Beebe v. Doster

• Decision Date: 11 June 1887
• Citation: 36 Kan. 666,14 P. 150
• Parties: WALTER B. BEEBE, et al., v. FRANK DOSTER
• Court: Kansas Supreme Court

14 P. 150

36 Kan. 666

WALTER B. BEEBE, et al., v. FRANK DOSTER

Supreme Court of Kansas

June 11, 1887

Error from Marion District Court.

EJECTMENT brought by Doster against Beebe and another. Trial by the court at the June Term, 1885, and judgment for plaintiff. The defendants bring the case to this court. The opinion states the material facts.

Judgment reversed.

L. F Keller, for plaintiffs in error.

Gillett Fowler & Saddler, for defendant in error; C. N. Sterry, of counsel.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action in the nature of ejectment, brought in the district court of Marion county, on December 25, 1884, by Frank Doster against Walter B. Beebe and G. L. Mastin, to recover certain real estate in said county. The action was tried by the court without a jury, and the court found generally in favor of the plaintiff and against the defendants, and rendered judgment accordingly. The defendants bring the case to this court for review.

The defendant in error, plaintiff below, claims title to the land in controversy under a quitclaim deed executed by Elias W. Tuttle, the original patentee, to the plaintiff below, on October 11, 1884. The plaintiffs in error, defendants below, claim title under a tax deed executed by the county clerk of Marion county to Walter B. Beebe, on May 12, 1875, in pursuance of a tax sale of the land made on May 8, 1872, for the taxes of 1871, and the payment of the subsequent taxes for the years 1872, 1873, and 1874; which tax deed was recorded on May 17, 1875. The tax deed is regular in form and valid upon its face. The defendants below have been in the actual possession of the property since May or June, 1883, and it may be for a longer period of time. Walter B. Beebe, the holder of the tax deed, is a resident of Ohio, and a nonresident of Kansas, and has not been within the state of Kansas for a period of time aggregating five years since the tax deed was recorded, although he has visited Kansas every year since that time, and has stayed in Kansas from three to eight months each time. Neither the plaintiff, Doster, nor his grantor, Tuttle, has ever been in the actual possession of the property.

The first question arising in this case is, whether the five-year statute of limitations contained in § 141 of the tax law of 1876, (Comp. Laws of 1885, ch. 107, § 141,) has so run as to bar any action brought for the recovery of the land purporting to be conveyed by the tax deed, or to defeat or avoid the effect of such tax deed. This question has been elaborately argued by counsel on both sides. The defendants below claim that, as more than five years elapsed from the time of the recording of the tax deed to the time when this action was commenced, the statute of limitations has completely run in its favor, and therefore that all action tending to defeat or avoid its force or effect is completely barred; while the plaintiff below claims that, as the holder of the tax deed has not in the aggregate been within the state of Kansas for the period of five years from the time of the recording of the tax deed until this action was commenced, such statute of limitations has not completely run, and that the present action is not barred; and he claims this solely upon the ground that § 21 of the civil code applies to this question and modifies and limits the force and effect of the provisions of said § 141 of the tax law, and prevents such § 141 from running or operating while the holder of the tax deed is absent from the state of Kansas. The question then, is really this: Does § 21 of the civil code apply to and modify or limit the force and effect of the provisions of § 141 of the tax law? We shall now proceed to consider this question; and in doing so it will be necessary to consider many of the other sections of the statutes.

Article 3 of the civil code contains and includes all the sections of such code, from § 13 to § 25. Section 15 of such article reads as follows:

"SEC. 15. 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."

Section 16 prescribes limitations for the commencement of real actions, and among other limitations upon the bringing of actions for the recovery of real property, it fixes two years after the recording of a tax deed within which to bring the action, and fifteen years as a general limitation.

Section 18 prescribes limitations for the commencement of personal actions.

Section 21 reads as follows:

"SEC. 21. If, when a cause of action accrues against a person, he be out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed; and if, after the cause of action accrues, he depart from the state, or abscond, or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought."

Section 141 of the tax law reads as follows:

"SEC. 141. 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."

Section 128 of the tax law reads as follows:

"SEC. 128. The lands of minors, or any interest they may have in any lands sold for taxes, may be redeemed at any time before such minor becomes of age, and during one year thereafter. And the lands of idiots and insane persons, so sold, or any interest they may have in the same, may be redeemed at any time within five years after such sale, in the manner provided in this act."

The plaintiff below claims that § 21 of the civil code modifies and limits § 141 of the tax law, for the following reasons:

1. Section 21 of the civil code is general in its terms, applying to all causes of action and to all limitations. It says: "When a cause of action accrues," etc.; meaning when any cause of action accrues, whether the same is mentioned in the civil code or not. "The period limited for the commencement of the action shall not begin to run," etc.; meaning the period limited by any statute shall not begin to run, whether this statute is a part of the civil code, or is some other statute, and that the time of the absence of the holder of the cause of action from the state shall, in all cases, be excluded in computing the period within which the action may be brought. It is claimed that, notwithstanding § 15 of the civil code, § 21 of the civil code includes "special cases" of limitation, prescribed by other statutes than the civil code, as well as the general cases of limitation prescribed by such code.

2. This is the construction, it is claimed, given by the supreme court of Kansas in the case of Bonifant v. Doniphan, 3 Kan. 26, to § 28 of the civil code of 1859, which § 28 corresponds to § 21 of the present civil code; which decision has never been overruled, but has since been approved and followed. (Hart v. Horn, 4 Kan. 232, 237, 238; N. M. Rld. Co. v. Akers, 4 id. 453.)

3. Since the decision of the case of Bonifant v. Doniphan, which was rendered at the July term of the supreme court of Kansas in 1864, all the statutes which have any application to this case have been reenacted, and evidently with the construction already put upon them by the supreme court.

4. Section 21 of the civil code and § 141 of the tax law both relate to limitations of actions, and, being in pari materia, must be construed together, and one as limiting and modifying the other. Section 21 of the civil code must be construed as limiting and modifying § 141 of the tax law.

5. Unless § 141 of the tax law is thus limited and modified, and construed not to operate in favor of a tax deed while the holder thereof is a non-resident and absent from the state, such section, it is claimed, must be held to be unconstitutional and void, for the reason that while the holder of the tax deed is a non-resident and absent from the state, no action can be brought for the recovery of the land, or to set aside the tax deed, or to defeat or avoid the same, and the original owner has no other remedy; and therefore the original owner might be deprived of his property by the operation of the statute if construed independent of § 21 of the civil code, without ever having any opportunity to have his day in court or to be. heard in court, and indeed without having any remedy; and the case of Hart v. Sansom, 110 U.S. 151, 28 L.Ed. 101, 3 S.Ct. 580, is cited as authority for the claim that no remedy exists, or could exist, in Kansas, against a non-resident person absent from the state.

6. It is also claimed that any other construction than that 21 of the civil code limits and modifies § 141 of the tax law, would render § 141 of the tax law unjust and inequitable, and would be a construction "contrary to the true legislative intent."

7. It is also claimed that tax laws must be construed liberally as toward the original owner of' the land, and strictly as toward the tax-deed holder.

8. It is also claimed that this court has already decided that absence of the tax-deed holder from the state prevents the limitation prescribed in said § 141 from operating in favor of either the tax deed or the tax-deed holder, and authorities are referred to as supporting this claim; but they do not. This court has never...