55 Kan. 574 | Kan. | 1895
The opinion of the court was delivered by
This was an action of ejectment commenced March 5,1890, by the plaintiff in error for the recovery of the northeast quarter of section 33, township 8, range 16, together with rents and profits. It was alleged in the petition that a prior action had been commenced on June 10, 1887, by the plaintiff for the recovery of the same land from the same defendants, except G. L. Reid, and that said action was dismissed by her without prejudice on March 22, 1889. The defendants, including G. L. Reid, filed a joint answer in the present action, alleging numerous defenses, the second being to the effect that the plaintiff’s only claim of title was by a tax deed to John C. Douglass and a deed of John C. Douglass and wife to the plaintiff, made without consideration, and with the fraudulent intent to hinder and delay the collection of the taxes assessed against the land, and to frustrate the due execution of the laws providing for the assessment and collection of taxes; and that said tax deed was null and void by reason of a failure to comply with the laws regulating the assessment and taxation of lands and their sale for delinquent taxes. The third defense
I. After introduction of the evidence on the part of the plaintiff, the defendants demurred thereto. This demurrer was overruled, and the defendants then offered their evidence, upon the close of which, on request of the defendants, the court instructed the jury to return a verdict in their favor. The case being brought
II. The claim of the plaintiff was under a tax deed to John C. Douglass, recorded September 8, 1868, and embracing the taxes of 1862, 1863, 1864, 1865, 1866, 1867, admitted to be prima facie valid, and a quitclaim
‘‘ When any lands or town lots are offered for sale for any taxes, it shall not be necessary to sell it as the property of any person or persons ; and no sale of any land or town lot for taxes shall be considered invalid on account of its having been charged on the roll in any other name than that of the rightful owner; but such land must be, in other respects, sufficiently described on the tax-roll, and the taxes for which it is sold be due and unpaid at the time of such sale.”
And by the form of the deed prescribed by § 112 of the same act, the title -was made subject “to all rights of redemption provided by law.” This clause was sufficient to save all the redemptive rights of minors under § 105 of the act. The plaintiff was the owner of this land by unrecorded deed before the taxes of 1874 were levied. The taxes, although a lien upon the land, were in no sense a personal charge against her. Purchasers at tax sales must look entirely to the real estate for their security. The tax-roll may or may not show the name of the owner, and this court has held that the omission of the name of the person to whom a tract of land is assessed from the notice of the tax sale, and from the notice of the expiration of the time for redemption, will not invalidate the title conveyed by the tax deed. (Shoup v. C. B. U. P. Rld. Co., 24 Kas. 547.) Prior to the transfer act, being chapter 145 of the Laws of 1877, the statement of the names of the owners of land on the assessment-rolls must have been very defective, and we presume
The defendants further contend in their brief that the plaintiff was not the owner at the date of the tax sale of 1875, because, although the quitclaim deed was executed in 1874, yet there was no proof of delivery of it at any time prior to the placing of it on record; but we think it sufficiently appears that the deed was delivered on the date of its execution. At least counsel for defendants so treated it in their objection to its introduction, wherein they stated that said deed was ‘ ‘ dated and delivered on the 13th day of April, 1874, and not recorded until the 28th day of April, 1877.”
III. It appears that on June 14, 1882, John.C. Douglass, as agent for the plaintiff, made an offer to said L. M. Myers, then county treasurer, to redeem the land, and tendered to him $223.70 in lawful money for that purpose ; the tender being made on behalf of said minor child, and the treasurer so informed at the time, but he refused the tender. The defendants claim that the amount of the tender was insufficient under § 105 of said tax law for 1868, and this is based upon the assumption that interest on the amount paid
IV. The plaintiff was a minor until August 5, 1886. This land was conveyed to her April 13, 1874. It was sold for taxes September 7, 1875. The certificate was assigned to L. M. Myers, October 27, 1876, and the tax deed was executed October 12, 1878, when the said L. M. Myers entered into possession of the land, which had theretofore been vacant and unoccupied. Although a minor, her right of action would have been barred within five years thereafter if no offer to redeem had been made, or had the tender been insufficient in amount. ( Goodman v. Wilson, 54 Kas. 709, and cases cited.) But a sufficient offer to redeem with tender of payment was made June 14, 1882, and the first action was commenced June 10, 1887, which was in time under § 141 of the tax law, and as she commenced the present action within less than one year after the dismissal of the first, we must hold that her rights are saved by §23 of the code.
Some other questions are raised in the case, but the -record is not entirely satisfactory thereon, and we deem it unnecessary to decide the same at this time.
The judgment will be reversed, and the cause remanded for a new trial.