908
FEDEBAL BEPOBTER.
"WATXINs
'V. REED.
(Oircuie: ,(Jourt. J). Kansas. 1887.} LDlITATIOlf QII' ACTIONSTITLE.. ' ", ,
OF, S',l'ATUTE ,
ABSENCE FROM STATE -
TAX
The Kansas tax law, § 141, (Comp. Lavv-s, p. 967,) limiting the time for bring· ;recording of ing, an lloetion to defeat or ,,:void ,A tax sale to five years after the tax deed, except in C,ases where the tax has, been paid or the land reto be construed' in cotniectioh with Code Civil Proc. § 21, which deemed, if a person state vv-hen any cause of action ac· Jimitlld s1:l.a11 commence to run until he crues against him, the, comes into the state; andtbe running ,of the statute in favor of the holder of a tax titlelVill,besuspended during his' absence from the state. 1 "
,,' THere is but a single; question in this case, and that is whether section·1'41 of the tax law; (Comp.. Laws, 967) provides, within itself, a oompleteand absolute ]imitation, unaffected' by;any of the provisions ofllhe, .generallimitation·a:rticl!J of the Code of Civil Procedure, and especially section 21 of said article. Section 141 reads as follows: lluit\)1'proceeding again'sl;<,the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes,or to defeat or avoid a sale or conveye;x:cept in Where the taxes have been paid or the ance ofl1W4 l&nd redeemed as provided by law" ,shall be commenced within five years from the tlineof'recording the and not thereafter. " ,.,And 21' of the Code' of Prqcedure, so far 'as is material to this case, rel}ds' aEl follows: " when,a .;ause of action accrues against a person, hebe out of the state, for the commencement of an action sball,not begin to run the period '. until he comes,into the state." 1)oes this exception apply to section141. Article3 ofthe Code is devoted entirely, to the matter of limitations. Section 15 provides" that civilactions oply be commenced, within the periods prescribed in this /tfter the cause of acti<Hl shall have accrued; but where" in special differentlimitatiopjElprescribed by statute, the action sl1all be goveJ;Ued by such Then follow prefor actions. Besides, these, there' scribing are three or four sections making special exceptions to the general ation of the clauses; as, for instance, the' legal disability of the plaintiff, the absence or concealment of the defendant, or the failure of the first action. Now, it is contended by the defendant that this limitation section in the tax law is unaffected by these various exceptions in article 3. The ·· ""j
MQtion -for 'a New lrrial. 'N. Sterry, for plaintiff. Utley, &; ,Martin, for defendant.
a.
,0,._
'
BREWER,'if.
lRespecting the suspension of the running of the al;.1tute of limitations by absence frolll the state. see Wood v. Bissell, (Ind.) 9 N. E. Rep. 425. and note. See, also, Engel v. Fischer, (N. Y.j 7 N. E. Rep. 300j Miller v. Lesser, (Iowa,) 32 N. W. Rep. 250.
909 'supreme cottn of the etatehas not definitely decided this. It is true that in Walker v. Boh, 32Kan. 354, 4 Pac. Rep. 272jHarria v. Ourran, 32 Kan. 580, 4 Pac. Rep. 1044; DfY!Jle v. Doyle,33 Kan. 725, 7 Pac. Rep. 615,-there are some expressions which seem to sustain the claim of the defendant. But it is also true that in Bonifant v. Doniphan, 3 Kan. 33, and in perhaps some other cases, there are intimations to the contrary. The matter is not clear in my mind, but it seems a fair constructionofthe various statutes, ,and more in consonance with the reasonable'purpose of all limitation laws, to hold against the views maintained by the defendant. ' '. , 1. Statutes in pari materia are to be construed together, nnd to be made if possible. Section 14'1, though in the' tax law, is a pure and as such should made to harmonize with the Wineralprovisions cOncernirig limitatiQns; ,If itw.era found. in article 3 f there would be, no doubt about the 'matter. ,Does its mere location compel a different conclusion? " , 2. The language in section ,15, "where in special c,ases a limitation is prescribed," 'refers to the general i11leofliIhitation, arldript to the matter pf exceptions. Thus, section 141, is to,' be construed ,as prescribing a general rule for actions agaiitst 'the holuers of recorded tax and not to excl.p,de exception!! which apply alike to all , ,, :; ; . ." , 8;"Sectidri 21 is itstenns;...:...I'when acausej" riot acirilse in this article, but 'anyca:use.' :Conldlanguage be more prehensive? . , 4; There seems no reason or justi-ce iIi giving air exception in the cS,se of an ordinary action for the recove11" of real estate; and none in' casebf an action against the holder of a tax title. The fact that, by plaCing his tax deed upon record, the holder exposes himself to an action for the recovery of possession, although he be himself a non-'resident, puts hUn in rio different position than any othern'on-resident who is in actual pb!;!. session. Elich may be sued, but each alike mustl:>e served by tion.. While short statutes of limitation may be necessary to compel prompt payment of taxes, why should non-residents be invltedto invest their riibneyin tax titles rather than inindustties'of general benefit to the(state? . , , 5. Not only is there no reason ·fora' distinction in favor of of a tax title, but in fact there seeniweighty reasons for enfdrchig th'e exception, as against him; for by section 143, Compo Laws, 968, bt simply-placing his tax deed on record he authorizes the holder 'of the original title to institute an action for the recovery of possession. Such an action is, however, to one in actual possession, at least, permissive, and not obligatory. Myers v. Coonradt,28 Kan. 211. Actual posseS" sion is ordinarily better notice of the-claim of title than' the record of the deed; .and it would· often tend to injustice to hold a .party barred of all remedy who failed to bring an action for the recovery of possession,where the land' Was 'absolutely vacant, simply because ',a 'tax deed· 'bad been placed on record more than five years. '
For tbeseamong' briefly stat«1, 'fntheab,eence ,of express ruling by court of the state, I agree with my brother FOSTER, and 'overrule the defendant's motion' fot anew
trw.
HOWTH,
Adm'r,
etc., and others ". OWENl'I and:iothers. April 6,1887.)'
(Oircuit CoUt"t, 8. D. Georgia, B. D. RBVIVAL-DBATH-ORDEB
Where an unconditiun,aJorder, sigJI.ed by the judge and dU', enrolled, strlk· ing the name of a decedent from tPe cause, was taken, and eight years there· after application was made for leave' to ,file a bill of revi,vor,in the 'absence of any explanation of the order of dismissal, leave to be (ByllabfU btl tM Court.)
B'1'BmmG OUT
DECEDENT'S N.u£E.
, Application for Leave to ,File a Bill ,of Revivor. Charle8N. West, for tqep:lQtion. , J. R., Sa'llM/l., for, the SPEER, J. On May 26, 1873, the original bill was filed against George $,. Qwens, and Julian Hartridge, as the M. pe , The bill a devastavit, and prayed It general account. 1n'1879, Julian Hartridge testate, andl\{ary M. Hartridge qualified; as his executrix. On June 3, 1879, counsel,for complainapt took Jpefollowing order: .. William E. Howth aM others vs. 6eorge S. Owens and ,other·· '''Thecottlplainant suggests that since the last term of tbe court Julian one, of the defendants, has died, and on their motion it is ordered t1)at his name be stricken from the cause, and that the caUile proceed against the other defendants. ,It is further order6\l that the time for taking testimony In said case be eXtended to the first day oUlle next term: .. "J08E1'lJ: BRADLEY, Circuit Justice." , .. I
At tbisterm the cause on:f(lr final hearing and the George S. Owens, for himself and as executor of Thomas E. Lloyd, who lwilong ago died, filed a plea forth the fjtct that Mary M. Hartridge, as the execlltrix, of .r.ulian Hartridge f was a neqessary party, and that the cOIl).plainants having voluntarily the bill as ,to her, by: striking the name of her testator therE\iroDl,that the action was barrec,I as to the. co-executors.. Tllis plea was to, and this hela bill having framed for II. account of trust in the hands of trustees, that all of the e;xecutors were ,essary.pl;U'tieS,;Ilnd sustained pleai also,holding that.a.plea for want of plea in bar, goes to the vrhole 1;>ill. Howth v· .' Rep.· 722. The complllinantsnow leave to. t1;lil). of ,revivor against Mary M.Hartrijige"as e:Jecritrixof Julian Hartridge, and this is by :het., .:"
