62 P. 439 | Kan. Ct. App. | 1900
The opinion of the court was delivered by
This action was originally begun by A. Mecartney, one of the defendants in error, against the-plaintiffs in error, to recover the possession of certain real property. The action was founded upon an irregular and void tax deed, and upon the failure to establish title in the land a lien for the taxes paid was sought to be established; this matter was taken under • advisement by the court, and on October 2, 1897, its judgment was announced in favor of the plaintiff therein, and the following entry made on the trial docket: “Oct. 2, 1897, judgment for plff. for $191.27,” and.
We do not see any merit in the claim of the defendants in error that these proceedings should be dismissed or the judgment affirmed for the reasons set up in their brief, and shall not discuss the alleged reasons therefor in detail, but will examine the merits of the petition in error.
The first allegation of error is in rendering a personal judgment against the plaintiffs in error for the amount of taxes, interest and costs paid by defendant in error under his invalid tax deed. This is admitted.
The fact that no journal entry was recorded during that term of court does not change the rule of law as to how judgments may be changed or modified. The entry, when recorded, relates back and is the judgment of the court as of the time it was announced.
The next contention is that the description in the tax deed and in the proceeding leading up to it is so defective that no property can be located. The only answer this requires is that the plaintiff below brought his action to recover the land described in the tax deed; the defendants said they were the owners thereof and. that the plaintiff had no title thereto. After doing this we do not think they are in a position to challenge the sufficiency of the description. As to the right to a lien for taxes paid on defective description, see Krutz v. Chandler, 82 Kan. 659, 5 Pac. 170.
The only other question we think it necessary to consider in this case in its present condition is : What taxes are referred to in section 205, chapter 158, General Statutes of 1897 (Gen. Stat. 1899, § 7339) ? Is the holder of the tax deed entitled to recover all the taxes paid by him whether the same were legally levied or not, or can he recover only such part of the
This is an important question and it does not seem to have been squarely decided by our supreme court, although we think it has been decided in substance several times. Said section reads :
“If the holder of a tax deed or any one claiming under him by virtue of such tax deed be defeated in an action by or against him for the recovery of the land sold, the successful claimant shall be adjudged to pay to the holder of the tax deed, or the party, claiming under him by virtue of such deed, before such claimant shall be let into possession, the full amount of all taxes paid on such lands, with all interest and costs as allowed by law up to the date of said tax deed, including the cost of such deed and the recording of the same, with interest on such amount at the rate of twelve per cent, per annum, and the further amount of taxes after the date of such deed, and interest thereon at the rate of twelve per cent, per annum.”
It is contended by the plaintiff in error that the statute means by “all taxes paid” all legal taxes paid, but we do not think it should be so modified. As was said by this court in Booge v. Ritchie, 2 Kan. App. 717, 43 Pac. 1145:
“While the language of the statute is very broad, or, as was said in Jackson v. Challiss, 41 Kan. 258, 21 Pac. 92, the terms thereof are ‘sweeping and vigorous,’ yet they mean precisely what they say, viz., ‘ that the party paying the taxes, or holder of a tax deed, when defeated in an action, shall be entitled to recover the full amount of taxes paid, with interest and costs as allowed by law.’ Not such portion of them as a court may years after reassess ; not a part of them, but the full amount paid. And the court had no authority to go back and hear evidence on the value of the.real estate, and virtually usurp the office*134 of township trustee for the time, and reassess the property to the prejudice of the purchaser, who is in no way to blame for the excessive assessment in the first place, even if it was fraudulent. What difference can it make to him what the reason is that renders his deed invalid ? He. innocently and in good faith invested his money on the assurance of the law that, should he be defeated in his title to the land for any reason, he should recover the amount he had invested, with interest and costs.”
In Krutz v. Chandler, 32 Kan. 659, 5 Pac. 170, the supreme court came very near deciding the identical question at issue in this case. There the description of the land was indefinite and uncertain, the assessor did not attach the oath required by law to his return, and an illegal fee was taxed as costs, and yet the taxes, interest and costs paid were held to be a lien upon the land. Substantially the same questions were raised and conclusion arrived at in Jackson v. Challiss, 41 Kan. 247, 21 Pac. 87. In Coonradt v. Myers, 31 Kan. 35, 2 Pac. 860, Brewer, J., says:
“Counsel for plaintiff in error have cited cases decided in this court in which, upon failure of the title, all taxes and interest have been awarded to the purchaser. This has been heretofore the understanding, not merely of this court, but of the profession in general, to be the true interpretation of the statute, and we think it to be the correct one.”
In Belz v. Bird, 31 Kan. 139, 1 Pac. 246, it was held “that the taxes which the plaintiff has paid upon the property are a lien thereon, and the property may be sold to satisfy the same.” ■
There have been cases before the supreme court in which the trial court had excluded from the lien certain illegal taxes and that matter has been referred to, but with no intimation that such taxes were properly excluded.
It is no hardship for the owner of the real estate to be required to test the legality of any taxes he may think have been illegally levied thereon before the issuance of a tax deed; the courts are open to him for that purpose ; and if he fails for so long a time to bear his just and legal share of the public burden he has no cause for complaint that he cannot afterward be allowed to contest the legality of the taxes levied.
For the errors set up in the first and second allegations of error, the judgment is reversed and a new trial of the issues herein awarded.