24 Kan. 462 | Kan. | 1880
Lead Opinion
The opinion of the court was delivered by
The record does not contain any of the evidence, but only the pleadings, findings of fact and conclusions of law made by the court. As shown by the record, the. facts of the case are briefly as follows, viz.: In 1870 the lot in,question was subject to taxation, and in that year, among other taxes, there was assessed thereon a sidewalk tax of $42.14. At this time one L. C. Challiss was the owner in fee simple of said lot, and had been for several years pre
Thereafter, on January 12, 1874, the lot was sold to Anton Ostertag for $55.10, the amount of said sidewalk tax, and a tax-sale certificate issued to him. On the 29th day of March, 1879, Ostertag took out a tax deed on the lot, and the same was duly recorded. On May 31,1871, and after L. C. Challiss had commenced his suit to enjoin the collection of the delinquent sidewalk tax, he sold the lot in question to Samuel W. Millbank, and executed to him a warranty deed, containing full covenants of seizin, and full covenants against all liens, taxes and encumbrances, which deed was duly recorded. Said lot remained unredeemed, and the sale of May 20,1870, for delinquent taxes for 1869, amounting to $3.83, unassigned, and on December 27, 1875, the lot was sold under the provisions of “An act to provide for the sale of lands for taxes due and unpaid thereon,” approved February 27,1872, to one Frank Eansom for fifteen (15) cents, and a certificate was issued to him, on which he procured a tax deed on February 14, 1876, which deed was duly recorded. Nothing was said in the certificate or deed about the taxes of 1870, or any other than the taxes of 1869. On the 19th day of December, 1877, William L. Challiss, acting as agent for L. C. Challiss, procured a deed from Frank Eansom, whereby Eansom quitclaimed all of his right, title and interest in the
Upon these pleadings and findings of fact, the court below held: That Ostertag was not entitled to the injunction and relief prayed for in his petition; that the sidewalk tax is a valid and legal tax, and that said lot stood charged with the payment of the same; that the said tax sale to Ostertag, and deed issued in pursuance thereof, were without authority of law; that Millbank was entitled to the relief prayed for in his cross-petition, upon the condition that he should pay to the plaintiff $55.10, the amount of the sidewalk tax, with 7 per cent, interest from January 12, 1874, together with the further sum of $200, the amount that said lot had been enhanced in value by the improvements erected thereon by Ostertag, which amounts were legal and valid liens on the lot. The costs were divided between the parties. The defendant Millbank excepted to the conclusions of law, and and now brings the case here for review.
We think this case is practically covered by prior decisions' of this court. It appears that Ostertag had a tax deed, that the lot was vacant, and that he took possession and erected a building upon it. Now, if at this time defendant had commenced his action to recover the possession, Ostertag would, under the decision in Smith v. Smith, 15 Kas. 290, have been entitled to his taxes and the value of his improvements before he was put out of possession. The notice required by § 601 of the code concerning occupying claimants is a notice by suit. Knowledge of an adverse title is not alone sufficient. Now if Millbank could obtain possession by legal proceedings only upon those conditions, may he, after taking the law into his own hands and in the night-time seizing forcible possession, come into a court of equity and enfore his possession without complying with those conditions ? If such were the rule, it would mean that equity invites a party to take
But we are met with this objection: The sale to Ostertagwas a nullity because unauthorized by law. The taxes of 1870, including the sidewalk tax, were charged up upon the sale
Again, it will be perceived that the purchase by Challiss of the Ransom title and subsequent conveyance to Millbank, was practically nothing but a redemption from the taxes of 1869. It was bought by W. L. Challiss, as agent for his brother, and conveyed to Millbank in satisfaction of the covenants in the deed to the latter. Hence, it is to be treated as
This case has given us much trouble in determining the relative rights of the parties, and with much hesitation we have reached the conclusions above stated. We are not satisfied that the district court erred, and therefore its judgment must be affirmed.
Concurrence Opinion
I concur solely on the ground that the sale to Ransom on December 27, 1875, was defective and invalid, by the failure of the county officials to fully comply with the various provisions of the statutes. Owing to such non-compliance, Ransom only obtained a transfer of the taxes of 3869, while Ostertag held the subsequent tax claim of 1870. The defective proceedings in the tax sale of December, 1875; prevented that sale from wiping out the taxes of 1870; and notwithstanding such sale, owing to its defects, Ostertag was the holder of a tax certificate, and afterward a tax deed for taxes subsequent to the tax lien of Ransom, which the plaintiff purchased. Hence, in accordance with the prior rulings of this court, laid down and established long before the writer of this became a member of the court, the sidewalk tax of 1870, having never been included in the tax sale of December 27, 1875, and being unpaid, and a sale having been made therefor and a tax deed having issued on such sale, Ostertag is entitled to his taxes and the value of his improvements, although the tax sale to him was invalid, and his tax deed void. (Comp. Laws 1879, ch. 107, §142; Stebbins v. Guthrie, 4 Kas. 366; Smith v. Smith, 15 Kas. 290; Babbitt v. Johnson, 15 Kas. 252.)