Kohn v. Barr

• Decision Date: 11 November 1893
• Parties: KATE KOHN v. KATE K. BARR et al
• Court: Kansas Supreme Court

34 P. 880

52 Kan. 269

KATE KOHN v. KATE K. BARR et al

Supreme Court of Kansas

November 11, 1893

Error from Atchison District Court.

ON the 11th day of May, 1887, Kate Kohn brought her action against Kate K. Barr, E. W. Sargent and Samuel E. Ballenger to recover possession of 80 acres of land in Atchison county and for damages for the unlawful detention of the same. On October 7, 1887, Samuel E. Ballenger filed his separate answer and cross petition, in which he denied plaintiff's title; alleged that he was the owner of the land, and in actual possession thereof; the commencement of a former action for the land, and its final disposition. The answer further alleged, that Ballenger and his grantors had been in the actual possession of the land for more than two years prior to the commencement of the action, and that the tax deeds under which the plaintiff claimed title had been of record more than two years prior to the filing of the petition. Ballenger asked that the plaintiff's action be dismissed, and that her tax deeds be canceled, and that his title and possession to the land be quieted. The other defendants answered that they had conveyed the land, and adopted the answer of Ballenger. The plaintiff filed a reply to the answers of the defendants. The case was first tried before the court, on the 23d day of January, 1888, and judgment was rendered in favor of the defendants, quieting the title and the possession of the land in Ballenger. A second trial was awarded upon the application of the plaintiff. On July 12, 1888, the plaintiff asked leave to file an amended petition, setting up a title acquired by her on July 10, 1888, under a tax deed from Atchison county. This motion the court refused. The plaintiff then dismissed her action without prejudice. Ballenger demanded a trial upon his answer and cross petition. The court permitted the plaintiff to file a supplemental reply to the answer and cross petition of the defendant, in which she alleged title and right of possession. To this pleading the defendant Ballenger replied. Upon this condition of the pleadings, the case was tried a second time, Hon. M. T. FRAME, judge pro tem., presiding, and judgment was rendered quieting the title to the land in the defendant Samuel E. Ballenger.

The court, in its conclusions of fact, found, in substance, that 160 acres of land, including the land in controversy, were located by William C. McClellan, on March 6, 1858, on a military bounty land warrant, under act of 1855; that on December 18, 1861, the commissioner of pensions canceled the certificate, on account of forgery in the assignment, and the commissioner of the general land office suspended the issuance of the patent upon the entry; whereupon the commissioner of the land office notified the register at Atchison of the action taken in the premises, and that McClellan would be allowed 90 days in which to reenter the land by paying $ 200 cash, or substituting a valid warrant properly assigned to him by name, and to notify McClellan of this action taken. This was never done by McClellan, and upon February 18, 1884, the commissioner of the general land office again extended the time to 90 days from that date within which McClellan, or any person interested, might substitute a valid land warrant assigned to McClellan by name, or pay $ 200 in cash. On July 23, 1883, another land warrant was substituted in lieu of the one used by McClellan which warrant was not furnished by McClellan, but by the plaintiff, Kate Kohn, at her own expense; and plaintiff, at the time of the substitution, requested that the patent issue to her, she being at the time the owner of the other 80 acres of the quarter section of land entered by McClellan, which she had derived by conveyances from him. On April 5, 1884 the land in question was patented to William C. McClellan, and the patent filed for record on the 13th of February, 1885, in the office of the register of deeds of Atchison county. On January 14, 1859, Wm. C. McClellan conveyed the land in question, by general warranty deed, to Edwin H. Anderson, which deed was recorded February 16, 1859, and the defendants claimed by conveyances from Anderson. The rental value of the property in controversy was $ 240 per year. In May, 1883, Kate K. Barr took possession of the land, and such possession was continued by her and her grantees, including Samuel E. Ballenger. F. D. Mills, the attorney and agent for Samuel E. Ballenger, made a proper tender to the proper officer of Atchison county of the taxes for the year 1886, on December 20, 1886. In the year 1862, the land in question was placed on the tax rolls of Atchison county, and assessed for taxes; and on May 9, 1863, was sold for the taxes so assessed, and bought in by the county, and the certificate of such tax sale was issued and assigned by the treasurer of Atchison county to Kate Kohn, on March 19, 1868. The subsequent taxes for the years 1863, 1864, 1865, and 1866, aggregating $ 40.55, were indorsed on the certificate. On March 19, 1868, Kate Kohn received a tax deed from Atchison county, which was recorded on April 9, 1889. Thereafter she paid the taxes of 1867, 1868, 1869, 1870, and 1871. The taxes for 1872 were not paid, and the land was sold for the nonpayment thereof, in 1873, for the sum of $ 20.30, to J. E. Wagner, and there was indorsed on the certificate the taxes of 1873, 1874, and 1875. In the year 1876, Kate Kohn took an assignment of the certificate of sale from J. E. Wagner, and paid the taxes for that year. For the year 1877, Kate Kohn redeemed the land, and took certificate for the payment thereof. For the years 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1885, and 1886, Kate Kohn paid the taxes upon the land. On July 1, 1888, L. F. Bird, acting as attorney for Kate Kohn, tore the tax certificate from the tax deed of date March 19, 1868, and presented the same to the county clerk of Atchison county, and he thereupon assigned the same, and issued a tax deed of that date to Kate Kohn, which was recorded on the same date in the office of the register of deeds of Atchison county. On March 16, 1885, Kate Kohn commenced her action in the district court of Atchison county, against Kate K. Barr and E. W. Sargent, to recover possession of the property, and for damages for withholding the same. Both defendants filed answers, and issues were reached, and at the June term of the court the plaintiff waived trial of the cause, and on the 19th day of May, 1886, the district court of Atchison county dismissed the action of plaintiff, because she had waived the first trial in ejectment and was not entitled to a second trial, according to the ruling of the court. Thereupon Kate Kohn appealed her case to the supreme court of this state, which court affirmed the judgment of the district court. As before stated, on the 11th of May, 1887, Kate Kohn instituted this action, and on January 26, 1889, she dismissed her other action without prejudice; whereupon the defendant Ballenger demanded a trial upon his answer and cross petition, to which the plaintiff was allowed to file an amended reply, which answer, cross petition and reply constitute this action.

Judgment affirmed.

L. F. Bird, for plaintiff in error:

The principal question in this case is, was the land taxable for the year 1862? On March 6, 1858, when the land was located by Wm. C. McClellan, and was paid for by a military bounty land warrant, under the act of March 3, 1855, it at once became segregated from the public domain, and was private property, and subject to taxation in the year 1862, although a patent had not been issued therefor. "When the land was purchased and paid for, it was no longer the property of the United States, but of the purchaser. He held a final certificate for it, which could no more be canceled by the United States than a patent. . . . It is said the fee is not in the purchaser but in the United States until the patent shall issue. This is so, technically, at law, but not in equity. The land in the hands of the purchaser is real estate. . . . In every legal and equitable aspect, it is considered as belonging to the realty. Now, why cannot such property be taxed by its denomination as real estate?" Carroll v. Stafford, 3 HOW 460, 461; Stone v. Young, 5 Kan. 232; McKean v. Crawford, 6 id. 112; McKean v. Massey, 6 id. 122; Watterson v. Kirkwood, 8 id. 463; Wheeler v. Merriman, 30 Minn. 372; People v. Shearer, 30 Cal. 645, 655; Lux v. Haggin, 10 P. 776. When the patent was issued, on April 5, 1884, it related back to the entry, on March 6, 1858. By the issuing of the patent, no new title was acquired by McClellan, but he merely obtained the evidence of the title that he procured by his original entry, the entry and the patent being regarded as one title. Stark v. Starrs, 6 Wall. 402, 418; Briggs v. McClain, 43 Kan. 655; Railroad Co. v. Wilcox, 14 id. 259; Shepley v. Cowan, 91 U.S. 330, 337; Smelting Co. v. Kemp, 104 id. 647; Bagnell v. Broderick, 13 Pet. 450, 451; Landes v. Brant, 10 HOW 348.

"A certificate of purchase, issued in due form, in favor of a preemptor, for land subject to entry under the preemption laws, cannot be canceled or set aside by the land department for alleged fraud in obtaining it; but in such a case the government must seek redress in the courts, where the matter may be heard and determined according to the law applicable to the rights of individuals in like circumstances." Smith v. Ewing, 23 F. 741; United States v. Freyberg, 32 id 197; Jeremiah Hall, 1 L. D. C. 7; Hallerman v. Carter, 2 id. 57; L. C. Black, 3 id. 101; Lytle v. Arkansas, 9 HOW 333; Wirth v. Branson, 98 U.S. 118; Coal Co. v. United States, 8 S. C. Rep. 131; Railroad Co. v. Whitney, 10 id. 114; Arnold v. Grimes, 2 Iowa 2; Klein v. Argenbright,...