Parker v. Vaughn

• Court: Kansas Supreme Court
• Writing for the Court: MASON, J.:
• Citation: Parker v. Vaughn, 116 P. 882, 85 Kan. 324 (Kan. 1911)
• Decision Date: 07 July 1911
• Docket Number: 17,017
• Parties: JOE L. PARKER, Appellee, v. GEORGE VAUGHN et al. (DENNIS D. DOTY, Appellant)

116 P. 882

85 Kan. 324

JOE L. PARKER, Appellee, v. GEORGE VAUGHN et al. (DENNIS D. DOTY, Appellant)

No. 17,017

Supreme Court of Kansas

July 7, 1911

Decided July, 1911.

Appeal from Finney district court.

Cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. QUIETING TITLE--Tax Deed--Who May Attack. The rule that one must show an interest in the property in order to attack a tax deed applies only to a party who is seeking affirmative relief. One who stands wholly upon the defensive may, without proving his own interest, show that a tax deed less than five years old, upon which a decree quieting title against him is sought, is invalid as a conveyance of title because of irregularities not showing on its face.

2. QUIETING TITLE--Same. Where an action to quiet title upon a tax deed is brought in the alternative, against one who if alive owns the patent title, and against his unknown heirs if he is dead, the grantee in a conveyance executed after the commencement of the action, by those who are the heirs if such death has taken place, is in substantially the same position as an original defendant.

W. R Hopkins, and Richard J. Hopkins, for the appellant.

O. H Foster, and Edgar Foster, for the appellee.

OPINION

MASON, J.:

On February 25, 1907, Joe L. Parker began an action to quiet title against George Vaughn and wife and their unknown heirs, his petition alleging that he was the owner and in possession of the tract involved, and that the defendants claimed an interest therein which was in fact void. Dennis D. Doty was made a defendant upon his own application and filed an answer and cross-petition, consisting of a general denial and an allegation that he owned an undivided one-third interest in the land, which he asked to have partitioned. The plaintiff in a reply set out a tax deed issued to himself in November, 1906. Doty filed a reply alleging that the deed was void, among other reasons because no redemption notice had been published in the course of the proceedings on which it was based.

At the trial the plaintiff introduced his tax deed, and evidence tending to show these facts: The land belonged to one Samuel Vaughn at the time of his death; he died intestate in June, 1902, leaving no widow, but two daughters and one son, unless the son was already dead. This son, George Vaughn, had disappeared when he was seventeen years old and had not been heard from by his relatives since, the period being over eighteen years. In August, 1902, the daughters conveyed an undivided two-thirds interest in the property to Daniel Larmor, who is not a party and whose title is not brought in question. Doty's only claim to the property is under a deed from the two daughters, executed March 2, 1907, purporting to convey an undivided one-third interest and reciting that they had not heard from George Vaughn for about twenty-four years.

Doty, at the conclusion of the plaintiff's evidence, dismissed his cross-petition. The plaintiff then admitted, subject to the objection that Doty had no standing to raise the question, that the tax deed was void for irregularities not showing upon its face, one of them being that no redemption notice had been published. Doty then introduced the depositions of the two sisters of George Vaughn, covering matters already stated and showing that they had not heard from him for fifteen or twenty years and regarded him as dead.

The court gave judgment for the plaintiff, decreeing him to have a perfect title as against George Vaughn, his heirs and devisees, and Doty, and barring them from any interest in the premises. Doty appeals.

From this statement it will be seen that if George Vaughn died before his father, his sisters inherited the entire tract, and their deed to Doty conveyed an undivided one-third interest. If he died after his father, his sisters inherited a one-third interest from him, and the result was the same, unless he died testate or left a widow or child, matters regarding which there is no presumption either way. (22 A. & E. Encycl. of L. 1291; 9 Encyc. of Ev. 912, 913.) If he is still alive he is the owner of one-third of the property and Doty has no claim to it. The court obviously held that the evidence did not support the presumption of the death of George Vaughn, because diligent inquiry for him was not shown. (Modern Woodmen v. Gerdom, 72 Kan. 391, 82 P. 1100.) The correctness of this view is not challenged, but Doty maintains that the plaintiff was not entitled to recover, because he failed to prove possession and because his tax deed was invalid.

The ordinary rule is that in an action to quiet title the plaintiff must either allege and prove actual possession or plead in detail the facts upon which his claim is based. Here the petition was drawn in the short form, which the statute authorizes only when the plaintiff is in possession. (Civ Code, § 594, Gen. Stat. 1901, § 5081, Code 1909, § 618; Douglass v. Nuzum, 16 Kan. 515.) But as the subsequent pleadings developed the claims of the parties, it is not apparent that any prejudice could have resulted from the lack of a more complete statement. (Brice v. Sayler, 82 Kan. 500, 108 P. 815.) Apart from any question of the pleadings and apart from the question whether the plaintiff could maintain the action without showing...