Collins v. Collins

• Court: Kansas Supreme Court
• Writing for the Court: HARVEY, Justice.
• Citation: Collins v. Collins, 148 Kan. 569, 83 P.2d 691 (Kan. 1938)
• Decision Date: 05 November 1938
• Docket Number: 33964.
• Parties: COLLINS v. COLLINS et al. [*]

83 P.2d 691

148 Kan. 569

COLLINS v. COLLINS et al. ^[*]

No. 33964.

Supreme Court of Kansas

November 5, 1938

Syllabus by the Court.

In suit by holder of invalid tax deed against defendants in possession claiming under prior title, evidence justified judgment establishing tax lien for cost of tax deed and amount of taxes paid on property and for rent due on ground that defendants were in possession as tenants of holder of tax deed and were not entitled to credit for repairs and payment of taxes. Gen.St.1935, 79-2506.

The district court had jurisdiction of action by holder of tax deed for declaration of rights of parties respecting title possession, and rents of land, wherein plaintiff sought decree that her title was good under tax deed and in the alternative that she be adjudged to have a lien for taxes and defendants filed cross-petition for adjudication of title in defendants subject to tax lien. Gen.St.1935, 79-2506.

The holder of a tax deed in possession is entitled to stay in possession until his tax deed is adjudged invalid as a conveyance of title and until the amount of the taxes due him are determined and paid. Gen.St. 1935, 79-2506.

The rights of parties respecting taxes and tax deeds are governed by statute and are not equitable. Gen.St.1935, 79-2506.

The holder of a tax deed has two years from time of recording of tax deed in which to bring an action for possession of the property. Gen.St.1935, 60-304, 79-2507, 79-2512.

The holder of a tax deed who obtains possession of property peaceably within two years from time of recording of tax deed is not required to bring action for possession. Gen.St.1935 60-304, cl. 3; 79-2507, 79-2512.

Where holder of valid tax deed obtains possession or brings action for possession within two years after recording of tax deed the deed evidences a new title in fee simple and cuts off all prior titles and liens; but if the tax deed is invalid it does not have the effect of vesting title in fee simple. Gen.St.1935, 60-304, cl. 3; 79-2507, 79-2512.

An invalid tax deed is not void for all purposes although it does not have the effect of vesting title in fee simple, but it still sets up a claim of title in the holder and authorizes him to get possession of the property peaceably or to maintain an action for possession. Gen.St.1935, 79-2507.

In action by holder of invalid tax deed for declaration of rights of parties respecting title, possession, and rents of land, wherein plaintiff sought decree establishing lien for taxes on theory that defendants were in possession as her tenants, and defendants filed cross-petition for adjudication of title in them subject to tax lien, statutes of limitation applicable to the controversy were waived where not pleaded by either party against the other. Gen.St.1935, 60-304, cl 3; 79-2505, 79-2506.

In action by holder of invalid tax deed for declaration of rights of parties respecting title, possession, and rents of land, wherein plaintiff sought decree establishing lien for taxes on theory that defendants were in possession as her tenants, and defendants filed cross-petition for adjudication of title in themselves subject to tax lien, portion of judgment which, after determination that holder of tax deed was in possession and of amount of tax lien, limited time within which tax lien should be paid and provided that in case of failure of defendants to pay tax lien all their interest and title to property should vest in holder of tax deed, was erroneous. Gen.St. 1935, 79-2506.

Under statute, holder of invalid tax deed who obtained possession was entitled to retain possession of property until her lien was paid and was not required to account to holders of legal title for rent or to credit any of rents or income from property on tax lien. Gen.St.1935, 79-2506.

1. The holder of a tax deed obtained possession of the property and leased it. The tenant bought up the outstanding prior title, repudiated the lease, and claimed possession under the prior title. The holder of the tax deed sued to have it adjudged the occupant was in possession as tenant, and that plaintiff had good title under the tax deed; and in the alternative, if the tax deed was adjudged invalid as to passing title, that plaintiff be adjudged to have the statutory tax lien. In making up the issues it was stipulated the tax deed was invalid as a conveyance of title. Defendant conceded plaintiff's tax lien, but asked for certain deductions in the amount of it because of payments alleged to have been made, denied the tenancy, and set up the prior title. Held, the court had jurisdiction to hear and determine the controversy. Further held, the evidence sustained the court's finding that defendant occupied the property as a tenant only, also the findings respecting claimed deductions of the tax lien.

2. In its judgment and decree in the action outlined in syllabus 1 the court gave defendant a fixed time within which to pay plaintiff's tax lien, and if defendant failed to do so "all their interest in and title to said real estate shall vest in plaintiff." Held, this was erroneous. The rights of the parties respecting plaintiff's tax lien are statutory and are not governed by principles of equity applicable to a mortgagee in possession.

Appeal from District Court, Geary County; Cassius M. Clark, Judge.

Action by Agnes B. Collins against Kenneth B. Collins and another and Vance W. Collins and another for the declaration of the rights of the parties respecting title, possession, and rents of realty, wherein the defendants filed a cross-petition. Judgment for plaintiff, and defendants Kenneth B. Collins and another appeal.

Judgment modified.

Laura Rohrer, of Junction City, and J. L. Hunt, Lester M. Goodell, Margaret McGurnaghan, John H. Hunt, and George M. Brewster, all of Topeka, for appellants.

James V. Humphrey and Arthur S. Humphrey, both of Junction City, for appellees.

HARVEY Justice.

This was an action, commenced November 8, 1937, for the declaration of the rights of the parties respecting the title, possession and rents of four tracts of land aggregating about 90 acres, to which the same questions apply, and for judgment in accordance with the rights of the parties as found. All the property is farm land; the residence and other farm improvements are on one of the tracts.

Plaintiff is the widow of J. L. Collins and the sole devisee and legatee under his will, probated April 27, 1937, shortly after his death. The defendant, Kenneth B. Collins, is the son of plaintiff and J. L. Collins, and Annie Welsh Collins is his wife. Hereinafter these parties will be referred to as defendants unless the party referred to is specifically designated. Prior to October, 1930, the real property in question was owned by the heirs of Richard Welsh, deceased, one of whom is the defendant Annie Welsh Collins. The Welsh heirs had not paid the taxes on the land, and it was subject to tax deeds. On October 18, 1930, J. L. Collins purchased tax deeds upon the land, one for each of the four tracts. On receiving and recording these deeds he went to the persons then occupying or farming the land as tenants of the Welsh heirs and procured possession of the property and collected rents from them. In March, 1932, the defendants moved onto the improved tract and began paying rent to J. L. Collins at the rate of $25 or $27 per month. Other tenants farmed the other tracts and paid as rent a share of the crop to J. L. Collins. This continued until March, 1934, since which time defendants farmed all the land and delivered the landlord's share of the crop to J. L. Collins. This continued until the death of J. L. Collins in 1937. In the meantime defendants procured deeds to themselves from the other Welsh heirs, and upon the death of J. L. Collins filed those deeds of record and claimed to be the owners of the property. They harvested the wheat crop of 1937 and placed the landlord's share in storage, with directions that it should not be delivered to plaintiff. Plaintiff served written notice on defendants for the termination of their tenancy of the premises on March 1, 1938. The petition alleged the sums paid by J. L. Collins for the tax deeds and the amount of taxes paid thereafter; alleged defendants went on the property as tenants of J. L. Collins and plaintiff, and that the cash payments and share of the crops which had been delivered were payments of rent; alleged defendants secretly obtained deeds from the other Welsh heirs and wrongfully asserted a claim of title; alleged that in settling the rent for 1936 defendant Kenneth B. Collins had given his note to plaintiff for $176.39, a copy of which was attached, and which was unpaid; alleged that plaintiff was entitled to a share of the crop for 1937, and asked for judgment for its value. The petition further alleged that on December 1, 1933, plaintiff and her husband, J. L. Collins, had borrowed $2000 from Ada P. Mellinger, and to secure it had given a mortgage upon the real property, and that later, in December, 1933, plaintiff and her husband gave a deed to Vance W. Collins, which was in fact a second mortgage, to secure the balance due upon a note previously executed by them to Vance W. Collins, and these persons were made parties defendant for the purpose of having the instruments adjudged to be first and second mortgages upon the property.

Plaintiff prayed judgment to the effect that she had title in fee simple to the real property, subject only to the liens of the mortgages to Ada P. Mellinger and Vance W. Collins, and to the tenancy of the defendants; that the tenancy expired March 1, 1938, and that defendants have no title or estate in the real property other than as tenants of plaintiff and are estopped from claiming any other title...