Banchor v. Proctor

• Court: Kansas Supreme Court
• Writing for the Court: BURCH, J.:
• Citation: Banchor v. Proctor, 88 Kan. 510, 129 P. 526 (Kan. 1913)
• Decision Date: 11 January 1913
• Docket Number: 17,889,18,118,18,119
• Parties: FRANKLIN BANCHOR, Appellant, v. MARION PROCTOR et al., Appellees. FRANKLIN BANCHOR, Appellant, v. EBEN C. CROCKETT et al., Appellees. THE HAYS LAND & INVESTMENT COMPANY, Appellee, v. FRANKLIN BANCHOR, Appellant

129 P. 526

88 Kan. 510

FRANKLIN BANCHOR, Appellant, v. MARION PROCTOR et al., Appellees.

FRANKLIN BANCHOR, Appellant, v. EBEN C. CROCKETT et al., Appellees.

THE HAYS LAND & INVESTMENT COMPANY, Appellee, v. FRANKLIN BANCHOR, Appellant

Nos. 17,889, 18,118, 18,119

Supreme Court of Kansas

January 11, 1913

Decided January, 1913.

Appeal from Gove district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. QUIETING TITLE--As Between Holders of Separate Tax Deeds. In an action by a tax-deed holder in possession to quiet title against the holder of an elder tax deed who was out of possession, the defendant proved that an entry was made upon the land and actual possession was taken in his name within two years from the date upon which his tax deed was recorded. Held, that proof of antecedent authority on the part of the person taking possession for him was unnecessary and that the condition of the two-year statute of limitations was satisfied.

2. QUIETING TITLE--When Judgment is Conclusive as to Heirs. In the action referred to the plaintiff quieted his title against all the heirs of the deceased holder of the original title. Afterwards two of the heirs procured the judgment to be opened, showed defects in the plaintiff's tax deed invalidating it as a conveyance, and asked for possession. They did not claim to be sole heirs and made no proof of the respective shares of their ancestor's estate to which they were entitled. Held, the judgment quieting title was conclusive upon all the heirs who did not defend, and that, while the answering heirs were entitled to possession, they were only entitled to possession in common with the plaintiff.

3. REDEMPTION--Tax Sale--Right to Redeem. Within five years from the time the holder of the second tax deed took possession a grantee of the holder of the first tax deed brought an action to redeem. Possession had been taken under the first deed, which was good on its face, within two years and the five-year statute of limitations had run in its favor against the original owner. Held, the plaintiff was an owner within the meaning of the statute providing that "any owner, his agent or attorney," may redeem land sold for taxes.

J. S Simmons, and Ray H. Tinder, both of Hutchinson, for the appellant.

Lee Monroe, W. S. Roark, and C. M. Monroe, all of Topeka, for the appellees.

OPINION

BURCH, J.:

The actions in which these appeals were taken were instituted by the holders of rival tax titles to the land in controversy.

The original title was vested in Adelaide S. Alden, who died in 1902. Neither she nor her heirs ever held actual possession. In February, 1903, a tax deed, regular on its face, but based on irregular proceedings, was issued to Marion Proctor and was duly recorded. In September, 1906, another tax deed was issued to Franklin Banchor and was duly recorded. This deed was good on its face, but was voidable for a number of reasons. In December, 1909, Banchor found the land unoccupied and took possession. In 1910 he brought suit to quiet his title, making Proctor and the unknown heirs of Adelaide S. Alden parties defendant. Proctor answered, claiming title under his tax deed, alleging possession and asking that his title be quieted against Banchor. At the trial the allegation of possession and the prayer for affirmative relief were withdrawn. Judgment was rendered refusing to quiet Banchor's title as against Proctor, and Banchor appeals. (Case No. 17,889.)

It is claimed that Proctor suffered his interest in the land to lapse by failing to take possession within two years from the recording of his tax deed. In 1904 an agent of a company said to be acting for Proctor entered upon the land in his name and leased to a tenant who sublet to a resident of the neighborhood for farming and grazing purposes. The lessee kept the land rented for two years. The principal defect in this proof, to which attention is called, is the lack of antecedent authority in the company acting for Proctor. Even if the act of taking possession in his name were not authorized at the time, Proctor could subsequently ratify it, as he did by producing the proof relating to it in support of his title. The condition of the statute was satisfied by taking possession and excluding adverse occupancy within the time limited for that purpose. There is no evidence of a subsequent abandonment of possession generally to anyone who might desire it. (Buckner v. Wingard, 84 Kan. 682, 115 P. 636.) Some contention is made that actual possession under Proctor was not in fact shown. If this were true the land was vacant until Banchor entered, the statute did not begin to run until that time ( Gibson v. Hinchman, 72 Kan. 382, 83 P. 981, and cases cited at page 384, 83 P. 981), and the two years within which Proctor might sue for possession had not elapsed when judgment was rendered. The general finding of the court, however, disposes of the contention in Proctor's favor.

In the action to quiet title a judgment was taken by default against the Alden heirs. Afterwards Eben C. Crockett and Adelaide A C. Somes appeared and procured...