Watterson v. Kirkwood , 8 Kan. 463 ( 1871 )

The opinion of the court was delivered by

Kingman, C. J.:

Two errors are urged in the brief and argument of plaintiff in error. First, that the mortgage sued on was invalid; second, that the court erred in finding that the land was not taxable in 1860.

I. On the same day that the land was entered the mortgage was executed. The consideration was the land-warrant sold to Pearsoll with which he entered the land. The warrant was sold with an understanding that the payment therefor should be secured by a mortgage as soon as the land was entered, and the mortgage was given in pursuance of such understanding. It is insisted that the mortgage is invalid because it is in contravention of the 13th section of the law of 1841 in relation to pre-emptions. It may well be doubted whether "Watterson is in a situation to raise this question. If the government waives the fraud of the pre-emptor and gives him a patent for the land, by what right does one holding under the pre-emptor complain? Again, under our statute it may be questioned whether a mortgage is such an alienation as is contemplated by the law referred to. It is often the only way in which the pre-emptor can raise the means to secure his land, and therefore is not within the spirit of the law. And a mortgage is of such a character in this state that it is difficult to consider it an alienation under the letter of the law. But the case as to this point may be decided without reference to these doubtful questions referred to, for the statute in the same section makes a saving in favor of bona fide purchasers for a valuable consideration. Now if the mortgagé can be held a conveyance under the statutes, then Kirkwood holds it as an innocent purchaser for a valuable consideration, and is not affected by the fraud of Pearsoll.

II. We think the court erred in holding that the land was not taxable in 1860. It was entered on the 28th of July, 1860, and thus became taxable for that year. The law in force was the law of the previous session. (Laws 1860, p. 203.) The learned judge who tried the case probably decided it by reference to § 12 of the act, which is somewhat obscure, and by itself is susceptible of an interpretation that the land must have been entered on or previous to the first day of May to to render it taxable for the current year; but a reference to subsequent sections of tbe act will be enough to show that such construction is wrong. By § 25 the commissioners meet as a board of equalization on the the third Tuesday of August. Section 67 is as follows: “The county board of equalization shall have power to enter on the tax roll any lands which may have been omitted by the assessor, provided the same shall have been entered or pre-empted before the first day of their session, and give the same a fair and just valuation.” So that any lands entered or pre-empted before the third Tuesday in August of that year were taxable for that year. This decision is not at all in conflict with the case of Taylor v. Miles, 5 Kas., 498, cited by defendant in error. That decision was a correct construction of the law of 1858. This law was wholly changed in 1860, and courts have to apply the law- in force.

The judgment is reversed and the case remanded for further proceedings.

All the Justices concurring.