Davidson v. Timmons

• Court: Kansas Supreme Court
• Writing for the Court: JOHNSTON, C. J.:
• Citation: Davidson v. Timmons, 88 Kan. 553, 129 P. 133 (Kan. 1913)
• Decision Date: 11 January 1913
• Docket Number: 17,915
• Parties: SAMUEL E. DAVIDSON, Appellant, v. ROBERT S. TIMMONS et al. (George H. Lantis, Appellee)

129 P. 133

88 Kan. 553

SAMUEL E. DAVIDSON, Appellant, v. ROBERT S. TIMMONS et al. (George H. Lantis, Appellee)

No. 17,915

Supreme Court of Kansas

January 11, 1913

Decided January, 1913.

Appeal from Kingman district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. APPEAL--Transcript--Matters Reviewable. In order to secure a review of rulings of the trial court on the admission of evidence and other proceedings in the case it is necessary that the appellant shall procure a transcript of the evidence and proceedings upon which the rulings depend and in the absence of such a transcript the supreme court can not settle conflicting claims as to proceedings in the trial court nor determine whether a ruling on the admission of testimony referred to in the findings of that court may not have been controlled by evidence, admissions or waivers not preserved in the record.

2. ACTION -- Quieting Title -- Tax Lien -- Affirmative Relief. Where a party brings an action to quiet his title to land as against a claim of an interest in the land by defendant and asks to have such claim adjudicated, and the defendant answers setting up a tax lien on the land and asks the court to protect his right to such lien, the court is warranted in not only adjudicating the right of the defendant to the tax lien but also in granting affirmative relief to him by providing for the enforcement of the tax lien found to exist.

3. MORTGAGE FORECLOSURE--Judgment Void--Tax Lien Adjusted. D., who owned a tract of land and had given a mortgage on it, made default, when proceedings to foreclose the mortgage were had which resulted in a sale and deed to L. but which were subsequently determined to be absolutely void. L. paid the taxes on the land and obtained a tax deed, under which he took possession of the land, and continued to pay the taxes thereon for a number of years until it was judicially determined that the foreclosure proceedings, including the sheriff's sale and deed, were absolutely void, and also that his tax deed was invalid, whereupon he was ousted from possession of the land. L. brought an action claiming a lien for the taxes paid by him, which was dismissed without prejudice about the time the present action was brought by D. to quiet his title to the land. Held, under the facts found by the trial court in the action to quiet title, that L. is entitled to a tax lien on the land, that his right thereto had not been adjudicated in the prior action, and that he was not barred or precluded from obtaining relief and the enforcement of his tax lien in this proceeding by reason of lapse of time or his claim of ownership under the void deeds, and, further, that twelve per cent was the proper rate of interest on the tax lien awarded to L.

J. G. Campbell, and Ray Campbell, both of Wichita, for the appellant.

George L. Hay, of Kingman, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action to quiet the title of real estate which was homesteaded by the appellant, Samuel E. Davidson, in 1877. It appears that in 1879 he gave two mortgages thereon, one to secure a loan for $ 412 and another for $ 150, each bearing interest at twelve per cent per annum. In 1879 default was made and the mortgages were foreclosed, and later, in 1881, the decree of foreclosure was modified. In 1881 Davidson was adjudged insane and taken to the hospital for the insane, where he remained about thirteen years. In 1882 the land was sold under the judgment of foreclosure to Kos Harris, who shortly afterwards assigned his interest in the land to Geo. H. Lantis. In 1880 the land was sold for the taxes of 1879, and the tax-sale certificate was assigned to Harris on May 20, 1882, and was at once reassigned by him to Lantis, who paid the taxes on the land for the subsequent years of 1880, 1881 and 1882 and in 1883 a tax deed was issued to him. Upon the issuance of the tax deed Lantis went into possession of the land and remained in possession of it until June 3, 1903, when he was dispossessed by a special mandate issued by the supreme court. In 1894 Davidson began an action to set aside the decree of foreclosure and all of the subsequent proceedings in the foreclosure case, including the sale of the land and the sheriff's deed, and on June 13, 1896, a judgment to that effect was rendered. In the trial of that case it was found that the proceedings were absolutely null and void and hence were ineffectual to convey the title of the real estate from Davidson to Lantis. It was therefore adjudged that all of the steps in the foreclosure proceedings should be vacated and that Davidson should be put into the full and undisputed possession of the land. In that controversy no finding or adjudication was made with reference to the validity of the tax deeds nor with reference to the right of subrogation under the mortgages. Error was prosecuted from that judgment to the supreme court, where the judgment was affirmed. (Lantis v. Davidson, 60 Kan. 389, 56 P. 745.)

In 1901 the appellee, Lantis, brought an action in which he claimed a lien against the land for the taxes paid and also asked to be subrogated to the rights of the mortgagees in the foreclosure proceedings which had been set aside as invalid. This case was subsequently dismissed without prejudice for want of prosecution. While the last-named action was pending Davidson obtained a special mandate from the supreme court, upon an ex parte application, summarily ordering that he be put in immediate possession of the land. The court was not advised of the pendency of the proceedings, nor was it brought to its attention that Lantis had asked the trial court to determine the tax and other liens before surrendering possession of the land. Under that decree Davidson was put into possession. During all the time between April 8, 1899, and June 3, 1903, the land was involved in litigation between Davidson and Lantis in which Davidson was seeking for possession of the land and the recovery of rents and profits thereon, while Lantis had brought a number of injunction suits. On April 10, 1910, seven years after Davidson had gained possession of the land, he brought this action against Lantis and others to quiet his title to the land in controversy. Lantis pleaded that he had an interest in the land by virtue of a tax deed, and that he had paid taxes for a number of years which entitled him to a lien thereon. He also asked to be subrogated to the rights of the mortgagees in the foreclosure proceedings. In his reply Davidson claimed that Lantis was not entitled to any lien for taxes nor to the rights of subrogation, and he further pleaded that these questions had been adjudicated in another action and were not open to further inquiry. Upon a trial of the action in July, 1911, judgment was rendered quieting Davidson's title to the land, subject, however, to a tax lien in favor of Lantis in the sum of $ 1366.64, and which denied any relief to Lantis under his claim for subrogation to the mortgages illegally foreclosed. Davidson complains of that part of the judgment which makes the land subject to a tax lien, while Lantis, in a cross-appeal, complains that the court erred in the computation of the taxes, and he insists that he was entitled to a lien of $ 2016.02, and also that he should have been subrogated to the rights of the mortgagees and awarded a lien for $ 3667.50.

Several errors are assigned by Davidson upon rulings admitting testimony and upon other proceedings had during the trial but these are not available for the reason that no transcript of the evidence or proceedings has been procured or made a part of the record by appellant. Nothing is before us except pleadings, findings and judgment. Some statements as to the steps taken in the trial are made in Davidson's abstract and brief, but these can not be considered for the reason that Lantis has had...