84 Kan. 682 | Kan. | 1911
The opinion of the court was delivered by
The holder of the original title recovered in ejectment against one claiming under a tax deed, who appeals.
The tax deed was not introduced in evidence, but its execution was admitted. Nothing having been shown to the contrary, it must be presumed that it was regularly issued and valid in all respects. Of course a party relying upon a tax deed could not be permitted to testify that one had been issued to him, and thereby secure the benefit of the presumption of regularity, without subjecting'the instrument to objection for defects appearing upon its face; but where the opponent voluntarily admits that a tax deed was executed the presumption that public officers do their duty requires the court in the absence of any further showing to re
The tax deed was issued and recorded March 31, 1899. The grantee at once occupied the property and held it for four years. Such at least was the defendant’s evidence, and as its truth does not seem to have been challenged we shall assume that the court believed it. In the spring of 1903 the original owner (the plaintiff) obtained possession, which continued for more than two years. Then the tax-title claimant (the defendant) acquired possession, which she maintained until the beginning of the action, November 24r 1908.
The plaintiff contends that when he took possession of the property in 1903 the statute of limitations (Civ; Code, § 15, subdiv. 3) began to run in his favor; that in two years its bar became complete; and that thereupon the tax title was practically extinguished, and its holder could neither maintain ejectment, nor by taking physical possession acquire a standing to resist such an action when brought by the original owner. This would doubtless be the rule if between the issuance of the tax deed and the taking of possession by the original owner the land had remained vacant and unoccupied. The statute would in that case have begun to-run when the original owner took possession, and when such possession had continued for two years all right of action on the part of the tax-deed holder would have been lost. (Coale v. Campbell, 58 Kan. 480.) And when the statute has once run against a tax deed the holder can not evade its effect merely by finding the premises temporarily unoccupied and taking physical possession. But when in the present case the grantee
It follows from this view that if the tax deed is in fact valid in all respects the defendant is entitled to judgment, however her present possession was acquired, since her earlier possession made her the absolute owner of the property. If the deed is invalid upon its face she of course can not recover, for she then has no title. But as it may develop that the deed is apparently good, but is voidable for some latent defect, we are required to decide the effect of that condition, under whatever changes 'of possession may be shown at a new trial. Speaking of that kind of a tax deed, if the land affected remains vacant for five years after it has been recorded, and the patent-title holder then takes possession, the tax-title holder can not maintain ejectment, for in that situation he can not invoke the benefit of the five-year statute of limitations (Laws 1876, ch. 34, § 141, Gen. Stat. 1909, § 9483) to prevent an inquiry into the proceedings .back of his deed. (Stump v. Burnett, 67 Kan. 589.) The fact that the tax-title holder at one time had actual possession does not change the rule, if he lost it before the five years had
On the other hand, the holder of a voidable tax deed which has been recorded for more than five years can not thereafter gain, the right to the protection of the five-year statute of limitation in its support by taking physical possession on finding the property temporarily vacant, where the original owner is undertaking to maintain his occupancy of the property. The original
Stated in general terms, the' proposition is this: Where there has been an actual occupation, after the issuance of a tax deed, by the original owner or the holder of the tax title, the opposing claimant, by gaining possession before the statute of limitations has barred his right, can stay its operation against himself; but he can not by merely getting a physical possession and compelling the former occupant to take the offensive either gain a right to the protection of the statute of limitations himself or deprive his adversary of such a right. This would of course be true where his possession was procured by force, by fraud, or by stealth. (Nicholson v. Hale, 73 Kan. 599.) It is equally true where he is enabled to take possession because the use to which the adverse claimant puts the property leaves it for a part of the time without an actual occupant.
In the present case no one appears to have resided on the property at any time, and there seems to have been no building thereon. The plaintiff, beginning with 1903, had leased it from year to year for several years to a tenant who raised a crop each season, and it was the expectation that the same tenant would occupy it for the next year. But between the harvesting of one crop and the putting in of another the defendant, finding no one at the time upon the premises, took possession. There was no voluntary surrender or abandonment of possession by the plaintiff. His occupancy’ had been practically continuous, and as complete as the nature of the tract admitted. (Buehler v. Teetor, ante, p. 281.) The defendant by taking possession under such circumstances acquired no right to claim the protection of a statute of limitation which she could not have invoked if she herself had brought ejectment. Therefore the plaintiff upon a new trial should have opportunity to challenge the tax deed for defects.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith. Nothing herein said, however, is intended to conclude the district court as to the facts.