Babbitt v. Johnson

1. Acknowledgments in '1859, before Deputy Glerk In June 1859, the deputy clerk of a probate court in the territory of Kansas was authorized to take acknowledgments of deeds. 2. Deed — Delivery; Presumption. A deed takes effect from the time of its delivery, and this, in the absence of any evidence to the contrary, is presumed to have been on the day of its date. 3. --Time of Acknowledgment. It is no objection to the admissibility of a deed delivered before the commencement of the action, that it had .been acknowledged subsequent thereto. 4. Tax-Deed; When Void. A tax-deed which recites a sale to the county as a competitive bidder, is void upon its face. 5. --Action •, Tender of Taxes. Since the repeal of section 90 of the tax law of 1866, it is no defense to an action against one in possession under a tax-deed void upon its face that no tender had. been made prior thereto of the taxes, costs, etc.

Error from Brown District Court. Ejectment, brought by Johnson, to recover the possession of a quarter-section of land. The facts are stated in the briefs and opinion. Trial at the August Term 1873. Verdict and judgment for plaintiff, and defendant Babbitt brings the case here. Babbitt, defendant below, claimed title to the land under a tax-deed executed and recorded in June 1864, and claimed that the plaintiff’s right of action was barred by the statute. We claim, that this action cannot be maintained, as no tender of the amount of the taxes, costs, etc., was made to Babbitt, as provided by § 11 of the tax law of March 6th 1862, and § 90 of the tax law of 1866: 16WÍS.588; 19 Wis. 615, 620; 8 Kas. 685, 686. The court erred in admitting the deed from Hall to Stewart, dated June 18th 1859, because the same was not acknowledged before any official authorized to take acknowledgments. The court also erred in admitting in evidence the deed from Stewart to Brown, because the same was not acknowledged before any official authorized to take such acknowledgments, and because the same was insufficient as an acknowledgment. The court erred in admitting in evidence the deed from Brown to Johnson, the plaintiff. This deed, executed in Alabama, and acknowledged there, was improperly admitted. The acknowledgment was made after the suit was commenced. Porter v. Wells, 6 Kas. 448. The tax deed offered in evidence by Babbitt was not void on its face, but was a valid deed, and conveyed to the defendant the absolute title to the land in suit, and the statute had barred this action before suit was commenced. Comp. Laws 1862, ch. 197, §57; ch. 98, § 11; 6 Kas. 311. No tender of taxes, etc., was necessary: Sapp v. MorriU, 8 Kas. 685. There was no error in admitting the deed from Hall to Stewart. By § 28, ch. 22, Gen. Stat. 189, the record of this deed, (and it was the record that was offered,) was rendered admissible, when the original was shown to be lost, notwithstanding any defective acknowledgment. Either the original or copy was admissible, if the original had been recorded. Sec. 14, ch. 30, page 240, Laws of 1859, will show that this acknowledgment is good, if the probate court had a seal and a clerk; and §§ 34, 38, ch. 13, Laws of 1858, are sufficient answer to that proposition. Again: The case of Porter v. Wells, cited by plaintiff in error, says a deed executed after suit is inadmissible. In this case, the deed was executed before the suit, to-wit, September 6th 1869. The suit was not commenced till 1870. Porter v. Wells does not decide that a deed acknowledged after suit brought may not be read in evidence. See 58 111. 135. The tax-deed was void on- its face. It recites a sale to the county as a competitive bidder. Norton v. Friend, 13 Kansas, 532.