Corbin v. Inslee

The opinion of the court was delivered by Horton, C. J.: This was an action to quiet title to certain lands in Linn county. Plaintiff based his title on a tax deed, . [158] which described the lands as “lots 1, 2, 3 and 4, section 13, in township 23, range 24, except undivided 11 acres.” The tax sale was had on May 8th, 1872, for the tax of 1871. All the proceedings, including the deed, were under the tax law of 1868. (Gen. Stat., ch. 107.) A demurrer was interposed by the defendant to the petition. The court held that the tax deed was insufficient on its face to pass title to the plaintiff, and therefore sustained the demurrer. The contention is over the description of the land in the deed. Defendant claims that the deed does not contain a correct and pertinent description as is required by thé statute, and refers to Commissioners v. Goddard, 22 Kas. 389. Plaintiff urges in opposition to this view, that the deed , shows the assessment and sale of an undivided interest. It is doubtful whether the deed states anything more than the sale of an undivided portion of the real estate, but if it can be upheld at all, it must be on the assessment and sale of an ' undivided interest. We assume, therefore, that the question is raised, whether an undivided interest in land can be legally assessed for taxation under the statutes of 1868; and if the taxes remain delinquent on such undivided interest, whether it can be sold for the delinquent taxes? It is well settled that the officers who exercise the power of assessing and selling land for taxes, can exercise no implied power whatever. The statute regulating assessments of land and tax sales is not ambiguous on this subject. By the statute of 1868, each parcel of land must be separately listed. (Secs. 32, 36 and 37.) The listing and assessment must contain a “correct and pertinent description of each parcel of real property,” (§32,) and of the “quantity” and “value” of each parcel, (§36.) All lands and town lots subject to sale for taxes shall be published in some newspaper for four consecutive weeks prior to the day of sale, and such lands and town lots shall be described in the publication as the same are described on the tax roll, and such publication shall state that so much of each tract of land or town lot, described in the list, as may be [159] necessary for that purpose, will be sold at public auction for the taxes and charges thereon. (Secs. 81 and 82.) Sec. 84 reads as follows: “On the day designated in the notice of sale, the county treasurer shall commence the sale of those lands and town lots on which the taxes and charges have not been paid, and shall continue the same from day to day, Sundays excepted, until each parcel or so much of each parcel shall be sold as shall be sufficient to pay the taxes and charges thereon, including the costs of advertising and the fees for selling.” Sec. 85 provides: “The person at such sale offering to pay the taxes and charges against any one piece or parcel of land for the smallest quantity of land in a square, as nearly as practicable, off from the northeast corner of the tract or piece of land, shall be the purchaser of such quantity, located as aforesaid.” Section 86 further provides: “If no one will bid for a less quantity than the whole, the treasurer may sell any tract or piece of land to anyone who will take the whole of such tract or piece of land' and pay the taxes and charges thereon.” Clearly, these sections neither require nor provide for the assessment or sale of undivided interests. On the other hand, these sections distinctly set forth the listing and advertising of land in separate parcels, and that the sale shall be of the smallest quantity of land’ in a square, as nearly as practicable, qff from the northeast corner of the tract or piece of land, to pay the taxes and charges. In case no one bids for a less quantity than the whole, the treasurer may sell the tract or piece, to anyone who will take the whole of the tract or piece, for all the taxes and charges. In Hall’s Heirs v. Dodge, 18 Kas. 277, we held that a tax deed which shows upon its face that two or more separate and distinct tracts of land were sold together is void upon its face. This conclusion was reached because such a, sale is not authorized by the statute, and is in violation of its letter and spirit. So, likewise, in the present action, we think a similar result must be obtained. No statute makes any provision for the sale of an undivided interest, [160] and it fails to point out the modus operandi whereby such a sale may be effected. There is no northeast corner of an undivided interest in land, and yet the statute is emphatic in requiring that the person offering to- pay the taxes and charges against any one piece or parcel of land, for the smallest quantity, in a square off from the. northeast corner, shall be the purchaser. If au undivided one-third were offered for sale by the treasurer, how could competitive bidders make intelligent bids therefor, and in what manner could the treasurer sell to the successful-purchaser a square of the land off from the northeast corner? -These inquiries help to suggest the fallacy of the argument of the plaintiff. As the statute makes no provision for a sale of an undivided interest for taxes, the officer had no authority to sell an undivided part of the land. Having no authority to make the sale, the deed is void upon its face, and passed no title to the plaintiff. Counsel for plaintiff refers to § 100, ch. 107, Gen. Stat. 1868, which provides, that any owner, etc., may, etc., redeem any land or town lot, or any part thereof, or any interest therein, and § 101, which provides the same as to lands of minors, and attempts to argue therefrom that it is the policy of the law to permit the payment of taxes on an undivided interest in land before sale, as well as after a sale. Such is not the statute. Secs. 100 and 101 are only applicable after a sale has been made. We have examined the various decisions of other states in regard to the sale of undivided shares in land for delinquent taxes, but so far as we can discern, those that assert a contrary doctrine to the one herein announced are based upon local statutes, differing essentially from ours. Several states provide by statute that the tenant-in-common, or part owner, be allowed to pay in his part, (23 N. Y. 438;) others make provision by statute to assess and sell land by undivided interests. (Renkendorf v. Taylor’s Lessee, 4 Pet. 349, 362; Wells v. Burbank, 17 N. Y. 393; Payne v. Dooley, 18 Ark. 491.) But these authorities have no application to our stat [161] ute, and therefore the ruling and judgment of the district court will be affirmed. Brewer, J., concurring. Valentine, J.: I think that the county treasurer has power to sell an undivided interest in land for delinquent taxes.