39 Kan. 740 | Kan. | 1888
Lead Opinion
The opinion of the court was delivered by
This was an action of ejectment, brought by Harriet N. Spicer in the district court of Lyon county, on January 23,1886, against Lucy M. Eowland, for the recovery of lot No. 168, Market street, in Emporia. The plaintiff claimed under a tax deed executed May 4, 1869, and recorded May 17, 1869, which recited that the lot was sold on May 3, 1866, to Carter & Fraker, for the sum of $1.43, being the taxes and charges against the lot for the year 1865; and further, that Carter & Fraker, on January 23, 1868, assigned the tax-sale certificate to Noyes Spicer, to whom the tax deed was executed. At the trial in June, 1886, the plaintiff offered and read in evidence the above-mentioned tax deed, and also a conveyance from Noyes Spicer, the grantee in the tax deed, to herself, and then rested her case.
The defendant claimed the property under and read in evidence a tax deed to E. M. Forde, executed on December 26, 1881, which was recorded on January 7,1882. It was thereupon admitted that the defendant, through a chain of intermediate conveyances from E. M. Forde to herself, owns all the interest conveyed by that tax deed, and has been in the possession of the lot under said title for three years last past. She then offered testimony to show that Fraker, of the firm of Carter & Fraker, named as purchasers in the plaintiff’s tax deed, was J. C. Fraker, who was the county treasurer of Lyon county in 1866, and the officer who sold the lot to Carter & Fraker.
The cause was then submitted, the plaintiff requesting the court to find whether, upon the evidence then before the court, the plaintiff had any title to the lot in controversy prior to the execution of the defendant’s tax deed, and the court responded by a finding that the evidence showed that the tax deed to Noyes Spicer, the plaintiff’s grantor, was void, and
The plaintiff contends that the court erred in holding that her tax deed was void, and also in rejecting testimony, and in refusing a continuance. The testimony offered satisfactorily shows that Fraker, of the firm of Carter & Fraker, was the county treasurer of Lyon county in 1866, and was therefore the purchaser and seller of the lot in controversy, and the district court so found. The law does not permit an officer to assume such incompatible positions. The duties owing by him to the state and to the owner of the land are wholly inconsistent with the position of the purchaser. It was expressly held in Haxtun v. Harris, 19 Kas. 511, that “a treasurer cannot be a purchaser, either directly or indirectly, at tax sales conducted by himself.” In Perkins v. Thompson, 3 N. H. 145, the court remarked that “the soundest policy forbids that any person should be the purchaser of that which he is appointed to sell. The characters of vendor and purchaser of the same article at the same time are inconsistent, and cannot be united in the same person.” In Mills v. Goodsell, 5 Conn. 478, it was held that an officer was disqualified from
It is argued in behalf of the plaintiff, that the sale is only
The matter of reopening the case and of hearing original testimony, as well as the continuance of the cause to enable the plaintiff to obtain additional testimony, with which she should have been prepared, was within the discretionary power of the court, and under the circumstances we caunot say that there has been such an abuse of discretion as would warrant a reversal of the judgment; it will therefore be affirmed.
Dissenting Opinion
I cannot concur in all that is said or decided in this case. I dissent.upon the particular facts of this case. I agree with my brethren, that when land is sold at a tax sale to the county treasurer, or to a firm of which he is a member, no indefeasible tax title can ever be obtained on such tax sale by the treasurer, or by any member of his firm, or possibly by any person with notice, unless the sale has been ratified and confirmed, or the irregularity cured or waived by some act or acts on the part of the prior owner or his grantees; nor can an indefeasible title be obtained upon such a sale even by a bona fide purchaser without notice, except by a ratification, confirmation, waiver or estoppel on the part of the prior owner or his grantees, or by the complete running of some statute of limitations. But I dissent from the views of my brethren to this extent: I believe that a subsequent bona fide purchaser-without notice of the irregularity in the tax sale may obtain a good and indefeasible title by the complete running and operation of the statute of limitations. The statute in comprehensive terms so provides, and there is no such exception as is now interpolated. There is no great hardship in this. A tax deed cannot be executed until at least three years have elapsed after the tax sale has been consummated, and the prior