Reed v. Morse

51 Kan. 141

• Court: Supreme Court of Kansas
• Decided: January 15, 1893
• Status: Published

Opinion

The opinion of the court was delivered by

Allen, J.:

The only question we deem it necessary to consider in this case is whether a tax deed, signed by the county clerk, but without the seal of the county attached thereto, is void or not. The statute requires the county clerk to execute in the name of the county, under his hand and seal of the county, to the purchaser, a deed for lands sold at tax sale. The deed under which defendants claim has the signature of the county clerk, but has no seal. While, as has been held by this court, where parties have been in possession for a long time, in this case nearly 15 years, under a tax deed, the court will construe the terms of the deed liberally for the purpose of upholding it, in this case the question is whether a tax deed was in fact executed. This question was passed on by the supreme court of Nebraska in the case of Sutton v. Stone, 4 Neb. 319, and a tax deed without the seal of the county was held void. In the case of Bowers v. Chambers, 53 Miss. 259, a tax collector’s deed without a seal was held valid, but it was so held because the form prescribed by statute did not require a seal. The attestation clause in the form prescribed by our statute reads: “ In witness whereof, I, C. D., county clerk as aforesaid, by virtue of authority aforesaid, have hereunto subscribed my hand and affixed the official seal of said county,” so that case is not an authority in point. On the other hand, the case of Day v. Day, 59 Miss. 318, holds that an auditor’s deed without the official seal attached is void. The requirement of the statute, that a seal of the county be attached, is just as positive as the requirement that it shall be signed by the county clerk, and without such seal we must hold the deed void. It is unnecessary to consider the other questions.

The judgment will be reversed, and a new trial ordered.

All the Justices concurring.