
    William M. Haynes and others v. Robley E. Heller.
    January Term, 1874.
    1. Taxation: Description in Tax Deed. Where a tax deed showed that-a single lot, fully and correctly described, was subject to taxation, and that for non-payment of taxes it was duly offered for sale, and that certain parties offered a stated amount, being the whole amount of taxes,, penalty, and costs due on said lot, for property which was described by number, street, and city, but without mentioning county or state, and further recited that said property was the least quantity bid for; and that payment having been made the said property wms struck off to them at that price, held, that the omission of the county and state in the last description was not fatal, but that the whole deed, taken together, disclosed, with absolute certainty, the property sold and conveyed. A substantial-compliance with the statutory form of tax-deed is sufficient.
    
    *2. Time and Place of Sale: Statutory Form. The deed must show upon its face the time at which the property was sold, or it will be void. The form prescribed by the law of 1862, where it speaks of the offer to-purchase, reads thus: “And whereas, at the time and place aforesaid,” etc. The omission of the words “time and” from that portion of a tax deed is uot a substantial departure from the statutory form, when the-time of sale is plainly shown by other parts of the deed.
    3. Constitutional Law: Chapter 198, Comp. Laws 1862. The tax law of 1862, so far as any question in this ease is concerned, is a valid enactment.
    
    [4. Tax Deed: Construction. A tax deed is to be construed as a whole;. and if any uncertainty in one part is made certain by another, the deed, as a whole, is sufficient. ]
    Error from Shawnee district court.
    Ejectment, brought by Heller against William M. Haynes and’ George W. Donnell to recover the possession <jf “Lot 241, Kansas-avenue, in the city of Topeka, Shawnee county.” It is admitted that Heller had a regular chain of title to said real estate from the government to himself. It is also admitted that Haynes and Donnell had a regular chain of title to said lot from one M. L. Johnson, who received from the county of Shawnee a tax deed of and for said lot, issued under a tax sale in 1864 for unpaid taxes of 1863, said deed being dated August 13, 1866, and recorded on the eighteenth of said August. This suit was not commenced until more than two years-thereafter; and Haynes and Donnell set up their tax title, and the statutory bar, as a defense. The action was tried at the December 'term, 1872, without a jury. The district court made separate findings of fact and conclusions of law. The statute, under which the tax deed was issued, is chapter 198, Comp. Laws 1862, pp. 874-881. This *act purports to have been passed and approved March 6, 1862. At that time all bills originated in the house, as provided by section 12 of article 2 of the constitution. Said chapter 198 is known in the house and senate journals of 1862 as “Bill No. 30;” and in regard to the enactment thereof the district court made the following finding:
    
      Fifth. At the session of the legislature of the state of Kansas -for the year 1862, on the final passage of bill No. 30, entitled “An :act to amend an act to provide for the assessment and collection of taxes,” approved February 27, 1860, the yeas and nays were taken ■in both houses, and entered on the journals thereof; and amendments having been made by the senate to the bill as passed in the house, and the house refusing to concur in the same, a joint confer•ence committee appointed by both houses made the following report, to-wit:
    “Mr. Wilson, from the committee of conference, made the following report:
    “ ‘Mr. Speaker: The committee of conference on bill No. 30 have agreed to the following amendments to clauses 6 and 7, in section 2: In clause 6 strike out “500” and insert “200 ;” in clause 7 strike out all the clause, and insert the following: “Two horses, or two yoke of cattle, or one of each, two cows, ten sheep, ten hogs, and live-stock under two years of age,
      
       to the value of one hundred dollars.”
    “ ‘ Respectfully submitted,
    “ ‘ R. S. Stevens,
    “ ‘ J. M. Hubbard,
    “ ‘ Horatio Knowles,
    “ r For the Senate.
    “ ‘ Davies Wilson,
    “ ‘ P. B. Plumb,
    “ ‘ H. W. Martin,
    “ ‘ J. C. Marshall,
    “ ‘ E. G-. Jewell,
    “ ‘ For the House.’ ”
    —And that the house journal of and for that session shows that “on motion, house adopted the report of the committee, and the bill passed,” and does not show affirmatively that the yeas and nays were called and entered on the journal, or that a majority of all the members of the house voted for said bill as amended by the report. of said committee, or voted thereon by yeas and nays.
    *'As conclusions of law the court found in favor of Heller, as-follows: “(1) That the plaintiff is entitled to recover possession of the premises mentioned in the petition; (2) that said tax deed was not made and executed substantially in the form and manner required by law, and is therefore invalid.”
    New trial refused, and judgment in favor of the plaintiff. The defendants bring the case here on error.
    
      N. G. McFarland and W. P. Douthitt, for plaintiffs in error.
    All the points made by defendant in error against the validity of’ the tax deed were decided by the court below in favor of plaintiffs in error, except this: “That said tax-deed was not made and executed substantially in the form and manner required by law.” The words “time and” were left out of the deed. The deed must be substantially according to the form; and this reduces the question to this point: Is the substance there without the two words omitted-? We. think it is. What do we find in the deed? First. “The taxes assessed upon said real property for the year 1863 aforesaid remained due and unpaid at the date of the sale hereinafter mentioned.” There was a sale then. Second. “And whereas, the treasurer of said county did, on the third day of May, 1864, at the sale begun and publicly held on the first Tuesday of May, 1864, expose to public sale at the county-seat, * * * the real property,” etc. The sale was held May 3, 1864, at the county-seat. Third. “And whereas, at the place aforesaid, Winans & Whittaker, * * * having offered to pay $4.81, * * * and payment of said sum having been by them made to the said treasurer, the said property was stricken off to them at that price.” Now, suppose the word “place” had also been left out, and what would we have: A public sale, May 3,1864, at the county-seat; Winans & Whittaker bid, and paid; the property was stricken off to them. What stretch of the imagination can suppose that the bid and payment were at any other time than ivhen the property was offered? It is a substantial statement of the whole case without using the word “time.” It could have been at no other time. And of so little consequence has this been held by the legislature that in the form given by subsequent ones the word “time” is left out.
    *If the tax-deed “shall be prima facie evidence of the regularity of all the proceedings, from the valuation of the land by the assessor, inclusive, up to the execution of the deed,” as the law says,, then how can it be said that this offering (bid) was at another time, without showing it? See Bowman v. Cockrill, 6 Kan. *329, *330, If this deed were any other than a tar-deed, would any lawyer think of claiming to any court that it is void because the word “time” is omitted ? And yet there is no authority for any different rule of construction; but, on the contrary this “statute of repose” will be favored.
    
      But it is claimed by defendant in error that because the property is not particularly described in the granting clause of the deed that it is therefore void on its face; because, if not thus rendered void on its face, the claim amounts to nothing. None of the forms prescribed by the laws of 1862, 1866, or 1868, have in them a description of the property other than by reference to the preceding part of the deed. They are all alike, and the deed is a copy. It is competent for the legislature to prescribe the form of a deed, and when that form is followed it cannot be claimed successfully that it is void. The land is fully described in the deed in question here.
    It is further urged that because the journal of the house of representatives does not show that the yeas and nays were called, and the requisite number of members voted for the report of a conference committee on one section of the law of 1862, “to provide for the assessment and collection of taxes,” under which law these proceedings of sale were had, that the whole of said law is unconstitutional, and must so be declared by this court; and this claim is set up in the face of the admission that “the yeas and nays were taken in both houses, and entered on the journals thereof,” “on the final passage.” The constitution of the state requires that “the yeas and nays shall be taken and entered immediately on the journal upon the final passage of every bill;” nothing more. It is agreed that the journal shows this was done in this case. The record shows 'that, “on motion, house adopted the report of the *committee, and the bill passed.” This court will certainly presume that the report was adopted by the requisite number of votes, and we think reasonably may presume by calling the yeas and nays if that was necessary, which we claim it was not. In Miller v. State, 3 Ohio St. 477, the court says, (page 481:) “If a strict literal compliance with every constitutional requirement, however minute, is necessary to the validity of a law, and the courts are bound to hold that nothing was done but what appears in the legislative jourhal, it is easy to demonstrate that not a single statute enacted since the constitution took effect can be upheld.” And in the same case it is decided that although the constitution requires that every bill shall be read on three different days-, yet it does not require that every amendment to a bill shall be read three times. So here, the yeas and nays are to be called on the final passage of every bill, but not on adopting the report of a committee of conference. “Every reasonable intendment is to be made in favor of the proceeding of the legislature.” We claim on this point — First, that as the report was adopted, and bill passed, the presumption is that they were properly adopted and passed; second, that it was not necessary to call the yeas and nays on the report of a conference committee, nor was it then the custom, as will appear by the journal. In view of the consequences, the court will hesitate before they hold all such laws unconstitutional. If it was. necessary to call the yeas and nays, and for them to appear on the journal, only the particular section of the law under consideration by the committee (section 2) could be in anywise affected; and as that particular section has nothing whatever to do with tax sales and tax deeds, the law in these respects stands. “The validity of a law must be maintained unless a clear case be presented where it is palpably in contravention of the constitution.” Atchison v. Bartholow, 4 Kan. *124.
    
      Martin, Burns & Oase and B. E. Heller, for defendant in error.
    The form of the statute is not substantially followed in description of the property sold. Neither the county nor the * si ate in which the lot is located, appears; and the court will not take notice how many cities there are of that name, nor which one might be meant, unless there were such words coupled with the description as would refer back to a prior and fuller description. It is true that in this deed a good description of said lot is given, in reciting the property which was subject to taxation; but as no reference is made to it in the prescribed form by such words as “said lot No. 241,” the statute required something more than that. It required a full, complete, and correct description, inasmuch as in the granting clause of the deed there is no description except by reference, and ■direct reference is made to this description as being the property sold and conveyed. We ask the court to notice especially the language ■of the statute, “Here follows the description of the property sold.” But it may be claimed that the court should construe all parts of the deed together, as in a conveyance from A. to B., and gather a sufficient description from the whole; but such is not according to authority. Blackw. Tax Titles, 124, 125; Lachman v. Clark, 14 Cal. 131; Orton v. Noonan, 23 Wis. 104; Bassett v. Welch, 22 Wis. 170; Davis v. Boggs, 20 Ohio, 564; Tallman v. White, 2 N. Y. 66; In re Application of Senate, 10 Minn. 79, (Gil. 56.) “If the description by the officer be not so certain and complete as not to require the aid ■of extrinsic evidence, his deed is held to be void.” Wofford v. Mc-Kinna, 23 Tex. 45; Jennings v. Camp, 13 Johns. 96; Blackw. 123, 156, 381; Lessee of Massie’s Heirs v. Long, 2 Ham. 287; Ballance v. Forsyth, 13 How. 23.
    The statutory form.reads, “And whereas, at the time and place .aforesaid,” etc., referring to the sale. The recitals in the tax deed previous merely state that on a certain day and place the said lot was exposed to public sale, and, in leaving out the word “time,” the most important word in the tax deed is omitted, and the date of the sale left blank. If the deed does not show when the lot was sold, how ■can it be told when the time of redemption has expired, and whether or not the sale took place at the time prescribed by law ? This deed does not show when the money was offered, nor when the property was stricken off. The words “time and place” were not repetitions, but were necessary and essential *under the statute. Maxey v. Clabaugh, 1 Gilman, 26; Blackw. 368. The cases .are numerous where strict compliance with prescribed forms has been held to be necessary to the validity of tax deeds. Akerly v. Vilas, IN Wis. 446; Morton v. Rutherford, 18 Wis. 321; Hardy v. Heard, 15. Ark. 185; Tanner v. Stine, 18 Mo. 580; Lackey v. Lubke, 36 Mo.. 115. What purports to be an act of the legislature entitled “An act. to amend ‘An act to provide for the assessment and collection of taxes,’ approved February 27, 1860,” and approved March 6, 1862, is. null and void, because not passed in accordance with sections 10- and 13 of article 2 of the constitution of this state. The house, journal of that session, not showing that on the final passage of said act as amended,, after the report of the joint committee, the yeas and nays were called and entered on the journal, or that a majority of' all the members of the house voted for said bill as amended, the said act approved March 6, 1S62, is a nullity. The entering of the yeas. and nays on the journal is imperative. Nothing is law simply because the legislature will that it shall be, unless they have expressed their determination to that effect in the mode pointed out by the constitution, which invests them with the power, and under ■ all the forms which that instrument has rendered essential. Cooley,. Const. Lim. 130-140; Spangler v. Jacoby, 14 III. 297; Super-visors of Schuyler Co. v. Rock Island & A. R. Co., 25 111. 183; Supervisors of Ramsey Co. v. Iieenan, 2 Minn. 331, (Gil. 282;) Purdy v. People, 4 Hill, 384; Debow v. People, 1 Denxo, 9; People v. Mahaney, 13 Mich. 481, 492. The act of March 6, 1862, being, then, a nullity, the act of February 27, 1860, is the law governing the proceedings of the tax sale under which the plaintiffs in error claim, and which statute of 1860 gave three years in which to redeem. The said tax deed is, then, void by reason of being executed too soon. Gross v. Fowler, 21 Cal. 393; Donoboe v. Veal, 19 Mo. 331; Bernal v; Gleim, 33 Cal. 668; Gorham v. Wing, 10 Mich. 486; Brackett v. Gilmore, 15 Minn. 252, (Gil. 190;) Hand v. Ballou, 12 N. Y. 541.
    
      
       See McQuesten v. Swope, ante, *32.
    
    
      
       Duty of courts to uphold acts of legislature — failure to enter yeas and nays, on concurring in amendments — signatures of presiding officers, etc., see Leavenworth Co. v. Higginbotham, 17 Kan. 62.
    
    
      
       The words in italics, “under two years of age,” appearing in both reports of committee of conference, are omitted from said seventh clause in the act as enrolled and approved. Comp. Laws 1862, p. 875, § 2, cl. 7. Hon. W. C. Webb, Reporter.
    
   Brewer, J.

This case turns on the validity of a tax deed. The sale was in 1864 for the taxes of 1863. The deed was made in 1866, and had been of record more than two years prior to the com- . mencement of this suit. Three objections are *made to this deed: First, an insufficiency in the description of the property sold and conveyed; second, the omission of the words “time • and,” from that part which recites the offer of the purchaser; and, third, that the tax law itself was never passed in a constitutional manner. Of these in their order.

1. A full description of the property is: “Lot No. two hundred and > forty-one, (241,) Kansas avenue, in the city of Topeka, Shawnee ■ county, Kansas.” It is so described in the first part of the tax deed, which recites that it was subject to taxation for the year 1863. Fol- . lowing the form prescribed in the Compiled Laws, p. 878, § 10, it is . referred to as “said real property” where it is stated that the taxes remained due and unpaid; and, again, as “the real property above dé- - scribed, ” where the offer of sale is recited. Passing on, the deed reads thus: “And whereas, at the place aforesaid, W. & W., of the county of Shawnee and state of Kansas, having offered to pay the sum of $4.81, being the whole amount of taxes, interest, and cost then due and remaining unpaid on said property for lot 241, Kansas avenue, city of Topeka, which was the least quantity bid for.”

In the granting clause, at the close of the deed, it is referred to as “the real property last hereinbefore described,” and the last description is that in the language quoted. The objection is that the county and state are omitted in this description, which is the description of the property sold; that the court will not take notice how many cities there are of the same name, nor which one might be meant, and that, therefore, the description is void for uncertainty. Conceding for the purpose of the argument, that this description, standing by itself, might be open to attack, yet, taken in connection with the other descriptions, and construing all the parts of the deed together, it seems to us ample and complete. A tax deed, like any other instrument, is to be construed as a whole; and, if any uncertainty in one part is made certain by another, the deed as a whole is sufficient. This deed shows that a single piece of property was subject to taxation, and was offered for sale, and that the purchaser bid a certain amount, being the *whole amount of the taxes, etc., for that which was the least quantity bid for, — quantity of what? Why, of that which was offered for sale. A single lot was offered; a single lot was sold. It could not be a lot in any other city of Topeka than that in Shawnee county, for it would not then be a quantity of that offered for sale. The fact that the deed shows that the property sold was part of the property offered for sale demonstrates the county and state. It is as clear and certain as though the word “said” were before the description.

2. The second objection is that the words “time and” are omitted from that part which recites the offer of the purchaser. That part we have quoted heretofore. The form in the statute is, “And whereas, at the time and place aforesaid.” The language of the deed is, “And whereas, at the place aforesaid.” An exact compliance with the form of the statute is not indispensable. A substantial compliance is all that the statute calls for. Comp. Laws, 878, § 10. The time at which the sale is made is of course material, for a sale at a time unauthorized by law is void, and passes no title. Park v. Tinkham, 9 Kan. *615. The deed, then, should by fair construction show the time of the sale. If it follow the statutory form, this of course.would be sufficient; but, if it depart therefrom, its departure should not be such as to leave uncertain that which was made'-certain by that form, to-wit, the time of sale. If we analyze a public sale we find four different acts necessary to complete it: (1) The offer of the property for sale; (2) the bid of the purchaser; (3) the striking off of the property to him; and (4) the payment of the price. The certificate issued, or writing given thereafter, is no part of the sale, but simply evidence of it. Now, of these four parts the first three must be contemporaneous. The bid must be made while the property is being offered for sale; otherwise the sale, if made, is a private and not a public sale; and for the same reason the property must be struck off to the bidder before the public offer is withdrawn or ended. So that a deed which recites the time at which property is offered *for sale at public sale, and then that a bid therefor was made, and the property struck off to the bidder, shows the time of these last two acts as clearly as though it recited that the bid was made at “said time,” and the property struck off at “said time.” The deed in controversy recites the time that the sale for delinquent taxes commenced, and the day upon which this particular lot was put up for sale. It does not say that it was exposed for sale upon this and subsequent days; nor under the rule, expressio unius exclusio alterius, can there be any other understanding of the words of the deed than that the property was put up for sale only upon that day. It then says that certain parties bid for the property, and it was struck off to them. As heretofore stated, these two acts must have taken place during the time of the offer, and therefore on the day named, or the sale was not a public sale. But it may be said, is not the language used consistent with the idea that no offer or sale was made at the time it was exposed to public sale, and that thereafter an offer was made and a private sale effected? Not at all. To speak of property .sold at private sale as having been struck off to the highest bidder is, to say the least, an extraordinary and unnatural use of language, .and this instrument, though a tax deed, must be construed according to the ordinary and natural meaning of the words used. It seems to us, therefore, that the deed is, notwithstanding the omission of these words, substantially in the form prescribed, and upon the face of it valid. We are confirmed in this view by the fact that in the tax laws subsequent to that of 1862, to-wit, those of 1866 and 1868, these very words are omitted from the otherwise almost unchanged form. Laws 1866, p. 283, § 89; Gen. St. p. 1055, § 112.

The remaining objection is that the tax law itself was never passed in the manner prescribed by the constitution, and is therefore no law at all. Upon this question findings of fact were made, and are preserved in the record. This court is unanimous in the opinion that,' so far as any question in this court is concerned, the law was a legal enactment, and valid; but the members of the court differ in the reasons by *which they reach this conclusion. It is unnecessary, therefore, to do more than state the conclusion, without attempting to give in detail the individual • views of the justices.

It becomes our duty, therefore, to reverse the judgment of the district court. The case is before us on findings of fact by the district court. No exception was taken by the defendant in error to any of these findings; no motion made to set any of them aside; The testimony is not preserved in the record. Under these circumstances, in pursuance of section 559 of the Code, the order must be to reverse the judgment of the district court, and remand the case with instructions to enter judgment in that court in favor of defendants there, plaintiffs in error here.

(All the justices concurring.)  