27 F. 850 (D.Kan. 1886), Flint v. Republic County Com'rs

Citation:27 F. 850
Party Name:FLINT v. COUNTY COM'RS REPUBLIC CO.
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 850

27 F. 850 (D.Kan. 1886)

FLINT

v.

COUNTY COM'RS REPUBLIC CO.

United States Circuit Court, D. Kansas.

1886

F. M. Clark, for plaintiff.

T. M. Noble, for defendants.

BREWER, J.

The demurrer must be sustained. The defendant is under no obligation to return taxes upon failure of tax titles, except

Page 851

as some statute requires it. Commissioners Lyon Co. v. Goddard, 22 Kan. 389. Before the county can be held liable, default on the part of the treasurer must be alleged, or some interference with him by the commissioners. Commissioners Saline Co. v. Geis, 22 Kan. 381. The plaintiff must rely on section 120 of the tax laws of 1868, for without that the statute of limitations would plainly bar. This provides that if the county clerk discovers that the land ought not to be conveyed, he shall not convey it; and also that the county treasurer shall, on the return of the tax certificate, refund the tax money. This petition does not allege when, if ever, the county clerk discovered that the land ought not to be conveyed, or that the tax certificate was ever returned, or offered to be returned. Whether the first matter is a fatal defect need not be determined. The second is vital. Perhaps the failure to return was one of the reasons why the treasurer refused to pay, and the commissioners to make any provision for payment. The lack of funds is not shown to be the only reason for refusal. Only inferentially does it appear that any demand was ever made on the treasurer; the demand is alleged to have been made upon the county.

Leave is given to file an amended petition, with leave to answer.

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