Harris v. Curran

• Court: Kansas Supreme Court
• Writing for the Court: VALENTINE, J.:
• Citation: Harris v. Curran, 32 Kan. 580, 4 P. 1044 (Kan. 1884)
• Decision Date: 07 November 1884
• Parties: H. H. HARRIS v. THEODORE CURRAN, et al.--H. H. HARRIS v. S. B. EDWARDS, et al

4 P. 1044

32 Kan. 580

H. H. HARRIS v. THEODORE CURRAN, et al.--H. H. HARRIS v. S. B. EDWARDS, et al

Supreme Court of Kansas

November 7, 1884

Error from Shawnee District Court.

TWO ACTIONS, brought by Harris against Curran and others, to recover the possession of certain lots in the city of Topeka. February 19, 1884, the second trial was had in each case, and in each a judgment was rendered for the defendants, and against the plaintiff, for title and costs. Harris brings the cases to this court. The opinion states the facts.

Judgment reversed and cause remanded.

Douthitt Hazen & Isenhart, and H. H. Harris, for plaintiff in error.

Guthrie & Bergen, and Thos. H. Bain, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

On November 24, 1882, H. H. Harris commenced two actions in the district court of Shawnee county: one against Theodore Curran, C. D. Savage and Stella Savage for the recovery of lots numbered 135, 137, and 139, on Tenth avenue west, in the city of Topeka, and the other against S. B. Edwards and Theodore Curran for the recovery of lots numbered 141 and 143, on the same avenue. The two cases are precisely alike in nearly all their facts, and so near alike with regard to the questions of law involved therein that one opinion will answer for both cases. Each case was tried by the court without a jury, and special findings of fact and law were made by the court. From these findings, the following facts appear:

In 1860, the lots in controversy belonged to Harvey G. Young, he being the original patentee. They were subject to taxation at the time, and have at all times since been subject to taxation. Afterward, Young died, and on December 6, 1866, Erastus Tefft, his administrator, and Ruth J. Young, his widow, conveyed the lots to John Guthrie, and the deeds were recorded on January 12, 1867. On May 6, 1870, the lots were sold for the delinquent taxes of 1869, to J. F. Carter, and on May 25, 1870, Carter assigned the tax-sale certificate to Patrick Kelly. On May 7, 1873, a tax deed was executed by the county clerk to Kelly for said lots for the taxes of 1869, as well as for the taxes of 1870, 1871, and 1872, paid by the tax-sale purchaser, and such tax deed was recorded on May 9, 1873. On May 17, 1873, Kelly conveyed said lots to Henry S. Chapin, and the deed was recorded on the same day. The taxes of 1873 were not paid, and on May 5, 1874, the lots were sold to B. J. Ricker for such taxes. On December 31, 1874, Chapin died, leaving Mary Chapin, his widow, as his sole surviving heir. Up to this time both Chapin and his wife had resided in Kansas and been personally present therein, except for about twenty days. On March 1, 1879, Ricker assigned his tax-sale certificate to William P. Thompson, and on March 22, 1879, the county clerk executed a tax deed to Thompson for the lots for the taxes for the year 1873, as well as for the years 1874, 1875, 1876, 1877, and 1878, paid by the tax purchaser, and the tax deed was recorded on the same day. In April, 1879, Thompson took possession of the property; and he and his grantees have retained such possession ever since. These propositions contained in this last sentence are disputed, but it is admitted that Thompson and his grantees have been personally present in Kansas ever since April, 1879. Prior to this time, the lots had been vacant and unoccupied. On December 30, 1880, Thompson conveyed said lots to Mary C. H. Guthrie, and the deed was recorded on the same day. On December 30, 1881, John Guthrie and Mary C. H. Guthrie, his wife, conveyed said lots to Theodore Curran, and the deed was recorded on September 5, 1881. On November 11, 1881, Theodore Curran executed a bond for a deed for lots 135 and 137 to Stella Savage, which bond was recorded in December, 1881; and executed a bond for a deed for lots 141 and 143 to S. B. Edwards, and the bond was duly recorded. On January 13, 1882, C. D. Savage, the husband of Stella Savage, took actual possession of the lots sold to Stella Savage. On November 15, 1882, S. B. Edwards took actual possession of the lots sold to him. On November 14, 1882, Mary Chapin, the sole surviving heir of Henry S. Chapin, conveyed all the foregoing lots to H. H. Harris, the plaintiff in this action, and the deed was recorded on the next day. During all this time Mary Chapin resided in Kansas and was personally present therein, except for about three months. On November 24, 1882, these actions were commenced. On February 19, 1884, a second trial was had in each case, and a judgment was rendered in each case in favor of the defendants and against the plaintiff for title and costs; and the plaintiff, as plaintiff in error, now brings the cases to this court. In this court the plaintiff claims that there are at most only two legal propositions to be decided, as follows:

"1st. Has a party holding a tax deed, regular on its face, and being of record more than five years, while the lots are vacant and unoccupied, five years or only two years from the recording of a subsequent tax deed, in which to bring suit against the holders of the last tax deed?

"2d. All the evidence being preserved in the case-made, does it support the twenty-first finding, that the defendants were in the possession of the property in controversy from April, 1879, up to the present time -- the plaintiff claiming that no possession was taken of the property until January, 1882?"

The defendants, however, claim that there are still other questions to be decided. They claim that their tax deed is good and entirely sufficient, without reference to any statute of limitations and without reference to the possession of the property by the defendants or their grantors. This is an important question; for if the defendants' tax deed was perfectly good when executed, there is no necessity for any consideration of any of the other questions which either party may suppose to be possibly involved in this controversy. "The tax deed last executed for the taxes of the latest year will be paramount to the tax deed previously executed for the taxes of some previous year." (Board of Regents v. Linscott, 30 Kan. 240, 263, 1 P. 81; McFadden v. Goff, ante, p. 415.)

The defendants also claim that the plaintiff's tax deed is barred by some statute of limitations; and also that it is void on its face for the reasons: 1. Because the lots are described as "on Tenth avenue west, city of Topeka," instead of on Tenth avenue west, in the city of Topeka. 2. Because the deed states that the sale was made on May 6, 1870, "at the sale begun and publicly held on the first Tuesday of May, 1870," when in fact May 6, 1870 was Friday, and the first Tuesday of May, 1870, was the third day of the month. They also claim that the court below erred as against them, for the reason that it refused to permit them to introduce evidence showing that the taxes upon which the plaintiff's tax deed is founded were illegally assessed. We think that the lots were sufficiently described as being in the city of Topeka; that the sale made on May 6, 1870, was obviously at a sale begun and publicly held on the first Tuesday of May, 1870, and continued to May 6, 1870; (in this connection see Patterson v. Carruth, 13 Kan. 494; Morrill v. Douglass, 17 id. 293;) and that the irregularities in the assessment of the taxes cannot be considered after a statute of limitations has completely and finally run in favor of the tax deed. The plaintiff's grantors had a valid tax deed, which vested in them the absolute title to the property in fee simple; (Gen. Stat. of 1868, ch. 107, § 112; Board of Regents v. Linscott, 30 Kan. 240, 265, 1 P. 81;) and as no one was in the actual possession of the property, they were also vested with the constructive possession thereof; for the constructive possession of property always follows the legal title, when the actual possession is not in any other person. Indeed, up to March 22, 1879, when the defendants' tax deed was executed, the plaintiff's grantors had everything connected with the title to the lots and were entitled to everything connected therewith. No one was disputing their title, or interfering with any of their rights; and consequently they had no cause of action against anyone for any statute of limitations to operate upon. In other words, they had no cause of action to be barred by any statute of limitations. Within the decision of the case of Case v. Frazier, 30 Kan. 343, 2 P. 519, the two-years statute of limitations contained in § 16 of the civil code does not commence to run against the holder of the tax deed until the original owner...