Young v. Gibson

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

The admissions of fact in this case leave nothing but a question of law to be determined. After fhe mutual admission of .the detailed facts recited in -the statement the defendants offered in evidence the second tax deed, a copy of which was attached to the answer, and the execution of which was not denied in fhe reply under oath. The execution of the deed was *268 therefore admitted in the form and with the contents as pleaded. (Civ. Code, § 108.) It was not necessary, therefore, to introduce this deed in evidence. Pending the ruling on the objection to the introduction of the deed in evidence, however, the plaintiff expressly admitted “that the books and records of the office of the county treasurer would show that Hoover purchased at said sale several tracts, including the one in controversy, each for a different consideration, and that he was entitled to a tax deed conveying said lands as separate and distinct tracts and showing a separate and distinct sale of each tract.” This is equivalent to the admission of the facts as true which it is admitted the records show. The records import verity and are not subject to contradiction. There is a marked difference between an admission that a witness would testify to a certain .fact and an admission that a public • record, and the only proper public record, would show the fact. The witness may be contradicted or may not be believed. The public record of the county treasurer is in the very nature of the case the best, if not the only, evidence of the facts it is admitted it would show, and, at least in the absence of any suggestion of error or fraud therein, should be taken as conclusive evidence of such facts.

The court evidently recognized these as established facts and correctly held that all rights acquired under the first tax deed were merged in the second deed. (Gen. Stat. 1901, § 7714; Tweedell v. Warner, 43 Kan. 597 .) The court, however, held, following the dictum in Park v. Hetherington, 9 Kan. App. 309, 312, 313 , that section 7714, supra, being the first section of an act entitled “An act to avoid floating liens on real estate,” adopted in 1881, limits the time for obtaining a. valid tax deed to four years from the date of the sale, at least in the absence of some allegation or recital in the second deed showing that it was issued to correct or take the place of a first tax deed issued on. the same tax sale. In this the court erred.

*269 Section 7714 of the General Statutes of 1901 has no reference whatever to the time of issuing a tax deed or to the validity of a tax deed. This section was enactéd as section 1 of chapter 114 of the Laws of 1881. The chapter was entitled “An act to avoid floating liens on real estate,” and the whole act is still in force, and has been republished under that title in all subsequent compilations of the statutes. Theretofore a person could acquire a tax certificate on a tract of land and carry it indefinitely, at the enormous rate of interest then allowed by law. Probably trouble from this source led to the enactment of this section. As before said, it has no reference to the time within which a tax deed must be issued after the sale to be valid. The deed is issued in accordance with the contract of pur chase, and sale, the law being a part of the contract, and neither this nor any other statute expressly places any limitation upon the issuance of such deed, except that it can not be issued until three years after the sale. But the general statute of limitations, as will be seen hereinafter, applies to the time within which an action may be brought to compel the issuance of such deed. To preserve the lien for taxes on the land a tax deed must be taken out within four years from the date of the sale. But it is provided in section 4 of the floating-lien statute (Gen. Stat. 1901, §7717), in eifect, that an invalid tax deed shall preserve the lien.

The only justification for the dictum in Park v. Hetherington, 9 Kan. App. 309, 312, 313 , (see, also, Tweedell v. Warner, 43 Kan. 597, 604 ) is that a tax deed could not be issued after the lien for the taxes had expired. Assuming the correctness of this proposition, if the lien has once been perpetuated by taking out an invalid deed, when thereafter does the lien expire? When thereafter, if the purchaser be entitled. thereto, can a valid tax deed be legally issued. No provision of the statute, it is believed, answers either question.

*270 We simply hold in this case that the second tax deed may lawfully be issued by the county clerk during such time at least as the purchaser may maintain an action to compel the issuance of the deed.

An excerpt from the opinion of Mr. Justice Brewer in Douglass v. Nuzum, 16 Kan. 515 , seems especially applicable to the facts in this case,'as it is admitted herein that all the steps in the matter of the taxation of the land in question up to and including the sale were legal and had been taken in the manner prescribed by statute. The excerpt reads:

“If all the proceedings up to the execution of a tax. deed are regular and legal, the holder of the certificate is entitled to a deed in legal form, and carrying that prima facie evidence of the regularity of all prior proceedings which belong to a statutory deed; and if through mistake or inadvertence a different deed, and one substantially departing from the statutory form, has been executed, the county clerk can be compelled by mandamus [to], and may without it, execute and deliver a deed in correct and statutory form. In other words, neither the power nor the duty of the county clerk is exhausted by the execution of an irregular and improper deed. The holder of the tax claims is entitled to have the various steps and processes by which these claims are matured into perfect titles properly and legally taken and done by the various officers to whom under the law they are respectively assigned.” (Page 525.)

Suppose that in this case the county clerk had refused, on the application of the purchaser, to execute a deed in conformity to law and to the rights of the purchaser: what would be the limitation of time within which the purchaser could bring an action in mandamus to compel the clerk to perform his duty? There is no special limitation provided in such case; hence, as it is a civil action, the limitation must be found in article 3 of the civil code. Subdivision 6 of section 18 of the code is the only limitation applicable, and it is five years from the issuance of the defective deed. His cause of *271 action for mandamus would arise after the making of the first deed and upon the refusal of the clerk on demand to execute a deed in conformity with law, and he is entitled to five years thereafter in which to bring his action in mandamus. If the county clerk could be compelled to issue a valid tax deed more than four years after the tax sale (and it would be ridiculous to say that he could be compelled to issue an invalid deed), he might do so without any action within that time at least.

While it is proper and desirable to note upon a second tax deed, issued to correct an erroneous deed, the fact that it is so issued, the purpose and function of the second deed must in every case be apparent, from the circumstance that the two deeds are issued upon the same sale; and it is not a prerequisite to the validity of the second deed or to its admissibility in evidence in court that such notation be made thereon.

All the facts requisite to establish the validity of the second tax deed were admitted by the plaintiff, and as it is herein held that such deed is not invalid by reason of the time of its issuance the judgment of the court is reversed, with instructions to render a judgment in favor of the defendants.