The opinion of the court was delivered by
Johnston, J.:
The principal purpose of this action was to recover a portion of the land in controversy, or the plaintiff’s interest in the same. That a share of the land descended to him from his mother, is unquestioned; and the title to the same remains in him still, unless it has been cut off by the decree or the tax deed mentioned in the pleadings, or by some of the statutes of limitation. The relief sought in the first and second counts of the petition was the vacation of the decree rendered in 1871, quieting title in Aaron Parrent, and the setting aside of the tax title and deed acquired by him while he was an owner in common with the plaintiff; and this is asked to clear the way for the more substantial relief claimed under the later allegations of the petition. The court held that the statute of limitations barred the plaintiff from obtaining relief under any of the causes of action stated in the petition.
1. Judgment against infant vacation-limitation. "We shall take up the counts of the petition in the order in which they are pleaded, and determine whether the plaintiff is barred from obtaining the relief which he asks. With reference to the vacation of the judgment, it is claimed that the plaintiff should have commenced this action within one year after arriving at the age of majority, in order to successfully maintain it. He became 21 years of age on January 17,1884, and the action was begun on March 6, 1885, more than one year but less than two years after the disability of infancy was removed. We are of opinion that he was within the time allowed by the statute in cases pbe this. The judgment sought to be vacated was obtained in the same court in which this action was brought. It was rendered against the plaintiff when he was less than nine years of age, and neither he nor any guardian or other representative of his appeared or was brought into court; nor had he any actual bnowledge of the pendency of the action until February 1, 1885, about a month prior to the bringing *554of this action. The judgment was based only upon a publication notice to “ the heirs of-Delashmutt, whose Christian name is unknown, former wife of John J. Delashmutt, but since deceased.” The infancy of the plaintiff was not disclosed by the record, and hence this action falls within §§ 568 and 575 of the code. In § 568 the district court is authorized to vacate or modify its own judgment after the term at which it was rendered, for several causes. In the fifth subdivision of the section it is provided that it may be done “for erroneous proceedings against an infant or a person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings.” Section 575 provides that “proceedings to vacate or modify a judgment or order for the causes mentioned in subdivisions four, five, and seven, of § 568, must be commenced within two years after the judgment was rendered or order made, unless the party entitled thereto be an infant, or person of unsound mind, and then within two years after the removal of such disability.”
We are referred to § 413 of the code as limiting the time within which the plaintiff could attack the judgment to one year after attaining full age. It will be observed that that section is providing specially for the manner of entering judgment, and dispenses with the practice of reserving in the judgment the right of the minor to show cause against it when he arrives at majority. It proceeds upon the theory that the disability of infancy is disclosed, and the infant is allowed one year after reaching majority to show cause against the judgment in any case where, but for that section, a reservation would have been proper. Here the court was asked to vacate its own judgment in a case where the infancy of the party was not disclosed by the pleadings, and where evidence outside of the record was necessary to make the error manifest. The facts of the case bring it fairly within the application of the provisions of the code that have been quoted, allowing the plaintiff two years after the disability of infancy has been removed within which to seek a vacation of the j udgment.
*5552 Tax sale — purchase by tenant in common-effect. In regard to the tax sale and deed spoken of in the second count, it may be said that Aaron Parrent did not strengthen his title by the purchase or acquire the plaintiff’s interest in the land. The land in controversy stood in the name of Sarah A. Delashmutt at the time of her death, and therefore one-half of the property descended to her husband, John J. Delashmutt, and one-half to the three surviving children. A conveyance was made by John J. Delashmutt and his second wife on February 22, 1868, to Aaron Parrent, the ancestor of the defendants in error. It is not claimed or shown that John J. Delashmutt ever acquired the interest of the minor children in the land, except that of William D., who died before the commencement of this action, leaving his father as his only heir at law. Aaron Parrent allowed the taxes of 1869 to become delinquent, and in May of the following year he purchased the land at a tax sale, and upon that sale a deed was issued on May 3,1873. At the time of the tax sale he was a tenant in common with the minor heirs, and was therefore precluded from becoming a purchaser at the tax sale. Being a joint owner of the land, it became his duty to pay the taxes assessed against it. His interest in the land was an undivided one, and the tax was a charge upon the whole. He not only owed the public duty of paying the tax, but as all the rents and profits of the land (and sufficient to pay the taxes) had been received by him, the payment of the taxes upon the common property became a duty to the other tenants in common. principle applicable in such cases is, “that a purchase made by one whose duty it was to pay taxes shall operate as a payment only; he shall acquire no rights as against a third party by a neglect of the duty which he owed to such party.” (Cooley, Tax., 2d ed., 501.) He cannot take advantage of a neglect of duty, and acquire the title of those to whom he owed that duty. It has been held that to allow one standing in that relation to purchase common property at the tax sale would amount to a fraud, and that no title could be thus obtained. The most that can be acquired is a right to compel contribution from *556his co-tenants for the taxes paid in their behalf, and that the amount paid may be treated as a lien upon the property to secure such contribution. (Carithers v. Weaver, 7 Kan. 110" court="Kan." date_filed="1871-01-15" href="https://app.midpage.ai/document/carithers-v-weaver-7882595?utm_source=webapp" opinion_id="7882595">7 Kas. 110; Keith v. Keith, 26 id. 26; Duffitt v. Tuhan, 28 id. 292; Woodman v. Davis, 32 id. 344; Muthersbaugh v. Burke, 33 id. 260; Doyle v. Doyle, 33 id. 721; Phipps v. Phipps, ante, p. 495; Brown v. Hogle, 30 Ill. 119" court="Ill." date_filed="1863-01-15" href="https://app.midpage.ai/document/brown-v-hogle-6950857?utm_source=webapp" opinion_id="6950857">30 Ill. 119; Weare v. Van Meter, 42 Iowa, 129; Cooley, Tax. 502, and numerous cases there cited.) Under these authorities the tax deed amounted to nothing in the hands of Aaron Parrent; and the defendants iu error can have no greater rights than their ancestor.
“The fact that a tax deed thus acquired may be regular on its face, or that all the requirements of the statute have been strictly complied with, avails nothing. The objection goes not to the proceedings, but to the power of the party to take the title. It is not a defect of form, but a disqualification of person. Nothing passes to him, because he is not in a position to take anything. Nor would the two-years statute of limitation assist. Such a tax deed would be void, and a void deed never starts the statute to running.” (Carithers v. Weaver, supra.)
Whether the plaintiff is barred from obtaining the relief asked for in what is termed the third count of the petition, depends upon how the allegations stated therein should be construed. If the relief asked for is not a recovery of the land, but is confined merely to a partition of the same, the plaintiff is too late with his action. Section 17 of the code provides that “any person entitled to bring an action for the recovery of real property who may be under any legal disability when the cause of action accrues, may bring his action within two years after the disability is removed;” while §19 provides that an action other than for the recovery of real property, except for a penalty of forfeiture, must be brought within one year after the disability is removed. Did this pleading embrace appropriate allegations for the recovery of real property ? It alleges that the plaintiff had the legal title and was entitled to the immediate possession of the undivided one-half of the real estate in controversy. It further alleges *557that since the 7th day of March, 1880, the defendants have been in the exclusive possession and enjoyment of the property. All that is required to be stated in an action for the recovery of real property is that the plaintiff has a legal or equitable estate therein and is entitled to the possession thereof, and that the defendant unlawfully keeps him out of the possession. In an action by a tenant in common against his co-tenant, it should also appear that the defendant has either denied the plaintiff’s right, or has done some act amounting to such denial. (Code, §§595, 597.) These requirements are substantially complied with in this pleading. It is not only alleged that the defendants were in the exclusive possession, but it is conceded that they were holding such possession under a claim of complete ownership in the land, and in effect denying that the plaintiff had any title or interest in the same. The title .of the plaintiff being disputed, ejectment was the appropriate if not the only remedy which could be employed to determine the title of the adverse claimants to the property. The theory of partition is that there is a common and undisputed ownership by which the share of each owner is to be set off) or if partition cannot be made, the court may permit any one of the owners electing to take the same at an appraised value, or may order a sale of the property and a division of the proceeds among the parties according to their respective interests. Some of the courts have gone to the extent of holding that the title of parties owning common property and claiming adversely must first be established by ejectment, before partition proceedings can be maintained. (Sedgw. & W. Title to Land, § 166.) Under our code, however, the fact that the property is held adversely to the plaintiff will not defeat an action of partition when brought in connection with or as part of another action for the recovery of real property. Under our rules of pleading the two causes of action may be united in one action, or they may, when so pleaded, and no objection is made, be treated as a single cause of action. (Scarborough v. Smith, 18 Kan. 399" court="Kan." date_filed="1877-07-15" href="https://app.midpage.ai/document/scarborough-v-smith-7884402?utm_source=webapp" opinion_id="7884402">18 Kas. 399.) In that case, Mr. Justice Valentine remarked that—
“ The said causes of action for ejectment and for partition *558may virtually and in fact be only one cause of action. The plaintiff has a right in law to possess and enjoy some specific portion of said real property, and the defendants deprive him of this right. This would seem to constitute the elements of only one cause of action; and yet this includes both the causes of action, for ejectment and for partition. That both of these causes of action in fact constitute only one enlarged cause of action, may be the view that the supreme court of Ohio took in the case of Tabler v. Wiseman, 2 Ohio St. 208, 211.”
3 Infancy-limitation of action -extension of period. The allegations of the third count, although somewhat confused, are suitable and sufficient to sustain a recovery in ejectment, for rents and profits, and for partition. The most important question involved is the title of the plaintiff in the land. This is disputed, and if it is found and determined that he has no title or interest in the land, there is no basis for partition of right of recovery for rents and profits. As the essential feature and purpose of the action is the decision of the adverse claims to the title — the recovery of real property —the added grounds for relief for rents and profits, and for Partition, may properly be regarded as incidental 1° the main ground. That being true, the action comes fairly within the limitation prescribed in §17 of the code, because it was brought within two years after the disability of infancy was removed.
It follows from the conclusion reached, that the judgment must be reversed. Although the facts were found in the case in accordance with the agreement of the parties, the findings are not sufficiently precise and full to warrant the ordering of a judgment thereon. They do not clearly show the interest to which each of the parties is entitled. The plaintiff claims that he is entitled to a one-half interest, as though no other children had survived the mother. It seems that there were sis children in all, three of whom died prior to the decease of the mother, and one of whom, William D., has since died, but the time of his death is not stated, nor is there anything stated in the findings concerning the other surviving child. Unless the plaintiff has acquired the interest, of the surviving child and the interest of William D., who died subsequently *559to the death of his mother, he has but a one-sixth interest in the land. It is found that William D. left his father as his only heir, and possibly we might safely assume his interest remained in him at the time of his death, and therefore descended to his father. In that event it would pass to Aaron Parrent, and the defendants in error would therefore be entitled to five-sixths of the land. The findings, however, are not such as would warrant us in directing the judgment, and therefore the order of the court will be that the judgment rendered will be reversed, and the cause remanded for a new trial.
All the Justices concurring.