Barr v. Randall

• Decision Date: 09 April 1886
• Parties: S. M. BARR v. WILLIAM RANDALL, et al
• Court: Kansas Supreme Court

10 P. 515

35 Kan. 126

S. M. BARR v. WILLIAM RANDALL, et al

Supreme Court of Kansas

April 9, 1886

Error from Marshall District Court.

EJECTMENT brought by Barr against Randall and wife. Trial at the August Term, 1884, and judgment for defendants. The plaintiff brings the case here. The opinion states the facts.

Judgment affirmed.

E. W Sargent, for plaintiff in error.

Doniphan & Reed, and A. E. Park, for defendants in error.

VALENTINE J. JOHNSTON, J., concurring. HORTON, C. J.

OPINION

VALENTINE, J.:

This was an action in the nature of ejectment, brought by S. M. Barr against William Randall and Elizabeth Randall his wife, to recover certain real estate situated in Marshall county. The action was tried before the court without a jury, and the court, after making certain findings of fact and conclusions of law, rendered judgment in favor of the defendants and against the plaintiff for costs. The plaintiff brings the case to this court for review.

It appears that one James C. Smith held the original patent title to the land in controversy, and that the plaintiff claims under a quitclaim deed from him. The defendants claim through intermediate conveyances under a tax deed executed by the county clerk of Marshall county to Russell S. Newell. It appears that on May 6, 1862, the taxes against the land in controversy for the year 1861 were still due and unpaid; that on that day the land was sold for such taxes to Marshall county, and on the same day the county treasurer assigned the tax-sale certificate to Russell S. Newell. Newell at the time was county clerk of Marshall county, but under the laws as they then existed the county clerk had nothing to do with the tax sale, or the tax-sale certificate, or the assignment of the tax-sale certificate. All these things were then embraced within the duties of the county treasurer. Newell afterward paid the taxes for the years 1862 and 1863, and on May 13, 1864, by the authority vested in him as the county clerk of Marshall county, and in pursuance of said tax sale and the assignment of the tax-sale certificate and the payment of the taxes for the years 1861, 1862 and 1863, executed to himself, as an individual, the tax deed in controversy. In other words, the grantor in the tax deed appears to be Russell S. Newell, the county clerk of Marshall county, and the grantee appears to be Russell S. Newell; and the parol evidence introduced on the trial shows that the two are one and the same person. On May 14, 1864, this tax deed was duly recorded in the office of the register of deeds of Marshall county. On July 17, 1875, Newell by a quitclaim deed conveyed the land in controversy to I. C. Legere; on June 5, 1876, Legere by a quitclaim deed conveyed the same to Mary A. Watkinson; on March 21, 1881, Mary A. Watkinson by a quitclaim deed conveyed the land to the defendant, William Randall, and Randall immediately took possession of the land, and has continued in the possession thereof ever since, and has made lasting and valuable improvements thereon; and he and his grantors have paid all the taxes assessed against the land from the year 1861 up to the present time. On January 25, 1884, the plaintiff Barr commenced this action to eject the defendant Randall and his wife from the premises.

The only question involved in the case is, whether the aforesaid tax deed is absolutely void, or not; and the principal objection urged against its validity is that it was executed by Russell S. Newell, as county clerk, to himself, as an individual. The sale seems to have been regular and valid in every particular. The purchase of the tax-sale certificate by Newell from the county treasurer seems also to have been regular and valid; but concerning this matter we shall have more to say hereafter. So also does the assignment of the tax-sale certificate seem to have been regular and valid; and at the time when all these proceedings were had, the county treasurer, under the statutes, had the right to sell and assign the tax-sale certificate to any person who desired to purchase, without any aid or assistance from the county clerk or consultation with him. Hence, at the time when the tax deed was executed, Russell S. Newell, as an individual, had an unquestionable right to the tax-sale certificate, and an unquestionable right to have a valid tax deed executed thereon to himself; and if he had resigned his office of county clerk and another person had been appointed to take his place, he could have compelled such other person by a writ of mandamus to execute to him a valid tax deed.

There is another supposed irregularity, as follows: It is probable that Newell paid the entire purchase-money for the tax-sale certificate in county scrip, and not in cash or in the various warrants on the treasuries of the state, cities, townships, school districts, etc., to which the various items of the consideration for the tax-sale certificate belonged. This may not be the case, however, for presumptively the officers did their duty. Presumptively also, from the prima facie character of the tax deed in whose favor the statute of limitations has long since completely run, everything except the fact that Newell appears to be both the grantor and grantee in the tax deed, was regular and valid. Also, upon the face of all the tax proceedings prior to the tax deed, everything seems to have been regular and valid. But Newell, who was a witness on the trial for the plaintiff, testified in terms that he paid for the tax-sale certificate in question in county scrip. Now it was unquestionably proper for him to pay a portion of the consideration for the tax-sale certificate in county scrip, and possibly all, under the statutes as they then existed. Indeed, it would be difficult to give a good reason why all might not have been thus paid under the statutes as they then existed; but supposing, for the purposes of this case, that such a payment was not proper, still such payment did no harm to the original owner of the land or to any grantee of his, or to any person claiming under him. Under the decisions of this court, made in an early day under the statutes as they then existed, the original owner or his grantee had the same right to redeem the land from the taxes and the right to use the same kind of funds in doing so, after the assignment of the tax-sale certificate as before. (Judd v. Driver, 1 Kan. 455, 464, 465; Guittard Twp. v. Comm'rs of Marshall Co., 4 id. 388, 397. See also Comp. Laws of 1862, ch. 198, § 8, proviso.) And further, neither the original owner nor his grantee in the present case has ever attempted to redeem the land from the taxes, but totally abandoned the land from the year 1861 up to 1884, when this action was commenced, a period of nearly twenty-four years. Hence this irregularity of paying the entire consideration for the tax-sale certificate in county scrip, if it can be called an irregularity, is of such small dimensions, and of such inconsiderable consequence, that we shall hereafter entirely ignore it and exclude it from all further consideration.

The only irregularity, then, of any considerable consequence, is the one, that the person who executed the tax deed as an officer and as grantor was also the individual person to whom the tax deed was executed as grantee. We shall assume that the fact that the grantor and the grantee mentioned in the tax deed were one and the same person, acting and receiving merely in different capacities and in different relations would render the tax deed voidable; and that any person having an interest in avoiding the tax deed might do so at any time before the statute of limitations had completely run in its favor. But the question then arises: Is the tax deed so absolutely void that no statute of limitations can make it good? The tax deed in the present case was on record nearly twenty years before this or any other action was commenced to defeat or avoid the same, and before this or any other action was commenced which could have the effect of defeating or avoiding the same. We hardly think that the tax deed in this case ever was more than voidable; and we are also inclined to think that the statute of limitations has so completely run in its favor that all action having for its object the defeat or avoidance of the tax deed is now completely barred. The tax sale was itself unquestionably valid; the...