English v. Williamson

• Decision Date: 09 October 1885
• Parties: N. A. ENGLISH v. THOMAS WILLIAMSON
• Court: Kansas Supreme Court

8 P. 214

34 Kan. 212

N. A. ENGLISH v. THOMAS WILLIAMSON

Supreme Court of Kansas

October 9, 1885

Error from Sedgwick District Court.

EJECTMENT brought by English against Williamson. Judgment for defendant at the June Term, 1884. The plaintiff brings the case to this court. The material facts are stated in the opinion.

Judgment reversed and cause remanded.

Ruggles & Parsons, for plaintiff in error.

Stanley & Wall, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by N. A. English against Thomas Williamson, to set aside a tax deed on five lots in the city of Wichita, and to recover the property conveyed by the tax deed. The case was tried by the court without a jury, and the court made special findings of fact and conclusions of law and rendered judgment in favor of the defendant and against the plaintiff that the tax title was valid, and for costs; and to reverse this judgment the plaintiff now brings the case to this court.

It appears from the record brought to this court that the tax deed is valid upon its face, and is not void or voidable for any reason unless it is void or voidable for the reasons hereafter mentioned. The plaintiff claims that the tax deed is void or voidable for the following reasons: (1) That the assessment roll, or in other words the return of the assessor to the county clerk, has not been verified by any oath or affidavit, and no oath or affidavit has been attached to such assessment roll, as required by § 51 of the tax law of 1876. (2) That the redemption notice, as provided for by § 137 of the tax law of 1876, and as in fact issued and published by the county treasurer, did not give to the owner of the property three years' time from the day of the tax sale within which to redeem his lots from such sale. (3) That the lots were sold for an overcharge of fees by the county treasurer. We shall not in this case attempt to determine whether the first and third objections to the tax deed are tenable, or not. We are inclined, however, to the opinion that they are not tenable. (See § 6 of the act relating to oaths, and § 139 of the tax law of 1876.)

We shall now proceed to consider whether the second objection to the tax deed is tenable, or not. It appears from the record brought to this court, that the lots were sold on September 4, 1878, for the taxes of 1877, and that the redemption notice, which was dated April 7, 1881, stated that unless the lots were redeemed prior to September 4, 1881, they would be conveyed to the purchaser. That portion of the redemption notice which is most material reads as follows:

"Public notice is hereby given to all whom it may concern, that the following lands and town lots in said county sold on the 4th day of September, 1878, for the taxes and charges of the year 1877, and remaining unredeemed at this date, will be conveyed to the purchaser on the 4th day of September, 1881, unless redeemed prior to that date."

Evidently this notice does not comply with the statutes. Section 127 of the tax law of 1876 provides, among other things, that "any owner, his agent or attorney, may, at any time within three years from the day of sale, and at any time before the execution of the deed, redeem any land or town lot, or any part thereof, or interest thereon," from the taxes, by paying the same, with all interest and charges thereon. Section 137 of the said tax law provides that the redemption notice shall state, among other things, "that unless such lands or lots be redeemed on or before the days limited therefor, specifying the same, they will be conveyed to the purchasers;" and the days limited therefor, as prescribed by § 127 of said law, are "any time within three years from the day of sale" and "any time before the execution of the deed;" and no statute provides for any other limitation upon the time allowed to the owner to redeem his property from the tax sale. Also, § 138 of the tax law of 1876 provides, among other things, that "if any land sold for taxes shall not be redeemed within three years from the day of sale, the county clerk of the county where the same was sold shall, on presentation to him of a certificate of sale, execute" a tax deed. It will be seen from these quotations from the tax law that the owner of the land has, under any circumstances, at least "three years from the day of sale," and "any time before the execution of the deed," within which to redeem his land from the taxes; and the statute evidently means that the day on which the land was sold for the taxes shall be excluded from the computation of the three years' time. This construction of the statute, with regard to the time when the three years shall commence, is in harmony with the general rules for the computation of time with regard to statutes and contracts and all other transactions or things which require time for their consummation or completion. It is also in harmony with § 722 of the civil code, which reads as follows:

"The time within which an act is to be done, shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded."

It is universally held that where the time is to be computed from a particular day or date, such day or date is to be excluded from the computation, and the full time given, exclusive of such day or date. Also, in some cases where the time is to be computed from some event or some act done, the day within which the event transpired or the act was done is also to be excluded; but probably in the majority of such instances the day on which the event occurred or the act was done is to be included in the computation. Among the Kansas authorities upon the subject of the computation of time, are the following: Hook v. Bixby, 13 Kan. 164, 168; Dougherty v. Porter, 18 id. 206, 208; Northrop v. Cooper, 23 id. 432; Warner v. Bucher, 24 id 478. For ...