Millbank v. Ostertag

24 Kan. 462

Opinions

The opinion of the court was delivered by

Brewer, J.:

The record does not contain any of the evidence, but only the pleadings, findings of fact and conclusions of law made by the court. As shown by the record, the. facts of the case are briefly as follows, viz.: In 1870 the lot in,question was subject to taxation, and in that year, among other taxes, there was assessed thereon a sidewalk tax of $42.14. At this time one L. C. Challiss was the owner in fee simple of said lot, and had been for several years pre vious to that date. In 1869, L. C. Challiss having failed to pay the taxes due on this lot, it was sold in May, 1870, for $3.83, and bid in by the county treasurer; and in 1871 it was advertised for sale for the delinquent sidewalk tax above referred to. Thereafter, L. C. Challiss, desiring to evade the payment of this tax, commenced an action in his own name against the then county treasurer of Atchison county to enjoin the sale of said lot for such delinquent sidewálk tax for 1870, and obtained a temporary injunction against the county treasurer, enjoining a sale of said property, which injunction was, upon final hearing, duly dissolved by the judgment and decree of the district court of Atchison county, which judgment was thereafter affirmed by the supreme court of this state. (Challiss v. Parker, Treas., 11 Kas. 384.)

Thereafter, on January 12, 1874, the lot was sold to Anton Ostertag for $55.10, the amount of said sidewalk tax, and a tax-sale certificate issued to him. On the 29th day of March, 1879, Ostertag took out a tax deed on the lot, and the same was duly recorded. On May 31,1871, and after L. C. Challiss had commenced his suit to enjoin the collection of the delinquent sidewalk tax, he sold the lot in question to Samuel W. Millbank, and executed to him a warranty deed, containing full covenants of seizin, and full covenants against all liens, taxes and encumbrances, which deed was duly recorded. Said lot remained unredeemed, and the sale of May 20,1870, for delinquent taxes for 1869, amounting to $3.83, unassigned, and on December 27, 1875, the lot was sold under the provisions of “An act to provide for the sale of lands for taxes due and unpaid thereon,” approved February 27,1872, to one Frank Eansom for fifteen (15) cents, and a certificate was issued to him, on which he procured a tax deed on February 14, 1876, which deed was duly recorded. Nothing was said in the certificate or deed about the taxes of 1870, or any other than the taxes of 1869. On the 19th day of December, 1877, William L. Challiss, acting as agent for L. C. Challiss, procured a deed from Frank Eansom, whereby Eansom quitclaimed all of his right, title and interest in the lot to Wm. L. Challiss, who, for the consideration of the covenants in the warranty deed of L. C. Challiss to Samuel W. Millbank, on February 11, 1879, conveyed the lot by quitclaim deed to Millbank. Previous to April 1, 1879, L. C. Challiss was the agent of Millbank. On or about July 1, 1879, Ostertag took possession of the lot under his tax-deed, and erected thereon a house.in a good and' substantial manner, costing $300. ■ On the 6th day of August, 1879, L. C. Challiss (without the knowledge or consent of Ostertag, and after the house had been locked up by a contractor and employé of Ostertag,) did forcibly open the house in the nighttime, and then and there, without paying or offering to pay to Ostertag the amount of the sidewalk tax paid out by Ostertag, and without paying or offering to pay for the improvements, procured one Garlick to move into the house {'in the night-time), and thereafter forcibly retained the possession of the property from Ostertag. On the 4th day of September, 1879, Ostertag commenced his action in the court below, against Millbank, Challiss and Garlick, setting forth the facts constituting his cause of action, and praying for a temporary injunction against defendants from further occupying the premises, and from in any manner interfering with him in the quiet and peaceable use and occupation of the property, and from interfering with the plaintiff’s entrance upon said premises and into the building thereon situate, and his removing from the building all things that obstructed him in the free use and occupation of the same; and also praying judgment for all further proper relief. In the absence of the district judge from the county, the probate judge granted the injunction. Thereafter, on September 11,1879, defendant Millbank appeared and filed an answer and cross-petition, asking that the plaintiff’s alleged title and claim might be adjudged void and held for naught, and that he be enjoined from thereafter setting up or claiming any title, claim or interest in and to the property. Challiss and Garlick filed answers. The plaintiff filed a reply to the cross-petition of Millbank, reiterating substantially the allegations of the pe tition, and praying, that if Millbank should be adjudged the legal owner, that before he should be decreed the possession of the land that he be required to pay the amount of taxes paid by Ostertag, and the value of all lasting and valuable improvements.

Upon these pleadings and findings of fact, the court below held: That Ostertag was not entitled to the injunction and relief prayed for in his petition; that the sidewalk tax is a valid and legal tax, and that said lot stood charged with the payment of the same; that the said tax sale to Ostertag, and deed issued in pursuance thereof, were without authority of law; that Millbank was entitled to the relief prayed for in his cross-petition, upon the condition that he should pay to the plaintiff $55.10, the amount of the sidewalk tax, with 7 per cent, interest from January 12, 1874, together with the further sum of $200, the amount that said lot had been enhanced in value by the improvements erected thereon by Ostertag, which amounts were legal and valid liens on the lot. The costs were divided between the parties. The defendant Millbank excepted to the conclusions of law, and and now brings the case here for review.

We think this case is practically covered by prior decisions' of this court. It appears that Ostertag had a tax deed, that the lot was vacant, and that he took possession and erected a building upon it. Now, if at this time defendant had commenced his action to recover the possession, Ostertag would, under the decision in Smith v. Smith, 15 Kas. 290, have been entitled to his taxes and the value of his improvements before he was put out of possession. The notice required by § 601 of the code concerning occupying claimants is a notice by suit. Knowledge of an adverse title is not alone sufficient. Now if Millbank could obtain possession by legal proceedings only upon those conditions, may he, after taking the law into his own hands and in the night-time seizing forcible possession, come into a court of equity and enfore his possession without complying with those conditions ? If such were the rule, it would mean that equity invites a party to take the law into his own hands and commit a breach of the peace, with a promise of securing rights which he could not obtain by an action at law. We do not so understand the rule. Equity, it is said, follows the law; and where the law defines the rights of a party in possession, equity will enforce rather than destroy'those rights, and certainly it will not destroy those rights at the instance of one who has forcibly seized possession and ousted the possessor. There was no fraud or collusion on the part of Ostertag in taking possession. The lot was vacant, and had been vacant for years. ■He held a tax-sale certificate, and afterward a tax deed. He had paid his money into the county treasury for these evidences of purchase and title. He might rightfully — if he could peaceably and without any fraud or collusion — enter upon the lot and improve it. He of course knew that some one held the original title. He may have known of the existence of the other- tax deed, and it would have made no difference if there had been a dozen more tax deeds and he had known of the existence of them all. If no other claimant of the lot saw fit to take possession and improve, he could, leaving to any other party who had or thought he had a bet'ter title, to assert his rights in the courts. To say that he must determine at his peril the validity of his own tax title, and that if he mistakes and his tax title fails he must lose his improvements, is to render the occupying-claimant law of little force in tax cases. Whenever taxes are, in fact, not paid, and the proper authorities, because of such non-payment, make an actual sale in apparent conformity to law, and a party in good faith pays his money into the county treasury and receives a certificate of sale and a deed, he acquires such an equitable interest as will justify his taking possession of the lot, if vacant, and improving it. The law will respect his possession, and if it finally declares his title insufficient,, will compel compensation for his improvements.

But we are met with this objection: The sale to Ostertagwas a nullity because unauthorized by law. The taxes of 1870, including the sidewalk tax, were charged up upon the sale for 1869. Ransom, by his purchase, acquired both of the tax liens of 1869 and 1870. Mill bank’s subsequent purchase was a practical redemption; and having discharged his whole duty to the public by a purchase from the legal holders of all the tax claims, why should he be compelled to pay any money to-one who has ignorantly paid money into the county treasury, or pay him for improvements which he had never been asked to put upon the property ? Suppose, for instance, the lot owner paid his taxes at the proper time, and the officers, failing to enter the fact on the tax books, afterward sold the land as for non-payment of taxes, could the purchaser, upon the faith of such certificate of purchase, take possession and compel the lot owner to pay him the taxes and value of his improvements before surrendering possession ? or, if after sale for non-payment of taxes, the lot-owner goes to the treasurer and redeems: could the holder of the sale certificate thereafter improve the lot at the expense of the lot owner? Could he, if ignorant of the fact of redemption ? and if he could if ignorant, could he with full knowledge of the fact? Is not the duty to the lot-owner paramount to the duty to the tax purchaser, and should not the latter rather than the former suffer for the consequences of mistake or error on the part of public officers? We are not disposed to quarrel with this as a statement of the general rule of law, but two things seem to take this case out of that rule. Before the sale to Ransom, the treasury had received the money for this sidewalk tax, and the public officers had issued a certificate to the party paying, reciting that -he had purchased this lot. In other words, the public authorities had sold the lot for this delinquent sidewalk tax and received full pay. Now whoever else might challenge such sale, the public could not. It had received the money and issued its certificate, or bill of sale. It must abide by its action until such action was, at the instance of some party interested, set aside. It cannot sell and resell and sell again, and keep on selling as long as it finds anyone willing to buy. If a lot is irregularly sold to the county and the sale invalid, another sale may be made to it, (Morrill v. Douglass, 17 Kas. 291,) for in such a case no money is paid, and only a legal sale prevents a second sale; but a purchaser at even an irregular sale acquires rights which cannot be disregarded. He has paid his money, and may be satisfied with his title. The county has received the taxes, and cannot, of its own option and without returning the money, repudiate the sale. Now at a sale, irregular it is true, but nevertheless a sale, Ostertag had paid his money and received a certificate of sale on account of this delinquent sidewalk tax. This money had never been repaid to him. He was satisfied with the purchase, the public with the sale. Again thereafter the public sold the lot to Ransom. What for? As the papers show, simply for the taxes of 1869. No reference is made to the taxes of 1870, or to any subsequent taxes, and the only tax mentioned is that of 1869. Did he acquire any other tax lien than that of 1869 ? Evidently the county did not intend to sell any other, and he did not claim to be buying any other. It is said, however, that he bought more than the papers show, and that the county sold more than it intended to sell, and what it had already received full pay for on an attempted sale to another party, and this because the statute provides for a sale for all taxes due up to the time of sale. Now whatever of tax liens still belonging to the county such a sale will carry, in the absence of any recital (and for the purposes of this casé it may be conceded that it would carry all, though that may well be doubted), it seems clear that it ought not to be held to carry a tax lien of which the county was not equitably the owner, and full payment for which it had already received.

Again, it will be perceived that the purchase by Challiss of the Ransom title and subsequent conveyance to Millbank, was practically nothing but a redemption from the taxes of 1869. It was bought by W. L. Challiss, as agent for his brother, and conveyed to Millbank in satisfaction of the covenants in the deed to the latter. Hence, it is to be treated as a redemption from a tax sale, rather than as a purchase of a tax title. In such light, the case stands before us as a controversy between the holder of an irregular and defective tax deed, and the owner of the original title. The statutory protection must be accorded to the former.

This case has given us much trouble in determining the relative rights of the parties, and with much hesitation we have reached the conclusions above stated. We are not satisfied that the district court erred, and therefore its judgment must be affirmed.

Valentine, J., concurring.