
    Herbert D. Stetson, et al., v. W. H. H. Freeman.
    Ejectment by Stetson against Freeman. The plaintiff brings here for review the judgment in said action rendered at the August Term, 1885, of the district court of Marshall county.
    
      John V. Coon, and J. A. Broughten, for plaintiff in error.
    
      W. FT. H. Freemam, defendant in error, for himself.
   Per Curiam:

This was an action in the nature of ejectment, to recover lot No. 22 of the public square in the city of Blue Rapids. The defendant set up title under two tax deeds, one under a sale made in 1875 for the tax of 1874, and one under a sale made in 1876 for the tax of 1875. The court found that certain sums were included in the tax levies, not authorized by law, and that legal notice was not given as to the place of the tax sales by the county treasurer, and therefore that the tax sales were illegal and the tax deeds invalid. The lot, however, was subject to taxation for the years 1874-5. The court rendered judgment in favor of the plaintiff for possession, but adjudged that the defendant was entitled to recover the amount of taxes legally levied and actually paid at the tax sales, with the penalties, interest and costs allowed by law, aggregating $143. This sum was also decreed to be a lien upon the lot, and an order of sale was directed to issue therefor, if the same was not paid. The plaintiff claims that the defendant is not entitled to recover any sum whatever for taxes, penalties, interest and costs, and if entitled to any sum that it should not exceed the taxes legally levied, with seven per cent, interest thereon; this upon the claim that the tax sales were not legal, and that the tax deeds were wholly void. Within the frequent decisions of this court, the judgment of the trial court cannot be disturbed.

In Smith v. Smith, 15 Kas. 290, the tax deed was void upon its face, yet the holder of the tax deed was entitled to recover the taxes paid, together with the penalties, interest and costs. In that case it was said the statute “ was enacted for void tax deeds, and not for valid tax deeds. A person holding under a valid tax deed has no need of such a statute; only persons holding under void tax deeds need such a statute.”

In Belz v. Bird, 31 Kas. 139, this court said:

“It would seem that in all cases of void tax deeds, whatever may be the ground upon which the deeds áre held to be void, the holder of the tax deed, when defeated in an action of ejectment, whether he is plaintiff or defendant, may recover the taxes which he has paid.”

(See also Stebbins v. Guthrie, 4 Kas. 353; Jeffries v. Clark, 23 id. 448; Fairbanks v. Williams, 24 id. 16; Harris v. Curran, 32 id. 580.)

The taxes adjudged to be a lien by the court were those which the law allowed to be levied. The illegal sums included in the levies of taxes were deducted from the amount of taxes paid by the purchaser at the tax sales.  