
    Charles E. Gibson, Appellee, v. P. H. Young et ux., Appellants.
    
    No. 15,747.
    Tax Deeds — Second Deed — Recorded Five Years — Time of Issuance — Reference to First Deed. A tax deed which was issued more than four years after the date of the tax sale, and which does not recite the issuance of an invalid deed within that time, held, after having been recorded for five years, to be good upon its face and not open to attack by extraneous evidence.
    Appeal from Ford district court; Gordon L. Finley, judge.
    Opinion on rehearing, filed November 6, 1909.
    First opinion (Young v. Gibson, 80 Kan. 264) affirmed.
    
      E. H. Madison, for the appellants.
    
      Thomas A. Scates, and Albert Watkins, for the appellee.
   Per Curiam:

The first tax deed issued was confessedly void on its face. The second tax deed is valid upon its face. On the ex parte application of the appellee 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 appellants filed a motion to modify the judgment. . Notice of the hearing thereof was given and reargument had.

The appellee and his grantors had five years, under section 7680 of the General Statutes of 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 tax deed. More than twice five years elapsed from the issuance of such deed before the bringing of this action. It has frequently been decided that where a tax deed is valid upon its face, and has fyeen 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 appellee 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The order on the motion for a rehearing is withdrawn, and the order in the original opinion that the case be remanded with instructions to render judgment in favor of the appellants is reinstated.  