Judd v. Driver

| Kan. | Sep 15, 1863

By the Court,

Kingman, J.

The main question presented in this case is this: can the owner redeem lands sold for taxes for the years 1859 and 1860, to the county, and by the county assigned to a third party, in the various kinds of warrants for the payment of which the tax was raised, viz: township, county and territorial ? Taxes are defined to be burdens or charges imposed by the legislative power of a state upon persons or property to raise money for public purposes.

In the absence of any legislation providing otherwise the tax would be payable in money only, and if in default of payment the lands are sold they are sold for money, and would be redeemable in money only.

The land sought to be redeemed in the case before us, was sold on the first day of January, 1862.

By the tax law, of 1858, town and county orders were receivable respectively for town and county taxes• territorial taxes were to be paid in gold and silver. (§ 53, p. 360 Laws 1858.) This law was amended by the act of February, 1860, so as to make territorial warrants receivable for the territorial taxes. The liability of the tax payer then was'so far changed that he might be discharged by the payment over of the different warrants for the payment of which the tax was levied. This was the charge upon the land in default of which it was to be sold.

• Could it be redeemed in the various kinds of warrants when the county was the purchaser ?

The county is not a voluntary bidder for the land sold for the non-payment of taxes, but it is struck off to the county, and she holds it subject to be redeemed by the extinguishment of the liabilities of the defaulting tax payer within a given time. These liabilities are the payment of so much tax, either in money or warrants, with the interest thereon. The county holding it for the township, county and state must be satisfied if the payment is made to her in the evidence of indebtedness in due proportion of the several bodies politic for whom it holds the lands. This is equity, and is believed to have received the sanction of every county in the state. By the act of March 6th, 1862, and while the tax certificate still belonged to the county, the legislature made further provision, which, in part, was only declaration of what the law was, as that “the redemption money shall be paid in gold or silver, except on lands purchased by the county.”

(See § 8, p. 877, Qovip. Law«,) By that section, the right to redeem, in warrants, lands ¡hawk off to the county is rather a matter of inference than of absolute statement. In the proviso, the right to redeem lots in cities, in warrants, is absolute. This provision is nugatory as not being of uniform operation, unless there is a right to redeem all lands sold to the county, in warrants. It is a uniform rulo of construction that one part of a statute should be construed by other parts of the same statute so that, if possible, no clause or part shall be treated as superfluous, and especially when the two arc parts of the same section. Now, the last part of section eight, last refered to, is void unless it appears from the first part of the section that the same right to redeem, and in the same way is extended to all the lands in the state.

We think, therefore, even if the right to redeem in warrants does not necessarily result from the right to pay in warrants when the land is struck off to the county, that this section gives that right.

The next step in the inquiry is what effect the assignment of such certificate of purchase shall have. Without legislative enactment they would not be assignable at all. (Blackwell, 444.) “ The rights of the purchaser at a tax sale, prior to the execution of the deed, is only an equitable one in the lands, and even that interest depends upon a contingency that may or may not happen;” in such cases the law does not regard the interest as an assignable one without positive legislative enactment. It is made assignable by statute, and it is declared that the effect of the assignment shall be the same as the assignment of bonds for the conveyance of lands. The assignee of a bond for the conveyance of lands takes no more than is stipulated in the bond. What then is the legal right of a holder of a certificate of purchase of land sold for the payment of taxes? It is not an absolute bond giving him any positive and certain right to the land, but one which may be perfected by deed, and liable also to be defeated at any time within the limits assigned by law, by the payment of the legal charges on the land. The assignee takes that much and no more. These charges in this case are the payment in money or warrnts of the taxes, costs, and accruing interest, and this is all the holder can get by the purchase of the certificate.

The liabilities of the owner of the land are not increased by the change of ownership in the tax certificate. We think therefore that the county holding certificates o-f 'purchase of lands, sold for taxes, is by law bound to receive in redemption of those certificates, if tendered, the various kinds of warrants in due proportion for the payment of which the land was levied.

Some preliminary questions were made and argued in this case; only one of which is so presented by the record that it is reviewahle here in its present shape, and that one is as to the jurisdiction of district court in case of mandamus.

The language of the law eonfering jurisdiction upon the district court is very broad and most ample to sustain the jurisdiction of those courts in case of mandamus. “They shall have original jurisdiction in all civil eases whatéver.” The proceeding by mandamus is essentially a civil case, having all the attributes and qualities of a civil case, and whether it belongs to the class of eases called “civil actions,” by the code, as was claimed by the counsel for defendant in error, or is a “special proceeding,” it is equally a civil ease and therefore, by express law, a subject within the jurisdiction of the district conrt.

Therefore the judgment of the court below is- affirmed with costs against the plaintiff in error.

All the justices concurring.