McCoy v. Hickman

• Citation: 85 Kan. 309,116 P. 825
• Decision Date: 07 July 1911
• Docket Number: 17,000
• Parties: FRANK McCOY v. NATHANIEL G. HICKMAN et al. (NATHANIEL G. HICKMAN, Appellee; DENNIS DOTY et al., Appellants)
• Court: Kansas Supreme Court

116 P. 825

85 Kan. 309

FRANK McCOY v. NATHANIEL G. HICKMAN et al.

(NATHANIEL G. HICKMAN, Appellee; DENNIS DOTY et al., Appellants)

No. 17,000

Supreme Court of Kansas

July 7, 1911

Decided July, 1911.

Appeal from Haskell district court.

Judgment modified and affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

TAX DEED--Lien for Taxes--Certificate in Name of Owner of Land--Assignment. The owner of land which was subject to a mortgage neglected to pay the taxes, and at a tax sale bought in the land and took a tax-sale certificate therefor. Three days afterward he assigned the certificate, and thereafter the assignee paid the subsequent taxes thereon for three years, which were indorsed upon the certificate, and a tax deed was afterward issued to him. In an action for foreclosure of the mortgage, it is held that the taxes for which the land was sold should be deemed to have been paid by the owner, and therefore not the subject of a lien, but that a lien should be allowed in favor of the holder of the tax deed for the subsequent taxes paid by the assignee with interest and costs, as provided in section 9484 of the General Statutes of 1909.

W. R Hopkins, Richard J. Hopkins, and Hoskinson & Hoskinson, for the appellants.

Bennett R. Wheeler, and John F. Switzer, for the appellee.

OPINION

BENSON, J.:

The abstract does not show what the cause of action of the plaintiff, McCoy, was, nor the claims of some of the defendants, but the issues tried arose upon a counter claim of Hickman for the foreclosure of a mortgage, the answer of Doty claiming under two tax deeds, and the answer of Reeves claiming under the patent title. Both Doty and Reeves also pleaded the statute of limitations against the mortgage. It is conceded that both tax deeds were void as conveyances. The court allowed a lien upon the land for the amount of taxes, interest and costs, included in one of the tax deeds. No complaint is made of this ruling, but the court refused to allow any lien under the other tax deed, and from this decision an appeal is taken. A decree of foreclosure was entered in favor of the appellee (subject to the lien so allowed for taxes), and an appeal is taken also from this decree on the ground that recovery upon the mortgage is barred by limitation.

The tax sale for the taxes of 1889, recited in the deed under which a lien was refused, was made to the person then owning the land by conveyance thereof from the mortgagor. Being under a duty to pay the taxes he could not obtain a valid tax title thereon, and the payment made in such a situation for the tax certificate is held to be a payment of the taxes. The fact that he discharged his taxes through the form of a bid made at a tax sale and payment thereunder can not change the legal result between the parties. (Stewart v. Elliott, 63 Kan. 851, 66 P. 986; Manley v. Debentures Co., 64 Kan. 573, 68 P. 31.)

It is contended, however, that the holder of the tax deed should be allowed a lien under the statute for the subsequent taxes of 1890, 1891 and 1892, which were paid by the assignee of the certificate, with interest and costs, as provided in the statute. (Laws 1893, ch. 110, § 6, Gen. Stat. 1909 § 9484.) This claim is opposed on the ground that the assignee of a tax certificate can acquire no greater rights than his assignor possessed. (Prizer v. Taylor, 3 Kan.App. 690, 44 P. 902; 37 Cyc. 1483.) That this is the general rule must be conceded. Under this rule a tax deed based upon such a certificate is necessarily invalid. Neither could a lien be given for the taxes for which the certificate was issued, for they were in legal contemplation paid by the owner. There is a distinction, however, between the taxes last referred to and subsequent taxes paid by the assignee. The latter taxes were, when paid, a lien upon the land. The mortgagee might have paid them, and so protected his security, but he did not do so, and they were paid by the assignee of the certificate. The policy of the law is to encourage the payment of taxes, in order that the public revenues may be promptly received. It is suggested that the assignee had notice from the registry of deeds that his assignor owned the land, but it is believed that investments in such securities are not usually...