Alison v. Harper

• Court: Kansas Supreme Court
• Writing for the Court: PORTER, J.:
• Citation: Alison v. Harper, 180 P. 449, 104 Kan. 497 (Kan. 1919)
• Decision Date: 12 April 1919
• Docket Number: 21,800
• Parties: JOHN W. ALISON et al., Appellees, v. JOHN HARPER, Appellant, et al

180 P. 449

104 Kan. 497

JOHN W. ALISON et al., Appellees, v. JOHN HARPER, Appellant, et al

No. 21,800

Supreme Court of Kansas

April 12, 1919

Decided January, 1919.

Appeal from Gray district court; LITTLETON M. DAY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. QUIETING TITLE--Void Tax Deed--Judgment--Tax Lien Allowed--Appeal--Estoppel. In an action to quiet title, where plaintiffs' title was based upon a void tax deed, the defendant answered alleging the invalidity of the tax deed and asking to be dismissed with costs, but afterwards enlarged the issues and, on the trial, introduced evidence to establish his own title. The court adjudged him to be the owner of the land, but allowed the plaintiffs a lien for taxes paid. Held, that the defendant, without appealing from the judgment in his own favor, cannot accept the benefits of that part of the judgment and question the authority of the court to allow a lien for the taxes, on the sole ground that the action was an equitable one.

2. VOID TAX DEED--Failure to Record within Six Months--Not Validated by Curative Statute. A tax deed which has become void because of the failure to file it for record until more than six months after it was executed, is not made valid by the curative act (Gen. Stat. 1915, § 2084) which provides that when any instrument of writing shall have been recorded for the period of ten years, and there is a defect, because the instrument is not acknowledged, or because of any defect in the execution, acknowledgment, recording, or certificate of recording the same, such instrument shall, from and after the expiration of ten years from the filing thereof for record, be valid as though such instrument had, in the first instance, been in all respects duly executed, acknowledged and certified.

Albert Watkins, and Arthur C. Scates, both of Dodge City, for the appellant.

S. S. Alexander, of Kingman, for the appellees.

OPINION

PORTER, J.:

The action, which was to quiet title to a half section of land in Gray county, was commenced under section 618 of the code of civil procedure. An amended petition set out the source of plaintiffs' title, which is a tax deed issued in 1889. It was alleged that the defendants claimed some right or interest in the land which was a cloud on plaintiffs' title, and it was asked that they be compelled to set up their claims. In both petitions plaintiffs asserted actual and peaceable possession since 1889. John Harper, the only defendant upon whom service was obtained, answered with a general denial, admitting he claimed an interest in the land, and alleging that plaintiffs' tax deed is void because it was not recorded within the time prescribed by law. The court found the facts, and held the tax deed void because it had not been recorded until more than six months after it was issued. It was adjudged that John Harper was the owner in fee of an undivided eleven-fifteenths interest in the lands, that plaintiffs had no right, title, or interest, but they were given a lien for taxes and interest amounting to $ 3,062.85. Harper appeals upon the sole ground that it was error to allow the plaintiffs' tax lien.

The defendant Harper alleged in his answer that the tax deed was void, and asked no affirmative relief, but merely that he be dismissed with costs. His contention is that the right to a lien for taxes is purely statutory, and that section 11457 of the General Statutes of 1915 gives the remedy only in cases where "the holder of a tax deed or any one claiming under him by virtue of such tax deed be defeated in an action by or against him for the recovery of the land sold."

The principal cases relied upon are Corbin v. Young, 24 Kan. 198, Coonradt v. Myers, 31 Kan. 30, 2 P. 858, and Trust Co. v. Essex, 74 Kan. 240, 86 P. 467, to the effect that a holder of a tax deed who fails to establish the validity of his deed in an action to quiet title against the original owner will not be entitled to a tax lien.

Exceptions have been recognized to the rule stated in the foregoing cases. The rule does not deprive a court from allowing a tax lien, merely because the action is an equitable one, nor merely because neither party seeks to recover possession.

In Davidson v. Timmons, 88 Kan. 553, 129 P. 133, a tax lien was allowed the defendant in an action to quiet title. In that case plaintiff brought an action to quiet his title as...