The opinion of the court was delivered by
Brewer, J.:
This case comes into this court for review of the decision and judgment of the district court of Nemaha county, upon a demurrer to the petition of plaintiff, which was sustained, and judgment forthwith thereon rendered for defendants.
The petition shows that Ewing, as assignee of Potter, held a school-land-sale certificate dated November 20, 1867, for 160 acres of land; that Potter went into possession and made permanent improvements upon said land, and thereafter, until February 20, 1878, plaintiff was in possession, and had so improved said land as to have it inclosed with an Gsage hedge fence, and to have a house and a well thereon, and all of the value of $2,000, and had paid six of the ten payments to be paid therefor, his last payment of principal being in 1873, and of interest in 1874; that taxes had been paid from date of sale up to 1873, and that for the taxes of that year a sale had been made to the county, which was unassigned until January 23, 1878; that a subsequent sale was made to the county for the tax; of 1874, to which was charged up the taxes for 1875-6; that on November 7, 1877, this last tax-sale certificate was assigned to defendant, Martha E. Baldwin, the wife of S. J. Baldwin; that forthwith, on said day, Baldwin (with no claim to said land, unless under such certificate, and which was void, being a sale forbidden by law, there being an outstanding sale certificate held by the county [87]*87for tax of 1873, at the time such sale for 1874 was made) paid to the treasurer the four of the ten payments unpaid under Ewing’s sale certificate, and $85.55 interest, being a total of $301.55, and obtained a certificate of full payment; that upon such payment Baldwin obtained a certificate from the county clerk, and thereon procured the auditor to certify that she had made full payment for said land as a purchaser thereof; that thereon, on November 14, 1877, the governor issued a patent to Baldwin under school-land-sale act of 1864, which was placed on record November 21, 1877; that Baldwin placed thereon what is conceded to be a bona fide mortgage for $550; that on February 20,1878, Baldwin forcibly evicted defendant’s tenant from the premises, and has since enjoyed the benefits thereof; that the $550, derived from the mortgage and. the use of the premises for 1877-1878, amounted in excess of all tax liens paid on said land, and purchase-money therefor; that Baldwin obtained such assignment, certificate and patent through collusion with the county officials, and without authority of law therefor; and thereon praying that Baldwin be held as trustee (as such patentee) for the benefit of plaintiff, and compelled to account for benefits derived, and upon same being settled, that title should be decreed to be conveyed to plaintiff.
Was there error in the ruling of the district court? On behalf of defendants, it is urged that by the default of Ewing in the payments of principal and interest, he had forfeited all rights and interests in the land, and that therefore it matters not what wrong may have been done to the state or the school fund by the defendants — he can found no personal rights thereon. The case of The State v. Emmert, 19 Kas. 546, is referred to as decisive, in which this court held, that “If a purchaser of school lands fails to pay the interest or principal at the time the same becomes due, such failure ipso facto works a forfeiture; and the interest of the purchaser in the land instantly and absolutely ceases.” It is further urged that school lands are by statute subject to taxation, and that the purchaser at a tax sale has a right to complete the pay[88]*88ments to the school fund for his own benefit, and that defendants have only exercised this statutory right. On the part of the plaintiff, it is argued that the question of forfeiture is one which can arise only between the vendor (in this case, the state) and the vendee; that no third party can raise the question; that even the vendor cannot both accept the money and claim the forfeiture; that accepting the former waives the latter; that in case of forfeiture, the land is to be reappraised and resold, and the money paid forfeited to the school fund; that the defendants have treated this as though there were no forfeiture, and have paid the balance of the purchase-money to the state, and the same has been accepted, so that there is in fact no question of forfeiture in the case; that defendants’ attempted purchase of a tax title was a failure, (Morrill v. Douglass, 17 Kas. 291,) and gave them no right to be substituted for plaintiff, as purchaser from the state. So that the case resolves itself into this: that defendants voluntarily paid the balance of the purchase-money due to the state, and then wrongfully obtained a conveyance of the legal title to themselves.
We think the ruling of the district court in favor of the defendants must be sustained. By the plaintiff’s default, his rights and interests had fully and absolutely ceased. He bought in the first instance with that law plainly before him, and with that as a part of his contract. His rights and interests were to cease and determine, not upon the election of this or that officer, nor at the close of judicial proceedings, but immediately and absolutely upon a default in payment of either principal or interest. He had defaulted, and defaulted for years. There was no attempt to interfere at the instant of default. Now, having no right or interest in the land, and having had none for years, how has he been deprived of anything by the conduct of defendants? No matter what they may have acquired, or how they acquired it— they have taken nothing which belonged to him. That at one time he had an interest in the land, does not give him a present right to challenge their conduct. Their wrong-doing [89]*89does not restore his lost estate.- He is in no worse condition than if the county attorney had proceeded to eject him, as it was his duty to do, and thereafter the land had been reappraised and resold. If'the school fund has been wronged, the public officers are the ones to enforce redress.
But further: plaintiff defaulted, not merely in his payments of purchase-money, but also in the taxes on the land, and defendants became tax purchasers. As such they had a right to protect their tax interests against the claims of the school fund. Such a right is not limited, as counsel claim, to the holder of a tax deed. If it were, it would generally be only a barren right. But every purchaser at a sale, or of a sale certificate, may protect his interest by paying any sum due as purchase-money to the school fund. (Comp. Laws 1879, p. 856, §14.) And these defendants paid for themselves, and to protect their own claims: whether those claims were well or ill founded, they had a color of right, and to protect that made their payments to the school fund. They never pretended to be paying plaintiff’s debt, but, claiming to own the land by virtue of their tax-purchase, paid the balance due upon the original sale. In all this they acted for themselves, and adversely to plaintiff.
Whether defendants have not gone further than they were entitled to, and obtained a patent before they had acquired a tax deed, and whether plaintiff could not have redeemed from these tax sales, are questions not properly before us. No redemption in fact is alleged. The plaintiff does not claim to have tendered any money to either the county treasurer or the defendants.
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The opinion of the court was delivered by
Brewer, J.:
This case comes into this court for review of the decision and judgment of the district court of Nemaha county, upon a demurrer to the petition of plaintiff, which was sustained, and judgment forthwith thereon rendered for defendants.
The petition shows that Ewing, as assignee of Potter, held a school-land-sale certificate dated November 20, 1867, for 160 acres of land; that Potter went into possession and made permanent improvements upon said land, and thereafter, until February 20, 1878, plaintiff was in possession, and had so improved said land as to have it inclosed with an Gsage hedge fence, and to have a house and a well thereon, and all of the value of $2,000, and had paid six of the ten payments to be paid therefor, his last payment of principal being in 1873, and of interest in 1874; that taxes had been paid from date of sale up to 1873, and that for the taxes of that year a sale had been made to the county, which was unassigned until January 23, 1878; that a subsequent sale was made to the county for the tax; of 1874, to which was charged up the taxes for 1875-6; that on November 7, 1877, this last tax-sale certificate was assigned to defendant, Martha E. Baldwin, the wife of S. J. Baldwin; that forthwith, on said day, Baldwin (with no claim to said land, unless under such certificate, and which was void, being a sale forbidden by law, there being an outstanding sale certificate held by the county [87]*87for tax of 1873, at the time such sale for 1874 was made) paid to the treasurer the four of the ten payments unpaid under Ewing’s sale certificate, and $85.55 interest, being a total of $301.55, and obtained a certificate of full payment; that upon such payment Baldwin obtained a certificate from the county clerk, and thereon procured the auditor to certify that she had made full payment for said land as a purchaser thereof; that thereon, on November 14, 1877, the governor issued a patent to Baldwin under school-land-sale act of 1864, which was placed on record November 21, 1877; that Baldwin placed thereon what is conceded to be a bona fide mortgage for $550; that on February 20,1878, Baldwin forcibly evicted defendant’s tenant from the premises, and has since enjoyed the benefits thereof; that the $550, derived from the mortgage and. the use of the premises for 1877-1878, amounted in excess of all tax liens paid on said land, and purchase-money therefor; that Baldwin obtained such assignment, certificate and patent through collusion with the county officials, and without authority of law therefor; and thereon praying that Baldwin be held as trustee (as such patentee) for the benefit of plaintiff, and compelled to account for benefits derived, and upon same being settled, that title should be decreed to be conveyed to plaintiff.
Was there error in the ruling of the district court? On behalf of defendants, it is urged that by the default of Ewing in the payments of principal and interest, he had forfeited all rights and interests in the land, and that therefore it matters not what wrong may have been done to the state or the school fund by the defendants — he can found no personal rights thereon. The case of The State v. Emmert, 19 Kas. 546, is referred to as decisive, in which this court held, that “If a purchaser of school lands fails to pay the interest or principal at the time the same becomes due, such failure ipso facto works a forfeiture; and the interest of the purchaser in the land instantly and absolutely ceases.” It is further urged that school lands are by statute subject to taxation, and that the purchaser at a tax sale has a right to complete the pay[88]*88ments to the school fund for his own benefit, and that defendants have only exercised this statutory right. On the part of the plaintiff, it is argued that the question of forfeiture is one which can arise only between the vendor (in this case, the state) and the vendee; that no third party can raise the question; that even the vendor cannot both accept the money and claim the forfeiture; that accepting the former waives the latter; that in case of forfeiture, the land is to be reappraised and resold, and the money paid forfeited to the school fund; that the defendants have treated this as though there were no forfeiture, and have paid the balance of the purchase-money to the state, and the same has been accepted, so that there is in fact no question of forfeiture in the case; that defendants’ attempted purchase of a tax title was a failure, (Morrill v. Douglass, 17 Kas. 291,) and gave them no right to be substituted for plaintiff, as purchaser from the state. So that the case resolves itself into this: that defendants voluntarily paid the balance of the purchase-money due to the state, and then wrongfully obtained a conveyance of the legal title to themselves.
We think the ruling of the district court in favor of the defendants must be sustained. By the plaintiff’s default, his rights and interests had fully and absolutely ceased. He bought in the first instance with that law plainly before him, and with that as a part of his contract. His rights and interests were to cease and determine, not upon the election of this or that officer, nor at the close of judicial proceedings, but immediately and absolutely upon a default in payment of either principal or interest. He had defaulted, and defaulted for years. There was no attempt to interfere at the instant of default. Now, having no right or interest in the land, and having had none for years, how has he been deprived of anything by the conduct of defendants? No matter what they may have acquired, or how they acquired it— they have taken nothing which belonged to him. That at one time he had an interest in the land, does not give him a present right to challenge their conduct. Their wrong-doing [89]*89does not restore his lost estate.- He is in no worse condition than if the county attorney had proceeded to eject him, as it was his duty to do, and thereafter the land had been reappraised and resold. If'the school fund has been wronged, the public officers are the ones to enforce redress.
But further: plaintiff defaulted, not merely in his payments of purchase-money, but also in the taxes on the land, and defendants became tax purchasers. As such they had a right to protect their tax interests against the claims of the school fund. Such a right is not limited, as counsel claim, to the holder of a tax deed. If it were, it would generally be only a barren right. But every purchaser at a sale, or of a sale certificate, may protect his interest by paying any sum due as purchase-money to the school fund. (Comp. Laws 1879, p. 856, §14.) And these defendants paid for themselves, and to protect their own claims: whether those claims were well or ill founded, they had a color of right, and to protect that made their payments to the school fund. They never pretended to be paying plaintiff’s debt, but, claiming to own the land by virtue of their tax-purchase, paid the balance due upon the original sale. In all this they acted for themselves, and adversely to plaintiff.
Whether defendants have not gone further than they were entitled to, and obtained a patent before they had acquired a tax deed, and whether plaintiff could not have redeemed from these tax sales, are questions not properly before us. No redemption in fact is alleged. The plaintiff does not claim to have tendered any money to either the county treasurer or the defendants. All he claims’Ms, that they have been reimbursed in théir entire outlay by the Value of their possession of the land and the money they received from a mortgage on the title they acquired. But upon this, see Stebbins v. Guthrie, 4 Kas. 354; Hoffmire v. Rice, 22 Kas. 749; Comp.Laws 1879, p.963, §127.
It may be that plaintiff has lost the proceeds of some years of toil, and that defendants have acquired property for less than its real value. But contracts in which time is of the essence [90]*90of the contract, though hard and harsh, are legal. Parties who voluntarily enter into them have no right to complain of their terms. Always, or almost always, there are benefits, or supposed benefits, to countervail the risk, and where a party defaults in his payments of purchase-money to his vendor, and of his tax obligations to the state, and so defaults for a series of years, he need not be surprised to see that property, whose obligations he has abandoned, but whose benefits he has been seeking to continue, pass to one who has discharged all his delinquent obligations in respect to the land. The prospect of getting land at less than its market value is one of the inducements the state holds out to purchasers at tax sales to. encourage such purchasers, and insure prompt payment of taxes. And this policy, whether right or wrong, wise or unwise, the courts may not thwart.
We think the ruling of the district court was correct, and must be affirmed.
All the Justices concurring.