Morrill v. Douglass

17 Kan. 291

Opinion

The opinion of the court was delivered by

Brewer, J.:

This is a tax-title case involving the same questions as those presented in the case between the same parties heretofore decided by this court. (Morrill v. Douglass, 14 Kas. 293.) A motion for reargument was presented in that case, and heard at the same time with this. That motion has been overruled, and it is unnecessary to say more than that the reargument has not’succeeded in altering our views as then expressed.

Footnotes

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* It was a singular omission that the learned counsel never, in his brief, nor in his elaborate and extended argument, once alluded to that peculiar section of our statute by which the legislature has announced its will concerning tax titles. That section was first enacted in 1862, and as amended in 1868 now reads:

“No irregularity in the assessment-roll, nor omission from the same, nor mere irregularities of any kind in any of the proceedings, shall invalidate any such proceeding, or the title conveyed by the tax-deed; nor shall &ny failure of any officer or officers to perform the duties assigned him or them, upon the day specified, work an invalidation of any such proceedings, or of said deed.” Gen. Stat., p. 1057, § 113.

This disposes of a vast multitude of questions which the ingenuity of counsel, here and elsewhere, have raised concerning tax titles. A mere irregularity counts for nothing as against a tax-deed in Kansas.

One question is presented in this case which did not exist in that, and requires separate notice. The tax-deed held good was upon a sale in 1863 for the taxes of 1862. At the time of this sale the county held a certificate on a sale made January 1st 1862, for 'the taxes of 1860; and the law then in force (Comp. Laws, p. 868, §48,) provided, that “no lands or town lots, so bid off for the county, shall be sold for any taxes levied subsequent to such bid, until it shall have been redeemed, or shall be sold by the county, or the tax certificate issued to the county shall have been assigned.” To obviate this, counsel reply, that the statute attempting to authorize a sale on January 1st 1862 for the taxes of 1860 was unconstitutional and void, and therefore that the sale and certificate were equally invalid. The act to which he refers is eh. 84 of the laws of 1861, and the objection to it is, that though plainly a general law it is not made of uniform operation throughout the state, but is specifically limited to certain portions and counties. Darling v. Rodgers, 7 Kas., 592. We concede the claim, that if the sale and certificate were void in the hands of the county, there was no restriction on its purchasing in 1863; and that if the sale was made at a time not authorized by law, the sale, and certificate reciting such a sale, were both void. But whether the statute cited be unconstitutional or not, we do not decide, for under a peculiar section of the law of 1860 we have already decided that a sale might under some circumstances be made upon a day other than the regular sale-days, and that therefore a deed reciting such a sale was prima faoie valid. Patterson v. Carruth, 13 Kas. 494. Of course, the certificate would be equally prima faoie valid. There is nothing in the record to overthrow this prima faoie evidence, and therefore the judgment will have to be reversed, and the case remanded for a new trial.

We understand the. same question exists in the succeeding case of Guthrie v. Douglass, and the same judgment will be entered in that case.

Kingman, C. J., concurring.

[*No opinion was filed on the overruling of the motion for rehearing. The case as originally decided in this court, is reported in 14 Kas. 293. — Reporter.]