Walker v. Fleming, 37 Kan. 171

Walker v. Fleming

37 Kan. 171 | Kan. | 1887

Opinion by

Clogston, C.:

2. Cause of action, determined by the facts stated.

The plaintiff in error contends that the petition does not state facts sufficient to constitute a cause of action: first, for the reason that, if at the time of making the deed there was a tax lien against the land conveyed, as is alleged, then the covenant was broken as soon as the deed was made, and the lien, as alleged, after making said deed, was merged into a tax deed; second, because no action was brought by the tax-title holder within two years after taking out a tax deed; third, that the tax-title was barred by the fifteen-year statute of limitation. The demurrer was properly overruled. The plaintiff stated the fact, and although a pleader may say that the action was for damages for money paid to extinguish a tax-lien on the land purchased, instead of alleging the purchase of an outstanding tax-title to the premises, yet it would not change the nature of the cause of action when all the facts were stated; and these facts show a cause of action in favor of the plaintiff and against the defendant. The petition alleges a valid outstanding tax-sale certificate against the land, at the time of making the deed; the subsequent taking out of a tax deed, and the purchase by plaintiff of this tax lien; and because plaintiff described the tax title as a tax lien, would make no difference, and could not change the legal effect of his petition; the n , ,1 i *1. • ¶, n .» tacts themselves determine what cause ot action the petition states, and not what the pleader may call the cause of action founded upon those facts.

*176 1. Bar to action;demurrer, wlien sustained.

*175As to the second and third objections urged against the petition, we think the counsel are wrong in their conclusions. *176The petition does not state such facts upon its face as show that the statute of limitation had run either against the tax deed or tax lien. Nothing was alleged that could be construed as stating that possession was held by the plaintiff or his grantors during the time the tax-sale certificates were held, or after the deed was taken out on said tax-sale certificates; and for all the allegations in the petition, the premises may be unimproved and unoccupied; and if so, the tax-deed holder would be presumed to be in possession. And because there is no allegation in the petition of a breach of covenant of possession, that omission cannot be taken as an admission that the possession was in the plaintiff, and raises no presumption of fact that he was in possession. True, he makes no complaint about the possession, but claims damages only for money paid in extinguishing this tax lien and title. A demurrer can be sustained on the ground that the cause of action is barred only when it clearly appears upon the ^ # 4 -7 face of the petition that it is barred; and if the bar is not so shown, it must be raised by answer. This is also true of the fifteen-year limitation urged by counsel. No possession is alleged or claimed by plaintiff, which must be shown with the claim or color of title before the statute can be pleaded as a bar. Therefore the court committed no error in overruling the demurrer.

At the trial, objection was made by the defendant, plaintiff in error, to receiving in evidence the tax-sale certificates, the indorsements thereon, and the assignments of the same; also to the tax deed issued upon said tax-sale certificates, and in fact to all the evidence tending to establish a tax title or lien on the premises in question; and each of these objections is now urged as a reason for the reversal of the judgment rendered in the court below.

The first question is, can any of these objections avail the defendant ? The defendant’s answer set up but two defenses: first, a general denial; second, the statute of limitation. As to the last, it being a question of fact, and the trial court having found in favor of the plaintiff and against the defendant, *177(plaintiff in error,) we shall not consider this defense; and in fact no error is urged or claimed by reason of the finding of the court thereon. This leaves an issue of fact only as presented by the defendant’s general denial. And this brings us to the inquiry, what question of fact the denial raised. After a careful examination of the petition we are of the opinion that no question of fact was put in issue thereby. The petition alleges the lawful assessment and levy of the taxes on the premises for all the years from 1861 to 1878, both years inclusive, and lawful tax sales thereunder for the taxes for the years 1861 and 1865; the execution and delivery of the tax-sale certificates based upon said sales for the years 1861 and 1865; that said tax-sale certificates were then outstanding, in full force and effect, and were duly held by Medad Harvey; the payment of all the taxes, penalties and charges under and by reason of the holding of said tax-sale certificates; the assignment and delivery of the certificates by Harvey to Mills; the execution and delivery by the county clerk of tax deeds in due form, and based on said tax-sale certificates.

Section 128 of the code of civil procedure provides that “every material allegation of the petition, not controverted by the answer, . . . shall, for the purposes of the action, be taken as true.” And §108 of the code reads as follows:

“Sec. 108. In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, shall be taken as true, unless the denial of the same be verified by the affidavit of the party, his agent or attorney.”

3. Legal effect of general denial, not verified.

The* defendants’ denial, not being verified as provided by § 108, was of no avail to them, for it admitted the execution of the tax-sale certificates, the indorsements thereon, the assignment ■ of the same, and the execution of the tax-deeds. This was an admission not only of their execution, assignment and indorsement, but the legal effect of said instruments, and what they would fairly prove and establish.

*178In the case of Reed v. Arnold, Mr. Justice Valentine says:'

“ When the execution of a written instrument is admitted by the pleadings, its legal effect must of necessity follow; and what its legal effect is, is purely a question of law for the court to determine. There is, then, no issue of fact with reference to the existence or effect of the written instrument upon which evidence can be introduced to the jury; and evidence can never be introduced to a jury except in support of some issue of fact made by the pleadings.” (10 Kas. 104. Also, see Barkley v. The State, 15 Kas. 100; Pears v. Wilson, 23 id. 346.)

So in this case, the execution and authority being admitted, the legal effect would be a regular assessment and levy, and a regular sale, and the issuing of tax-sale certificates based thereon ; their assignment and indorsement of taxes paid, and the assignment of said certificates, and a deed duly issued thereon, in due form, is a legal admission of a perfect tax record; and this tax title being admitted by the defendants’ answer, the court should have sustained defendants’ objections to their introduction, not upon the grounds urged, but only for the reason that they were not controverted by the answer. But the introduction of said record by the plaintiff was not such an error as would work any injustice to the defendants. It was simply proving what the defendants had admitted; it was unnecessary and immaterial, therefore not material error.

It is therefore recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.