Moorhead v. Guliford

• Decision Date: 08 November 1947
• Docket Number: 36891.
• Citation: 163 Kan. 730,186 P.2d 275
• Parties: MOORHEAD v. GULIFORD.
• Court: Kansas Supreme Court

186 P.2d 275

163 Kan. 730

MOORHEAD v. GULIFORD.

No. 36891.

Supreme Court of Kansas

November 8, 1947

Appeal from District Court, Stevens County; Frank O. Rindom, Judge.

Equitable action to quiet title to real estate by A. C. Moorhead against Wallace Guliford. From a judgment adjudging plaintiff to be the owner of only an undivided one-sixth interest plaintiff appeals.

Reversed with directions.

Syllabus by the Court.

A sheriff's deed to real estate issued pursuant to a tax foreclosure action was executed and delivered to the purchaser but was not recorded by him for more than five years thereafter and more than six months after the execution and delivery of the deed, the record owners of the real estate, defendants in the tax foreclosure action, executed and delivered a warranty deed to the same land to a purchaser who had no actual knowledge or notice of the tax foreclosure action and sheriff's deed. Held, the holder of the warranty deed from the heirs obtained a good title and the proceedings in the tax foreclosure action was not notice to him of the conveyance to the purchaser at the tax sale.

J. S Brollier, of Hugoton (Charles M. Tucker, Charles Vance and H. Hobble, Jr., all of Liberal, on the brief), for appellant.

Carl Van Riper and James A. Williams, both of Dodge City (C. T Parker, of Hugoton, on the brief), for appellee.

SMITH Justice.

This is an equitable action to quiet title to real estate. Judgment was entered adjudging plaintiff to be the owner of only an undivided one-sixth interest. He appeals because he was not adjudged to be the sole owner.

There is not much cispute about the facts. Hattie Pearl Eidson died on February 15, 1936, and left the quarter section in question to five sons and one daughter. Following probate court proceedings each child was on December 4, 1944, decreed to be the owner of an undivided one-sixth interest. On March 1, 1940, there was filed in the district court of Stevens county an action to foreclose a tax lien on the property. All but one of the heirs were made defendants. Personal service was had on one of the heirs, service by publication on four and no service on the one who was not a party.

On June 6, 1940, a judgment was entered holding the land to be subject to a tax lien in the amount of $220. It was sold for $105 on August 12, 1940, and on September 7, 1940, the sale was confirmed and on the same date a sheriff's deed was issued to G. G. Railsback. This deed was not placed on record until December 21, 1945. On January 18, 1946, Railsback executed and delivered to the defendant in this action a quit claim deed to the land in question.

On January 21, 1945, plaintiff obtained a warranty deed to the real estate in question from four of the heirs. The deed from four of them was recorded February 17, 1945. That from the other was recorded April 16, 1945. One of the heirs was a minor and in proceedings about which there is no dispute a guardian's deed was executed and delivered to plaintiff on May 15, 1945, and recorded on the same date. On paper these conveyances gave plaintiff sole title to the real estate in question.

Plaintiff inspected the land before he bought it and saw that it was not in cultivation, was not fenced, was unoccupied and was not being grazed. Plaintiff had no actual knowledge or notice that the land had been foreclosed for taxes or that Railsback had any interest in it.

There was undisputed evidence that plaintiff paid $1,100 for the land; that he had an abstract of title made before the purchase price was paid; that the abstractor checked the records in the office of the register of deeds and the probate and district courts and found no record of the tax foreclosure suit, action or judgment; that the abstractor helped prepare the action to foreclose; that there were over 1,200 pieces of real estate involved in it and he did not remember about this particular piece and at the time he discussed the abstract with plaintiff he did not know about the sheriff's deed; that the records showed the taxes paid up to 1938; and that at the time plaintiff bought the land they were paid from that date to the date of the conveyance out of the purchase price plaintiff paid. The lawyer who examined the title testified he examined the records in the office of the register of deeds and the clerk of the court and found nothing which would lead him to believe the property had been sold for taxes.

The trial court found that defendant was the owner of an undivided five-sixths interest in the property and plaintiff was the owner of an undivided one-sixth interest, certain equitable adjustments as to the undivided one-sixth interest of plaintiff in the crops on the land were made by the trial court on account of defendant having been in possession.

Succinctly the facts may be stated thus: Defendant received a sheriff's deed to the land in question as the result of a suit to foreclose a tax lien. He did not record this deed for five years, three months and fourteen days after it was issued. During all that time the record title stood in the name of the six heirs of Hattie Eidson. The records in the office of the clerk of the district court did not show that any of these heirs had been made a party to the general action to foreclose tax liens. While the title...