Clippinger v. Tuller

10 Kan. 377 | Kan. | 1872

The opinion of the court was delivered by

Valentine, J.:

did, then it is clear that the clerk should have executed to . them a valid tax deed. (Gen. Stat., 1055, ch. 107, § 112.) And if he did not, they may compel him to do so by mandamus, whether he has formerly executed to them a void tax deed, or none at all. The owner of a valid tax-sale certificate to whom a tax deed fatally defective in form has been issued, may compel the county clerk by man-

, „ • tax tieea.

2. Tax-saie cersignment. The questions involved in this case were raised in the court below on petition and demurrer. The demurrer was interposed by the defendant Tuller, and the ground on which he demurred was, that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against himself. The demurrer was sustained by the court below, and the plaintiff now brings the case to this court. The plaintiff in this case seems to consider this action as a suit in equity, but the defendant seems to consider it substantially as an application for a writ of mandamus. But in whatever light it may be viewed we do not think that the petition states any cause of action against Tuller. It is not stated in the petition that Tuller had any interest in the land in controversy, either legal or equitable; nor is it stated that he claimed to have any such interest. He was county clerk of Nemaha county; but it is not shown in the petition that he ever failed to perform his duty as clerk toward the plaintiff. It is true that he once executed a defective and void tax deed to Hidden and Slater, but the petition at most only shows inferentially that he was under any obligation to them, or to any one else to execute a better one. Did Hidden and Slater ever own a valid tax-sale certificate? and if so, did they ever present it to the county •clerk and ask that a valid tax deed should be executed upon it? This is scarcely shown from the petition. But if they damus to execute to him a proper tax deed: State v. Winn,, 19 Wis., 304; Woodman v. Clapp, 21 Wis., 350; Maxey v. Clabaugh, 6 Ill., 26; Furguson v. Miles, 8 Ill., 358. But Hidden and Slater are not asking the clerk to execute a second tax deed to them, or to anyone else; and the tax-sale certificate owned by them has never been assigned according to the statutes in such cases provided: Gen. Stat., 1063, ch. 107, §145; page 1048, §91; page 1047, §90. It is true, the plaintiff has a quitclaim deed for the premises covered by the tax-sale certificate from Hidden and Slater to himself. But a quitclaim deed from the holder of a tax-sale certificate is not of itself such an assignment of the tax-sale certificate as will authorize the clerk to issue a tax deed to the grantee mentioned in the quitclaim deed: State v. Winn, 19 Wis., 304, 307. The assignment under the statutes to authorize the clerk to act in such a case must be “a written assignment indorsed upon ” or “attached to ” the tax-sale certificate: Gen. Stat., 1048, §90. It must accompany the tax-sale certificate, be filed away with it, and be preserved as evidence in the office of the county clerk. The question whether the court could not compel Hidden and Slater to execute a valid assignment of the tax-sale certificate, or render a decree, declaring that the quitclaim deed should be considered as equivalent to such an assignment, is not in this case, as Hidden and Slater were not made parties to this suit; and of course no decree requiring them to make such an assignment, nor any other decree, could be rendered against them. Possibly a suit in equity compelling them to make such an assignment, and then compelling the county clerk to execute a tax deed on such assignment could be maintained, if all the parties were in court. But a suit in equity to compel the county clerk to execute a tax deed to a supposed assignee of a tax-sale certificate, when the supposed assignors are not brought into court, and when no valid assignment of the tax-sale certificate has ever been made, cannot be maintained. The order of the court below sustaining the demurrer to the-petition is affirmed.

All the Justices concurring.