15 Kan. 88 | Kan. | 1875
The opinion of the court was delivered by
This was an action on a promissory note and mortgage. The issues were made up by petition, answer, and reply. Afterward the parties agreed upon the facts of the case, and submitted the case to the court below for judgment upon an agreed statement of facts. The court however, instead of finding the facts as agreed to by the parties, and rendering judgment thereon, made findings of its own, differing in form if not in substance from the facts agreed to by the parties, and then rendered judgment upon its own findings.
*93 “Where any real estate shall be sold at judicial sale, or by administrators, executors, guardians, or trustees, the court shall order the taxes and penalties, and the interest thereon, against such lands, to be discharged out of the proceeds of such lands.”
This provision, when applied to sales of lands by administrators, includes all unpaid taxes which have accrued against the lands, whether they have accrued béfore or after the death of the deceased owner; and includes all unpaid taxes which have not yet been merged into tax titles; and as the lien on real estate for taxes is paramount to all other liens or debts, it would seem that the taxes should be first paid out of the proceeds of the sale of the lands. It will be presumed that the order required by the foregoing section was made, and properly made; for, until the contrary is shown, it will be presumed that the probate court did its duty. The order required by said section should be made at the time that the probate court makes the order confirming the sale of the land. But whether either of said orders was in fact made, is not affirmatively shown by the record brought to this court. But even if said first-mentioned order were not in fact made, still we do not think that the omission would materially affect the substantial rights of the defendants. It was not their duty to make the order, nor to see that it was made; and until the whole transaction is finally closed up, we do not think that they would waive any of their substantial rights by suffering the omission to make the order to continue. But it is claimed that said provision in said § 40 has been impliedly repealed by §§ 132, 133, and 134 of the act concerning executors and administrators. (Gen. Stat. 457.) Now, repeals by implication are never favored in law. Besides, all these sections were passed by the same legislature; and §§ 132, 133, and 134 were passed only one day after § 40. It can therefore hardly be supposed that the legislature intended to repeal said provision in said § 40. And the intention of the legislature must govern whenever that intention can be discovered. We think however that said sections may
This cause will be remanded to the court below with the instructions that the judgment below be modified by deducting therefrom the sum of $197.28, with interest thereon at the rate of seven per cent, per annum from May 20th, 1872; and the defendant in error will pay the costs of this court,