Cartwright v. Korman
| Decision Date | 07 March 1891 |
| Citation | 26 P. 48,45 Kan. 515 |
| Parties | S. S. CARTWRIGHT v. AMELIA KORMAN, an insane person, by her guardian, B. Korman |
| Court | Kansas Supreme Court |
Error from Shawnee District Court.
EJECTMENT. Judgment for the plaintiff Korman at the September term 1888. The defendant Cartwright brings the case to this court. The opinion states the material facts.
Judgment reversed and cause remanded.
Hazen & Isenhart, for plaintiff in error.
J. D McFarland, for defendant in error.
OPINION
This was an action in the nature of ejectment to recover the possession of lots 28 and 30, on Harrison street, in the city of Topeka. Amelia Korman was the owner of the lots named, in 1862, and still continues to be the owner, unless she has been divested of her title by a tax deed executed and delivered to S. S. Cartwright on November 15, 1878. Amelia Korman has been of unsound mind ever since 1869, and on July 16, 1877, she was duly adjudged by the probate court of Leavenworth county to be insane and incapable of managing her own affairs, and immediately afterward she was committed to the insane asylum, where she has since remained, never having been restored to her right mind. In May, 1873, the lots in question were sold for the taxes of 1872, and on November 15, 1878, they were conveyed by tax deed to Cartwright, as has been stated, and the deed was duly recorded on the same day. The property was vacant and unimproved when the conveyance was made and until September, 1879, when Cartwright took possession of the same, and erected buildings and fences thereon, and has continued in possession ever since that time. In July, 1877, B. Korman was appointed guardian of the person and estate of Amelia, and has continued to be such guardian till the present time. The district court found these facts, and also what the rental value of the lots would have been in an unimproved condition as well as in their improved condition for the time Cartwright has been in possession. It also found that the proceedings upon which the tax deed was based were irregular, and insufficient to sustain the deed, and thereupon rendered judgment in favor of Amelia Korman and against S. S. Cartwright for the possession of the lots, and for $ 1,209 damages for the unlawful withholding of the same.
The main question presented by the record is, whether the irregularities mentioned are now available to defeat the deed, or whether they have been cured by the limitation prescribed in § 141 of the tax law. It reads as follows:
"Any suit or proceeding against the tax-purchaser, his heirs or assigns, for the recovery of land sold for taxes, or to defeat or avoid a sale or conveyance of land for taxes, except in case where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter."
This section is broad and general in its terms, and makes no exception of persons under disabilities. The limitation begins to run immediately upon the recording of the tax deed, and against all persons, except in such cases and against such persons as are expressly excepted from its operation. The only exception provided is where the taxes have been paid or the lots redeemed as provided by law. Provision is made in the code whereby persons who are under disability, such as infancy or insanity, when the cause of action accrues, may bring their action within two years after the disability is removed. (Civil Code, § 17.) But § 141 of the tax law is not modified, controlled or limited to any extent by the provisions of the code. It has been determined that it is complete in itself, except so far as it is modified by other provisions of the tax law. (Beebe v. Doster, 36 Kan. 666, 14 P. 150; see, also, Edwards v. Sims, 40 Kan. 235, 19 P. 710.) Our attention is not called to any provision of the tax law which modifies or limits this provision, except § 128 of that statute. It provides that minors may redeem lands sold for taxes at any time before they become of age, and one year thereafter. It also provides that the lands of idiots and insane persons may...
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...Montgomery v. Berge, 31 Ark. 491; Cresman v. Johnson, 23 Col. 264; State ex rel. Warwick v. Jordon, 30 Fla. 1, 17 So. 742; Cartwright v. Korman, 45 Kan. 515; Allen v. White, 98 Mo. 55, 10 S.W. 881; Foot Holt, 14 Neb. 221, 15 N.W. 203; Carter v. Moore, 183 Miss. 112; Louis v. Griffin, 103 Mi......
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