Wilder v. Cockshutt

The opinion of the court was delivered by HoetoN, C. J.: The principal question in this case is, whether a mortgagee of lands can enforce redemption from a tax sale in which there was intentionally included illegal taxes and charges, at less than the legal taxes and charges,-and the statutory rate of interest thereon? In ordinary cases, the statute has provided the mode and terms of redemption to be pursued by the land-owner and the mortgagee. In such cases, as the right to redeem comes from the statute exclusively, it can be asserted only under the circumstances which are there prescribed. (Laws 1876, ch. 107, § 127; Comp. Laws 1879, p. 963, § 127; id., p. 969, § 148.) [509] Is this an exceptional case? Counsel for defendant in error (plaintiff below) claims that it is, and denies the force, of the redemption statute upon the findings presented. His argument is, that the statute applies only to valid sales, and cannot in reason have any application to invalid sales. We do not so understand the statute, so far as the legal taxes and charges included in these sales are' concerned. There were in fact, though not in law, certain sales. The land was taxable; the taxes had not been paid, and the taxing officers attempted to sell the land and issue certificates therefor. Every step was taken and everything done by the various taxing officers at the same time and in the same manner as was necessary to make legal and binding sales. While the tax sales are invalid on account of the excess of illegal taxes and charges included therein, the case is essentially different from that of one where no tax proceedings were had, and no attempt was made to sell. (Maxson v. Huston, 22 Kas. 643.) While, therefore, we think that the plaintiff below had the legal right upon proper averments in his petition, to contest with plaintiff in error the legal taxes and charges embraced in the tax certificates, yet, before he could institute such a contest, or be entitled to a decree from a court of equity permitting him to redeem, he must have first tendered the legal taxes and charges conceded to be due, together with the interest thereon required by the statute relating to the redemption of lands sold for taxes. The petition in this case did not allege a tender of the statutory rate of interest for .the taxes and charges admitted to be legal, and therefore plaintiff below was in no condition to litigate with defendant below as to the illegal taxes and charges so included. Objection was made to the introduction of any evidence under the petition upon the trial, and such objection ought to have been sustained. This conclusion is in accordance with .the previous rulings of this court. In Stebbins v. Guthrie, 4 Kas. 353, it was held that an occupying claimant was entitled to recover for lasting, and valuable improvements under [510] a void tax certificate. In Smith v. Smith, 15 Kas. 290, the holder of a tax deed void upon its face was held to be entitled to the benefit of the occupying-claimant act, and the provisions of §117 of the tax law of 1868. In Maxson v. Huston, supra, it was decided by a majority of the court that a tax deed, regular upon its face, containing a perfect description of the land conveyed, and of record the time prescribed by the statute of limitations, was protected by the statute from impeachment by evidence that the description of the land on the assessment roll and in the sale certificate is fatally defective. (See also Herzog v. Gregg, 23 Kas. 726; Knox v. Dunn, 22 Kas. 683; Pritchard v. Madren, 24 Kas. 486; Corbin v. Young, 24 Kas. 198; Genthner v. Lewis, 24 Kas. 309; Coe v. Farwell, 24 Kas. 566; Millbank v. Ostertag, 24 Kas. 462.) We are not called upon, in view of the fact that the petition does not allege a sufficient tender, to pass upon the. validity of the alleged illegal taxes and charges. The judgment of the district court will be reversed, and the cáse remanded, with direction to the court below to render judgment for the plaintiff in error. All the Justices concurring.