Board of Commissioners v. Goddard
22 Kan. 389
Kan.
1879
Check Treatment

The opinion of the court was delivered by

Horton, C. J.:

The plaintiff in error claims that the petition of the defendant in error does not state fаcts sufficient to ‍​‌‌‌​‌​‌​‌​‌‌​‌‌​‌​‌​‌‌​​​​‌‌​​‌‌​​‌​‌‌​​​​‌​‌‌‌‍constitute any cause of action against Lyon county or the boаrd of commissioners; and within the ease of Commissioners of Saline Co. v. Geis, ante, just decided, the claim is correctly mаde. Whether the case was prosecuted and disposed of under §145, ch. 34, Laws 1876, or §120, ch. 107, Gen. Stat. 1058, is immaterial. The sections are nearly similar. No allegation is made in the petitiоn that the county treasurer was without funds with which ‍​‌‌‌​‌​‌​‌​‌‌​‌‌​‌​‌​‌‌​​​​‌‌​​‌‌​​‌​‌‌​​​​‌​‌‌‌‍to pay the defendant in error, and really no reason is given for making the county board a party, except that the treasurer refusеd to refund his money, and that it has not been returned to him. This is not sufficient. The facts stated neither make the county nor its board of commissioners liable.

Under said § 145, the allegations are nоt even sufficient to charge the county treasurer, if he had ample funds in his hands for the specific purpose of paying these claims, and had been made a party defеndant. Before he can refund, under the law of 1876, the certificate must be- indorsed with the refusаl ‍​‌‌‌​‌​‌​‌​‌‌​‌‌​‌​‌​‌‌​​​​‌‌​​‌‌​​‌​‌‌​​​​‌​‌‌‌‍of the county clerk to convey. In this case, the descriptions of the lands assessed and sold for taxes are so uncertain and imperfect that all the tax procеedings, including the certificate, are so erroneous and irregular that the lands ought not tо be conveyed. These irregularities are patent on *398•the face of all the records and certificates. Indeed, the defects are so palpable, that whеn pointed out to the county clerk, he had no legal right to refuse-to discover them, and in •the performance of his official duty he ought to have indorsed the certificatеs with his refusal to convey. He had ‍​‌‌‌​‌​‌​‌​‌‌​‌‌​‌​‌​‌‌​​​​‌‌​​‌‌​​‌​‌‌​​​​‌​‌‌‌‍no right to be blind to such errors and irregularities. He might have been compelled to make the indorsements by mandamus, or an action for damages аgainst him could have been maintained, but in the absence of the indorsements under said § 145, the trеasurer had no right to refund the money paid.

In this connection we may say, that the answer of the plaintiff in error presented no issuable fact, and the demurrer thereto was properly overruled. If errors or irregularities actually exist, so that the land ought not to be conveyed, it is the duty of the county clerk to discover them when his attention, as in this case, is specifically called thereto; and the fact that he purposely refuses to disсover, or refuses to admit ‍​‌‌‌​‌​‌​‌​‌‌​‌‌​‌​‌​‌‌​​​​‌‌​​‌‌​​‌​‌‌​​​​‌​‌‌‌‍the discovery of the errors and irregularities, is no obstaclе to the treasurer refunding the money under § 120 of Gen. Stat., and only material under the new § 145 of Laws of 1876, in that the county treasurer cannot act until the county clerk has indorsed his refusal to convey on the certificates, and it is not likely the clerk will make such indorsement so long аs he refuses to discover any error or irregularity.

Counsel for defendant in error seems tо contend that, independent of the statute, the money paid on the tax certificates may be recovered back. The decisions in New York, Wisconsin, and perhaps some other states, support this doctrine. We think the better rule the other way. A purchasеr at a tax sale is a mere volunteer in the payment of the tax. Buying, as he does, property from a person who is not the owner, such party comes strictly and rigidly within the rule of “caveat emptor.” Hе has the same means of knowing whether the proceedings relating to the assessment оf the taxes, the tax sale, and the issuance of the certificate, are valid or not, as. the county has, and he is bound to inquire whether the *399officers have authority to make the sale. As all the proceedings are matters of record, it is not only prudent for such a purchaser to examine into the matter for his own safety, but if he fails to inform himself of the authority of the officers, he does so at his own risk, excepting that he may have his money rеfunded where the statute expressly makes such provision, if he pursues the remedy pointed out. The officers of a county can only act in accordance with positivе law; and neither the board of commissioners nor the county treasurer can refund any mоneys upon the failure of tax titles, except as some statute requires it. (Cooley оn Tax., ch. 24, p. 572; Blackwell on Tax Titles, ch. 26, p. 413; Sapp v. Comm’rs of Brown Co., 20 Kas. 243; Hamilton v. Valiant, 30 Md. 139; Lynde v. Inhabitants of Melrose, 10 Allen, 49; The City of Indianapolis v. Langsdale, 29 Ind. 486; Rice v. Auditor General, 30 Mich. 12; Phillips v. Jefferson Co., 5 Kas. 412; Wabaunsee Co. v. Walker, 8 Kas. 431; K. P. Rly. Co. v. Wyandotte Co., 16 Kas. 587.)

The petition being fatally defective, the judgment of the district court will be reversed.

All the Justices concurring.