24 Kan. 309 | Kan. | 1880
The opinion of the court was delivered by
This was an action brought by defendant in error on July 1st, 1879, to quiet title to a certain tract of land in Cowley county. In his petition,- he alleged that he
“That the board of commissioners of Cowley county, on behalf of the county, on April 15th, 1875, entered into a written contract with one James Kelly to publish in the Winfield Courier the delinquent tax list for 1874, at the rate of eight cents per tract of land; that under said agreement the county board paid Kelly only eight cents per tract, and that the county treasurer collected the sum of twenty-five cents for each tract, including the one in controversy.”
The defendant in error demurred to this defense, and to the other parts of the answer. At the August term of the court for 1879, the court sustained the demurrer. The plaintiff in error, electing to stand by the answer, had judgment entered against him. He brings the case to this court.
The answer is somewhat inartistically drawn, but it fairly, we think, presents the questions, whether the county can legally collect a larger sum for advertising a tract of land in a delinquent tax list than it pays to the publisher? — and, if it cannot, whether a tax deed founded upon a sale including a sum in substantial excess of the actual costs for advertising will be adjudged invalid and set aside, if challenged before the running of the statute of limitations? The first inquiry is disposed of by the case of Quigley v. Comm’rs of Sumner Co., ante, p. 293. In the opinion in that case, Mr. Justice Brewer, speaking for the court, says: “If the county pays only five cents a tract for advertising, the treasurer should charge that amount only against the tract. This not only harmonizes the statutes, but gives force to the different words employed in §109, Comp. Laws 1879, p. 960.” To this we may add, that the collection of a large sum as costs for advertising in excess of the actual compensation allowed, and the payment of such excess into the treasury for the use of the county, or the retention of the excess by the county treasurer,
As the sale of the land was for a sum in substantial excess of the legal costs, the sale was invalid, and the deed must be adjudged defective. We use the words “in substantial excess” in comparison with the total amount of the actual costs. The fee paid the printer was eight cents. The fee charged and collected was seventeen — more than twice the legal fees.
In Huse v. Merriam, 2 Greenl. 375, it was insisted that the proceeding was invalid, because the assessor had exceeded the levy by eighty-seven cents in an assessment of $215. The claim was sustained, and the assessment held void. In McLaughlin v. Thompson, 55 Ill. 249, it was decided that if any part of the tax, however small, is illegal, the sale is void, for the maxim de minimis non curat lex does not apply to the sales of land for taxes. In Wells v. Burbank, 17 N. H. 393, an excess of nine cents on the assessment was held to vitiate the tax. In the late case of Gukil v. Kirby Carpenter Co., (U. S. Ct. Ct., E. D., of Wisconsin — Reporter, vol. 9, No. 2, p. 37,) Drummond, J., in delivering the opinion of the court, said:
“If a tax deed which was offered in evidence is valid, then the judgment must be for the plaintiff; if invalid, the judgment will be for the defendant. . . . The objection is, that the land was sold for that which was not a tax, This objection we sustain, (I must say with a good deal of hesitation on my part.) The facts in relation to that objection are these: There was a certain amount assessed against each tract of land for the tax due upon it less than the amount for which it was sold. It was a small sum added, (only five cents,) but it clearly appears that under no circumstances could this sum be added, under any law of the state, to the taxes, and included within the amount for which the land was sold. And we hold that that circumstance rendered the sale void, as there was included in the amount something for which the officer had not the right to sell the land.”
We might extend these authorities, but we deem it unnec
The order and judgment of the district court will be reversed, and the case remanded with direction to overrule the demurrer of defendant in error.