65 P. 660 | Kan. | 1901
The opinion of the court was delivered by
This was an action by the Topeka Commercial Security Company against the board of county commissioners of Harper county to recover taxes, charges and interest paid upon lands which were not subject to taxation. The plaintiff’s petition substantially alleged that taxes were collected for a period of four years, ending in 1890; that the lands were sold for taxes to L. A. Bigger, and that, in 1891,. Bigger, being the owner and holder of certificates of
It was further alleged that at the time the taxes for which the lands were sold were levied and assessed, and at the time of the sale, the title to the lands was in the United States, and that they were not subject to taxation; and that neither Bigger nor his grantee had any knowledge of the fact that the lands were not taxable at the tim'e of the tax sale or the subsequent payment of taxes on the lands. It was further averred that in October, 1894, ih an action brought by the security company to recover the lands under the tax title which it then held, the district court of Harper county adjudged the assessments, tax sale and deed issued thereon to be void, and • that afterward, on January 7, 1897, the security company tendered a conveyance of the lands to the county commissioners, and demanded a refunding of the taxes illegally collected. The county commissioners disallowed the claim and refused to refund the taxes. A demurrer to the petition was filed, which was sustained by the court. The ruling cannot be sustained.
The averments of the petition bring the case clearly within the provisions of section 146 of the law relating to taxation, and entitle the plaintiff to a refunding of the taxes and charges paid, with interest thereon. (Gen. Stat. 1901, § 7685; Comm’rs of Saline Co. v. Young, 18 Kan. 440; Richards v. Comm’rs of Wyandotte Co., 28 Kan. 326.) In support of the ruling, it is said that the mere averment "that the land is not taxable” is not a statement of fact, but is a conclu
Under the case last cited, it appears that the claim made that an action was barred by the two-year statute of limitations is without force. The case was commenced within less than three years after the sales were adjudged to be invalid, and is,' therefore, not barred.
The judgment of the district court will be reversed, and the cause remanded with directions to overrule the demurrer, and for further proceedings.