28 Kan. 764 | Kan. | 1882
The opinion of the court was delivered by
It is urged on the part of plaintiff in error (defendant below) that Morten, defendant in error (plaintiff below), could not maintain an action for the recovery of the possession of the real estate in controversy. It is conceded that on July 15,-1876, one J. M. Emmert and wife conveyed • the premises to Morten by warranty deed; that Emmert’s title was perfect from the government, as shown by the chain of title introduced, except it is alleged that as Emmert, on the 17th day of January, 1874, executed a bond for a deed of this land to one Daily; that the ownership and equitable title thereof passed at that time from Emmert to Daily, and as the bond was duly recorded in the office of the
Second: In all the cases above referred to, the vendors executing the title bond put the purchasers into possession of the premises. In this case it is not shown that Daily was ever put in possession of the premises, or ever had any actual possession thereof. The bond provided that ,$400^was to be paid on or before the 1st day of January, 1875, according to a promissory note executed by Daily to Emmert, and further provided that Emmert, within a reasonable time after the note was paid, should execute to Daily a good and sufficient deed for the premises, and thereon the bond was to be void. The deed was to be executed, however, upon the condition that the balance of the purchase-money was paid at the time • it was due. So, as Morten had the legal title and was entitled thereby to the possession of the premises until the contrary appeared, unless plaintiff in error had a valid tax deed, the first objection of counsel is fruitless.
The other question concerns the validity of the tax deed. This was filed for record on February 13, 1880, a little over one year before this action was brought. • The trial court adjudged the tax deed invalid for several reasons, among others, because there were excessive sums intentionally included within the amount for which the land was sold at the tax sale. (Quigley v. Comm’rs of Sumner Co., 24 Kas. 293; Genthner v.
It is. finally claimed that if the fee was actually charged for selling, that the law authorized the collection of such a fee. (Sec. 109 of the tax law.) The legislature has not specified any amount as a fee for the mere selling of property at tax sales, and therefore we must hold that such a fee is without statutory warrant, and unlawful. “The costs of advertising and the fees for selling ” must be interpreted to refer to those fees only specially named in the' statute. The other alleged defects of the tax deed need not be noticed.
The judgment of the court below will be affirmed.