Prizer v. Taylor

• Decision Date: 01 February 1896
• Docket Number: 88
• Citation: 3 Kan.App. 690,44 P. 902
• Parties: E. A. PRIZER v. ARVILLA K. TAYLOR
• Court: Kansas Court of Appeals

44 P. 902

3 Kan.App. 690

E. A. PRIZER v. ARVILLA K. TAYLOR

No. 88

Court of Appeals of Kansas, Northern Department, Western Division

February 1, 1896

Opinion Filed May 5, 1896.

MEMORANDUM.--Error from Phillips district court; G. WERB BERTRAM, judge. Action to quiet title by Arvilla K. Taylor against E. A. Prizer. Judgment for plaintiff. Defendant brings the case to this court. Affirmed. The opinion herein filed May 5, 1896, states the material facts.

Judgment affirmed.

C. A Lewis, for plaintiff in error.

R. Frank Stinson, for defendant in error.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

Arvilla K. Taylor, as plaintiff, instituted this action in the district court of Phillips county to quiet her title, against an adverse claim made by the plaintiff in error, E. A. Prizer, to 160 acres of land in that county. Upon a trial by the court, judgment was rendered in the plaintiff's favor. The facts, as they appear from the evidence and the findings of the court, are as follows: March 16, 1891, N. Rosenberg purchased the land in question at a sheriff's sale, a sheriff's deed being executed to him therefor under date of May 13, 1891. February 10, 1892, N. Rosenberg and E. P. Rosenberg, his wife, made a deed of the land in which said E. P. Rosenberg was named as grantee; and on March 28, 1892, a deed from E. P. Rosenberg and N. Rosenberg, her husband, was executed conveying the land to the plaintiff, Taylor, for a consideration of $ 1,200. Each of the last-named deeds contained covenants against liens and incumbrances of every nature, taxes being expressly included within such covenants. Pursuant to the conveyance to her, the plaintiff took possession of the premises, and was in possession at the time of the commencement of this action. On September 3, 1889, the land was sold by the treasurer of said county for the delinquent taxes of 1888 to one William Logan, to whom a tax certificate was duly issued. May 4, 1891, Logan transferred said certificate, by a written assignment indorsed thereon, to N. Rosenberg. Subsequently the name of Rosenberg was erased from such assignment -- by whom does not appear -- the name of E. A. Prizer, Rosenberg's father-in- law, being inserted in place thereof. On such certificate, a tax deed was executed to Prizer by the county clerk of said county September 7, 1892. The question in this case is whether, by the tax deed so obtained, any valid adverse claim was vested in Prizer as against the plaintiff, Taylor.

At the outset, the defendant contends that the plaintiff failed to show in herself any such title or interest as would enable her to maintain this action. This contention is based upon the fact that there were certain irregularities in the proceedings on which the sheriff's deed was based that were of such a character as to invalidate the plaintiff's title. It is argued that the plaintiff must recover, if at all, upon the strength of her own title, and not upon the weakness of the title of the defendant. That is a familiar rule in actions for the recovery of the possession of real estate, the cases cited by counsel for the defendant being of that character. But a different rule applies in this case. One in the quiet and peaceable possession of land, under color of title, may maintain an action to quiet his title as against an adverse claimant who cannot show a superior title. (Brenner v. Bigelow, 8 Kan. 496; Giltenan v. Lemert, 13 id. 476.) Under this rule, the objection of the defendant cannot prevail.

At the time N. Rosenberg secured the transfer of the tax-sale certificate, he was the purchaser of the land upon which such certificate was issued, only lacking the sheriff's deed as evidence of his title, to be absolute owner thereof. Under such circumstances, he was not in a position to acquire a tax title, and the purchase by him of such certificate will, as against this plaintiff, be held to be a payment of the delinquent taxes, and a redemption of the land from the tax sale. (Keith v. Keith, 26 Kan. 26; Jones v. Comm'rs of Miami Co., 30 id. 278; Miller v. Ziegler, 31 id. 417.) The assignee of a tax-sale certificate acquires no better title thereto than that possessed by his assignor; nor does the assignment confer upon the assignee any lien for delinquent taxes superior to that which the assignor could claim. Whatever imperfections and disabilities existed against such certificate in the hands of the assignor are operative against any subsequent claimant. The...