McDonald v. Kelson

• Decision Date: 12 December 1908
• Docket Number: 15,708
• Citation: McDonald v. Kelson, 79 Kan. 105, 98 P. 772 (Kan. 1908)
• Parties: LORENZO E. MCDONALD et al. v. E. E. KELSON
• Court: Kansas Supreme Court

98 P. 772

79 Kan. 105

LORENZO E. MCDONALD et al. v. E. E. KELSON

No. 15,708

Supreme Court of Kansas

December 12, 1908

Decided July, 1908.

Error from Ness district court; CHARLES E. LOBDELL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

INJUNCTION -- Eviction of Purchaser at Tax Sale -- Improvements. A tax-deed holder in possession was defeated in an action of ejectment and was given a lien for taxes. At the date of the judgment he did not live on the land, and had no claim for improvements. The landowner did not satisfy the judgment lien, and allowed the land to sell for taxes. The lien-holder purchased at the tax sale and was given a tax-sale certificate. Without force, fraud or collusion he then moved on the land, took full possession and made lasting and valuable improvements. Subsequently the landowner redeemed from the judgment and tax sale, and caused a writ of possession to issue in the ejectment suit. Held, the occupant of the land is entitled to an injunction against eviction until his claim for improvements is adjudicated and satisfied.

John F. Wood, for plaintiffs in error.

A. S. Foulks, and A. W. Wilson, for defendant in error.

OPINION

BURCH, J.:

In an action of ejectment brought by Lorenzo E. McDonald against E. E. Kelson to recover the land in controversy a tax deed under which Kelson claimed was set aside, and he was given a lien for taxes. The judgment to this effect was rendered in February, 1903. At that time Kelson was not living on the land and made no claim for improvements. McDonald did not discharge the judgment lien for taxes, and allowed the land to sell at tax sale in September, 1904, for the taxes of 1903. Kelson purchased at this sale and was given a treasurer's certificate of sale. He then moved on the land, made it his home, erected a dwelling-house and other buildings, made other lasting and valuable improvements, and has resided there ever since. He paid the taxes for 1904 and 1905. In October, 1906, McDonald redeemed the land from the judgment and tax sale, and caused a writ of possession to be issued in the ejectment case. Kelson then brought suit for an injunction to prevent eviction until his claim for improvements is adjudicated and satisfied. The probate judge granted a restraining order, which the district court, after hearing a motion to dissolve, continued in force, and a demurrer to the petition was overruled. McDonald prosecutes error upon these rulings.

The petition is criticised for indefiniteness in certain particulars, but indefiniteness is not ground for demurrer if a cause of action be made to appear. Properly interpreted, the petition shows that the plaintiff, having the right of possession and possession in law under the judgment in the ejectment suit, rested upon his legal rights until he purchased the land at tax sale; but that when he obtained his tax-sale certificate he entered for the first time into full actual physical occupancy of the land; and that, in the situation he then occupied, he made the improvements for which he claims protection. Plainly his possession could not, in any view, be wrongful as against the defendant when the improvements were made, and the legal question presented is whether the holder of a tax-sale certificate, in quiet and rightful possession, acquired and held under the circumstances stated, can be evicted under a judgment in ejectment rendered before the tax-sale certificate was issued without receiving pay for lasting and valuable improvements made while holding possession under the certificate.

The plaintiff was under no obligation to pay taxes because he remained in possession to secure the satisfaction of his judgment lien for taxes. The right to keep possession until reimbursed for such an outlay is burdened with no duty to expend more money to keep the land clear of new tax liens accruing from the landowner's subsequent defaults. Therefore the plaintiff could rightfully purchase at the tax sale.

The occupying claimant's act is clear and positive that no one in possession of lands held under a sale for taxes shall be evicted or thrown out of possession by any one holding a better title until he has been paid the full value of all lasting and valuable improvements made under such holding, and a person in possession holding a certificate of sale issued by the county treasurer upon a sale for taxes shall be considered as having sufficient title to demand the value of such improvements. (Civ. Code, §§ 601, 602.) In the early case of Stebbins v. Guthrie, 4 Kan. 353 (1868), these sections were construed as follows:

"One of the conditions pointed out in the first section is: being in possession of, and holding any land under any sale for taxes authorized by the laws of the state, entitle the occupant to the benefit of the provisions of the statute, if his possession has been obtained without fraud or collusion.

"It will be seen that in this section it is only made necessary that the occupant holds under any sale for taxes; but lest it should be contended, as it was in this case, that no sale was perfected until the deed was made, thus leaving property unimproved and unproductive for two years, it is further provided in section two, which is a legislative construction of section one, that if the claimant holds a certificate of sale of the lands from a collector of taxes, or county treasurer, &c., he shall be deemed to have sufficient title to said land to demand the value of improvements made under provisions of the first section.

"Now, the plaintiffs in error had such certificate at the time they made the improvements for which they demand compensation, and that, by the obvious terms of the law, entitled them to its benefits." (Page 365.)

In another part of this opinion expressions were used indicating that a purchaser at a tax sale becomes the actual owner of the land sold when he receives a tax-sale certificate. This misapprehension of the effect of a sale for taxes before a tax deed issues was corrected in Douglass,...