In 1880 one Kemis entered a timber claim in McCook county, and in 1890 received his final receipt, and in 1893 a patent for the same. After the issuance of a patent Kemis sold and transferred the property to the plaintiff. During the years from 1882 to 1892, inclusive, personal property taxes were assessed against said Kemis, of which only the taxes assessed for the year 1886 were paid. ' In 1896 the county auditor brought forward these delinquent personal taxes against Kemis, and advertised and sold the real property so entered as a timber claim for the same, together with the real1 estate taxes on said real property for the year 1895, for the sum of $344.65, and issued to the county a certificate of sale therefor. The plaintiff, claiming that the real property was only liable for the real-property tax for 1895 and the personal taxes assessed against Kemis for the year 1893, amounting to
The court concluded, as matter of law: “(1) That the personal tax of Thomas Kemis for the years 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, and 1891 are not and never were a lien or liens upon the premises described in the complaint.
“(2) That the sale of the premises mentioned and described in the complaint, and for which the certificate of sale in this action was issued, so far as the said sale was for the satisfaction or collection of personal taxes for the years mentioned in paragraph 1 of these conclusions of law, is null and void. ”
“(4) That at the time of the treasurer’s sale mentioned in the complaint, on November 5, 1896, the said real estate sold was not liable for the satisfaction of any taxes, except the taxes assessed against the same for the year 1895, and the personal tax of Thomas Kemis for the years 1892 and 1893. ”
Judgment was thereupon entered for the plaintiff that,, upon payment of $49.65 and $8.65 for personal taxes assessed against said Kemis for the year 1892, the certificate be canceled. From this judgment and order denying a new trial the defendants appealed.
The learned circuit court evidently took the view that, as the property was a timber claim, the personal property taxes assessed against Kemis prior to the issuance of the patent therefor never became a lien thereon under the provisions of Section 4, Chapter 190, Laws U. S. 1878, which reads as follows: “That no land acquired under the provisions of this act shall in any event become liable to the satisfaction of any
By § 1612, Comp. Laws, it is proved that “taxes due from any person upon personal property shall be a lien upon any real property owned by such person or to which he may acquire a title.” The same provision is contained in section 96, c. 14, Laws 1891, but with a limitation upon its exercise. A large portion of the personal taxes involved in the case at bar accrued prior to the passage of the law of 1891, and must be governed by the section above quoted. The final certificate mentioned in the timber-culture act of 1878, having been issued to Kemis in January, 1890, he thereafter, for the purposes of taxation, became the owner, and the land became subject to the lien for personal oaxes assessed prior thereto. Witherspoon v. Duncan, 4 Wall. 210. In that case the supreme j court says: “In no just sense can lands be said to be public | lands after they have been entered atthe land office, and a certificate of entry obtained. , If public lands before the entry, 1 after it they are private property. If subject to sale, the government has no power to revoke the entry and withhold the patent. A second sale, if the first was authbrized by law, confers no right on the buyer, and is a void act. According to' the well-known mode of proceeding at the land offices (established for the mutual convenience of buyer and seller), if the party is entitled by law to enter the land, the receiver gives him a certificate of entry, reciting the facts, by means of which in due time, he receives a patent. The contract of purchase is complete when the certificate of entry is executed and deliver
As the lien for the personal property taxes assessed prior to 1890 attached in January, 1890, these taxes are not affected by the act of March, 1891.
Respondent further contends that the failure of the treasurer to make and file his return as provided by Section 96 of the act of 1891 rendered the sale invalid. But this view of the
The respondent also insists that as Kemis paid his real-estate tax in 1891, and received the treasurer’s receipt therefor, this receipt, under the provisions of Sections 82 and 83 of the lawT of ¡891, was made conclusive evidence that all prior taxes had been paid. But as this receipt was given in January, 1891, and the law of 1891 was not approved until March, 1891, it did not apply to this receipt for, or payment of, the 1890 tax.
The respondent further contends that in 1892 the property was sold for the unpaid taxes of 1891 assessed against the real property, but no personal tax of said Kemis was included, and that in March, 1891, the plaintiff redeemed the property from this sale, and this was conclusive that all prior taxes had been paid. But, assuming that the provisions of sections 82 and 83 are constitutional, the provisions can only apply to the payment of taxes in the ordinary way, and cannot be extended to include sales for taxes.
Our' conclusions are that, upon the facts as stipulated and found, the court erred in its conclusions of law, ahd that these conclusions should have been in favor of the defendants. The judgment of the circuit court is reversed, and that court is directed to enter judgment dismissing the action.