35 Kan. 126 | Kan. | 1886
The opinion of the court was delivered by
This was an action in the nature of ejectment, brought by S. M. Barr against William Randall and Elizabeth Randall his wife, to recover certain real estate situated in Marshall county. The action was tried before the court without a jury, and the court, after making certain findings of fact and conclusions of law, rendered judgment in favor of the defendants and against the plaintiff for costs. The plaintiff brings the case to this court for review.
It appears that one James C. Smith held the original patent title to the land in controversy, and that the plaintiff claims under a quitclaim deed from him. The defendants claim through intermediate conveyances under a tax deed executed by- the county clerk of Marshall county to Russell S. Newell. It appears that on May 6, 1862, the taxes against the land in controversy for the year 1861 were still due and unpaid; that ou that day the land was sold for such taxes to Marshall
The only question involved in the case is, whether the aforesaid tax deed is absolutely void, or not; and the principal objection urged against its validity is that it was executed by Eussell S. Newell, as county clerk, to himself, as an individual. The sale seems to have been regular and valid in every particular. The purchase of the tax-sale certificate by Newell
There is another supposed irregularity, as follows: It is probable that Newell paid the entire purchase-money for the tax-sale certificate in county scrip, and not in cash or in the various warranté on the treasuries of the state, cities, townships, school districts, etc., to which the various items of the consideration for the tax-sale certificate belonged. This may not be the case, however, for presumptively the officers did their duty. Presumptively also, from the prima facie character of the tax deed in whose favor the statute of limitations has long since completely run, everything except the fact that Newell appears to be both the grantor and grantee in the tax deed, was regular and valid. Also, upon the face of all the tax proceedings prior to the tax deed, everything seems to have been regular and valid. But Newell, who was a witness on the trial for the plaintiff, testified in terms that he paid for the tax-sale certificate in question in county scrip. Now it was unquestionably proper for him to pay a portion of the consideration for the tax-sale certificate in county scrip, and possibly all, under the statutes as they then existed. Indeed, it would be difficult to give a good reason why all might not have been thus paid under the statutes as they then existed; but supposing,
the defeat or avoidance of the tax deed is now completely barred. The tax sale was itself unquestionably valid; the transfer of the tax-sale certificate, notwithstanding the aforesaid slight irregularity, was also unquestionably valid, and Newell, as before stated, had an absolute right to a tax deed; and no one but himself as county clerk could execute the same; and there is no statute which in terms prohibits him from executing the same, or which prohibits any county clerk from executing a valid tax deed to himself. We shall assume, however, upon general principles, that such a tax deed would be voidable so long as no statute of limitations had completely run in its favor; but is such tax deed absolutely void? Possibly it would have been better for Newell to have resigned his office of county clerk and allowed his successor in office to execute the tax deed to him; or perhaps it would have been better still for him to have held his tax-sale certificate until his term of office had expired, and then to have allowed his successor to execute the tax deed. But he chose to execute the tax deed himself, and in doing so he did not act in his own individual capacity, but acted in the capacity of county clerk, in the capacity of agent for the county or for the public, and possibly, also, as agent for the original owner; and'if. his action is wrong or unjustifiable, it would seem that he could be called to an account only by his principal, and within reasonable time, and not by some other person or persons, and after he had been favored by the complete running of a statute of limitations. Generally, where an agent sells the property of his principal to himself, no one but his principal can complain; and his principal may ratify and confirm the sale, and make it absolutely good. (Eastern Bank v. Taylor, 41 Ala. 93; Leach v. Fowler, 22 Ark. 143; Ellis v. Peck, 45 Iowa, 112; Wharton on Agency, § 235.) Wherever an agent, in acting for his principal, also deals with himself, the principal may ratify and confirm such dealings and make them good; and in all cases
Besides, the original owner, ancl his grantee, the present plaintiff, abandoned the land for about twenty-four years, and allowed the defendant, Randall, and his grantors, to pay all the taxes thereon, and to make lasting and valuable improvements thereon. No fraud is shown in the present case, nor the slightest unfairness. Everything seems to have been fairly
We would also refer to the following cases, not as being entirely applicable to this case, but as furnishing some support to the views we have herein expressed: Cuttle v. Brockway, 24 Pa. St. 145; Russell v. Reed, 27 id. 166; Cuttle v. Brockway, 32 id. 45; Chorpenning’s Appeal, 32 id. 315; Ellis v. Peck, 45 Iowa, 112; Morton v. Waring, 18 B. Mon. 72, 84, et seq.
There are some other objections urged against the tax deed, but we do not think that any of them are tenable. We might, however, in conclusion, say that even if it were true in the present case that the tax-sale certificate which was made by the county treasurer in 1862 was so made for an amount which did not include the county treasurer’s own fees, but was sufficient in every other respect, the fact that the amount did not include the county treasurer’s own fee would not render the
The judgment of the court below will be affirmed.
It appears from the evidence in this case that Russell S. Newell was the clerk of Marshall county from 1862 to 1864; that he had to take his pay for his services in scrip worth from twenty-five to thirty-five cents on the dollar; and that while acting as county clerk he procured assignments of tax-sale certificates to himself under an arrangement with the county treasurer, but did not, as a general thing, pay for the certificates until redemptions were made. When he did pay, the county treasurer accepted county scrip in full payment. When he did not have enough -of his own scrip to pay for these assignments, he obtained scrip from the county . treasurer so to do. In this way, both the county clerk and the treasurer realized dollar for dollar from their, scrip. The county treasurer was a merchant, and in addition to receiving county scrip for his services, also received it at a depreciated pi’ice in payment of his goods. This collusive arrangement between these officers of course cannot be sustained, and I am very clearly of the opinion, that any person having an interest therein could have set aside the alleged assignments of the tax-sale certificates made in pursuance of the foregoing arrangements; and I am further of the opinion, that, in this case, any person having an interest in avoiding the tax deed in controversy might have done so, at any time before the statute of limitations had fully run in its favor; but it does not appear that James C. Smith, the patentee of the land in controversy, or anyone for him or holding under him, ever offered to redeem the land from the sale of taxes before the issuance of the tax deed, or before the statute of limitations had completely run in its favor. Indeed, it appears from the facts that the original owner abandoned the land for a very great length of time, and the holder of the tax deed and his grantees have paid all the taxes from 1861 to the present time, and have
In the case of Cole v. Moore, 34 Ark. 382, to which we are referred by counsel for plaintiff in error, where the purchase at a tax sale by a county clerk was held illegal, the tax sale was made on August 2, 1869; the action to set aside the certificate of purchase was brought April 19,1870, less than one year. No question of the statute of limitations running in favor of any deed or tax certificate was in issue, argued, or discussed.