Granite Bituminous Paving Co. v. Tinker , 146 Kan. 877 ( 1937 )

The opinion of the court was delivered by

Allen, J.:

This was an action to foreclose special tax bill liens on certain lots in Kansas City. The trial court entered judgment in favor of the defendants. Plaintiff appeals.

The trial court made the following findings of fact:

“1. September 29, 1931, the tax bills numbered 15288 and 15289 were issued by the city of Kansas City, Kan., and delivered to the contractor, plaintiff herein, and became a lien on lots thirty-nine (39) and forty (40), block one (1), Longwood, an addition in Kansas City, Kan. Prior to this date said lots had been bought in by Wyandotte county for unpaid taxes.

“2. September 11; 1935, more than four years had elapsed since said lots had been bought in by said county, and on this date L. M. Tinker offered to pay to said county the sum of $254.16 in compromise of all taxes on said lots and for an assignment of tax-sales certificate. The county commissioners of Wyandotte county did, on this date, duly authorize the county treasurer of Wyandotte county to execute and the county clerk of said county to assign and deliver tax-sales certificate for such lots, and that the county treasurer did execute and the county clerk did assign and deliver to L. M. Tinker, tax-sales certificate on said date for said lots; said assignment having the same force and effect as if the full amount of all taxes, interest and penalties had been paid on said lots as provided by R. S. 79-2411.

“3. March 11, 1936, six months having expired since the assignment mentioned in the preceding finding, the county clerk of Wyandotte county made, executed and delivered to L. M. Tinker a deed to said lots, which deed was duly recorded in the office of the register of deeds of Wyandotte county, Kansas, on November 12, 1936.

■“4. That by virtue of the assignment and deed above mentioned, L. M. Tinker had a sufficient ownership and title in said lots by which he was entitled to pay -taxes thereon and liquidate any lien subsisting by virtue of the tax bills hereinabove mentioned. That upon receipt of the sum of $254.16 paid by L. M. Tinker, it became the duty of the county treasurer (R. S. 79-2413) to allocate and distribute to the several funds entitled to the same the proper proportion of said tax, as shown upon the tax rolls of Wyandotte county, Kansas.

“5. August 25, 1932, or prior thereto, the city clerk of Kansas City, Kan., certified to the county clerk for collection an item of $17.30 on tax bill numbered 15288 and an item of $17.30 on tax bill numbered 15289. Said amounts included one of the ten annual installments on each of said tax bills plus interest at seven percent per annum on the whole amount calculated from date of the issuance of said tax bills to August 1, 1933.

“6. August 25, 1933, or prior thereto, the city clerk certified to the county treasurer for collection as other taxes the sum of $12.33 on tax bill numbered 15288 and $12.33 on tax bill numbered 15289, which was the second annual installment on said tax bills plus interest on the unpaid balance to August 1,1934.

“7. August 25, 1934, or prior thereto, the city clerk certified to the county treasurer for collection as other taxes the third annual installment on each of said tax bills plus interest on the unpaid balance of said tax bills to August 1, 1935, totaling $11.80 each.

“8. September 11, 1935, the three installments with interest and none other appeared on the tax rolls of Wyandotte county, Kansas, and the county treasurer apportioned and allocated $41.43 to the payment of the three installments and interest on tax bill numbered 15288, and $41.33 to the payment of the three installments and interest on tax bill numbered 15289 and transmitted said total sum of $82.86 to the city treasurer of Kansas City, Kan., in full of the first three annual installments and interest on said tax bills. That the city treasurer accepted same and plaintiff collected same from the city treasurer without protest.

“9. August 25, 1935, or prior thereto, the city clerk certified to the county treasurer the fourth annual installment and interest on each of said tax bills in the sum of $11.27 each, which included interest on the unpaid balance at seven percent per annum to August 1, 1936, and L. M. Tinker paid said sums, together with the other taxes on said lots prior to June 20, 1936. The county treasurer transmitted said sums on each of said tax bills to the city treasurer and plaintiff collected same from the city treasurer without protest.

“10. August 25, 1936, or prior thereto, the city clerk of Kansas City, Kan., certified to the county clerk for collection the fifth annual installment on said tax bills with interest in the total sum of $10.74 each, which included interest on the unpaid balance on each of said tax bills at seven percent per annum to August 1, 1937. That said L. M. Tinker paid one half thereof without penalty, on or before June 20, 1937. That the county treasurer transmitted the sums so paid on the fifth annual installment of said tax bills to the city-treasurer and the plaintiff received the same without protest.

“11. That the balance remaining unpaid on each of said tax bills is the sum of $42.09, with interest calculated thereon at the rate of seven percent per annum to April 1, 1937.

“12. That a taxpayer is entitled to pay his taxes, including tax levied to retire tax bills, to the county treasurer until a suit is filed on said tax bills. That upon the filing of a suit upon tax bills the taxpayer is entitled to pay his taxes due thereon to the clerk of the court in which said action is filed.

“13. That on August 23, 1935, plaintiff served on the city clerk of Kansas City, Kan., and on the county treasurer of Wyandotte county, Kansas, a notice, a duplicate of which is introduced herein as plaintiff’s exhibit 5, and gave no other notice.

“14. This action was commenced on the 17th day of September, 1935, and there was no action on file involving these tax bills on September 11, 1935, when L. M. Tinker received his assignment and when the county treasurer made the allocation mentioned in finding No. 8.

“15. That defendant L. M. Tinker has tendered and paid to the clerk of this court in this case the sum of $84.39 as the balance of both tax bills, including interest to April 1, 1937.

“16. The unpaid face of the two tax bills totals $83.21. Interest on said amount has been paid to August 1, 1936, and in addition thereto interest in the sum of $3>.17 has been paid. The amount plaintiff is entitled to receive on said tax bills is $83.21 on principal and ninety-seven cents on interest, or a total of $84.18.

“17. Defendant, L. M. Tinker, has tendered and paid into court $84.38.”

Under the provisions of G. S. 1935, 13-1084 and 13-1087, we think the taxpayer is entitled to pay his taxes to the county treasurer until a suit is filed on the tax bills. The action in this case was filed on September 17, 1935. The findings show that the payments were made on September 11, 1935, and that the plaintiff collected the payments so made. He cannot now complain.

The judgment is affirmed.