30 F. 908 (D.Kan. 1887), Watkins v. Reed

• Citation: 30 F. 908
• Party Name: WATKINS v. REED.
• Court: United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 908

30 F. 908 (D.Kan. 1887)

WATKINS

v.

REED.

United States Circuit Court, D. Kansas.

1887

C. N. Sterry, for plaintiff.

Utley & Martin, for defendant.

BREWER, J.

There is but a single question in this case, and that is whether section 141 of the tax law (Comp. Laws, 967) provides, within itself, a complete and absolute limitation, unaffected by any of the provisions of the general limitation article of the Code of Civil Procedure, and especially section 21 of said article. Section 141 reads as follows:

'Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of land for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.'

And section 21 of the Code of Civil Procedure, so far as is material to this case, reads as follows:

'If, when a cause of action accrues against a person, he be out of the state, the period limited for the commencement of an action shall not begin to run until he comes into the state.'

Does this exception apply to section 141. Article 3 of the Code is devoted entirely to the matter of limitations. Section 15 provides 'that civil actions can only be commenced, within the periods prescribed in this article, after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation. ' Then follow several sections prescribing different limitations for different actions. Besides these, there are three or four sections making special exceptions to the general operation of the limitation clauses; as, for instance, the legal disability of the plaintiff, the absence or concealment of the defendant, or the failure of the first action.

Now, it is contended by the defendant that this limitation section in the tax law is unaffected by these various exceptions in article 3. The

Page 909

supreme court of the state has not definitely decided this. It is true that in Walker v. Boh, 32 Kan. 354, 4 P. 272; Harris v. Curran, 32 Kan. 580, 4 P. 1044; Doyle v. Doyle, 33 Kan. 725, 7 P. 615,--there are some expressions which seem to sustain the claim of the defendant. But it is also true that in Bonifant v. Doniphan, 3 Kan. 33, and in perhaps some other cases, there...