Jesse A. Shoat v. Thaddeus H. Walker

Kansas Supreme Court1870-01

6 Kan. 65

Summary · law.co

Holding. The trial court's judgment sustaining the demurrer was affirmed. A tax deed that is void on its face—here, because it rested on an assignment made without legal authority—is insufficient to set the statute of limitations in operation, and therefore does not bar an action for recovery of land brought more than two years after recording.

Jesse Shoat sought to recover a parcel of land that Thaddeus Walker claimed to own through a tax deed. Walker's answer relied on this tax deed as a defense. Shoat filed a demurrer arguing that the answer failed to state a legally sufficient defense, and the trial court agreed by sustaining the demurrer. Walker appealed.

On appeal, the court examined whether the tax deed was valid on its face. The deed traced back to an assignment of a tax-sale certificate made by the Lyon County treasurer to Joseph J. Howard in June 1864. However, the law in effect at that time granted only the county clerk authority to assign such certificates—the treasurer's authority to do so had been repealed in March 1864. Because the assignment was made without legal authority, it was void, and consequently the tax deed itself was void.

Walker also argued that Shoat's action was barred by a two-year statute of limitations, since the tax deed had been recorded more than two years before the lawsuit commenced. The court rejected this argument, holding that a tax deed that is void on its face cannot trigger the statute of limitations. A valid tax deed must appear legally sufficient when examined alone, without relying on outside evidence. Since this deed disclosed its illegality on its face, the statute of limitations did not run against Shoat's claim.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an assignment of a tax-sale certificate made without statutory authority is void
Whether a facially void tax deed can trigger the statute of limitations
Whether a defective tax deed must be absolutely valid or merely appear valid on its face to set the statute of limitations in operation

Procedural posture

Shoat filed a demurrer to Walker's answer asserting a tax-deed defense; the trial court sustained the demurrer; Walker appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered by

Valentine, J.:

The defendant in error, who was plaintiff in the court below, files his petition for the recovery of a certain piece of land. The defendant below answers, setting up a tax title to said land. The plaintiff demurs to the defendant’s answer, on the ground that the answer does not state facts sufficient to constitute a defense to the plaintiff’s action. The court sustains the demurrer, to which the defendant excepts, and brings the question here for review.

I. The defendant in his answer sets out the tax deed in full, and the objection to his answer is, that the tax dee<l appears upon its face to be void. The plaintiff below urges several reasons why he 0 d thinks the tax deed is void, some of which we regard as frivolous; but there is one objection to the tax deed which we think is good. It appears from the tax deed, that the land in dispute was sold on the 5th day of May, 1863, to the county of Lyon, for the taxes of the year 1862, and that on the 18th day of June, 1864, the tax-sale certificate, which had been issued to Lyon county for said land, was assigned by the county treasurer of Lyon county to one Joseph J. Howard. The tax deed was made to said Howard, and the defendant, Shoat, claims title under Howard. The objection to this tax deed is, that on the 18th day of June, 1864, the county treasurer had no authority to assign tax-sale certificates belonging to the county. Section 44 of the tax law of 1860, (Comp. L. 1862, p. 867,) which gave the county treasurer, such authority, had, before that time, been repealed. Said section was repealed March 5th, 1864, (§12, ch. 87, 1864, p. 73.) And on June 18th, 1864, the county clerk alone could assign tax-sale certificates belonging to the county; (§ 9, ch. 37, 1864, p. 73.)

This defect in the assignment of the tax-sale certificate is not a mere irregularity, but it is to all intents and purposes no assignment at all. It is no better ^an the probate judge, or the county attorney, or any other resident or non-resident of Lyon county, had made the assignment. Under said section nine, no assignment of such a certificate has any validity, except an assignment made by the county clerk. The assignment being void, the tax deed made upon such an assignment is also void.

II. The tax deed was recorded May 26th, 1865; and this action was commenced August 16th, 1869. The tax-deed having been recorded more than two ° years before this action was commenced, the question arises, whether the plaintifrs action is barred by the two-years statute of limitations? or, in other words, whether the said statute of limitations will run on a tax deed void upon its face? "We do not think that a tax deed, void upon its face, is sufficient to set the statute of limitations in operation, so as to bar an action for the recovery of the land in two years. Moore v. Brown, 4 McLean, 211; 11 Howard, 414; Lain v. Shepardson, 18 Wis., 59. And bearing upon the same point, see also, Irving v. Brownell, 12 Ill., 402; Rawlings v. Bailey, 15 Ill., 180; Bowman v. Wettigg, 39 Ill., 428; Swope v. Purdy, 2 Western Jurist, 168.

It is admitted in the answer, in this case, that the land in controversy is wild and uncultivated, and has never been in the actual possession of any person.

A tax deed to be sufficient when recorded to set the statute of limitation in operation, must of itself be prima facie evidence of title1. It is not necessary that the deed be absolutely good, under all circumstances. It is not necessary that it be sufficient to withstand all evidence that may be brought against it to show that it is bad. But it must appear to be good upon its face; it must be a deed that would be good if not attacked by evidence aliunde. When the deed discloses upon its face that it is illegal, when it discloses upon its face that it is executed in violation of law, the law will not assist it. No statute of limitation can then be brought in to aid its validity. The party accepting it, and claiming under it, has full notice of its illegality, and must abide the consequences of such illegality. Tie has no reason to complain.

We .will pass over the other questions raised in this ease, as they will not probably be raised again. It is not probable that the defendant below can, in fact, so amend his answer as to avoid the objection to his tax deed already considered and decided. The judgment of the court below is affirmed.

All the Justices concurring.