Allen v. Gilkison , 1921 Ind. App. LEXIS 40 ( 1921 )

Batman, J.

Action by appellee against appellant and others to quiet title to certain real estate in Martin county, Indiana. Appellant’s answer consists of a general denial, and also an affirmative paragraph to which a reply in general denial was filed, after a demurrer thereto for want of facts had been overruled. The cause was submitted to the court for trial, resulting in a judgment in favor of appellee, quieting his title to the real estate in question. Appellant filed a motion for a new trial which was overruled. This action of the court is made the basis of the only error properly assigned on appeal.

1. 2. 1. Appellee contends that there is no bill of exceptions containing the evidence in the record. He bases this contention on a claim, that the transcript of the evidence bound with the record is not preceded by a sufficient statement to identify it as a bill of exceptions, and that the record does not disclose that the purported bill of exceptions containing the evidence was filed in the office of the clerk of the trial court. While the statement in question is brief in form, meager in substance, and not to be commended as a model, still we may not reject it as insufficient under the liberal rule announced as to what will suffice in that regard. It is well settled that the filing of a bill of exceptions containing the evidence may be shown by the certificate of the clerk of the trial court. Howe v. White (1904), 162 Ind. 74, 69 N. E. 684; Graves v. Jenkins (1915), 58 Ind. App. 500, 108 N. E. 531. In the instant case the transcript of the evidence found in the record is followed immediately by the certificate of the trial judge, sufficient in form to make the same a bill of exceptions. Immediately following this transcript and certificate is a certificate of the clerk of the trial court to the effect, that the “foregoing original long hand manuscript of the evidence,” with the certificate of the judge attached, was filed in his office on August 23, 1920. While it would have been in better form to designate such manuscript and judge’s certificate attached as a bill of exceptions, still they were as effectually filed as if so designated. Oster v. Broe (1902), 161 Ind. 113, 64 N. E. 918.

3. 4. 5. Appellee further contends, that even if the court should hold that the bill of exceptions in question has a sufficient introductory statement, and was properly filed, still it cannot be considered in determining any question based on the evidence, as the record shows that it does not contain all the evidence. This contention is based on a claim, that certain documentary evidence introduced on the trial is not properly made a part of the bill of exceptions. As far as it relates to the six newspapers appearing between pages 51 and 52 of the record, it suffices to say that they were never introduced in evidence, although they were identified, marked exhibits, and short extracts from each were read, and copied into the bill. Their presence therefore constitute mere surplusage, but the validity of the bill is not affected thereby. Town of Lewisville v. Batson (1902), 29 Ind. App. 21, 63 N. E. 861. Other documents were introduced in evidence, copies of which appear in the bill of exceptions immediately after a statement that they were offered and read in evidence. This, taken in connection with the certificate of the trial judge, that the bill of exceptions contains all the evidence given in the cause, discloses that appellant’s contention in so far as it relates to this evidence, is not well taken. Knights Templar, etc., Co. v. Dubois (1900), 26 Ind. App. 38, 57 N. E. 943.

6. 7. One of the reasons on which appellant based his motion for a new trial is, that the decision of the court is not sustained by sufficient evidence. An examination of the record discloses that appellee’s title to the real estate in question rests on a tax deed, executed to him by the auditor of Martin county, Indiana, in pursuance of a sale made in 1918. On the trial of the cause, appellee introduced his deed in evidence in support of the allegations of his complaint. By the provisions of §10380 Burns 1914, Acts 1891 p. 199, §206, this deed constituted prima facie evidence of a good and valid title in fee simple in appellee to the real estate described therein. This 'being true, the burden of proving any defects in the proceedings on which it is • based, that would render the deed void and thereby defeat appellee’s title, rested on appellant. Bivens v. Henderson (1908), 42 Ind. App. 562, 86 N. E. 426; Knotts v. Zeigler (1914), 58 Ind. App. 503, 106 N. E. 393. Appellant, in his effort to show that he assumed and successfully maintained this burden, calls our attention to the fact that appellee’s deed recites that said land was sold to him by the auditor of said county for “$48.24, being the amount due on the following tracts or lots of land returned delinquent in the name of Andrew W. Douglas for the nonpayment of taxes, costs and charges, for the years 1915,1916 and 1917,” while the tax sale record in evidence shows that the amount of such taxes, costs and charges, was $58.74. He asserts that this rendered appellee’s deed invalid. In view of the fact that the tax sale record cited by appellant also shows, that said real estate was sold to appellee on the date named in said deed for $58.74, and that appellee paid said sum on said date to the proper officer therefor, we cannot hold that deed is rendered ineffective by the recital quoted above.

8. 9, 10. Appellant in further support of his contention that appellee’s deed is not sufficient to convey title, cites the fact that while such deed describes the real estate as being in township 4 north, range 4 west, the proceedings on which said deed is based do not show whether such township is north or south, or whether such range is east or west. He insists that the addition of the words “north” and “west” in the description in the deed was unauthorized, and as the description without such unauthorized addition is insufficient, the deed must be held to be invalid. We-agree with appellant that the addition of the words indicated, to the description in the deed was unauthorized. Green v. McGrew (1904), 35 Ind. App. 104, 72 N. E. 1049. But we do not agree that the description without such words is insufficient. The record discloses that the land in question is in Martin county, In- • diana. If there were no direct evidence of that fact, it might be reasonably inferred from the facts shown. Lewis v. Seibles (1887), 65 Miss. 251, 7 Am. St. 649 We must take judicial notice of the United States surveys of land in this state, and of the territorial boundaries of counties. When we do this, we know that there is only one township 4 and one range 4 in said Martin county, which makes the township and range in which the land in question is located, definite and certain. Buchanan v. Whithan (1871), 36 Ind. 257; Bannister v. Grassy, etc., Assn. (1875), 52 Ind. 178; Dawson v. James (1878), 64 Ind. 162; Burton v. Ferguson (1880), 69 Ind. 486; Wilcox v. Moudy (1882), 82 Ind. 219; Peck v. Sims (1889), 120 Ind. 345, 22 N. E. 313; Richardson v. Hedges (1898), 150 Ind. 53, 49 N. E. 822; Quinn v. Champagne (1888), 38 Minn. 322, 37 N. W. 451; Schmidt v. Powell (1919), 107 Wash. 53, 180 Pac 892. We conclude that appellee’s deed is not' invalid for want of a sufficient description of the real estate in question.

The law governing the sale of real estate for the payment of delinquent taxes, provides that the county auditor shall make “a list of the lands and lots, returned and remaining delinquent for taxes,” and for giving notice of such sale by publication and posting. It then provides as follows: “The county auditor shall, on or before the day of sale, insert at the foot of such list on his record a copy of súch notice, and certify on said record immediately following such notice the manner in which the same was posted, and the place where the same was posted, and for what length of time it was printed and posted.” §§10354 and 10355 Burns 1914, Acts 1891 p. 199.

11. 12. 13. Appellant contends that the record discloses an absolute failure on the part of the auditor of said Martin county to comply with the requirement of the provision last quoted, and for that reason appellee’s deed is ineffective to convey title. In this contention appellant must be sustained. It is well settled that in order for a tax deed to be effective to convey title, it must appear that every step required by law to be taken, from the listing of the land for taxation to the delivery of the deed, has been regularly taken. Millikan v. Patterson (1883), 91 Ind. 515; Bowen v. Swander (1889), 121 Ind. 164, 22 N. E. 725; McCann v. Jean (1893), 134 Ind. 518, 34 N. E. 316; Shedd v. Disney (1894), 139 Ind. 240, 38 N. E. 594; Mattox v. Stevens (1895), 140 Ind. 282, 39 N. E. 460. This may be shown prima fade by the tax deed itself, as provided by §10380 Burns 1914, Acts 1891 p. 199, but may be rebutted by other evidence, and when successfully done the deed. will be held ineffective to convey title. Sullenger v. Baecher (1913), 55 Ind. App. 365, 101 N. E. 517, 102 N. E. 380. In the instant case the record discloses that the auditor failed to insert oh his record, at the foot of the list of the lands and lots, returned and remaining delinquent for taxes, a copy of the notice of the sale of such lands and lots, as provided by said §10355, supra, and failed to make the certificate on said record as to the printing and posting of such notice as therein provided. In the light of the cases cited above, the effect of this omission on the part of the auditor of said county was to render appellee’s deed ineffective to convey title. See also, Dixon v. Thompson (1912), 52 Ind. App. 560, 98 N. E. 738; Hypes v. Nelson (1916), 63 Ind. App. 304, 114 N. E. 459; Knotts v. Tuxbury (1917), 69 Ind. App. 248, 117 N. E. 282; Miller v. Meadows (1919), 71 Ind. App. 337, 125 N. E. 50.

14. Appellee sought to avoid the effect of the auditor’s failure to perform the statutory duties imposed on him, with reference to the matters stated above, by attempting to introduce extrinsic evidence as to the publication and posting of such notice. It is a general rule, applicable in cases of this kind, that where certain matters are by law required to be made to appear of record, or in an official document, an omission as to such matters cannot be supplied by parol or extrinsic evidence. 22 C. J. 1088; Terre Haute, etc., R. Co. v. Town of Flora (1902), 29 Ind. App. 442, 64 N. E. 648; Town of Hardinsburg v. Mercer (1916), 172 Ky. 661, 189 S. W. 1117; Dunn v. City of Cadiz (1910), 140 Ky. 217, 130 S. W. 1089; Cook v. Manasquan (1910), 80 N. J. Law 206, 76 Atl. 310. Under this rule the extrinsic evidence in question, if before the court, would have been unavailing. However if the facts, which the section of the statute cited requires to be a matter of record, could be established by parol or extrinsic evidence, still a reversal of the judgment would be necessary, as the contents of the notice claimed to have been given, are not disclosed by the record, and it does not appear that a copy of the same was attached to the auditor’s record, as the statute requires. True, copies of a notice of a tax sale appear in the several newspapers bound with the record, but these cannot be considered a part thereof for the reasons herein before stated. The only copy of a notice of a tax sale, made a part of the bill of exceptions containing the evidence, is one attached to the auditor’s tax sale record for the year 1918, but this notice pertains to a sale made in 1919, in which the land in question is not mentioned, and hence fails to establish any fact in support of appellee’s deed.

For the reason stated we conclude that the decision of the court is not sustained by the evidence, and that error was committed in overruling appellant’s motion for a new trial. Judgment is reversed with instructions to sustain said motion, and for further proceedings consistent with this opinion.