Magill v. Martin , 14 Kan. 67 ( 1874 )

The opinion of the court was delivered by

Brewer, J.:

The only question in this case is as to the validity of a tax-deed, and one of the objections to it is the same as that which was held fatal in the case of Norton v. Friend, decided at the present term of this court; (13 Kas., 532.) It recites a sale to the county, not as a result of a failure to sell to an individual, but as the result of competitive biddings, in which the county entered as a voluntary bidder. The language of the deed is as follows:

“And whereas, at the time and place aforesaid, Bourbon county having offered to pay the sum of $23.05, being the whole amount of taxes, interests and' costs then due and remaining unpaid on said property, for the aforesaid lot, * * * which was the least quantity bid for, and payment of said sum having been by it made to said treasurer, the said property was struck off to it at that price.”

The county is not a voluntary bidder at a tax sale. It enters into no competition with individuals. It pays no money to the treasurer. It simply becomes the involuntary purchaser of that which no individual will buy. The distinction between a purchase by an individual, and one by the county, and the reasons therefor, are clearly pointed out by Mr. Justice Safford in the opinion in the case of Guittard Township v. Marshall Co., 4 Kas., 388. Hence a deed, which recites a purchase by the county under the same conditions as a purchase by an individual, recites an unauthorized and illegal purchase. A deed showing an illegal sale must be void. But it may be urged that this ruling conflicts with the decision in Hobson v. Dutton, 9 Kas., 477, where it is said that “the rule is clear, that where the statute contains a form of any instrument, a compliance with that form is sufficient.” This deed follows the form of the statute, and according to that rule must be held sufficient. The language of that opinion is general, and so far as the facts of that case are concerned states the law correctly. Yet we think here is found an exception. When the conditions of the sale are such, that, to follow the form is to recite an untruth, and show an illegal sale, the form must be modified to suit the facts. To make a statement of an illegal and void sale evidence of a legal and valid sale, is a contradiction not to be imputed to the legislative intent. The statute says the deed shall be in substantial compliance with the form. It thus contemplates minor modifications, and those modifications must be such as to make the deed recite the truth, and comply with the conditions of valid action.

The judgment will be reversed, and the case remanded with instructions to proceed in accordance with the views herein expressed.

All the Justices concurring.