Jones v. Board of Commissioners , 30 Kan. 278 ( 1883 )

The opinion of the court was delivered by

Horton, C. J.:

When the plaintiff obtained his tax title, he was a tenant-in-common in the property upon which the taxes had been imposed. He took this tax title knowing that the deed was invalid and void, and knowing also that in consequence thereof Fuller held an equitable tax lien on the premises for all taxes embraced in the tax deed. Under these circumstances, the question is not before us as to the right of one tenant-in-common to buy in a matured tax title. The tax proceedings had not, at the purchase by the plaintiff, matured into a superior title, or indeed into any title.. The tax deed was at most an incumbrance or a lien upon the premises. As it was not shown that the premises were not taxable, or that the taxes had been paid prior to the sale, Fuller, as-holder of the tax deed, would have been entitled to the full amount of the taxes paid on the premises, with interest and costs as allowed by the statute. The purchase by the plaintiff was not the acquisition of an outstanding or superior title, but merely a redemption of taxes on the land partially owned by himself. At the date of his purchase, it was the duty of the owners of the premises to pay all legal taxes and assessments imposed thereon, and if plaintiff as a tenant-in-common redeemed the land from the taxes by purchase, his purchase is to inure to the benefit of the joint owners. (Cooley on Taxation, 345-6; Blackwell on Tax Titles, 399, 401; 15 Am. Dec. 688; 28 id. 85.) But it is immaterial, in this case whether the plaintiff purchased for himself or his co-tenants, as his purchase operated only as a voluntary payment of the' taxes.

Our attention is called to the language of § 146 of the tax law, which provides that if after the conveyance of land or lots sold for taxes it shall be discovered or adjudged that the-sale was invalid, the holder shall have his taxes refunded. This section, however, has no application where a party pays-his money, and procures tax-sale certificates or tax deeds by way of redeeming the land from taxes, and not by way of purchasing tax titles or tax-sale certificates, as contemplated by the statute. (Comm’rs of Dickinson County v. National Land Company, 23 Kas. 197.)

The judgment of the district court will be affirmed.

All the Justices concurring.