Hudson v. Herman

• Decision Date: 12 February 1910
• Docket Number: 16,009
• Citation: 107 P. 35,81 Kan. 627
• Parties: JOSEPH A. HUDSON et al., Appellees, v. OTTO C. HERMAN, Appellant
• Court: Kansas Supreme Court

107 P. 35

81 Kan. 627

JOSEPH A. HUDSON et al., Appellees, v. OTTO C. HERMAN, Appellant

No. 16,009

Supreme Court of Kansas

February 12, 1910

Decided January, 1910.

Appeal from Chautauqua district court; GRANVILLE P. AIKMAN, judge.

Motion denied and judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TAX DEED--Finding that Purchaser Paid Taxes as Agent Supported by Evidence. In this case it is held the evidence justifies a finding that a man who took a tax-sale certificate and tax deed of a tract of land and afterward continued to pay taxes did so as the agent and for the benefit and protection of the owner, who was insane; and that he took that method of paying the owner's taxes on the one hand and of protecting his advancement on the other.

2. TAX DEED--Proof of Agency--Admissibility against Grantee's Heirs--Authority of Agent--Ratification by Heirs of Landowner. In such a case the agency of the grantee in the tax deed may be proved against his heirs claiming title by his conduct and by circumstances. It is not necessary that he should have been formally appointed as agent; he may have intervened voluntarily and may have used his own funds; and the heirs of the landowner, who because of her insanity was incapable of expressing recognition of the agency while she was alive, may accept and adopt the services rendered.

3. EVIDENCE--Book Required by Law to be Kept--County Treasurer's Tax-receipt Book. The statutes require the county treasurer to keep a just and true account of all moneys received by him, and whenever he receives any tax to give a receipt therefor. They do not prescribe the kinds of account books he shall keep. Held, that any book essential or convenient for the purpose will suffice, and any such book officially adopted and used falls within the requirement of the law. Held, further, that a tax-receipt stub book which is a part of the records in the treasurer's office and which shows payments of taxes, the amounts of such payments, the years for which they were made and the persons for whom and by whom they were made is admissible in evidence as a book required by law to be kept.

4. TITLE--Resulting Trust--Heirs of Agent--Lien for Taxes. The heirs of the agent referred to in paragraph 1 inherit no better title than he possessed, which is a naked legal title with a lien for taxes; and such title will be held in trust for the successors in interest of the principal, subject only to the lien.

5. PURCHASER Pendente Lite--Agreement to Defend Pending Suit--Innocent Purchaser--Recording Act. The heirs of the principal referred to brought suit against the heirs of the tax-deed holder for possession and partition claiming the tax deed was void. A vendee then acquired the tax title by a quitclaim deed and a guardian's deed subject to the pending suit, which he agreed to defend. Held, he took no better title than his vendors enjoyed and was not an innocent purchaser under the recording act.

6. ESTOPPEL--Amendment of Petition after Substitution of Purchaser as Defendant. After the vendee purchased he was substituted for his vendors in the pending suit. The plaintiffs then enlarged the issues by alleging the grantee in the tax deed acted as the agent of the insane landowner. Held, the plaintiffs were not estopped in equity from introducing the new issue.

7. ACTIONS AND REMEDIES--Laches. Laches is an equitable bar to relief depending on all the circumstances of the case, and except in instances of clear error the judgment of the trial court denying its effectiveness will not be disturbed.

8. ACTIONS AND REMEDIES -- Same. Under the circumstances of this case it is held that neither equity nor public policy absolutely forbade the court to investigate the plaintiffs' cause of action, and the substituted defendant, who purchased after the suit was commenced, with full knowledge of its pendency and purpose, and under an agreement to defend it, has no special standing in equity to complain that the plaintiffs were dilatory in starting proceedings or that the cause was heard and decided on its merits.

Altes H. Campbell, John F. Goshorn, and W. S. Fitzpatrick, for the appellant.

W. P. Hackney, and J. T. Lafferty, for the appellees except Etta Sanders.

W. W. Padgett, and H. A. Pritchard, for Etta Sanders.

OPINION

BURCH, J.:

This is an appeal from a judgment in ejectment and partition. The chief controversy relates to ownership. The appellant claims under a tax-deed holder. His opponents claim under the delinquent landowner. The appellant also has a share of the property independent of the tax deed, but the tax title must be sustained to work a reversal of the judgment of the district court.

The land formerly belonged to Hester A. Spurlock. It was school land, and was sold on contract to her brother, Owen P. Spurlock, in 1872. In 1873 she took an assignment of the contract, afterward completed the payments, and in 1881 became entitled to a patent from the state, but no patent was issued to her. She removed from Kansas to Illinois in 1880, soon afterward became insane, and died in 1893. She left no will, and, her parents being dead, whatever interest she then had in the land descended to the following persons: One-fourth to a sister, Etta E. Meskimer, then the wife of John M. Meskimer, and now Etta E. Hatfield. One-fourth to the heirs of a deceased brother, Fred Spurlock, as follow: Oscar Spurlock, one-twelfth; Ida Vince, one-twelfth; Ed Spurlock, one-twelfth. One-fourth to Etta Sanders, who was the sole heir of a deceased sister, Mary E. Saxton. One-fourth to the heirs of a deceased brother, Owen P. Spurlock, as follow: Rachel Spurlock, one-eighth; Robert Spurlock, one-eighth.

These interests are now held, or represented on the record, as follow: The Etta E. Meskimer one-fourth by Herman, the appellant. The Etta Sanders one-fourth by herself; she conveyed her share to the appellant, but proceedings are pending to avoid the transaction. Ed Spurlock's one-twelfth by himself. The remainder, Oscar Spurlock's one-twelfth, Ida Vince's one-twelfth, Rachel Spurlock's one-eighth, and Robert Spurlock's one-eighth, altogether five-twelfths, by the Hudsons and J. A. Frawley.

The taxes on the land for the year 1881 were not paid. In 1882 it was sold for taxes to Hester A. Spurlock's brother-in-law, John M. Meskimer. No redemption having been made, a tax deed issued to him in 1885. He died in 1890, leaving as his heirs his widow, Etta E. Meskimer, and two children, Lulu Pearl Meskimer (now Hand) and John C. Meskimer. In March, 1899, these heirs of John M. Meskimer procured a patent to the land to be issued by the state to them, which was recorded July 20, 1899.

In November, 1903, the appellant entered into a contract to purchase the interest of the Meskimer heirs for $ 5000 and one-tenth of the oil thereafter to be produced from the land, and the sum of $ 500 was deposited in a bank, to be forfeited by the vendee unless the purchase were consummated within six months. In November, 1904, this contract was abrogated and another was made, whereby the appellant purchased the Meskimer interests outright for $ 13,000. Pursuant to this contract Etta E. (Meskimer) Hatfield and Lulu Pearl (Meskimer) Hand quitclaimed to the appellant on November 29, 1904, for a consideration of $ 9000, and on February 28, 1905, John C. Meskimer, a minor, conveyed by guardian's deed, for a consideration of $ 4000. By these deeds the appellant became the owner of the land if the tax deed be valid, and in any event he became the owner of the one-fourth interest inherited by Etta E. (Meskimer) Hatfield from her sister, Hester A. Spurlock.

On December 18, 1906, Etta Sanders made the conveyance to the appellant which she now claims was procured by fraud. In this deed she covenanted that she is the daughter and sole surviving heir of Mary E. Saxton, formerly Mary E. Spurlock, deceased.

This action was commenced on January 13, 1904, by Oscar Spurlock and Ida Vince. The appellant became a defendant by substitution on February 6, 1906. The Hudsons and J. A. Frawley became substituted plaintiffs October 2, 1906. The Hudsons and Frawley filed a third amended petition praying for possession, for rents and profits (including oil to the value of $ 25,000 alleged to have been extracted from the land and sold by the appellant), for a cancellation of the patent to the Meskimer heirs, and for partition. It was alleged that the tax deed is void on its face, that when the tax deed was issued Hester A. Spurlock was insane, that John M. Meskimer wrongfully took out the tax deed for the purpose of defrauding Hester A. Spurlock, that he failed to perfect title under the tax deed by suing for possession within two years, the land meanwhile being in the possession of Hester A. Spurlock's tenants and agents, that the patent issued to the Meskimer heirs was procured through fraud, and that the appellant purchased with knowledge of all the facts.

The answer, besides other denials, denied fraud in taking out the tax deed, alleged that the land was vacant when the tax deed was issued, pleaded adverse possession in John M. Meskimer, in his heirs after his death, and then in the appellant, interposed the limitation prescribed in section 141 of the tax law (Gen. Stat. 1901, § 7680) in bar of the assault on the tax deed, set up the appellant's chain of title, including the deed from Etta Sanders, and asserted that his development of the oil resources of the land was necessary to prevent it from being drained by wells on adjoining tracts. His prayer was for all the land, but if the other parties were entitled to a share that he be awarded one-half of it, including the part where his oil wells are situated.

The reply to the answer was that the tax deed was...