37 Kan. 171 | Kan. | 1887
Opinion by
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.
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,
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.”
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.
“ 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.