Douglass v. Lowell

• Decision Date: 08 March 1902
• Docket Number: 12,026
• Parties: HATTIE R. DOUGLASS v. JAMES H. LOWELL et al
• Court: Kansas Supreme Court

67 P. 1106

64 Kan. 533

HATTIE R. DOUGLASS v. JAMES H. LOWELL et al

No. 12,026

Supreme Court of Kansas

March 8, 1902

Decided January, 1902.

Error from Shawnee district court; Z. T. HAZEN, judge.

Action in denying plaintiff recovery for taxes paid affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

TITLE AND OWNERSHIP -- Tax Deed -- Original not a Dependent Title. The title to property subject to taxation conveyed by a tax deed is an original, not a dependent title, and is unaffected by any prior grant, lien, charge assessment or encumbrance thereon. The effect of such deed is to extinguish and destroy all prior grants, liens, charges, assessments and encumbrances upon the property conveyed in existence at the time of levying the taxes upon which the tax deed rests for its support, including all prior tax deeds and liens claimed for taxes paid on the property thereby conveyed.

John C. Douglass, and Vance & Campbell, for plaintiff in error.

Hayden & Hayden, and James H. Lowell, for defendants in error.

POLLOCK, J. DOSTER, C. J., JOHNSTON, ELLIS, JJ., concurring.

OPINION

POLLOCK, J.:

This was an application by plaintiff, holding under a tax deed adjudged void, for the ascertainment of the amount of taxes paid, a decree establishing a lien upon the land against which the taxes were assessed, and an order of sale to enforce payment. The land in controversy was sold for the taxes of the year 1862 to the county treasurer of Jackson county. The certificate of sale was assigned to one John C. Douglass, who paid and caused to be indorsed upon the certificate of purchase the subsequent accruing taxes for the years 1863 to 1867, both inclusive. On September 8, 1868, a tax deed was executed to Douglass and duly filed and recorded.

Douglass also paid the taxes on the land thereafter until the year 1874, and in 1874 he and his wife conveyed the property to plaintiff in error, then a minor of the age of six years. The taxes on the property for the year 1874 being in default, at a tax sale held on the 7th day of September, 1875, the property was sold to one Myers, who paid the subsequent taxes until the sale ripened into a tax deed, on October 12, 1878. The taxes again being in default for the year 1882, at a tax sale held on the 7th day of September, 1883, the property was sold to one Linscott, which sale ripened into a tax deed in 1886. By mesne conveyances all the title of Myers and Linscott descended to defendant in error, George L. Reid, who is in possession, claiming title thereunder.

An action in ejectment was commenced June 10, 1887, by plaintiff in error. The first trial was had upon the issues joined November 21, 1888. Judgment was entered for defendants, which was set aside and a new trial granted under the statute. On March 22, 1889, at a subsequent term of the court, the action was by plaintiff dismissed.

This action was commenced March 5, 1900. At a trial had, the tax deed under which plaintiff claimed and the conveyance to her based thereon were declared void. This judgment was affirmed here. (Douglass v. Lowell, 60 Kan. 239, 56 P. 13.) Thereafter, plaintiff, by motion, demanded an ascertainment of the amount paid as taxes, judgment therefor, and a lien upon the land, under the provisions of section 7681 of the General Statutes of 1901. This relief was denied and plaintiff brings error. Said statute provides as follows:

"If the holder of a tax deed or any one claiming under him by virtue of such tax deed be defeated in an action by or against him for the recovery of the land sold, the successful claimant shall be adjudged to pay to the holder of the tax deed, or the party claiming under him by virtue of such deed, before such claimant shall be let into possession, the full amount of all taxes paid on such lands, with all interest and costs as allowed by law up to the date of said tax deed, including the cost of such deed and the recording of the same, with interest on such amount at the rate of twelve per cent. per annum, and the further amount of taxes after the date of such deed, and interest thereon at the rate of twelve per cent. per annum."

It is the contention of counsel for plaintiff in error, that as the tax deed under which she claimed was declared void in this action, the trial court committed error in not awarding her a judgment for the amount of taxes and costs paid in acquiring the tax deed and the taxes paid subsequently thereto, and in refusing her a lien upon the land for the same.

The principal ground of contention made by counsel for defendants in error is that plaintiff having brought a prior action in ejectment, and after judgment against her had been set aside under the statute and a new trial awarded, had dismissed her action, the dismissal of that action precluded plaintiff from maintaining this present action based on the same claim of title made in the prior action; and that, as plaintiff was precluded by such dismissal from maintaining an action for the recovery of the property by the disposition made of the prior case, of necessity the incidental right to recover taxes paid merged in the tax deed, and that taxes thereafter paid on the land were also precluded. In Deming v. Douglass, 60 Kan. 738, 57 P. 954, this court held:

"After a first trial in ejectment, the judgment was vacated on demand of defendant by notice on the journal and the cause continued until the next term of court. The plaintiff...