Douglass v. Dickson

• Decision Date: 03 January 1884
• Court: Kansas Supreme Court
• Parties: JOHN C. DOUGLASS, as Guardian, &c., v. PETER DICKSON

1 P. 541

31 Kan. 310

JOHN C. DOUGLASS, as Guardian, &c., v. PETER DICKSON

Supreme Court of Kansas

January 3, 1884

Error from Jackson District Court.

ACTION brought by Douglass, as guardian of the estate of Hattie R Douglass, against Dickson, to recover damages for rock quarried and carried away from a certain tract of land claimed to belong to plaintiff. Trial by a jury at the January Term, 1884, but at the close of the evidence the court instructed the jury to find for the defendant. Judgment for costs against the plaintiff, who brings the case here. The opinion states the facts.

Judgment reversed and case remanded for new trial.

John C Douglass, for plaintiff in error.

Hayden & Hayden, for defendant in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

This was an action brought by plaintiff in error, plaintiff below, to recover of defendant in error for certain rock quarried and carried away from a tract of land claimed to belong to the plaintiff. The defendant, not questioning the fact of the quarrying and removing of the rock, claimed the right to do so as owner. The case was tried by a jury, but at the close of the testimony the court instructed the jury to find for the defendant. The plaintiff's title is founded upon a tax deed issued to John C. Douglass on January 30, 1872, based upon a sale of May 7, 1863, for the taxes of 1862. Defendant claims title by virtue of a tax deed for the taxes of 1873, executed on June 29, 1877, to one Chas. L. Flint, and a quitclaim deed from said Flint of date March 30, 1880; and also by virtue of a tax-sale certificate issued to himself on September 2, 1879, at a sale for the delinquent taxes of 1878. As there is one ruling of the district court which we think is erroneous and sufficient to compel a reversal of the judgment, we shall not attempt to notice all of the questions presented and discussed by counsel in their behalf, but shall content ourselves with reference to the one upon which a reversal is ordered, and such other matters as may become material in the further trial of the case.

First, we remark that the tax deed to plaintiff's grantor is prima facie valid. (Morrill v. Douglass, 14 Kan. 293.)

Second, even though the deed be shown to be in fact invalid, yet where possession is taken and held under it, either personally or by tenant, such possession, being under color and claim of title, is sufficient evidence of title to sustain a recovery of damages as against a mere trespasser. It is clear from the testimony that plaintiff was in possession by a tenant for a year or so, claiming to own it by virtue of this tax deed. This was unquestionably evidence tending to show title.

Third, a tax deed passes the title, and this notwithstanding the owner of the land may be a minor, and therefore entitled to redeem at any time within one year after attaining majority. This, we think, is the clear import of our statutes. It will be borne in mind that a minor has no inherent right of redemption, and unless the statutes make express provisions for disability, such as those of infancy, etc., every right of redemption will cease at the expiration of the same statutory time. (Cooley on Taxation, p. 364, and cases cited in note.) If the infant's right of redemption can be cut off at the end of three years equally with the adult's, then the effect of the tax deed can be prescribed by the legislature in one case as well as in the other. Now the form of a tax deed is that of a present conveyance of the title. (Comp. Laws 1879, p. 966, ch. 170, § 138.) It is true the deed closes with this proviso: "Subject, however, to all rights of redemption provided by law," but while it is subject to the right to redeem, it is clearly in terms a present conveyance of the title.

Further, the section prior to the language of the former, states that the deed "shall vest in the grantee an absolute estate in fee simple," so that we have not merely a deed purporting to convey a present estate, but the statute declaring that it shall vest an absolute estate. Still further, there is no provision for any subsequent conveyance, so that if the deed does not pass the title, it never passes by virtue of any instrument alone. That a title once transferred and vested in a grantee may be defeated by matters arising subsequent to the deed, is no anomaly. A title is often defeated by breach of a condition subsequent, and yet the possibility of such defeat does not prevent a present transfer of title.

But we need not rest on these matters alone. Turning to §§ 132, 133, and 134 of said chapter 107, we find provisions for redemption after tax deed. Section 132 prescribes the amount which shall be paid, which includes the cost of the tax deed and the record of the same, and further provides that from the time of making the redemption the deed given upon the sale shall be void as against such minor, etc. Section 134 provides that the moneys received by the county treasurer for such redemption shall be paid to the one holding the tax title, on his delivery to the treasurer for the use of the person redeeming a quitclaim deed of all the title acquired under the tax sale. These provisions clearly recognize the fact that title passes by the deed, notwithstanding the owner is at the time a minor. We think, therefore, that this objection to the force and effect of the tax deed under which defendant claims, upon which counsel for plaintiff in error places so much stress in his argument, cannot be sustained.

Fourth, we remark that the tax deed under which defendant claims title is prima facie valid. The objections made to the form are not well taken. After the plaintiff had rested his case, defendant as a part of his evidence introduced this tax deed. Then on rebuttal plaintiff sought to introduce evidence outside the deed to impeach its validity. In respect to this the record reads as follows:

"Here defendant rested his case, and plaintiff offered in rebuttal to prove by Wm. A. Allen that he was treasurer of said Jackson county in 1874, and down to 1878, and made the sale for the taxes of 1873, and that he did not post the notice for said tax sale in any place outside of his office; and that he did not post the redemption notice, that is, the notice when deeds would be due and given on said sale for 1873 tax unless sooner redeemed, in any place outside of his...