The opinion of the court was delivered by
Brewer, J.:
This case turns upon the validity of a tax deed. The district court found in favor of its validity. Three principal questions are presented on the record. It is claimed in the first place, that under the pleadings it was error to admit this deed in evidence; in the second place, that the deed was void on its face; and in the third place, that if not void on its face, it was shown to be void by the testimony aliimde. Of these in their order.
statement of facts. [300]*3001. Admissibility issue; surprise, 2. No interest, noafflrmauve relief. [299]*299I. In reference to the first question the facts are these: The action was brought by plaintiffs below, who are plaintiffs *n error> under § 594 of the code. They alleged that they were the owners and in possession of the premises in controversy, that defendant set up and claimed [300]*300an estate and interest therein adverse to theirs, but that the same was null and void. The answer first denied specifically the ownership and possession of plaintiffs, then set up a single tax deed, and closed with a plea of the statute of limitations.. The deed set up in the answer was not the one afterward received in evidence and held valid. The latter was a subsequent deed given upon the same sale. The reply, which is very full, was obviously prepared on the supposition that all the tax deeds held by the defendant had' been specifically pleaded. While only one is set up in the answer, the reply frequently speaks of “each of said pretended deeds,” and also alleges, in obvious reference to the deed held valid, “that such last pretended deed is null and void because executed upon the same pretended sale, and for the same pretended consideration, for which the said first described pretended deed was executed.” It is apparent therefore that the plaintiffs were not surprised by the production of this second deed based upon the one sale. Was the deed improperly admitted in evidence? Counsel insjsts that defendant having plead the one deed, was limited in his evidence to that; that he had elected to rest his claims upon the one title, and had tendered an issue thereon. If the answer contained nothing but this single tax deed, there would be force in the argument. But it contains a specific denial of the plaintiffs’ ownership, in language as full and satisfactory as the allegation, of ownership in the petition. It thus tendered an issue upon that question, and upon such issue any evidence was competent which tended to show that the plaintiffs were not the owners. A voluntary conveyance from them, a sheriff’s, or a tax deed, whether running to the defendant or not, was evidence tending to show that the plaintiffs were not the owners, and therefore tending to defeat their right to maintain any action. Of course, if the title ran to some third party, without subsequently passing , , r . ,, , r . ° to the defendant, it would furnish no basis for granting him affirmative relief — it would simply tend to de-feat the plaintiffs’ action. We do not mean to say that proof that plaintiffs’ had no title, would necessarily defeat the action. [301]*301Their possession, if actual possession is shown, gives them a right to have adverse claims thereto determined. Branner v. Biglow, 8 Kas., 496; Giltenan v. Lemert, 13 Kas., 476. But testimony tending to show that the plaintiffs had no title, as well as that tending to show that they had no possession, is competent; and if they had neither title nor possession they' could maintain no action, even though defendant had no claim to the property. In other words, having no interest themselves, they could not litigate defendant’s claims.
II. A second proposition is, that the deed is void on its face. It recites a sale to the county, and an assignment of the certificate to defendant. It embraces a large number of other tracts of land. The objections to it are thus stated by counsel:
“ It does not, as required in statutory form, state the amount of the bid for each tract, or the sum paid for such assignment, or to whom paid, and is shown to be upon the consideration alone of one year’s tax.”
3 Tax deed; defective not necessarily void We think it does state the amount bid for each tract. It gives a table incorporated into the deed, and called schedule “A,” in one column of which is the description of the property, and opposite each tract is placed a certain amount in dollars and cents; and it declares that the “lands above described were severally bid off by the county treasurer of Jackson county for the several sums of money, dollars and cents, respectively placed opposite each respective tract in schedule hereto attached and marked ‘A,’ being the whole amount of taxes, interest and cost then due and remaining unpaid on each several tract of said real property respectively.” In reference to the sum paid for the assignment, and the party to whom it was paid,, the deed reads thus:
“And whereas, the county clerk of said Jackson county, state of Kansas, did, on the 11th of May 1868, in consideration of the several sums of money, dollars and cents, taxes,, interest and costs due respectively on said several tracts of land for the year 1862, paid in to the county treasurer of said county,” etc.
[302]*3024. Only one year's tax recited. Now this describes the place of payment as required by statute, (Laws of 1866, p. 277, § 74,) and indicates with sufficient precision the amount paid. The amount for which it was struck off to the county being given, as well as the date of such sale, the date of the assignment, the amount of taxes, interest and costs then due, is a mere matter of calculation. It would be no more certain if the calculation had been made and the result stated in figures. It might disclose an error in the calculation, but would such an error vitiate the deed? Bowman v. Cockrill, 6 Kas., 325. It must be remarked, that the statutory form does not include any statement of the amount paid for an assignment, nor indeed does it seem to have been prepared with reference to a sale to the county and a subsequent assignment by it of the sale certificate: Norton v. Friend, 13 Kas., 532; Magill v. Martin, supra, 67. As to the last suggestion, that it appears “to be upon the consideration alone of one year’s tax,” we know of no reason why that is not sufficient consideration. The sale is made for the nonpayment of one year’s tax; and if the owner of the land should see fit to pay the taxes of the subsequent years we do not see how that would invalidate the sale, or prevent a deed. If it did, a land-owner might with perfect safety omit the payment of his taxes every fourth year. We think therefore that the deed was prima faeie valid, and properly received in evidence.
5. Assessment roll; separate booms. III. The remaining proposition of counsel is, that the deed was shown to be void by evidence aliunde. And under this head it is insisted that the assessment-roll is not as required. Counsel for plaintiffs cite Comp. Laws of 1862, p. 862, § 21, “The assessor shall make a correct list of all the taxable property in his county, to be called a tax-roll.” This, counsel insists, must be a single paper, or book — that a number of fractions for the several cities and townships will not constitute such roll.
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The opinion of the court was delivered by
Brewer, J.:
This case turns upon the validity of a tax deed. The district court found in favor of its validity. Three principal questions are presented on the record. It is claimed in the first place, that under the pleadings it was error to admit this deed in evidence; in the second place, that the deed was void on its face; and in the third place, that if not void on its face, it was shown to be void by the testimony aliimde. Of these in their order.
statement of facts. [300]*3001. Admissibility issue; surprise, 2. No interest, noafflrmauve relief. [299]*299I. In reference to the first question the facts are these: The action was brought by plaintiffs below, who are plaintiffs *n error> under § 594 of the code. They alleged that they were the owners and in possession of the premises in controversy, that defendant set up and claimed [300]*300an estate and interest therein adverse to theirs, but that the same was null and void. The answer first denied specifically the ownership and possession of plaintiffs, then set up a single tax deed, and closed with a plea of the statute of limitations.. The deed set up in the answer was not the one afterward received in evidence and held valid. The latter was a subsequent deed given upon the same sale. The reply, which is very full, was obviously prepared on the supposition that all the tax deeds held by the defendant had' been specifically pleaded. While only one is set up in the answer, the reply frequently speaks of “each of said pretended deeds,” and also alleges, in obvious reference to the deed held valid, “that such last pretended deed is null and void because executed upon the same pretended sale, and for the same pretended consideration, for which the said first described pretended deed was executed.” It is apparent therefore that the plaintiffs were not surprised by the production of this second deed based upon the one sale. Was the deed improperly admitted in evidence? Counsel insjsts that defendant having plead the one deed, was limited in his evidence to that; that he had elected to rest his claims upon the one title, and had tendered an issue thereon. If the answer contained nothing but this single tax deed, there would be force in the argument. But it contains a specific denial of the plaintiffs’ ownership, in language as full and satisfactory as the allegation, of ownership in the petition. It thus tendered an issue upon that question, and upon such issue any evidence was competent which tended to show that the plaintiffs were not the owners. A voluntary conveyance from them, a sheriff’s, or a tax deed, whether running to the defendant or not, was evidence tending to show that the plaintiffs were not the owners, and therefore tending to defeat their right to maintain any action. Of course, if the title ran to some third party, without subsequently passing , , r . ,, , r . ° to the defendant, it would furnish no basis for granting him affirmative relief — it would simply tend to de-feat the plaintiffs’ action. We do not mean to say that proof that plaintiffs’ had no title, would necessarily defeat the action. [301]*301Their possession, if actual possession is shown, gives them a right to have adverse claims thereto determined. Branner v. Biglow, 8 Kas., 496; Giltenan v. Lemert, 13 Kas., 476. But testimony tending to show that the plaintiffs had no title, as well as that tending to show that they had no possession, is competent; and if they had neither title nor possession they' could maintain no action, even though defendant had no claim to the property. In other words, having no interest themselves, they could not litigate defendant’s claims.
II. A second proposition is, that the deed is void on its face. It recites a sale to the county, and an assignment of the certificate to defendant. It embraces a large number of other tracts of land. The objections to it are thus stated by counsel:
“ It does not, as required in statutory form, state the amount of the bid for each tract, or the sum paid for such assignment, or to whom paid, and is shown to be upon the consideration alone of one year’s tax.”
3 Tax deed; defective not necessarily void We think it does state the amount bid for each tract. It gives a table incorporated into the deed, and called schedule “A,” in one column of which is the description of the property, and opposite each tract is placed a certain amount in dollars and cents; and it declares that the “lands above described were severally bid off by the county treasurer of Jackson county for the several sums of money, dollars and cents, respectively placed opposite each respective tract in schedule hereto attached and marked ‘A,’ being the whole amount of taxes, interest and cost then due and remaining unpaid on each several tract of said real property respectively.” In reference to the sum paid for the assignment, and the party to whom it was paid,, the deed reads thus:
“And whereas, the county clerk of said Jackson county, state of Kansas, did, on the 11th of May 1868, in consideration of the several sums of money, dollars and cents, taxes,, interest and costs due respectively on said several tracts of land for the year 1862, paid in to the county treasurer of said county,” etc.
[302]*3024. Only one year's tax recited. Now this describes the place of payment as required by statute, (Laws of 1866, p. 277, § 74,) and indicates with sufficient precision the amount paid. The amount for which it was struck off to the county being given, as well as the date of such sale, the date of the assignment, the amount of taxes, interest and costs then due, is a mere matter of calculation. It would be no more certain if the calculation had been made and the result stated in figures. It might disclose an error in the calculation, but would such an error vitiate the deed? Bowman v. Cockrill, 6 Kas., 325. It must be remarked, that the statutory form does not include any statement of the amount paid for an assignment, nor indeed does it seem to have been prepared with reference to a sale to the county and a subsequent assignment by it of the sale certificate: Norton v. Friend, 13 Kas., 532; Magill v. Martin, supra, 67. As to the last suggestion, that it appears “to be upon the consideration alone of one year’s tax,” we know of no reason why that is not sufficient consideration. The sale is made for the nonpayment of one year’s tax; and if the owner of the land should see fit to pay the taxes of the subsequent years we do not see how that would invalidate the sale, or prevent a deed. If it did, a land-owner might with perfect safety omit the payment of his taxes every fourth year. We think therefore that the deed was prima faeie valid, and properly received in evidence.
5. Assessment roll; separate booms. III. The remaining proposition of counsel is, that the deed was shown to be void by evidence aliunde. And under this head it is insisted that the assessment-roll is not as required. Counsel for plaintiffs cite Comp. Laws of 1862, p. 862, § 21, “The assessor shall make a correct list of all the taxable property in his county, to be called a tax-roll.” This, counsel insists, must be a single paper, or book — that a number of fractions for the several cities and townships will not constitute such roll. Here four separate books were produced, indorsed respectively “Assessment-Roll of Jefferson township, 1862,” “Assessment-Roll of the Town of Holton, 1862,” etc. In each was a certificate of the as[303]*303sessor that such roll contained all the taxable property in such town or township; and it was also in testimony that the county was then divided into the three townships and one town, and that these four books embraced all the taxable property of the county. We fail to see anything in this to1 invalidate the assessment, when the entire county is assessed, and by the proper officer, and a proper authentication made of the assessment of-each township, and all returned to the proper officer. Surely, an omission to fasten these several assessments together into one roll, or book, can have wrought no prejudice to anybody, or in any direction. The assessment was sufficient.
6. Public records; presumption, when not to be found. Again, the county clerk was called as a witness and testified that he was unable to find in his office any proofs of the notices required by sections 32, 36, 37, 38, and section 55 of the tax law of 1862: that if any- . „ . , such -were m his office they ought to be m a certain bundle of papers, which he produced; that they were not in such bundle; that he could not say they were not in his office, but that if they were he had never seen them; and that when he first took possession of the office he had sorted over the files and papers, and placed them in proper packages, where they since had been kept, and that he was certain he had placed in the package produced all papers relating to such matters; that before the new court-house was built, and while in the old court-house, some papers had been eaten by rats. He was also asked whether bills had not been presented and paid by the county for the publication of such notices; but the-court sustained an objection to such testimony. The notice required by section 32 is a notice of the amount of the different taxes on each hundred dollars’ valuation, and also-of the day on which the treasurer will attend in each township for the purpose of receiving taxes. This notice is required to be posted at each place of holding elections, and to be published for four weeks in some newspaper having circulation in the county. There is no express direction to any officer to take and preserve any proofs of the publication or [304]*304posting of this notice. Sections 36, 37 and 38 require a notice of the sale for taxes, which notice is to contain a list-of the property to be sold. Posting and publication are also required of this notice. Affidavits of both such posting and publication are specifically required to be made and preserved. Section 55 provides for a notice of the expiration of the time limited for redemption, which notice is to contain a list of the unredeemed lands and lots, with the amount of taxes and interest calculated to the last day of redemption. Publication or posting is required of this notice, but there is no specific direction to any one to take and preserve proofs thereof. There is however in §47 a general direction to the county treasurer to “file with the county clerk all affidavits, notices and papers in reference to such tax-sale, to be preserved by him.” Upon this two questions arise: First, Was the failure to find these notices in the county clerk’s office proof that they never existed ? If so, was the omission to give these notices fatal to the validity of the sale and deed? We shall rest our decision upon the answer to be given to the first -question. It is probably true, that when notices, affidavits, etc., are directed to be preserved in a given office, a failure to find them there raises a presumption that no such documents ever existed. Hall v. Kellogg, 16 Mich., 135. But this presumption is by no means conclusive. It amounts simply to prima faeie evidence. The deed on the other hand is prima facie evidence that they did exist, and were duly and legally given and made. More than that, the testimony of the clerk as to the destruction of papers, weakens the force of the presumption from his failure to find them. No attempt was made by plaintiffs to introduce other testimony. No examination was made of the treasurer’s office; no inquiry of the party who was treasurer at the time of the sale, or his deputies, or of the party who was then county clerk. None of the publishers of the newspapers. Under these circumstances we cannot say that the court erred in finding upon this question against the plaintiffs.
[305]*305
8. Contracts "by inTsesforners safe^certlfi-of .
[307]*3079. where assignmadeta'accorarecimrements it is raiid. [304]*304One other point remains, and that, like the last, is not free [305]*305from difficulty. As heretofore stated, the sale was made to the county, which afterward assigned the sale-certificate to the defendant. The assignment was made in ° pursuance of a contract between the commissioners and defendant, for the sale of a large number of sale-certificates held by the county. The proposition of defendant, which was accepted by the commissioners, was substantially as follows: He proposed to buy all the claims for delinquent taxes “belonging to Jackson county on the following terms: I will pay for all correct and regular descriptions, for all sales for the years 1861,1862,1863,1864, 1865, and 1866, the amount required by law to redeem the same, provided that all claims other than .the above, and to include the sales for 1858, 1859, and 1860, and irregular or defective descriptions since, shall be quitclaimed to me for $100. Payment shall be made as follows, to-wit, $1,000 in hand, $1,000 per month thereafter until the whole is paid.” Payments were to be secured by bills of exchange drawn on and accepted by some responsible banker in Leavenworth. The amount of this purchase was about $14,000, and about one-twentieth of this amount consisted of irregular and defective descriptions, and of sales for years prior to 1861. The sale-certificates in this case were in evidence. They were in all respects, both as to form and amounts, as they would have been if defendant had had no such contract with the county, and was only the purchaser from the treasurer and clerk in the manner provided for in the statute. Upon these facts counsel for plaintiff in error claims, that “defendant’s lump trade with the county commissioners for all they had on hand was neither authorized by law, ñor, tolerable in good policy; that the right to purchase was alone from the treasurer; the commissioners had no authority whatever in the premises.” Defendant on the other hand insists that the contract was good; but if not good, that it can have no effect in this case, because the treasurer and clerk did no more than they were compelled to do, that is, transfer the certificate upon the payment of the amount necessary to redeem. In other words, [306]*306he insists that the invalidity of the contract can affect only those cases of sales before 1861, and of irregular and defective descriptions which were quitclaimed for $100; for those, and those only, were transferred for less than the amount legally due. It would seem to follow from the decisions already made in this court, and to appear from the provisions of the statute, that this contract between the defendant and the commissioners was ultra vires. The commissioners, it is true, are in a certain sense the general agents of the county. That is, to them is committed the general superintendence and management of the affairs of the county. There are however many limitations upon this general control. One is, that they cannot interfere with duties specifically assigned to a given officer. They may not direct what instruments the register of deeds shall record, what fees he may charge, or what certificates give. They may not control the county attorney in the prosecution of criminal actions. Nor can they give receipts for taxes, or assign sale-certificates. These are duties assigned to particular officers, and the manner of their discharge specifically indicated. Comp. Laws, p. 865, §33; p. 867, §§43, 44; Laws of 1866, p. 274, §§60, 61; p. 277, §§73, 74; Gen. Stat., p. 1045, §§77, 78; p. 1048, §§ 90, 91. “Whenever any person shall pay into the county treasury a sum of money or warrant of the appropriate fund, or county orders equal to the cost of redemption at that time, or any such tract of land or town lot,” is the language of the statute in reference to the assignment of a certificate of sale. Laws of 1866, p. 277, § 74; Gen. Stat., p. 1048, § 91. The statute having thus designated the officers to discharge this duty, and the manner of its discharge, the commissioners have no authority to interfere. They can no more make a valid contract in reference to the matter than they could one with reference to the fees the register of deeds should charge a third party for recording his deeds and mortgages. The State v. Magill, 4 Kas., 415; The State v. MaCrillus, 4 Kas., 260; Clough & Wheat v. Hart, 8 Kas., 487. Though the property which cannot be sold to individ[307]*307uals at a tax sale is struck off to the county, it does not become thereby like ordinary property of the county, subject to the control of the commissioners. If the purchase was an absolute purchase by the county, with a view of acquiring a perfect title, it would seem to follow that the county should be responsible to the townships, school districts, and the state for their proportion of the taxes upon the property purchased, and that the county should be permitted as a result of its purchase to subsequently obtain a deed. But see to the contrary, Judd v. Driver, 1 Kas., 455; The State v. Gomm’rs of Atchison Go., 1 Kas., 479; The State v. Magill, supra; Guittard Township v. Gomm’rs of Marshall Go., 4 Kas., 389; Sapp v. Morrill, 8 Kas., 677; Tarr v. Haughey, 5 Kas., 626. The contract therefore was ultra vires, and void. Douglass acquired no rights by such contract, nor was the treasurer or clerk justified thereby in disregarding the provisions of the statute. Other parties than the county are interested in the full payment of taxes. City, and township, and school-district, are alike concerned. We do not hold that the contract was against public policy, or good morals. It might be well if authority was given, once in a while, to some county officials to dispose as best they could of all the interest of the county in such back tax sales. But there was no such authority at the time of this contract, and hence it was without warrant of law, and void. But how does this affect the validity of assignment of the sale-certificates in this case ? It seems to us that the result follows, as is claimed by the defendant, that the assignments were good for which full payment was made, and that the others alone are subject to attack. This contract was void. It was as though ncine had been made. It is not pretended that the treasurer and clerk were parties to this contract with defendant; and the authorities cited by counsel, as to the entirety of certain contracts, are not applicable. The assignments the treasurer and clerk executed were the only contracts they entered into. They assigned some certificates, receiving full payment therefor. This was legal, and passed full title [308]*308to the assignee. Others they assigned, receiving only part of what they should have received. This was illegal. "Whether they rendered themselves liable for the difference between the amount received and that which should have been received, or not, whether the assignments passed a good title or not, whether they can be avoided or not, and whether Douglass would be responsible to the county for the above difference or not, are questions into which it is unnecessary, and would therefore be improper, for us to enter. It is enough in this case that the assignments were for a full and sufficient consideration.
These are all the questions necessary for determination in this case, and there appearing as to them no error in the ruling of the district court, the judgment will be affirmed.
All the Justices concurring.