Babbitt v. Johnson

[254] The opinion of the court was delivered by Brewer, J.: This was an action of ejectment. Defendant in error, plaintiff below, relied on a chain of title from government — plaintiff in error, defendant below, upon a tax deed. Four questions are presented. It is objected that the acknowledgment to a deed in June 1859, was insufficient, because taken before an officer not authorized to take acknowledgments. The officer was the deputy of the clerk of the probate court. This must be held good. An acknowledgment before the clerk of a court having a seal, was sufficient. Comp. Laws, p. 355, § 14. The probate court was such a court, and had a clerk. See Gen. Laws of 1858, p. 202, §§ 34 to 37; Laws of 1859, p. 332, § 2; Laws of 1859, p. 341, §§ 40 to 43. Such clerk might lawfully appoint a deputy, and such deputy could lawfully perform any ministerial office unless- specially enjoined upon the clerk. Laws of 1859, p. 341, § 41. Whitford v. Lynch, 10 Kas. 180. Again, it is objected that an acknowledgment to a deed was taken after the suit commenced. The deed was dated and irregularly acknowledged before the commencement of the action, and on the first trial' ruled out on account of this defect in the acknowledgment. Intermediate the two trials, it had been correctly acknowledged, and now the objection was, that this last acknowledgment was subsequent to the commencement of the action. The objection is not good. The acknowledgment is mere matter of proof. The deed is valid without it. It takes effect from the time of its delivery, and this, in the absence of any showing to the contrary, is presumed to have been on the day of its date. Riggs v. Henneberry, 58 Ill. 135. . Again, it is insisted that the tax deed was good upon its . face. The deed recites that the land was struck off to the county as a competitive bidder, and is similar to the deeds held void in the recent cases of Norton v. Friend, 13 Kas. 532; Magill v. Martin, 14 Kas. 67. Finally, it is insisted that this action could not be main [255] tained because no tender of the amount of taxes, costs, etc., had been made to Babbitt as provided by § 11 of the tax law of 1862, (Comp. Laws, p. 880, and § 90 of the tax law of 1866.) These sections had been repealed prior to the commencement of this action, and in lieu thereof was enacted § 117 of the tax law of 1868, (Gen. Stat. p. 1057,) by which before the holder of the tax-deed is ousted of possession the successful claimant is required to pay the taxes, etc. This order was made, and it is all the plaintiff in error was entitled to. Sapp v. Morrill, 8 Kas. 685, 686. The judgment will be affirmed. All the Justices concurring.