Stebbins v. Challiss

1. Injunction; Tax Certificates; Tax-Deeds. The fact that the sale certificates have been disposed of by the county and belong to individuals, will not change the rule laid down in the cases of The City of Lawrence v. KiUam, 11 Kas. 499, and Challiss v. Commissioners Atchison County, ante, 49, in reference to restraining the execution of tax deeds. 2. --Illegal Assessment of Lands as Town Lots. Where the plaintiff was the owner of a tract in the city of Atchison liable to assessment and taxation as a single tract of so many acres, and portions of it were by descriptions through which they can be identified, assessed and taxed as lots, surrounded by streets and alleys, held, that an injunction ought to issue restraining the collection of taxes upon such assessment.

Error from Atohison District Court. Injunction, brought by Challiss, as plaintiff, against Benj. B. Cale, county clerk, and Stebbins, as defendants. The petition alleged that Challiss was the owner of 21 certain lots in “Challiss’ Addition” to the city of Atchison, describing them; and also the owner of certain real estate in “Spring Garden Addition,” which he alleges Ayas formerly divided into lots and blocks, describing them, but that these last-mentioned lots and blocks, prior to 1869, had been vacated by the county board; that the county treasurer had advertised that the time for redemption of lands and lots sold would expire between May 3d and June 27th 1873, three years from the several sales, etc.; that Stebbins claimed to hold tax certificates for said lots in “ Challiss’ Addition ” and “Spring Garden Addition,” and was about to apply to the county clerk for a tax-deed thereon, which would vest the-title thereto in Stebbins, or cast a cloud over the title, etc. The petition then says, “That each and all,of such certificates of sale are irregular, null, and void, and do not authorize the execution of any tax-deed or deeds thereon, for among others the following reasons, to-wit,” (setting up the six grounds mentioned in the opinion of th.e court in the preceding case of Ohattiss v. Comm’rs of Atchison Co., ante, p. 53.) Upon this petition, properly verified, Challiss applied for and obtained a preliminary injunction, restraining the county clerk from issuing tax-deeds to Stebbins on any of the tax certificates held by him on sales of lots in the two additions above mentioned. The defendants appeared, and demurred. Afterward, and in January 1874, the defendants, on motion and notice, applied to the district judge, at chambers, for an order vacating the injunction.as to all the property, in both additions, which motion was by said judge- overruled and denied. From this decision and refusal to vacate and dissolve said injunction the defendants appeal, and bring the case here on error. It is not claimed by Challiss that his lots and land are not subject to assessment and taxation, but his Achole case is based upon “irregularities” on the part of the several officers in the proceedings to enforce the collection of taxes. Challiss has not offered to pay any part of these taxes, but permitted the real estate to be sold in 1870, and the purchaser to pay the taxes'for 1870, 1871 and 1872, without objection; and not until a few days before the deed is to be issued does he object, and then he comes into court and invokes the interposition of equity in his behalf. By remaining quiet, Challiss was getting his taxes paid; but he must no.t permit a deed to be issued, for then, if the deed was set aside, he would have to pay the purchaser the taxes, costs, and interest provided by the statute; (§ 117, tax law.) When a person seeks equity, he must do equity. He must come into court with clean hands, and without laches or delay. The decisions of this and other courts have settled all there is in this case. This action cannot be maintained unless the tax is illegal, and the execution of -a tax-deed is a proceeding to enforce the collection of the same. (Civil Code, § 253.) On what ground can it be claimed that the tax is illegal? It is not claimed that the property is exempt from taxation. It is not claimed that the state, county or city had no power to levy taxes. It is not even claimed that the assessment or taxation is greater by reason of the real estate in Spring Garden Addition being described in lots and blocks, and not as a whole. The only objection made to the city tax is, that it was not properly certified to the county clerk. The petition alleges that the tax was made on the “real and personal property in such city.” There is nothing alleged in this petition that renders the tax illegal and void. Dillon on Munic. Corp. §737; 7 Kas. 210, 228. Mere irregularities do not render a tax illegal or void: Gen. Stat. 1057, §113; 7 Kas. 225; 8 Kas. 558, 561; 9 Kas. 296, 300, 489; 3 Ohio St. 1; 11 Wis. 470. Courts of equity will hot interfere unless the collection of the tax would be inequitable and unjust: 7 Kas. 210, 228; 8 Kas. 558; 9 Kas. 155, 296, 489; 14 Wis. 618; High on Inj. § 355. Plaintiff must tender what is right and equitable before he is entitled to an injunction: 7 Kas. 210; 11 Am. Law Reg. 208; 17 Wis. 284; 34 Ind. 36, 141; 1 Cal. 455; 15 Ohio St. 64; 2 Story’s Eq. Jur. § 959a. The plaintiff must not have been guilty of laches oi’ delay. He should have enjoined the levy of the tax, or at the latest the sale. He cannot wait until the relief" asked would work an injury to the other party: High on'Inj. §§7, 397; Hilliard on Inj. §43; 10 Cush. 252. It is difficult to understand the position taken by defendant in error as to the status of “Spring Garden” addition. He refers to a pretended vacation; yet he alleges that the property is situate in the First, Third and Fourth wards of the city. If this addition was legally vacated, then the N.-J of N.W.jr sec. 7, T. 6, R. 21, was no part of the city, but an outside tract of 80 acres of land; and a tax-deed on “ Lot 10, block 3, Spring Garden Addition,” would be no cloud upon the title of the 80-acre tract. If it was outside of the city, it was not injuriously affected by city taxes, for they were levied only on the property in the city. Even if the property should have been assessed in acres, it does not appear from the petition that the taxes would have been less if they had been so levied. And if the tract of land was in the city, a tax-deed on lots and blocks that had no existence would cast no cloud upon the title of the tract of land. Under the decisions of this court, the granting of an injunction to restrain the collection of a tax for the irregularities complained of here, would be held inequitable, and against public policy. submitted the same views presented in his brief in the preceding case of Challiss v. Covvm’rs of Atchison Co., (ante, p. 50;) and he added the following: One other question is here presented, as to the Spring Garden Addition lots: Before the assessment for the tax for which the sale was made, this property had ceased to be lots, and was only taxable as acres: §2, ch. 128, Laws of 1864, p. 241. There was then no assessment; the attempt made was a nullity: 32 Mo. 512; 42 Mo. 162; Gen. Stat. 1032, §§ 32, 36, 37, 39, 40. Challiss was only required to inquire for and to pay taxes on N. J of N.W.-j- seo. 7, T. 6, E. 21; yet here are patches of clouds to be scattered over his land, absolutely without any warning which he had any right to expect. Neither, after vacation, would such property be within the city, and subject to city taxation. It never was in the city except as an addition. Sec. 1, act of Feb. 12, 1858, defined the boundaries of the city; and §1 of act Feb. 11, 1859, makes additions, after plat filed, a part of the city, and as such subject to taxation. This tract went into the city by virtue of said act of 1859, when it ceased to be acres and became lots; and went out of the city by virtue of said ch. 128, laws of 1864, when it ceased to be lots and became acres. It was an addition only by virtue of the filing a plat, and of course, as it rested on this fact, it existed within the city no longer than the fact existed.