Pritchard v. Madren

• Court: Kansas Supreme Court
• Writing for the Court: VALENTINE, J.:
• Citation: Pritchard v. Madren, 31 Kan. 38, 2 P. 691 (Kan. 1883)
• Decision Date: 01 July 1883
• Parties: HORATIO PRITCHARD v. AGNES MADREN

2 P. 691

31 Kan. 38

HORATIO PRITCHARD v. AGNES MADREN

Supreme Court of Kansas

July 1, 1883

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error from Greenwood District Court.

ACTION in the nature of ejectment, brought by Agnes Madren against Horatio Pritchard, in the district court of Greenwood county to recover the south half of the north half of the southwest quarter of section 12, in township 22, of range 11, in said county. The case was tried before the court without a jury at the May Term, 1882, and the court made the following findings of fact, to wit:

"1. August 1, 1860, Benoni Pritchard received a patent from the United States for the S.W. 1/4 of section 12, T.22, R.11, in Greenwood county, Kansas.

"2. January 15, 1870, said Benoni Pritchard and his wife Margaret made a will, by the terms of which they devised the N. 1/2 of the S.W. 1/4 12-22-11 to their children, J. L. Pritchard and Narcissa Pritchard, jointly, which will was duly proven and probated after the death of said Benoni Pritchard, who died January 30, 1870.

"3. During the year 1872, the said J. L. Pritchard and Narcissa Pritchard went into possession of and occupied the said N. 1/2 of said S.W. 1/4 12-22-11, under said will, each having and owning the undivided half thereof.

"4. In 1872, the said N. 1/2 of said S.W. 1/4 was duly and legally assessed for taxation in the name of Margaret Pritchard, and on the 6th day of May, 1873, was duly sold for the tax of 1872, said tax then being unpaid and delinquent, and, in default of other bidders, was stricken off to Greenwood county, for the amount of tax and charges due thereon, viz.: $ 11.65.

"5. In 1873, the said N. 1/2 of said S.W. 1/4 was again duly assessed for taxation for that year, and in the said name and description as in 1872, and the amount of tax, penalty and costs carried back and added to the sale of 1873, as provided by law.

"6. In 1874 said land was duly assessed for taxation in separate descriptions, as follows: The N. 1/2 of the N. 1/2 and the S. 1/2 of the N. 1/2 of said S.W. 1/4 12-22-11, and so placed on the tax-rolls of that year.

"7. In 1874 the taxes of 1873 were paid.

"8. October 24, 1874, said Narcissa Pritchard, then Narcissa Bush, and her husband J. W. Bush, conveyed the undivided one-half of the S. 1/2 of the N. 1/2 of said S.W. 1/4 to J. L. Pritchard, aforesaid.

"9. December 5, 1874, said J. W. Bush redeemed the undivided one-half of the said N. 1/2 of said S.W. 1/4 12-22-11.

"10. February 13, 1875, the said J. L. Pritchard paid the first half of the tax of 1874 on the said S. 1/2 of the N. 1/2 and also on the said N. 1/2 of the N. 1/2 of said S.W. 1/4, and on said day sold and conveyed the said south half of the N. 1/2 of said S.W. 1/4 to Horatio Pritchard, the defendant herein, who has ever since been, and at the commencement of this action was, and now is, in the possession thereof and claiming to be the owner thereof.

"11. Oct. 3, 1877, the board of county commissioners of Greenwood county, Kansas, commenced an action in the district court of said county, under chapter 39, Session Laws of 1877 of this state, for the sale of the said S. 1/2 of the N. 1/2 of said S.W. 1/4 section 12, T.22, R.11, at judicial sale, for the collection of the taxes, interest and penalty thereon, and on said day filed in said court under said chapter, their petition entitled 'The Board of County Commissioners of Greenwood County v. The Northwest Quarter of Section 3, in Township 22, Range 10, and other property, and William J. Foster, Joseph Hall, J. W. Tilton, and others unknown, and all persons claiming or having an interest therein.' And as part of said petition, and filed therewith, was an exhibit, in which the said S. 1/2 of the N. 1/2 of the said S.W. 1/4 12-22-11 was described as the property of Margaret Pritchard, and the notice prescribed and required by said chapter 39, Laws of 1877, was duly published.

"12. At the May term, 1878, of the court, judgment was rendered by said district court in said cause, in which it was adjudged that the said S. 1/2 of the N. 1/2 of said S.W. 1/4 12-22-11, was the property of said Margaret Pritchard, and judgment was rendered against said tract of land for the taxes, interest and penalties thereon, amounting to the sum of $ 66.47, and for costs, taxed at $ 2.95; and it was ordered by said court that said tract of land be sold according to the provision of said law for the satisfaction of said judgment and the costs of said proceeding and sale, and that the over-plus, if any, be paid to said owner. The accrued costs on said judgment amount to $ 10.15, and the interest thereon up to the sale next hereinafter mentioned amounts to $ 3.30.

"13. Afterward, and in pursuance of said judgment and order, and in full compliance with the provisions of said chapter 39, Laws of 1877, said land was duly appraised, advertised and offered for sale, and no person having bid two-thirds of the appraised value thereof when first offered for sale, said tract was on the next offer for sale thereof, on the 11th day of November, 1878, and in default of other bidders, sold to said Greenwood county for the amount of taxes, penalties, interest, and charges due thereon.

"14. Afterward, on the 23d day of November, 1878, the proceedings of the officer making such sale were duly examined by said district court, and by said court were fully approved and confirmed, and said officer, the sheriff of said county, was thereupon duly ordered and directed by said court to make, execute and deliver to said Greenwood county, the purchaser at said sale, a deed for said tract of land so purchased as aforesaid.

"15. January 1, 1879, the sheriff of said county duly executed, acknowledged and delivered to the board of county commissioners of Greenwood county, a deed in due form of law to said tract of land, viz., the S. 1/2 of the N. 1/2 of the S.W. 1/4 12-22-11, in said Greenwood county, Kansas; which deed was duly recorded in the office of the register of deeds in and for said county, on the 3d day of February, 1879.

"16. February 28, 1879, said Greenwood county duly conveyed said S. 1/2 of the N. 1/2 of said S.W. 1/4 12-22-11, by its deed of general warranty of that date, to Matthias Madren, his heirs and assigns, in consideration of the sum of $ 24, by said Madren paid to said county; which deed was duly executed by the chairman of said board of county commissioners of said county, and was so executed on the order of said board, which deed was recorded in the office of the register of deeds in and for said county, on the 3d day of March, 1879.

"17. June 2, 1879, said Matthias Madren, by his deed with full covenants of warranty of that date, duly executed, acknowledged, delivered and conveyed to Agnes Seward, her heirs and assigns, said last above described tract of land, in consideration of the sum of $ 1,000, said Madren then being a single man and the said Seward an unmarried woman. Said deed was duly recorded in the office of the register of deeds in and for said county, on the 15th day of January, 1880.

"18. After the execution and delivery of the last-mentioned deed, and on the 2d day of June, 1879, said Madren and said Agnes Seward were married to each other, and ever since have been, and now are, husband and wife, she being the plaintiff herein.

"19. July 19, 1879, said Horatio Pritchard, defendant herein, commenced an action in this court to quiet his title to the lands in controversy herein, against the title of the plaintiff herein, in which action said Horatio Pritchard was plaintiff and said Matthias Madren was defendant; that the only issue in said cause was as to who had title to said land; which action was tried in this court at the November term, 1879; and to support his claim to said land, said Pritchard introduced and proved the facts found in the 1st, 2d, 3d, and 8th conclusions of fact herein, and the conveyance to himself and possession of said land as mentioned and found in the 10th conclusion of fact herein. And the said Madren, to show his title thereto, introduced and proved the facts found in the 11th, 12th, 13th, 14th, 15th and 16th conclusions of fact herein. And said cause having been so tried, judgment was duly rendered thereon at said term against said Pritchard and in favor of said Madren, for costs. Afterward said Pritchard filed his petition in error in the supreme court to have said judgment reversed, and at the July term of said court, 1880, said judgment was duly affirmed.

"20. The use and occupation of said land since its purchase by said Agnes Madren on June 2, 1879, has been reasonably worth the sum of $ 2.50 per acre per year.

"21. May 10, 1881, said Horatio Pritchard, defendant herein, filed in this court his application under § 77 of the code of civil procedure, and at the December term of this court, 1881, he was permitted to file his answer and make defense in the case of The Board of County Commissioners of Greenwood county, Kansas, v. The Northwest Quarter of Section 3, etc., mentioned in the 11th conclusion of fact herein, and upon the final hearing of said defense, the judgment in said cause was modified so far as it related to the land in controversy herein, reducing the amount thereof rendered against said land for taxes, interest and penalties thereon, from the sum of $ 66.47 to the sum of $ 26.22."

On the foregoing facts the court made the following conclusions of law, to wit:

"1. The plaintiff was, at the commencement of this action, and has been ever since the 2d day of June, 1879, and now is, the owner in fee simple of the lands in controversy, viz.: The south half of the north half of the southwest quarter of section 12, township 22, range 11, in Greenwood county Kansas; and ever since said second day of ...