Guittard Tp. v. Com'rs Marshall Co. , 4 Kan. 388 ( 1868 )

By the Court,

Safford, J.

The record shows that the plaintiff, one of the townships in the county of Marshall, brought an action against the defendants, to recover from said Marshall county a certain sum of money, claimed to be due to said township from the county, on account of certain township and road taxes for the years 1860 to 1865, inclusive. It is also shown that the lands on which these taxes were claimed to be due were bid off for the county, at the tax sales of 1862 and 1863, and certificates of sale issued to the county therefor.

It is further shown that the lands so bid off were finally deeded to the county in 1864 and 1865, anci^hat the county has since sold a portion thereof, and received the proceeds into the treasury. This state of facts constituted the basis of the plaintiff’s action, it being alleged in that behalf that by reason of the deeding of the lands as stated, the county became and was liable for the various taxes referred to. To the petition of plaintiff, a demurrer was filed, setting forth that the petition did not state facts sufficient to constitute a cause of action, which was sustained by the court.

Plaintiff excepted, and now brings the order sustaining said demurrer to this court, for review.

The principal • question, then, which now presents itself, is, as to the right of Marshall county to receive the deeds to the lands sold for taxes, as she assumed to do. If such action was not authorized under the law, then the plaintiff’s whole case must fall to the ground.

Those sections of the law bearing upon the subject of the purchase of lands at tax sales, by counties, may be briefly stated, as follows: Section 42 (ch. 197, Comp. L., p. 867) provides that if any piece of land cannot be sold for the amount of the taxes, penalty, and charges thereon, it shall be bid,off by the county treasurer for the county, for such amount. Section 44, same chapter (which was in force at the time the lands .referred to in this case were bid off by Marshall county), requires the county treasurer to make a certificate of sale to the county, similar to that made to other purchasers at tax sales. And it further .provides that such certificates shall be assignable, and subject to purchase, by any person offering to pay therefor a sum equal to the cost of redemption, at any time.

Section 48 (Comp. L., 868), following, provides that theTands hid off for the county shall continue liable to be taxed as if they were in the hands of individuals, and this is to be done by charging up the taxes of each year thereon, and entering the same with penalty and charges, as in other cases, in the book of tax sales of the year in which such lands were bid off for the county, and opposite to such lands. Such taxes, penalty, and charges, then become an additional lien. This section also provides that no land so bid off for the county shall be sold for such subsequent taxes, until it shall have been redeemed, or shall be sold by the county, or the tax certificate assigned. It will be observed that all of the sections, above referred to, apply only to cases where the land sold for taxes has been bid off for the county. If sold to other purchasers, other and different sections make provisions as to their rights and duties up to the time when a tax deed may be issued. Section 10, chap. 198 (Comp. L., p. 877), provides for the making of the tax deed when it is due ; and this was the only section upon the subject, in force at the time the deeds in question were made. This section applies fully to cases where lands have been sold for taxes, and the certificates are in the hands of individuals.

Does it apply equally to cases where the lands were sold to, and the certificates still held by the county, when the time for redemption had expired? Being-general in its terms, and containing no exceptions, it might seem, at first glance, to be susceptible of such a construction. So might a portion of section 48, taken alone, be deemed to favor the idea that the county could take a tax deed, and then dispose of the land covered by it, the same as any other purchaser at tax sales. But, when looking to the reason and policy of the law, we scan, closely all of .the sections to which we have referred, and consider them together, we are forced to a different conclusion.

In this connection, it is proper to call attention to the marked distinction which is kept up all through the tax laws, as to the rights and duties of individuals purchasing lands at tax sales, and those of the counties, under the same circumstances.

We see that it is only when land cannot be otherwise sold for the amount of taxes, penalty and charges, that the county is allowed to bid at all. But when such fact is made apparent, the treasurer is required to bid it off for the county, and there is no other alternative. Again, under the provisions of section 44, referred to above, and which was in force until March 5th, 1864, certificates of sale, held by the county, were made subject to purchase by any person, thus making it binding on the county to part with, and sell her certificates at the option of any individual, and at a fixed price. Other distinctions, equally marked, may be named, but these will serve our purpose.

Now, these restrictions and limitations do not operate against individuals ; and what good reason exists why they should be enacted against the counties, if it was intended to confer upon them the right to obtain full title to lands by tax deeds % In such case, it would seem, at least, to be no more than right to permit the county, when holding the certificate, to sell it, or not, and to fix her own price for it, as her interest might dictate. But there is another serious obj ection to allowing the counties to take tax deeds the same as other purchasers. It is that, thereby, they would eventually, and especially in new and thinly populated districts, become large landholders, and as a consequence, large tax-payers; for it must be remembered that lands sold for taxes, whether held by counties or otherwise, must still be taxed. Thus, land which phould yield a revenue, becomes a burden. But it is not for any such purpose that these sections are' framed. They were undoubtedly intended to provide a way in which the taxes due upon lands sold to a county, should be realized with the least possible expense, delay and trouble.

Thus, when no one offers to take the land and pay the taxes, it is bid in for the county, and held by virtue of the certificate of sale, ready, and for the purpose of being assigned to the first person who wishes to take it. It is said that if a county is to hold land in this way, she might be obliged to do so for a long time, and thereby, for. so long, be deprived of the revenue it should yield. But would the chances for realizing such revenue be improved, by the county proceeding to take a deed ? And would not the county be as well able to dispose of her rights in the land while holding it upon the certificate, as if’ she held it by deed %

It may further be suggested that if it had been the intention of the legislature, when it enacted chapters 197, 198, Comp. L., to provide for the taking of deeds, to counties, of lands bid in for them, for taxes, other and specific provisions would most certainly have been inserted, applicable to such case, and directing just how the whole transaction should be conducted, until the lands might be again sold to individuals.

But the laws passed by the legislature in 1864 and 1866, touching upon this question, furnish a strong argument against the plaintiff’s position in this case. It is there provided that no certificate shall issue to a county for lands bid in for her at a tax sale, until some one shall pay into the treasury an amount equal to the cost of redemption at that time. The treasurer is then required to issue such certificate, and the county clerk must assign it to the person so paying the taxes.

(§9, ch. 37, L. 1864; §74, ch. 118, A. 1866.) These provisions standing in the place of former rules, on the same subject, preclude (as counsel observe) the idea that deeds can be taken by counties, for lands sold and bid in for them for taxes, and amount to a legislative construction of the former law.

We are therefore of the opinion that neither under the laws of 1862, nor under those since in force on this subject, is a county authorized to take deeds, as it is shown the county of Marshall has done in this case. Such deeds are, therefore, void. It follows, then, that inasmuch as no one has received the certificates of sale, as provided in ch. 198, L. 1862, or in, the laws passed subsequently thereto, bearing upon this point, and paid the taxes due on. the land'covered by the said certificates, neither the county, nor the county treasurer, is liable to the plaintiff in this case, for the taxes claimed, nor will they be so liable, until such taxes shall come into the county treasury in a legal way.

The judgment of the district court, in sustaining the demurrer to plaintiff’s petition, is sustained.

All the justices concurring.