6 Kan. 311 | Kan. | 1870
The opinion of the court was delivered by
This -case has been ably argued by counsel on both sides. Probably no point has been overlooked, but every point which skill, ingenuity, perseverance and industry could discover has been hunted up and presented to us for our consideration.
As to the second supposed irregularity in said tax deed, this court is oi; the opinion that said blank was not filled up with the proper amount, but that it should have been tilled up with a much larger amount, an amount equal to and including all the taxes, costs and interest due on said lot at the time said deed was made, and paid by the holder or holders of the tax-sale certificate upon which said tax deed was made. But still we think it is immaterial whether that blank was filled with the right amount ■or with a less amount, as a less amount can do no one any possible injury, unless it is the grantee of the tax •deed himself. It can certainly do no injury to the original owner of the lot. ¥e think the tax deed is valid upon its face.
This is certainly not the true construction of our statutes, nor the construction that has heretofore been adopted. All our statutes upon the subject from February 12th, 1858, down to the present time have provided substantially that the tax deed “ shall bo prima fade evidence of the regularity of ail the proceedings, from the valuation of the land by the assessor inclusive, up to the execution of the deed.” The tax deed under the statute is prima fade evidence that the property was regularly assessed, and that it was assessed by the assessor ; and if it was regularly assessed by the assessor all the prerequisites must of necessity have been complied with. Where then is there any room for irregularities ? Delaplaine v. Cook, 7 Wis., 53, 54; Allen v. Armstrong, 16 Iowa, 508; Sprague v. Pitt, McCahon, 212.) If it could be shown, as the plaintiff below claims it might, that the assessor did not receive from the county clerk before he made the assessment, the assessment roll of the preceding year, nor the list of taxable land, these mere irregularities could not invalidate the assessment, nor the taxes, nor the deeds founded upon such taxes.
The lot in dispute was assessed, taxed .and .sold for taxes, and the deed was executed and recorded under the provisions of Chapters 197 and 198, Compiled Laws, (said laws being modified in some respects by the laws of 1863 and 1864.) On the 20th of March, 1866, these laws were repealed and a new law was enacted in their place for the assessment and collection of taxes, (chapter 118, laws of 1866.) Section 113 of this new act, contains a saving clause which reads as follows: “All proceedings, titles, etc., not completed at the time of the taking effect of this act, shall be carried to final determination and ex'eeution according to. the laws in force under which they originated.” The case of Gordon v. The State, ex rel., 4 Has., 489, referred to by the plaintiff below, has no application in this case. The word “ proceedings ” in the statute referred to in that case, (Comp. Laws, 838,) may mean judicial proceedings; but the word “ proceedings ” in said saving clause undoubtedly means tax proceedings, the same as it does in that clause of section 10 of chapter 198, (Comp. Laws, 878) which reads .as follows: “Such deed duly witnessed and acknowledged shall be prima fade evidence of the regularity of such proceedings, from the valuation of the land by the assessor inclusive, up to the execution of the deed.”
The act of 1866, besides using the word “ proceed*
On the 15th of March, 1868, the tax law of 1866 was in turn repealed, and a new tax law enacted, which is still in force. The new law contains a saving clause which reads as follows : “ All matters relative to the sale and conveyance of lands for taxes .under any prior statutes shall be fully completed according to the laws under which they originated, the same as if such laws remained in force; ” (§ 143 ch. 107, G-en. Statutes, p. 1063.) This saving clause is plain enough, we think, without any comment upon it. The effect of these two saving clauses in the laws of 1866 and 1868, is, as we think, to keep and continue in force all the laws of 1860 and 1862, so far as they relate to the completing and perfecting of tax titles. In the case of Sprague v. Pitt and Burr, (McCahon, 212,) Justice Miller, of the Supreme Court of the United States had precisely the same question before him. The tax deed in that case was in due form, executed by the county clerk of Johnson county, Kansas, to A. E. Abbott, and made and recorded on the 15th of September, 1863. On the 22d of May, 1865, Abbott
The counsel for defendants below claims that the law under which the tax deed was executed is the law which determines its. effect; that if it was prima fade evidence under the law when it was executed, it will continue to be prima fade evidence notwithstanding any subsequent repeal of the law. In effect he claims that the holder of the tax deed has a vested right in the effect that shall be given to his tax deed, which cannot be disturbed by any subsequent legislation. Upon this question we shall express no opinion. After the statute of limitations has fully run in favor of a tax deed the question is then presented in a new and different light. The tax deed has then become conclusive evidence of many things of which before it was only prima fade evidence. It may well be doubted whether the legislature could then by any subsequent legislation so change the effect of such a deed that it would not be evidence of anything, or that it would be only prima facie evidence of what before it was conclusive evidence : (13 Wis., 347: 17 Wis., 556, 568 ; 21 Wis., 350; 23 Wis., 367, 371; 19 Johns., 83.) But upon this question we shall express no opinion, as we do not think it is necessary to decide the question in this case.
It will be seen from what we have already said that it is the opinion of the court that said tax deed is of itself and alone prima fade evidence of everything necessary to its own validity, and is prima fade evidence of title in the grantee mentioned in the tax deed; and therefore
The other evidence fully showed that the defendants below held under the original grantee mentioned in the tax deed; and hence it is not claimed that the tax. deed was excluded for want of such evidence.
IY. The plaintiff below, however, claims that the other evidence in the case shows that the said tax deed is void, and therefore that the ei’ror of the court in excluding the tax deed did not affect the substantial rights of the defendants. If said tax deed is void (it being prima fade valid,) it devolves upon the plaintiff below to show that it is void.' He may use the evidence of the defendants as well as his own, however, to do so, and if all the evidence in the case taken together shows that the tax deed is void, the defendants of course are not injured, and have no right to expect that the judgment of the court below will bo reversed for such error.
There are many irregularities that will render a tax deed void before'the statute of limitations has run in its favor which will not render it void afterwards; or rather, there are many irregularities which may be shown in evidence that will invalidate the tax deed before the statute has run, which cannot be shown after-wards for that purpose. Whether there were any irregularities which would invalidate this tax deed before the statute had run, may be questioned ; but without deciding this question we will pass to the next and see whether the statute has run. For if the statute has run there has been nothing shown in this case, as we think, which will invalidate this tax deed.
The.plaintiff does not claim that his lot was not subject'to taxation; nor that there was any want of author
John Geo. Brown, to whom the tax deed was made, was in actual possession of the lot in dispute, at the time and before it was assessed or taxed or sold for taxes, and at the same time and before the tax deed was made. The plaintiffs therefore claim that Brown could not take or hold a good tax title to said lot. But there is nO evidence that tends to show that Brown was under any obligation, legal or moral, to pay the taxes on said lot, or
“ One in possession of a tract of land at the date of the assessment may purchase at the sale, unless it appears that he was bound to pay the taxes, in which event he can acquire no title by his purchase.” (Blackwell on Tax Titles, 2d ed. 400, et seq.)
If, however, we attempt to give such statutes a retrospective operation, so as to include tax deeds executed before the passage of the statute, as well as afterwards, more difficulty occurs. But when we are made to understand that the taxes are' not finally and absolutely collected, until the tax deed becomes absolute and final, the difficulty is removed. The person who buys land at tax sales pays the taxes on such lands, only conditionally. If the sale is invalid, the money that he has paid is still in law and equity his, and the county commissioners are bound to refund it to him with interest and costs, and this they are required to do as wrnll after the tax deed is executed as before; § 60, Comp. Laws, 871; § 85, Laws of 1866, p. 280; § 121, General Stat. 1058.) The statute of limitations by its operation therefore, converts what was a conditional payment of the taxes into an absolute payment of the same. Hence we see that these statutes, while acting retrospectively, are made to assist in the collection of taxes, and may therefore bo-properly placed in the tax laws. Section 16, article 2 of the constitution should be liberally construed, otherwise the legislature would be confined within such narrow rules that they would be greatly embarrassed in the proper and legitimate exercise of their legislative functions. “No bill shall contain-more than one subject, which shall be clearly expressed in its title;” but this subject may be broad and comprehensive, or it maybe narrow and limited. It may embrace the entire common law of England, with all the English statutes of a general nature down to the fourth
Suppose the legislature should pass an act entitled, “An act to establish a code of laws;” would not the subject expressed in such a title be comprehensive enough to include every general law found within our statute books? And can there be any doubt that the legislature would have power to do just such a thing? Probably no sane person will contend that ,the subject must be the narrowest possible subject that can be conceived; that it must be so narrow and limited that it cannot possibly be again divided or .subdivided into narrower and smaller subjects. If such is the meaning of the constitution, almost every act that the legislature has over passed has been in contravention of the constitution. While it is admitted that there must be but one subject in the title of a bill, and that that subject must be clearly expressed, yet we think it mast always be left entirely within the discretion of the legislature to say how comprehensive and general, or how narrow and limited that subject shall bo. This we think is the true construction of the constitution: 4 Cal., 388; 10 Cal., 315; 6 O. St., 176, 180; 26 Iowa, 345; 19 N. Y., 115; 16 Mich., 277; 4 Ala., 98 et seq.; 2 Metc., (Ky.) 169, 221; 2 Iowa, 282, et seq.; 9 Iowa, 107; 3 O. St., 484; 15 id., 604; 11 Iowa, 282; 8 N. Y., 241, 252; 31 Barb., 572; 15 Tex., 311.
The next objection to these statutes is that they were not in force a sufficient length of time to bar the plainitiff’s action. The statute under which this deed was made and recorded was in force only about nine months after said deed was recorded, when it was repealed. The next statute (that of 1866) was in force not quite two-
The next statute, chronologically considered, (that of 1866,) is retrospective in its operations, and applies as well to tax deeds recorded before its passage as to those recorded afterwards, provided of course that the statute a reasonable time to run, after its passage and before the action was barred.. Said act.read as follows: “Any suit or proceeding for the recovery of lands sold for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within two years from the time of recording the tax deed of sale, and not thereafter; ” (§ 90, Laws of 1866, 284.)
The counsel for the plaintiff below are mistaken when they suppose “that the legislature did not intend any of the provisions in the tax law of 1866 should have application to anything done under, the tax law of 1860 ; ’’for in said section 90 there is a provision “ that before any suit or proceeding shall be commenced for the recovery of any land heretofore sold or hereafter to be sold for taxes,” etc.,
But the plaintiff below claims that it is not within the power of the legislature to pass a statute of limitations applicable to tax deeds already made and recorded, even if such should be their intention. We have already considered the question of the power of the legislature to insert a statute of limitations within the tax law. We shall now consider the power of the legislature to pass such a statute without regard to where they may put it, which shall act retrospectively on tax deeds already made and recorded.
It is admitted that’is not within the power of the legislature to give one person a cause of action against another, either retrospectively or prospectively, when such first-named person has not been injured and when he is in the full possession and enjoyment of all his rights. It is admitted that it is not in the power of the legislature to create a cause of action out of an existing or a previous transaction, for which there was at the time of its occurrence no legal liability, except perhaps in certain eases, when the legislature can create a cause of action‘to enforce an already existing moral obligation. (For a correct understanding of" what we mean by tbia last proposition, see Weister v. Hade, 52 Penn., 479, 480, 481, and cases there cited.) It is admitted that it is not within the power of the legislature to compel the party in whose favor a cause of action is thus. created or attempted to be created, to sue the other party within a specified time, or to be divested of property which he owned before the act of the legislature was passed, or
When the legislature enacted the tax laws of 1866, they did not create nor attempt to create a cause of action against or in favor of any one. If the tax deed in question at that time was absolutely good, it remained good; and the original owner of the land never had any cause of action against the holder of the tax deed, and the latter had no need of any statute of limitations. If the tax deed was absolutely void, (so void that it could convey no title, nor affect any rights,) it remained absolutely void; and in such case if the holder of the tax deed never took possession of the property, no cause of action ever existed in favor of the original owner of the land for the
This tax deed was recorded Juno 24th, 1865; said statute took effect March 20, 1866. The statute therefore had about fifteen months to run after this act took
In the case of Sprague v. Pitt, already referred to — a case almost exactly parallel with the one at bar — Justice Miller decided that when two years have elapsed after the recording of the tax deed and before the action is brought, the action under the laws of Kansas is barred; ' (McCahon, 212.)
In our opinion the legislature have clearly shown that they intended that no tax deed that has ever been executed in this State, which is not clearly good against all attacks without a statute of limitations, and which is
These statutes are not ambiguous or equivocal on this question. The only hope of those who refuse and fail to pay their taxes is, that the courts through sympathy with those who are about to lose their property for a ■small sum will refuse to execute the will of the legislature ; that the legislature through inadvertence has made' some slip, or left open some loop-hole, or have not expressed themselves in language as clear as the noonday sun, whereby the court will find some plausible pretext for refusing to. execute the law. While it is generally true that the person who fails to pay his taxes
There can be no doubt of the power of the legislature to pass just such laws as we have been discussing. The highest tribunal of this nation has sustained laws almost identical with ours; Leffingwell v. Warren, 2 Black, 599; Pillow v. Roberts, 13 Howard, 472; Witherspoon v. Luncan, 4 Wallace, 210, 217. “ Statutes of limitations are now regarded favorably in all courts of justice. They are considered as statutes of repose; usually they ai’e founded in a wise and salutary policy, and promote the ends of justice; 2 Black, 606; 13 Howard, 477; Tolson v. Kage, 3 Brod. & Bing., 217; Lewis v. Marshall, 5 Peters, 470.) When the legislature so wills it, owners of land must pay their taxes or forfeit their lands to others who will pay them. Our decision in this case is, that the tax deed offered in evidence was good upon its face; that it was prima fade evidence of title; and that the statute of limitations had run in its favor when this suit was commenced, and therefore that the court below erred in refusing to permit said tax deed to be read in evidence, especially the second time it was offered, and that said error was a substantial one, for which the judgment of the court below must be reversed.