21 Kan. 602 | Ark. | 1879
The opinion of the court was delivered by
This Avas an action brought by the plaintiff in error, under section 595 of the code, to recover certain real property in the possession of the defendants in error. Upon the second trial the court found that the defendants claiming title to the land in controversy held under an administrator’s sale through the probate court of Leavenworth county, which was void for Avant of the notice required by § 24, laws 1855, page 72, and thereon adjudged the legal ■title and right of possession to the land to the plaintiff, subject to the rights of certain defendants under and by virtue of the provisions of article 25 of the code, relating to occupying claimants, and the right of these defendants to have refunded the taxes paid by them.
The so-called administrator’s sale took place between September 22d, 1859, and December 21st, 1859, and the deed was executed Dec. 31st, 1859. This action was commenced March 1st, 1873. The judgment was rendered December 12th, 1874.
Counsel for plaintiff contend, in the first place, that as §136, Gen. Stat. 1062, relating to the repayment of taxes where lands are in controversy, only took effect March 15th, 1868, and §613, Gen. Stat. 753, concerning the refunding of the purchase money in certain cases where lands are sold by an administrator, etc., only took effect October 31st, 1868, these sections are void and inoperative as to this case. Their argument is, that as the plaintiff had over eight years after the administrator’s sale to sue for and recover the land, without refunding the purchase money paid the administrator, and without the repayment of the taxes, said §§ 136 and 613 are violative of §§18 and 20 of the bill of rights of our state constitution, for if applicable in this case, they allege that they in effect take from the plaintiff his property and give it to certain of the defendants, to the extent, at least, of the amount of the purchase money — some $2,536.87 and the taxes, with interest. Again, counsel further argue that if said sections can have force retroactively, then by mere legislative enactment property is taken from one individual and given to another for his individual use, and rights and liabilities are created, established and determined without any act, consent or previous reason or cause in the law therefor, at the mere caprice of the legislature. The argument thus presented is ingenious and able, and at first blush plausible, but ignores the relation which the claims to be refunded bear to-the estate inherited by the plaintiff, and the equitable rights of such defendants.
At the time of the decease of Jeremiah H. Claypoole, the ancestor of plaintiff, the statutes of the territory providing for descents and distributions, made the debts of said deceased a charge on this land. One of these debts was a balance due for purchase money on the land in dispute. The land was sold for the payment of the debts, including the claim for purchase money overdue. This money was applied in the payment of these debts, and deed obtained for the land. Thus, with the $2,536.87, the land was discharged from the lien of the debts of the deceased, and the final payment of the,purchase price made; equitably, therefore, it is clear that if the sale was void the heir ought not to obtain the property in any better condition than it was left by his ancestor. It was then burdened'with debts and unpaid purchase money. The judgment requires this to be paid. It has been frequently held that where a title in equity was such that a court of chancery ought to interfere and decree a good legal title, it was within the power of the legislature to confirm the deed. Section 613 is an exercise of no greater power. By its adoption the purchaser, at what was supposed to be a valid sale, has the right, whether the sale was prior to or after the passage of the section, to be subrogated to the position of the creditors, who received the purchase money to be applied on their claims. It comes in aid of persons who have acted in good faith, and whose acts have been beneficial, not injurious, to the rights of the heir. The law does not require the plaintiff to give up any part of the property he inherited; it simply gives it to him as inherited. The law does not create property in the defendants, but cures defects existing at its passage in the interest of purchasers at executors’, administrators’ and judicial sales. It very properly demands that where such sales are decreed invalid, the property shall not be taken from their possession, obtained under the sale by the person originally liable, or one standing in his shoes, until the purchase money is refunded: in other words, it reinstates the lien on the land in favor of one whose money has been applied to the’discharge of such lien under a sale which turns out to be irregular, and therefore void. In being allowed to operate retrospectively, it does not impair any contract or disturb any vested right. It cannot therefore be said to violate any provision of our bill of rights, nor to assume judicial power. It does not transfer property by its own act, but says in substance to the heir, you shall act honestly. The same rule is applicable to § 136, which provides for the return of the taxes, because they all were an original charge and lien on the land till paid by defendants.
It is further insisted that sections one and two,-ch. 102, laws 1873, are unconstitutional and void as to any case; and McCoy v. Grandy, 3 Ohio St. 463, 471, is cited as decisive. The act of March 22d, 1849, of Ohio, (referred to in the latter case,) is widely different from the act of our legislature of March 6th, 1873. The former act gave to the occupying claimant the option either to take the land by paying a sum of money equal to the value of the land in a state of nature, or to receive payment for his improvements. Our statute of 1873 requires the value of all lasting and valuable improvements to be paid by the owner of the land as a condition precedent to the entry. It does not give any option to the claimant to keep the land, and the provision for judgment in his behalf for the improvements must be construed merely to prevent any writ or process from issuing for his eviction, until the assessment or judgment for improvements is paid. No personal judgment can be entered against the owner of the land, capable of being enforced by execution or other process. With this construction, the amendatory act of 1873 is constitutional. It rests upon a strong equity in favor of a compensation for improvements which have augmented the value of the land and inured to the benefit of the owner, and such owner takes the land, but pays for such improvements. Under our statute, the owner is not compelled to give up his land, but merely to recompense the occupying claimant the .amount which its value has been increased by means of the improvements. This is really the adoption of the well-settled principle in equity, of allowing a bona fide occupant the value of his improvements on real estate. (Guthrie v.Stebbins, 4 Kas. 353.)
The order and judgment of the district court will be affirmed.
