Cone v. Usher

• Court: Kansas Supreme Court
• Writing for the Court: BURCH, J.:
• Citation: Cone v. Usher, 122 P. 1049, 86 Kan. 880 (Kan. 1912)
• Decision Date: 06 April 1912
• Docket Number: 17,546
• Parties: ROY S. CONE, Appellee, v. ARTHUR C. USHER et al. C. L. REA, Appellant

122 P. 1049

86 Kan. 880

ROY S. CONE, Appellee, v. ARTHUR C. USHER et al.

C. L. REA, Appellant

No. 17,546

Supreme Court of Kansas

April 6, 1912

Decided January, 1912.

Appeal from Stanton district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

TAXATION--Ejectment by Senior against Junior Tax-deed Holder --Limitation of Action. The plaintiff in ejectment claimed title under a tax deed valid on its face and recorded in October, 1892. No showing was made by either party relating to the occupancy of the premises for the succeeding twelve years. The defendant's title rested on a voidable tax deed recorded on September 10, 1904, under which he took and continued to hold possession. The suit was commenced more than two years and less than five years after the defendant's deed was recorded. Held, the plaintiff is to be regarded as the owner of the land and the defendant as a tax purchaser the two-year statute of limitation appearing in section 15 of the civil code (former section 16) relates to actions brought by a tax purchaser against the owner and does not apply, but the five-year limitation fixed by section 270 of the taxation act (former section 141) applies; and the suit is not one by a tax purchaser to build up title or to enlarge his rights but is one by the landowner to protect title already vested against impairment by subsequent irregular tax proceedings.

George Getty, for the appellant.

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

OPINION

BURCH, J.:

Cone brought an action of ejectment against Rea for the land in controversy and recovered. The defendant appeals.

The plaintiff's title originated in a tax deed valid on its face and recorded in October, 1892. There was no showing relating to the occupancy of the premises for the succeeding twelve years. The defendant's title rests on a tax deed issued to him and recorded on September 10, 1904, under which he has ever since held actual possession. This deed was invalid as a conveyance provided it was exposed to attack by the plaintiff.

The plaintiff's suit was brought more than two years and less than five years after the defendant recorded his deed. The defendant claims the suit is barred by the third subdivision of section 15 of the present civil code (former Civ. Code, § 16, subdiv. 3, Gen. Stat. 1901, § 4444, subdiv. 3), which provides that an action for the recovery of real property sold for taxes must be brought within two years after the date of the recording of the tax deed. The defendant also claims that the plaintiff, in order to make title, was obliged to supplement his tax deed by affirmative use of the statute of limitations precluding an investigation of the proceedings upon which it was founded.

The code limitation referred to was enacted in 1868, and was subject to the provisions of section 15, that where in special cases a different limitation is prescribed by statute the action shall be governed by such limitation. In 1876 the act relating to taxation made a special case of suits or proceedings brought against tax purchasers to recover land sold for taxes or to defeat or avoid a sale or conveyance of land for taxes, and the time limit for bringing such suits was fixed at five years from the recording of the tax deed. (Laws 1876, ch. 34, § 141, Gen. Stat. 1901, § 7680, Gen. Stat. 1909, § 9483.) After that the code limitation applied only to actions brought by the tax purchaser out of possession against the owner in possession, and the limitation in the taxation act applied to suits generally brought by the owner to test tax proceedings purporting to divest him of title, including suits for the recovery of the land. In the case of Thornburgh v. Cole, 27 Kan. 490, paragraphs 2 and 3 of the syllabus read as follow:

"Subdivision 3, § 16 of the code was not repealed by § 141, ch. 34, Laws of 1876. Said subdivision applies to a tax-title purchaser out of possession, and such a party can only bring his action for the recovery of real estate sold for taxes within two years after the date of the recording of the tax deed.

"Sec. 141, ch. 34, Laws of 1876, applies to any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of land for taxes. In such cases, the owner of the fee out of possession may commence his action within five years from the time of the recording of the tax deed."

The distinction here made between actions instituted by the person designated as "the tax-title purchaser" and actions commenced against the tax-title purchaser by the person designated as "the owner of the fee" has been maintained in all subsequent cases in which it has been important. In the case of Myers v. Coonradt, 28 Kan. 211, 214, the contrast is drawn between "an action brought by a tax-title holder" and "an action against the tax-title holder." In the case of West v. Cameron, 39 Kan. 736, 18 P. 894, it was said that "the owner of land" has five years after a tax deed upon it has been recorded to commence an action to set aside or to defeat or avoid the tax deed. Similar expressions are common, and the question in this case seems to be, which one of the parties shall be regarded, as between themselves, as the owner and which one the tax-title purchaser?

The question proposed is fairly answered by the case of Harris v. Curran, 32 Kan. 580, 4 P. 1044. In that case the matter for decision was stated in the following language:

"Has a party holding a tax deed, regular on its face, and being of record more than five years, while the lots are vacant and unoccupied, five years or only two years from the recording of a subsequent tax deed, in which to bring suit against the holders of the last tax deed?" (p. 583.)

The court held that the first tax deed cut off all previous estates and vested them in the grantee so that he had the right to everything connected with and depending upon the title. The two-year statute in favor of the owner did not begin to run against him and the five-year statute in his favor ran against the owner. After that he was vested with absolute title in fee simple. He stood in the shoes of the original owner and was the patent title holder as against the second tax-deed holder. His action was not that of a tax-title purchaser seeking to obtain possession, and who must move in two years, but it was that of the owner seeking to recover his land which had been sold for taxes. Therefore the five-year statute governed.

The only noteworthy difference in the facts of the two cases is that in Harris v. Curran it was shown that the land was vacant until the second tax purchaser took possession while here no evidence either of occupancy or of nonoccupancy during the corresponding period was produced by either party. This difference does not affect the principle. The statute provides that a tax deed--not a tax deed plus possession--"shall vest in the grantee an absolute estate in fee simple." (Gen. Stat. 1909, § 9479.) The plaintiff's deed is valid on its face. Consequently when it was recorded and when it was introduced in evidence it carried with it, prima facie, the force and attributes designated in the statute. It is true that a tax deed may lose its virtue through failure to take possession under it. But no presumption arises immediately after the lapse of two years that it has thus become devitalized. The two-year statute of limitations merely conditions the remedy in the event that remedy to enforce possession be necessary. It applies only in the event that the right of...