39 Kan. 241 | Kan. | 1888
Lead Opinion
The opinion of the court was delivered by
This was an action in the nature of ejectment, brought by John R. Mulvane and Joab Mulvane against John Ritchie, Hale Ritchie, John Ritchie jr., and others, to recover certain real estate described in the plaintiffs’ petition. The defendants answered. Afterward a trial was had before the court without a jury, and the court made special findings of fact and conclusions of law, and upon such findings and conclusions rendered judgment in favor of the defendants and against the plaintiffs with regard to the recovery of the real estate, but rendered judgment in favor of the plaintiffs and against the defendants under § 142 of the tax law, for the recovery of the amount of the taxes paid by the plaintiffs on such real estate, together with the interest and costs thereon, except the taxes levied on the land for the benefit of the city of Topeka, with the interest and costs thereon; and to reverse this judgment, the defendant John Ritchie, as plaintiff in error, brought the case to this court, making the plaintiffs below the defendants in error. Afterward John Ritchie died, and the case was revived in the names of Hannah Ritchie, John Ritchie and Hale Ritchie, his successors in interest.
The defendants below were in the possession of the lands in controversy, and claimed to own the same by virtue of a
“Sec. 142. If the holder of a tax deed, or anyone claiming under him by virtue of such tax deed, be defeated in an action by or against him for the recovery of the land sold, the successful claimant shall be adjudged to pay to the holder of the tax deed, or the party claiming under him by virtue of such deed, before such claimant shall be let into possession, the full amount.of all taxes paid on such lands, with all interests and costs as allowed by law up to the date of said tax deed, including the costs of such deed and the recording of the same, with interest on such amount at the rate of twenty per cent, per annum, and the further amount of taxes paid after the date of such deed, and interest thereon at the rate of twenty per cent, per annum.”
It has been held by this court that this section applies to all actions in the nature of ejectment, as well to those where
“This statute was enacted in the interest of equity and justice, and its provisions should be so construed as to promote justice. It is wholly unlike that class of statutes which attempts to give the land of one person to another for an inconsiderable sum. The former is liberally construed, the latter is strictly construed. The former was enacted for just such cases as the one at bar. It was enacted for void tax deeds, and not for valid tax deeds. A person holding under a valid tax deed has no need of such a statute. Only persons holding under void tax deeds need such a statute. The laws under whose provisions tax titles are created are usually construed strictly, and therefore we hold that the tax deed in this case is void. But laws enacted for the purpose of enforcing, in a fair and reasonable manner, the delinquent members of society to discharge that moral obligation resting upon them as well as upon others to bear their proportionate share of the public burdens, are always construed liberally, so as to promote their object.”
In the case of Belz v. Bird, 31 Kas. 139, 144, 145, this court used the following language:
“It would seem that in all cases of void tax deeds, whatever may be the grounds upon which the deeds are held to be void, the holder of the tax deed, when defeated in an action of ejectment, whether he is the plaintiff or defendant, may recover the taxes which he has paid.” (See also Stetson v. Freeman, 36 Kas. 608.)
The plaintiffs in error claim, first, that all the aforesaid taxes, state, county and school district, are void, for the reason that the property taxed was not assessed by the proper assessor; and they claim, second, that the school-district taxes are void
“Sec. 85. All taxes shall be due on the first day of November of each year. A lien for all taxes shall attach to the real property subject to the same on the first day of November in the year in which such tax is levied, and such lien shall continue until such taxes and penalty, charges and interest which may have accrued thereon, shall be paid by the owner of the property, or other person liable to pay the same.”
Observe the foregoing language: “A lien for all taxes shall attach to the real property subject to the same.” No reference is here made to any assessment. This means that whenever a tax is levied and the first day of the next November has arrived, a lien shall attach to all property subject to the tax, whether any assessment has yet been made or not. If no assessment has yet been made, the county clerk may make it afterward. (Tax Law, §§18, 52, 53, 54, 70.) Of course the amount of the lien cannot be ascertained until some assessment or valuation of the property is made, but the county clerk can make it at any time. It will be seen that the law is careful to prevent the escape from taxation of any person. All must bear their fair share of the public burdens; and no one is permitted to escape taxation merely because of some irregularity in the assessment or elsewhere. All must pay their taxes. For the purposes of this case it may be admitted that any taxes like the taxes in the present case would be held to be invalid in an action brought under § 253 of the civil code for the purpose of restraining the collection of such taxes by any one or more of the persons taxed, against the corporation or the officers attempting to collect the taxes; and it may also be admitted that any tax title founded upon any
*255 “ Territory outside the city limits, but adjacent thereto, may be attached to such city for school purposes, upon application to the board of education of such city, by a majority of the electors of such adjacent territory; and upon such application being made to the board of education, they shall, if they deem it proper and to the best interests of the schools of said city and the territory seeking to be attached, issue an order attaching such territory to such city for school purposes, and to enter the same upon their journal; and such territory shall, from the date of such order, be and compose a part of such city for school purposes only; and the taxable property of such adjacent territory shall be subject to taxation, and shall bear its full proportion of all expenses incurred in the erection of school buildings, and in maintaining the schools of such city.” (Laws of 1872, ch. 100, art. 5, § 99; Laws of 1876, ch. 122, art. 11, §3; Comp. Laws of 1885, ch. 92, art. 11, §3.)
This provision of the statute was complied with in this case in substance though not in form. The territory in dispute was originally incorporated into the city of Topeka, and therefore into the school district of the city of Topeka, by an ordinance void so far as the city of Topeka as a municipal corporation was concerned; but was it void so far as the school district of Topeka is concerned ? (Knowles v. Board of Education, 33 Kas. 692.) Special acts relating to school districts may be valid, and the only ground upon which the aforesaid ordinance was held void was that it was based upon a special act. But conceding the ordinance to be void with reference to the school district as well as to the municipal corporation, still the board of education and the majority of the people of the annexed territory afterward ratified and confirmed the annexation attempted to be effected by it, by their voluntary acts, though not in the statutory form. In other words, the board of education and the people of the annexed territory made such annexed territory as much a part of the school district of the city of Topeka in fact though not in law, as it would or could have been if it had been annexed under a valid ordinance, or attached in the most formal manner under the foregoing statute. These acts of the board of educatiou and the people of that territory made such territory a part de facto
In the case of School District v. The State, 29 Kas. 57, it was held that bonds issued by a school district which was not a school district de jure, but only such defacto, and where the bonds had gone into the hands of innocent purchasers, were legal and valid. In the case of Back v. Carpenter, 29 Kas. 349, it was held that where assessments were made and taxes levied upon property in the city of Council Grove, and where other things were done by the city officers as though such city was a city of the second class, when in fact it was only a city of the second class defacto and not such de jure, all such acts were legal and valid as to third persons. (See also Voss v. School District, 18 Kas. 467; Pape v. Capitol Bank, 20 id. 440; Watkins v. Inge, 24 id. 612; Morton v. Lee, 28 id. 286; The State v. Carroll, 38 Conn. 449; Petersilea v. Stone, 119 Mass. 465.) In the case of The State v. Carroll, 38 Conn. 449, it was held as follows:
“An officer de facto is one whose acts, though not those of a lawful officer, the law upon principles of policy and justice will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised: 1. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry to submit or to invoke his action, supposing him to be the officer he assumed to be. 2. Under color of a known and valid appointment or election, but where the officer has failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like. 3. Under color of a known election or appointment, void, because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect, being unknown to the public. 4. Under color of an election or appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.”
Concurrence Opinion
concurring.