majority">

The opinion of the court was delivered by

Brewer, J.:

*4861. Tax deed; what recital not necessary, 2. Tax deed, form of; tatuu>.*485This case hinges on the validity of a tax title. Plaintiff in error claims that the tax deed was void on its face, or, if not, was shown to be void by the other testimony in the case. Was the deed void on its face? The only reason assigned on the trial was, that the “ land wras not •sold in September 1862, for non-payment, of the taxes of 1861.” This reason is not pressed in this court-, but a new *486one is urged, one not presented to the district court. We might perhaps upon settled rules decline considering cither.. The reason given below is not borne out by the language of the deed, and that is all that is open to examination on this objection. The reason given here, is, that the deed recites the sale as made at “the sale begun and publicly held on the-2d day of September,” without reciting that the county treasurer unavoidably omitted or failed to sell on the first Tuesday of May. That the power to sell on the 2d day (that being the first - Tuesday) of September \ , & , ,. „ depended on the tact ot an unavoidable omission or failure to sell in-May/may be conceded. (Comp. Laws,. 873, §70.) But it does not follow therefrom that the validity of the deed depends upon the recital of the fact, or that an omission to recite is evidence of its- non-existence. In cases-where no record or written evidence is required to be preserved, an official act, which can be rightfully done only after some precedent act by the same officer, is itself presumptive-evidence of the performance of such precedent act. The fact that the treasurer sold in September, is sufficient, in the-absence of anything to the contrary, to show that he unavoidably omitted or failed to sell in May. Lessee of Ward v. Barrow, 2 Ohio St., 241; Lessee of Combs v. Lane, 4 Ohio St., 112. The sale in September is not an adjourned sale.. It is an independent, complete proceeding, with advertisement, and other requirements, like to those of the May sale. (See section just cited.) Nowhere is the treasurer required to-make or preserve a record of the causes of the failure to sell in May; and surely a failure to sell in-May is a matter of which the owner of the land has little cause to complain, for without adding to thé burden it increases the time within which he can redeem. But again, the form prescribed in the-statute (Comp. Laws, 877, § 10,) Avhich is a form for sales made in September as avcII as those in May, contains no such recital, so far as this point is concerned. The deed is almost a literal copy of the form. The rule is clear, that where the statute contains a form of any instrument a compliance Avith that form is sufficient. A sim*487ilar question arose in Falkner v. Dorman, 7 Wis., 388. In deciding that case the court uses this language: “It was insisted that the deed was not admissible in evidence because-it did not show on its face that it was executed under and in pursuance of the special power given by the statute. But upon comparing the deed with the form given in § 5 of the act of . 1852, we do not see but it substantially complies with the form therein prescribed, and probably is a good and sufficient deed in this respect. Eor we suppose a deed made in strict conformity to a particular form prescribed by. the •statute to be observed, in the execution of deeds, must be held .valid as far as the form is coneerñed.” The many authorities cited by counsel for plaintiff to the point that “ the sale must fake place at the precise time prescribed by law, otherwise it will be void,” are inapplicable, for there is no question that a ■sale Could be rightfully made in September. The only ■question is, what proof must there be that this was one of the lots which could be then rightfully sold ?

3. Bindings of co,m" 4. Recital of sale is prima facie evidence of sale. The deed being regular upon its face, did the other testimony show it to be void ? Plaintiff' claims that the testimony shows there was in fact no sale made, and that even if one had been attempted, it would have been void, as the land was not subject to sale. The finding of the district court being a general finding, that the allegations of the answer were true, was in effect a ’finding that a sale had been made. It is seldom that the finding of the district court upon a question of fact will be disturbed in this .court. Certainly not where the testimony is anything like evenly divided. The recital in the deed of a , „ . , , ,i , n sale is prima jaeie evidence that one was made. .See §10, p. 877, Comp. Laws; Bowman v. Cockrill, 6 Kas., 311; Knox v. Cleveland, 13 Wis., 245. As against this is the fact that in the sale-book of the lands, sold in 1862, for •tire delinquent taxes of 1861, this land does not appear, and also that on the list of lands sold in 1859 for the delinquent taxes .of 1858 this land is entered. Further, in regard to this, last sale, and the taxes for subsequent years, it appears *488that iii the list, ancl under the head of “Amount of Taxes,v there is no entry of amounts of taxes for the years 1858, 1859, and 1860, but there is an entry of the amount of taxes for the year 1861, and that The taxes on said land for the year 1861, amounting to $8.41, were charged up to said land in said tax-sale books for the year 1858.

5. What tax sale is void. 6. Void sale will not suport sutaequeiit taxe5' The entries in the county treasurer’s books were immajacie evidence of facts therein recited to have been done. Nothing higher than this can be claimed for them as to the fact of a sale. The certificate of sale would be the best evidence.. That being wanting, the records of the county treasurer’s office would be competent. The authorities cited from Kentucky and Iowa- as-to the effeckofthe recitalsdn the sale-book are not in point, for in those states the certificates are made out and issued from the recitals, while under our statutes the certificates are made out on payment of the bids, and the sale-book, after the close of the sales. As to the comparative weight of the recitals in the sale-book, and those in a deed, or which would prevail in case of conflict, we need not inquire, for here we have a positive recital in the one as against an omission to recite anything in the other. It bears a close analogy to the comparative weight of positive and negative testimony. Thus much in regard to the omission to enter this land in the list of lands sold in 1862. In regal’d to the recital of a sale in 1859 for the taxes of 1858, laying out of consideration a redemption-receipt signed by the county clerk alone, (as coming within the scope of the decision in Shelton v. Dunn, 6 Kas., 128,) the patent offered by the plaintiff is dated Oct. 1st 1858, and there is nothing in it to show when the equitable title passed from government. Under this state of facts the land was hot subject to taxation during the year 1858, and the attempted sale in 1859 was void. Taylor v. Miles, 5 Kas., 505. Of course, this sale being void there was no authority to charge up to it subsequent taxes. The attempt to charge up the taxes of 1861 was inoperative to prevent a sale in 1862 for these delinquent taxes. It *489is worthy of note that, except as indicated by the county clerk's redemption receipt for the taxes of 1858, above referred toj there is no pretense in the testimony that any taxes were paid on this property.' It seems to us therefore that the sale in 1859 was void, that the land thereafter was subject to taxation and sale, and that the weight, of the evidence sustains the finding of the district court as to the fact of a sale in 1862. The property was subject to taxation in 1861. The taxes do not appear to have been paid. It ought then to have been ■sold. The presumption, so far as any exists, would be that the treasurer would do his duty. The tax deed, which is prima facie evidence, recites a sale.

We have considered this case purposely without reference to the question of the effect of* the limitation law upon it. The tax deed was recorded Sept. 19th, 1864, and this suit was commenced March 26th, .1871. Independently of the question whether or no the action is barred, we think the judgment of the district court should be affirmed.

All the Justices concurring:.

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