Estes v. Stebbins

The opinion of the court was delivered by Brewer, J.: Defendant in error commenced this suit, by petition, in the Atchison district court, on the 4th day of June, 1879, to recover possession of lot 12, block 17, old Atchison, Kansas. Plaintiffs in error answered, denying title of defendant in error, and pleading the statute of limitations — of fifteen years, also of five years, and also of two years; reply filed, denying new matter of answer. A second trial in ejectment was had January 17, 1881, [319] when it was admitted that the title in fee to the property was in the defendants below, and that they had been in the continued, actual and open possession of such lot for more than twenty years; that plaintiff claimed title under a tax deed executed and recorded March 20th, 1879, upon a sale for taxes of the year 1870, made May 17th, 1871, upon which sale the plaintiff below became entitled to a tax deed May 17th, 1874, and such tax deed and rights thereunder, (if such deed had been obtained and recorded at the time at which plaintiff below became entitled to such deed,) would have been barred under the statute of limitations on May 18th, 1876. Plaintiffs in error assert that the defendant in error was barred as fully as if the deed had been executed and recorded at the time defendant became entitled to the same; that defendant could not, at his own will, extend the time in which to bring suit, by failing to take out and record a tax deed, which it was the duty of the county officials to execute upon presentation of the sale certificate. It is conceded that the letter of the statute is with the defendant in error. That names two years from the “date of the recording of the tax deed.” We see nothing to justify the courts in engrafting any exception. The language is clear. It applies without difficulty to the facts of this case. Indeed, to make the statute commence at the date of the deed, or at the time the party was entitled to a deed, as counsel insists, would be more than engrafting an exception — it would be making a new statute. It would be as proper to change the number of years as the date of commencement. The authorities cited from Pennsylvania and Iowa do not sustain the contention of counsel in this case. The statute of Pennsylvania limited the action to five years from the day of sale; and under this statute it was held in an early case that, as the action of ejectment would not lie against a vacant or unoccupied tenement, the statute should be construed not to commence to run until the premises were occupied, upon the principle thpt it could not have been intended to apply to a condition of affairs that precluded the [320] right of action. (Waln v. Shearman, 8 Serg. & R. 357.) Subsequently, however, when the right to maintain ejectment for unoccupied premises had been conferred by statute, it was held that the statute began to run in favor of the purchaser at the time the sale was perfected by deed, he being constructively in possession from that time. (Robb v. Bowen, 9 Pa. St. 71; Sheik v. McElroy, 20 Pa. St. 25; Stewart v. Trevor, 56 Pa. St. 385; Rogers v. Johnson, 67 Pa. St. 48.) Mr. Justice Cooley, in his work on the Law of Taxation, says: “ These decisions have perhaps given effect to the statute as near as was possible consistent with fundamental rules of right.” (Cooley on Taxation, 378.) The laws of Kansas provide that a party placing on record a tax deed has the constructive possession of vacant land, and authorize a suit by the owner to recover possession and test the validity of the deed. (Comp. Laws 1879, ch. 107, §143.) The earlier statute of Iowa was borrowed from Pennsylvania. The word “sale” being a broad term, the question arose, whether it meant when the land was struck off by the treasurer at the sale, or whether it should be construed to mean when the sale was completed by deed; and it was held that the sale was not completed until a deed was issued and recorded. (Eldridge v. Kuehl, 27 Iowa, 160.) In the case of 46 Iowa, 600, it is interesting to note the language of the court referring to the decision in 27 Iowa, 160. The court says: “This decision (27 Iowa) does not necessarily determine when the*statute begins to run as to the purchaser, nor does the reasoning on which it is based include him.” (Hintrager v. Hennessy, 46 Iowa, 601.) And in the same case, page 602, the court uses this language: “ It is unnecessary to determine whether the statute begins to run at the sale, or when the plaintiff’s right to a deed culminated. The statute uses the word ‘ sale,’ and nothing whatever is said as to the deed or its execution.” These cases went off upon the questions of the applicability of the statute and the interpretation of a word. Where no one was in possession, ejectment would not lie, and a party [321] -might by lapse of- time be cut off without his day in court. Hence the Pennsylvania courts properly held that the statute ■did not apply to vacant lands, for if it did apply, it would be unconstitutional. In Iowa the same principle was recognized. But here the statute is applicable; its language is clear; the date is precise; and construed according to its letter, it is constitutional. Hence courts have no right to vary its letter. The cases of Fairbanks v. Williams, 24 Kas. 16, and Corbin v. Young, 24 Kas. 201, dispose of the other questions raised by counsel. It is however insisted, notwithstanding "those decisions, that the statute giving fifty per cent, interest is unconstitutional. We quote from counsel’s brief: “The statute providing that fifty per cent, per annum must be paid, in case of redemption, upon all taxes paid from the date of payment to the date of tax deed, is void. Though designated as interest, still the amount is so excessive, and so disproportionate to the damages sustained, thafit amounts to a penalty for the failure to perform a public duty, to wit, the payment of taxes.” We cannot concur in this claim. It is simply interest which is charged; it must be large, to induce payment of taxes, and it cannot be said to be so excessive as to be beyond •the power of the legislature to impose. Nothing else appearing in the case, the judgment will be affirmed. All the Justices concurring.