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set forth in the plaintiff's petition is good, the court below should not have sustained the objection of the defendant to the introduction of all evidence under the petition, and should not have dismissed the plaintiff's action. The action was commenced on December 18, 1882, and at least 14 of the several causes of action set forth in the plaintiff's petition accrued within less than five years prior to that time. These causes of action cannot, therefore, be considered as having been barred by any statute of limitations when this action was commenced. But are any of the causes of action set forth in the plaintiff's petition barred by any statute of limitations? Now, it is universally held by courts that no statute of limitations will run against the state or the sovereign authority unless the statute itself expressly so provides, or unless the implications of the statute to that effect are so strong as to be utterly unavoidable. It requires no citations of authorities to sustain this proposition. Even where there is a doubt as to whether the state was intended to be included within the provisions of the statute, the doubt must be solved in favor of the state and the state held not to be included. Des Moines Co. v. Harker, 34 Iowa, 84, and cases there cited. And even where the state holds the claim or debt sued on as the assignee or transferee of some individual person, still the statute of limitations will not run against the state where such statute had not commenced to run before the state obtained the claim or debt.
U. S. v. White, 2 Hill, 59. We need not decide the question whether the statute would continue to run, and to run against the state, where the state procured the claim or debt after the statute had commenced to run, for no such question is involved in this case. We think that no statute of limitations has so run against the state in the present case as to bar any of the causes of action set forth in the plaintiff's petition.
The next question urged by the defendant against the plaintiff's petition is that the bonds set forth therein and sued on do not state, as required by statute, the purpose for which they were issued. The bonds were issued under section 1 of an act entitled “An act to enable school-districts in the state of Kansas to issue bonds,” approved February 26, 1866, as amended by section 1, chapter 95, of the Laws of 1872, and that section provides, among other things, that “they [the bonds] shall specify on their face ihe date, amount, for what purpose issued, to whom, the time they run, and the rate of interest,” while the bonds in the present case do not in terms specify for what purpose they were issued. We think, however, under the present circumstances, and as the question is now presented, that the bonds are sufficient in this respect. It must be remembered that the question has been raised only by an objection to the introduction of evidence under the petition. It must also now be considered that the bonds were issued in good faith; that the school-district received ample compensation for them, and that the state of Kansas is an innocent and bona fide purchaser of them; for nothing appears to the contrary in the petition, and all the allegations of the petition would tend to indicate this. We have stated that the bonds do not in terms specify upon their face the purpose for which they were issued; but we think they do in effect. The bonds specify on their face that they were “issued in pursuance of an act of the legislature of the state of Kansas, entitled 'An act to enable school-districts in the state of Kansas to issue bonds,' approved February 26, 1866, and acts amendatory and supplemental thereto.” Now, under that act bonds could be issued only for one purpose, that of providing a school-house for the district, either by erecting or purchasing the same. It is true that it was not necessary that the bonds should recite the act under which they were issued, and it was necessary that they should recite the purpose for which they were issued; but as the bonds did recite the act under which they were issued, and as that act authorizes bonds to be issued only for one purpose, the bonds do in effect recite the purpose for which they were issued.
The next point made by the defendant is “that none of the several counts of said petition allege or show that the conditions precedent, or any of them, had been complied with when said bonds were made and executed.” We think the petition is sufficient. It alleges that the school-district made and issued the bonds; that it made and issued them by its proper officers, for value received; and copies of the bonds are given and made a part of the petition, which show that the bonds were issued in pursuance of the said act of the legislature of 1866, and the acts amendatory and supplemental thereto; and we think the bonds are valid upon their face. See section 123, Civil Code, above cited. Presumptively the school-district and its officers acted in good faith and according to law, and the officers did their duty; and if anything was done or omitted that would render the bonds invalid, it is for the defendant to set the same up in its answer as a defense. In this connection we would cite the case of Nosher v. Independent School-district of Steam-boat Rock, 42 Iowa, 632.
The fourth and last objection made by the defendant to the plaintiff's petition is “that none of the several counts of said petition allege or show that the conditions precedent to the sale of said bonds had been complied with when said bonds were negotiated and sold, or that they were sold at a price fixed by the district, as required by law.” What has been said with reference to the last preceding objection may be said with reference to this. The petition alleges that the bonds were made and issued by the school-district and its officers for value received, and the copies of the bonds show that they were made and issued in pursuance of the statute in such cases made and provided, and presumptively they were made and issued in accordance with law. It was not necessary for the plaintiff to state in his petition the amount of the consideration for which the bonds were issued, or the prices fixed by the qualified electors of the district for the sale of the bonds. When the bonds were is. sued they passed from the district and beyond its control, and into other hands, and presumptively they were valid; but if for some reason they were not valid, it devolves upon the defendant to allege and prove their invalidity. The petition certainly does not show that they were invalid, but on the contrary shows that they were valid.
The judgment of the court below will be reversed and cause remanded for further proceedings.
HORTON, C. J., concurring. JOHNSTON, J., having been of counsel, did not sit.
(34 Kan. 212)
ENGLISH v. WILLIAMSON.
Filed October 9, 1885. 1. Tax SALE-REDEMPTION.
Where real estate has been sold for taxes, the owner "may, at any time within three years from the day of sale, and at any time before the execution of the deed, redeem” the land from the sale, and in computing the three years'
time, the day of sale should be excluded. 2. SAME-REDEMPTION NOTICE,
Where land was sold for taxes on September 4, 1878, and the redemption notice stated that the land would be conveyed to the purchaser on September 4, 1881, unless redeemed prior to that date, held, that the redemption notice did
not give the owner three years' time within which to redeem his land. 3. SAME-SUNDAY EXCLUDED.
And further held, in such case, that as September 4, 1881, was Sunday, the owner of the land had the right to redeem his land from the taxes up to and including September 5, 1881; that in cases like this, where the last day comes on Sunday, it should be excluded in the computation of time, and the next day
should be included. 4. SAME_TAX DEED.
A tax deed founded upon such sale, and made in pursuance of such redemption notice, is voidable at the instance of the owner of the land, he paying all taxes, penalties, interest, and costs due on the land. Error from Sedgwick county. Ruggles & Parsons, for plaintiff in error. Stanley & Wall, for defendant in error.
VALENTINE, J. This was an action brought by N. A. English against Thomas Williamson to set aside a tax deed on five lots in the city of Wichita, Kansas, and to recover the property conveyed by the tax deed. The case was tried by the court without a jury, and the court made special findings of fact and conclusions of law, and rendered judgment in favor of the defendant and against the plaintiff, that the tax title was valid, and for costs; and to reverse this judgment, the plaintiff now brings the case to this court. It appears from the record brought to this court that the tax deed is valid upon its face, and is not void or voidable for any reason, unless it is void or voidable for the reasons hereafter mentioned. The plaintiff claims that the tax deed is void or voidable for the following reasons :
(1) That the assessment roll, or, in other words, the return of the assessor to the county clerk, has not been verified by any oath or affidavit; and no oath or affidavit has been attached to such assessment roll, as required by section 51 of the tax law of 1876. (2) That the redemption notice, as provided for by section 137 of the tax law of 1876, and as in fact issued and published by the county treasurer, did not give to the owner of the property three years' time from the day of the tax sale within which to redeem his lots from such sale. (3) That the lots were sold for an overcharge of fees by the county treasurer.
We shall not in this case attempt to determine whether the first and third objections to the tax deed are tenable or not. We are inclined, however, to the opinion that they are not tenable.
See section 6 of the act relating to oaths, and section 139 of the tax law of 1876. We shall now proceed to consider whether the second objection to the tax deed is tenable or not. It appears from the record brought to this court that the lots were sold on September 4, 1878, for the taxes of 1877, and that the redemption notice, which was dated April 7, 1881, stated that unless the lots were redeemed prior to September 4, 1881, they would be conveyed to the purchaser. That portion of the redemption notice which is most material reads as follows:
“Public notice is hereby given to all whom it may concern that the following lands and town lots in sáid county, sold on the fourth day of September, A. D. 1878, for the taxes and charges of the year A. D. 1877, and remaining unredeemed at this date, will be conveyed to the purchaser on the fourth day of September, A. D. 1881, unless redeemed prior to that date.”
Evidently this notice does not comply with the statutes. Section 127 of the tax law of 1876 provides, among other things, that “any owner, his agent or attorney, may at any time within three years from the day of sale, and at any time before the execution of the deed, redeem any land or town lot, or any part thereof or interest therein,” from the taxes by paying the same, with all interest and charges there
Section 137 of the said tax law provides that the redemption notice shall state, among other things, “that unless such lands or lots be redeemed on or before the days limited therefor, specifying the same, they will be conveyed to the purchasers,” and the days limited therefor, as prescribed by section 127 of said law, are “any time within three years from the day of sale,” and “any time before the execution of the deed;” and no statute provides for any other limitation upon the time allowed to the owner to redeem his property from the tax sale. Also section 138 of the tax law of 1876 provides, among other things, that "if any land sold for taxes shall not be redeemed within three years from the day of sale, the county clerk of the county where the same was sold shall, on presentation to him of a certificate of sale, execute” a tax deed. It will be seen from these quotations from the tax law that the owner of the land has, under any circumstances, at least “three years from the day of sale,” and "any time before the execution of the deed,” within which to redeem his land from the taxes; and the statute evidently means that the day on which the land was sold for the taxes shall be excluded from the computation of the three years' time. This construction of the statute, with regard to the time when the three years shall commence, is in harmony with the general rules for the computation of time with regard to statutes and contracts, and all other transactions or things which require time for their consummation or completion. It is also in harmony with section 722 of the Civil Code, which reads as follows:
“The time within which an act is to be done shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded.”
It is universally held that where the time is to be computed from a particular day or date, such day or date is to be ex luded from the computation, and the full time given, exclusive of such day or date. Also in some cases where the time is to be computed from some event or some act done, the day within which the event transpired'or the act was done is also to be excluded; but probably in the majority of such instances the day on which the event occurred or the act was done is to be included in the computation. Among the Kansas authorities upon the subject of the computation of time are the following: Hook v. Bixby, 13 Kan. 164, 168; Dougherty v. Porter, 18 Kan. 206, 208; Northrop v. Cooper, 23 Kan. 432; Warner v. Bucher, 24 Kan. 478. For other cases, see 13 U. S. Dig. (first series,) 24 et seq.
Under the statutes and upon general principles the plaintiff had all of the fourth day of September, 1881, within which to redeem his lots from the taxes; but by the terms of the said redemption notice he was prevented from redeeming on that day, or on any day thereafter. Hence the redemption notice was erroneous. But it is said that the fourth day of September, 1881, was Sunday, and therefore that the plaintiff could not have redeemed his lots from the taxes on that day, even if the redemption notice had permitted him to do so, and therefore that the notice was not materially erroneous. We think this is a mistake. Under the statutes above quoted, (Civil Code, $ 722,) when the last day comes on Sunday that day, as well as the first, shall be excluded; and we suppose our tax laws, as well as all other statutes, were enacted with reference to this rule, and therefore that the rule should govern. Besides, we would also think that such rule should govern upon general principles. If Sunday in such a case is not excluded, the owner of the property would not have the full three years given to him by statute within which to redeem his property from the taxes, while the statutes in express terms give him that time, and more than that time; it is three years, and until the execution of the tax deed which is given to him by the statute within which to redeem his land from the taxes; and a tax deed is never executed within the very first moment after the three years have expired, and generally not for days or even months thereafter. This rule should also govern for the purpose of preventing a forfeit