31 Kan. 139 | Kan. | 1883
The opinion of the court was delivered by
This was an action of ejectment, brought August 29,1881, by John Belz against Lorenzo F. Bird, to recover a certain lot in the city of Atchison. The case was tried on May 19,1882, by the court without a jury, and the court made special findings of fact and of law, and rendered judgment upon such findings in favor of the defendant and against the plaintiff for costs. May 18, 1883, the plaintiff brought the case to this court.
The plaintiff’s claim of title is founded upon two tax deeds, the first of which was executed on May 24,1864, for the taxes of the years 1861,1862, and 1863, in pursuance of a tax sale made May 22,1862, for the said taxes of 1861. The second tax deed was executed June 17,1881, for the taxes of the years 1861,1862,1863,1864, 1865, 1866,1867, 1868,1869,1870, 1871, 1872, 1873, 1874, 1876,1877, 1878, and 1879; also in pursuance of the said tax sale of May 22, 1862.
The defendant’s claim of title is founded upon a certain tax deed executed May 18,1880, for the taxes of the year 1875, on a sale made September 9, 1876, for said taxes of 1875; and also upon a judgment rendered in favor of the defendant and against the original owner of the land, about the month of December, 1881, quieting the defendant’s title.
It seems now to be admitted by the plaintiff that his tax deeds are void as conveyances of title; but he still claims that in connection with the other facts and circumstances of the case, they are sufficient to authorize him to recover the taxes which he has paid on the property in controversy, together with interest and costs.
On May 16, 1864, the plaintiff Belz took an assignment of the tax-sale certificate from the county treasurer; but as the county treasurer at that time had no authority to assign the tax-sale certificate, the assignment was void; and therefore the property still remained in legal contemplation, in the hands of Atchison county. (Sapp v. Morrill, 8 Kas. 677.) At the time of said sale in 1862, and since, the statutes of Kansas have provided “ that no lands or town lots so bid off for the county shall be sold for any taxes levied subsequent to such bid, until they shall have been redeemed, or shall be sold by the county, or the tax certificate issued to the county shall have been assigned.” (Comp. Laws of 1862, ch. 197, § 48; Gen. Stat. of 1868, ch. 107, § 96; Comp. Laws of 1879, ch. 107, §122.) The property in controversy has never been “redeemed” from the sale of May 22, 1862, and in legal contemplation it was not “sold” by the county, nor was the tax-sale certificate “assigned” prior to the sale of September-9, 1876. Therefore the sale made to Atchison county on September 9,1876, for the taxes of the year 1875, which is the tax sale upon which the defendant’s tax deed is founded, is void. (Morrill v. Douglass, 17 Kas. 291.) Or more properly speaking, such sale is voidable; for if the tax sale and the tax deed founded thereon were not attacked by any person having a right to attack the same, until the statute of limitations had run in favor of the tax deed, the sale would be valid, and the tax deed founded thereon would, by virtue of the statute of limitations, ripen into a valid and perfect tax title. This, then, brings us to the conclusion that the defendant’s tax deed is not sufficiently valid to withstand an. attack made by any person who has any right to attack the
Now has the plaintiff the right to recover such taxes? It must be remembered that these taxes were not paid by the plaintiff for the purpose of redeeming the land, or for the purpose of discharging the land from the taxes, but they were paid for the sole purpose of procuring a tax title to the land; and hence such payment will not and cannot inure to the benefit of the original owner of the land, or to any person claiming under him. (Haxton v. Harris, 19 Kas. 511.) With reference to the original owner or his successor, the taxes have not been paid, but are still due upon the land and constitute a lien thereon. The only question that can be considered as in any respect doubtful, is whether the county of Atchison or the plaintiff is entitled to recover such-taxes. The plaintiff paid them with no intention of giving them to the county, and no county officer has as yet claimed that they belong to the county, but all the officers having any connection with the transactions- have recognized the plaintiff’s right thereto. In 1864 the treasurer assigned the tax-sale certificate to the plaintiff, and the county clerk, in
This court has already held, in the case of Smith v. Smith, 15 Kas. 290, 294, et seq., that where a person was in possession of real estate under a tax deed, executed in 1864 upon a tax-sale certificate issued in 1862 to the county, and assigned in 1864 to such person by the county treasurer, who had no authority at the time to assign the same, and the original owner commenced an action of ejectment against such person and ousted him from the premises — such person was entitled to the benefit of said §117 of the tax law then in force, and. might recover the taxes paid by him from the original owner. And said §117 is identical with said §142 of the present tax law, so far as the present question is concerned.
This court has also held, in the cases of Fairbanks v. Williams, 24 Kas. 16; Arn v. Hoppin, 25 id. 707; and Russell v. Hudson, 28 id. 99, that said § 142 of the present tax law applies to actions of ejectment where the holder of the tax deed is not in the possession of the property, and where the action is brought by the holder of the tax deed to obtain the possession, as well as to actions of ejectment brought against the holder of the tax deed, who is in possession. In the last case cited it was held that the court, after deciding the case against the holder of the tax deed, might declare the taxes which he had paid a lien upon the land, and might order that the land be sold to satisfy the same. And it would seem
The judgment of the court below will be reversed, and the cause remanded for further proceedings in accordance with this opinion.