Krutz v. Chandler

• Citation: 32 Kan. 659,5 P. 170
• Parties: THOMAS S. KRUTZ, et al., v. GEORGE B. CHANDLER
• Decision Date: 28 November 1884
• Court: Kansas Supreme Court

5 P. 170

32 Kan. 659

THOMAS S. KRUTZ, et al., v. GEORGE B. CHANDLER

Supreme Court of Kansas

November 28, 1884

Error from Miami District Court.

EJECTMENT brought by Chandler against Krutz and two others. Trial by the court at the February Term, 1884. The court found and adjudged that--

"The defendant, William G. Krutz, is the owner of the land described in the petition of the plaintiff, to wit, all that portion of the southwest quarter of section number four, in township number seventeen, south, in range number twenty-three, east, etc., lying east of Bull creek, excepting six and six one-hundredth acres belonging to the Kansas City Fort Scott & Gulf Railroad Company as a right of way containing one hundred and forty-six and ninety-four one-hundredth acres of land, and situated in the county of Miami, state of Kansas, and that the defendants are lawfully in possession thereof; and that the plaintiff is entitled to recover for taxes paid on said land, with the interest penalties, costs and charges, the sum of $ 689.09, which sum is adjudged to be a lien upon said real estate; and that in default of payment of said sum of money with accruing interest thereon, a special execution issue according to law directed to the sheriff of Miami county, Kansas, commanding him to advertise and sell said real state, to satisfy said sum of money with accruing interest thereon, and all costs hereafter accruing."

To the foregoing findings, judgment and order, the defendants excepted. The court further adjudged that--

"The defendants have and recover of the plaintiff the costs herein accrued to the date hereof, amounting to the sum of $ 12.75 and that in default of payment execution issue against the plaintiff."

To the above judgment against him for costs, the plaintiff duly excepted, and thereafter filed his motion to modify the same, and give him judgment for costs against the defendants. This motion the court overruled, and also the motion for a new trial made by defendants. They bring the case to this court.

Judgment affirmed.

W. H. Browne, and T. N. Sedgwick, for plaintiffs in error.

Beeson & Baker, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action in the nature of ejectment, brought by George B. Chandler against William G. Krutz and others, to recover all that portion of the southwest quarter of section 4, in township 17, south, of range 23, east, and lying east of Bull creek, excepting six and six one-hundredth [*661b] acres belonging to the Missouri river, Fort Scott & Gulf railroad company as a right of way--the plaintiff's tract containing 146 95/100 acres. It is admitted that in March, 1876, and subsequently thereto Krutz owned the land in controversy and had the actual possession thereof. The land was taxed for the year 1876, and the taxes not being paid, the land was sold therefor to the plaintiff in September, 1877, and the plaintiff having paid the subsequent taxes thereon for the years 1877, 1878, and 1879, a tax deed was executed to him on July 21, 1881, and was recorded on the same day. It is admitted that this tax deed was void, or rather voidable, as a conveyance, for reasons not now necessary to state, and therefore that the judgment of the court below rendered in favor of the defendant and against the plaintiff for the land is correct. But the court below also and at the same time rendered a judgment in favor...