Torrington v. Rickershauser , 41 Kan. 486 ( 1889 )

Opinion by

Clogston, C.:

It is claimed that the findings of fact show that the levy for county purposes was larger than that authorized by law, and for that reason the land was sold for a larger sum than it should have been. The levy for the year 1879, upon which this tax sale is based, was: For state taxes, five and one-half mills; county taxes, seven mills; county road tax, three mills; township tax, three mills; school-district tax, ten mills. The court found that the tax-roll showed that the general tax was $2.64, and with delinquent road tax and school-district tax, $4.56; and the court explains this by stating that the general tax included the state, county and township tax; but the court also shows that this total was corrected by erasing $4.56 and making it only $4.40. In other words, it was found that one mill of this levy was illegal, and it was dropped from the total amount, making it 16 cents less, or $4.40. The findings of fact do not show how this occurred. Counsel insist that it was because the state tax instead of being five and one-half mills was six and one-half mills, or one mill for state school purposes, which one mill was held that year.to have been illegal, and therefore not properly included in the levy. But at all events we think the plaintiff cannot complain of this apparent irregularity, because the amount for which the land was sold included one mill less than the original levy.

Now as to the question, did these amounts include for county purposes more than ten mills? It is conceded that that sum was the highest amount the county could levy for county purposes. This general tax of $2.64 included the state tax, and taking off the one mill for school purposes leaves five and one-half mills; seven mills for county purposes and three mills for township purposes make fifteen and one-half mills; and at a valuation of $160 the tax would amount to $2.48. This shows that the road tax was not included in the general tax, and therefore the 32 cents included in the total amount of tax would be equal to two mills on the assessed valuation, making the total levy for county purposes but nine mills on the dollar. This must be correct, unless the three mills for township purposes are to be included in the general levy for county purposes. The findings of the court do not show for what purpose this three-mill tax was levied, except for the township of Newbury. Counsel in their brief go upon the theory that it was for road purposes; but the findings do not show that fact. Counsel again insist that the land was sold for 22 cents more than was shown on the tax-rolls. The court finds that the tax-roll shows two penalties of 22 cents each, one for December and one for March; but the findings also show that, the land was sold for $5.41; and if in that amount were included the three penalties of 22 cents each — which were the correct penalties due on this land — we are not able to say from the findings that this last penalty was not upon the tax-roll, but on the contrary, we must presume in the absence of any showing that the court properly found that charge, and that it was properly made. It was the duty of the clerk to have charged that up, and we must presume it was done, in the absence of anything to the contrary.

The last claim of error is, that the final notice did not give three years from the date within which to redeem the land. The notice reads that the land would be sold on the 7th day of September, and that “ the period of redemption will expire in three years from the date of sale, or on the 8th day of September, 1883.” The notice also provides that the land will be conveyed to the purchaser “if not redeemed on or before the 8th day of September.” These terms, it is true, are somewhat conflicting; but as the deed was not issued until the 15th day of November, and as the notice does say that three years will be given for redemption, and that it may be redeemed on or before the 8th day of September, we must presume that that included all of the 8th day; and if the owner had all of the 8th day of September in which to redeem, then he had the full three years from the date of the sale.

While we are free to say that the findings of the court in some respects are not very clear, yet upon the whole record we are of the opinion that the judgment was correct, and therefore recommend that it be affirmed.

By the Court: It is so ordered.

All the Justices concurring.