22 Kan. 381 | Kan. | 1879
This action was commenced, prosecuted and disposed of in the trial court upon the right of the purchaser of the tax certificate, the ■ defendant in error, to recover from the county of Saline the money paid by virtue of the provisions of § 120, ch. 107, p. 1058, Gen. Stat. This is clearly shown by the allowance of interest at the rate of ten per cent, per annum, and the statement of counsel for defendant in error, that his client had fully brought himself within the provisions of said section. In this view of the case, the court committed error in overruling the demurrer to the petition. The law provides that when the land named in a certificate of sale ought not to be conveyed for any error or irregularity, the county treasurer shall, on the return of the tax certificate, refund out of the county treasury the amount paid therefor on such sale, and all subsequent taxes and charges paid by the purchaser or his assigns. In this action, the county treasurer is not a party, and there is no allegation in the petition showing any wrongful action or conduct of the commissioners in the matter. It is not alleged that the county treasurer was unable to refund the money paid because of a want of funds in his hands, or that he had paid this money out on the orders of the county commissioners, or that the commissioners had in any way, by order or otherwise, interfered to prevent him from refunding the several amounts paid. Primarily, it is the duty of the treasurer to return the moneys to the holders of the tax certificates, where the errors or irregularities are discovered before the conveyance of the land; and if such treasurer has funds in his hands for this purpose, this duty may be enforced, and an action for damages can be maintained against him for his refusal to comply with the law. In order, therefore, that a petition shall state facts sufficient to constitute a cause of action against a board of commissioners of a county for the recovery of such moneys and interest, in behalf of the owners of tax certificates, under this section, it must allege,
Other errors are manifest in the record — particularly the refusal of the court to compel the plaintiff to state the time when he offered to return his tax certificates to the county treasurer, and in striking from the answer the allegation that the county treasurer had sufficient funds to pay the claims. But it is unnecessary to comment on these matters now, as the disposition which the district court will be directed to make of the demurrer to the petition, will either finally dispose of the case in that court, or necessitate the filing of an amended petition, containing other and different allegations. “Sufficient unto the day is the evil thereof.”
■ The pleadings filed subsequently to the demurrer, after the eliminations made by the court, supply none of the omissions in the petition. These pleadings however may be withdrawn, and the demurrer filed to the petition sustained. Leave can then be granted for such amendments to the petition as the defendant in' error shall deem necessary and proper, within the doctrine herein announced.
' The judgment of the district court will be reversed, with the direction to sustain the demurrer of the defendant below to the petition of the plaintiff in that court.
