Mathews v. Buckingham

[168] The opinion of the court was delivered by Horton, C. J.: The main question presented is, whether the trial court rightfully directed the jury to return a verdict for the defendant in error? After he proved title in-himself through various conveyances running back to the-United States, plaintiff in error introduced in evidence a tax deed, covering the lot in controversy, and lot No. 2, county park, in Salina, dated May 7, 1874, but purporting to have-been acknowledged on May 14th of the same year; then a warranty deed from Sarah Sebrin'g to her, dated February 19r 1877, and rested. Defendant in error proved in rebuttal, that on May 8, 1874, he made application to redeem the lot,, and then tendered to the treasurer of Saline county the amount for which- the property was sold, together with the subsequent taxes, charges, and all interest, and that the tax deed was not acknowledged or delivered until after said date. In an action of this character, the plaintiff in the court below must have recovered upon the strength of his own title; but when that title was once established, the court was-right in directing a verdict for such plaintiff, if no evidence was offered to militate against it, or overthrow it. No defect appeared in any of the conveyances through which the defendant in error derived his title. The objections to these conveyances made by the plaintiff in error are not tenable. If there were any irregularities in the issuance of the patent of August 4, 1866, from the United States to the probate-judge of Saline county, or from the other grantors, including the deed of the Salina town company, it was incumbent on the plaintiff in error to offer proof of them. Counsel claim, the patent was void, for the alleged reason that the sale of the town site took place prior to its entry, yet there is nothing in the record sustaining this assertion, while the recitals in the-conveyances show the reverse to be the case. As the law presumes that every man in his private and official character does his duty until the contrary is proved, both the-patent and the town company deed were properly admitted.. [169] No preliminary proof of the proceedings upon which the patent and town company deed were based, or of the organization of the town company, was necessary for their introduction. ' This disposition of these matters leaves only for consideration the character of the tax deed, upon which plaintiff in error relied. This deed is void because it shows-upon its face that two separate and distinct lots or tracts of land were sold together. It discloses that it was executed in violation of law. (Hall’s Heirs v. Dodge, 18 Kas. 277.) Further than this, the undisputed facts show the deed ought never to have been executed. The defendant in error had the right, as owner of the premises, to redeem the lot from the tax sale, at any time before the execution of the deed. (Gen. Stat., p. 1051, § 100; Laws 1876, ch. 34, § 127.) The application to redeem, and the tender of all the money necessary therefor, was made on May 8, 1874. The deed was not acknowledged until May 14,1874, and not delivered till some days thereafter; so it was not executed when, the tender was made. The treasurer should have accepted the money when offered, and the plaintiff in error ought to have received this instead of the deed, which was without validity. As the title of the lot was complete in the defendant in error, and as the tax deed was void, there was no evidence in the case to sustain a judgment for the plaintiff in error, and therefore the trial court committed no error in directing judgment for the defendant in error. The attent-ioh of the court has never been called to any application under the occupying-claimant law, and no error-can be based upon its non-action in that regard. As the plaintiff in error agreed that the originals of the deeds and conveyances were not, at the time of the trial, in the possession or under the control of the defendant in error or his attorneys, all objections founded against the introduction of copies of the same in their absence was waived, and we need not comment further on the allegations of error in receiving such copies. The judgment of the district court will be affirmed; but [170] upon the entry of the mandate of affirmance, the court below is directed to order the defendant in error to pay to the plaintiff in error the taxes, charges and penalties tendered May 8, 1874, before such party shall be let into possession of the lot recovered under the judgment in the case. All the Justices concurring.