Hubbard v. Johnson

The opinion of the court was delivered by Valentine, J.:

The main question in this case is, whether a certain tax deed is valid or not. One of the principal objections urged-against the tax deed is, that it shows upon its face that the land for which the tax deed was executed was not sold for delinquent taxes. A portion of the deed reads as follows:

“Whereas, at the time and place aforesaid the said real property above described could not be sold for the amount -of said taxes, penalty and charges thereon, to any person or persons, in any parcel or parcels, at said public sale, or any adjourned sale thereof, the said lands above described were bid off by H. P. Stebbins, of Brown county, state of Kansas, for the sum of twelve dollars and ninety-six cents, being *634 the whole amount of taxes, interest and costs then due and remaining unpaid on said real property.”

The deed does not anywhere show that said Stebbins, or' any person for him, paid the said sum for which said land was bid off. This is required to be shown in the tax deed.. (Comp. Laws, 878.) The date of this supposed sale is May 2, 18,65. This land may have been sold for said taxes, but the deed docs not show it. The deed is therefore not in substantial conformity with the form of the tax deed given in. the statutes. The statute requires that the deed shall show that there was a sale, and that the purchase-money was paid; hence if the deed does not show the same it must be presumed that there was no sale, and that the purchase-money was not paid. And if there was no sale, the deed would of course-be void. From the language of the deed the-inference might-be drawn that Stebbins bid off the land for the said taxes,, etc., but that he did not pay the .purchase-money, and therefore that the treasurer chose to treat the bid as canceled, and the supposed sale as no sale at all. (Comp. Laws, 867,■§ 41.) But if this inference cannot, be drawn from the language of thé deed, then the deed is contradictory in its statements, and we do not know which statement to believe. We cannot, say from such contradictory statements whether there was a sale or not. It is true, that a tax deed need not follow the exact form prescribed by the statute. It is true, that it need not use the exact language of the statute. It is true, that there may be immaterial matters prescribed by the statute which, may be omitted in the tax deed without invalidating the same. But whether there was a sale or not is a matter of vital importance which cannot be dispensed with, and the tax deed must affirmatively show that there was a sale. This deed does not show affirmatively that there was a sal,er and therefore the deed is void upon its face.

This property seems to have been vacant and unoccupied - from the time of the recording of the tax deed, which was-July 19th, 1867, up to June 1870, when the plaintiff below. Johnson, took possession of the same. It is certainly true *635 that the holder of the tax deed never had actual possession of the property. Therefore, according to the decisions heretofore-rendered by this court, the two-years statute of limitations-has not run in favor of said tax deed. Shoat v. Walker, 6 Kas., 65 ; Sapp v. Morrill, 8 Kas., 677 .

We have now decided all there is of substance in this case,. Therefore the question whether' the demurrer to the second and fourth defenses set up in the defendant’s answer was-rightfully or wrongfully sustained, does not necessarily require-any examination by this court. We would say, however, that the answer of the defendant is defective in the same manner' that the said tax deed is defective. It does not anywhere’ allege that the property ivas sold for delinquent taxes. The; judgment of the court below is affirmed.

All tli'e Justices concurring.