Hudson v. Phillips

OPINION OF THE COURT PARKER, C. J. The appellee brought an action in ejectment against the appellant, and filed the ordinary complaint in such action. The appellant filed a general denial of the allegations of the complaint. A trial was had before the court, resulting in a judgment for the plaintiff, from which the appellant had appealed. It appears from the transcript that the appellee showed a good paper title in himself emanating from the government. The appellant sought to justify his entry into possession of the land under a tax deed, dated March 2, 1920, and issued by the collector upon a certificate of sale, dated August 16, 1916, and assigned by the county to a purchaser on February 7, 1920. The court held the tax deed to be void and of no effect, and awarded judgment for the plaintiff. It seems to be admitted by counsel for appellant that the showing which he made in support of the tax deed was insufficient in fact to establish its validity. He relies, however, upon certain sections of chapter 133, Laws 1921, which went into effect March 12, 1921. At this time the cause was pending in the district court, the complaint having been filed February 15, 1921. Section 455 of the act above mentioned provides that a tax deed shall be prima facie evidence of a certain enumerated list of facts, which would seem to cover all of the questions as to the regularity of the tax proceedings. In other words, it provides, in substance and effect, that a tax deed shall be prima facie evidence of its own validity. Counsel admits that prior to the passage of this act no such presumption attended a tax deed since the repeal of the curative provisions of the tax laws of 1899 by chapter 84 of the Laws of 1913. He argues, however, that the act of 1921 merely provides a new rule of evidence or procedure, and that therefore it violates no constitutional guaranty. Assuming that tbe act does establish a new rule of evidence and procedure in tax cases, and acts retrospectively, wbicb counsel for appellee vigorously denies, owing to some limitations in the repealing clauses of the act, counsel for appellant is still confronted with the provision of section 34, article 4, of the state Constitution, which is as follows: “No act of the Legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case.” This case was pending when the act in question was passed. According to the argument of counsel for appellant, it does change the rule of evidence and procedure in'tax cases, of which this is one. The act, therefore, cannot be held to be applicable in this case without holding that it is unconstitutional to the extent to which it is involved herein, a result not to be desired. The Legislature in section 601 of. the act has attempted to provide for just such a situation as has arisen in this case. It follows that the act of 1921 cannot be allowed to have any application in this cause, and that the appellant, having failed to establish the validity of the tax proceedings, cannot recover. For the reasons stated, the judgment of the lower court will be affirmed; and it is so ordered. BRATTON and BOTTS, JJ., concur.