Duncan v. Gillette

[159] The opinion of the court was delivered by Johnston, J.: The decision of this case depends upon the validity of a tax deed executed on May 26, 1875, by P. I. Bonebrake, who was then county clerk of Shawnee county, to J. B. Webber, who subsequently conveyed the land to the plaintiff in error. According to the stipulation of the parties, the plaintiff in error is entitled to recover, unless the tax deed is void on its face, in which event the judgment should be in favor of the defendant in error, who claims title under the original patentee of the land. The tax deed purports to have been issued under chapter 196 of the Laws of 1872, which provides that where lands or town lots that have been sold for any taxes due thereon are bid in by the county, and have remained unredeemed for five years after such sale without anyone offering to purchase the same for the taxes, penalties and costs, it becomes the duty of the county treasurer to sell such lands or town lots at public auction to the highest bidder for cash. A prerequisite to the sale is stated in § 1 of this act, where it is said that the treasurer may sell — “After having first given at least four weeks’ notice of such sale and of the property to be sold, with a statement of the taxes, penalties and costs due on such lands or town lots up to the date of such sale, in some newspaper of general circulation in such county, or if there be no such newspaper in such county, then by written or printed handbills put up in one or more public places in each township in such county.” In § 2 authority is given for the making of the tax deed, and some of the acts precedent to its execution are stated as follows: “On payment by the purchaser of the price bid for any such laud or lot, the treasurer shall make to such purchaser a certificate in writing of such sale, on presentation of which to the clerk of the county commissioners of such county it shall be the duty of such clerk to execute to such purchaser a deed under the seal of said county, conveying such land or lot to such purchaser,” etc. [160] Tax deed void on face. [159] The validity of the deed before us is challenged because it [160] fails to show that the required notice was given, that the payment was made by the purchaser of the price bid for such laud, that the certificate in writing of such sale by the treasurer had been made to the purchaser, and the presentation of the certificate to the county clerk of the county in which the land is situate. We regard these omissions to be fatal to the tax deed. It should show upon its face that the requirements of the statute had been substantially complied with. No sale could be made until the statutory notice had been given. The county clerk had no authority to execute a deed until payment had been made by the purchaser of the amount of his bid, nor until the treasurer had made a certificate to the purchaser of such sale and payment; and not then until the certificate had been presented to him for that purpose. Douglass v. Wilson, 31 Kas. 565, is quite analogous to the present case. It arose under chapter 43 of the Laws of 1879, which was enacted for substantially the same purpose as the act of 1872. It was there provided that where lands or town lots have been sold for taxes and bought in by the county, and shall be unredeemed for three years from the date of the sale, and no person shall offer to purchase the lands or lots for the taxes, penalties, and costs due thereon, that the county commissioners of the county where the lands or lots are located may permit the owner, his agent or attorney, to redeem the same, or may authorize the county treasurer to execute and the county clerk to assign tax-sale certificates for such lands or town lots, for any sum less than the legal tax and interest thereon, as in their judgment shall be for the best interest of the county. The court held that in order that a tax deed executed under that law shall be valid, the lands or lots sold must have remained in the hands of the county unredeemed for at least three years after the date of the sale, before any authority can be given by the county commissioners to the county treasurer to execute, or to the county clerk to assign a tax-sale certificate; and also held that a deed which failed to show that no person offered to pay the whole amount [161] of such taxes, penalties, and costs, and that the county commissioners had authorized the county treasurer to receive a less amount than the amount of the taxes, penalties, and costs, and that the county commissioners had authorized the county treasurer to execute and the county clerk to assign the tax-sale certificate, and that the same was done in pursuance of such authority, is void upon its face. The omitted recitals thus held to be fatal to that deed, are no more important or essential than those which are lacking in the present one, and therefore that decision practically disposes of this case. The plaintiff in error claims that the defects in the deed are remedied by the general recital therein, that the sale was begun and publicly held in conformity with the provisions of the act of 1872. It is to be observed that this recital refers only to the commencement and holding of the sale, and has no reference to the necessary steps to be taken before and after the sale. Nor does it state that the sale itself conformed to the requirement of the statute. However, if it were applicable to all the acts and proceedings of the officers, we think it would still be insufficient to accomplish the purpose claimed for it. The officer exercised a naked statutory power, and he should recite in the deed all facts essential to the sale and conveyance of the land. It is not enough for the officer to state his mere conclusion that he has complied with the law in exercising the power conferred by the statute. The deed should state facts, and not opinions, and should recite all prerequisite facts, leaving to the proper tribunal the determination as to whether those facts show a sufficient compliance with the law. We must hold the deed to be void upon its face; and in support of our conclusion we refer to the well-considered opinion of the judge of the superior court in delivering the judgment iu the case. (3 Kas. Law Journal, 56. See also Spurlock v. Allen, 49 Mo. 178; Abbott v. Doling, 49 id. 302; Large v. Fisher, 49 id. 307; Cooley on Taxation, 353.) The judgment of the superior court will be affirmed. All the Justices concurring.