| Kan. | Jul 15, 1884
The opinion of the court was delivered by
On November 24, 1882, H. H. Harris commenced two actions in the district court of Shawnee county: one against Theodore Cumm, C. D. Savage and Stella Savage for the recovery of lots numbered 135,137, and 139, on Tenth avenue west, in the city of Topeka, and the other against S. E. Edwards and Theodore Curran for the recovery of lots numbered 141 and 143, on the same avenue. -The two cases are precisely alike in nearly all their facts, and so near alike with regard to the questions of law involved therein that one opinion will answer for both cases. Each case was tried by the court without a jury, and special findings of fact and law
In 1860, the lots in controversy belonged to Harvey G. Young, he being the original patentee. They were subject to taxation at the time, and have at all times since been subject to taxation. Afterward, Young died, and on December 6, 1866, Erastus Tefft, his administrator, and Ruth J. Young, his widow, conveyed the lots to John Guthrie, and the deeds were recorded on January 12, 1867. On May 6, 1870, the' lots were sold for the delinquent taxes of 1869, to J. F. Carter, and on May 25,1870, Carter assigned the tax-sale certificate to Patrick Kelly. On May 7, 1873, a tax deed was executed by the county clerk to Kelly for said lots for the taxes of 1869, as well as for the taxes of 1870, Í871, and 1872, paid by the tax-sale purchaser, and such tax deed was recorded on May 9,1873. On May 17,1873, Kelly conveyed said lots to Henry S. Chapin, and the deed was recorded on the same day. The taxes of 1873 were not paid, and on May 5, 1874, the lots were sold to B. J. Ricker for such taxes. On December 31, 1874, Chapin died, leaving Mary Chapin, his widow, as his sole surviving heir. Up to this time both Chapin and his wife had resided in Kansas and been personally present therein, except for about twenty days. On March 1, 1879, Ricker assigned his tax-sale certificate to William P. Thompson, and on March 22,1879, the county clerk executed a tax deed to Thompson for the lots for the taxes for the year 1873, as well as for the years 1874, 1875, 1876, 1877, and 1878, paid by the tax purchaser, and the tax deed was recorded on the same day. In April, 1879, Thompson took possession of the property; and he and his grantees have retained such jDOSsession ever since. These propositions contained in this last sentence are disputed, but it is admitted that Thompson and his grantees have been personally present in Kansas ever since April, 1879. Prior to this time, the lots had been vacant and unoccupied. On December 30, 1880, Thompson conveyed said lots to Mary C. H. Guthrie, and the deed was recorded on the same day. On
“ 1st. Has a party holding a tax deed, regular on its face, and being of record more than five years, while the lots are vacant and unoccupied, five years or only two years from the recording of a subsequent tax deed, in which to bring suit against the holders of the last tax deed?
“2d. All the evidence being preserved in the case-made, does it support the twenty-first finding, that the defendants were in the possession of the property in controversy from April, 1879, up to the present time — the plaintiff claiming that no possession was taken of the property until January, 1882?”'
The defendants,- however, claim that there are still other questions to be decided. They claim that their tax deed is good and entirely sufficient, without reference to any statute of limitations and without reference to the possession of the
The defendants also claim that the plaintiff’s tax deed is barred by some statute of limitations; and also that it is void on its face for the reasons: 1. Because the lots are described as “on Tenth avenue west, city of Topeka,” instead of on Tenth avenue west, in the city of Topeka. 2. Because the deed states that the sale was made on May 6, 1870, “at the ‘ sale begun and publicly held on the first Tuesday of May, 1870,” when in fact May 6, 1870, was Friday, and the first Tuesday of May, 1870, was the third day of the. month. They also claim that the court below erred as against them, for the reason that it refused to permit them to introduce evidence showing that the taxes upon which the plaintiff’s tax deed is' founded were illegally assessed. We think that the lots were sufficiently described as being in the city of Topeka; that the sale made on May 6, 1870, was obviously at a sale begun and publicly held on the first Tuesday of May, 1870, and continued to May 6, 1870; (in this connection see Patterson v. Carruth, 13 Kan. 494" court="Kan." date_filed="1874-07-15" href="https://app.midpage.ai/document/patterson-v-carruth-7883851?utm_source=webapp" opinion_id="7883851">13 Kas. 494; Morrill v. Douglass, 17 id. 293;) and that the irregularities in the assessment of the taxes cannot be considered after a statute of limitations has completely and finally run in favor of the tax deed. The plaintiff’s grantors had a valid tax deed, which vested in them the absolute title to the property in fee simple; (Gen. Stat. of 1868, ch. 107, §112; Board of Regents v. Linscott, 30 Kas. 242, 265;) and as no one was in the actual possession of "the property, they were also vested with the constructive possession thereof; for the constructive possession of property always follow's the legal title, when the actual possession is not in any other person.
There is also another two-years statute of limitations found in the civil code, §16, subdivision 3, which may also have operated to some extent in favor of the plaintiff’s tax deed. There was no five-years statute of limitations then in existence with reference to tax deeds, and none prior to March 11, 1876. Under the circumstances of this case, the plaintijj stands in the place of the original owner of the property. On or before May 9, 1875, his grantors procured the whole of the original owner’s title, and all other titles; (McFadden v. Goff, ante, p. 415;) while the defendant’s tax title dates from March 22, 1879. The plaintiff’s title is therefore prior in time to that of the defendants. And after the plaintiff’s grantors procured his title, and for several years thereafter, no other person possessed any right, title, interest or possession in or to the property in controversy. Therefore, as between the plaintiff and the defendants, the plaintiff must be considered as the prior and the original owner, and we would think that the plaintiff has the same right to maintain this action that he would have if he were the original patentee. Until the defendants’ tax deed was executed the plaintiff’s grantors were the owners of the fee, and the absolute and exclusive owners thereof; and it has already been decided by this court that under §141 of the present tax law “the owner of the fee out of possession may commence his action against the
As before stated, § 141 of the jnesent tax law was enacted in 1876, while subdivision 3, § 16, of the civil code, was enacted in 1868. Hence if the two sections in any manner conflict with each other, § 141 must govern; and therefore the plaintiff, whose grantors were the owners of the fee at the time when the defendants’ grantors procured their tax deed, and had it recorded, and took possession of the property, had the right to commence his action to defeat the defendants’ táx deed at any time within five years after the recording of the defendants’ tax deed. And the plaintiff brought his action within that time, and we think he has the right to maintain the same. No one, except the plaintiff and his grantors, has ever had any right to bring an action to test the validity of the defendants’ tax deed, and surely some one should have that right. This brings us to the question whether the defendants’ tax deed is valid, or not; for if it is valid, they are entitled to recover; but if it is void, or voidable, the plaintiff may recover.
The court below made the following findings, to wit:
“ 23d. That the printing of the delinquent tax list for the tax sale of 1874 was performed by the printer under a written contract between himself and the county of Shawnee, for twenty per cent, of the legal charges, and the whole of the legal fee was charged against the lots in controversy for the printing of the delinquent list, and formed a part of the taxes for which said lots were sold.
“ 24th. That the printer did not file his affidavit of publication for more than fourteen days after the last publication, said last publication being April 23, 1874, and said affidavit was not made and filed until August 10, 1874.
“ 25th. That the assessed valuation of all taxable property of Shawnee county for the year 1873 was $6,010,285, and that the taxes levied for the year 1873 were as follows: For current expenses of the county, five mills on the dollar; to pay interest on ‘fair-ground bonds’ and the ‘Topeka bridge bonds’, one mill; for repairing and building county bridges, one mill — all of which levies were made without the direct*588 vote of the electors of the county, authorizing the same, and that all these taxes so levied entered into and formed a part of the taxes for which said lands were sold in 1874.”
The plaintiff claims that upon the facts contained in the foregoing findings the defendants’ tax deed is void, or at least voidable, and that the court below erred in holding it valid and in rendering judgment in favor of the defendants and against the plaintiff to that effect. We think the plaintiff’s claim is good; for as the whole of the printer’s legal fee, chargeable against the lots in controversy for publishing them as required by law in the delinquent tax list of 1874, was charged against the lots and the lots sold therefor, while only 20 per cent, of that amount was paid to the printer, the defendants’ tax deed must, within the decision of the case of Genthner v. Lewis, 24 Kan. 309" court="Kan." date_filed="1880-07-15" href="https://app.midpage.ai/document/genthner-v-lewis-7885169?utm_source=webapp" opinion_id="7885169">24 Kas. 309, be held to be voidable.
The judgment of the court below in each of these cases will therefore be reversed, and the causes remanded for further proceedings.