Hentig v. Redden

• Court: Kansas Supreme Court
• Writing for the Court: HORTON, C. J.:
• Citation: Hentig v. Redden, 11 P. 398, 35 Kan. 471 (Kan. 1886)
• Decision Date: 01 July 1886
• Parties: A. J. HENTIG v. J. W. REDDEN

11 P. 398

35 Kan. 471

A. J. HENTIG v. J. W. REDDEN

Supreme Court of Kansas

July 1, 1886

Error from Shawnee District Court.

ACTION in the nature of ejectment, brought October 1, 1883, by Joseph W. Redden against A. J. Hentig and others, to recover the possession of lots 408, 410, 412, and 414, on Clay street, in the city of Topeka, in this state. On November 1 1883, Mrs. A. J. Hentig filed an answer, setting forth, among other things, as a defense --

"That one Jacob J. Puterbaugh, who is a resident of Logansport Cass county, Indiana, and a citizen of said state of Indiana is the pretended grantor to the plaintiff, Joseph W. Redden of the real property described in his petition in this action, and that long prior to the date of the pretended conveyance of said real estate to said plaintiff, Redden, by Puterbaugh, to wit, on the 1st day of March, 1878, being then insolvent, the said Jacob J. Puterbaugh duly executed and delivered to one Thomas H. Brinkhurst -- as assignee under the laws of the state of Indiana, for the benefit of creditors -- a deed of assignment in writing of that date, and thereby conveyed all his real estate and personal property of every kind and nature to said Thomas H. Brinkhurst, who duly accepted said trust, and thereby became the owner of said real estate mentioned; to all of which proceedings and deed of assignment the said plaintiff had full knowledge before his said pretended purchase."

She also alleged in her answer that she was the owner and in the possession of the real estate in controversy, by virtue of a tax deed executed to her and filed by her for record, on September 30, 1882. She also set forth that she had made lasting and valuable improvements, of the amount of $ 2,000. Subsequently the plaintiff filed a reply, alleging, among other things, that the tax deed failed to invest the defendant, A. J. Hentig, with any title, because it was issued upon a voidable sale. The defendant, F. G. Hentig, also filed a separate answer, containing a general denial. First trial on October 1, 1884, and judgment was entered in favor of the defendant. This judgment was vacated, and a new trial granted as provided for by § 599 of the code. The second trial was had on February 18, 1885, before the court, a jury being waived. The presiding judge, Hon. John Guthrie, having been interested in the case, by agreement of the parties Hon. John Martin was selected as judge pro tem. to try the cause. No special findings of fact were requested by either party, but the court made the following findings:

"1. At the commencement of this action, the plaintiff, J. W. Redden, was the owner in fee simple of lots 408, 410, 412 and 414, on Clay street, in the city of Topeka, Kansas, and is such owner now, and that all the material allegations in his petition are true.

"2. A. J. Hentig is in the possession, under two tax deeds, one recorded May 9, 1877, and the other recorded September 30, 1882, both issued on the tax sale of 1874 for the taxes of 1873.

"3. Such tax sale is void, because there was an unlawful combination of bidders at the sale, which prevented competition, and the sale was made for illegal taxes and illegal costs charged against the lots.

"4. The taxes paid by the Hentigs on lots 408, 410, 412, 414, 416, 418, which adjoin and are one tract, and which were assessed and sold as one piece of land, including penalties, costs, and interest at 50 per cent. from the payments up to the 9th of May, 1877, when the first tax deed was executed, and then 20 per cent. on that sum and on all subsequent taxes, with the subsequent taxes, amounting to $ 258, up to the day of trial, February 18, 1885, and counting the same sums at 50 per cent. on said taxes on said six lots up to the 30th of September, 1882, when the second tax deed was executed, and then 20 per cent. on that amount, and the subsequent taxes -- the total sum with said amounts of interest is $ 401.67; and on the four lots in controversy, being two-thirds of the said six lots, the taxes are $ 267.78, and are a lien on said four lots, viz.: Nos. 408, 410, 412, and 414, on Clay street, in the city of Topeka."

Judgment was entered that the defendants surrender the possession of the lots in controversy to the plaintiff, subject to the payment to Mrs. A. J. Hentig of the taxes, interest and costs, amounting to $ 267.78, and also subject to Mrs. A. J. Hentig's rights as an occupying claimant. Costs were adjudged against the defendants. To the rulings and judgment of the court Mrs. A. J. Hentig excepted, and brings the case here.

Judgment affirmed and case remanded.

F. G. Hentig, for plaintiff in error.

H. H. Harris, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an action brought by Joseph W. Redden against Mrs. A. J. Hentig and others, in the nature of ejectment, for the recovery of lots 408, 410, 412, and 414, on Clay street, in the city of Topeka. Upon the final trial, the case was submitted to the court below, without a jury, and the court rendered judgment in favor of the plaintiff and against the defendants, preserving however to the defendant, Mrs. A. J. Hentig, the taxes paid by her upon the lots, with interest and costs, and her rights as an occupying claimant.

The first question is, whether the judgment rendered in favor of the plaintiff below is correct. It appears from the record that on August 20, 1869, the title to the lots in controversy was in T. P. Rodgers and A. K. Rodgers. On October 7, 1870, T. P. and A. K. Rodgers conveyed, by warranty deed, the lots to Jacob J. Puterbaugh, of the city of Logansport, state of Indiana. On August 22, 1883, Jacob J. Puterbaugh and wife conveyed by quitclaim deed the lots to Joseph W. Redden, the consideration for the conveyance, recited in the deed, being $ 120, although Redden testified upon the trial that he paid $ 225. After the lots had been conveyed to Puterbaugh by the Rodgerses, and prior to the conveyance to Redden by Puterbaugh, and on March 1, 1878, Puterbaugh executed, under the laws of Indiana, a deed of assignment of certain real and personal property to James H. Brinkhurst, in trust for the benefit of creditors Puterbaugh intended in such assignment to convey all of his real and personal property, and among other real estate, the lots in dispute, but by mistake of the scrivener other lots in the city of Topeka, to which Puterbaugh had no title, were inserted in the deed of assignment, and lots 408, 410, 412, and 414, on Clay street, were therefore wholly omitted. The property transferred by Puterbaugh to his assignee, Brinkhurst, failed to pay the debts of the creditors, only fifty cents on the dollar being realized by them for such purpose. Prior to the conveyance by Puterbaugh and wife to Redden, the deed of assignment had never been recorded in the office of the register of deeds of Shawnee county, nor any steps taken to correct the misdescription in the deed, or to subject the lots conveyed to Redden to the possession of Brinkhurst, the assignee of Puterbaugh.

Under the findings of the court...