Delashmutt v. Parrent

• Decision Date: 09 June 1888
• Parties: JOHN Z. DELASHMUTT v. NORA E. PARRENT et al
• Court: Kansas Supreme Court

18 P. 712

39 Kan. 548

JOHN Z. DELASHMUTT v. NORA E. PARRENT et al

Supreme Court of Kansas

June 9, 1888

Error from Greenwood District Court.

JOHN Z DELASHMUTT brought an action in the district court of Greenwood county against the defendants in error, Nora E Parrent and three others, and in the first count of his petition he alleged that he had a one-half interest in the southeast quarter of section 10, township 22, range 12, in Greenwood county, which he had acquired by inheritance from his mother, and that on May 8, 1871, Aaron Parrent obtained a decree quieting title in himself to the land in controversy that he was then a minor, and the disability of infancy was not removed until January 17, 1884, when he became 21 years of age; that he never knew of the pendency of the suit in which the judgment was rendered until February 1, 1885; and that he had a good and valid defense to the action. He stated that the proceedings in the action did not disclose his infancy; that no guardian ad litem was appointed to defend him as the statute requires; that he was described in the action as an unknown heir of Delashmutt; that no service was obtained on him except by publication, and no one defended for him. He further stated that Isora Ellis is the daughter and heir-at-law of Olive M. Parrent, the deceased widow of Aaron Parrent, deceased, and that Bird Ellis is her husband that Nora E. Parrent is a minor over fourteen years of age, and a daughter of Aaron Parrent, deceased; and that Alexander Boles is guardian of the person and estate of Nora E. Parrent. The plaintiff asked that the judgment might be declared vacated, set aside, and held for naught.

In the second count the plaintiff alleged that Aaron Parrent fraudulently obtained from the county a tax deed purporting to convey the lands in controversy to himself; that in 1870, and while plaintiff was the owner in common with Aaron Parrent in said lands, Parrent permitted the taxes to become delinquent, and at the tax sale in May, 1870, he fraudulently pretended to act as a competitive bidder for the same, whereas Parrent was an owner of an undivided one-half of said lands and had the benefit of all the rents and profits belonging to the plaintiff with which to pay the taxes, and which were sufficient for that purpose, and his action in purchasing and acquiring a tax title to the land was an attempt to defeat and destroy the plaintiff's interest and title in and to the same. He further stated that he did not discover the fraud until within two years before the commencement of the action.

The third count contains the following allegations:

"The plaintiff has a legal title to and is seized in fee simple as the son and heir at law of Sarah A. Delashmutt, deceased, and as such is entitled to the immediate possession of the undivided one-half part of said real estate in the first cause of action described, the southeast quarter of section 10, township 22, range 12 east, in Greenwood county, Kansas. The defendants, Isora Ellis and Nora E. Parrent, are tenants in common with plaintiff in said premises in the following proportions: Isora Ellis the undivided one-eighth part of said real estate, Nora E. Parrent the undivided three-eighths part of said premises. The plaintiff desires to have his interest set off to him in severalty, and prays that partition may be made and he have possession thereof; or, if that cannot be done without manifest injury, that such proceedings may be had as are authorized by law for the said plaintiff to recover his said interest in and to said premises, to himself in severalty. Since the 7th day of March, 1880, the defendants have been in the exclusive possession and enjoyment of said above-described lands. Wherefore, plaintiff further asks an account of the rents and profits of said estate, and for such other relief as is proper."

The answer of the defendants was a general denial, and that the action was barred by the statute of limitations, it being alleged that more than one year had elapsed prior to the commencement of the action since the plaintiff had arrived at the age of twenty-one years. They also answer that they, and those under whom they claim, have been in the actual, open, notorious and exclusive possession of the land under a warranty deed from the father of the plaintiff, and they claim entire ownership adverse to the plaintiff for more than fifteen years next preceding the commencement of the action, and that during their possession and occupancy they have made valuable and lasting improvements upon the land, of the value of $ 4,000, and during all of the time have paid taxes on the land, amounting in all, with interest thereon, to about $ 1,000.

A trial was had on the 14th day of November, 1886, before the court without a jury, and the following findings of fact and conclusions of law were made:

"FINDINGS OF FACT.

"The land in controversy was duly patented by the government to John J. Delashmutt, father of the plaintiff, on March 21, 1855. On September 7, 1859, said John J. Delashmutt, by warranty deed, his wife Sarah A. Delashmutt joining with him therein, conveyed the land to one Zadock Delashmutt. On November 16, 1859, said Zadock Delashmutt by warranty deed duly conveyed the land to said Sarah A. Delashmutt, and she remained the owner thereof until her death. On November 10, 1863, said Sarah A. Delashmutt died intestate, leaving surviving her as her only heirs said John J. Delashmutt her husband, and the following-named children: William D. Delashmutt, Mary V. Delashmutt, and John Z. Delashmutt, the plaintiff herein. There were in all six children born to said John J. and Sarah A. Delashmutt, three of whom, however, had died prior to the death of Sarah A. Delashmutt as aforesaid; their names were Van B. Delashmutt, Martha Delashmutt, and an infant not named. After the death of said Sarah A. Delashmutt, and prior to the commencement of this suit, said William D. Delashmutt died, leaving his father, said John J. Delashmutt, as his only heir at law. At the death of his mother, Sarah A. Delashmutt, the plaintiff was an infant. He became and was 21 years of age on January 17, 1884. This suit was commenced on March 6, 1885, more than one year and less than two years after plaintiff's disability of infancy was removed by his arrival at the age of 21 years. After the death of Sarah A. Delashmutt, and prior to February 22, 1868, said John J. Delashmutt married a second wife, Delcenia E. On February 22, 1868, said John J. Delashmutt, his said second wife, Delcenia E., joining with him therein, conveyed the land in controversy by warranty deed to one David Niday, who at that time took the actual, open and exclusive possession of said land under said deed, and so remained in possession thereof until March 27, 1869, at which time said David Niday, his wife joining with him therein, conveyed said land by warranty deed to one Aaron Parrent, the father of defendant Nora E. Parrent, and at which said time said Aaron Parrent took the actual, open and exclusive possession of said land under said deed, and so remained in possession thereof until his death, which was in the year 1881; since which time the defendants, as the heirs at law of said Aaron Parrent, have so been in the possession of said real estate. The said deed from John J. Delashmutt to David Niday was duly recorded on February 22, 1868, and the said deed from David Niday to Aaron Parrent was duly recorded on April 7, 1869. On May 3, 1870, said Aaron Parrent bid off at tax sale, for the delinquent taxes of 1869, the same land, he having failed and omitted to pay the taxes on said land for that year, and on May 3, 1873, a tax deed was issued to him based on said tax sale of 1870, a copy of which tax deed is hereto attached and made a part hereof. Said tax deed was duly recorded on said May 3, 1873. At the time said Aaron Parrent so bid off said land at tax sale, he had in his possession of the rents and profits of said land more than was necessary to redeem this same from said delinquent taxes and pay off the same. On May 8, 1871, said Aaron Parrent, by the consideration of this district court, obtained the decree and judgment, a copy of which is set out in the petition herein. Plaintiff never had actual knowledge of the pendency of said suit in which said decree was obtained until the 1st day of February, 1885. The proceedings in said action do not disclose the infancy of plaintiff. No guardian ad litem for the suit was appointed for plaintiff in said suit. The only service obtained on the plaintiff in that action was by publication; copies of the affidavit for publication, and order of court, and the publication notice, are attached hereto and made a part hereof. Plaintiff had no actual notice of the said sale for taxes and the issuance of the tax deed to Aaron Parrent, until the 1st day of February, 1885. The defendants, said Aaron Parrent and David Niday, have paid the taxes on said lands every year since 1868 to the present, except the year 1869, for the delinquent taxes of which it was sold to Aaron Parrent as aforesaid."

"CONCLUSIONS OF LAW.

"1. Plaintiff's right to maintain this action is barred by the statute of limitations.

"2. Defendants ought to recover costs herein."

The court gave judgment against the plaintiff in accordance with its conclusions of law, and he has removed the case to this court for review.

Judgment reversed and cause remanded for a new trial.

W. S. Martin, for plaintiff in error.

Kellogg & Sedgwick, for defendants in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

The principal purpose of this action was to recover a portion of the land in controversy, or the plaintiff's interest in the same. That a share of the land...