Coonradt v. Myers

• Court: Kansas Supreme Court
• Writing for the Court: BREWER, J.:
• Citation: Coonradt v. Myers, 31 Kan. 30, 2 P. 858 (Kan. 1883)
• Decision Date: 01 July 1883
• Parties: DAVID COONRADT v. SIMON MYERS

2 P. 858

31 Kan. 30

DAVID COONRADT v. SIMON MYERS

Supreme Court of Kansas

July 1, 1883

Error from Miami District Court.

THE nature of the action, and the facts, appear in the opinion. Defendant Coonradt brings the case to this court.

Judgment reversed and case remanded.

Brayman & Sheldon, for plaintiff in error.

Geo Kingsley, for defendant in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

This case, in one form or another, has been to this court twice before. (24 Kan. 313; 28 id. 211.) On the final trial before the court without a jury in October, 1882, the following facts were found: Defendant in error was the owner of the original title to the land in controversy. On the third of May, 1871, it was sold to the plaintiff in error at a regular tax sale for the delinquent tax of 1870. A sale certificate was issued to him, upon which were indorsed the subsequent taxes of 1871, 1872, 1873, and 1874. On July, 1875, a tax deed was issued on such certificate, and on July 17, 1875, the tax deed was recorded. The subsequent taxes for 1875, 1876, 1877, and 1878, were paid by plaintiff in error. This action was commenced July 14, 1880. It further appears from the findings, that on the 20th of March, 1879, the defendant in error took actual possession of the land, which prior to that time had been vacant, and has remained in possession ever since; that in April, 1879, after possession had been taken by defendant in error and while it was so in his possession, the plaintiff in error entered upon the land and made improvements in the way of fencing, to the amount of $ 166.50. The court found that the assessment proceedings for 1870 were fatally defective, so that the tax title based upon such proceedings could not be sustained, but that the tax proceedings for the other years were regular and valid. Of this, in view of prior rulings of this court, no complaint is made. But the district court further found that the plaintiff in error was entitled to recover only the taxes paid within three years prior to the commencement of the action, to wit, the taxes of 1877 and 1878, and that he was not entitled to recover anything for the improvements placed on the land. Of these last two matters plaintiff in error complains, and these are the two questions presented in this case for examination.

The first, stated in a general way, is this: In an action for the recovery of possession between the holder of a tax title and the original owner of the land, if the tax title is adjudged invalid, can the holder of such title recover all the taxes theretofore paid by him with interest, or can he recover only those paid within three years prior to the commencement of the suit? This question must be answered in favor of the recovery of all taxes. Counsel for plaintiff in error clearly exposed the fallacy of the rule laid down by the district court by this simple illustration: The tax deed may issue only after three years from the sale; therefore any money paid for the purchase of the tax title is lost to the purchaser after the issue of the tax deed, and unless his tax title is good he gets nothing. In other words, the statute is saying to a purchaser, buy at a tax sale, and at the end of three years you shall have a deed, and if all the proceedings are regular, you will get title; if irregular, you get nothing, unless you shall pay taxes subsequent to the purchaser, and then you will get only those taxes and interest. Now put it in another shape: The holder of the original title has five years within which to bring an action against the owner of a tax title. He waits four years from the record of the deed and brings his action. Some defect appearing in the proceedings, the tax title fails, and the original owner recovers possession. The purchaser at the tax sale, though he paid not merely the purchase-money but all subsequent taxes up to the time of his deed, gets nothing. He loses the land, and also the taxes he has contributed to the support of the government. Obviously, if this is the true rule of construction, the inducement to invest in tax sales is wonderfully abridged, for it is an accepted canon that tax proceedings, being proceedings in invitum, are to be strictly construed, and, unless in all things regular, fail to transfer title. And the general experience has been, that irregularities and defects are found in a large proportion of tax proceedings. The theory upon which this court has acted, which is the general rule of construction in other states, and which is the obvious policy of our statutes, is to secure to the tax purchaser either the land, or his tax investment with its large statutory interest. In that way it compels the prompt payment of taxes by holding out large inducements to tax purchasers to invest upon the delinquencies of original...