Thomas v. Rauer

• Decision Date: 09 March 1901
• Docket Number: 11,841
• Parties: FRANK. J. THOMAS v. J. J. RAUER
• Court: Kansas Supreme Court

64 P. 80

62 Kan. 568

FRANK. J. THOMAS v. J. J. RAUER

No. 11,841

Supreme Court of Kansas

March 9, 1901

Decided January, 1901.

Error from Shawnee district court; Z. T. HAZEN, judge.

Judgment affirmed.

Isenhart & Alexander, for plaintiff in error.

W. H Cowles, for defendant in error.

OPINION

CUNNINGHAM, J.:

This was an action in ejectment brought by defendant in error, J J. Rauer, who claimed under a deed from one Oxford, the latter having claimed under a sheriff's deed made in an action in attachment against W. H. Brooks, jr., a non-resident, who at one time owned the land in question. The defendant below, Frank J. Thomas, was in possession of the property and claimed under tax deeds. He further contends that the plaintiff ought not to recover because there was a superior title outstanding in Willie C. Brooks, which he had received by deed from his father, W. H. Brooks, jr., before the commencement of the action in attachment by Oxford. The plaintiff, Rauer, as against this, contends that this deed made to Willie C. Brooks by W. H. Brooks, jr., was made for the purpose of defrauding the creditors of said W. H. Brooks, jr., and hence was void. The defendant claimed that this could not be shown by the plaintiff for the following reasons: (1) That Rauer was not and never had been a creditor of W. H. Brooks, jr., and hence could not urge this fraud, if any there was; (2) that if there was fraud more than two years had elapsed since its discovery, and, hence, it could not be urged, because barred by the statute of limitations. The court overruled both of these contentions, and found that Thomas's tax deeds were void because of irregularities in their issuance. As to this no fault is found.

The court further found, as a matter of fact, that the deed of W. H. Brooks, jr., to Willie C. Brooks was made for the purpose of defrauding the creditors of W. H. Brooks, jr., and was void, and rendered judgment in favor of the plaintiff, Rauer. The defendant, Thomas, brings this action here, and suggests as error the two matters which he urged below against the admission and consideration of the deed of W. H. Brooks, jr., to Willie C. Brooks.

Under the decisions of this court, we must hold that this outstanding title in Willie C. Brooks cannot be set up to defeat the claim of the plaintiff. In Duffey v. Rafferty, 15 Kan. 9, the court, in the syllabus, said:

In an action in the nature of an action of ejectment, in Kansas, the plaintiff may recover, if he has any right to the property, and if that right is paramount to any right to the same possessed by the defendant, although the legal title to the property may be outstanding in some third person, and although some third person may have a better right to the property than the plaintiff."

The incidental remark made in the opinion of the court when this case was here before (Rauer v Thomas, 60 Kan. 71, 55 P. 285), that might be construed to hold contrary to the doctrine announced in Duffey v. Rafferty, supra, was not intended to commit the court to the contrary doctrine, although many courts hold that way. We now decide...