Dodge v. Emmons , 34 Kan. 732 ( 1886 )

The opinion of the court was delivered by

Johnston, J.:

The determination of this controversy depends upon the sufficiency of two tax deeds under which the defendant claims. The plaintiff challenges the validity of the deed dated January 29, 1877, for the reason, as he alleges, that it shows upon its face that two distinct parcels of land were assessed separately, but sold together for a single consideration, and therefore is void upon its face, and will not start the statute of limitations to running. Looking at the deed alone, we are unable to concur with the plaintiff that the lands sold and therein conveyed constitute more than a single parcel, or that they were otherwise assessed. The language employed in describing the land which was sold is as follows:

“Know all men by these presents, that whereas, the following described real property, viz.: Beg. at N.W. cor. of N.E. J of sec. 25, T. 10, R. 24, thence S. 80 P., E. 100 P., N. 80 P., W. 100 P., to beg., and cont’g 50 acres. Also beg. at N.E. cor. of N.W.i S. 25, T.10, R.24, thence S.80P., W.110P., N. 80P., E. 110P., to beg., and cont’g 55 acres, situated in the county of Wyandotte, and state of Kansas.”

1‘onanImayts "be assessed and sold as one tract. By this description two tracts are bounded, one of which contains fifty-five acres and the other fifty acres, but they are both in the same half-section and lie together in a compact form, so that they may have constituted and been treated as a single tract. The mere fact there are two descriptions does not determine that there was more than a single piece or parcel of land within the meaning of the tax laws. That is to be determined rather from the situation, use and occupation of the land; and so it has been held that “where two or more tracts of land adjoin each ** other, and are used and occupied as one tract, 7 they may all be taxed together and sold together as one tract.” (Hall’s Heirs v. Dodge, 18 Kas. 277; McQuesten v. Swope, 12 id. 32; Cartwright v. McFadden, 24 id. 662.)

2 valia tax aeea. A section of land, lying in the same taxing district, which is owned by a single individual, and which is used, occupied and treated as a single tract, although containing many legal subdivisions, may be listed and taxed as a single tract; and so may any compact portion of the same situated and treated in like manner. We cannot presume that a section of land, or a compact portion thereof, which has been described by the smallest legal subdivisions, constitutes separate parcels, but if presumptions are to be indulged in, it should rather be that the action of the treasurer in making the sale was regular and legal, because it is provided that a tax deed- duly acknowledged, as was this one, “shall he prima fade evidence of the regularity of all proceedings, from the valuation of the land by the assessor, inclusive, up to the execution of the deed.” (Tax Laws, §138.) We think the tax deed was prima fade valid, and that when it was recorded the statute of limitations went into operation in its favor.

An objection is taken by the plaintiff to the tax deed dated January 25, 1877. Pie contends that it is void upon its face because the description of the land purported to be conveyed is not sufficiently definite. In the commencement of the deed there is a complete description of the land, where it is recited that “the following-described real property, viz.: Beg. at the S.E. cor. of the S.W. j- of sec. 24, T.10, R. 24, thence N. 90 P., E. 160 P., S. 90 P., W. 160 P. to beg., and containing 90 acres, situated in the county of Wyandotte, and state of Kansas,” was subject to taxation for a certain year, and that the taxes thereon for that year were unpaid. It is then recited that at a certain time and place the treasurer of the county exposed to public sale “the real property above described,” and that J. L. Beverly, having offered to pay the sum of $44.55, “being the whole amount of taxes, interest and costs” then due and remaining unpaid on said property, for the tract “beg. at the S.E. cor. of the S.W.J of sec. 24, T.10, R. 24, and containing 90 acres,” the said property was stricken off to him at that price. Then comes the granting clause of the deed, where it is stated that the county clerk does “grant, bargain and sell unto the said J. L. Beverly, his heirs and assigns, the real property last hereinbefore described,” etc. The plaintiff insists that the property “last hereinbefore described” must be held to have reference to an attempted description immediately preceding. As will be observed, the county clerk, instead of giving the metes and bounds of the tract sold, only describes a starting-point; and if the granting clause had reference only to this description, it would not sufficiently describe the property intended to be conveyed. But all parts of the deed are to be considered together, and if possible such a construction should be given it as will accomplish the intention of the parties and make it operative and valid. The form of a tax deed is given in the statute, and it provides for a full description of that portion of the tract which is sold for the payment of taxes — as the county clerk manifestly undertook to give in this case; but substantial conformity to the statute is all that is required. Neither is it imperative that the land sold should be described with technical accuracy and absolute certainty. By §153 of the tax law, it is provided that—

“In all advertisements, certificates, papers or proceedings, relating to the assessment and collection of taxes, and proceedings founded thereon, any description of lands which shall indicate the land intended with ordinary and reasonable certainty, and which would be sufficient between grantor and grantee in an ordinary conveyance, shall be sufficient.”

8' nateainstfx deed with. reasonable Under this statutory rule, there can be little doubt of the sufficiency of the description. In the beginning of the deed there is a full and complete description of the tract, which is said to contain ninety acres; and in fact, it may be said to be the only description given in the deed. In the subsequent portions of the instrument the same description is referred to, as that the “real property above described” was exposed to public sale, and that Beverly made an offer upon “said property,” and that the tract sold contained ninety acres, which was the least quantity bid for, corresponding exactly in quantity with the description above given, and that the “said property” was stricken off to the bidder for the price named; and it then recited that the gi’ant was of “the property last hereinbefore described.” Reading all parts of the deed together, as we must, and construing it as we would an ordinary conveyance between individuals, we . , _ . 1 ^, . . , think that the ninety-acre tract first mentioned in the deed is the same one referred to throughout, and that the land intended to be conveyed is designated with “ ordinary and reasonable certainty.” (Haynes v. Heller, 12 Kas. 381.)

The remaining objection is, that the sale of the lands was void by reason of the manner in which it was conducted. The facts regarding the manner of the sale were found by the referee, and stated as follows:

“At the time of the sale upon which said tax deeds were issued, the person to whom certificates of sale were issued was not present, either by agent or by attorney, and no bid was made by anyone save and except as stated in the next finding. Sometime prior to the time of the sale, Mr. Welch, as agent for J. L. Beverly, placed money in the hands of the treasurer, with the instruction that in the event of no one else purchasing, the entire tract should be struck off to him. The lands in question were regularly offered, and there were no bids, and thereupon the said treasurer entered said tracts upon the books as having been sold to J. L. Beverly. The treasurer, in selling said tracts, as stated in the prior finding, acted in good faith, and without any thought of injury or of defrauding the county or anyone.”

4. Irregular tax sale, cured by time. From these facts, it is insisted by the plaintiff that there was in fact no sale, and that he was not barred from maintaining his action to recover the land, although more than six years have elapsed since the recording of the tax deeds. We cannot agree with the plaintiff that no sale was had. The question before us is not, whether the sale was regularly conducted. If there was a sale in fact which is merely voidable for irregularity, it cannot now be challenged. The neglect of the plaintiff to bring his action within the period prescribed by the statute of limitations will preclude him from taking advantage of a mere irregularity in the sale, or of a defect in the proceedings upon which the deeds were based. It is conceded that the lands were subject to taxation, that the taxes were unpaid, and that proper notice of the time and place of sale was given. The action of the treasurer in striking off the property to a person not present and bidding, was of course irregular and illegal. But the lands were actually put up at public auction, and in good faith offered for sale. Anyone and everyone present at the sale had an opportunity to purchase. When the persons present failed to bid upon the land, the treasurer should have stricken it off to the county; but notwithstanding this failure, there was a public offering of the land; it was publicly stricken off to J. L. Beverly, and although the statute was not strictly pursued, we think there was in fact a sale. In the state of Iowa, where the county treasurer is prohibited from being directly or indirectly concerned in the purchase of any real property sold for the payment of taxes, it was held by the supreme court, in a case where a sale was made according to the custom or habit of a certain treasurer, viz., to receive bids on paper, and if no further bids were made for the same land, to enter it as sold to such bidder without publicly crying the bid, and without publicly striking down the land as sold, that while “such a sale would not be made in a manner required by the statute, yet it would be a sale in fact, nevertheless.” The court further stated that—

“The evidence of the treasurer shows that his custom was to publicly offer the lands for sale for the taxes delinquent thereon; that if bids were handed in, and there were no other bids for the same land, he entered the same as sold without further offering the land for sale. Now while, this may have been irregular, and not according to the manner in which the sales ought to have been made, it was nevertheless a sale in fact.” (Leavitt v. Watson, 37 Iowa, 93.)

The same rule has already been plainly recognized by this court. (Maxson v. Huston, 22 Kas. 643.) The finding of the referee settles it that no fraud was intended by the treasurer. As the lands were legally and fairly offered at public sale, it is immaterial to the owner whether they were stricken off to the county or to Beverly. The price for which they were sold was the same in either case, and the illegality of which he complains could not operate to the prejudice of the plaintiff.' The illegal action of the treasurer might have been taken advantage of by the plaintiff within five years from the time the deeds were recorded, but as the sale was in fact made, and as the deeds are valid upon their face, the lapse of time has cured this illegality, and the referee rightly held that the action was barred.

The judgment of the district court will be affirmed.

All the Justices concurring.