29 Kan. 569 | Kan. | 1883
Lead Opinion
The opinion of the court was delivered by
This case comes up from the district court of Leavenworth county, and the questions involved therein arose in a suit by the plaintiff in error to foreclose a note and a mortgage given by, George E. Hines and D. W. Eaves and their-wives, on several tracts of land embracing lot No. 2 of Diefendorf’s subdivision. ■ A great many persons supposed to have some lien on, or interest in, portions of the mortgaged premises were made defendants, including the defendant in error. , The latter answered, setting up a claim of title to the lot aforesaid. The rest of the defendants were duly served with summons,'either personally or by publication, and the action stood regularly for trial at the December term,' 1882, and came ojn for final hearing on the 11th.day of January, 1883.
After the plaintiff had proved the transfer of the note and the mortgage to himself and introduced them in evidence, the defendant in error offered some tax proceedings in evidence to support his claim of title to said lot. These proceedings, so far as they were embraced in his offer, consisted of tax levies of 1873 up to 1878, inclusive, by the commissioners of said county; the record book of delinquent, tax sales of 1874, showing the sale of the lot aforesaid to .the county on May 12, 1874, for the taxes of 1873, for the sum of $3.92, and also showing the subsequent taxes up to and including 1878 amounting to $16.53, exclusive of interest, charged up to said sale; also the proceedings of the county board, dated March 5, 1880, which were claimed to show a compromise of the taxes aforesaid, and to authorize an assignment of the tax-sale certificate to Finneran for $18; also the tax-sale certificate and its assignment to. the defendant in error by the county clerk; and also two tax deeds for said lot,,both .based .on the aforesaid tax proceedings, the first dated October 2,.1880, and the other January 11, 1883; the latter actually issued during the progress of the trial. ...
The plaintiff in error duly objected to all this evidence as not. sufficient to transfer the title to the property mentioned, and as being incompetent and irrelevant. The court sustained the objection as to the first tax deed, but overruled the objection as to all the other evidence offered, and received the proceedings in evidence; holding that the first tax deed was void upon its face, and that the second one was . regular and valid, notwithstanding all the objections thereto; but required the defendant in error to amend his answer so as to make it conform to the evidence introduced in the case; and then the court rendered judgment, including, among other things, a judgment, against the plaintiff as to said lot, vesting the absolute title thereto in the defendant in .error, free fro.m all liens under the plaintiff’s mortgage. It is this particular judgment concerning lot-No. 2, in Diefendorf’s su,bdi
I. The plaintiff in error claims that the compromise law of 1879, (Laws of 1879, ch. 43; Comp. Laws of 1879, p.965, ¶5911,) under which the defendant’s tax-sale certificate and tax deeds were issued, is unconstitutional and void, being, as he claims, in contravention of that provision of §1, art. 11, of the constitution of Kansas, which declares that “ the legislature shall provide for a uniform and equal rate of assessment and taxation.” Counsel for plaintiff in error has made an able and ingenious argument to show that this compromise law of 1879 has the effect, if enforced, to render the rate of taxation in the various counties of the state unequal and not uniform; and he also claims that it tends to disturb quasi vested rights. We have carefully considered his argument, and with some doubts and hesitation have arrived at a different conclusion; and while we agree in holding that the compromise law of 1879 is not void, absolutely and entirely, if void in some particulars, we have not arrived at that conclusion by entirely the same course of reasoning, and hence we do not think that it is necessary to state our reasons. We simply state that we think that the compromise law of 1879 is constitutional and valid, so far as it has application to this case; and beyond this we express no opinion.
II. The plaintiff in error also claims that even if the compromise law of 1879 is constitutional and valid, still that tax deeds issued under it are not prima facie evidence of title, or of the regularity of the prior tax proceedings upon which such tax deeds are founded; and that §138 of the general tax law can have no application to such tax deeds. This claim is not tenable. The compromise statute provides, among other things, that when the compromise is consummated the county treasurer shall execute and the county clerk as
III. The plaintiff in error further claims that even granting that the compromise law of 1879 is valid, and that tax deeds issued under it are prima fade evidence of the regularity of all prior proceedings, yet that the deed issued in the present case and held to be valid by the court below was void upon its face, for the following reasons: (1) Because the subsequent taxes for five years charged up to the sale of 1874 were all lumped in one gross sum; (2) because the tax deed showed that taxes which had not been delinquent for three years were included in the compromise; and therefore, (3) because the tax deed also showed that instead of the compromise being for less than the amount of taxes due it was for a greater sum. We do not think that any of these reasons for claiming that the tax deed is void upon its face is sufficient. The tax deed shows the amount of taxes for .which the land was originally sold, and then shows the aggregate amount of taxes for the next five years which were charged up to this sale. This we think was sufficient, or at least the failure to show the amount of taxes in further detail does not render the tax deed void. (See § 139 of the tax law.) We also think it was perfectly
IV. The plaintiff in error also claims'that the tax deed is void under § 3, chapter 123, of the Laws of 1881, relating to floating liens. Now the fact is, that the defendant presented his tax-sale certificate and demanded a deed prior to the passage of the act of 1881, and therefore his right to a good and valid tax deed was fixed and vested under the law of 1879, and prior to the passage of the act of 1881. The failure of the county clerk in the first instance to issue a correct and formal tax deed cannot affect the rights of the defendant; his right to obtain a correct and formal tax deed continued from the time when he first demanded the same up to the time when he received it, although he did not receive it until January 11, 1883, and until after the act of 1881 had been passed, requiring that any person obtaining an assignment of a tax-sale certificate shall present the same to the county clerk and obtain a tax deed thereon within one year after the date of such assignment.
V. It is also claimed by the plaintiff in error that the tax deed in the present case is void for the reasons: (1) That some of the taxes which were charged against the land and afterward compromised were illegal; (2) that the proceedings of the county board, as shown in evidence, were not sufficient to authorize a compromise and an.assignment of the tax-sale certificate to the defendant; and for other supposed irregularities, which we do not think it necessary to mention.
It is certainly not shown that the original tax sale of the land in 1874 for the taxes of 1873 was invalid, or that such sale included any illegal taxes; and there is not the slightest room for claiming that the amount paid on the compromise
We think the tax deed in the present case is prima facie valid, and there is nothing in the case showing that it is void ; the judgment of the court below will therefore be affirmed.
Concurrence Opinion
I concur in the foregoing opinion, but desire to add a word or two in explanation. I agree that the compromise law of 1879, referred to, is constitutional so far as it applies to the facts of this case; or, perhaps I should say more correctly, that I do not think that it so plainly conflicts with the constitution that the courts are justified in pronouncing it unconstitutional. It will be seen that that law has a two-fold operation. One is applied to past taxes, and the other has reference to those which shall hereafter be levied. This case includes only taxes accumulated before the passage of the law. Now so far as that act authorizes the disposition of already accumulated tax property, I think it must be sustained. But so far as it attempts to lay down a rule for future taxes, I do not think it valid. I appreciate fully the force of the argument made by plaintiff in error, and that that logic carried out strictly makes against the validity of the act, both as to past and future taxes. And yet, as to past taxes, already accumulated tax properties, it seems to me that a far-reaching necessity compels the court to uphold the validity of such an act as this. It is in some respects in the nature of a bankrupt law, authorizing counties to dispose of accumulated tax properties, which otherwise must remain in their possession — a possession which not only brings nothing to .the public, but also prevents the property from thereafter responding to the demands of taxa
I agree fully with the above and foregoing.
