Smith v. Smith

The opinion of the court was delivered by Valentine, J.:

This was an action for the recovery of certain real property, to-wit, Lot 2, in Block 2, in the city of Atchison. In this opinion we shall speak of the plaintiffs, and those under whom they claim, as the “ plaintiff,” and the defendants, and those under whom they claim, as the “defendant,” and shall not mention particularly each separate person. The plaintiff was the original owner of the lot in controversy. The defendant holds the same under a tax- *294 deed. The court below held the tax-deed void, but also held that the defendant was entitled to the benefit of the “ occupying-claimant act,” (Gen. Stat. 749, § 601, et seq.,) and also of § 117 of the tax-law, (Gen. Stat. 1057.) The plaintiff claims that the court below erred, and brings the case to this court for review. The facts of the case are substantially as follows: The plaintiff neglected and failed to pay the taxes on said lot from 1860 up to the commencement of this action. In May 1862, the lot was sold to the county of Atchison, for the taxes of 1861. The taxes for the years 1862 and 1863 were charged up against said lot. In May 1864, the defendant paid into the county treasury the amount of the taxes, interest and costs then due on said lot for the years 1861, 1862 and 1863, and obtained a tax-sale certificate for the lot, assigned to himself by the county treasurer of said county. In June 1864, the defendant obtained a tax-deed on this certificate, and had the same immediately recorded in the county register’s office, and then took possession of the property, and has had possession of the same ever since. He has also made lasting and valuable improvements on said lot, and has paid all the taxes accruing thereon ever since his supposed purchase of the tax title. Now, under these circumstances, what are the respective rights of the plaintiff and defendant? Now, while we think the tax-deed is void upon its face, and confers no title upon the defendant, yet we think the defendant is entitled to the benefit of the occupying-claimant act, and of the provisions of § 117 of the tax law. As to the defendant’s right to the benefit of the occupying-claimant act, we think the case of Stebbins v. Guthrie, 4 Kas. 353 , is sufficient authority. Although said tax-deed is void upon its face, yet it takes a process of reasoning to make it apparent; and hundreds and perhaps thousands of just such deeds have been executed in the various counties in this state; and until a judicial decision of this court was promulgated, announcing that such deeds were void upon their face, the whole question was considered both by bench and bar as enveloped in considerable obscurity and uncertainty. *295 An occupant of land under such a deed is entitled to the benefit of the occupying-claimant act. And for the same reason, and others, we think the occupant of land under such a deed is entitled to the benefits of §117 of the tax law. Said section reads as follows:

“Sec. 117. If the holder of a tax-deed, or any one claiming under him by virtue of such tax-deed, be defeated in an action by or against him for the recoyery of the land sold, the successful claimant shall be adjudged to pay to the holder of the tax-deed, or the party claiming under him by virtue of such deed, before such claimant shall be let intp possession, the full amount of taxes paid on such lands, with all interest and costs as allowed by law, up to the date of said tax-deed, including the costs of such deed and the recording of the same, with interest on such amount at the rate of twenty per cent, per annum, and the further amount of taxes paid after the date of such deed, and interest thereon at the rate of twenty-five per cent, per annum.”

This statute was enacted in the interest of equity and justice, and its provisions should be so construed as to promote justice. It is wholly unlike that class of statutes which attempts to give the land of one person to another for an inconsiderable sum. The former is liberally construed, the latter is strictly construed. The former was enacted for just such cases as the one at bar. It was enacted for void tax-deeds, and not for valid tax-deeds. A person holding under a valid tax-deed has no need of such a statute. Only persons holding under void tax-deeds need such a statute. The laws under whose provisions tax titles are created are usually construed strictly, and therefore, we hold that the tax-deed in this case is void. But laws enacted for the purpose of enforcing, in a fair and reasonable manner, the delinquent members of society to discharge that moral obligation resting upon them as well as upon others to bear their proportionate share of the public burdens, are always construed liberally, so as to promote their object, and therefore we hold that before the plaintiff can recover his. property he must pay to the defendant the taxes which he ought to have paid a long time ago to the public officers, and which the defendant has *296 himself paid. As to the duty of a person to pay his taxes, see Gulf Rld. Co. v. Morris, 7 Kas. 230 , et seq. As to the equitable rule in granting relief to plaintiffs who seek to avoid the payment of their taxes, see Challiss v. Hekelnkœmper, 14 Kas. 475, 477 , and cases there cited.

The judgment of the court below is affirmed.

All the Justices concurring.