Gibson v. Fields

• Decision Date: 12 December 1908
• Docket Number: 15,532
• Citation: 79 Kan. 38,98 P. 1112
• Parties: CHARLES E. GIBSON v. JOHN R. FIELDS
• Court: Kansas Supreme Court

98 P. 1112

79 Kan. 38

CHARLES E. GIBSON v. JOHN R. FIELDS

No. 15,532

Supreme Court of Kansas

December 12, 1908

Decided July, 1908.

Error from Rawlins district court; ABEL C. T. GEIGER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PERMANENT IMPROVEMENTS--Cultivation of Land. While it is recognized as the general rule that the plowing and cultivating of land theretofore under cultivation does not constitute a permanent improvement, the breaking and reducing of wild lands to cultivation does constitute such improvement.

2. EJECTMENT--Rent--Improvements--Counter-claims. Upon the adjudication of the counter-claims, where one in possession of land under a tax deed has been defeated by the holder of the legal title and claims compensation for permanent improvements and taxes paid, reasonable rent of the premises without the improvements should be offset, but not rent as increased by the improvements.

3. EJECTMENT--Rent. In such a case the rent is to be determined from the cash price usually paid for the use of like premises during the same time and in the same locality.

S. N Hawkes, for plaintiff in error.

Dempster Scott, for defendant in error.

OPINION

SMITH, J.:

This is an action in ejectment, brought in the district court of Rawlins county to recover the possession of 160 acres of land in that county, and for the rents and profits of the land. The plaintiff proved a chain of title from the government. The defendant claimed under a tax deed which was intended to convey this and several other tracts of land. It was held void as to this land, for defective description. Of this no complaint is made. The court allowed the defendant for taxes and interest and for improvements, and offset what it found to be the value of the rent of the land. The plaintiff prosecutes this proceeding in error.

The only questions presented here arise out of the adjustment of the rights of the plaintiff for rent and the claims of the defendant for taxes and improvements.

The deed in question was evidently intended to convey a large number of tracts of land, which were properly described in the recitals relating to the sale of the land, but in the granting clause the only description of the property conveyed was "the real property last hereinbefore described." The court properly held that this description was too indefinite to constitute a good conveyance of the land in question, as it was not the last tract before described in the deed.

The plaintiff, however, contends that because the deed was not a sufficient deed it was no deed at all of the land in question, and consequently defendant's lien for taxes expired in four years after the date of the sale, under the provisions of section 7714 of the General Statutes of 1901 and, further, as this real estate was not deeded for delinquent taxes, the provisions of section 7717 of the General Statutes of 1901 do not apply. This is untenable. The argument is that if a tax deed is not a good and sufficient deed it is no deed at all. On the other hand, if it were a good and sufficient deed, the plaintiff's title would be...