Tucker v. Shorb , 80 Kan. 511 ( 1909 )

The opinion of the court was delivered by

Johnston, C. J.:

The decision of this case turns upon the validity of the tax deed under which defendants in error claim ownership of the land. Two objections are urged against the deed, which had been recorded for more than five years: First, that' on its face it shows that three separate and disconnected lots were sold together at a single sale; and, second, that it is based upon a tax-sale certificate which included and required the payment of taxes which were not at the time a lien or proper charge against the land.

The first objection rests upon the recital that three pieces of land, “tó wit, lots 15, 16 and 17, block 35,” etc., were subject to sale and sold for the single sum of $3.93. Other recitals speak of “each tract” and “said tracts” as if there were more than one. However, several tracts or lots of land which adjoin may be legally taxed and sold together. From the fact that these lots are in one block and consecutively numbered it is a fair inference that they are contiguous. The action of the officers in bidding in the lots for a gross sum, in making a single charge on all the lots when entering the taxes, interest and penalties for all subsequent years, and in assigning the certificate, tends to show that the lots were treated as one tract and that they are contiguous. The age of the deed justifies'the indulgence of every fair inference of regularity and validity. (Penrose v. Cooper, 71 Kan. 720; Cross v. Herman, 74 Kan. 554; Carson v. Platt, 76 Kan. 636.)

On the second objection it is contended that on its face the deed shows that subsequent taxes which were not delinquent and which could not have been a legitimate charge were included in the compromise and transfer.' It contains the following recital:

“Whereas the subsequent taxes for the following-named years were charged up to said sale as provided by law, amounting to $10.26, as shown by the following statement:

This is followed by a recital that the county commissioners, by resolution passed on the 12th of April, 1898, authorized the assignment of a tax-sale certificate to E. T. Guymon for the sum of $15, “for the taxes for the years 1892, 1893, 1894, 1895, 1896 and 1897,” and then it is recited that on July 21, 1898, Guymon paid the treasurer the $15 and on the same day the tax-sale certificate was executed and assigned to him. A liberal interpretation of the recitals of the deed overcomes the objection made. It appears that.the lots were bid off for the county in September, 1893, that the subsequent taxes for 1893 were entered in the book of tax sales for the year 1893 in September, 1894, and that on each September thereafter, including 1897, the taxes of the preceding year were likewise entered. The compromise was effected on July 21, 1898, when the certificate was assigned to Guymon in pursuance of the order of the, board of county commissioners. The delinquent taxes for the year 1897 had not then been charged upon the book of tax sales, and could not be so charged, under the general provisions of the tax law, until September, 1898. The assignment in this instance was not taken under the general tax law, but was made in accordance with the compromise provision, which is an exception to the general rule. Under it the commissioners may order a compromise of the taxes due on lands bid in for the county and remaining unredeemed for three years, where no one has offered to purchase the land for taxes as the general law provides, and this may be done for any sum less than the amount due thereon, as the best interests of the county may require. (Laws 1893, ch. 110, §§ 4, 5.) By it the commissioners are authorized to compromise and settle for all taxes due at the time on the land, and are not restricted to taxes which have been charged upon the book of tax sales at the September following the time they become due.’ It will be observed, too, that any one desiring to redeem the land between the assignment of the certificate and the execution of the deed is required to pay to the holder of. the tax certificate the amount actually paid on the compromise. The manifest purpose of the legislature was that before the compromise should be made at a reduced cost the purchaser should pay all taxes and clear up' all liens then due upon the land. Now, on July 21, 1898, the taxes of 1897 were due and were a lien upon the lots in question, and hence the commissioners were justified in requiring their payment.

The cited case of Lanning v. Brown, 79 Kan. 103, is not against this view. In that case there were included in the deed the taxes of the year in which the compromise was made, which were not then due, and, of course, were not a lien upon the land. Here all the taxes named as a consideration for the deed were actually due, and were therefore properly included in the compromise.

The judgment of the district court is affirmed.