Rork ex rel. Warner v. Board of Commissioners of Douglas Co.
46 Kan. 175
Kan.
1891
Check Treatment

The opinion of the court was delivered by

Horton, C. J.:

It is contended upon the part of the defendants, first, that the petition of plaintiff filed in the court below does not state a cause of action in his favor against the board of county commissioners of Douglas county; second, that if plaintiff ever had a cause of action against the board of county commissioners, it is barred by the statute of limitations. The amended petition of plaintiff contains 30 causes of action. They are all of the same general tenor. They allege, first, ownership of certificates; second, a sale of lands by the county treasurer of Douglas county and issue of tax-sale certificates to purchaser; third, the illegality of the tax-sale certificates, *179and the facts showing why the tax sales were illegal, to wit, imperfect descriptions of land, illegal charges for advertising the land, and certificates outstanding in the county at the time of the sales. The petition closes as follows: •

“Wherefore your petitioner prays this honorable court to order the county clerk of said county not to convey the several tracts and parcels of land hereinbefore described, (because of the alleged errors and irregularities set out,) under and by virtue of any of the sales respectively hereinbefore set out; and for such other and further order and relief in the premises as may be necessary to enable your petitioner to have refunded to him by the county treasurer of said county of Douglas the several amounts and sums of money hereinbefore mentioned, with interest as provided by law in such cases.”

The tax-sale certificates described in the petition were signed and issued by the county treasurer of Douglas county in 1870, 1871, 1872,1873, and 1874. The statutes relating to refunding the amount paid upon tax-sale certificates, when errors or. irregularities are discovered, so that the land sold at the tax-sales ought not to be conveyed, are as follows: Gen. Stat. of 1868, ch. 107, § 120, p. 1058; .Laws of 1876, ch. 34, § 145, p. 96; Gen. Stat. of 1889, ch. 107, § 145, p. 2137. A careful comparison of these statutes will aid in determining the questions involved:

“Sec. 120. . . . And if, after any certificate shall be granted upon such sale, the county clerk shall discover that, for any error or irregularity such land ought not to be conveyed, he shall not convey the same; and the county treasurer shall, on the return of the tax certificate, refund the amount paid therefor on such sale, and all subsequent taxes and charges paid thereon by the purchaser or his assigns, out of the county treasury, with interest on the whole amount at the rate of 10 per cent, per annum. (Gen. Stat. of 1868, p. 1058.)
“Sec. 145. . . . And if, after any certificate shall have been granted upon any sale, the county clerk shall discover that, for any error or irregularity such land ought not to be conveyed, he shall not convey the same; and the county treasurer shall, on the return of the tax certificate with the refusal of the county clerk endorsed thereon, refund the amount paid therefor on such sale, and all subsequent taxes and charges *180paid thereon by the purchaser or his assigns, out of the county treasury, with interest on the whole amount at the rate of 10 per cent, per annum. (Laws of 1876, p. 96.)
Sec. 145. . . . And if, after any certificate shall have been granted upon any sale, the board of county commissioners shall discover that, for any error or irregularity, such lands or lots ought not to be conveyed, they may order the county clerk not to convey the same, and the county treasurer shall, on the return of the tax certificate, with a certified copy of such order of the board of county commissioners, refund the amount paid therefor on such sale, and such of the subsequent taxes and charges paid thereon by the purchaser, or his assigns, as may be so ordered by the board of county commissioners, out of the county treasury, with interest on the amount so ordered refunded at the rate of 10 per cent, per annum. . . . (Gen. Stat. of 1889, ¶6999.)

2. Amended statute; effect. It is claimed upon the part of the defendants that the plaintiff’s petition is insufficient, because the tax certificates can only be refunded under the provisions of the statute in force at the time of the tax sales. This is the statute of 1868. This claim is answered adversely by the decisions of Comm’rs of Lyon Co. v. Goddard, 22 Kas. 389, and Comm’rs of Lincoln Co. v. Faulkner, 27 id. 164. The amendments to ^he statute of 1868 by the statutes of 1876 and X889 do not “affect any right which accrued under any prior statute, but simply give new direction for the return of the money.”

1.no tax deed when. We think, if fatal errors or irregularities actually exist, so that the land or lot described in a tax-sale certificate ought n°f be conveyed, and the certificate is presented in proper time, that it is the duty of the board of county commissioners to discover them, when its attention is especially called thereto, and that it has not the option to purposely refuse to discover such fatal errors or irregularities. (Comm’rs of Lyon Co. v. Goddard, supra.)

The contention that the claim or claims of the plaintiff were barred by the statute of limitations is of much force. If not barred by the two-years’ statute of limitations, (¶1676, Gen. Stat. of 1889,) then they were barred by the three-years’ stat*181ute of limitatons. (Civil Code, §18, subdiv. 2; Richards v. Comm’rs of Wyandotte Co., 28 Kas. 326.) The record shows that this action was commenced on October 6,1879, and all of the tax-sale certificates were issued more than five years prior to that date. In Comm’rs of Lyon Co. v. Goddard, supra, it is said that—

“A purchaser at a tax sale is a mere volunteer in the payment of the tax. Buying, as he does, property from a person who is not the owner, such party comes strictly and rigidly within the rule of caveat emptor. He has the same means of knowing whether the proceedings relating to the assessment of the taxes, the tax sale and the issuance of the certificate are valid or not as the county has, and he is bound to inquire whether the officers have authority to make the sale. As all the proceedings are matters of record, it is not only prudent for such a purchaser to examine into the matter for his own safety, but if he fails to inform himself of the authority of the officers he does so at his own risk, excepting that he may have his money refunded where the statute expressly makes such a provision, if he pursues the remedy pointed out. The officers of a county can only act in accordance with positive law; and neither the board of commissioners nor the county treasurer can refund any moneys upon the failure of tax titles, except as some statute requires it.”

In Sullivan v. Davis, 29 Kas. 28, it is said:

“Except as limited and qualified by express statutory provisions, the rule of caveat emptor applies to all purchases at tax sales, and if the public has nothing to sell, the purchaser gets nothing. So, also, the risk of all mistakes is with the tax purchaser.”

3. statute of limitations. 4. Running of statute ; bar when. It was decided in Railroad Co. v. Burlingame Township, 36 Kas. 628, “that a person cannot prevent the operation of the statute of limitations by delay in taking action incumbent upon him.” It was also said in that case, that “to permit a long and indefinite postponement would tend to defeat the purpose of the statutes of limitation, which are statutes of repose, founded on sound policy,, and which should be so construed as to advance the policy they were designed- to promote.” If the plaintiff could delay *182the presentation of his certificates to the board of county commissioners for five years, then he could delay for 10, 15, or any indefinite period of time. He should have presented his tax certificates to the board of county commissioners “ for refunding” (for the return of his taxes, interest, etc.) before the expiration of three years after their issue. This he failed to do; and he also failed to allege any reason or excuse for his delay.

In the case of Comm’rs of Saline Co. v. Young, 18 Kas. 440, the “'error or irregularity” actually “discovered” by the county clerk was probably and presumably one of fact. It consisted in supposing that the land did not belong to the United States, and that it was taxable, while in fact the laud did belong to the United States, and was not taxable. Such an “ error or irregularity ” is a mistake of fact. In that case, unlike this, the errors or irregularities in the tax certificates were not matters of record in the'offices of the county clerk or county treasurer; and in that case, until the owner of the tax certificate had ascertained that the land belonged to the United States when it was taxed, he did not know and could not have known of any error or irregularity to be discovered. In this case the fatal defects in the tax certificates were known, or ought to have been known, by the owner of the' same, for more than five years before he took any preliminary or other steps to obtain a return of his taxes, interest, etc. .

In Richards v. Commr’s of Wyandotte Co., supra, it was necessary for the party to determine whether the Indian title to the lands had been extinguished — a matter which he could not ascertain from the public records of the county, or from any records within his control. The liability of the county to refund the taxes is a statutory liability, and, in order that it shall be liable, the plaintiff was bound to take some action within a reasonable time, and he should have acted more promptly. Before the county could be made liable, the certificates must have been presented, and some act on its part committed, or some failure to perform some act imposed by law. But the plaintiff failed to act promptly, or in any *183reasonable time. (A. T. & S. F. Rld. Co. v. Burlingame Township, supra; Civil Code, § 18, subdiv.2; Comp. Laws of 1879, ch. 107, § 138; Gen. Stat. of 1889, ¶ 6991.)

The judgment of the district court will be affirmed.

All the Justices concurring.