Stafford v. Lauver

[694] The opinion of the court was delivered by Johnston, J.: This was an action to quiet the title of a tract of land in Miami county in Henry Lauver as against the claim of Henry L. Stafford. Lauver founds his claim of title upon a tax sale made September 2, 1862, for the taxes of the preceding year. There being no purchasers, the land was bid off by the county treasurer in the name of Miami county. In 1869 a tax deed was executed by the county clerk to John Hindman, who conveyed the land to James McDermott on March 14, 1871. He in turn conveyed the land to Dennis O’Connell on March 1, 1877. O’Connell conveyed it to the plaintiff below on July 20, 1878. Each of these conveyances was in due form and properly recorded. Actual possession of the land had been taken by McDermott in the spring of 1872, and permanent improvements were made thereon, and that possession has been retained ever since. Stafford appears to have a complete title from the United States to him, except as to the tax title which has been mentioned. The patent of the United States was issued in 1858, and the patentee conveyed the same to David S. Green in 1859, who placed his deed on record but has never paid any taxes thereon from 1860. In 1882 he conveyed the land by quitclaim deed to J. M. Gaylord. In 1886 Green executed a quitclaim deed to Stafford, and in 1887 Gaylord made a like conveyance to Stafford. This action was brought June 21, 1888. At that time the tax deed under which Lauver claims had been recorded almost 19 years. He and those under whom he claimed had been in actual possession of the land about 16 years, and Lauver himself had been in actual possession under his title about 10 years before the bringing of the action. Under these facts, the only question presented is the validity of the tax deed of 1869. Unless it is void upon its face, Lauver was entitled to recover, and at this late day and under the circumstances which have been mentioned, the tax deed should be liberally construed. (Sanger v. Rice, 43 Kas. 580.) [695] It is contended that the deed is void for the reason that the tax sale was made at a time not authorized by statute, and also that the certificate of sale was assigned to Hindman in 1868, by one having no authority to transfer the same. The deed recites that the sale of the land was made on September 2, 1862, and it is insisted that the statute required the sales to be made on the first Tuesday of May and the next succeeding days. It was provided in the tax law then in force that the tax sale should commence on the first Tuesday in May in each year, and should continue from day to day until it was completed. (Comp. Laws of 1862, ch. 197, §§36, 39.) But §70 of the same act provided that, if the treasurer unavoidably omitted or failed to sell lands or lots at that time, he should advertise and sell them on the first Tuesday of September next ensuing. It appears that the first Tuesday in September, 1862, was the second day of September, and hence there was sufficient authority for the sale that was made. It has been suggested that there is no recital in the tax deed that the treasurer unavoidably omitted or failed to sell in May, but this is not necessary to the validity of the deed. (Hobson v. Dutton, 9 Kas. 477.) The statute did not prescribe that the deed should contain such a recital, and the presumption, in the absence of any showing to the contrary, is that the officer performed his duty in this respect. (Washington v. Hosp, 43 Kas. 324.) The point that the assignment was made by the county clerk, when it should have been made by the treasurer, cannot be sustained. It is true that the tax law in force at the time of the sale provided for assignment by the county treasurer. (Comp. Laws of 1862, ch. 197, §44.) But before the assignment in the present case was made, the law in this respect was changed. In § 148, chapter 107, of the General Statutes of 1868, it was provided “that all certificates of sale of lands heretofore made to the respective counties and in the charge of the county treasurer shall be by said treasurer delivered to the county clerk, who is hereby authorized to transfer or assign the same in the same manner and on the. [696] same conditions as certificates issued under the provisions of this act.” This act took effect in March, 1868, and the assignment, as the tax deed shows, was made on the 9th day of September, 1868. All of the objections urged against the validity of the deed have been examined, and none of them appear to be sufficient to set it aside. It recites that the sale was conducted in substantial conformity with all the requirements of the law, and that, no one having offered to pay the taxes and charges against the same, it was bid off by the county treasurer in the name of the county, agreeably with law, and that afterward, on the 9th day of September, 1868, John Hind-man having offered to pay the sum of $8.20, the whole amount of the taxes due on said land for the year 1861, together with the interest, charges and costs thereon, and that Hindman having at the same time paid all the subsequent taxes and charges against the land, amounting to $145.41, the certificate of sale was assigned to him according to law. It further recites, that the necessary time having elapsed without any redemption, and in consideration of a total sum of $153.61, which had been paid by Hindman to the county treasurer, the conveyance was made. We think the deed was in substantial conformity with the statute then in force, and that the district court ruled correctly in sustaining the same. The judgment will be affirmed. All the Justices concurring.