Warner v. Hinshaw

The opinion of the court was delivered by Porter, J.: The one question involved in this case is the validity of two tax deeds under which the appellant claims to own the real estate in controversy. The district court held the deeds, which are less than five years old, void on their face. A number of reasons are urged by the appellee to sustain the judgment, but it will be only necessary to consider the contention that the deeds are void for the reason that they were not issued in compliance with section 11434 of the General Statutes of 1915. The tax deeds show that the certificates were assigned to appellant September 5, 1916, and that the deeds were executed September 13, 1916. At that time chapter 363 of the Laws of 1915 was in force. It was repealed in 1917. Section 1 of the act contained the provision that— “Upon the assignment of a certificate the holder thereof shall give to the owner of such real estate, a notice in writing stating that he is the holder thereof, and that a tax deed will issue within sixty days after the date of said assignment, said notice being served personally on such owner or by registered letter duly mailed to the last known post-office address of the owner of such real estate, the expense of such notice to be borne by the' county; and provided further, that after the certificate issues the owner or his agent shall have sixty days from the date of its issuance within which to redeem from the sale.” (Gen. Stat. 1915, § 11434.) Until the enactment of the law of 1915, there was no- provision as to when a deed should issue under the act of 1891. The law of 1915 expressly provides that it applies to counties operating under the provisions of chapter 162 of the Laws- of 1891, and it was obviously intended to be supplemental to that law. No notice was given by the appellant under the provisions of the supplemental act of 1915, his contention being that a purchaser at a sale of land for taxes has a right to have [726] his purchase completed under the law in existence at the time he makes his purchase, and that the assignment by the county of its rights, though made in 1916, gave him all the rights of a purchaser under the law as it stood when the land was bid in by the county, which was prior to the act of 1915. In this connection he also contends that the act of 1915 was unconstitutional for the reason that it attempted to affect the remedy or obligation of a contract. Appellant relies upon the case of Pounds v. Rodgers, 52 Kan. 558, 35 Pac. 223. At the time of the tax sale in that case the law provided that the amount for which the land was sold and all subsequent taxes and charges should bear interest at the rate of twenty-four per cent. In 1893 the rate of interest to be paid on the redemption was reduced to fifteen per cent. The question was, whether the redemption was, controlled by the law of 1893 or the law in force at the time of the tax sale. Chapter 34 of the Laws of 1876, section 155, provided that all matters relating to the sale and conveyance of land for taxes under any prior statute shall be fully completed according to the laws under which they originated, the same as if such laws remained in force. It was held that to apply the lower rate of interest under the law of 1893 would amoúnt to a violation of the obligation of the contract between the purchaser and the state. The case was well decided, but the controlling principle was that an ordinary tax sale under the statute constitutes a contract. between the purchaser and the state, the terms of which are found in the law in force at the time of the sale. But the case is not in point. By bidding in the property under the law of 1891, the county does not become a purchaser in the sense that some third party does, who buys at a general sale for taxes, and who is not interested in the tax sale, but bids in the property for the taxes and penalty, and actually pays the amount of his bid int'o the treasury. Where the county, acting under the law of 1891, bids in the land, no money is paid into, the treasury by virtue of the transaction. If any contract could be said to arise, it'would neccessarily be one between the state on one side and the state on the other, the purpose of which was not to acquire title to the property, but merely to provide a method for collecting the delinquent taxes. [727] The contention that the county became a purchaser at the tax sale in 1913 under a contract which could not be enlarged or changed by subsequent legislation is not sound. By bidding in the land the county did not acquire the right to a deed, nor to possession, as an individual acquires through a purchase at an ordinary tax sale. Before the county could obtain a deed and the right to possession, foreclosure proceedings would be necessary under the provisions of section 11476 of the General Statutes of 1915. “The title acquired by the state or a municipality at a tax sale is not quite the same as that vesting in a private purchaser, since the object of the purchase is not the acquisition of property, but rather the collection of the taxes; hence it is not, at least in its inception, an absolute legal title, carrying with it the right of possession and of disposition, but in the nature of an equitable title existing for the purpose of compelling satisfaction of the taxes and charges due.” (37 Cyc. 1355.) It is true that a sale to an individual of real estate at a tax sale constitutes a contract with the state, and any tax law enacted thereafter will not affect the rights of the purchaser, but the appellant did not become a purchaser until 1916, after the amendment of 1915 was in effect. There is a provision in the general tax law (Gen. Stat. 1915, § 11490) which declares that— “All matters relative to the sale and conveyance of lands for taxes under any prior statute shall be fully completed according to the laws under which they originated, the same as if such laws remained in force.” The appellant contends that even if chapter 363 of the Laws of 1915 is held constitutional, section 11490 required the deeds to' be issued according to the law as it stood prior to 1915. However, we hold that the proceedings for the sale and conveyance of the lands mentioned in these deeds did not originate under the law in force at the time the county bid in the property, but that they originated at the time the county assigned the certificates. The deeds were void because they show that notice was not given to the owner as required- by the law of 1915, which was in force from the time the proceedings originated until after the deeds were executed. The .judgment is affirmed.