Beeler v. Elwell

• Court: Kansas Supreme Court
• Writing for the Court: BURCH, J.
• Citation: Beeler v. Elwell, 92 Kan. 586, 141 P. 551 (Kan. 1914)
• Decision Date: 06 June 1914
• Docket Number: 18,879
• Parties: C. W. BEELER, Appellant, v. ABRAHAM L. ELWELL et al., Appellees

141 P. 551

92 Kan. 586

C. W. BEELER, Appellant, v. ABRAHAM L. ELWELL et al., Appellees

No. 18,879

Supreme Court of Kansas

June 6, 1914

Decided January, 1914.

Appeal from Hodgeman district court; ALBERT S. FOULKS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. ESTOPPEL--Of a Tenant to Dispute His Landlord's Title. The estoppel of a tenant to dispute his landlord's title ordinarily extends to those matters only which affect relations growing out of the tenancy, and an action to quiet title may be prosecuted by the landlord and defended by the tenant having for its purpose the adjudication of claims respecting the ultimate title.

2. SHERIFF'S DEED--Not Open to Collateral Attack for Irregularities. In an action to quiet title resting upon a sheriff's deed the plaintiff does not expose the deed to collateral attack for irregularities in the proceedings on which it is based as if it were a tax deed, and it is not permissible for the defendant to show that the judgment in the action resulting in the sheriff's deed rests upon a summons served two days after the return day and was taken prematurely.

3. TAX DEED--Valid on Its Face--On Record for Seventeen Years--Actual Possession--Title May be Quieted. By virtue of a tax deed, valid on its face and duly recorded, and sections 266 and 272 (Gen. Stat. 1909, §§ 9479, 9485) of the taxation act, the plaintiff and his predecessors in interest have been for seventeen years in a situation equivalent to that of claimants of title in fee simple in actual possession. The plaintiff has also been in actual possession for a number of years. Held, his title may be quieted against the owner whose title was cut off by the tax deed and failure to take steps to recover the land, although there were irregularities in the proceedings on which the tax deed is founded.

F. Dumont Smith, of Hutchinson, for the appellant.

Roscoe H. Wilson, and Walton S. Kenyon, both of Jetmore, for the appellees.

OPINION

BURCH, J.

The action was commenced by Beeler to quiet his title to a tract of land against the claims of Elwell and Sinclair. The defendants recovered and the plaintiff appeals.

On September 25, 1894, a tax deed of the land from Hodgeman county to the Howard Investment Company was duly recorded. By mesne conveyances the tax title passed to Sinclair. On August 27, 1903, a sheriff's deed of the land was issued to the plaintiff, based on a sale made under an execution issued upon a judgment rendered against Sinclair. Sinclair then took a lease from the plaintiff and has since continued to occupy the land.

Elwell purchased the so-called patent title; that is, he is a grantee of the owner whose default occasioned the sale for taxes on which the tax deed is founded.

The plaintiff's petition was filed on January 25, 1911, and was substantially in the statutory form. Sinclair answered that the sheriff's deed was void because the summons was served two days after the return day, and because the judgment was taken prematurely. No affirmative relief was asked. Elwell answered that the proceedings resulting in the tax deed, which was valid on its face, were defective in that certain taxes for the support of the state university were wrongfully included in the taxes for which the land was sold. No affirmative relief was asked. The court set aside the tax deed, adjudged Elwell to be the owner of the land, gave the plaintiff a lien for taxes paid, and rendered judgment against him for costs.

The plaintiff was clearly entitled to judgment against Sinclair. The defects in the proceedings on which the sheriff's deed was based rendered it voidable, but not void. There are numerous decisions of this court establishing the principles involved, and the defendant, Sinclair, does not impugn them. His position is, that by bringing an action to quiet title the plaintiff opened his sheriff's deed to attack for irregularities in the proceedings on which it is based, the same as if it were a tax deed, and that the plaintiff can not use the five-year statute of limitations forbidding an attack on the sheriff's deed, which was valid on its face, for the purpose of securing affirmative relief. The position is untenable because of the strict application of the doctrine of collateral attack to judicial proceedings. The plaintiff requires no assistance from the statute of limitations. It is of no consequence whether the sheriff's deed be more than five years old or less than five years old. The only way in which the irregularities complained of could be attacked was by the direct method of motion in the original cause, or appeal. They are not open to review in this collateral proceeding.

The evidence relating to the plaintiff's possession was meager, but the defendants had nothing to offer on the subject, and the fact may be taken as established.

It is said that an action to quiet title does not lie in the plaintiff's favor against Sinclair, because Sinclair, as a tenant, is estopped to dispute the plaintiff's title. A landlord can not in equity prosecute a suit for the purpose of concluding his tenant with reference to matters concerning which public policy will not allow the tenant to speak. Having obtained possession from the plaintiff, Sinclair can not say that he holds in opposition to the...