Dyer v. Marriott

• Court: Kansas Supreme Court
• Writing for the Court: WEST, J.
• Citation: Dyer v. Marriott, 89 Kan. 515, 131 P. 1185 (Kan. 1913)
• Decision Date: 10 May 1913
• Parties: DYER v. MARRIOTT ET AL.

131 P. 1185

89 Kan. 515

DYER v. MARRIOTT ET AL.

Supreme Court of Kansas

May 10, 1913

Syllabus

Recitals of heirship in a recent deed are not binding against strangers to the instrument.

A defendant in a foreclosure suit, who claims title and seeks to set aside a tax deed and conveyances thereunder and oust the holder from possession, must show some title to or interest in the land before being entitled to such relief.

Appeal from District Court, Greeley County.

Action by H. G. Dyer against Ada M. Marriott and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

W. M. Glenn, of Tribune, for appellant.

D. R. Beckstrom, of Tribune, for appellees.

OPINION

WEST J.

The plaintiff sued to foreclose a mortgage on the land in controversy and recovered judgment; personal service having been made upon the mortgagor and publication service upon the present defendant, who thereafter procured the judgment to be opened up and answered that she was the owner of the title in fee simple, denying that the mortgagor had any interest in the land, except that given by a tax deed which she alleged was void, and prayed that the tax deed be set aside and that all parties claiming thereunder be barred and enjoined from setting up any title to the land. A trial resulted in a judgment in her favor, except that the plaintiff was given a first lien for taxes. The plaintiff appeals and asserts that the defendant was not entitled to judgment because she failed to prove title in herself.

She offered in evidence a deed to the heirs of Cornelius C. Barber, and then a deed from Jennie C. Barber, which deed recited that Jennie C. Barber was the duly appointed and qualified executor of the last will of Cornelius C. Barber, and that by the terms thereof she was named as executor and residuary legatee as heir at law of Cornelius C. Barber. Plaintiff contends that there was no evidence to show that Jennie C. Barber held the title which she warranted to the defendant’s grantor; that the mere recitals of the deed were not proof, and, there being no other, the defendant failed. The defendant contends that she did not come into court for the purpose of attacking the tax deed, but that she was forced into court and simply defended her own title. That the court did not grant her any relief but simply restored to her what she had before the tax deed was issued, subject to a lien for the taxes, and that it is only in case of a direct attack upon a tax deed that the attacking party must have an interest in the property. She also argues that there is nothing in the record to show that the plaintiff alleged either title or possession in herself as against the defendant, or that she offered any evidence in support of her claim for affirmative relief. The plaintiff asserts in her reply brief that the defendant in the third defense of her answer alleged possession in the plaintiff and asked judgment for rent.

Having sent for the transcript and obtained instead a copy of the answer, it may be as well to give a short history of the case as gathered from the record. In September, 1907, a tax deed was issued to W. M. Glenn. Glenn conveyed to Gerard, who gave a mortgage back, which mortgage was assigned by Glenn to the plaintiff Dyer. In October, 1910, this mortgage was foreclosed, and in January, 1911, the appellant filed her motion to be let in to defend; and, there being no objection, she filed her answer alleging that she was a resident of Ohio; that Gerard, Glenn, and Dyer had all the time since September 12, 1907, excluded her from the possession and control of the land, and had ever since claimed ownership and right of possession, although in fact having no such right; that the whole proceeding was based upon the tax deed setting forth many reasons why this instrument was void. In another part of the pleading she again alleged that the parties named had retained possession of the property and excluded her from the rents and profits thereof, and that, as the result of such adverse possession held by such parties, she had been damaged in the sum of $2 an acre since the issuance and execution of the tax deed in the total sum of about $80, which sum she alleged constituted a legal set-off against any claim for taxes. She prayed for possession, that the tax deed, the conveyance by Glenn, the mortgage to him, and the assignment by him be set aside and held for naught, and that Gerard and Dyer and Glenn and every one claiming under them be forever barred and enjoined from asserting or setting up any title, claim, or interest in or to the land, and that her title be decreed valid and perfect, and that she be adjudged to have a legal set-off in the sum of $80, together with an additional sum of $2 a month from the date of filing the suit until final determination, against any sum found due for taxes, and that she recover her costs and for such other and further relief as to the court might seem just and proper.

The plaintiff appears to assume that, having been for several years in possession under a tax deed, the latter could not be attacked by the defendant without actually showing some title to the land. The defendant seems to contend that, having been attacked by the holder of a void tax deed who had made her a party to the foreclosure alleging that she claimed some interest, she was not required to show much of a title, if any, in order to resist the groundless attack of the plaintiff. The pleading already quoted from places the defendant in the attitude of having admitted possession for a number of years in her adversary under the tax deed in question; and having prayed that such possession be restored to her, together with damages for its detention, as well as a decree quieting title in her or at least barring the other parties, she was under obligation to show at least some title to the land.

In Ordway v. Cowles, 45 Kan. 447, 25 P. 862, it was held that the plaintiffs in a foreclosure suit, who attacked certain tax deeds set up by an interpleader and asked that the title be quieted against them, should show some title in the mortgagor. There in a suit against the mortgagor Ordway was made a party upon his own motion and alleged ownership and possession under certain tax deeds duly executed, to which the plaintiffs...