Harris v. Defenbaugh

• Decision Date: 11 June 1910
• Docket Number: 16,604. 16,605
• Parties: J. M. HARRIS, Appellant, v. HARVEY DEFENBAUGH, Appellee. J. M. HARRIS, Appellant, v. HARVEY DEFENBAUGH, Appellee
• Court: Kansas Supreme Court

109 P. 681

82 Kan. 765

J. M. HARRIS, Appellant, v. HARVEY DEFENBAUGH, Appellee.

J. M. HARRIS, Appellant, v. HARVEY DEFENBAUGH, Appellee

No. 16,604. No. 16,605

Supreme Court of Kansas

June 11, 1910

Decided January, 1910.

Appeal from Kearny district court; WILLIAM H. THOMPSON, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. PUBLICATION SERVICE--Defendant Not Alive. In an action quieting title to lands a judgment obtained on service by publication only is void where the action is not commenced until after the person named as defendant is dead.

2. PUBLICATION SERVICE--Unknown Heirs--Order Authorizing Publication Service. Where an attempt is made to obtain service by publication upon the unknown heirs or devisees of a defendant, under section 78 of the code (Gen. Stat. 1901 § 4512), without an order of the court authorizing the same, the service is void.

3. WILLS--Nonresident--Record--Notice--Purchaser in Good Faith--Tax-deed Holder. A tax-deed holder is not within the protection of section 9827 of the General Statutes of 1909, which provides that the title of a purchaser in good faith, without knowledge of a will, derived from the heirs of any person who is not a resident here at the time of his death shall not be defeated by the production of the will unless the same shall be offered for record within two years of the final probate. In order to bring himself within its protection he must be a purchaser in good faith and have acquired his title from the testator or the heirs or devisees of the testator.

4. LACHES--Quieting Title--Plaintiff in Possession. Laches is ordinarily no defense in an action to quiet title or remove a cloud where the plaintiff is in possession.

5. LACHES--Equitable Estoppel--Mere Lapse of Time Insufficient. The doctrine of laches is founded to some extent upon the principles of equitable estoppel. Where, by reason of acquiescence or long lapse of time, there is a possible loss of testimony or increased difficulty of defense, the doctrine may be applied in the discretion of the court; but laches does not consist in mere lapse of time.

6. LACHES--Defendant without Equitable Rights. The doctrine of laches is never invoked in aid of a party where the equities are not in his favor.

7. LACHES--Rights of Tax-deed Holder Not Equitable, but Statutory. There are no equities in favor of a tax-deed holder as against the owner of land. The rights of a tax-title holder are purely statutory.

8. LACHES--Action to Annul Tax Deed--Holder Not in Adverse Possession. Laches can not be imputed to the owner of land for failure to begin an action to annul a tax deed where the tax-title holder is not in adverse possession.

9. LACHES--Quieting Title against Holder of Defective Tax Deed Less than Five Years Old. Where the holder of the legal title to land brings an action to quiet his title, a defendant whose claim rests upon a defective tax deed less than five years old can not avail himself of the defense of laches on the ground that the plaintiff failed to pay the taxes, or to file his title papers for record or assert his ownership of the land by taking actual possession until after the defendant acquired his rights.

J. M. Harris, for the appellant.

Arthur H. Shay, for the appellee.

OPINION

PORTER, J.:

The plaintiff brought separate actions to quiet title to two quarter sections of land in Kearny county. The court found generally for the defendant, and the plaintiff appeals. The cases, being alike on the facts, were consolidated in this court and submitted together.

There is no controversy as to the facts. Mansfield Young and Ruth E. Harris entered upon the land in 1892 and proved up on the same. In that year patents were issued, one to Mansfield Young and the other to Ruth E. Harris. In 1896 they sold the improvements, leaving the land vacant and unoccupied, and moved to Illinois, where they were married. Shortly thereafter Mansfield Young died leaving a will, wherein he devised all his property to his wife. In 1898 the wife died leaving a will, wherein all her property was devised to her sister and seven brothers, one of whom is the plaintiff, who afterward purchased the interests of the other devisees. The wills of Mansfield Young and Ruth E. Young were duly probated in Will county, Illinois, and on the 16th day of October, 1907, certified copies thereof were duly recorded in Kearny county, Kansas. The land at that time was still vacant and unoccupied.

The plaintiff, after filing his deeds and copies of the wills for record, paid the taxes on the land for 1907, and, on October 22, 1907, went upon the land and rented the same by written lease to one Morgan, a stock raiser, who has since used the land for grazing purposes. The plaintiff immediately thereafter brought these actions to quiet his title.

The defendant claims title through a warranty deed from one J. H. Robinson, who held a conveyance from F. C. Puckett, a tax-deed holder. Puckett obtained his tax deed in 1903, and shortly thereafter commenced a suit to quiet his title, making Mansfield Young and his unknown heirs and Mrs. Mansfield Young and Ruth E. Harris parties defendant. At the time he brought his action both Mansfield Young and Ruth E. Young were dead. He attempted to obtain service by publication, and, on the 23d day of June, 1903, a decree was rendered quieting his title. He afterward conveyed to Robinson, and Robinson conveyed to the defendant, Defenbaugh. The defendant in his answer set up the Puckett tax deed and the Puckett judgment. At the time these actions were brought the tax deed was less than five years old, and was defective on its face, for the reason that it purported to convey a large number of disconnected tracts of land and failed to state the amount for which each separate tract was conveyed. (Gibson v. Kueffer, 69 Kan. 534, 77 P. 282; Worden v. Cole, 74 Kan. 226, 86 P. 464; Smith v. Land Co., ante, p. 539.)

The judgment quieting title in Puckett was void for want of jurisdiction. Mansfield Young and Ruth E. Young were both dead. No effort was made to obtain service upon the unknown heirs and devisees of the wife, but an attempt was made to obtain service upon the unknown heirs and devisees of Mansfield Young. The attempted service, however, was void for the reason that no order was made authorizing publication upon such unknown heirs or devisees, as required by section 78 of the code then in force. (Gen. Stat. 1901, § 4512.)

In his answer the defendant also claimed that the plaintiff could not recover because copies of the wills of Mansfield Young and Ruth E. Young were not filed for record in Kearny county until after the defendant had acquired his title. This defense is based upon section 9827 of the General Statutes of 1909 (Gen. Stat. 1868, ch. 117, § 50), which provides that the title of a purchaser in good faith, without knowledge of a will, derived from the heirs of any person not a resident here at the time of his or her death shall not be defeated by the production of the will unless the same shall be offered for record in this state within two years of the final probate. This statute, however, can not avail the defendant. In order to bring himself within its protection he must be a purchaser in good faith (Markley v. Kramer, 66 Kan. 664, 666, 72 P. 221), and must have acquired his title from the heirs of the testator. He does not claim in privity with the makers of the wills, but claims title by being a purchaser in good faith, relying upon the Puckett judgment and tax deed.

The main contention of the defendant, and the proposition upon which the court apparently decided the issues in his favor, is that the plaintiff lost his rights to the land by his laches in failing to assert his title sooner. The answer is not set out in full in the abstract, but from the argument in the briefs the contention appears to be that the plaintiff is guilty of laches in failing to pay the taxes upon the land and neglecting to file for record his conveyances and copies of the wills.

We are unable to discover how the defense of laches can apply to the facts in this case. In the first place, laches is ordinarily no defense in an action to quiet title or to remove a cloud where the plaintiff is in possession. (32 Cyc. 1345; Ruckman v. Cory, 129 U.S. 387, 32 L.Ed. 728, 9 S.Ct. 316; Waldron v. Harvey, 54 W.Va. 608, 46 S.E. 603; Beck Lumber Co. v. Rupp, 188 Ill. 562, 59 N.E. 429; Hyde v. Redding, 74 Cal. 493, 16 P. 380.) In the last case cited it was said:

"And where a plaintiff has been in possession of land he can not be guilty of laches in the bringing of a suit to remove a cloud at any time before an action has been brought to disturb his possession, or to deprive him of any enjoyment of his right. (Liebrand v. Otto, 56 Cal. 242.)" (Page 500.)

(See, also, Hogg's Eq. Prin. § 299.)

There are also many decisions to the effect that where the title upon which a claimant to real estate bases his right to equity is a legal one, capable of being established at law, the doctrine of laches and stale claim does not apply, but his rights are barred only by adverse possession; and in such cases on general principles equity will follow the law on the question of the statute of limitations. (Higgins Oil & Fuel Co. v. Snow, 113 F. 433; Penrose v. Doherty, 70 Ark. 256, 67 S.W. 398; Moss v. Berry, 53 Tex. 632; Williams v. Conger, 49 Tex. 582.) In the last case cited it was said:

"But we know of no authority to warrant the court in holding that the mere failure to pay taxes, or the laches or delay of the owner in bringing suit for the recovery of land to which he has a legal title, will defeat his action, where there has not been actual adverse possession for a sufficient length of time to support plea of limitation." (Page...