by the execution of an irregular and improper | deed for the same land, with other tracts, deed." Douglass v. Nuzum, 16 Kan. 525.

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. St. 1901, § 7714; Tweedell v. Warner, 43 Kan. 597, 23 Pac. 603.

therefor showing upon its face a separate sale | to the admission of the facts as true which, for each tract; that the county clerk by mistake or inadvertence included the land in controversy in a deed with another tract sold separately therefrom and for a different consideration, causing the deed, dated October 1, 1892, to state a sale in gross for said lands; that thereafter Hoover, to correct said error, demanded of and received from the county clerk the tax deed dated April 18, 1894. The plaintiff admitted that Hoover and the county treasurer would testify to these facts, and that the books and records of the office of the county treasurer would show that Hoover purchased at said sale several tracts each for a different consideration, including the one in controversy, 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. The plaintiff, however, objected to the introduction of all this evidence as incompetent, irrelevant, and immaterial, which objection the court sustained. No further evidence was offered by either party. The court held that all rights acquired under the first deed were merged in the second, and that the second deed, having been issued on the sale and more than four years thereafter, and containing no recital to toll the statute concerning floating liens, or that it was issued to take the place of the first deed, was therefore void and conveyed no title. Judgment was thereupon entered setting aside the tax deeds, but granting Young a prior lien for the amount of taxes paid, and decreeing to the plaintiff the foreclosure of the mortgage.

E. H. Madison and L. A. Madison, for plaintiffs in error. T. A. Scates and Albert Watkins, for defendant in error.

SMITH, J. (after stating the facts as above). The admissions of fact in this case leave nothing but a question of law to be determined. After the mutual admission of detailed facts, which are recited in the statement attached hereto, 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 the reply under oath. The execution of the deed is therefore admitted in the form and with the contents as pleaded. Code Civ. Proc. art. 8, 108 (Gen. St. 1901, § 4542). It was not necessary therefore to introduce this deed in evidence. Pending 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 dis

The court, however, held, following the dictum in Park v. Hetherington, 9 Kan. App. 312, 313, 61 Pac. 328, that section 7714, supra, being the first section of an act entitled "An act to avoid floating liens on real estate," adopted in 1881, is a limitation of 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. Section 7714, Gen. St. 1901, has no reference whatever to the time of issuing a tax deed or to the validity of a tax deed. This section was enacted as section 1, c. 114, p. 218, Laws 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 in all subsequent compilations of the statutes and under the title. 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 purchase 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 cannot be issued until three years after the sale; but the general statute of limitations, as we have seen, 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 expressly provided in section 4 of the floating liens statute (section 7717, Gen. St. 1901), in effect, that an invalid tax deed shall preserve the lien.

The only justification for the dictum in

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 circumstances 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 in the action. All the Justices concur.

On Motion for Rehearing.

Pac. 328 (see, also, Tweedell v. Warner, 43 | invalid deed, he might do so without any acKan. 604, 23 Pac. 603), is an assumption that tion within that time at least. a tax deed could not be issued after the lien for the taxes had expired. Assuming the correctness of this proposition, when 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. 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. 525, 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: 66*** 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 belongs 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."

Suppose that the county clerk in this case 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 have brought 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. Code Civ. Proc. Subhead 6, § 18, is the only limitation applicable, and it is five years from the issuance of the defective deed. His cause of 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

It is a prerequisite to entitle a person to a tax deed that he have a lien for taxes on the land to which he claims the deed. If any expression in the opinion is susceptible of a contrary construction, it is modified as herein stated.

It appearing that the defendant in error desires to litigate the question whether the proceedings up to the execution of the first tax deed were regular and legal, and that this issue was not tried for the reason that both parties relied upon the legal question of the validity of the second deed, the final order in this case will be modified as follows: The judgment of the court is reversed, and the case is remanded, with instructions to grant a new trial. All the Justices concur.

On Motion to Modify Order Allowing New

Trial.

PER CURIAM. The first tax deed in question issued was confessedly void on its face. The second tax deed is valid upon its face. On the ex parte application of defendant in error that he desired to set up and try questions not appearing upon the face of the second tax deed to show that the steps leading up to the issuance of the tax deeds were void, the court modified the order in the first opinion and ordered the case remanded, with instructions to grant a new trial. Thereupon the plaintiffs in error filed a motion to modify the judgment. Notice of the hearing thereof was given and reargument had.

The defendant in error and his grantors had five years, under section 7680, Gen. St. 1901, to bring an action to defeat or avoid the tax deed. There was no occasion to bring such action as against the first tax deed, as it was void upon its face; but upon the issuance of the second tax deed, valid upon its face, the necessity of such action arose, if the claimant of the legal title desired to contest its validity. The five-year limitation ran from the time of the issuance of the second

of tax, interest, and penalty for which each after it has been on record more than five years separate tract was sold and conveyed, the deed, will be deemed sufficient in this respect, where the amounts for which the separate tracts were sold are stated, and the amount for which each guage used in the deed, aided by all proper inwas conveyed can be determined from the lanference, although not stated in the granting clause.

from the issuance of such deed before the | 1901, § 7677) requires a statement of the amount bringing of this action. It has frequently been decided that, where a tax deed is valid upon its face and has been of record, and parties have been in possession under it more than five years, no infirmity which does not appear upon its face can be litigated. This well-established rule would preclude any attempt on the part of the defendant in error to establish such infirmity in this case. Hence a new trial would be absolutely fruitless.

The order on the motion for a rehearing is withdrawn, and the order in the original opinion that the case be remanded, with instructions to render judgment in favor of the plaintiffs in error, is reinstated.

[Ed. Note. For other cases, see Taxation, Dec. Dig. § 768.*]

2. TAXATION (8 762*)-TAX DEEDS-VALIDITY

-STATEMENT OF AMOUNT FOR WHICH CON-
VEYED.

A tax deed included two adjoining tracts. It stated the amount for which each tract was bid off for the county in September, 1894, the amount for which the certificate upon each tract was assigned to the purchaser in July, 1897, and the consideration for which both tracts were conveyed September 30, 1897, reciting that it was for the taxes, costs, and interest due on the land for the years 1893, 1894, and 1895. The proportion between the amounts for which the Nov. 24, 1909.) respective certificates were assigned appears to be the same as the proportion between the amounts for which the different tracts were sold.

ALLIANCE CO-OPERATIVE INS. CO. v.
CORBETT.
(Supreme Court of Kansas.
Modification of opinion.

For original opinion, see 69 Kan. 564, 77 It is held that a small excess in the gross conPac. 108.

PER CURIAM. The court's attention has been called to a defect in the statement of this case contained in the original opinion filed June 11, 1904, and in the report of the decision contained in 69 Kan., at page 564, 77 Pac. 108. It is there said that the agent took a written application for insurance upon sundry "articles of personal property in the aggregate sum of $2,750." The application in fact covered improvements upon real property, consisting of a stone barn, with shingle roof, and shed attached, and a shingle-roof frame corn crib. The insurance applied for on these buildings made up $700 of the aggregate stated, and the judgment in favor of the plaintiff was based in part upon their destruction by fire. The last line on page 565 of the report of the case in 69 Kan. (see 77 Pac. 109) should read "articles of real and personal property," etc. It is more than likely the words "real and" were dropped through a stenographic error when the preliminary draft of the opinion was copied for filing, and the omission was not detected, because no point was made in the case on the character of the property insured. The error might become important in cases not involving chapter 142, p. 320, Laws 1897, fixing the liability of fire insurance companies in certain cases.

POLKOSKY et al. v. KESSLER. (Supreme Court of Kansas. Nov. 6, 1909.) 1. TAXATION (§ 768*)-TAX DEEDS-VALIDITY -STATEMENT OF TAX AND PENALTY FOR SEPARATE TRACTS-RECORDING.

Although the statute authorizing the county clerk to include in one tax deed several tracts of land sold to the same purchaser (Gen. St.

sideration stated in the deed over the sum of
the amounts for which the assignments were
made may be apportioned in the same ratio, and
that the amount for which each tract was con-
veyed can, by the aid of the liberal presump-
tions indulged to support a tax deed after the
period of limitations has expired, be determined
by proportion.
[Ed. Note. For other cases, see Taxation, Dec.
Dig. § 762.*]

(Syllabus by the Court.)

Error from District Court, Trego County; J. C. Ruppenthal, Judge.

Action by Rufus G. Kessler against Frank Polkosky and another. Judgment for plaintiff, and defendants bring error. Reversed,

with directions.

W E. Saum and John E. Hessin, for plaintiffs in error. Lee Monroe and George A. Kline, for defendant in error.

BENSON, J. This action was commenced by Rufus G. Kessler, plaintiff, to recover two adjoining quarter sections of land from Frank Polkosky and wife, defendants, who were in possession under a tax deed purporting to convey all the land, and a sheriff's deed upon one quarter section of it. The plaintiff owns the fee unless divested of all or a part by the conveyances named.

The tax deed was issued in September, 1897, upon a tax sale held on September 4, 1894, for the taxes of 1893, made to the county. The certificates, with the taxes of 1894 and 1895 charged thereon, were assigned to the purchaser on July 8, 1897. The deed included both tracts, and the district court held that it was sufficient in all respects, except that it did not state the consideration for the conveyance of each tract separately. The deed recited the separate proceedings with respect to each tract, the amount for which each was sold, and the amount for which the

September 30, 1897, a period of 84 days. This excess also includes 20 cents, or 10 cents on each tract, which we must presume was for accruing fees.

tax sale certificate for each was assigned. tract numbered 2 for 1895 are supposed to In the granting clause, however, the consid- have been $1, and for 1896, $21. Computing eration for the conveyance of both tracts is the interest on these amounts from the date stated in one gross sum, viz.: "Eighty five the delinquent taxes were properly charged dollars and seven cents, taxes, costs and in- against the land, and including the other terest due on said land for the years A. D. items about which there is no dispute, and 1893, 1894 and 1895, to the treasurer paid as adding 10 cents for costs upon each tract, aforesaid." The statute provides that sev- it is shown that $43.43 was due July 8, 1897, eral tracts may be included in one tax deed, on tract No. 1, and $39.23 on tract No. 2, "stating the amount of tax, interest and pen- being the amounts stated in the certificates. alty for which each separate tract is sold and In another of these computations it is supconveyed. ***" Gen. St. 1901, § 7677. posed that the taxes on tract No. 1 were $1 The deed recites that one tract was bid in in 1895 and $23.36 in 1896, and on tract No. by the treasurer for $10, and the other for 2, $18.66 in 1895, and $1 in 1896. Adding $11.08, and that the assignments of the cer- the other items, and computing the interest tificates were for $39.23 and $43.43, respec- as before, the same result is reached. Other tively. The aggregate of these sums is $2.41 tables are presented varying the amounts of less than the consideration recited in the the taxes in each year upon each tract, regranting clause of the deed. This excess of sulting in the same amounts due upon each $2.41 includes the interest on the taxes of tract on July 8th, and so it is argued that 1894 and 1895 charged against the land be- it is impossible to determine from this deed fore the date of the assignment accruing be- what the taxes for these intervening years tween that date and the date of the deed, upon each tract were, and that without this knowledge we have no basis upon which to compute the interest between the date of the assignment and the date of the deed, and hence that it cannot be determined how much for each tract. If the computations for the of this $2.41 entered into the consideration first illustration given above are carried out, first illustration given above are carried out, the consideration for tract No. 1, at the date No. 2, $40.43, totaling $85.07, the consideraof the deed, would be $44.64, and for tract No. 2, $40.43, totaling $85.07, the consideration in the deed; while the computations for the second illustration, carried out, would give $44.74 as the consideration for tract No. 1, and $40.33 for tract No. 2, a total of $85.07. Thus, from these two extreme illustrations, it will be observed that a possible variation of 10 cents might have existed in the consideration for each tract at the date of the deed, and it is contended that this renders the deed void. This possibility is based upon the presumption that the taxes upon one of these tracts varied from $20.75 in one year to $1 in the next, and will not be indulged to defeat a tax deed of record for more than five years. Presumptions are not to be indulged to defeat such a deed. On the contrary, its recitals will be liberally construed to uphold it. Penrose v. Cooper, supra; Rynearson v. Conn, 77 Kan. 160, 94 Pac. 205; Gibson v. Larabee, 77 Kan. 243, 94 Pac. 216; Dye v. Railroad Co., 77 Kan. 488, 94 Pac. 785; Robert v. Gibson, 99 Pac. 595. Where the consideration stated in a tax deed is less than the true amount, the conveyance is not made void thereby (Bowman v. Cockrill, 6 Kan. 311; Davis v. Harrington, 35 Kan. 196, 10 Pac. 532; Jones v. Garden City [just decided] 104 Pac. ),1 and, if the consideration is excessive, the deed is not avoided if such excess can be accounted for by including charges that would have to be paid by the owner before recovering the property, although they ought not to be in

The proportion between the amounts for which the respective tracts were sold is practically the same as the proportion between the amounts for which the certificates were assigned. The variance is only 3 cents, which may be accounted for by rejecting or carrying out the fractions of a cent in computation (Troyer v. Beedy, 100 Pac. 476), or by the fact that fees accruing after the tax sale were charged equally upon each parcel. The proportion existing at the tax sale continuing at the date of the assignments naturally leads to the conclusion that the interest accruing afterwards should be likewise apportioned. The amount paid upon the assignment of the certificate on each tract, plus this proportion of this accruing interest, and 10 cents for fees, would be the consideration for its conveyance. The omission of express recitals in such a deed which has been of record for more than five years is not fatal, if other recitals, when given a fair and liberal construction, supply the omission. Penrose v. Cooper, 71 Kan. 725, 81 Pac. 489, 84 Pac. 115; Gibson v. Trisler, 73 Kan. 397, 85 Pac. 413; Havel v. Abstract Co., 76 Kan. 336, 91 Pac. 790; Robbins v. Brower, 74 Kan. 113, 85 Pac. 815; Fullington v. Jobling, 75 Kan. 817, 88 Pac. 968; Gibson v. Ast, 77 Kan. 458, 94 Pac. 801; Gibson v. Freeland, 77 Kan. 450, 94 Pac. 782.

It is argued that this proportion might have been different in one or both of these intervening years, and yet the aggregate of taxes and interest for both years might have been in the same proportion at the date of the assignments as at the date of the tax sale, and various computations to show this result are presented. In one of these computations the taxes for 1895 on tract numbered 1 are supposed to have been $20.75,