Choat v. Phelps

• Decision Date: 07 December 1901
• Docket Number: 12,515
• Citation: 63 Kan. 762,66 P. 1002
• Parties: L. A. CHOAT et al. v. JAMES T. PHELPS
• Court: Kansas Supreme Court

66 P. 1002

63 Kan. 762

L. A. CHOAT et al. v. JAMES T. PHELPS

No. 12,515

Supreme Court of Kansas

December 7, 1901

Decided July, 1901.

Error from Pawnee district court; J. E. ANDREWS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TAXATION -- University Fund. A tax deed issued for property sold in 1893, for taxes of 1892, which included in the tax levy an assessment for the state university fund cannot be sustained, if attacked within the statutory limit.

2. TAXATION -- Redemption Notice. A tax deed cannot be sustained where it is shown that the county treasurer, prior to the issuance thereof, neglected to post the redemption notice required by section 137 of chapter 107, General Statutes of 1901.

Nelson Adams, for plaintiffs in error.George W. Finney, for defendant in error. GREENE, J. CUNNINGHAM, POLLOCK, JJ., concurring.

OPINION

GREENE, J.:

The defendant in error commenced this action in the district court of Pawnee county, against plaintiffs in error to quiet the title to the southeast quarter of section 5, township 23, range 15 west, in said county, alleging that he was the owner and in actual possession, and that defendants therein claimed to have some interest or title to said real estate adverse to his, and praying that the title be quieted in him. To this petition the defendants answered, setting up a tax deed issued October 14, 1896, for the unpaid taxes of 1892, and subsequent taxes, interest and charges thereon; also, alleging actual possession and asking for a judgment quieting the title to said lands in them, or, if defeated in that, that the taxes, interest, and charges, so paid by them, be declared a first lien on the property. The plaintiff replied, first, by a general denial, and second, by an allegation that the tax deed held by defendants was void for various reasons, and particularly because there was levied and assessed against said land for the year 1892 an illegal tax of eleven cents for what is known as the "current university fund," which amount was included in the amount for which said land was sold in 1893; also, that in 1893, for the same fund, a tax was levied and assessed against said land in the sum of five cents, for the year 1894 a like sum of eleven cents, and for the year 1895 a like sum of sixteen cents, which sums were wrongfully included in and added to the legal tax against said property, and were included in the amount for which said deed was issued. Plaintiff also alleged that the treasurer did not post, or cause to be posted, a list or notice of unredeemed lands in four public places in said county, as required by section 137 of chapter 107, General Statutes of 1901. He pleaded a tender of $ 65 as being the amount due the defendants for taxes, interest and costs paid by them for such tax deed.

The following stipulation was filed in the cause:

"It is hereby stipulated and agreed by and between the plaintiff and defendants herein that the plaintiff was the absolute owner in fee simple of the southeast quarter of section 5, township 23 south, of range 15 west of the sixth principal meridian, being the land involved in this controversy, by virtue of a certain warranty deed dated September 9, 1892, to James T. Phelps, and signed by Elvira C. Taylor and Horace J. Taylor, duly acknowledged and filed for record in the office of register of deeds of Pawnee county, Kansas, on September 15, 1892, at 4:15 P. M.; that the chain of title from the government down to said plaintiff, to and including the date of said deed, is perfect."

The court made special findings of fact, among which were the following:

"1. That the plaintiff below received title to this land from Taylor as specified in the stipulation, and that he has never sold or transferred it; that at the commencement of this action he was in the actual possession of said land and has so continued ever since.

"2. That the land was subject to taxation for the year 1892, and that there was assessed, levied and entered against said land upon the tax-rolls of that year, for what is known as the current university fund, a tax of nine cents which was included in the taxes for the year 1892, and was a part of the amount for which the land was sold in 1893, and included in the certificate issued under said sale; that during each succeeding year, a similar levy was made for said current university fund and included in the tax against said real estate, and that the interest was computed on this item each year and the penalties added thereto.

"3. That the treasurer of said county did not post, or cause to be posted, a list or notice of unredeemed lands in four public places in said county as required by law.

"4. That the actual amount due defendants for the taxes, interest and penalties paid by them for the tax deed is sixty-five dollars; and before the commencement of this action the plaintiff tendered to said defendants the said sum of sixty-five dollars,...