Shoat v. Walker

6 Kan. 65

• Court: Supreme Court of Kansas
• Decided: January 15, 1870
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

The defendant in error, who was plaintiff in the court below, files his petition for the recovery of a certain piece of land. The defendant below answers, setting up a tax title to said land. The plaintiff demurs to the defendant’s answer, on the ground that the answer does not state facts sufficient to constitute a defense to the plaintiff’s action. The court sustains the demurrer, to which the defendant excepts, and brings the question here for review.

i. Assignment °l j”Ín°e?Í864te by Co. treasurer ¡a void. I. The defendant in his answer sets out the tax deed in full, and the objection to his answer is, that the tax dee<l appears upon its face to be void. The plaintiff below urges several reasons why he 0 d thinks the tax deed is void, some of which we regard as frivolous; but there is one objection to the tax deed which we think is good. It appears from the tax deed, that the land in dispute was sold on the 5th day of May, 1863, to the county of Lyon, for the taxes of the year 1862, and that on the 18th day of June, 1864, the tax-sale certificate, which had been issued to Lyon county for said land, was assigned by the county treasurer of Lyon county to one Joseph J. Howard. The tax deed was made to said Howard, and the defendant, Shoat, claims title under Howard. The objection to this tax deed is, that on the 18th day of June, 1864, the county treasurer had no authority to assign tax-sale certificates belonging to the county. Section 44 of the tax law of 1860, (Comp. L. 1862, p. 867,) which gave the county treasurer, such authority, had, before that time, been repealed. Said section was repealed March 5th, 1864, (§12, ch. 87, 1864, p. 73.) And on June 18th, 1864, the county clerk alone could assign tax-sale certificates belonging to the county; (§ 9, ch. 37, 1864, p. 73.)

2\Wc£niowsd useface8voidou This defect in the assignment of the tax-sale certificate is not a mere irregularity, but it is to all intents and purposes no assignment at all. It is no better ^an the probate judge, or the county attorney, or any other resident or non-resident of Lyon county, had made the assignment. Under said section nine, no assignment of such a certificate has any validity, except an assignment made by the county clerk. The assignment being void, the tax deed made upon such an assignment is also void.

3. statute or Limitations ftnoftaS“in face. II. The tax deed was recorded May 26th, 1865; and this action was commenced August 16th, 1869. The tax-deed having been recorded more than two ° years before this action was commenced, the question arises, whether the plaintifrs action is barred by the two-years statute of limitations? or, in other words, whether the said statute of limitations will run on a tax deed void upon its face? "We do not think that a tax deed, void upon its face, is sufficient to set the statute of limitations in operation, so as to bar an action for the recovery of the land in two years. Moore v. Brown, 4 McLean, 211; 11 Howard, 414; Lain v. Shepardson, 18 Wis., 59. And bearing upon the same point, see also, Irving v. Brownell, 12 Ill., 402; Rawlings v. Bailey, 15 Ill., 180; Bowman v. Wettigg, 39 Ill., 428; Swope v. Purdy, 2 Western Jurist, 168.

It is admitted in the answer, in this case, that the land in controversy is wild and uncultivated, and has never been in the actual possession of any person.

A tax deed to be sufficient when recorded to set the statute of limitation in operation, must of itself be prima facie evidence of title1. It is not necessary that the deed be absolutely good, under all circumstances. It is not necessary that it be sufficient to withstand all evidence that may be brought against it to show that it is bad. But it must appear to be good upon its face; it must be a deed that would be good if not attacked by evidence aliunde. When the deed discloses upon its face that it is illegal, when it discloses upon its face that it is executed in violation of law, the law will not assist it. No statute of limitation can then be brought in to aid its validity. The party accepting it, and claiming under it, has full notice of its illegality, and must abide the consequences of such illegality. Tie has no reason to complain.

We .will pass over the other questions raised in this ease, as they will not probably be raised again. It is not probable that the defendant below can, in fact, so amend his answer as to avoid the objection to his tax deed already considered and decided. The judgment of the court below is affirmed.

All the Justices concurring.