Crawford v. Shaft

• Decision Date: 09 July 1886
• Parties: JOSEPH L. CRAWFORD v. DAVID P. SHAFT
• Court: Kansas Supreme Court

11 P. 334

35 Kan. 478

JOSEPH L. CRAWFORD v. DAVID P. SHAFT

Supreme Court of Kansas

July 9, 1886

Error from Chase District Court.

EJECTMENT brought by Crawford against Shaft, to recover certain land situate in Chase county. Trial by the court, at the April Term, 1885, and judgment for the defendant. The plaintiff brings the case here. The opinion states the facts.

Judgment reversed and cause remanded.

Almerin Gillett, for plaintiff in error.

C. N Sterry, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action in the nature of ejectment, brought in the district court of Chase county by Joseph L. Crawford against David P. Shaft, to recover a certain piece of land situated in that county. The case was tried before the court without a jury, and the court found generally in favor of the defendant and against the plaintiff, and rendered judgment accordingly. The plaintiff brings the case to this court for review.

It appears from the undisputed evidence introduced on the trial, that the plaintiff holds the original patent title, and that the defendant claims title under a tax deed issued by the county clerk of Chase county on July 12, 1875, recorded July 30, 1875, based upon a tax sale made June 24, 1872, for the taxes due on the land for the year 1871. At the time the land was sold it belonged to a minor, Seymour L. Byington, who did not become of age until March 29, 1883; hence under the statutes in force during that time and still in force, he had a right to redeem the land up to March 29, 1884. (Gen. Stat. of 1868, ch. 107, § 101; Comp. Laws of 1879, ch. 107, § 128.) On December 20, 1883, he attempted to redeem the land from the taxes, and paid an amount to the county treasurer sufficient to redeem the same from the taxes, if the tax law of 1868 was to govern, (Gen. Stat. of 1868, ch. 107, §§ 101, 105;) but not enough if the tax law of 1876 was to govern. (Comp. Laws of 1879, ch. 107, §§ 127, 128, 132.) The county treasurer accepted the money, and issued a certificate of redemption to the owner, which certificate was duly countersigned by the county clerk. Upon these facts, the court below held that the redemption was not sufficient; that it should have been had under the laws of 1876, and not under the laws of 1868, and therefore that the attempted redemption was a nullity, that the certificate of redemption is void, that the tax deed is good, and that the holder of the tax deed holds the superior and paramount title. The plaintiff in error, however, claims that this holding of the district court is erroneous. He claims that the tax laws of 1868 govern in this case, and not the aforesaid § 132 of the tax laws of 1876, and therefore that the redemption was good, and therefore that he holds the better and paramount title; and he claims this, first, because of a certain saving clause contained in the tax law of 1876, (Comp. Laws of 1879, ch. 107, § 155;) second, because of a certain saving clause contained in the act of 1868 relating to the construction of statutes, (Comp. Laws 1879, ch. 104, § 1, subdiv. 1;) third, because, as he claims, the owner of the property had a vested right under the tax laws of 1868, not merely a privilege, to redeem his property from any taxes which might be levied against the same from the year 1871 up to the date of redemption, or until March 29, 1884, which vested right the legislature could not take away from him by any change of the law, or by a repeal of the same or otherwise; fourth, because the attempted redemption was a bona fide attempt, and as his money was received by the county treasurer and a formal certificate of redemption was duly issued to him and duly countersigned, his attempted redemption was good, whether he paid a sufficient amount therefor or not, and whether the laws of 1868 or the laws of 1876 are to govern; and if he did not in fact pay a sufficient amount of money to redeem, still the attempted redemption is good, leaving the tax-deed holder to recover the remainder of the taxes in an action of ejectment under § 142 of the present tax laws, § 117 of the laws of 1868, or in an action brought specifically for that purpose, which unpaid taxes are still a lien upon the land.

The saving clauses above mentioned read as follows:

"SEC. 155. All matters relative to the sale and conveyance of lands for taxes under any prior statute, shall be fully completed according to the laws under which they originated, the same as if such laws remained in force." (Laws of 1876, ch. 34, § 155; Comp. Laws of 1879, ch. 107, § 155.)

"SEC. 1. In the construction of the statutes of this state, the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, or repugnant to the context of the statute: First, the repeal of the statute does not revive a statute previously repealed, nor does such repeal affect any right which...