The opinion of the court was delivered by
Valentine, J.:
This was an ordinary action in the nature of ejectment and for rents and profits, brought in the district court of Osage county on July 19, 1888, by "W. D. Martin and D. M. Cooper against B. F. Garrett, Anna Garrett, Louis Shutz and wife, for the recovery of the southwest quarter of section 9, in township 15, range 17, in said county. The answer of Shutz and wife was simply a general denial, and that they were the tenants of B. F. Garrett. The answer of the Garretts, who were husband and wife, was, first, a general denial; second, that they held and owned the property and had been in possession thereof for more than five years under a duly-recorded tax deed; and, third, that they held and owned the property under a decree quieting the title [138]*138in their grantors. The plaintiffs replied to the third defense, claiming that the decree quieting the title was without jurisdiction, and void; and they demurred to the second defense, upon the ground that it did not state facts sufficient to constitute a defense, which demurrer the court overruled, and the plaintiffs standing upon their demurrer, judgment was rendered in favor of the defendants and against the plaintiffs for costs; and the plaintiffs, as plaintiffs in error, bring the case to this court for review.
The second defense of the defendants Garrett reads as follows:
“Defendants B. F. Garrett and Anna Garrett, for second answer, say: That at the time this suit was commenced said defendants were in the actual possession of the premises in plaintiffs’ petition described, and had been for more than five years prior to the commencement of this action in the continuous and uninterrupted possession of said described premises, under and by virtue of a certain tax deed to said premises made, acknowledged and delivered to one J. D. Vawter, and his assigns, under and from whom these defendants have possession and title to said premises, which said tax deed is dated May 10, 1875, and was duly filed for record in the office of the register of deeds of Osage county, Kansas, on May 20, 1875, and recorded in tax deed record ‘A,’ on page 225, in said office. A copy of which said tax deed is hereto attached, marked ‘exhibit A,’ and made a part hereof. And that if said plaintiffs ever had any cause of action against said J. D. Vawter, or these defendants, that the same was, at the commencement of this suit, and also at the time mentioned in paragraph 1 of plaintiffs’ petition, completely barred by section 141 of the tax laws of 1876 (Compiled Laws of Kansas, 1885, ch., 107, § 141), because this action was not commenced within five years from the time of recording the said tax deed.”
It appears from the tax deed that it was executed on May 10,1875, upon a tax sale made May 8,1872,'for the taxes of 1871, amounting to $29.19, and the subsequent taxes which had been paid for the years 1872, 1873, and 1874, amounting to $112.88; and the tax deed was recorded on May 20,1875. The principal objection urged by the plaintiffs against the tax [139]*139■deed is to that portion of the tax deed which reads as follows :
“Now, therefore, I, Wm. Y. Drew, the county clerk of the county aforesaid, for and in consideration of the sum of $268.02, taxes, costs and interest due on said lands for the years 1871 to 1874 inclusive, to the treasurer paid as aforesaid, and the accrued interest, cost of advertising and making and recording tax deed, 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 J. D. Yawter, his heirs and assigns, the real property last hereinbefore described, to have and to hold unto him, the said J. D. Yawter, his heirs and assigns forever, subject however to all rights of redemption as provided by law.”
The only question which we need to consider in this case is, whether the tax deed in dispute is void upon its fáce, and so absolutely and utterly void that it could not be made good or be cured by the operation of the five years’ statute of limitations enacted for the cure of defective tax deeds, and by more than five years’ continuous possession of the property under the tax deed. Such statute of limitations is contained in § 141 of the tax law of 1876, which reads as follows:
“Sec. 141. Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.”
The limitation contained in § 116 of the tax law of 1868 is precisely the same, except that it is only two years instead of five.
It is first claimed that the tax deed is void upon its face for the reason that it is not in the exact form prescribed by the statutes. But the statutes do not prescribe any inflexible or unvarying form for tax deeds. It was decided by this court, as early as 1870, as follows:
“A tax deed is not void upon its face by reason of slight irregularities. The statute does not require that a tax deed [140]*140shall be in the exact form prescribed by the statute, but only substantially in that form.” (Bowman v. Cockrill, 6 Kas. 311, 324, 325.)
And this decision has ever since been followed. A slight or unimportant departure from the statutory form of a tax-deed will not invalidate the tax deed or render it void upon* its face.
It is also claimed that the stated consideration for the tax deed is excessive. Now, even if this were true, the tax deed does not show it upon its face. The tax deed was for the-taxes for the years 1871, 1872, 1873, and 1874, and for all lawful penalties, costs and interest thereon up to the date of the execution of the tax deed. The amount of the taxes for the year 1871 is shown; also the aggregate amount of the taxes for the three years 1872, 1873 and 1874 is shown, but all without the penalties, costs and interest thereon; and what the separate taxes for any one of these three years were, or what the penalties, costs or interest thereon were, is not shown. The bulk of the aggregate amount of the taxes paid for these-three years may have been paid for and in the year 1872, ^nd may then have drawn interest at the rate of 50 per cent, per annum up to the date of the tax deed, which was executed in. 1875. (Laws of 1869, chapter 122.) Hence the real consideration for the tax deed may have been largely more than that expressed in the tax deed.
It is further claimed that the tax deed shows that the costs of the making and recording of the tax deed were placed in-the tax deed as a part of the consideration therefor. If this were true, we would think it would be erroneous; but it cannot make any difference whether it is true or not in this case.. The plaintiffs and their grantors never offered to-redeem the-land from the taxes, but they permitted the parties claiming under the tax deed to hold the property for more than five years,, without any offer from them to redeem it from the taxes, and if they should now recover the property they would have to pay the costs of the tax deed and for recording the same. (Tax Law of 1868, § 117; Tax Law of 1876, § 142.) Indeed, the-[141]
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The opinion of the court was delivered by
Valentine, J.:
This was an ordinary action in the nature of ejectment and for rents and profits, brought in the district court of Osage county on July 19, 1888, by "W. D. Martin and D. M. Cooper against B. F. Garrett, Anna Garrett, Louis Shutz and wife, for the recovery of the southwest quarter of section 9, in township 15, range 17, in said county. The answer of Shutz and wife was simply a general denial, and that they were the tenants of B. F. Garrett. The answer of the Garretts, who were husband and wife, was, first, a general denial; second, that they held and owned the property and had been in possession thereof for more than five years under a duly-recorded tax deed; and, third, that they held and owned the property under a decree quieting the title [138]*138in their grantors. The plaintiffs replied to the third defense, claiming that the decree quieting the title was without jurisdiction, and void; and they demurred to the second defense, upon the ground that it did not state facts sufficient to constitute a defense, which demurrer the court overruled, and the plaintiffs standing upon their demurrer, judgment was rendered in favor of the defendants and against the plaintiffs for costs; and the plaintiffs, as plaintiffs in error, bring the case to this court for review.
The second defense of the defendants Garrett reads as follows:
“Defendants B. F. Garrett and Anna Garrett, for second answer, say: That at the time this suit was commenced said defendants were in the actual possession of the premises in plaintiffs’ petition described, and had been for more than five years prior to the commencement of this action in the continuous and uninterrupted possession of said described premises, under and by virtue of a certain tax deed to said premises made, acknowledged and delivered to one J. D. Vawter, and his assigns, under and from whom these defendants have possession and title to said premises, which said tax deed is dated May 10, 1875, and was duly filed for record in the office of the register of deeds of Osage county, Kansas, on May 20, 1875, and recorded in tax deed record ‘A,’ on page 225, in said office. A copy of which said tax deed is hereto attached, marked ‘exhibit A,’ and made a part hereof. And that if said plaintiffs ever had any cause of action against said J. D. Vawter, or these defendants, that the same was, at the commencement of this suit, and also at the time mentioned in paragraph 1 of plaintiffs’ petition, completely barred by section 141 of the tax laws of 1876 (Compiled Laws of Kansas, 1885, ch., 107, § 141), because this action was not commenced within five years from the time of recording the said tax deed.”
It appears from the tax deed that it was executed on May 10,1875, upon a tax sale made May 8,1872,'for the taxes of 1871, amounting to $29.19, and the subsequent taxes which had been paid for the years 1872, 1873, and 1874, amounting to $112.88; and the tax deed was recorded on May 20,1875. The principal objection urged by the plaintiffs against the tax [139]*139■deed is to that portion of the tax deed which reads as follows :
“Now, therefore, I, Wm. Y. Drew, the county clerk of the county aforesaid, for and in consideration of the sum of $268.02, taxes, costs and interest due on said lands for the years 1871 to 1874 inclusive, to the treasurer paid as aforesaid, and the accrued interest, cost of advertising and making and recording tax deed, 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 J. D. Yawter, his heirs and assigns, the real property last hereinbefore described, to have and to hold unto him, the said J. D. Yawter, his heirs and assigns forever, subject however to all rights of redemption as provided by law.”
The only question which we need to consider in this case is, whether the tax deed in dispute is void upon its fáce, and so absolutely and utterly void that it could not be made good or be cured by the operation of the five years’ statute of limitations enacted for the cure of defective tax deeds, and by more than five years’ continuous possession of the property under the tax deed. Such statute of limitations is contained in § 141 of the tax law of 1876, which reads as follows:
“Sec. 141. Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.”
The limitation contained in § 116 of the tax law of 1868 is precisely the same, except that it is only two years instead of five.
It is first claimed that the tax deed is void upon its face for the reason that it is not in the exact form prescribed by the statutes. But the statutes do not prescribe any inflexible or unvarying form for tax deeds. It was decided by this court, as early as 1870, as follows:
“A tax deed is not void upon its face by reason of slight irregularities. The statute does not require that a tax deed [140]*140shall be in the exact form prescribed by the statute, but only substantially in that form.” (Bowman v. Cockrill, 6 Kas. 311, 324, 325.)
And this decision has ever since been followed. A slight or unimportant departure from the statutory form of a tax-deed will not invalidate the tax deed or render it void upon* its face.
It is also claimed that the stated consideration for the tax deed is excessive. Now, even if this were true, the tax deed does not show it upon its face. The tax deed was for the-taxes for the years 1871, 1872, 1873, and 1874, and for all lawful penalties, costs and interest thereon up to the date of the execution of the tax deed. The amount of the taxes for the year 1871 is shown; also the aggregate amount of the taxes for the three years 1872, 1873 and 1874 is shown, but all without the penalties, costs and interest thereon; and what the separate taxes for any one of these three years were, or what the penalties, costs or interest thereon were, is not shown. The bulk of the aggregate amount of the taxes paid for these-three years may have been paid for and in the year 1872, ^nd may then have drawn interest at the rate of 50 per cent, per annum up to the date of the tax deed, which was executed in. 1875. (Laws of 1869, chapter 122.) Hence the real consideration for the tax deed may have been largely more than that expressed in the tax deed.
It is further claimed that the tax deed shows that the costs of the making and recording of the tax deed were placed in-the tax deed as a part of the consideration therefor. If this were true, we would think it would be erroneous; but it cannot make any difference whether it is true or not in this case.. The plaintiffs and their grantors never offered to-redeem the-land from the taxes, but they permitted the parties claiming under the tax deed to hold the property for more than five years,, without any offer from them to redeem it from the taxes, and if they should now recover the property they would have to pay the costs of the tax deed and for recording the same. (Tax Law of 1868, § 117; Tax Law of 1876, § 142.) Indeed, the-[141]*141tax deed had been executed and recorded more than 13 years when this action was commenced, and it does not appear that any offer was ever made to redeem the land from the taxes.
Still another question is presented by the plaintiffs. It appears that James Mabon was the purchaser of the land in controversy at the tax sale in 1872, and he assigned his tax-sale certificate to J. D. Vawter on May 20, 1874, and the tax deed, which was executed and recorded in 1875, recites that the taxes for the years 1872, 1873 and 1874 were “paid by the purchaser, as provided by law.” Now the taxes of 1874 were not due when the assignment was made, and they were probably paid, when they became due, by the assignee of the purchaser; but whoever may have paid them, they were evidently paid for the benefit of the holder of the tax-sale certificate, and the recital in the tax deed, which was in exact conformity with the form prescribed by the statute, whether strictly accurate or not, will not render the tax deed void under the facts of this case. While the plaintiffs claim that the form prescribed by the statute for tax deeds should have been strictly followed in all the other cases, yet they claim that it should not have been followed in this particular instance, and possibly it should not. But the statute further provides, that no “mere irregularity of any kind in any proceeding shall invalidate any such proceeding or the title conveyed by the tax deed.” (Tax Law of 1868, § 113; Tax Law of 1876, § 139.) See also the sections of the statutes heretofore cited.
The judgment of the court below will be affirmed.
All the Justices concurring.