Corbin v. Inslee

1. Tax Same, Invalid. Under the provisions of the law tax of 1868, (Gen. Stat. ch. 107,) the sale of an undivided interest in real estate for delinquent taxes and charges, is invalid. • 2. Tax Deed, Invalid. A tax deed which shows the sale of an undivided interest in real estate in May, 1872, for tax of 1871, is void upon its face, and passes no title to the purchaser.

Error from Linn District Court. Action brought by Corbin against Inslee, to quiet title to certain lands in Linn county. Trial at the July Term, 1878, of the district court, and judgment for the defendant. The plaintiff brings the case tojthis court. The defendant’s demurrer raises the question whether an undivided interest in land can properly be assessed for taxation; and if the taxes remain delinquent, whether it can be sold for such delinquent taxes. The description in the present case is equal to á description of an undivided interest in the land. Suppose, for instance, these four lots contain, in all, one hundred acres: this description, then, amounts to eighty-nine one-hundredths (89-100), and is assessed and sold as all there is in those lots, except an undivided eleven acres, which is equivalent to eleven one-hundredths (11-100). Then all that passes by this tax deed is an undivided eighty-nine one-hundredths (89-100) of said lots. We think this description differs entirely from those which describe a tract as so many acres in a quarter-section. Such descriptions are held by all the authorities to be void for uncertainty. But in the case at hand, we think it is a pertinent, fair, clear and certain description by which a title passes to all the lots, except an undivided eleven acres therein. It is true, the description does not show just how many acres these lots contain, but it is a matter of proof, aliunde. The patent would show it; the entry-papers would show it; the United States survey would show it; and when shown, the exact interest represented by these undivided eleven acres is made, clear and certain in undivided acres, and the tract, except the undivided eleven acres, is made equally certain. If the lots contain eighty acres, the residue, after excepting the undivided eleven acres, would be sixty-nine, and the interest conveyed by the tax deed would, in other words, be expressed as an undivided sixty-nine- eightieths of the lots. These proceedings occurred under the tax law of 1868. (§§ 32,80,100,1.01.) Now, it is true that in providing for assessment, &c., it uses the expression “parcel of real property.” And it may be argued that this phrase excludes the idea of an undivided interest being assessed at all, as the expression “parcel of real estate” includes all the undivided interests contained in it. But this", we think, is too strict a construction, because, in this event, the undivided interest could not be assessed; and if not assessed, we can see no escape from the conclusion that an owner of an undivided interest cannot pay taxes on his interest alone, but only on the whole tract— on his own interest and on all the other interests. It is contrary to the policy of the law to impose upon the owner of an interest in real property such a burden, and a construction which leads to such a result is, we think, unsound. Then, §§ 100 and 101 referred to herein, provide expressly for the redemption of any interest therein, without redeeming the whole tract; and the same policy of the law which authorizes the redemption after sale of an undivided interest, would authorize the payment of a tax on an undivided interest before it was sold; and if it might be paid on separately, and redeemed separately, we can see no valid reason why each undivided interest may not be separately assessed. The statute nowhere prohibits such assessment, and we cannot see that such an assessment could, by any possibility, work any harm or injury to the owner of such undivided interest. But, if such assessment should be irregular, which we do not believe, still the irregularity would be amere irregularity, which could, by no possibility, impair any rights of the owner. Any such irregularities count for nothing against Kansas tax deeds. (See.also §113, General Tax Law, 1868.) The plaintiff seeks a decree quieting his supposed title to lands described in his tax deed as “Lots 1, 2, 3 and 4 of section 13, township 23, range 24, except undivided 11 acres.” The contention of the defendant is, that the deed is void for uncertainty in such description; that in fact it describes nothing. Such undefined and undivided portion of land is not a parcel, lot or tract of real estate. All the proceedings leading up to this deed were under the tax law of 1868. (Gen. Stat. ch’. 107.) By that act, “each parcel” of land must be separately listed, (§§32,36,37.) The listing and assessment must contain “a correct and pertinent description of each parcel of real property,” (§32,) and of the “quantity” .and “value” of “each parcel,” (§ 36.) At the tax sale “each parcel ” is to be sold, and not an undefined portion of a parcel, (§84.) That such a description as is here under discussion is not a “correct and pertinent description,” as required by the statute, see Hilliard on Taxation, 336; Blackwell on Tax Titles, 127, etseq.; 2 Ohio, 287; 5 id. 457; 6 id. 391; 10 id. 152; 16 id. 24; 11 id. 316; 13 Wis. 641; 5 Blackf. 51; 14 How. 76. These authorities, with numerous others of like import that might be cited, seem conclusively to settle the law to be that the listing and sale for taxes of an undefined and undivided portion of an entire, tract of land is wholly inoperative and void. In Comm’rs v. Goddard, 22 Kas. 389, a description thus, “137 A. of S.E. £, sec. 27, town 20, range 12,” was held by this' court fatally defective and void. That case is not distinguishable in principle from the case at bar. In that case, the fatal defect consisted in the lack of a definite location of the 137 acres in any part of the southeast quarter of sec. 27. In this case, the fatal defect consists in the lack of a definite location of the excepted eleven acres in any part of the lots enumerated. The eleven acres not sold being unlocated, the remainder of the tract, sought to be sold, is likewise unlocated, and the adjudication in Comm’rs v. Goddard is decisive of this case. It is claimed by plaintiff in error that the case may be regarded as the sale of an undivided interest in the tract. To this there are two conclusive answers. First, the proposition is entirely unsupported by the language of the deed; and second, there is no 'authority of law to tax or sell an interest in land as distinguished from the land in specie. The sale recited- is of the lots, except eleven acres, not an interest in the lots. But if it were a sale of an undivided interest, instead of undivided acres, what was the extent of the interest? The deed does not pretend to state. Indeed, the deed does not give the number of acres in the tract; but even if it did, it still would not show the extent of the interest supposed to be sold, for in the separation of interests among tenants-in-common the apportionment is not of acres in numerical proportion to interests, but of portions in value according to proportionate interests. It would be absurd to expect or require taxing officers to ascertain and tax severally the individual and complicated interests of joint tenants and tenants-in-common. The law neither requires nor allows any such thing. In the sale of lands for taxes, the person offering to pay the taxes and charges for the smallest quantity of land in a square form in the “northeast corner of the tract,” shall be “the purchaser of such quantity located as aforesaid,” (Tax ■Law, §85.) There is no “northeast corner” of an undivided interest in land.