Order of sale; publication notice; auctioneer may be employed; procedure for bidding in behalf of county; deed, execution and recordation

79-2804. Order of sale; publication notice; auctioneer may be employed; procedure for bidding in behalf of county; deed, execution and recordation. After the rendition of such judgment there shall be issued by the clerk of the district court to the sheriff of the county an execution or order of sale, which shall describe each tract, lot or piece of real estate mentioned and described in such judgment or decree, on which the lien has not been paid, with the amount of lien charged to each tract, lot or piece of real estate and the costs, charges and expenses of the proceedings and sale chargeable to each piece, lot or tract, in such amount as the court may order. If no order is made, then a sum equal to 5% of the amount set forth in the petition as the lien for taxes, charges, interest and penalties chargeable to each tract, lot or piece of real estate, with the name of the ascertained owner thereof, as disclosed by the judgment or decree, with the command to advertise and sell the real estate described therein. Such order of sale shall be delivered to the sheriff of the county, who shall thereupon cause notice of sale to be published once each week for three consecutive weeks in some newspaper of general circulation in the county, in accordance with the provisions of K.S.A. 64-101, and amendments thereto. The notice shall describe each tract, lot or piece of real estate to be sold and the lien for which it is to be sold, as determined by the judgment of the court and fix the date of sale, which shall not be less than 30 days from the date of the first publication. The notice shall state that the sale will be held at the front door of the courthouse in the county or shall identify some other location in the county where the sale will be held, as selected by the chief judge of the judicial district in which the county is located. On the day fixed for the sale by such notice, the sheriff shall offer each such tract, lot or piece of real estate for sale, separately, and the same shall be sold at public auction for the highest and best bid obtainable therefor. The sheriff may employ an auctioneer for such reasonable compensation as may be determined by the court, to be allowed as a part of the costs and expenses of the proceedings and sale. The sheriff or such other person as may be authorized by the board of county commissioners, if directed by the county commissioners, may bid at such sale in the name of the county such amount as the county commissioners authorize. No bid in behalf of such county shall be accepted in excess of the amount of the judgment lien and interest thereon, as provided by law, plus the costs, charges and expenses of the proceedings and sale as set forth in the execution or order of sale. If the county is the successful bidder the costs, charges and expenses of the proceeding and sale set forth in the execution and order of sale shall be paid by the county to the clerk of the district court and charged to the county general fund. If such sale, for want of time, cannot be completed on the day fixed by the notice, it may be adjourned from day to day until completed. The sheriff shall make return to the clerk and the same, as soon as practicable, shall be examined by the court, and if found by the court to be regular, it shall be confirmed, and the sheriff ordered to forthwith execute to the purchasers at such sale a good and sufficient deed therefor. If one person or the county purchases more than one tract, lot or piece of real estate, the same may be included in one deed. The deed shall be executed by the sheriff and acknowledged before the clerk of the district court. No particular form of deed shall be required. It shall be sufficient if it shows the date of sale, a description of the property conveyed, the amount for which each tract, lot or piece of real estate was sold, the name of the purchaser, the date such sale was confirmed by the court and the title of the suit in which the tax lien was foreclosed. The deed shall be filed for record, by the sheriff at the time the deed is executed, in the office of the register of deeds of the county where such real estate is situated. Any fee or charge for such filing shall be collected from the successful bidder at the time of sale and deposited with the register of deeds at the time of recording. When the deed is filed it shall vest in the purchaser or grantee therein named, as against all persons, including, but not limited to, corporations and municipal corporations, parties to such proceedings, a fee simple title thereto, subject only to valid covenants running with the land and valid easement of record in use and subject to taxes and interest which have become a lien thereon, subsequent to the date upon which such judgment was rendered. Such deed shall be prima facie evidence of the regularity of all proceedings prior to the date of filing the same for record. After the sale and confirmation thereof by the court, an execution shall issue, upon praecipe of the county attorney, county counselor or the purchaser, requiring the officer to deliver possession of the real estate, particularly describing it, to the parties entitled thereto, including the county. When the deed is executed to the county by the sheriff, it shall be filed for record forthwith in the office of the register of deeds. Thereupon the assessed valuation of such real estate shall be eliminated from the assessment and tax rolls until such time as such real estate is sold as provided by K.S.A. 79-2804f, and amendments thereto. History: L. 1901, ch. 392, § 4; R.S. 1923, 79-2804; L. 1941, ch. 375, § 20; L. 1943, ch. 302, § 4; L. 1945, ch. 362, § 4; L. 1968, ch. 398, § 7; L. 1972, ch. 371, § 1; L. 1978, ch. 399, § 1; L. 1989, ch. 294, § 3; L. 1999, ch. 57, § 72; July 1. Cross References to Related Sections: Validation of certain proceedings prior to January 1, 1948, see 58-2262. Law Review and Bar Journal References: Extension of tax foreclosure statute of limitations discussed in case note on insufficient notice by publication, 16 K.L.R. 623, 626 (1968). "Titles—Insufficient Notice in a Tax Foreclosure Action," Robert Looney, 19 K.L.R. 160 (1970). Attorney General's Opinions: Real estate brokers and salesmen; exemptions from licensing requirement. 86-111. County commissioners; general powers; home rule powers; foreclosure purchases by elected county officials. 87-177. Real estate foreclosure by county; order of sale, deed, execution and recordation; tax lien. 88-175. Apportionment of sale proceeds on judicial foreclosure and sale of real property. 89-103. Real estate foreclosure and sale by county; recordation; filing fees; purchase by county or city. 91-90. Action to enforce lien for unredeemed real estate bid in by county; conveyance of land sold for taxes; adverse possession claim on property. 95-25. Judicial foreclosure and sale of real estate by county; persons not eligible to purchase; agents. 97-46. Clerk of district court is authorized to sign orders of sale issued pursuant to section. 2014-15. Online auction site satisfies public auction requirement. 2021-3. CASE ANNOTATIONS 1. Publication service on unknown devisees of deceased landowners is proper. Training School v. White, 110 Kan. 498, 500, 204 P. 688. 2. Rule of caveat emptor applies to purchaser at foreclosure sale. Isenhart v. Powers, 135 Kan. 111, 9 P.2d 988. 3. Sale set aside where amount due tendered before sheriff's deed issued. Atchison County Comm'rs v. Wright, 151 Kan. 325, 326, 327, 99 P.2d 857. Overruled: Sherman County Comm'rs v. Alden, 158 Kan. 487, 148 P.2d 509. 4. Special tax bill lien concurrent with general tax lien; statute construed. State v. Wyandotte County Comm'rs, 154 Kan. 222, 229, 117 P.2d 591. 5. Where foreclosure includes special tax bill liens sale date in K.S.A. 13-1087 (now repealed) governs. Wyandotte County Comm'rs v. Adams, 154 Kan. 233, 237, 117 P.2d 760. 6. Current unpaid taxes should be included in tax foreclosure judgment. Shawnee County Comm'rs v. Abbott, 155 Kan. 154, 159, 123 P.2d 318. 7. Special tax bill liens concurrent with general tax lien are extinguished by tax foreclosure. Wyandotte County Comm'rs v. Adams, 155 Kan. 160, 162, 163, 164, 123 P.2d 818. 8. Proceedings must substantially comply herewith; order confirming sale set aside. Mitchell County Comm'rs v. Allen, 156 Kan. 701, 703, 704, 705, 137 P.2d 143. 9. Laws 1943, ch. 101 (K.S.A. 13-1088, 13-1088a) impliedly repealing this section held unconstitutional. Wyandotte County Comm'rs v. General Securities Corp. 157 Kan. 64, 65, 66, 67, 68, 72, 78, 138 P.2d 479; Wyandotte County Comm'rs v. Adams, 157 Kan. 80, 138 P.2d 490. 10. Sheriff's deed subject to subsequent installments of special tax bills upheld. Wyandotte County Comm'rs v. Adams, 157 Kan. 80, 138 P.2d 490. 11. Court cannot invoke general equity powers to refuse confirmation; L. 1909, ch. 182, § 500 inapplicable to tax sales. Sherman County Comm'rs v. Alden, 158 Kan. 487, 490, 491, 492, 148 P.2d 509. 12. Sale to individual for less than tax lien proper where commissioners' bid is less. State, ex rel., v. Shawnee County Comm'rs, 159 Kan. 87, 88, 89, 90, 91, 92, 94, 151 P.2d 700. 13. Recorded sheriff's deed vests grantee with fee simple title; same lands sold to two different persons; effect; equities. Blair v. Pooler, 160 Kan. 201, 204, 160 P.2d 672. 14. Discussed; final tax foreclosure judgment not subject to collateral attack. Magnolia Petroleum Co. v. Moyle, 160 Kan. 722, 726, 165 P.2d 419. Reversed: 162 Kan. 133, 149, 150, 175 P.2d 133. Affirmed: 163 Kan. 368, 182 P.2d 127. But see Phillips Petroleum Co. v. Moore, 179 Kan. 482, 490, 297 P.2d 183. 15. Party made defendant but not as owner; effect when actually owner; jurisdiction. Sheridan County Comm'rs v. Acre, 160 Kan. 278, 289, 160 P.2d 250. 16. Sheriff's deed vests fee simple title in purchaser. Keith v. Wright, 174 Kan. 344, 348, 256 P.2d 117. 17. District court properly refused to confirm sale; irregularities. Cherokee County Comm'rs v. Barnard, 162 Kan. 500, 502, 503, 178 P.2d 189. 18. Where sale proceedings regular court must confirm sale. Sumner County Comm'rs v. Avis, 163 Kan. 388, 392, 183 P.2d 462. 19. Civil code governs procedure in absence of express provision herein; deed not recorded within six months not notice to innocent purchaser; notice to third parties of purchaser's interest governed by L. 1909, ch. 182, § 495; title passes to purchaser upon recordation of his sheriff's deed. Moorhead v. Guliford, 163 Kan. 730, 732, 733, 734, 186 P.2d 275. 20. Act inapplicable where taxes not delinquent; court without jurisdiction. Shell Oil Co. v. Board of County Comm'rs, 165 Kan. 642, 649, 197 P.2d 925. Overruled: Phillips Petroleum Co. v. Moore, 179 Kan. 482, 490, 297 P.2d 183. 21. Order refusing confirmation where return regular is erroneous not void. Board of County Comm'rs v. Groomer, 166 Kan. 593, 597, 203 P.2d 237. 22. Cotenancy extinguished where property purchased by third party; repurchase by cotenant, effect. Pease v. Snyder, 169 Kan. 628, 631, 220 P.2d 151. 23. Incumbent county commissioner in private capacity not an eligible purchaser. Shell Oil Co. v. Board of County Comm'rs, 171 Kan. 159, 164, 168, 231 P.2d 220. Affirmed: 171 Kan. 595, 596, 237 P.2d 257. 24. Procedure for publication service in tax foreclosure action held not violative of this section. Phillips Petroleum Co. v. Moore, 179 Kan. 482, 490, 297 P.2d 183. Overruling four cases on subject of when action to vacate tax foreclosure may be commenced, to wit: Magnolia Petroleum Co. v. Moyle, 163 Kan. 133, 175 P.2d 133; Magnolia Petroleum Co. v. Moyle, 163 Kan. 368, 182 P.2d 127; Shell Oil Co. v. Board of County Comm'rs, 165 Kan. 642, 197 P.2d 925; Board of County Comm'rs v. Allen, 175 Kan. 460, 264 P.2d 916. 25. Quiet title action; guardian purchased ward's property at tax sale; petition insufficient; action barred. Nelson v. Hein, 183 Kan. 430, 431, 433, 327 P.2d 1028. 26. Mineral interests separately taxed; cotenant's interest sold on tax foreclosure; another cotenant eligible purchaser; statutes construed. Jesberg v. Klinger, 187 Kan. 582, 583, 590, 358 P.2d 770. 27. Service by publication held sufficient to satisfy constitutional requirements of due process and equal protection of laws; description sufficient. Board of County Commissioners v. Aldritt, 217 Kan. 331, 333, 536 P.2d 1377. 28. Adverse possessor has superior title to grant in subsequent sheriff's deed notwithstanding failure to pay property taxes. Graham v. Lambeth, 22 Kan. App. 2d 805, 921 P.2d 850 (1996). 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