Hewitt & Rounds v. Storch

The opinion of the court was delivered by Horton, C. J.: It appears from the findings of the trial court that the real estate described in the petition, viz., lot 19, in block 16, in L. C. Challiss’s addition to the city of Atchison, was assessed and placed upon the tax roll for taxation in 1872 as in “Challiss’s addition;” that the taxes for 1872 remaining due and unpaid thereon, the county treasurer advertised the same for sale at the tax sale to be held on the first Tuesday of May, 1873, and the lot, described only as in “Challiss’s addition,” was sold on May 15, 1873, to the de [494] fendant in error, for $23.12; that on May 15, 1873, a tax-sale certificate was issued by the county treasurer of Atchison county to the defendant in error, describing the property only as “lot 19, in block 16, C. A., situated in Atchison county, Kansas;” that on June 28,1877, the lot not being redeemed, the county clerk, on the application of the plaintiff below, issued to him a tax deed, describing the property as in “ Challiss’s addition to the city of Atchison;” that this deed was recorded in the office of the register of deeds of the county on June 29, 1877; that on March 25, 1881, the defendant in error again presented the same tax-sale certificate to the county clerk, and requested him to issue another tax deed, describing the lot as in “L. C. Challiss’s addition to the city of Atchison; ” that the county clerk then issued to the defendant in error another tax deed upon the old certificate, describing the lot as requested, and reciting only the payment of the taxes for 1872, 1873, 1874, and 1875, as in the prior tax deed. Upon these and the other findings of the district court, we think the power of the county clerk was exhausted in executing the first deed. It is unnecessary for the purpose of this case to decide whether the tax roll of 1872, or the tax certificate of May 15, 1873, sufficiently described lot 19 in block 16 in L. C. Challiss’s addition to the city of Atchison. A tax deed, to be valid, must not only substantially conform to the requirements of the statute, but must correspond with the proceedings upon which it is based, in all essential particulars. The county treasurer must give to the purchaser, on payment of his bid, a certificate describing the lands purchased, in accordance with the records of the tax proceedings in his office. If the land be not redeemed within the time prescribed by the statute, the county clerk of the county where the land is sold, on presentation to him of the certificate of sale, must execute in the name of the county, as county clerk, to the purchaser, his heirs or assigns, a deed to the land remaining unredeemed; but he has no power to insert in the deed executed by him another and different de [495] scription from that contained in the tax proceedings. While it is sufficient to describe lands in all proceedings relative to assessing, advertising or selling the same for taxes, by initial letters, abbreviations and figures to designate the township, range, section or parts of section, and also the number of lots and blocks, and while it is competent for the county clerk, instead of using such initial letters, abbreviations and figures in the tax deed executed by him, to write out in full the words which such initial letters, abbreviations, etc., represent, yet he is not to make any material or substantial variance in the description of the property inserted in the deed, from that set forth in the prior tax proceedings upon which it is based. Each act of the tax proceedings must substantially correspond with its immediate antecedent. (Blackwell on Tax Titles, 434.) A tax certificate and a deed thereon have relation to, and are founded upon, the tax proceedings prior thereto, and a county clerk fully performs his duty when he writes out in full, in the tax deed, the description of land given on the tax roll, and the proceedings upon which the tax sale is made. The deed of June 28, 1877, described the premises therein mentioned as fully as any of the records of the tax proceedings authorized. The county clerk had no power to go further. If he had added anything in the tax deed to the description not contained in the tax proceedings, such addition would not aid or materially benefit the deed. He could not affect the title thus conveyed, or attempted to be conveyed, by the execution of a subsequent tax deed containing a different description from that set forth in the prior tax proceedings. If the proceedings up to the execution of the first tax deed were invalid for want of a sufficient description of the property sold at the tax sale, the fatal defect could not be cured by the execution of a subsequent tax deed containing a description not found in the prior tax proceedings. If, however, the description in the tax proceedings prior to the execution of the first deed was sufficiently definite and certain, then the first tax deed was valid for all purposes, and the [496] county clerk had no power to execute the subsequent tax deed. It is shown from the findings that the plaintiff in error, L. C. Challiss, has been the owner of said lot 19 since November 18, 1858, and that for ten years past the lot has been actually and continuously occupied by various persons as lessees of said plaintiff in error. As the first tax deed was recorded on June 29, 1877, and as no action was brought for the recovery of the lot sold for taxes within two years after the recording of the deed, the plaintiff was not entitled, under the statute of limitations, to maintain any action thereon. (Bowman v. Cockrill, 6 Kas. 311; Corbin, v. Bronson, 28 id. 532.) And as such tax deed had become barred by the statute of limitations before the commencement of this action, the plaintiff was not entitled in this action to recover back the taxes paid by him, or to have them declared a lien on the land. (Corbin v. Bronson, supra.) The judgment of the district court must be reversed, and the cause remanded with direction to the district court to enter judgment upon the findings of fact in favor of the plaintiffs in error. All the Justices concurring.