24 Kan. 198 | Kan. | 1880
Plaintiff in error, plaintiff below, being the holder of a' tax title upon a quarter-section of land, commenced this action against the original owner, to quiet title. The defendant appeared, and upon the trial the tax title was set aside, the amount due plaintiff on account of the taxes paid by him found, but not adjudged a lien upon the land. The plaintiff brings error, claiming that his tax deed is valid, and if not, that the taxes paid by him, and interest, should be adjudged a lien upon the land, with the ordinary decree of foreclosure and sale. The statute of limitations had not run on the tax deed, so the questions rest on the simple strength of the deed and prior proceedings.
Three objections are made to the tax title. We shall notice but one, as that is, we think, sufficient to defeat the title. The notice of sale was as follows:
“DELINQUENT TAX LIST.
“ Treasurer’s Oeeice, Linn Co., Kansas,
“March 5th, 1873.
“Notice is hereby given, that the following list of lands and town lots are subject to sale for the taxes of the year 1872, remaining unpaid, and that so much of each tract of land or town lot as may be necessary for the purpose, will, on the first Tuesday of May, 1873, and the next succeeding days, be sold by me at public auction for the taxes and charges thereon.”
It will be perceived that this notice says nothing about the place of sale. It names the time, but not the place. So far as the notice is concerned, the treasurer might comply with it by selling at his office, or his house, or on the street corner. In reply to this, counsel urge that the place of sale is fixed by statute, and that therefore any mention of the place is unnecessary, and its omission a mere irregularity. There is a plausibility in this argument, but we cannot think it sound. The same argument might be made as to the matter of time, and a notice of sale which specified neither time nor place would have to be held sufficient. Indeed, the same argument would
The court found the amount due the plaintiff on account of the taxes, but failed to adjudge it a lien or decree a foreclosure. This is alleged as error. If this had been an action for the recovery of the land, then, under §142 of Comp. Laws 1879, p. 967, the claim must have been sustained. (Fairbanks v. Williams, ante, p. 16.) But an action to quiet title is not an action for the recovery of the land. Indeed, in this case the plaintiff alleged in his petition that he was in the actual possession. Can the plaintiff, not proceeding under said §142,. but in an ordinary equitable action, obtain a decree of foreclosure of a tax lien? It is undoubtedly true that by statute,, taxes are made a lien, and that equity, when it takes jurisdiction, enforces a lien by foreclosure and sale. But has equity any jurisdiction in this case? Can the holder of a tax lien foreclose it as he would a mortgage lien? We think not. The statute has prescribed the proceedings in reference to taxes, tax sales, redemptions, and also to secure the rights of tax purchasers; and whenever these proceedings apply, a party may not invoke the general jurisdiction and proceedings of the courts. Counsel contends that there is no adequate remedy at law, and therefore he has a right to go into-equity. ' We think the statute furnishes him several remedies. If he be out of possession, he can proceed under said § 142. If he be in possession, and his deed recorded and regular on its face, five years will give him the land; (§ 141.) If the original owner seeks to dispossess him, then, under said § 142, he either retains possession or obtains his taxes. If his deed be adjudged invalid, as in this case, on account of a defect in the sale, then, under § 146, he may recover his money and ten per cent, interest from the county. It seems to us that the statute has given ample protection and abun
Defendant has filed a cross-petition, in which he challenges the interest allowed by the court on the taxes, to wit: fifty per cent, to the date of the deed, and twenty per cent, upon the sum then due, thereafter. Defendant in the court below filed his answer, asking affirmative relief; that plaintiff’s deed be declared void, and his title quieted. This relief he obtained. It is a familiar rule, that he who asks equity must do equity. Seeking to destroy plaintiff’s title, he must discharge plaintiff’s lien; and he ought not, by going into equity, to reduce the rights which plaintiff would have at law. If he brought ejectment, § 142 would fix the amount of interest. It is not equity that by changing the form of his action he can reduce that interest. That section gives “all- interest and costs as allowed by law up to the date of the tax deed,” and twenty per cent, thereafter. The twenty per cent, being expressly named, cannot be questioned; but what is meant by “the interest allowed by law?” We think'it means the interest required for redemption. That is the special provision regulating interest on taxes, and it seems that this language more naturally and properly refers to such- special provision. The rate named after the deed, twenty per cent., indicates that the rate up to'that time was the rate at which the taxes prior would be computed for the deed, or by redemption to prevent the issue of the deed. This section has been in force for many years, and such we believe to have been universally recognized as its meaning. This general recognition is no small evidence of the real intent of the legislature.
We suppose the amount found due by the court draws interest from the date of the decree at seven per cent., as any ordinary judgment: we see nothing giving a higher rate of interest.
