McCauslin v. McGuire

X. Tax Deed; Subscribing Witnesses. It is not necessary to the validity of a tax deed, or to make it prima facie evidence of title, that it be witnessed by more than one attesting witness: and quaere, is it necessary that it be witnessed at all? 2. Tax Sale; Purchase by County; Payment. Where land has been bid off at a tax sale, by the county treasurer, for the county, it is not necessary that anything be paid at the time for the land. 3. --Presumption; Payment. Where a tax deed for land so bid off to the county recites that “the said county treasurer did, on the 6th day of October 1862, duly assign the certificates of the sale of the property as aforesaid, and all the right, title and interest of the said county to said property to Thomas McGuire,” etc., without stating that McGuire, or any one for him, paid anything for said assignment, or for the property: Meld, that it is not necessary that such a statement should be made, as it will be presumed that the certificate was duly assigned, and that, the assignee paid the amount required by law at the time of said assignment. 4. Certificate of Acknowledgment; Sufficiency. Where an officer, taking the acknowledgment of a deed, certifies “That before me, a register of deeds,” etc., and then signs his name “L. J.T., Register of Deeds,” hdd, that the certificate is sufficient, although the officer has not inserted his name in the body of his certificate. 5. Land Sold to County — Tax Deed to Assignee. Where land has, been bid off, at a tax sale, by the county treasurer, for the county and the tax-sale certificate has been assigned to an individual, a valid tax deed may be made to such individual on said tax-sale certificate. 6. Tax Deed — •Form of. A tax deed need not be in the exact form prescribed by the statute, but the form should be so varied that the deed will in every case state the exact truth.

Error from Jefferson District Court. Action for partition of real property, brought by William B. McCauslin, Charles F. McCauslin, John Gregg, John W. Corwine, George Corwine, Christian Blaser, Ellen E. McCauslin, Harriet F. Millar, George B. Millar and Frank Millar, as plaintiffs, who claimed that they were the owners of the undivided one-half of a certain quarter-section of land. The plaintiffs admitted that McGuire, the defendant, was the owner of the other one-half interest, but he claimed title in fee to the entire tract. ' The tax deed under which defendant claimed title is set out in full in the opinion, infra. The district court, at the May Term 1873, found in favor of the defendant, “that the defendant was the legal owner in fee simple of all of said land, and that the plaintiffs had no interest in nor title to any part of said land,” and gave judgment accordingly. The plaintiffs bring the case here on error. 1. The tax deed under which defendant claims title is not duly witnessed, and is therefore not prima facie evidence, and was not admissible in evidence without proof aliunde that all the tax proceedings prior to its execution were legal and regular. (Comp. Laws 1862, p.-878, §10.) It has only one subscribing witness. The statute' referred to (which was in force at the time,) requires the deed to be “ duly witnessed,” and then gives a form for tax deeds, the blanks in which cannot be logically or grammatically filled without the insertion of at least two names as attesting “witnesses.” The reasons for requiring “ attesting witnesses ” are, to give additional certainty that the execution is genuine, and to multiply the evidence by which that genuineness can be proved. Neither of these objects, nor any object whatever, is attained by having the officer who certifies the acknowledgment sign his name as a witness also. The whole object to be attained by his signature and witnessing is attained when he signs it officially; and there is no more sense nor reason in his signing again as a witness, than there would be in the same person signing his name twice, as a witness to a will, in order to satisfy the statutory demand for two witnesses. Hence we claim that, upon a rational construction of the statute, the deed is not witnessed at all. But whether the officer is a competent attesting witness or not, the deed fails to comply with the statute, which requires. “witnesses.” It is a well-settled principle that the courts cannot dispense with the regulations prescribed by statute to be observed in the execution of statutory power: Young v. Bawling, 15 Ill., 481; AtMns v. Kinnan, 20 Wend., 240, 249; Bloom v. Burdioh, 1 Hill, 130, 140; Sharp v. Speir, 4 Hill, 76, 86; Jaohson v. Esty, 7 Wend., 148; Blackw. on Tax Titles, 493. 2. The deed does not show that any consideration was ever paid for the sale certificate, or the assignment thereof. It is a substantial requirement of the statutory form of tax deed, that it shall show the amount paid into the county treasury by the tax-lien purchaser. Such payment is the real and substantial foundation of his lien or title. The statute forfeits the title of the owner of the land for the nonpayment of the taxes to any person who pays them in the manner prescribed, and the statute requires such payment to be shown in the tax deed. The recital in this deed, that the county treasurer bid the land off for the county, does not show nor imply any payment, because the statute did not authorize the county treasurer to pay anything as a bidder for the county. The statute, (Comp. Laws, 867, § 44,) provides that any person may become the purchaser of the certificate by paying into the county treasury the cost of redemption at that time; and this court decided, in Guittard Township v. Marshall County, 4 Kas., 388, and other cases, that “any person” means some other person than the county. The omission to state in this deed that any such payment was made, leads to an absurdity in the latter part of the deed, where the county clerk says that he conveys the land in consideration of “said sum of $18.61 taxes,” etc., “to the treasurer paid as aforesaid.” No payment to the treasurer having been stated or referred to anywhere else jn the deed, the conveyance is left without a semblance of consideration, and for aught that appears from the deed, the taxes, penalty and charges still remain due and unpaid upon the land. 3. The deed says this land was sold on the 7th of May, 1862, which, by reference to a calendar, is found to be Wednesday; and there is no averment in the deed that it was sold at any sale, or adjourned sale, begun and held on the first Tuesday in May. It is true that the insertion of,the word “at” in a certain place would cause it to make such averment. But the court would have to exercise equity powers in order to reform the deed in that manner, which the court is not authorized to do, because courts of equity even are not allowed to cure defects in the execution of statutory powers. Yov/ng v. Dowling, 15 Ill., 481. 4. The name of the officer taking the acknowledgment is not given in the body of the certificate of acknowledgment. The statutory form, by leaving a blank for that name, requires it to be there inserted. A tax deed is not substantially in the form required by statute when it omits any averment therein required. The phraseology may be changed in many respects without substantially changing the form, provided equivalent averments are inserted; but when the fact required to be inserted is omitted, it loses a part of the substance. If courts can dispense with one requirement they can, with equal propriety, dispense with another which they may think the legislature has unwisely or unnecessarily required, and thus by gradual steps assume the entire legislative powers upon the subject. , , 5. The deed purports to be based upon a sale certificate .first issued to the county in a case where the land could not be sold for the taxes, penalty and charges thereon. (Comp. Laws, 867, § 42.) The only statute in force at the date of this deed providing for or authorizing the issuance of a tax deed was §10, page 877, Comp. Laws, which provides that a tax deed may be issued only in cases in which the land is sold for taxes. This land was not and could not be sold, or else the county treasurer had no authority to bid it off for the county, as stated in the deed. Such bidding off by the treasurer is not a sale within the meaning of said § 10. The county does not by such bidding off acquire any new lien on or title to the land — it can never become entitled to a tax deed thereon nor acquire any rights as an occupying claimant thereunder. Neither the certificate nor the land is any part of the general county property, the custody of which is given to the county board, and neither of them can be sold by the ■comity. . It is true, that Comp. Laws, page 867, §44, provides a way by which the county, with the other corporations, may receive the taxes due them respectively, by allowing “any person” (other than the county) to purchase the certificate, and thereby become entitled to the amount of the taxes when paid by the owner of the land; but such purchaser never becomes entitled to a deed thereon. But it may be said that the certificate issued to the county, and acquired by “ any person ” as a purchaser is by law required to state that at a certain date the holder thereof will be entitled to a deed thereon. Let us see if that is true. Sec. 44 requires the treasurer to make to the county a certificate “similar” to that specified in §43. If “similar” there means “technically and exactly like,” then it requires the treasurer to certify, not only that the county will at a certain time become entitled to a deed, but also that the county paid the amount of tax, penalty and charges thereon, both of which are untrue. The only reasonable construction of the term “similar certificate” is, a certificate certifying the facts, just as a certificate to a purchaser at the sale recites the facts. The facts required in a certificate to the county are, that the land, describing it, could not be sold for the amount of taxes, penalty and charges thereon, and was bid off by the county treasurer for the county for such amount, naming it. The statute nowhere prescribes a form for, nor provides for a deed upon a certificate to the county. Had the legislature intended that a tax deed should ever be issued on such a certificate, it would have provided a form of deed applicable to such cáse, or at all events would not have required all tax deeds to be in a form' not applicable to such a case. 6. The middle portion of the deed (being about one-third of it) bears hardly any resemblance to the statutory form. It does not say that any person offered to pay the taxes, nor that the property was stricken off at any price, nor that the payment of any sum was made to the treasurer, nor that the amount of taxes, penalty and charges was ever paid by anybody; neither does it give a description of property sold where the statutory form requires it — the second description of land in said deed being in a connection which gives it no coherency or meaning except as an averment that no less quantity was bid for. But even if it is held that this deed may depart from the statutory form enough to suit the peculiar facts in the case, the deed still fails to be .good, because it does' not set forth sufficient facts upon which to found a conveyance. It does not say that the land could not be sold at any regular sale for the tax, penalty and charges thereon, as required by §42, (Comp. Laws, page 867,) nor that any person ever paid, or offered to pay, a sum equal to the cost of redemption at that time, as required by §44; nor does it say what county treasurer bid the land off, nor does it describe the land bid off by. the treasurer other than by a reference to the land subject to taxation. 7. The evidence in the case shows that the plaintiffs and one Abel Whitney were tenants in common of this land before and up to January 21st, 1865, at which time the defendant purchased Whitney’s title, and received from Whitney a conveyance of the undivided one-half of said land; that at the same time, and as a part of the same transaction, defendant got from Whitney the certificate on which the tax deed in question was subsequently made to defendant. Now we claim that upon this evidence the legal presumption is, that Whitney held that certificate for the joint benefit of himself and the plaintiffs, and that defendant, by receiving it as a part of his muniments of title, took only the rights that Whitney had, and the defendant cannot by means of that certificate, or of a tax deed subsequently taken thereon, acquire a title to the land to the exclusion of his co-tenants, the plaintiffs. One tenant in common before partition cannot purchase in an outstanding title or incumbrance on the joint estate for his exclusive benefit, and use it against his co-tenants. The purchase inures to the common benefit of all the co-tenants — the purchaser being entitled to contribution only: 1 Neb.> 448; 51 Penn. St., 377; 2 Black, 613; 49 111., 78; 2 Haskell, 288; 5 Johns. Ch., 406; 2 Greenl., 207; 4 Litfcell, 187; 6 Dana, 172; 6 Ohio, 227; 33 Cal., 408; 8 Mich., 263. 1. The clause, “such deed duly witnessed and acknowledged,” which occurs in § 10, ch. 198, Comp. Laws, p. 877, is borrowed from the tax law of "Wisconsin. The general law of that state provides that no deed for the conveyance of any land, or interest therein, shall be valid unless the same be executed in the presence of two witnesses. In this state our tax law does not designate the number of witnesses, nor does any law of this state require an instrument of conveyance to be witnessed. At common law attesting witnesses are not necessary to the validity of a deed. Where the statutes make no provision as to the number of witnesses, the common-law rule applies, and a deed that is acknowledged before a proper officer needs no witness: Gray v. Ulrich, 8 Kas., 112, 121; Phillips on Ev., 413 to 421; 2 Blackstone’s Com., 307; note 21; 4 Greenl. Cruise on Real Prop., 31; 3 Mich., 581-This deed is duly acknowledged, and this court has decided that “we do not think, where a deed is acknowledged, any witnesses are necessary;” Stebbins v. Guthrie, 4 Kas., 369; and see Shoat v. Walker, 6 Kas., 72. 2. It is claimed that “the deed does not show that any consideration was ever paid for the sale certificate, or the assignment thereof.” The tax deed shows that the land was subject to taxation for the year 1861, and that the taxes assessed on said land for that year remained due and unpaid on the first Tuesday of May, 1862, (the time fixed by law for the sale of the same for delinquent taxes,) and that at the time aforesaid the treasurer of said county of Jefferson exposed the same to public sale at the county-seat in said county in conformity to all the requirements of the statute in such case made and provided, for the payment of the taxes then due thereon, and that no person bid therefor the amount of such tax, penalty and charges so due and unpaid, and that the land was bid off by the county treasurer for the county of Jefferson, for the sum of $7.57, that sum being the whole amount of taxes, interest and costs then due and remaining unpaid on said property. The tax 'deed thus far shows a compliance with the statute. (Sec. 42, Comp. Laws, 867.) Sec. 44 of the same act made it the duty of the county treasurer, where land was bid off for the county, to make a certificate to the county, similar to those given to individual purchasers; and also provides that said certificate shall be subject to purchase by any person offering to pay therefor a sum equal to the cost of redemption at that time, and the county treasurer should assign the same to the purchaser, the same being made assignable by the county treasurer in like manner as those given to other purchasers — the same as an individual. This tax deed further recites that the treasurer duly assigned the sale certificate and all the right, title and interest of the .said county to said property to Thomas McGuire. It further recites that “two years having elapsed since the date of said sale, and said property has not been redeemed therefrom as provided by law, now, therefore, * * * for and in consideration of the said sum of $18.61, taxes, interest and costs due on said land for the year 1861, to the treasurer paid as aforesaid,” etc. We think this shows a consideration paid to the county. It is true that the deed does not recite that McGuire paid to the treasurer $18.61 at the time the certificate was purchased by him, and the transfer made by the treasurer, but it recites the fact that the treasurer duly assigned the certificate. An officer duly doing a thing,' means, regularly, properly. If regularly and properly done, he must have received the amount of taxes, interest and penalty then due; and the clerk certifies that the sum of $18.61, taxes, interest and costs, was so due on said land, and was so paid by Thomas McGuire to the treasurer as aforesaid, who is, in a former part of said deed, described as “ the county treasurer of the county of Jefferson.” Bowman v. Qoekrill, 6 Kas., 326. 3. It is claimed that the deed is void, because the land was sold on the 7th of May 1862, which is found by reference to a calendar to be Wednesday, and -that there is no averment in the deed that it was sold at any sale or adjourned sale begun and held the first Tuesday in May. It makes no difference whether the sale was made on Wednesday, or on any other day of the week. It is plain to be seen that the word at, before the “(an adjourned sale of),” in the form of the tax deed given in the statute, has been inadvertently left out or omitted from the deed in question by the draftsman. It cannot be seriously claimed that this slight omission invalidates this deed. It is simply a clerical omission, not a sub-, stantial defect. Bowman v. Qoekrill, 6 Kas., 324; 5 Kas., 498, 510; 4 Mich., 140, 154; 13 Mich., 329, 414. 4. It is claimed the deed is- void because the name of the officer taking the acknowledgment is not given in the body of the certificate of acknowledgment. The acknowledgment forms no part of the deed; but even if it did, the certificate of acknowledgment to this deed is in substantial compliance with the requirements of the statute. 5. It is claimed that the deed is void for the reason that the land was bid off by the county treasurer for the county, and for that reason a deed could not be made on a certificate issued to the county and transferred by the county treasurer. The argument of counsel on this proposition is ingenious. If this theory, contended for by counsel, can be sustained, then the owner of lands sold and bid in by the county for delinquent taxes can never lose the legal title to his lands by reason of such sale, nor the pui’chaser from the county thereby ever acquire a legal title thereto. This would be a strange anomaly indeed. But we do not understand the law to mean this. We think a person purchasing at a tax sale, and holding a certificate of purchase, and a person holding a transferred certificate of a tax sale from the county, stand in the same.relation. If the land is not redeemed in .the time prescribed by law, the holder of the certificate is entitled to a deed in either case; and if the proceedings and deed are regular, the deed passes the title absolutely. Section 42, Comp. Laws, 867, provides that when the land cannot be sold for the amount of tax, penalty, etc., it shall be bid off by the county treasurer for the county, for such amount. Section 44 provides that the treasurer shall make a certificate to the county similar to that made to an individual, which certificate shall be assignable by the county treasurer in like manner as those given to other purchasers. The county here is called a purchaser; the only difference being, the county purchases on credit, and pays when it sells the certificate, while other purchasers at the sale pay when they make the purchase. Where there is a purchase or a purchaser, there must be a sale and a seller. Sec. 10, Comp. Laws, 877, provides that if any land sold for taxes shall not be redeemed, etc., the county clerk shall, on presentation to him of the certificate of sale, execute in the name of the county a deed of the land unredeemed,; which means that the deed shall be made to the holder of the tax-sale certificate, whether the certificate was issued to him as the purchaser, or to the county, and then assigned to him. 6. Again, it is claimed the deed does not follow the form given in the statute. There is no form prescribed by law for this particular conveyance, but we think thé form of the deed is substantially good, and the law fully complied with. In this particular kind of a case the deed certainly would not be good if it were made precisely in the form laid down in the statute. It is necessary to change the form of the deed to suit the circumstances of each case — the law only requiring that the deed shall be substantially, not exactly, in the form given in the statute. 6 Kas., 311, 324; Comp. Laws, 878, §10. 7. It is scarcely necessary in this action to discuss the 7th point argued by counsel for plaintiff.