5 Kan. 615 | Kan. | 1870
The only question in this case which counsel desire to raise, or to have decided, is whether the northwest quarter of section number twenty-nine, township number twelve, range number twenty, in Douglas county, was subject to taxation for the years 1866 and 1867. This depends upon the question whether, at the time the land was assessed, the title to the .same had passed from the Indians and the Government of the United States to the Union Pacific Eailway Company.
If the title had passed, so that the land belonged to the railway company, it was taxable; but if the title had not so passed — if the land still belonged to the Indians or to the United States, or to both — it was not taxable.
As the patent from the United States to the railway company had not been issued until the year 1868, it will hardly be contended that the legal title had passed. It is contended, however, that the equitable title had passed; that in equity the railway company were the real owners of the land, and therefore, that the land was taxable. "We suppose it will be conceded, even by the defendants in error, that if the equitable title had passed to the railway company, if their title was perfect except that the company had received no patent, which is only the legal evidence of title, the land was taxable.
~We are of the opinion that no title, legal or equitable, had passed. It is true that the railway company had some equities in the land, but they were mere contingent, conditional and inchoate equities that did not amount to a title. ' It is true that the company had made a conditional purchase of this land, but they were not to receive the'patent therefor until all the conditions of the purchase were fulfilled; and if any one of the conditions
In equity there is a maxim that equity will consider as done that which ought to be done, and that it will look upon things agreed to be done as actually performed. As an application of this maxim, equity generally considers that when land is sold on credit, and the deed is to be made when the purchase money is paid, that the land at the time the sale is made becomes the vendee’s and
In this case the conditions upon which the land was sold' had not all been performed when the land was assessed. In 1866 and 1867 the purchase money had not been paid, and, therefore, the patent had not been issued. Hence, in 1866 and 1867 we think the railroad company had no title to the land, legal or equitable.
It is undoubtedly true, when the parties so agree, that
On the 2d day of July,-1861, Thomas Ewing, jr., agent for the Leavenworth, Pawnee & Western Railroad Company (since changed to Union Pacific — now Kansas Pacific Railway Company) executed an instrument in writing, called a mortgage. Now, whatever this instrument may be called, it is absolutely ridiculous to suppose it has the attributes of a Kansas statutory mortgage. If it is such a mortgage, the railroad company, as mortgagor, possessed the entire title to the land, and the United States, as mortgagee, had nothing but a lien on the same — a mere security for the debt. After condition broken, the United States could not repossess themselves' of the land, as provided in the treaty, and sell it as though no contract had ever been made with the railroad company, but they must commence an action in the district court of the. state as provided in our statutes, obtain a judgment against the railway company, and have the land appraised and sold at sheriff’s sale to satisfy said debt; and if the United States should not commence such action within three years after the cause of action accrued, they would be forever barred by our statute of limitations from commencing any action, or from ever setting up any claim or title to the land by virtue of the mortgage or otherwise. This doctrine seems to be too preposterous to be seriously considered. Under it the state law becomes the paramount law — the supreme law of the land, and the laws and treaties of the United States must yield thereto; [but see Sub. 2, § 1, Art. 6, U. S. Const.,] the State of Kansas has the paramount right
The judgment of the court below is affirmed.