40 Kan. 58 | Kan. | 1888
Opinion by
The correctness of the decision of the court below depends upon the validity of a tax deed in evidence, and under which the defendant claimed title, issued to C. V. Eskridge, January 6,1871, for the lot in controversy.
The plaintiff contends that by reason of this receipt, and the fact that no tax was levied on this lot, a deed based upon a sale for taxes of that year on that lot was absolutely void; while it is insisted by the defendant that this falls within the provisions of §139, of chapter 107, Comp. Laws of 1885, which is as follows:
“No irregularity in the assessment-roll, nor omission from the same, nor mere irregularities of any kind in any of the proceedings, shall invalidate any such proceeding or the title conveyed by the tax deed; nor shall any failure of any officer
If this amounts to an irregularity, then §139 would cure such irregularity in the assessment. Then §149 would afford the only relief by which the plaintiff could defeat the tax title, and that would be to show that the taxes had been paid, or the land redeemed according to law, the proceedings not having been commenced within five years from the placing on record of the tax deed. We are of opinion that the failure to assess a tax against this lot is not such an irregularity as is cured by §139. Here there was no tax assessed at all against this lot. If the plaintiff had desired to pay the tax on that lot alone, and had made his application to the treasurer for that purpose, there was nothing that he could have paid; nothing that the treasurer would have had a right to receive. The treasurer could not assess the lot and place it upon the tax-roll; that was not his duty, and therefore no tax receipt could have issued. This cannot be considered an irregularity. It must render the proceedings void. If there was no tax upon the tax-roll, then no valid sale of the lot could be made for taxes that did not exist.
Again, if it is conceded that this was an irregularity — an omission of the clerk to place it upon the tax-roll — then, under the findings of the court on the tax receipt, which shows that all the taxes assessed against the ten lots, including this lot in controversy, were paid by the plaintiff, and that at the time of the payment it was understood to be a payment upon all the lots, this must be construed as a payment of all the taxes assessed against these lots; and if this was such a payment, then under § 141 it would be sufficient to defeat the deed and the title of the defendant thereunder. Under this view, the decision of the district court must be reversed.
It is recommended that the judgment of the court below be reversed, and a new trial ordered.
By the Court: It is so ordered.