Baker v. Lane

• Citation: 82 Kan. 715,109 P. 182
• Decision Date: 11 June 1910
• Docket Number: 16,579
• Parties: MARY J. BAKER, Appellant, v. MARY KELLEY LANE et al., Appellees
• Court: Kansas Supreme Court

109 P. 182

82 Kan. 715

MARY J. BAKER, Appellant, v. MARY KELLEY LANE et al., Appellees

No. 16,579

Supreme Court of Kansas

June 11, 1910

Decided January, 1910.

Appeal from Seward district court; WILLIAM H. THOMPSON, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. TAX DEED--Grantee Dead When Deed Was Executed--Action by Heir of Grantee to Quiet Title and Enjoin Defendants in Possession. A party whose only title to land is under a tax deed made to a grantee who was dead when it was executed which was delivered to such party as the heir of the deceased person, who caused the deed to be recorded and paid the taxes on the land, but who never took actual possession, can not maintain an action to quiet title or for an injunction against one who holds under the government title and who is in actual possession of the land.

2. WORDS AND PHRASES--"His Heirs and Assigns"--Void Tax Deed. The words "his heirs and assigns," following the name of the deceased person so designated as grantee in the deed, did not operate to vest title in such heir, and the deed is void as a conveyance.

3. REFORMATION OF INSTRUMENTS--Tax Deed--Substitution of Plaintiff as Grantee--Application for a Second Deed. A person who, as heir of the deceased owner of a tax-sale certificate, took out a tax deed thereon, wherein the name of the deceased person was inserted as grantee, can not maintain an equitable action to have the deed reformed by a decree substituting her own name as grantee therein. She might, upon due application to the county clerk, have obtained a deed made to herself as grantee, notwithstanding the issuance of the former instrument.

A. L Billings, for the appellant.

Thomas A. Scates, and Albert Watkins, for the appellees.

OPINION

BENSON, J.:

This is an action to reform a tax deed, to quiet title under it, and for an injunction to restrain the defendants from entering or trespassing upon the land or injuring it. A demurrer to the petition was sustained, and the plaintiff appeals.

The petition shows that defendant Mary Kelley Lane is the owner in fee simple of the land in question, unless her title has been devested by a tax deed under which the plaintiff, Mary H. Baker, claims to own it.

The title to this land became vested in Mary Kelley Lane in the year 1888. It was then vacant and unoccupied, and so remained until April 10, 1908, when possession was taken by the defendants, who still hold it. The taxes of 1889 due upon this land were delinquent, and it was sold at the tax sale of 1890 and a certificate was issued thereon, which was afterward assigned to J. W. Baker, the plaintiff's husband at that time, but who died on April 3, 1892. On March 7, 1894, the plaintiff, now the sole surviving heir of the decedent, presented the tax certificate to the county clerk and requested that a tax deed be made to J. W. Baker, which was accordingly done, and the deed was delivered to her. This tax deed purports to convey the land to "J. H. Baker, his heirs and assigns," but the initial "H" was inserted by a clerical error, instead of the initial "W," as directed. It is dated March 7, 1894, and was recorded that day. On the same date the plaintiff redeemed the land from a tax sale made in 1891, and paid all taxes to and including the taxes of 1893.

In April, 1908, finding that the defendants, Mary Kelley Lane and H. W. Lane, her husband, had entered upon the land, erected a small house, and broken out about five acres, the plaintiff caused a notice to be given to them that they were considered as trespassers, and that an action to quiet title and for an injunction would be commenced against them. Before this notice was given the defendants had offered to pay the tax lien, which was refused.

The petition is very voluminous. Exhibits are attached containing correspondence of the defendants with the county clerk and the county treasurer, and between the parties. It contains an allegation that the plaintiff took possession under the tax deed upon its delivery, but as it is also alleged that the land was vacant and unoccupied until the defendants' entry, and as this fact is also stated in the exhibits, it is understood that the possession referred to in the petition is constructive only; and this is the claim as stated in the plaintiff's brief. The entry of the defendants is characterized as wrongful and a trespass, made to harass annoy and extort money, but these and other like charges add nothing to the legal effect of the facts pleaded, the substance of which is given above. The case presented, then, is that of one party in possession of land claiming title thereto in fee simple, and another party out of possession asserting a superior title and right of possession under a...