Harding v. Greene

Johnston, J. This was an action of ejectment brought by J. W. Greene against Edgar Harding and others to recover two lots in the city of Kingman. Greene claimed title by virtue of a tax deed executed on December 19, 1893, while Harding claimed title under a sheriff’s deed executed about the same time. The tax deed was held to be void because of the insufficient description of the property on the assesment rolls and in other tax proceedings. After the entry of judgment in favor of Harding, Greene filed a motion asking the court to determine the amount of taxes that had been paid under the void tax deed and to declare the same a lien upon the lots described in the deed. On this motion it was shown that the tax deed was based upon a sale of the lots made in 1889 for the taxes of 1888, and that the subsequent taxes were paid and entered upon the certificate of sale down to and including the December payment in 1891. On the assessment rolls, tax rolls, tax sale entries and final redemption notices the lots were only described and referred to in the following manner: “Livingston, S. B. Pt. lot 14, Ave. A West. Hinton, M. A. Pt. lot 14, Ave. A West. Livingston, S. B. Pt. lot 16, [204] Aye. A. West. Hinton, M. A. Pt. lot 16, Ave. A West.” Nothing in any of these descriptions indicated what portions of the lots were assessed or intended to be assessed, or that the assessment was intended to include all of the lots. Neither was there anything to show what part of each lot was assessed to Livingston or what part to Llintón, nor yet that both together were the owners of the whole of either lot. The indorsements upon the certificate of sale, of the subsequent payment of the taxes, described the lots as follows : “ Pt. lot 14, assessed to S. B. Livingston. Pt. lot 14, assessed to M. A. Hinton. Pt. lot 16, assessed to S. B. Livingston. Pt. lot 16, assessed to M. A. Hinton.” Opposite each description was the amount of taxes paid, but nothing to indicate the particular part upon which each payment was made. There was no evidence offered that the lots or portions of them were not assessed'or taxed, for the years named, by other descriptions, nor that the taxes upon the whole of the lots could have been properly charged against the parties to whom they were assessed. Upon this motion the court held and adjudged that the taxes paid were a lien upon the lots, and of this ruling Harding complains. The judgment entered in the ejectment' proceeding contained a finding and declaration that no lien for taxes could be allowed, and it is now insisted that, because that judgment was not formally set aside or modified, the matter of lien could not again be considered. The judgment first entered did not preclude the reopening of the question as to whether a tax lien could be allowed, and this was in effect what was done ; but if the holder of a tax deed is defeated in an ejectment action, he may then move for the recov [205] ery of the taxes, penalties and costs to which he may be entitled. Tax Law, § 142. The inquiry as to the tax lien was taken up at the same term of court, and -within two days after the first judgment was rendered, and the decision then made was in fact a modification of the judgment first rendered. As the testimony stands, however, we think it did not warrant the court in holding that the taxes, penalties and costs paid constituted a lien upon the property. It is essential to the validity of a tax that the assessment roll and other proceedings shall contain a sufficient description of the property taxed. As will be observed, the descriptions in this case are very indefinite and imperfect, and no testimony was offered showing that the descriptions given were sufficient to accomplish the purpose of the statute. A definite description is necessary, in order that the owner may be informed of the claim upon his property, and also that, if the taxes are not paid, parties desiring to purchase may know what property is offered for sale, and further, that when a sale is made a proper conveyance may be made to the purchaser. The statute with reference to the description required in tax proceedings provides that they shall be such as “shall indicate the land intended with ordinary and reasonable certainty, and which would be sufficient between grantor and grantee in an ordinary conveyance.” Tax Law, § 153. No lien for taxes can be allowed against any particular tract except for the portion of the tax assessed against it; and as we have seen we have no means of determining against what particular part each assessment was made. It does not appear what part of each lot was intended to be assessed to either Livingston or Hinton. If it had been shown that Livingston and Hinton, together, owned all of the lots, and that the two parts of each lot described [206] were intended to cover the whole of each lot, and that the lots were not assessed or taxed for the same years by other descriptions, the lien might have been allowed. Kurtz v. Chandler, 32 Kan. 661, 5 Pac. 170. It does not appear that either Livingston or Hinton was in the actual possession of the lots, or parts of lots, or that the interest which each held in the same could have been ascertained by the taxing officers or proven in court; at any rate, nothing was offered tending to help out the indefinite and incomplete description ; and upon the proof offered we must hold that it did not warrant the allowance of a lien for the taxes alleged to have been paid. The fact that the tax deed purports to convey the whole of lots 14 and 16 does not operate to cure the indefinite assessment nor supply the proof that the tax was actually levied against a specific and definite parcel. Wilkins v. Tourtellott, 28 Kan. 825. The judgment of the District Court will be reversed and the cause remanded for further proceedings.