Washington v. Hosp

The opinion of the court was delivered by Johnston, J.: This is a proceeding to reverse a judgment of the district court of Wyandotte county, awarded in an action of ejectment, wherein Leander Hosp sought a recovery of real estate from George and Alice Washington, and prevailed. Hosp held under a tax deed, regular upon its face, and the only attack made upon his title, or the tax proceedings on which it was founded, was that the redemption notice given was insufficient. According to the notice, the time limited for redeeming the land in controversy was Septem [325] ber 5, 1885; and under the statute requiring notice to be given and completed four months before the expiration of the time of redemption, publication and posting of the notices must have been completed on May 5, 1885. The statutory provision which governs the giving of such notices, or so much of it as is necessary to quote, reads: “ The county treasurer, at least four months before the expiration of the time limited for redeeming lands as aforesaid, shall cause to be published in some paper published in, or of general circulation in, his county, once a week for four consecutive weeks, (the publication herein provided for to be completed four months before the day of sale,) a list of all unredeemed land. . . . He shall also cause to be posted for the same length of time such list and notice in at least four public places in the county, one of which shall be in some conspicuous place in his office.” (Comp. Laws of 1885, ch. 107, § 137.) The publication in the newspaper is conceded to be sufficient, and the notices were all posted prior to May 5, 1885, but three of them were not posted until May 2, 1885, and it is now claimed that all should have been posted four weeks preceding May 5, 1885. The contention is that the posting must correspond with the publication, and that the four-months notice of redemption cannot be given by posting, unless the notices are posted four months and four weeks before the expiration of the time to redeem. This construction does not accord with our view. The provision requiring a posting “for the same length of time” refers to the period of four months which must intervene between the completion of notice and the time of redemption. The theory of the statute is that notice by both methods shall be given and completed at least four months before the time limited to redeem. The notice by publication is complete when it has been published in a newspaper of general circulation, once a week for four consecutive weeks. The notice by posting is complete when lists and notices have been posted in four public places in the county, one of which shall be in some conspicuous place in the office of the county treasurer. It may be granted that [326] the posting is as essential as the publication, and that the notice in each case must be “ for the same length of time ” — that is, both of the notices in the present case must have been completed on May 5, 1885. This was done, and we think the requirements of the statute were complied with. Another objection to the notices is, that the proof offered did not show that they were posted in public places, nor that one of them was posted in a conspicuous place in the county treasurer’s office. The tax deed under which Hosp claimed, and which he offered in evidence, being regular upon its face, was prima facie evidence of the regularity of the proceedings, and that the redemption lists and notices were properly posted up. Having established his case, it devolved upon the Washingtons to prove that the notices were not posted as the law required. The only proof offered by them to sustain their claim was the affidavit of the county treasurer, found in the record of the county, in which, among other things, he recited the time and places in his county where the notices were posted, and also stated that one of them was posted in his office. No testimony was offered to show that the places where the notices were posted were not public places, nor that the one posted in the office was not in a conspicuous place. More than that, the presumption of law, in the absence of testimony, is that the officer does his duty, and in this case we must assume from the state of the record that the county treasurer did that which was required of him. There was no proof offered to overthrow the prima facie case established by the defendant in error. (Stout v. Coates, 35 Kas. 382.) The judgment of the district court must be affirmed. All the Justices concurring.