Richards v. Tarr

• Decision Date: 09 November 1889
• Citation: 22 P. 557,42 Kan. 547
• Parties: C. I. RICHARDS v. JOHN C. TARR et al
• Court: Kansas Supreme Court

22 P. 557

42 Kan. 547

C. I. RICHARDS v. JOHN C. TARR et al

Supreme Court of Kansas

November 9, 1889

Error from Leavenworth District Court.

EJECTMENT. The opinion states the case.

Justice affirmed.

John C Douglass, for plaintiff in error.

H. W Ide, for defendants in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

This is an action of ejectment, commenced by plaintiff in error against defendant in error, John C. Tarr, the plaintiff claiming title to the south 60 feet of lots 14, 15, and 16, in block 1, Day's subdivision to the city of Leavenworth, under a tax deed for city taxes. The defendant answered by a general denial. On the trial, at the April term, 1886, of the Leavenworth district court, the plaintiff's tax deed was held to be void; and thereupon the plaintiff asked the court to find that the taxes paid by him were a lien upon this tract. After the application of plaintiff was made, M. E. Tarr, the wife of John C. Tarr, on her own motion was made a party defendant over plaintiff's objection, for the purpose of resisting the application of plaintiff for the allowance of a tax lien. The court, trying the case without a jury, made the following findings of fact and conclusions of law:

"1. On the 6th day of March, 1872, the city of Leavenworth, then and ever since and at all times therein, was a city of the first class, in Leavenworth county, state of Kansas, and by its clerk conveyed to the plaintiff by tax deed the property in controversy, to wit: The south 60 feet of lots 14, 15, and 16, in block 1, in Day's subdivision of said city. Said tax deed was for all delinquent taxes for 1871 and 1872, and which, with interest and costs, now amount to $ 403.84, estimated under the provisions of § 142, ch. 107, p. 967, Dassler's Comp. Laws of 1879; said tax deed contains no recital that the land was subject to taxation for those years, and no recital that the lots were advertised for sale by public notice, etc., further than the recital that the sale was in conformity with the charter and ordinances of said city, which deed the plaintiff admitted on the trial was null and void under the previous rulings of this court; in all other respects the deed, and all the acts of all the officers and parties anterior to the delivery of the deed, were in conformity with the charter and the ordinances of said city providing for the sale and conveyance of lands for the non-payment of taxes, and said lands were taxable for said years. Said deed was duly acknowledged, and was duly recorded in the office of the register of deeds of said county, on the 20th day of May, 1882.

"2. The defendant John C. Tarr is the husband of the defendant M. E. Tarr; and ever since 1861 they have been residing with their family on the property in controversy, and occupying the same as their homestead; and during all of that time the defendant M. E. Tarr has held in her own name the patent title to said property."

"The defendant, M. E. Tarr, is the owner of said property, the lots in controversy, and is entitled to the enjoyment and possession of the same, free and clear from all taxes and tax liens of the plaintiff. And as conclusions of law, the court finds for the defendants J. C. Tarr and M. E. Tarr, and that they are entitled to recover their costs herein from the plaintiff, and finds for said defendants."

The complaint of plaintiff is, that the court refused to find the taxes paid by him were a lien upon the tract described in his tax deed. The court evidently held that the right he might have once had was barred by the statute of limitations. The plaintiff's deed was filed for record May 20, 1882. This action was commenced against John C. Tarr May 20, 1884, but the other defendant, Mrs. M. E. Tarr, who was the owner of the property, was not made defendant until June 23, 1886. She had been occupying the premises ever since the taxes were levied. Ordinarily, where the owner occupies the premises, all right under a tax deed, either of recovery of the land or for a tax lien, is barred in two years. The plaintiff does not controvert this, but claims that the tax deed was...