Stout v. Coates , 35 Kan. 382 ( 1886 )

The opinion of the court was delivered by

Horton, C. J.:

These were actions in the nature of ejectment, to recover eight lots situate in Kansas City, in this state. Kersey Coates, as assignee of the Mastin Bank, claims the original title to all these lots through conveyances from the government. J. C. Stout bases his title and right of possession to lot 248 on "Wood street, lot 241 on James street, and lots 246, 248, 250, 252 and 260 on Armstrong street, upon seven tax deeds executed by the county clerk of Wyandotte county on September 7, 1881, and recorded the same day in the office of the register of deeds of that county. These lots were sold for taxes on September 4, 1878, for the delinquent taxes of the year 1877. F. Kirlcbride bases his title and right of possession to lot 245 on Wood street upon two certain tax deeds executed by the county clerk of Wyandotte county. One of the tax deeds, for the north three-fourths of said lot, is dated September 18, 1880, and was recorded September 25, 1880. The tax sale upon which this deed is based was made September 6, 1877, for the delinquent taxes of the year 1876. The other tax deed, for the south one-fourth of saidslot, is dated September 26, 1882, and was recorded the same day. The sale upon which this tax deed is based was made September 2, 1879, for the delinquent taxes of the year 1878. Trials had before the court, juries being waived.

The court filed in each case its conclusions of fact, and thereon its conclusions of law. It decided that there were such errors in the tax proceedings that all the tax deeds were invalid, and rendered judgment in favor of Coates, as assignee, for the recovery of the premises in controversy, saving to the defeated claimants under the tax title the taxes with all interest and costs as allowed by law, and also all their rights as occupying claimants. They excepted, and bring the cases here.

The cases involve the same questions. All the tax deeds appear to be valid upon their faces, and having been duly acknowledged, are prima faoie evidence of the regularity of all the tax proceedings. It is claimed, however, that certain alleged fatal defects appear in the tax proceedings, and that thereby the holders have no title to the premises therein described. We will notice, in their order, these supposed defects.

i. irregularity SdapubiícaFirst, it is claimed that the tax lists and accompanying notices for publication, as required by § 106, of chapter 107, Comp. Laws of 1879, were not made out between the first and tenth of July in each year. This is only a mere irregularity, aud is cured by § 139 of said chapter 107, which provides, among other things, that—

“No mere irregularity of any kind in any of the proceedings shall invalidate any such proceeding or the title conveyed by the tax deed; nor shall any failure of any officer or officers to perform the duties assigned him or them, upon the day specified, work an invalidation of any such proceedings or of said deed.”

The tax lists were dated July 25, 1877, July 25, 1878, and July 23, 1879. The findings are that these lists and accompanying notices “were published in a newspaper published and of general circulation iu Wyandotte county, the requisite length of time before the sales.” The statute, therefore, was substantially complied with.

The second irregularity alleged in the tax proceedings is that the treasurers did not file affidavits of the printing of the lists of delinquent taxes in addition to those made by the printers, which were filed as required by § 108 of said chapter 107. This section reads:

“Every printer who shall publish such list and notice shall, immediately after the last publication thereof, transmit to the treasurer of the proper county an affidavit of such publication, made by such person to whom the fact of publication shall be known; and no printer shall be paid for such, publication who shall fail to transmit such affidavit within fourteen days after the last publication. The c uinty treasurer shall also make, or cause to be made, an affidavit or affidavits of the printing of such list and notice as above required; all of which shall be carefully preserved by him, and deposited as ■hereinafter specified.”

‘publication; irregularity. The court’s findings show that not only were the lists and notices properly published, but they also show that the printers publishing the same made affidavits thereof, and that the same are on file in the proper office. The omission of the treasurers to file the additional affidavits of ' the printing of such lists and notices, as required by said § 108, under these circumstances, we do not regard as such an irregularity as to affect the validity of the tax deeds.

3. Kecitai in tax sale certuicate. The third alleged irregularity is that the tax-sale certificates recite too short a time within which the purchasers at the tax sa^es would be entitled to tax deeds. These £ax cer(;ifieates COuld not have misled anyone. Such certificates go to the purchaser—not to the original owner; and if three years expired before the issuance of the tax deeds, the irregularity in the tax certificates will not invalidate the tax deeds.

The other defect claimed in the tax proceedings is that the redemption notices were not posted, as required by § 137 of said chapter 107. Said section, among other things, provides that the county treasurer, four months before the expiration of the time limited for redeeming lands sold for taxes, shall cause to be published in some paper of general circulation in his county, once a "week for four consecutive weeks, a list of all unredeemed lauds and town lots. He shall also cause to be posted, for the same length of time, such list and notice in at least four public places in the county, one of which shall be in some conspicuous place in his office. The court specially found as a fact, that copies of the redemption notices and lists were posted in the office of the county treasurer of Wyandotte county prior to the execution of the tax deeds as required by law, but further found that copies of said notices and lists were not posted up at the other public places in said county, as prescribed by the statute. A motion was filed to set aside this finding, upon the ground that it was wholly unsupported by the evidence. The tax deeds being regular upon their faces, are prima faoie evidence of the regularity of all proceedings, from the valuation of the land by the assessor inclusive, up to the execution of the deeds, and therefore are prima faoie evidence that the redemption lists and notices were properly posted up. It Avas incumbent upon Coates, as holding the affirmative of the issue, to prove that the statute had not been complied with; and unless it affirmatively appeared from the evidence that the notices were not posted, the presumptions are that they Avere posted. The special finding that the redemption notices and lists Avere not posted embraces all the lots. There is in the record some slight evidence that the redemption list and notice of the north three-fourths of lot 245 on Wood street were not properly posted up in 1880; but as to the redemption notices for 1881 and 1882, the evidence does not sustain the finding of the court. William Albright Avas the county treasurer in 1881 and 1882 of Wyandotte county. He testified that the redemption lists and notices Avere sent out to be posted, as required by the statute; that his ‘deputy at the time attended to sending out these notices; and that he knows, as a matter of fact, the notices were sent out. His deputy was not called to give any testimony. As the laAv makes the tax deeds prima faoie evidence that the notices Avere posted, the evidence is insufficient to shoAV they were not posted in 1881 and 1882. If there had been a separate special finding that the redemption notice and list were not posted up in 1880, we might, perhaps, permit the finding to stand so as to overturn the tax deed of September 18,1880; but as the finding of the year 1880 includes also other years, and as there is no evidence whatever to support such a finding taken as a Avhole, we must decide that the finding is erroneous and without support. Upon another trial, we suppose the matters herein referred to will be more carefully aad fully investigated, and all the facts thereof clearly developed.

4 Redemption not posted;106’ tax deed. In conclusion, we should say that the posting up of the redemption list and notice required by the provisions of § 137 sa^ °^apfer 107 cannot be omitted, and if omitted, the failure to comply with the provisi0ns of the statute in that regard will be fatal to the tax deed, if challenged before the statute of limitations has full operation thereon. (Long v. Wolf, 25 Kas. 522.)

As the facts in these cases have not been agreed to by the parties, and as certain findings of fact of the trial court are against the evidence, we cannot direct judgment to be entered in the premises. (Civil Code, § 559.)

The judgments of the district court will be reversed in both cases, and the causes remanded for new trials.

All the Justices concurring.