McDonough v. Merten , 53 Kan. 120 ( 1894 )

The opinion of the court was delivered by

HobtoN, C. J.:

The only question involved is as to the validity of the tax deed introduced upon the trial against objections of the plaintiff. The serious defect complained of is in the recital of the sale, which is as follows:

“And whereas, at the place aforesaid, John R. Taylor, of the county of Clay and state of Kansas, having offered to pay the sum of $34.26, being the whole amount of taxes, interest and costs then due and remaining unpaid on said property, for year 1872, which was the least quantity bid for.”

The statutory form covering that portion of the deed reads as follows:

“And whereas, at the place aforesaid, A. B., of the county of-and state of-having offered to pay the sum of -dollars and-cents, being the whole amount of taxes, interest and costs then due and remaining unpaid on said property, for [here follows a description of the property sold].”

The county clerk has failed to include in the tax deed a description of the property, or any property, bid for at the sale. The words in the deed, “ which was the least quantity bid for,” on account of this omission, do not refer to any property, and it cannot be ascertained from the deed what amount of the property was sold to pay the taxes of 1872. This fatal omission is not supplied in the granting clause of the deed, because there is no description therein of the property sold at the tax sale or conveyed in that clause. The only description is, “the real property last hereinbefore described.” If the tax deed had described correctly the amount of land bid for at the tax sale, or if the number of acres bid for had been stated, as in Dodge v. Emmons, 34 Kas. 732, following that ease, we could say that “the real property last herein-before described” referred to the attempted description or acres bid in; but in this case, unlike the Emmons case, there is no description of any property bid for, whether by acres or otherwise. The Emmons tax deed described the tract as “beginning at the southeast corner of the southwest quarter of section 24, township 10, range 24, and containing 90 acres.” This tax deed is not as full or complete as the tax deed construed in that case. The legislature intended that at least two descriptions should be included in every tax deed: First, a description of the property assessed, taxed, and offered for sale; and, following that, a second description, showing the least quantity bid for. It was the intention of the lawmakers that the granting clause of the deed should refer to and convey the property actually bid for at the sale. The property actually bid for being omitted, the granting clause refers to nothing; at least, it is vague and uncertain. (Black, Tax Titles, § 401; Norton v. Friend, 13 Kas. 532.) In the last case it was said:

“A tax deed should follow the form given by statute only so far as it can do so truthfully, and where it cannot do so truthfully, it should state the facts as they really exist. The form given by statute is for tax deeds for land sold at tax sales to individuals.”

We are not unmindful 'of the rule that a tax deed which has been of record for more than five years should be liberally construed for the purpose of upholding it, but a tax deed must substantially comply with the form prescribed by the statute. It should show that the provisions of the law have been substantially followed, and if there is any fatal omission which ought to have been embraced in the deed under the provisions of the statute, the courts cannot supply or cure such fatal defects. The tax deed, on account of the omission of the property bid for at the sale, did not vest in the grantee thereof an absolute estate in fee.

The judgment of the district court must be reversed, and the cause remanded with direction to the court below to render judgment in favor of the plaintiff upon the findings of fact, and such other proceedings will follow as the statute in such cases directs.

All the Justices concurring.