
    B. C. McQuesten and others v. F. M. Swope.
    July Term, 1873.
    2. Taxation: Assessment: Several Tracts as One. An assessment and sale of several town lots as one tract may be perfectly good, and a deed made upon such a sale is- not avoided by the mere showing that several lots were thus assessed and sold.
    
    ■.2. -: Assessment and Sale: Identity of Property. There must be a fixed relation between the real estate assessed and the real estate sold. That sold must be the same tract as that assessed, or some definite portion or fraction thereof, so that by a mere division or subtraction the amount of tax chargeable on the property sold can be determined from •the assessment roll.
    
      3. -: Excessive Taxes. Where the sale is for a sum in substantial excess of the legal tax, penalty, and charges, such sale, and the deed given in pursuance thereof, are inoperative to transfer title.
    
    [4. Taxation: Deed: Evidence. A tax deed, regular on its face, is prima facie evidence of the regularity of all the prior proceedings, and can only be avoided by showing some actual and substantial defect in the proceedings.]
    Error from Eranklin district court.
    Ejectment brought by Swope, to recover six lots in the city of Ottawa. *Trial at the March term, 1872, of the district court. Swope showed title in himself by a regular chain of conveyances from the government, and rested. On the part of the defense a tax deed was offered and read in evidence, executed May 20, 1870, by the county clerk of Franklin county to George D. Steinburgh, as grantee. The commencement, and a part of the recitals of said tax deed, are as follows: “Know all men by these presents, that whereas, the following described real property, viz., lots numbers 20, 22, 24, 26, 28, and 30, in block 107, in the city of Ottawa, situated in the county of Franklin and state of Kansas, was subject to taxation for the year 1866; and whereas, the taxes assessed upon said real property for the year 1866 aforesaid remained due and unpaid at the date of the sale hereinafter named; a,nd whereas, the treasurer of said county did, on the eighth day of May, 1867, by virtue of the authority in him vested by law, at [an adjourned sale of] the sale begun and publicly held on the first Tuesday of May, 1867, expose to public sale at the county-seat in said county, in substantial conformity with all the requisitions of the statute in such case named and provided, the real property above described, for the payment of the taxes, interest, and costs then due and remaining unpaid on said property; and whereas, at the time and place aforesaid, no person bidding on the same, it was purchased by Franklin county, state of Kansas, for the sum of $5.79, being the whole amount of taxes, interest, and costs then due and remaining unpaid on said property, for lots Nos. 20, 22, 24, 26, 28, 30, block 107, in the city of Ottawa, therefore the said property was stricken off to Franklin county at that price; and whereas, the said Franklin county did, through its clerk, on the twentieth of May, 1870, duly assign,” etc. The plaintiff had judgment for the possession of the lots.
    
      Sears é Maxwell, for plaintiffs in error, contended that the tax deed was valid, and that irregularities in the assessment, advertisement, and sale did not vitiate the proceedings of the *assessor and treasurer; and they cited Eoss v. Eeed, 1 Wheat. 482; Wilkes v. Dinsman, 7 How. 132; Minter v. Crommelin, 18 How. 88; Scott v. Watson, 22 Ark. 556; Simpson v. Dali, 3 Wall. 460; Bowman v. Cockrill, 6 Kan. *341; Olcott v. Pmbinson, 21 N. Y. 150; Wright v. Sperry, 21 Wis. 336; Black v. Chicago & N. W. B. Co., 18 Wis. 219.
    
      Hoffman d Deford, for defendant in error,
    contended that the proceedings and acts upon which the tax deed is based are irregular and illegal; that “the validity of a tax title depends upon the regularity of all the proceedings in the series of acts necessary to the consummation of the title, and the course pursued must be consistent with itself throughout the entire proceeding; that any variance-in this respect will be fatal to the validity of the sale, ” — citing Blackw. Tax Titles, 278, 389, 390. And they contended that the six lots were illegally assessed and sol-d together, being valued and sold at a gross sum; and they cited Pitkin v. Yaw, 13 111. 253; Willey v. Scoville, 9 Ohio, 43; Andrews- v. Senter, 32 Me. 394; Woodburn v. Wireman, 27 Pa. St. 18.
    
      
      . A tax deed which shows upon its face that two or more separate and distinct toacts of land were sold together, is void upon its face. Hall v. Dodge, 18 Kan. '277; Mathews v. Buckingham, 22 Kan. 169. A substantial compliance with the law is sufficient. Haynes v. Heller, post, *381. Deed showing sale of an undivided interest, held void. Corbin v. Inslee, 24 Kan. 154. Deed for separate tracts, when valid, Watkins v. Inge, 24 Kan. 612. See, also, Cartwright v. McFadden, 24 Kan. 682. Deed held not to show a sale in gross of separate tracts. Walker v. Boh, 32 Kan. 354; S. C. 4 Pac. Hep. 272.
    
    
      
       Where a tax sale is made for a sum in substantial excess of the legal tax, penalty, and costs, the owner of the land may, unless prevented by the statute of limitations, maintain an action to quiet title against the holder of the tax deed issued upon such sale, upon tender to him of the legal tax, penalty, costs, and interest. Herzog v. Gregg, 23 Kan. 726. Excessive advertising fee, effect. Geuthner v. Lewis, 24 Kan. 309.
    
   Brewer, J.

This case turns upon the validity of a tax deed. As this deed was executed and recorded less than two years prior to the commencement of the action in the district court, the statute of limitations is outside the ease. The deed being regular on its face isprima facie evidence, under the statute, of the regularity of all the prior proceedings, and can only be avoided by showing some actual and substantial defect in those proceedings. No mere irregularity is sufficient. There was a general finding in favor of the defendant-in error, and against the tax deed. Of course, then, if any of the objections raised to the deed are good, the judgment will have to be-affirmed. The plaintiff offered the following testimony, and outside of the deed itself it was the only testimony bearing on the matters-therein referred to:

Milo R. Harris, deputy treasurer, testified: “I have been *a-deputy in the county treasury since December, 1867. [Here a book was handed to the witness.] This book is the tax roll of Franklin county, Kansas, for the year 1866. <1 cannot state the-amount of tax on the lots 20 to 30, inclusive, in block 107, in Ottawa, for 1866, as it was extended for a number of lots, including these, in an aggregate sum. A large number of lots, these six included, were assessed to M. J. Stimpson. These six lots were valued at $120. [Here another book was handed witness.] This is the record of tax sales, showing that these six lots were sold at $5.79‘, on May 8, 1867.” The plaintiff then read in evidence an extract, from said tax roll book of 1866 in the words and figures following, to-wit: “Lots 20 to 30, block 107; number of lots, 6; value per lot, $20; total valuation of these six lots; $120; total valuation of $80 worth of personal property, these 6 lots, and 15 other lots, $245; state tax, 98c.; state school tax, 25c.; county tax, $1.96; county school fund, 49c.; No. of district, 30; school-district tax, $3.06; delinquent road tax, 82c.; total tax, $7.56; penalty, 10 per cent., 76c. All the said lots and personal property are entered assessed to M. J. Stimpson.” The plaintiff then read in evidence an extract from the above-named record-book of tax sales on May 8, 1867, as follows: “No. of certificate, 79; date of sale, May 8, 1867; name of owner, M. J. Stimpson; lots 20 to 30, in block 107, sold for $5.79; purchased by Franklin county, and afterwards, on May 20, 1870, assigned to A. Hammatt for the sum of $8.05.”

Afterwards Hammatt assigned the certificate to T. C. Sears, who took the deed in question. It appears that six lots were sold together as one tract, and for a sum in gross. This may or may not be good, depending on circumstances unnecessary to consider here. Of course, if a sale of the six as one is good, an assessment in like manner will be sufficient. But there must be a fixed relation between the property assessed and the property sold. The property sold must be the same tract as that assessed, or some definite portion or fraction of it, so that by a mere division or subtraction the amount of tax chargeable on the property sold can be determined *from the assessment roll. The treasurer has no authority to apportion values. All he can do is to deal with property on the values already fixed. Nor when the values have been once fixed can he change them, or alter the burden of the taxes. Here, in one assessment, are grouped these six lots valued at $20 each, $80 worth of personal property, and fifteen lots worth $45, making a total assessment of $245. There is nothing to show where the personal property or the fifteen lots were situated. That they wrere within the same taxing district as the six lots can only be inferred from the fact that they are grouped in the same assessment, and charged with the same taxes. That it is irregular, to say the least, to group real and personal property in the same assessment must be evident when we consider the different manner of enforcing the collection of taxes from the two kinds of property. Perhaps it may be considered as only an irregularity when the separate values of the two kinds of property are stated. But in this assessment are included fifteen other lots without name, number, or description. Surely such an assessment amounts to nothing. But it may be said that an imperfect description of those not sold will not avoid a sale of those fully described. Conceding this to be true, all that can be claimed is that these six lots were chargeable with 120-245ths of the tax carried out against the entire assessment, and might properly be sold for that amount. But the sale was for a much larger sum, and we have been unable to construe fees, costs, and charges in any way to make up the amount for which the lots were sold. There is nothing to indicate what portion of the $5.79 was intended for tax and penalty, and what for charges. We are not advised, by record or brief, as to how that amount ($5.79) was reached, and we have been unable by any computation to even approximate it. The deputy treasurer, it seems from the testimony, was unable to declare the amount of tax on these lots, and we are equally unable to adjust the amount of the assessment with the amount for which the lots were sold. It appears, then, that the sale was for a sum in excess of the legal tax, penalty, and charges. *Whatever may be the rule when such excess is but nominal or trifling, a sale cannot stand when it is large and substantial. Blackw. Tax Titles, 162; Case v. Dean, 16 Mich. 12; Huse v. Merriam, 2 Greenl. 375; Kemper v. McClelland’s Lessee, 19 Ohio, 327; Kimball v. Ballard, 19 Wis. 634; McLaughlin v. Thompson, 55 Ill. 249.

The judgment of the district court will be affirmed.

(All the justices concurring.)  