Mercer v. Justice

• Decision Date: 08 June 1901
• Docket Number: 12,338
• Citation: 65 P. 219,63 Kan. 225
• Parties: TAYLOR B. MERCER v. WILLIAM JUSTICE et al
• Court: Kansas Supreme Court

65 P. 219

63 Kan. 225

TAYLOR B. MERCER v. WILLIAM JUSTICE et al

No. 12,338

Supreme Court of Kansas

June 8, 1901

Decided January, 1901.

Error from Cherokee district court; A. H. SKIDMORE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TAX DEED--Lien for Improvements Superior to Mortgage. In an action to foreclose a mortgage on real estate, a tax-deed holder who had taken possession and made valuable and lasting improvements under his tax deed was made a party. His tax deed was declared good on its face, but void for irregularities. It was based upon a tax sale made subsequently to the giving of the mortgage. Held that the tax-deed holder was entitled to a lien on the premises for the value of his improvements superior to the lien of the mortgage, and also entitled to an order of the court, upon the foreclosure of such mortgage, that he should not be evicted from said premises until the value of such improvements had been paid in full.

2. TAX DEED--Occupying Claimants--Equitable Orders. The adjustment of the rights of occupying claimants is a matter of equitable cognizance; and courts may, in addition to the relief provided by statute, and as supplementary thereto, make such orders as are equitable and just in matters not specifically provided for by the statute.

A. D. Neale, for plaintiff in error.

W. B. Glasse, for defendant in error L. Murray Perkins.

CUNNINGHAM, J. JOHNSTON, GREENE, ELLIS, JJ., concurring.

OPINION

CUNNINGHAM, J.:

We desire to pass a word of commendation on the succinct manner in which the attorneys in this case have presented the question of law at issue. Had they presented the facts upon which that question rests as succinctly, their case-made would have been contracted into the space of two or three pages and be an ideal example of what a case-made should be.

The questions of law in the case are presented by a statement signed by both attorneys, and are as follows:

"The question, and the only question, to be determined by the court of appeals in this case is as follows: Is a purchaser at tax sale, whose deed is afterward, in an action brought to foreclose a mortgage covering the same real estate described in the tax deed, which is dated and recorded in the proper office prior to the issuance of such tax deed, declared to be invalid on account of irregularities leading up to said sale, and on account of excessive taxes levied upon said real estate, entitled to the value of the improvements placed by him on said property, as against the plaintiff in the foreclosure suit?

"Is the tax-deed purchaser entitled to a lien upon said property for the value of such improvements superior to the lien of the mortgage?

"Is the tax-deed purchaser entitled to the benefits of article 25, chapter 80, General Statutes of 1889, 'the occupying-claimant law,' in an action brought to foreclose such mortgage?"

The facts, briefly stated, are these: Mercer held a mortgage on certain real estate, given by Justice and wife, dated April 13, 1889. He brought an action to foreclose the same, making Perkins a party defendant, and alleging that the latter had some interest in the real estate which was subsequent and inferior to the lien of the plaintiff thereon. Perkins answered, setting up a tax deed dated September 5, 1894, based upon a tax sale of 1891, and filed for record September 8, 1894.

Upon the trial, the court, finding that this tax deed, though good on its face, was void as an instrument of title, for informalities and irregularities in the tax-sale proceedings, ascertained the amount of the taxes due to Perkins and declared the same to be a first lien on the real estate in controversy, and decreed a foreclosure of plaintiff's mortgage and a sale of the premises, and disposition of the proceeds in accordance with the priorities as found. The court also listened to evidence showing that Perkins had taken possession of the real estate under his tax deed and made valuable and lasting improvements thereon, and directed that he be permitted to avail himself of the provisions of the occupying-claimant law to ascertain the amount of such improvements. Afterward, upon due notice, a jury was drawn, as provided in the occupying-claimant act, which duly proceeded to ascertain the value of the improvements, the rental value of the land, the value of the land without the improvements, and returned its findings into court. Whereupon the court made a finding of the amount due to Perkins for his permanent improvements, and also the value of the land without such improvements, and adjudged:

"Said Perkins shall have from the proceeds of the sale of said premises, in addition to the amount heretofore found in his favor as a first lien thereon for taxes and interest, the sum of $ 324.85, if said premises shall sell for sufficient to pay said sum; and no writ or process of eviction of said defendant Perkins shall be issued until this judgment shall be paid."

This last part of the court's judgment is the portion that plaintiff in error especially complains of, and insists that the occupying-claimant act does not apply to cases of this character, and that the mortgagee had a right to have his mortgage foreclosed upon the premises as they were, including in the sale upon such foreclosure the permanent improvements placed thereon by the tax-deed holder.

The statute defining the right of the tax-deed holder in possession, who has made valuable improvements, is as follows:

"In all cases, any occupying claimant, . . . being in possession of and holding any land under any sale for taxes authorized by the laws of this state, or the laws of the territory of Kansas, . . . shall not be evicted or thrown out of possession by any person or persons who shall set up and prove an adverse and better title to said lands until said occupying claimant, his, her or their heirs, shall be paid the full value of all lasting and valuable improvements made on said...