Walker v. Fleming

• Decision Date: 09 July 1887
• Citation: 14 P. 470,37 Kan. 171
• Parties: A. D. WALKER v. AUGUSTUS A. FLEMING
• Court: Kansas Supreme Court

14 P. 470

37 Kan. 171

A. D. WALKER v. AUGUSTUS A. FLEMING

Supreme Court of Kansas

July 9, 1887

Error from Jackson District Court.

ACTION by Augustus A. Fleming against A. D. Walker and James H Lowell, to recover damages for the breach of covenants in a certain deed executed by defendants to plaintiff. His petition is as follows (court and title omitted):

"Plaintiff avers that on the 5th day of March, 1879, the defendants together with Annie E. Walker, wife of said A. D. Walker, and Kate M. Lowell, wife of said James H. Lowell, by deed in writing of that date duly executed, acknowledged and delivered, (a copy of which is hereto attached, marked 'Exhibit A,' and made a part hereof,) in consideration of $ 600 by the plaintiff then in hand paid to the defendants, granted, bargained, sold and conveyed to the plaintiff and to his heirs and assigns forever, all of the following described tract and parcel of land, lying, being and situate in the county of Jackson and state of Kansas, to wit: the northwest quarter of section twenty-one, in township five, of range fifteen, together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining, to have and to hold the said premises with the appurtenances, unto the said Augustus A. Fleming his heirs and assigns forever; and the defendants by said deed covenanted to and with the plaintiff, his heirs and assigns forever, that they, the defendants, were lawfully seized of the premises aforesaid, that said premises were free and clear from all liens and incumbrances whatsoever and that they would forever warrant and defend the same, with the appurtenances, unto the plaintiff; his heirs and assigns, against the lawful claim or claims of all persons whatsoever.

"And plaintiff avers that at the time of making and delivering said deed said premises were not free and clear of liens and incumbrances, but on the contrary said premises were then subject to valid liens for unpaid taxes lawfully assessed and levied against said premises for each of the following years, to wit: 1861, 1862, 1863,1864, 1865, 1866, 1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877, 1878; that said premises had been lawfully sold at tax sale on the 8th day of May, 1862, and the 1st day of May, 1866, respectively, by the county treasurer of Brown county, Kansas, in which county said land was situated, at each of said dates respectively; and that at the date of the execution and delivery of said deed by defendants to the plaintiff as aforesaid, valid tax-sale certificates based upon said tax sales were outstanding, in full force and virtue, and each of said tax-sale certificates was then held by one Medad Harvey, and the taxes, penalties and charges for all of said years from 1861 to 1878, both inclusive, had been paid by the said Medad Harvey and his grantors and assignors claiming under said tax-sale certificates, and by reason of the premises aforesaid the said Medad Harvey, at the date of the execution and delivery of said deed by the defendants to the plaintiff as aforesaid, then had and held a valid lien against said premises for the taxes, penalties, costs, charges and interest for all of the years aforesaid, to wit, the years 1861 to 1878, both inclusive, and for an amount equal to the cost of redemption at that time, to wit, the sum of one thousand dollars; and that thereafter, to wit, on or about the 6th day of July, 1881, said Medad Harvey, for value received, sold, assigned and delivered said tax-sale certificates to one F. D. Mills, and on the 3d day of February, 1882, the county clerk of Brown county, state of Kansas, duly made, executed, acknowledged and delivered to said F. D. Mills a tax deed in writing of that date, in due form, based upon said tax sale of May 8, 1862, and conveying said premises to said F. D. Mills; and that on the 4th day of May, 1882, the county clerk of Brown county, state of Kansas, made, executed, acknowledged and delivered to said F. D. Mills two other certain tax deeds in writing of that date, based respectively upon said tax sales of May 8, 1862, and May 1, 1866; and the subsequent taxes and charges paid by the tax purchaser and his assigns as aforesaid, each of said tax deeds being in due form of law, and each conveying to said F. D. Mills the said tract of land sold and conveyed by the defendants to this plaintiff as aforesaid, and which said two tax deeds last mentioned were on the 6th day of May, 1882, filed for record in the office of the register of deeds of Jackson county, Kansas, and duly recorded therein, in book 26 of deeds, at pages 610 to 611 and 612, respectively.

"Plaintiff further avers that he, the said plaintiff, was compelled to remove said incumbrance and was compelled to and did pay the full sum of $ 1,000 to discharge the same, of all of which the defendants were duly notified; yet the defendants, though often requested, have not paid to plaintiff the sum of money so paid by him for the removal of said incumbrances upon the title to said premises as aforesaid, or any part thereof, but on the contrary have refused and still refuse to pay the same. And plaintiff avers that by reason of the premises so as aforesaid averred, he has sustained damage in the sum of one thousand dollars. Plaintiff further avers that the defendants, A. D. Walker and James H. Lowell, have each been absent from the state of Kansas more than one year, since the 5th day of March, 1879.

"Wherefore, for the causes aforesaid, plaintiff prays judgment against the defendants for the sum of five hundred and ninety-nine dollars, with interest thereon from the 5th day of March, 1879, at the rate of 7 per cent. per annum, and for all costs of this action."

To said petition the defendants filed a general demurrer, which was overruled. Thereafter they filed their answer, as follows:

"1. The defendants deny each and every allegation of the plaintiff's petition.

"2. Defendants say that plaintiff ought not to have his action herein, because he did not commence the same until more than five years after the same accrued, and by statute his alleged claim is barred."

Trial by the court, at the June Term, 1885. The court found in favor of the plaintiff and against defendant Walker, and in favor of Lowell and against the plaintiff, and gave judgment for the plaintiff against Walker for $...