31 Kan. 87 | Kan. | 1883
The opinion of the court was delivered by
This was an action of ejectment, to recover the possession of the south half of block 46, in the town of Shawnee, Johnson county. The plaintiffs claim to hold the ■original title from the government, and the defendants claim •under a tax deed. Notwithstanding the elaborate arguments made.on both sides, we think two very clear and simple propositions sustain the judgment of the district court. The case
We remark, first, that in an ejectment action under our statutes, the question is, Who has the paramount right to the property? It is not essential that the plaintiff should have a title perfect beyond all question and paramount to the title of every other person. It is enough if he have a right to the property, and that that right is paramount to the right of the defendant. (Duffey v. Rafferty, 15 Kas. 9; Simpson v. Boring, 16 id. 248.)
We remark, second, that possession with claim of ownership is not only evidence of title, but it is of itself title in a. low degree; that proof of possession for more than fifteen years under a claim of title is sufficient evidence to sustain a judgment in ejectment against one laboring under no disability and claiming under no title derived from the plaintiffs or their grantors. In other words, as fifteen years’ possession under a claim of title is, generally speaking, by the statute of limitations a bar to an action brought by one under no disability, proof of such possession is sufficient evidence of title. Here the plaintiffs and their grantors, as is undisputed, were in quiet and peaceable possession under a claim of title for more than twenty years prior to the seizure of possession by defendants. Such evidence is sufficient to sustain a finding of title in their favor unless a better title is shown by defendants. (Mooney v. Olsen, 21 Kas. 691.)
We remark again, that the evidence shows a connected title of record from the government to plaintiffs, with this singlé exeption: In 1858 or 1859, a deed from the Shawnee town company to Mr. Holmes was duly executed. This deed was never recorded, and was, as Mr. Holmes testifies, probably de
As to the defendants’ tax deed, one defect alone may be mentioned, for that is fatal. The sale was made on September 11, 1875; the notice of redemption stated that on and after September 9, 1878,-a deed would be issued to the purchaser. In other words, by the redemption notice, a deed was to issue within less than three years from the day of sale. This is insufficient, and a deed based upon such notice must fail. (Blackistone v. Sherwood, ante, p. 35.)
These being the only questions in the case, the judgment Qf the district court must be affirmed.