The Equitable Investment Trust Company v. Essex

• Court: Kansas Supreme Court
• Writing for the Court: GREENE, J.
• Citation: The Equitable Investment Trust Company v. Essex, 86 P. 467, 74 Kan. 240 (Kan. 1906)
• Decision Date: 06 July 1906
• Docket Number: 14,567
• Parties: THE EQUITABLE INVESTMENT TRUST COMPANY v. J. A. ESSEX

86 P. 467

74 Kan. 240

THE EQUITABLE INVESTMENT TRUST COMPANY v. J. A. ESSEX

No. 14,567

Supreme Court of Kansas

July 6, 1906

Decided July, 1906.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

STATEMENT.

J. A ESSEX, who was in possession of certain lots in Kansas City Kan., brought his suit against the plaintiff in error and others to quiet his title thereto. The plaintiff in error filed its answer and cross-petition, in which it claimed to be the owner in fee of the lots, alleging fully its title and also what it claimed to be the plaintiff's title, stating that he had derived title from B. and Mary T. Gray, husband and wife, but that previous to such conveyance the Grays had conveyed the lots to James S. Thornton and Woodford R Thornton, executors of the will of James T. Thornton; that these executors had been succeeded by Edwin W. Zea, as administrator with the will annexed of the estate of James t. Thornton, deceased; that as such administrator Zea and the heirs of James T. Thornton had some interest or estate in the lots; and asked that they be made parties and be required to plead, so that the entire controversy concerning the title might be finally determined and title quieted in the Equitable Investment Trust Company.

To this cross-petition the plaintiff filed a general denial. When the cause was called for trial the court, upon the request of the plaintiff, dismissed his suit, and the cause was tried without a jury upon the issues joined by the plaintiff's reply to the plaintiff, in error's cross-petition. Upon this issue it was held that the tax title under which the plaintiff in error claimed was void and that it had no title to the lots. It then applied for a finding by the court of the amount due it for taxes and asked that such amount be decreed to be a lien upon the lots. After hearing the evidence as to the amount of taxes the court refused to adjudge a lien therefor, on the ground that the suit was one to quiet title. The refusal of the court to decreed a lien for the taxes claimed to have been paid by the plaintiff in error is the only error assigned.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

QUIETING TITLE--Suit by Tax-deed Holder--Lien for Taxes. In a suit by the holder of a tax deed against the original owner to quiet title, if he fail to establish his title, he cannot have the taxes paid decreed to be a lien upon the land.

Bird & Pope, and Reed & Reed, for plaintiff in error.

Keplinger & Trickett, for defendant in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.

This is a suit by the plaintiff is error, on its cross-petition, to quiet its title to the lots in controversy. No other issue was triable under the cross-petition and reply. It is settled in this state that if a tax-deed holder, in a suit by him against the original owner to quiet title to real estate, fails in establishing his title he cannot convert his suit into a possessory action and have the taxes paid by him declared to be a lien on the real estate. (Corbin v. Young, 24 Kan. 198.) The reason for this is that ample provision is made by statute for relief in such cases and there is no occasion for resorting to a court of equity. Section 7681 of the General Statutes of 1901 reads:

"If the holder of a tax deed or any one claiming under him by virtue of such tax deed be defeated in an action by or against him for the recovery of the land sold, the successful claimant shall be adjudged to pay to the holder of the tax deed, or the party claiming under him by virtue of such deed, before such claimant shall be let into possession, the full amount of all taxes paid on such lands, with all interest and cost as allowed by law up to the date of said tax deed, including the cost of such deed and the recording of the same, with interest on such amount at the rate of twelve per cent. per annum, and the further amount of...