45 Kan. 484 | Kan. | 1891
Opinion by
Action of ejectment for the possession of lots 9, 10, 11, 12, and 13, in block 36, in the city of Chetopa, Labette county, Kansas. Defendant admits possession in herself, and alleges that she is the owner of the lots in dispute by virtue of a tax deed, and other conveyances. The case was submitted to the court below without a jury upon the following agreed statement of facts, November 2, 1887:
“1. Before the sale in September, 1875, hereinafter mentioned, the title of the property in controversy in this suit was perfect in Willoughby Doudna, the husband of the plaintiff, Ruth A. Doudna, and the father of the other plaintiffs.
“2. Said property was sold for taxes in September, 1875, for the taxes thereon for the year 1874, costs, penalties and expenses, and was by the county treasurer of Labette county at such sale bid off to and for said county.
“3. Said Willoughby Doudna died intestate on November 4, 1878, leaving a widow, said Ruth A. Doudna, and four children, who were then minors; and the younger died in March, 1886. The other three children are the plaintiff above named, Mrs. Mattie Bennett, now twenty-three years of age, Hosea W. Doudna, now sixteen years old, and Oliver R. Doudna, now fourteen years old.
“4. In the month of July, 1880, Lee Clark purchased and*486 took an assignment of the tax-sale certificate of said property-on said tax sale of September, 1875, and in said month of July procured tax deeds therefor, ther'ecords of which, including date of recording, may be used in evidence instead of originals,' as hereinafter stipulated, and thereafter he and his wife sold and conveyed said property to one J. L. Nan Note, and Van Note and his wife thereafter sold and conveyed said property to said defendant, Emma J. Harlan. The records of these conveyances, including date of recording, may be used in evidence instead of originals.
“ 5. Defendant, Emma J. Harlan, since the purchase of said property improved same to an extent left for further inquiry and determination, if necessary to an adjustment of the rights of the parties to this suit. She is now in the possession of the property, and has been in possession thereof since this suit.
“6. In October, 1886, said plaintiff paid to the county treasurer of said county for the purpose of redeeming said property, except lot 13, from tax sale of September, 1875, the sum of $114.60, and received from the treasurer of said county the redemption certificate, which is to be introduced in evidence to speak and show for itself, and for all purposes for which it is competent. The payment of said money was for and on behalf of said minors, and the money is still in the hands of the treasurer of said county.
“7. Said property was no part of the homestead of said Willoughby Doudna nor of his family. That exhibit ‘A,’ hereto attached, contains the levies of the taxes for general county purposes and poor and incidental funds for the year therein described and set forth.
“8. Said lots 9, 10, 11, 12, and 13, and lots 14, 15, and 16, comprise the northwest quarter of said block 36; and in the summer and fall of 1881, said Van Note built a house on lots 15 and 16, and a barn on 12,13 and 14; and in February, 1882, completed the building of an iron fence in front of all said lots, and part way on east line of said lot 9, and part way on west line of said lot 16, and a wooden fence around balance of said quarter block. This house was burned down in February, 1884.”
It was likewise admitted on the trial of the cause, that more than five years had elapsed from the time of the recording of the tax deeds under which the defendant claims and the commencement of this action, and that at the time of the sale of
That the assessed valuation of both personal and real property in Labette county, Kansas, from 1874 to 1880, did not exceed $3,000,000. And that the levies made by the county commissioners, as above stated and set forth, were not submitted to a vote of the electors of said county of Labette and state of Kansas, before said levies were made, or at any time. “No. 1179,. 1180, 1181, 1182. $113.75.
“COUNTY TREASURER'S OuEICE.
“State oe Kansas, Labette County, ss. — I,C.W. Lit-tleton, treasurer of Labette county, Kansas, do hereby certify that Mrs. Ruth Ann Doudna, for Hosea Doudna and Oliver Doudna,/minors,' has this day redeemed the following real estate from the sale of 1875, to wit: Chetopa, lots 9, 10, 11, and 12, block 36. The above-described real estate was sold on the 7th day of September, 1875, to Labette county, and assigned July, 1880, to Lee Clark for the sum of $3.04, being the delinquent tax for the year 1874, by the payment to the said treasurer of the following amounts:
Paid by purchaser at sale.:. $3 04
The following tax indorsed on sale:
1875-6-7-8-9, amount. $5 56
Tax paid by purchaser, 1880. 1 12
Tax paid by purchaser, 1881. 1 20
Tax paid by purchaser, 1882. 2 11
Tax paid by purchaser, 1883. 2 12
Tax paid by purchaser, 1884. 9 93
Tax paid by purchaser, 1885. 10 04
Interest.•. 68 83
Costs and certificate of sale. 9 80
Total $113 75
*488 “Deeded July 13, 1880.
“Witness my hand this 18th day of November, 1888.
C. W. LittletoN, Treasurer.
By H. T. Atwood, Deputy.
“Oounty Fees:
Teeasubeb.$0 40
County Clebk. 25”
The court upon said statement of facts found for the defendant, and adjudged that she recover her costs. The plaintiffs objected to the findings of the court, and moved for a new trial, which motion was overruled.
The first contention of the plaintiffs in error is, that the tax deed relied upon by the defendant in error is void, and therefore never operative as a transfer of title. Coupled with this is the further contention that, said deed being void, it never did and could not set the five years’ statute of limitations to running, and therefore the trial court should have set aside the tax deed in controversy, and found for the plaintiffs in error. In support of this position, counsel cite the case of Richards v. Thompson, 43 Kas. 214. An examination of that case shows that the tax deed involved therein was void on its face. It is well settled that a deed void on its face will not set the statute to running. The defect in the deed in that case is patent. The deed itself, and the record thereof, carry with them the evidence of their invalidity, of which the grantee and those who claim under him must take notice, and the five years’ statute of limitations prescribed in ¶ 6977 of the General Statutes of 1889 will not run in favor of such a deed.
But the defect which renders a deed invalid may not appear upon its face. It may be ascertainable only upon an examination of the proceedings antecedent to the issuance of the deed, or the sale. Such a deed carries with it a presumption in favor of the regularity of the conditions precedent thereto. And in such a ease, our understanding is, that it is sufficient to set the statute to running in its favor. In this case, it is not insisted that the land was not subject to taxation at the time it was listed. It is admitted that the tax
But it is claimed that, as the tax upon which it was sold was in excess of the amount that the commissioners were by law allowed to levy, they had no power to levy the tax upon which the sale was had, and that a deed following a sale on a tax that the commissioners were without jurisdiction to levy could not start the statute of limitations to running in its favor. If there were no question of the statute of limitations involved in the case, the showing might be sufficient to avoid the deed. But this court has settled the question as presented here, against the plaintiffs in error, in the case of Edwards v. Sims, 40 Kas. 235. In that case Mr. Commissioner. SimpsoN, writing the opinion for the court, says:
“We have noticed all the objections urged against the tax deed, and it not being pretended that the taxes were paid, the land redeemed, or that it was not subject to taxation at the time it was listed, it becomes to us a matter of positive duty, in obedience to the law-making power of the state, to apply the limitation contained in § 141 of the tax law to the facts as shown by the record, and the result is, that none of the matters alleged against the deed can be considered by the court, because the deed had been recorded for more than five years before the commencement of this action against the assigns of the tax purchaser for the recovery of the land, and at that time the bar of the statute is complete.”
In Jordan v. Kyle, 27 Kas. 190, it is held that—
“Where the land is taxable, and the taxes have not been paid, or the land redeemed as provided by law, and the tax deed is executed by the officer authorized by law, is regular on its face, contains a perfect description of the land conveyed, and has been of record more than five years before December 3,1879, the date of the commencement of the suit against the tax purchaser, the bar of the statute of limitations fully attached to said tax deed before the action was brought.”
In Maxson v. Huston, 22 Kas. 643, the court held that—
“A tax deed regular on its face, containing a perfect description of the land conveyed, and of record the time prescribed by the statute of limitations, is protected by said*490 statute from impeachment by evidence that the description of the land on the assessment roll, and in the sale certificate, is fatally defective.”
In this case Mr. Justice Brewer, in promulgating the opinion of the court, very pertinently says:
“If the proceedings must be so regular as to make a valid sale before the statute of limitations will start to run upon a tax deed good upon its face, then the statute has but little virtue in these cases as a statute of repose; for upon a valid sale, a valid deed can be compelled, and the statute will rarely be invoked except in cases where it is not needed.”
See also, as bearing upon this question: Barr v. Randall, 35 Kas. 126; Mack v. Price, 35 id. 134; Sanger v. Rice, 43 id. 580.
We are referred by counsel for plaintiffs to the case of Kemper v. McClelland, 19 Ohio, 327. In that case, however, there was no question of the statute of limitations, and we have no doubt that the court properly avoided the tax deed, because of the excess of tax upon which the sale was had. If, however, the deed had been valid upon its face, and the five years’ statute had run in that case, as in this, the question would have been analogous to the one in the case before us, and the decision would have been different.
The Iowa supreme court has settled the question so far as that state is concerned, and we believe the construction placed upon the Iowa statute by the court of that state, in Stevens v. Casady, supra, was in accord with the meaning of both the statute of that state and of our own. It is recommended that' the judgment of the district court be affirmed.
By the Court: It is so ordered.