Stump v. Burnett

• Decision Date: 10 October 1903
• Docket Number: 13,283
• Parties: L. B. STUMP v. S. C. BURNETT
• Court: Kansas Supreme Court

73 P. 894

67 Kan. 589

L. B. STUMP v. S. C. BURNETT

No. 13,283

Supreme Court of Kansas

October 10, 1903

Decided July, 1903.

Error from Sumner district court; JAMES LAWRENCE, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. TAXATION--Limitation of Action in Ejectment by Adverse Claimant. A tax deed of vacant land, valid upon its face, and duly recorded, invests the tax-title holder with constructive possession of the land; and such constructive possession, when uninterrupted by the actual possession of the adverse claimant, perfects the tax deed at the expiration of the five-year period of limitation prescribed by section 141 of the tax law (Gen. Stat. 1901, § 7680), as against affirmative assaults upon it for defects in the proceedings upon which it is based.

2. TAXATION--Invalid Tax Deed--Ejectment by Holder of Tax Deed. A tax deed of vacant land, valid upon its face and duly recorded for five years, may be impeached by way of defense, for defects in the proceedings upon which it is based, when used as a foundation for affirmative relief in an action brought by the tax-title holder, even though the five-year period of limitation prescribed in section 141 of the tax law has elapsed.

O. G. Eckstein, and Ready & Ready, for plaintiff in error.

Ivan D. Rogers, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

The question in this case involves the right to impeach, by way of defense, for defects in the proceedings upon which it is based, a tax deed, valid on its face, when used as the foundation for an action of ejectment brought by the tax-title holder more than seven years after the recording of the deed, the land having remained vacant and unoccupied until within two years of the commencement of suit.

Burnett claims title to out-lot 12 1/2, city of Caldwell, under a tax deed for that tract, together with out-lots 14 and 15 in the same city, issued and recorded January 20, 1879. Stump claims title from the original patentee. The lot remained vacant and unoccupied until August, 1901, when Stump took possession of it, which possession he has ever since continued to hold. In November, 1901, Burnett brought this action in ejectment. The defendant made no claim for affirmative relief. Upon a final trial before the court the plaintiff introduced the tax deed, proved the chain of his title under it, proved the facts relating to the possession of the lot, the payment of taxes thereon, and rested. The tax deed is valid on its face, but the proceedings upon which it is based are defective in that the out-lots described are not contiguous tracts of land. Each one is separated from the other by a street, each one was owned by a separate individual when taxed, and each one was separately taxed and separately sold, but the deed recites a gross sale for a gross sum. The defendant proved his chain of title and offered to prove the imperfections in the tax proceedings, which were admitted to exist, but upon objection was not permitted to do so, and judgment went against him. If he should have been allowed to do this the judgment must be reversed.

Section 141 of the tax law (Gen. Stat. 1901, § 7680) reads as follows:

"Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of land sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter."

It is perfectly plain that this is an action to procure something which the plaintiff has never enjoyed. He never had actual possession of the land. He might have taken such possession but he neglected to do so. True, the tax deed, good on its face, cast upon its holder constructive possession, but constructive possession exists only in legal contemplation, and falls far short of the immediate occupation in fact which actual possession requires. The plaintiff therefore seeks to enlarge the scope of his actual proprietorship and to add to the sum of enjoyment hitherto furnished by his tax deed the new, distinct increment of actual possession. To do this he commenced an action; he assailed the party in possession; he became plaintiff, not defendant; proceedings were instituted by him, not against him. The statute quoted says nothing whatever about a suit brought by a tax purchaser to recover from others land sold for taxes. It relates solely to the commencement of an action of a different kind. Therefore, it has no application to the facts of this controversy.

In Walker v. Boh, 32 Kan. 354, 4 P. 272, a tax-title holder brought an action to quiet his title. The defendant offered to show defects in the tax proceedings sufficient to avoid the deed, but was met by the same objection the plaintiff interposes in this action, viz., that the statute of limitations quoted had made the tax deed invulnerable. The court said:

"Now it may be that this limitation has so run in favor of the plaintiff's tax deed that no person can maintain an action against him for the recovery of the land, or to defeat or avoid his tax deed. But this is not such an action. This is not an action, against the plaintiff, but it is an...