Franz v. Krebs , 41 Kan. 223 ( 1889 )

The opinion of the court was delivered by

Horton, C. J.:

This action was brought by Helen A. Franz to enjoin the county clerk of Atchison county from issuing a tax deed upon a tax-sale certificate, dated the 2d of September, 1884, on certain real estate situated in Atchison city. There was included in the amount of the taxes for which the real estate was sold, an illegal macadam tax. In the facts specially found by the trial court were the following’:

“10. Said assessments were duly placed upon the tax-roll for 1883. The plaintiff Helen A. Franz paid the first half of her tax upon the said property described as belonging to her, except said special assessment for macadamizing, but she did not pay and has not yet paid any part of the second half of her taxes or assessment upon said property.”

The court also found as a conclusion of law, that:

“2. Owing to the failure of the plaintiff Helen A. Franz to pay the second half of her general taxes, she is not entitled to an injunction herein upon the real property described as belonging to her, the tax-sale certificate not being wholly void.”

It is conceded that all the taxes levied upon the real estate, for which it was sold, were legal, except the special macadam tax. It has been frequently decided by this court that an action will not lie to set aside a tax-sale certificate or restrain a tax proceeding, without a prior payment, or tender, of all the legal taxes admitted to be due and payable. (Hagaman v. Comm’rs of Cloud Co., 19 Kas. 394; Knox v. Dunn, 22 id. 683; Miller v. Ziegler, 31 id. 417.) In this case, the amount of legal taxes was not in dispute, and therefore the rule applicable to other cases generally will be applied to this. Counsel contend, however, that this case should form an exception. It appears from the evidence, not from the findings, that the plaintiff, through her agent, on June 20,-1884, made an arrangement with the county treasurer of the county to furnish him with a list of the property she desired to pay taxes on, and that he would make out the receipts for the taxes after the “rush was over.” On July 3, 1884, the agent called on the treasurer for the tax receipts; he received the same and paid $431.48, the amount stated therein. The second half of the taxes for 1883, upon the real estate of the plaintiff in dispute, was not embraced in the receipts, and was not paid. This fault or neglect cannot be wholly thrown upon the county treasurer.

First, the list of property furnished by the plaintiff to the treasurer was not full, complete and definite; second, the treasurer, in making out the receipts and delaying payment thereon to July 3,1884, was acting for the benefit and accommodation of the plaintiff; third, the plaintiff and her agent failed to examine the tax receipts when they were obtained and paid for; and subsequently permitted her property to be advertised and sold for taxes, and a certificate thereof to be transferred to a third party. Evidently the plaintiff was guilty of laches in failing to pay or tender the-second half of her general taxes admitted to be legal and due. She was not attentive or diligent in the matter, and is not entitled, under the facts of the case, to have the tax-sale certificate set aside or the injunction prayed for granted.

The judgment of the district court will be affirmed;

All the Justices concurring.