West v. Cameron
| Decision Date | 01 July 1888 |
| Citation | 18 P. 894,39 Kan. 736 |
| Parties | F. D. WEST v. R. W. CAMERON |
| Court | Kansas Supreme Court |
Error from Ellis District Court.
EJECTMENT by Cameron against West and another. Trial by the court, at the November term, 1885, and judgment for the plaintiff for the recovery of the land, and in favor of the defendant for the recovery of the taxes. Both parties complain -- the defendant West filing a petition in error, and plaintiff Cameron filing a cross-petition in error here. The opinion states the case.
Judgment reversed and cause remanded for a new trial.
David Rathbone, for plaintiff in error.
W. P Montgomery, for defendant in error.
OPINION
This was an action in the nature of ejectment, and also to set aside a tax deed. It was brought in the district court of Ellis county on March 4, 1884, by R. W. Cameron against F. D. West and J. C. West for the recovery of section 23, (640 acres,) in township 13, range 19, in said county, and also to set aside a tax deed upon the land executed to F. D. West by the county clerk of said county on November 28, 1881, for the taxes of 1877. The taxes on the land for that year were $ 59.80, and West at the date of the tax deed paid for the tax-sale certificate and for the tax deed the sum of $ 106.14. This tax deed was recorded on November 29, 1881. The plaintiff below claims that the tax deed is void for the reason that the land was not subject to taxation for the year 1877, and also that it was not legally assessed, nor legally advertised for sale, nor legally sold for taxes. The case was tried by the court without a jury, and judgment was rendered in favor of the plaintiff for the recovery of the land, and in favor of the defendant, F. D. West, for the recovery of the taxes; and both sides now complain, the defendant, F. D. West, filing a petition in error, and the plaintiff, Cameron, filing a cross-petition in error. The plaintiff in error, defendant below, now claims that the plaintiff below could not and cannot maintain his present action, and that the court below erred for the following reasons, to wit: 1. The plaintiff has at no time tendered the amount of the taxes paid by the defendant upon the land in controversy. 2. The tax deed is valid upon its face, and the statute of limitations has completely run in its favor. 3. The defendant's answer to the plaintiff's petition set up new matter, to which the plaintiff has never replied. 4. The court, after hearing the case and taking the same under advisement, erroneously, and on motion of the plaintiff, opened up the case for the purpose of receiving further evidence therein; and then erroneously granted the plaintiff a continuance for the purpose of receiving such evidence, and such evidence was so received. 5. The court, at the instance of the plaintiff, erred in admitting the records of the register of deeds in evidence to prove the execution, the existence and the contents of a deed of conveyance, which deed was shown to be in the possession and under the control of the plaintiff himself. 6. It is also claimed by the defendant below, that as this was an action of ejectment under § 595 of the civil code, the court erred in refusing a second trial under § 599 of the civil code.
The plaintiff below, defendant in error, by his cross-petition claims that the court below erred in requiring him to pay the taxes paid by the defendant below on the land.
We think the rulings of the court below with one exception are substantially correct.
I. In an action of ejectment where it appears that the plaintiff is the owner of the property, and that the defendant holds the same under a void or voidable tax deed, as in this case, the plaintiff's action cannot be defeated by showing that the plaintiff has not tendered the amount of the taxes paid by the defendant on the land; and even in an equitable action brought by the owner of the land to set aside a tax deed thereon, where it is honestly believed and alleged by the plaintiff that the tax deed is void for the reason that the land was not subject to taxation at the time it was taxed, the action may be maintained without a previous tender of the taxes paid by the defendant on the land. ( Sapp v. Morrill, 8 Kan. 677; Corbin v. Young, 24 id. 198, 202; Millbank v. Ostertag, 24 id. 462, 470, et seq.; Shaw v. Kirkwood, 24 id. 476; Cartwright v. McFadden, 24 id. 662; McKeen v. Haxtun, 25 id. 698; Hoffman v. Groll, 35 id. 652.) The payment of the taxes may be adjusted when the decision is rendered.
II. The owner of land has five years after a tax deed upon it has been recorded within which to commence an action to set aside or to defeat, or avoid the tax deed. (Tax Law, § 141; Thornburgh v. Cole, 27 Kan. 490; Harris v. Curran, 32 id. 580; Hafey v. Bronson, 33 id. 598; Beebe v. Doster, 36 id. 666.)
III. The new matter set up in the defendant's answer did not constitute a defense...
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St. Louis & S. F. R. Co. v. Long
...companies. The case of Harris v. Palmer, 25 Okla. 770, 108 P. 385, is in point here. In the opinion in that case the case of West v. Cameron, 39 Kan. 736, 18 P. 894, is quoted with apparent approval as follows: "In the case of West v. Cameron, supra, the Supreme Court of Kansas on this prop......
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St. Louis & S. F. R. Co. v. Long
...in that case the case of West v. Cameron, 39 Kan. 736, 18 P. 894, is quoted with apparent approval as follows: "In the case of West v. Cameron, supra, the Supreme Court Kansas on this proposition said: 'The opening of a case for the purpose of receiving further evidence, after the case has ......
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