enough to express the facts in the case. In the case of Bowman v. Coakrill, 6 Kas., 311, 324, 325, we held that a tax deed need not be in the exact form prescribed by the statute; and in two later cases, Norton v. Friend, 13 Kas., 532, and Magill — 249 — v. Martin, ante, 67, we have held that the form of the tax deed must be so varied in all cases where the facts and the statutory form do not.agree, that the deed will state the facts as they really are. The deed must state the exact truth, and must always show a legal sale, or the deed will be void. 7th. We hardly think that the question desired to be raised under the seventh heading of plaintiffs’ brief is in the case. The question is, whether oné of two or more tenants in common can procure a valid tax title to land held by himself and his co-tenants. It seems from the tax deed that the property in controversy was taxed for the year 1861. It was sold May 7th 1862 for the taxes of 1861, to the county of Jefferson. On October 6th 1862 the lax-sale certificate, and the interest of Jefferson county in and to the land, were transferred to the defendant, Thomas McGuire. And the tax deed is prima fade evidence of all of these recitals. If there was any evidence in conflict with these recitals the court below may have believed these recitals, and disbelieved the other evidence in conflict therewith. The ccfurt below found generally in favor of the defendant and against the plaintiffs, and therefore it would seem that the court did find that these recitals were true, notwithstanding there may possibly have been some evidence tending to contradict them. If there was any evidence tending to contradict these recitals it was slight parol evidence. If these recitals are true, neither Butts nor Whitney ever owned said tax-sale certificate. But even if Butts did own the certificate, if Whitney never owned it the point attempted to be raised is really not in the case. But even if Whitney at one time owned the certificate, still the point does not seem to be in the casé. The assignment of the tax-sale certificate seems to have been made on October 6th 1862, yet Whitney did not have any other interest in the land until he got such interest under his sheriff’s deed, on November 12th 1863. It would therefore seem that he obtained his right to said land under his tax-sale certificate about thirteen months before he obtained any right under the sheriff’s deed. If the true facts are, that Whitney had said tax-sale certificate as — 250 — signed to him, and then afterward bought the undivided-half of said land at sheriff’s sale, we suppose it will not be claimed that he had no right to take a tax deed to himself for the land on his tax-sale certificate, or to assign his tax-sale certificate to the defendant so that the defendant could take a tax deed upon the land. What the real facts are we cannot tell. But if there was really any mere irregularity in the assignment of said tax-sale certificate, we should not for that reason alone, and against all the presumptions in favor of the tax deed which has had more than three times the necessary length of time for the statute of limitations to run in its favor, and against all the presumptions in favor of the findings and judgment of the court below, declare the tax deed void, and reverse the judgment of the district court. It is admitted that there never was any unity of title between Whitney and McGuire on the one side, and the plaintiffs on the other side, for they all held under different titles. Was there any unity of possession? and if not, was Whitney or McGuire deprived of the privilege of acquiring a tax title? We do not think it is necessary to answer these questions. The judgment of the court below is affirmed. All the Justices concurring.