¶1The opinion of the court was delivered by
¶2The defendant below, (plaintiff in error,) claimed upon the trial the land in controversy, under a tax deed issued to him September 5, 1881. The date of the tax sale was September 4, 1878. The redemption notice and list, which were published, stated the land was to be redeemed on or before September 5, 1881.
¶3It was decided in English v. Williamson, 34 Kas. 212, that where real estate has been sold for taxes, the owner has, under any circumstances, at least three years’ time from the day of sale, and any time before the execution of the tax deed, within which to redeem his land from the taxes; and it was further decided that the day on which the land is sold must be excluded from the computation of the three years’ time; therefore, plaintiff below, (defendant in error,) had all of September 5, 1881, within which to redeem his land. No moment of time can be said to be after a given day until that day has expired. But the tax deed in this case was issued on September 5, 1881, and filed for record at 2 o’clock p. m. of that day; the deed, therefore, was prematurely issued.
¶4This action was commenced on January 29, 1884; so no question of limitation is involved. (Comp. Laws of 1879, ch. 107, § 141.) The tax deed, having been prematurely is*196sued, is clearly voidable, and was properly held by the trial court insufficient to vest in the grantee thereof an absolute estate in fee simple to the land therein described.
¶5Before the plaintiff below can obtain possession he must pay the taxes, interest, and penalties — that is, redeem the land. The judgment of the district court will be affirmed.