
    William L. Challiss and others v. David Baker, Treasurer, etc.
    July Term, 1873.
    Taxation: Interest: Redemption. Where the owner of real property obtains a temporary injunction to restrain a sale which is about to be made of said property for a certain tax levied thereon, and the sale is never made, but thereafter the injunction is dissolved, and said party then pays said tax with the penalty and costs thereon, and tenders interest thereon at the rate of 7 per cent, per annum, and the treasurer refuses to receive said interest, but claims interest at the rate of 50 per cent, per annum, which the property owner refuses to pay, and the treasurer then sues on the injunction bond for the same, held, that the treasurer is not entitled to collect or receive said 50 per cent, interest.
    Error from Atchison district court.
    Action by Baker, as county treasurer, against Challiss and his surety, on an injunction bond given by Challiss in an action brought against Baker’s predecessor. The injunction being dissolved, as directed by this court, (Parker v. Challiss, 9 Kan. *155, *162,) and Challiss refusing to pay the amount demanded by Baker, this suit was brought. The defendants demurred. The district court, at the November term, 1872, gave judgment in favor of the county treasurer.
    
      *W. W. Guthrie, for plaintiffs in error.
    The basis of the county treasurer’s claim was non-payment of taxes, and these are not stated in his action. He sued for three items, viz., expenses, attorneys’ fees, and tax-sale certificate interest. Expenses could only accrue in the two courts, and until after execution returned unsatisfied such damages could not exist. Attorneys’ fees could not exist quantum meruit. The county attorney is defendant’s legal attorney, and paid by salary. Gen. St. e. 25, §§ 136,138, 139; Clough v. Hart, 8 Kan. *487. Tax-sale certificate interest was entirely speculative, — such interest only could exist where a sale had taken place and owner redeemed. Tax Law, § 100, as amended by chapter 122, Laws 1869. If, as seems to be conceded here, no remedy existed except for interest, the rate fixed by law (7 per cent.) would govern, if any interest was recoverable; and this was tendered by plaintiff in error before suit. The judgment should be reversed.
    
      I). Martin, for defendant in error.
    If the court below erred as to the measure of damages, we think the error was in favor of the defendants below. The court allowed interest (50 per cent, per annum) only to August 16, 1872, amounting to $99.94. We claim that we were entitled to interest at the rate of 7 per cent, per annum on the $99.94 from August 16, 1872, to the date of the judgment. Under the law the treasurer was required to sell the lots in May, 1870, for delinquent assessments of 1869. If they had been sold according to law at that time, and Chailiss had redeemed them August 16, 1872, he must doubtless have paid the amount of the assessments and charges, together with interest at the rate of 50 per cent, per annum. He chose to interfere with the regular course of the law, and prevent a sale by means of the strong equitable remedy of injunction. He gave a bond, as the law requires, to pay all damages occasioned by the injunction if it should be finally decided that it ought not to have been granted. He thus ^'succeeded in withholding for more than two years the money due to other persons, the collection and disbursement of which devolved upon the treasurer. Is he to be placed in a better condition than other delinquents because he illegally interfered with the due and regular administration of the revenue laws, and so prevented a sale which would have carried interest at the rate of 50 per cent, per annum? We think such is not the law.
   Yalentine, J.

This was an action on an injunction bond. On the ninth of May, 1870, the plaintiffs in error obtained a temporary injunction against the treasurer of Atchison county, to restrain him from selling certain of their lots in the city of Atchison for certain sidewalk taxes assessed thereon, and they gave said bond to secure the payment of any damages which might be sustained by said treasurer, provided said injunction was wrongfully obtained. On the thirtieth of July, 1872, said injunction was dissolved. Immediately afterwards the plaintiffs in error paid said taxes, and the penalties and costs thereon, and tendered interest thereon at the rate of 7 per cent, per annum. The treasurer refused to receive said 7 per cent, .interest, but claimed interest at the rate of 50 per cent, per annum. The plaintiffs in error refused to pay said 50 per cent, interest, and the treasurer (the successor to the one to whom the bond was given) then commenced this action. The only question in the case, or, at most, the only one we need consider, is whether the treasurer is entitled to said 50 per cent, interest or not. We do not think that he is. There is no statute of this state authorizing the treasurer, or any one else, to receive 50 per cent, interest on taxes until after the prop•erty taxed has been sold for the taxes, and there has never been any sale in this case. But it is claimed there would have been a sale if the same had not been enjoined at the instance of the plaintiffs in error. This may be true, but who would have been the purchaser at such a sale ? Can any one tell ? And no one but a purchaser *is entitled to any interest after such a sale. See section 100, Tax Laws; Gen. St. 1051; Laws 1869, p. 240. In the present case it was the duty of the treasurer to collect said taxes, and then to pay them over to the city of Atchison; and it was the duty of the city of Atchison then to pay. them to W. B. Stebbins, who held the bonds of the city issued for the construction of said sidewalks. Now, suppose that said sale had actually taken place, we are not aware that the city of Atchison had any right to become the ■purchaser thereat; and every man in the world had an equal right with Stebbins, and a superior right to the county of Atchison, to become such purchaser; and the purchaser, whoever he might have been, and wherever he might have resided when he made the purchase, would have paid the taxes, penalty, and costs only, and not ■one cent of interest. Then, if the plaintiffs in error should never re•deem their lots from said supposed sale, no person would ever be entitled to receive any interest; but if they ever should redeem the same, then the purchaser would be entitled to receive the said 50 per -cent, interest. It is true, the redemption money would in such a -case be paid to the treasurer, but he could receive it only “ for the ■use of the purchaser, his heirs, and assignees.” Gen. St. 1051, § 100; Laws 1859, p. 240. But as there was no sale in this case,— -as there is no purchaser, — where -would the treasurer find any person -entitled to receive the said 50 per cent, interest? The views we have expressed are in harmony with section 98 of the tax law, though they do not result therefrom.

The judgment of the court below is reversed, and cause remanded, with the order that judgment be rendered on the special findings of the court below in favor of the plaintiffs in error for the costs in the -district court.

(All the justices concurring.)  