Mack v. Price

1. Ejectment; Occupying - Claimant Law; Proceeding in Error; No Estoppel. Where a defendant who is defeated in an action in the nature of ejectment, after the verdict is rendered, files in the office of the clerk of the district court a written request for the benefit of the occupying-claimant law, and the judgment recites that the defendant has made claim for improvements as an occupying claimant, but such defendant stops with said request, and does not demand a jury for the assessment of his improvements, and excepts to the findings of fact and conclusions of law, and to the judgment rendered, and also obtains time in which to make and serve a case to review the rulings of the trial court, held, such defendant is not estopped by the steps so taken by him from instituting and maintaining proceedings in error to reverse the judgment rendered in the action against him. 2. Case, Distinguished. The case of Bradley v. Rogers, 33 Has. 120, distinguished. 3. Tax Deed, Valid on Pace. A tax deed that is substantially in the form prescribed by the statute is valid on its face, although immaterial words of the statutory form are omitted, if everything of substance required by the statute as to form is found in the deed, when all of the recitations of the deed are taken together and so considered. 4. Tax Deed—Words Properly Omitted. Where a tax deed recites that no person offered to pay the taxes, interest and costs (naming the amount) then due and remaining unpaid on certain lots, (describing the same,) nor any part or parcel thereof, and that the whole of said real estate was bid off by the county treasurer for the county for the amount of taxes, penalty and charges, and that subsequently, upon a date named, the county clerk of the county duly assigned the cer- ' tificate of sale of said real estate, and all the right, title and interest . of the county therein and to said property, to one M., held, that the words “was the least quantity bid for” were properly omitted from the tax deed, as the county is not a voluntary or a competitive bidder. (Larkin v. Wilson, 28 Kas. 513; Magill v. Martin, 14 id. 67.) 5. Case, Distinguished. The case of Noble v. Cain, 22 Kas. 493, distinguished.

Error from Atohison District Court. Action brought July 28, 1883, by John M. Price against William Mach, for the recovery of the immediate possession of lots 12 and 13, in block 27, North Atchison, Atchison city. .The defendant answered, admitting possession' and' claiming title in himself under a tax deed of December 7, 1869. Trial had at the November Term, 1884, by the court. The court made the following findings of fact: “1. At the commencement of this action, the plaintiff was the owner in fee simple of the real property in controversy, to wit, lots 12 and 13, block 27, North Atchison, an addition to the city of Atchison, in Atchison county, Kansas, by a chain of conveyances from the government of the United States, the original owner, except as the same may be affected by the tax proceedings and tax deed hereinafter mentioned. Said lots Were vacant, unimproved and unoccupied until the defendant took possession of the same as hereinafter stated, and no improvements have ever been made thereon except by the defendant. ■< “2. At the commencement of this action, the defendant was in the actual and visible possession and occupation of said real property, and he had been in such possession and occupation 'thereof ever since the year 1870, during which year he built a house thereon, into which he moved with his family. Ever since May 27, 1871, his possession thereof was under a claim of right by virtue of a tax deed executed by Chas. W. Rust, county clerk of said county of Atchison, of date December 7, 1869, acknowledged May 27, 1871, and recorded on the same day in book '¥/ at page 469, in the office of register of deeds of said county, with the following exception. Exhibit A.,’ attached to the defendant’s amended answer, is a substantial copy of said tax deed and the acknowledgment thereof, namely: the concluding part of the body of said original deed is as follows, namely: “ ‘ In witness whereof, I, Ohas. W. Bust, county clerk as aforesaid, have hereunto subscribed my name and affixed my official seal, on this 7th day of December, 1869. [Signed] Chas. W. Bust, County Clerk.’ Whereas in said exhibit A’ the concluding part of the body of the said deed as therein copied is as follows, namely: ‘“In witness whereof, I, Chas. W. Bust, county clerk as aforesaid, by virtue of authority aforesaid, have hereunto subscribed my name and affixed the official seal of said county, on this 7th day of December, 1869. [Signed] Chas. W. Bust, County Clerk of Atehison Co., Kas.’ “The defendant paid $1.50 as fee for recording said deed. The seal actually used by the county as established by the board of county commissioners and kept in the office of the county clerk, was the one used and affixed to the original deed herein. “3. From evidence outside of said deed it appears that said real property was liable to taxation for the year 1862, and ever since, and that the same was assessed upon the assessment roll of said year as follows: Lot 12, block 27, North Atchison, to F. G. Adams, valuation $20; lot 13, block No. 27, North Atchison, to F. G. Adams, valuation $20; and said lots were placed on the tax-rolls of said year in accordance with said assessment roll, each lot being valued at $20, and the total tax on each lot being 46 cents, and F. G. Adams being named as owner. “From the record of tax sales, it appears that said lot 12, assessed to F. G. Adams, was sold to the county May 15,1863, for 80 cents; certificate No. 2317; tax of 1863, $1.51; tax of 1864, .74; tax of 1865, $2.04; tax of 1866, .99; tax of 1867, 1.29; tax of 1868, $1.22; assigned to William Mack, June 3, 1869. “Lot 13, the same in all respects as lot 12, except that the certificate'number is 2318; the duplicate book of tax sales in the county clerk’s office shows all of the facts stated in the original book of tax sales, and also the further fact that each of said lots was deeded to William Mack, December 7, 1869. “4. The tax-sale notice under which said lots were sold reads as follows: “ ‘ Delinquent Tax Inst of Atehison County, for State, County, Sehool and Township Tax for the year 1862.—I will offer for sale on the first Tuesday of May next so much of each parcel of the following-described lands or lots as may be necessary to pay the taxes thereon, in front of the county treasurer’s office in the city of Atchison, state of Kansas, commencing at 10 o’clock A. m. of said day, and continuing from day to day until disposed of. (Signed) Fbank Biee, County Treasurer. Atchison, April 4, 1863.’ The accompanying list described said two lots: “ 5. The notice of expiration of time for redemption from said sales is as follows: “ ‘ Tax Notice of the Expiration of the Time IAmited for Redemption of Lots and Lands sold at the Tax Sales made in May, 1863, for Delinquent Taxes of the year 1862.—Notice is hereby given that all lands and lots sold on May the 5th, and subsequent days, remaining unredeemed, will be conveyed to the respective purchasers thereof unless redeemed on or before the day limited and hereinafter mentioned. The day of expiration, the amount of tax, including interest, to the last day of redemption, and the tax of 1864, also included, is as follows : (Signed) Samuel 0. Kino, County Treasurer.’ “In the list on file in the county clerk’s office said lots 12 and 13 are under date of May 15, 1865. There is no name opposite the lots, nor upon the list, to indicate the ownership, nor to whom assigned. The amount carried out opposite lot 12 is $4.45, and the amount carried out opposite lot 13 is $5.45; said notice was published in the Atchison Champion, a weekly newspaper published in said Atchison county, and of general circulation therein, on December 8, 1864, December 15, 1864, December 22, 1864, and December 29, 1864, and in no other manner and at no other dates. “6. Said lots were sold for the taxes of 1869, and the taxes of 1870 were charged upon the sale, the aggregate taxes for the two years being as follows: On lot 12, $3.44; on lot 13, $9.13; total, $12.57. On May 6, 1871, the defendant redeemed the same from said sale and for said taxes of 1869, 1870, paying for such redemption as follows: Eor lot 12, $5.16; and for lot 13, $12.27; total, $17.43, including certificate of redemption. “7. The defendant paid the subsequent-taxes on said lots as follows: Taxes of 1871, paid January 1, 1872, on lot 12, $1.53, on lot 13, $7.64; taxes of 1872, paid May 5, 1873, on lot 12, $1.66, on lot 13, $8.32; taxes of 1873, paid May 11, 1874, on lot 12, $1.85, on lot 13, $7.71; taxes of 1874, paid June 18, 1875, on lot 12, $1.64, on lot 13, $4.62; taxes of 1875, paid June 20, 1876, on lot 12, $2.26, on lot 13, $5.81; taxes of 1876, paid June 20, 1877, on lots 12 and 13, $4.55j taxes of 1877, paid June 20, 1878, on lots 12 and 13, $4.86; taxes of 1878, paid June 20,1879, on lots 12 and 13, $4.80; taxes of 1879, paid June 20,1880, on lots 12 and 13, $4.97; taxes of 1880, paid June 20, 1881, on lots 12 and 13, $6.07; taxes of 1881, paid June 20, 1882, on lots 12 and 13, $5.66; taxes of 1882, paid June 20,1883, on lots 12 and 13, $5.23; taxes of 1883, paid June —, 1884, on lots 12 and 13, $5.57.” Thereon the court made the following conclusions of law: “1. Said tax deed is not regular on its face, and is not in substantial compliance in form with the provisions of law, and it bears evidence upon its face that the provisions of the law were not complied with, and in the two proceedings prior to the execution of said tax deed the law was not complied with. “ 2. The plaintiff is the owner of the real estate in controversy, and his cause of action is not barred by the statute of limitation. “3. Before the plaintiff is let into possession of said real property, he should be required to pay to the defendant the full amount of all taxes paid by the defendant upon said real property, with interest thereon at the-rate of fifty'per cent, per annum and costs up to the date of said tax deed December 7, 1869, including the cost of said tax deed and the recording of the same, with interest on such amount at the rate of twenty per cent, per annum, and the further amount of taxes paid by the defendant after the date of said tax deed, with interest thereon at the rate of twenty-five per cent, per annum. “ 4. Subject to said charge for taxes and to the defendant’s rights, if any, as an occupying claimant, the plaintiff is entitled to recover said real property, with costs of suit.” A copy of the tax deed attached to the answer, and marked “ Exhibit A,” is hereinafter set forth in full. The words therein inserted in italics are found in the statutory form, but not in the deed. The words in parenthesis are found in the-deed, but not in the statutory form. “Know all men by these presents, That whereas, the following described real property, viz., lots twelve and thirteen, block No. 27, North Atchison, Atchison city, situated in the county of Atchison and state of Kansas, was subject to taxation for the year 1862; and whereas, the taxes assessed upon said real property for the year aforesaid remained due and unpaid at the date of the sale hereinafter mentioned; and whereas, the treasurer of said county did, on the 15th day of May, 1863, by virtue of the ■ authority in him vested by law, at an adjourned sale, of the sale begun and publicly held on the first Tuesday of May, 1863, expose to public sale at the county seat of said county, in substantial conformity with all the requisitions of the statute in such case made and provided, the real property above described, for the.payment of (the) taxes, interest and costs, then due and unpaid upon said property ; and whereas, at the place aforesaid, no person offering to- pay the sum of one dollar and sixty cents, being the whole amount of taxes, interest and costs then due and' remaining unpaid on said property for lots twelve and thirteen, block No. twenty-seven, North Atchison, (nor any part or parcel thereof,) which was the least quantity bid for, the whole of said real property was bid off by the said county treasurer for said county of Atchison, for the amount of taxes, penalty and charges thereon as aforesaid; and whereas, the county clerk of said Atchison county did, on the 10th day of August, 1869, duly assign the certificate of the sale of the property as aforesaid, and all the right, title, and interest of (said) Atchison 'county in and to said property to William Mack, of the county of Atchison and state of Kansas; and whereas,- the subsequent taxes of the years 1864, 1865, 1866, 1867, 1868, amounting to the sum of twenty and T7^ dollars (and seventy cents) have been paid by the purchaser (and assignee of said certificate) as provided by law; and whereas, five years have elapsed since the date of said sale, and the said property has not been redeemed therefrom as provided by law: “Now, therefore, I, Chas. W. Rust, county clerk of the county aforesaid, • for and in consideration of the sum of twenty-two dollars and thirty cents, taxes, cost and interest due on said land for the years 1863,1864, 1865, 1866, 1867, and 1868, to the treasurer paid as aforesaid, and by virtue of the statute in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said William Mack, his heirs and assigns, the real property last hereinbefore described, to have and to hold unto him, the said William Mack, his heirs and assigns forever, subject, however, to all rights of redemption provided by law. “In witness whereof, I, Charles W. Rust, county clerk as aforesaid, by virtue of authority aforesaid, have hereunto subscribed my name, and affixed [my] the official seal of said county, on this 7th day of December, 1869. [Seal.] Chas. W. Rust, County Cleric. Witnesses: ¥m. H. Williams, D. E. Merwin. “[The] State op Kansas, Atchison County, ss.—I hereby certify, that before me, J. J. Locker, a register of deeds in and for said county, personally appeared the above-named Charles W. Rust, clerk of said county, personally known to me to be the clerk of said county at the date of the execution of the above conveyance, and to be the identical person whose name is affixed to and who executed the above conveyance as clerk of said county, and who acknowledged the execution of the same to be his voluntary act and deed as clerk of said county, for the purpose therein expressed. “Witness my hand and official seal, this 27th day of May, 1871. [Seal.] J. J. Locker, Register of Reeds." The defendant excepted to conclusions of fact 3, 4 and 5, and to conclusions of law 1, 2, 3 and 4. Judgment having been entered accordingly, the defendant further excepted, and brings the case here.