Tull v. Royston

• Decision Date: 01 July 1883
• Citation: 2 P. 866,30 Kan. 617
• Parties: F. M. TULL v. EDMUND ROYSTON
• Court: Kansas Supreme Court

2 P. 866

30 Kan. 617

F. M. TULL v. EDMUND ROYSTON

Supreme Court of Kansas

July 1, 1883

Error from Harper District Court.

AT the March Term, 1883, defendant Royston had judgment against plaintiff Tull, who brings it here for review. The nature of the action, and the facts, appear in the opinion.

Judgment affirmed.

I. P Campbell, for plaintiff in error.

S. S Sisson, for defendant in error.

HORTON C. J. VALENTINE, J., concur. Brewer, J., dissent.

OPINION

HORTON, C. J.:

The facts in this case are as follows: The plaintiff purchased of the defendant lot 6 and the west half of lot 5, in block 37, in the city of Harper, in this state, and on the 17th day of September, 1881, the defendant and his wife executed to the plaintiff a deed therefor, "warranting the property to be free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, judgments, assessments, taxes, liens and incumbrances of what nature or kind soever." Some time prior thereto, the city of Harper had by ordinance directed that the owner of said property should build a sidewalk in front of and adjoining the same, and that it should be built on or before July 15, 1881; that on the failure of the owner of the property to build the sidewalk within the time limited, and according to the requirements of the ordinance, the city of Harper would build the same and charge up against the lots the cost thereof; that the defendant was the owner of the property at the time the ordinance was passed, and continued to own the same until the execution of the deed of September 17, 1881; that the defendant failed and refused to build the sidewalk or any part thereof; that after July 15, 1881, and prior to September 13, 1881, the city of Harper built the sidewalk, at a cost of sixty-one dollars and fifty cents; that on September 13, 1881, the city of Harper adopted an ordinance levying a tax and assessment on said property in the sum of $ 61.50, in payment of the sidewalk; that the plaintiff, after purchasing the property, paid the said sum of $ 61.50, and was obliged so to do in order to give a good title to other parties to whom he sold the property.

Upon these facts, the trial court found as a conclusion of law that the plaintiff was not entitled to recover on the covenants in his deed, and rendered judgment against him.

Sec. 85, ch. 107, Comp. Laws of 1879, reads:

"All taxes shall be due on the first day of November of each year. A lien for all taxes shall attach to the real property subject to the same on the first day of November in the year in which such tax is levied, and such lien shall continue until such taxes and penalty, charges and interest which may have accrued thereon shall be paid by the owner of the property, or other person liable to pay the same."

Sec. 86 of the same chapter reads:

"As between the grantor and grantee of any land, where there is no express agreement as to which shall pay the taxes that may be assessed thereon, if such land is conveyed between the first day of March and the first day of November, then the grantee shall pay the same; but if conveyed between the first day of November and the first day of March, then the grantor shall pay them."

The plaintiff claims that these provisions of the statute are not applicable...