32 Kan. 415 | Kan. | 1884
The opinion of the court was delivered by
This was an action in the nature of ejectment, brought by James McFadden and Thomas H. Thomp
The facts of the case, so far as it is necessary to state them, appear to be substantially as follows: In 1862, the land in controversy was taxable, and taxed. On May 5,1863, it Avas sold for the taxes of 1862, to Marshall county, and a tax-sale certificate Avas issued to Marshall county, which tax-sale certificate has never been assigned, but still remains in the office of the county clerk. On December 5, 1865, a tax deed was issued to Marshall county on said certificate, and such tax deed was recorded on December 18, 1865. On June 14, 1872, another tax-sale certificate was issued, on the tax sale of May 5, 1863, which certificate included all the taxes due on the land up to and including the taxes for the year 1871, amounting to $145.96. This tax-sale certificate was issued by the county treasurer to “ McFadden & Thompson,” instead of to James McFadden and Thomas H. Thompson. In all other respects the tax-sale certificate was issued and assigned in accordance Avith § 91 of the tax laws then in force. (Gen. Stat. 1868, ch. 107, §91.) Upon the same day, and upon said tax-sale certificate, the county clerk executed a tax deed to “McFadden & Thompson.” This tax deed AAras recorded June 24, 1872. The plaintiffs paid the taxes for 1872 and 1873. The taxes of 1874 were not paid, and on September 7,1875, the land was sold for such last-mentioned taxes. On August 25, 1880, a tax deed Avas duly executed by the county clerk to O. F. Scouten, on the tax sale of 1875, and for the taxes of 1874 up to 1879. This tax deed Avas recorded on the same day. On March 14, 1882, Scouten conveyed the property by warranty deed to the present defendant, Duval C. Goff, who immediately took possession of the property, and
There is no question raised with regard to the validity of the tax sale of May 5,1863, and there is no question as to the invalidity of the tax deed executed to Marshall county on December 5,1865. (The State v. Magill, 4 Kas. 415; Wabaunsee County v. Walker, 8 id. 437.) The tax sale is admitted to be valid, and the tax deed is admitted to be void. The first question then arising in the case is, whether the tax-sale certificate issued by the county clerk to “McFadden & Thompson,” on June 14, 1872, with the assignment thereof, is valid, or' not. We think it is valid. At the time it was issued and assigned, the county clerk and county treasurer had authority to issue and assign tax-sale certificates, and to issue and assign the same under the exact circumstances under which this certificate was issued and assigned. (Gen. Stat. 1868, ch. 107, §§ 91, 111.) This case therefore differs materially from the case of Belz v. Bird, 31 Kas. 139, for when the assignment of the tax-sale certificate in that case was made no person or persons had any authority to assign the same, and hence the assignment in that case was utterly void; while in this case we think it 'is valid. The issuing of the certificate and the making of the assignment to “McFadden & Thompson,” instead of to James McFadden and Thomas H. Thompson, wé do not think can have the effect to render either the tax-sale certificate or the assignment thereof void. And the fact that the original tax-sale certificate, issued on May 5, 1863, was not at any time assigned, but still remains in the county clerk’s office, and a new one was made and assigned to the plaintiffs,
This disposes of the case ; for a valid tax deed extinguishes and destroys all other titles and liens existing or based upon anything existing at the time of the levying of the taxes upon which the tax deed is founded. (Board of Regents v. Linscott, 30 Kas. 240; Belz v. Bird, 31 id. 141.)
With this view of the case, no question with regard to any statute of limitations needs to be considered. The defendant does not need any statute of limitations to protect his title, and none can so operate against his title as to render it worthless or defective. His tax deed was issued on August 25, 1880, and he took the possession of the property on March 14,1882, and still holds the possession thereof under his tax deed, as well as under the original patent title; and hence, if any statute of limitations has any room to operate at all, it will operate in favor of his title and not against it.
We do not think that the original patent title can cut any figure, however, in this case; for the defendant’s tax title is better than his patent title. In this respect this case further differs from that of the case of Belz v. Bird, supra.
The judgment of the court below will be affirmed.