24 Kan. 566 | Kan. | 1880
The opinion of the court was delivered by
This was an action of ejectment, in which the defendant claimed under a tax deed, and the only question is, whether he was entitled to recover the taxes paid by him, and interest, before being dispossessed of the land. The case was tried by the court, without a jury, and the claim of defendant for taxes sustained.
From the agreed statement of facts, it appears that—
“The land in controversy was subject to taxation for the year 1870, and the taxes legally assessed thereon remained due and unpaid on the first Tuesday of May, 1871, and the same was by the county treasurer, . . . duly and legally bid off for the county of Coffey . . .; that said land remained unredeemed from said sale until January 2, 1878, at which time the plaintiff in this action redeemed the land from said sale; that the tax thereon for the year 1871 was legally carried to said sale to Coffey county by the treasurer of said county, and was included in the redemption made by plaintiff on January 2, 1878, • . . . and no subsequent faxes were included in said redemption; that the land in
Plaintiff in error has filed an elaborate argument, challenging the ruling of the district court which sustained defendant’s claim for taxes. Notwithstanding this, it must be held that the decision comes within the plain letter of the statute, and is sanctioned by repeated rulings of this court. Defendant had paid the taxes into the county treasury; he had purchased the land at a regular tax sale; he had received a deed executed in substantial compliance with the statutory form, one prima facie valid, and which in tim'e would ripen into a perfect title beyond the reach of challenge. The land was subject to taxation, and the owner had not paid the taxes. True, the sale could not be upheld, because not made in conformity to .the statute. The title, challenged when it was, failed. But the defect was not as vital as that disclosed in Smith v. Smith, 15 Kas. 290. There, the power to assign the sale certificate did not exist. No one could make a valid transfer. The deed was void upon its face, and never started
It is urged that if such a sale can be upheld, the county might be wronged by the loss of the taxes for the prior years. But the sale is not upheld. The county may repudiate it, and return the money it has received. But even a county may, if it sleep upon its rights too long, lose them. If, notwithstanding the prior taxes, it makes a sale, receives pay and then issues a deed prima faaie valid, the statute of limitations may uphold that deed to the loss of all prior taxes. But be that as it may, the rights of the county are not here in question. The land-owner who has never paid these taxes is challenging the possession of one who has paid them — who for years has been discharging his obligations to the public. To encourage just such acts, not for the sake of punishing the land-owner, but to enforce a prompt payment of public dues, the statutes guarantee either title, or failing that, a large bonus to him who will voluntarily assume and discharge delinquent obligations to the county.
Again, it is 'urged that because the commissioners have declared the sale and deed invalid, and tendered back the taxes and ten per cent, interest, the purchaser is bound to accept this, and can no longer claim under said § 142. Such is not the purpose or scope of the statute under which this action of the commissioners was had. It is for the benefit of the county and the tax purchaser, rather than the land-owner. If it were as potent as is claimed, it would practically nullify § 142, for the ascertainment of the invalidity of the tax deed is not left exclusively to the commissioners, but the .section in terms provides for the action of the commissioners whenever “it shall be discovered or adjudged that the sale was invalid.” Land-owners would invariably proceed under this
One other question remains. It is claimed by defendant in error that as no tender was made of taxes and interest before the commencement of the action, it was prematurely brought, and Hoffmire v. Rice, 22 Kas. 749, is cited. This is a mistake. If the tax title failed, the original owner would recover possession without any payment of taxes but for the provisions of the statute. They guarantee possession until payment. But the statute plainly contemplates an adjudication as to the validity of the tax title before any order is made as to taxes (§ 142), and that provision was recognized in the case cited.
There being no other question in the case, the judgment will be affirmed.