Main v. Doty

• Court: Kansas Supreme Court
• Writing for the Court: HARVEY, J.:
• Citation: Main v. Doty, 126 Kan. 667, 271 P. 287 (Kan. 1928)
• Decision Date: 03 November 1928
• Docket Number: 27,691
• Parties: S. J. MAIN, Appellant, v. DENNIS D. DOTY, ZELLA C. HOSKINSON, as Administratrix, etc.; ZELLA C. HOSKINSON, as Guardian of the Estates of Fred A. Hoskinson and George H. Reeve, Appellees

271 P. 287

126 Kan. 667

S. J. MAIN, Appellant, v. DENNIS D. DOTY, ZELLA C. HOSKINSON, as Administratrix, etc.; ZELLA C. HOSKINSON, as Guardian of the Estates of Fred A. Hoskinson and George H. Reeve, Appellees

No. 27,691

Supreme Court of Kansas

November 3, 1928

Decided July, 1928.

Appeal from Finney district court; CHARLES E. VANCE, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

TAXATION--Tax Deeds--Possession for Five Years Under Deed Valid on Face--Rights of Holder. When the holder of a tax deed, valid on its face, has been in possession of the real property described therein continuously for more than five years after the deed was recorded, and thereafter, in his absence, and without his consent or knowledge, one whose title has been extinguished by the tax deed goes onto the land and takes actual possession thereof, such possession is wrongful, and the holder of such tax deed may maintain an action for the recovery of possession of the property and for all other equitable relief.

Fred J Evans, of Garden City, for the appellant.

R. S. Field, of Syracuse, R. W. Hoskinson, of Garden City, and Carl Van Riper, of Dodge City, for the appellees.

Harvey J. Hopkins, J., not sitting.

OPINION

HARVEY, J.:

This is an action to determine the title and right of possession to a quarter section of land. It was tried to the court, judgment was rendered for defendants, and plaintiff has appealed.

The facts, as disclosed by the pleadings, or found by the court, briefly stated, are as follows: Plaintiff is the holder through mesne conveyances of the title based on a tax deed, regular and valid on its face (but irregularities in the tax proceedings prior to its issue rendered it voidable), issued August 24, 1898, and duly recorded. The grantee in this tax deed and his successors in interest timely took actual and exclusive possession of the real property, and were thereafter and for more than five years continuously in the actual and exclusive use, occupation and possession thereof, but later ceased to use the same, voluntarily removed all fences and other improvements, and left it vacant and unoccupied. They have paid the taxes on the land each year since the tax deed was issued.

In 1906 Dennis D. Doty, the holder of the record title based on the government patent, brought an action in ejectment against the then holder under the tax deed. In that case the trial court held the tax deed void on its face, and rendered judgment for plaintiff, from which the defendant appealed to the supreme court, where it was held (Doty v. Evans, 81 Kan. 463, 106 P. 278) that the tax deed was not void on its face and should be received in evidence to show title, and the judgment of the court below was reversed for further proceedings in accordance with the views expressed in the opinion. On the filing of the mandate in the trial court plaintiff asked to dismiss his action, which request was granted and judgment rendered against him for costs.

Some time after plaintiff had left the land vacant and unoccupied, defendants, claiming under a quitclaim deed from Dennis D. Doty, without the consent or knowledge of plaintiff, who was a nonresident of the state, took actual possession of the land and were farming a part of it when this action was brought.

Appellant contends that the trial court erred: (1) In holding that his title based on the tax deed was subject to attack in this case for defects not appearing on the face of the deed; (2) in holding that there were irregularities in the tax proceeding which rendered the tax deed voidable; and (3) in holding that the prior case was not res judicata. We find it necessary to discuss the first question only, for if that be decided in accordance with plaintiff's views, the second becomes immaterial; and as to the third question, whether we consider the decision of this court in the prior case, or the finding of the trial court in this case, the tax deed is valid on its face--a fact not now questioned.

Turning our attention to the first question argued. It has been repeatedly held that a valid tax deed starts a new, independent chain of title to real property (R. S. 79-2501) and extinguishes and destroys all other titles and liens. ( Board of Regents v. Linscott, 30 Kan. 240, 1 P. 81; Belz v. Bird, 31 Kan. 139, 1 P. 246; McFadden v. Goff, 32 Kan. 415, 4 P. 841; Douglass v. Lowell, 64 Kan. 533, 538, 67 P. 1106; Cone v. Usher, 86 Kan. 880, 884, 122 P. 1049; Beeler v. Elwell, 92 Kan. 586, 141 P. 551.)

The holder of a tax deed has a limited time (two years) within which to bring an action for possession of the property (R. S. 60-303, 3d clause), but if he acquires possession of the property, a suit against him for the recovery of the land must be brought within five years after the deed is recorded. (R. S. 79-2505.) Generally speaking, these statutes relating to time for bringing action have been held to be "shields of defense," rather than "swords of attack."

But when a...