33 Kan. 381 | Kan. | 1885
The opinion of the court was delivered by
This was an action in the nature of ejectment, for the recovery of two town lots in Peabody. The plaintiff claimed title under a tax deéd made by the probate judge of Marion county in pursuance of “an act relating to town sites.” (Comp. Laws 1879, ch. 109.) He alleges that these lots were a part of the west half of section four, township twenty-two south, of range three east, in Marion countjr, Kansas, which prior to the 27th day of December, 1871, were public lands belonging to the United States; that on that day the same were duly entered as a town site by the probate judge of Marion county, Kansas, for the benefit of and in trust for the occupants thereof; that afterward the probate judge appointed three commissioners to lay out, survey, and plat the town site, and to distribute the same among the several occupants thereof, and to levy a tax upon the several portions thereof as the law requires to raise a fund with which to pay expenses of entering the town site, and to pay all fees and costs connected therewith; that, the defendant, Mary J. Sterling, was an occupant of the town site, and that the lots in question, among others, were set off to her; that the defendant failed to pay the taxes assessed against her upon these lots, and that in pursuance of the provisions of “an act relating to town sites” the probate judge sold and conveyed these lots to the plaintiff to pay said taxes.
The defendants allege and claim that the plaintiff’s deed is invalid for the following reasons: That the commissioners appointed by the probate judge to survey and plat the town site, failed to follow the procedure pointed out by the statute, in that they did not return to the probate judge along with their report a plat of their survey, and did not designate on the
This action has been twice tried in the district court of Marion county. The first trial was had in April, 1878, which resulted iu a judgment in favor of the plaintiff. The defendants then, in open court, made an oral application to set aside that judgment, and for a new and second trial as authorized by law in actions of this character. This application was afterward reduced to writing, handed to the clerk of the court and filed as a paper in the case, and the clerk was by the defendants’ attorneys requested to enter the application upon the journal, signing their names thereto, immediately after the entry of plaintiff’s judgment upon the journal. Thereupon the court, upon this application, set aside the judgment and granted the defendants another trial. The plaintiff complains of the ruling of the court in thus granting a second trial, and upon an oral application. The objection is somewhat technical. In actions for the recovery of real property, the party against whom the judgment is rendered in the first trial is entitled to another and second trial upon demand made at any time during the term at which the judgment upon the first trial is rendered.
“ It shall be the duty of such commissioners to cause an actual survey of such site to be made, conforming, as near as
Section 5 provides that the commissioners shall, as soon as the survey and plat are completed, give a notice thereof to all persons interested in the town site, that, on a day stated, they will proceed to set off the lots, squares or grounds, to each occupant in accordance with their respective interests.
Section 6 provides for the setting apart of the lots, squares or grounds to the persons entitled to receive the same, in pursuance of the notice given in § 5.
Section 7 provides that—
“After the setting apart of such lots or grounds, and the valuation of the same, as hereinbefore provided for, the said commissioners shall proceed to levy a tax on the lots and improvements thereon, aeeording to their value, sufficient to raise a fund to reimburse to the parties who may have entered such site, the sum or sums paid by them in securing the title to such site, together with all expenses accruing in perfecting the same, the fees due the commissioners and the surveyor for their respective services, and other necessary expenses connected with the proceedings.”
Section 9 provides as follows:
“The said probate judge shall then proceed to collect the taxes, levied as aforesaid, and he shall make deeds to the lots so set apart to the various parties entitled to the same; but no deeds shall be made to any person until such person shall have first fully paid all the tax or assessment so levied against him; and in case any person shall refuse or neglect to pay such tax or assessment so made against him, the probate judge may proceed to offer such lots and improvements for sale to the highest bidder, first giving such public notice as may be required in case of execution against the lands and tenements of a debtor in the district court.”
The provisions of this statute relating to the levy and collection of taxes should be strictly followed and executed. Counsel for plaintiff contends that the taxes levied thereunder are not taxes, and that the rules respecting the levy and collection of taxes should not be applied to this case, or employed
As has been seen, the basis of the levy and the method of securing equality of the burden of this tax upon the people within the town site, is by the valuation of the lots as well as the improvements thereon. Herein the commissioners appointed in this case failed. By the plaintiffs proof it appeal’s that an arbitrary estimate was placed upon the lots, without regard to location or actual value, and no appraisement was made of the improvements that had been placed upon the lots. The commissioners then levied a uniform tax of three dollars upon each lot, regardless of its real value, or the value of the improvements thereon. This was certainly a wide departure from the statutory requirement, which is prescribed for the benefit of the tax-payer, and to insure equality of taxation. We are of the opinion that the rule of the statute apportioning the tax and fixing the basis of its levy upon the valuation of the lots and the improvements thereon, is an essential requirement, a disregard of which is fatal to the proceedings. (Cooley on Taxation, p. 324; State v. Jersey City, 5 N. J. L. 386; Clark v. Crane, 5 Mich. 151; Hewes v. Reis, 40 Cal. 255; Davis v. Farns, 26 Tex. 296; Brown v. Veazie, 25 Me. 359.)
It appears, too, that the defendant tendered to the probate judge in good time the amount of the tax levied against the lots in question. The tender was refused because it was in
These conclusions necessarily lead us to hold the plaintiff’s, tax deed to be invalid, and it is therefore needless to discuss or decide upon the other grounds of invalidity asserted against the deed by the defendants.
There was no error in sustaining the demurrer interposed by the defendants to plaintiff’s evidence, and the judgment of the district court will therefore be affirmed.