31 Kan. 417 | Kan. | 1884
The opinion of the court was delivered by
This was an action by the plaintiff against the defendants, to enjoin the county clerk of Montgomery county from making, and the other defendants from receiving, a tax deed to lots 8 and 9, in block 54, in the city of Independence. The facts are as follows: Prior to July 16, 1877, Peter Scott and wife, the owners of said lots 8 and 9, executed a mortgage to William P. Turner, to secure $1,500 and interest, intending to describe therein the said premises. There was however a misdescription in the mortgage. This mortgage was afterward transferred by Turner to Edward Eaton. On the 16th day of July, 1877, Peter Scott and wite executed to J. B. Ziegler a warranty deed of said lots 8 and 9, subject to any valid incumbrance thereon. This deed was given with the understanding that it was for the purpose solely of securing an indebtedness of $325 owing from Scott to Ziegler. By agreement with Scott, Ziegler took possession of the premises, collected the rents, amounting to $70 per month, and applied the same to the payment of his claim. On the 1st of January, 1878, the claim of Ziegler
On the 20th of July, 1877, Edward Eaton commenced an action asking a reformation of the mortgage executed by Scott and wife to Turner, and praying that the mortgage be foreclosed and the premises sold. To the petition filed in this action, Ziegler answered that he was the owner of the premises, and that the mortgage was not a lien thereon. On the 29th of March, 1879, judgment was rendered in the action. It was decreed therein that the Turner mortgage was a first lien upon said lots 8 and 9, which were ordered to be sold to satisfy the debt secured thereby. The interest of Ziegler in the premises was declared subsequent ‘and inferior to that of Eaton. Under the decree in the foreclosure action, the premises were sold and the plaintiff purchased the same. The sale was confirmed on the 19th day of September, 1879, and the deed was executed by the sheriff to the plaintiff. At the commencement of this action, the county clerk was about to issue a tax deed. The court found in favor of the defendant Madden, and rendered judgment accordingly.
The second is: Will an injunction lie to restrain the issuance of a tax deed without a prior payment or tender of the taxes which the plaintiff is under obligation to pay?
The deed to Ziegler was dated July 16, 1877. This deed was recorded on July 17, 1877. Ziegler immediately went into possession of the premises, and continued in such possession until after the date of the tax sale, and until September, 1879. Before purchasing the premises at the tax sale, Ziegler insured the property in his own name for a period of one year, and during all the time he was in possession he collected the rents. The latter action was commenced on July 20, 1877, before the taxes of 1877 became due, and in that case Ziegler alleged that he was the owner of the premises. The contrary was never determined until the judgment was rendered in this action in the court below. At the time the taxes of 1877 matured, and at the time of the tax sale of September 13,1878, Ziegler was not only in possession of the premises, but held the legal title — publicly claiming the absolute ownership thereof. Until the filing of the answer in this action, he had never disclosed the nature of the agreement existing between himself and Scott. Ziegler being the absolute owner upon the county records, and being in possession of the premises, as to Turner, the mortgagee, and as to Eaton, the assignee, and to all other persons excepting Scott, until the contrary was disclosed, his purchase at the tax sale of 1878 was justly regarded as a redemption of the premises. Applying any other construction to the conduct of Ziegler would operate as a fraud. The statute provides that “in cases where lands are mortgaged, if the mortgagor fails or neglects
Further, if Ziegler had disclosed the true state of affairs attending his purchase at the tax sale of September 13, 1878, prior to the sale under the decree of foreclosure, the plaintiff might have obtained, upon the confirmation of such sale, an order for all taxes and penalties against the premises to be discharged out of the proceeds of the sale. (Comp. Laws of 1879, ch. 107, §56.) Although upon the findings of the court Ziegler was under no obligation, legal or moral, to pay the taxes on the premises, yet his possession of the premises and his claim of ownership thereto were such as to deceive and mislead the mortgagee, Turner, and all other persons unacquainted with the agreement existing between him and Scott. Upon conduct so wrongful, misleading and prejudicial, no tax deed can, if properly resisted, be issued.
As to the second question, we think that an injunction will not lie without a prior payment or tender of the taxes, which the plaintiff knew before the commencement of this action were valid and had been paid after Ziegler went out of possession. The petition recites that the taxes for the year 1879 amounted to §145.55, and that the same were not paid until the 22d day of December, 1879. The sale to the plaintiff was confirmed on the 19th day of September, 1879, and soon thereafter he obtained a deed to the premises. He was then the absolute owner of the premises. The taxes
Our conclusion therefore is, that the judgment of the court below must be affirmed, because there was no payment or tender of the taxes which the plaintiff' knew were valid, and which had been paid after Ziegler went out of possession of the premises and after the plaintiff had obtained his deed thereto. If, however, the plaintiff had paid or tendered to the defendant Madden the taxes of 1879, and all subsequent taxes (if any) paid by him, he would be entitled to the injunction against the issuance of the tax deed.
The judgment of the district court must be affirmed.