26 Kan. 26 | Kan. | 1881
The opinion of the court was delivered by
On February 2, 1872, Uri S. Keith commenced an action in the district court of Brown county against Parthenia J. Keith, for a partition of the southeast quarter of section 15, in township 1, of range 18, in that county. The petition alleged that the plaintiff and defendant were seized in fee in equal and undivided moieties as tenants-in-common of the real estate. Personal service of the summons was made upon the defendant, Parthenia J. Keith, on the 9th day of February, 1872. On March 2, 1872, an answer was filed to the petition, alleging that on September 20,1865, the
“1. Was the land of which partition is here demanded, partnership property ? A. Yes.
“2. If such property is partnership property, when did it become so? A. About when the land was purchased.
“ 3. Was the contract of partnership in the ownership of the land (if any there was) evidenced by any memorandum in writing ? A. No.
“4. Was the land purchased with partnership funds? A. Yes.”
Afterward, plaintiff Uri S. Keith filed his motion to vacate the findings and verdict, and for a new trial, which was overruled by the court. Thereupon the court rendered a judgment that the real estate was held as partnership property by Uri S. Keith and F. M. Keith, sr., as copartners; and it was ordered by the court that A. G-. Otis, Esq., be appointed the referee to take an account between Uri S. Keith and F. M. Keith, sr., as partners in relation to their partnership in said land, and in relation to all their partnership matters connected therewith. No other proceedings were had, as we read the record in said action, until the September term, 1877, when a motion was made to appoint another referee. On February 12, 1878, Uri S. Keith filed his petition in the
(Court, and Title.) “These cases are to be continued over September term, 1878, with such proper order as to amending pleadings as may be allowed by the court upon application by either party, with notice of such amendment, including the making of necessary additional parties,
W. W. Guthrie, for Plaintiff.
Everest & Waggener, Atty’sfor Defendant.”
Thereafter, Uri S. Keith filed an amended and supplemental petition, making Lamar B. Keith, Parthenia J. Keith, F. M. Keith, jr., and F. M. Keith, sr., defendants. This petition covered twenty-eight pages of manuscript, and was substantially a bill in equity to determine the conflicting interests claimed in said real estate. It alleged that the plaintiff was the legal and equitable owner of the land, and set up the adverse claims made by the several defendants, specially anticipating therein their several defenses, and setting forth the facts why said defenses were not valid; concluding with a prayer that the plaintiff be adjudged to be the owner of the real estate, and entitled to immediate possession thereof; that the claims of title and right of possession by defendants under and by virtue of a certain tax deed and the conveyance described in the petition, be decreed null and void; and that plaintiff have judgment for the value of the rents and profits in excess of the taxes paid during the possession of the defendants. To this petition, F. M. Keith, sr., Parthenia J. Keith, F. M. Keith, jr., and Lamar B. Keith filed separate
1. That the plaintiff obtained full title to said land by deed from "W. D. Beeler, September 30, 1865, and by due conveyances thereafter from the plaintiff by proper chain of conveyances, the undivided half thereof became vested in defendant Parthenia J. Keith by deed from E. M. Williams, on August 15,1871, such deed and conveyances to her being founded on both a good and valuable consideration, and on account of the advancement by her to her husband theretofore of large sums of money, in all amounting to several thousand dollars, from her own separate estate, for the improvement of said premises.
2. That said land was improved by said parties in the interest of a common family relationship, except as to Lamar B. Keith, up to October, 1870, when he came to live on said place as a part of such family.
3. Said F. M. Keith, sr., and Parthenia J. Keith are husband and wife, and the other parties are their sons.
4. Said plaintiff married in September, 1866, and brought his wife to said place, and they lived there until April, 1872. In June, 1867, Parthenia J. Keith came out to Kansas, and lived with her husband on the said place until January, 1877, and during such first-named time the said father and son and their families lived as a com mon family.
5. On account of family differences, said plaintiff moved from the place in 1872, and for like reason said F. M. Keith, sr., left the place in January, 1877.
6. Whatever interest said F. M. Keith, jr., ever had in said place, he duly conveyed to his father by deed, and he duly conveyed to his wife by deed through the said E. M. Williams.
7. The plaintiff commenced suit to partition said land equally between himself and said Parthenia J. Keith as equal owners thereof in February, 1872. In such action summons was duly served on said Parthenia J. Keith as such defendant. At that time, said F. M. Keith, sr., was a practicing attorney, and he and his wife lived together in full relation of husband and wife on this place, and the said plaintiff with his wife lived with them in one common family. Said F. M. Keith,
8. Before the commencement of this action said F. M. Keith, sr., and Uri S. Keith had a settlement of their affairs, and said F. M. Keith then duly conveyed and transferred to said Uri S., Keith all his said interest in and claim to said property.
9. Said Parthenia J. Keith did not attend such trial, never employed said attorneys, Ingalls and Price, and did not have any definite understanding of her relation to said action, but trusted her interests to her said husband, who neglected to protect the same, but without authority from her, and without her knowledge, caused said answer to be filed in his interest and adverse to hers. And his said action was in his interest and against the interest of his said wife.
10. All improving of said place, and expense of living thereon, on the part of all parties to this action, has been that of a common family interest, and no separate accounts were ever kept.
11. Said Uri S. Keith has derived no benefit from said place since April, 1872, but from that time up to January, 1877, said F. M. Keith, Parthenia J. Keith and Lamar B. Keith lived thereon in a common family, and divided the full
12. Said land was subject to taxation for 1871, and on May 7, 1872, was bid in for such taxes by H. Graves, for Barnett, Morrill & Co., a partnership banking firm, and to which firm the deed, copied as exhibit “A” to answer of Lamar B. Keith, was executed May 15, 1875, on such sale, which was recorded in the office of the register of deeds of Brown county, Kansas, on the 27th day of May, 1875.
13. At the sale at which said land was sold there was a •combination and understanding between the bidders .that they ■should not bid against each other, and that they should bid in turn, and not otherwise; and this land was so bid in by Graves, for Barnett, Morrill & Co., under such understanding. And each of the three partners of said firm was in such arrangement, and with said Graves bid in his turn for •said firm • such sale was for $3.05 more than the legal taxes .and charges against said land. And such deed was made without due notice of expiration of redemption for such •deed, in this, that the amount due at the expiration of redemption was published at the sum of $315.84, when the amount then due and for which the deed was given, was the •sum of $358.69. Other irregularities and defects existed in said proceedings, but holding that the relationship of said Lamar B. Keith to said land, and in said family, did not allow him to acquire title to said land by tax deed at or during such time, it is not deemed necessary to more particularly •specify the same.*
14. Said Parthenia J. Keith and Lamar B. Keith have lived on said place as a common family and divided all benefits therefrom, and appropriated same to their joint common use, since January, 1877. Said Lamar B. Keith, on April 25,1877, bought from Morrill & Janes, grantees and successors of said Barnett, Morrill & Co., for the sum of $619 which he paid to them for their tax-deed claim on said land, and they executed to him their quitclaim deed therefor, and said Lamar B. Keith paid the taxes on said land for the years 1877 and 1878, amounting to $82 at the time they respectively came due, and taxes for 1879 amounting to to about $50 are unpaid; and said Lamar B. Keith has made some improvements on said land. All such payments by said Lamar B. Keith and the amount necessary to pay such taxes of 1879, are and will be fully paid and satisfied by
15. The notes of E. M. Keith, sr., held by Lamar B. Keith, and the notes of Uri S. Keith, held by him, and the notes of Uri, F. M. Keith, sr., or either of them, held by Lamar, or by F. M. Keith, jr., as well as all personal accounts between the parties, are excluded from the consideration of the court in this action, and the parties are allowed their remedies thereon as if they had not been in any manner set up in this case.
CONCLUSIONS OP LAW.
1. That said F. M. Keith, Jr., F. M. Keith, sr., and Lamar B. Keith have no title to, estate in, or lien on said property, and should be barred and enjoined from setting up or claiming any such title, estate, and lien.
2. That, charged with the payment of all taxes on said land for 1879, and one-half the costs of this action, that said Parthenia J. Keith is the owner of the undivided half of such land, and entitled to full possession of all said land to-March 1, 1881, and exempt from any claim for use of all said land prior to March 1, 1881; and, charged with the other half of such costs, that Uri S. Keith is owner of the undivided half, and entitled to possession thereof after March 1, 1881.
3. That such property be sold and such charges be satisfied and balance of proceeds paid to said parties as thereto held entitled.
Uri S. Keith thereupon filed his motion for a judgment decreeing him to be the legal owner of all the premises, and that all the defendants be forever barred and enjoined from setting up any right, title or estate to any portion of the same. On May 28, 1880, Lamar B. Keith filed his motion to set aside the findings of fact and the conclusions of law, and asking for a new trial; and also filed a motion asking for judgment in his behalf on the findings of fact and conclusions of law; and also, on said day, filed the further motion for a second or another trial, under § 599 of the code. These several motions were overruled' and denied by the court. Judgment was entered decreeing the plaintiff to be the equitable owner of the equal one-half interest in the
The trial court treated the decree and order in the action of Uri S. Keith v. Parthenia J. Keith and F. M. Keith, sr., of the October term of the district court of Brown county for 1872 as absolutely void; this upon the ground that Parthenia J. Keith did not attend the trial, nor employ the attorneys Messrs. Ingalls and Price, who filed the answer, but trusted her interests to her husband F. M. Keith, sr., who neglected to protect the interest of his wife, and without authority from her, and without her knowledge, caused the answer to be filed in his own interest.
We cannot concur with the learned trial judge upon all of his conclusions of law under the facts found by him. It appears that Parthenia J. Keith was personally ''leftTfinafifg prin- served with a summons in that action, and it was against her duty to protect her own interests. If she confided those interests to her husband and he neglected to protect them, or deceived her as to the answer, this was her misfortune, for which Uri S. Keith, the plaintiff suing her, was not responsible. If she relied on the representations of her husband, or if she permitted her husband
A claim is further made, that the real estate was the homestead of Mrs. Keith and could not be alienated without the joint consent of both husband and wife; therefore, that the sole conveyance of the husband to Uri S. Keith conveyed nothing. The answer of Mrs. Keith, and the findings of the jury, and the decree in the partition suit, speak of the property as personalty, not realty, and as to Mrs. Keith, the property must be deemed personalty; therefore she has no homestead interest therein. These conclusions wipe out the alleged estate of Parthenia J. Keith to the premises, and as to her, the court below committed error in holding otherwise. We have reached the decision of this part of the case with great reluctance. Not that we have had- any doubts upon the legal principles involved, but for fear of possible injustice to the aged mother under the decree of the court, obtained through the misconduct of her husband; and we have with great care investigated the evidence to ascertain if there was any escape from the finding of service of summons upon her in the partition action. We find there is none. We therefore declare the law, regretting, however, that its consequences in this particular instance may fall with severity upon the wife. The hope is, that the son, who is successful in this court, will not further contest with the mother; at least, will not take from her all the old home, without making some provision for her future support, or at least giving her such com
We are called upon next to examine the claims made by Lamar B. Keith. It is alleged in his behalf that the tax deed executed May 15, 1875, to Barnett, Morrill & Co. vested in them an absolute estate of all the premises, and that he acquired by the conveyance from them an estate in fee. The 2 Tax claim i'ngásTre-1"demption. findings of fact, supported we think by sufficient evidence, clearly show that the tax deed and the title of Lamar B. Keith thereunder are invalid. Counsel, however, contend that the deed is protected and beyond attack, by the terms of §116, ch. 107, Gen. Stat. 1868. This section reads:
“Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, except in, cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within two years from the time of recording the tax deed of sale, and not thereafter.” ■ 1
This was repealed, and on March 11, 1876, the following section took its place:
“Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.” (Laws of 1876, ch. 34, §141.)
Sec. 157, ch. 34, Laws of 1876, further provides, that “the limitation of actions for the recovery of lands sold for taxes, prescribed by any statute which has been repealed, shall not be affected by any such repeal, if the same period of limitation is or has been continued or reenacted in the repealing statute.” The tax deed was recorded on May 27, 1875, and counsel for Lamar B. Keith strenuously urge upon this coui’t that §116, ch. 107 of the Gen. Stat. of 1868, has not been repealed, at least so as to affect this case. They say such repeal was
In regard to the claim for another or second trial under §599 of the code, the amended petition and pleadings so changed the character of the original action, that § 599 was not applicable. Neither were the defendants, nor was the plaintiff, entitled as a matter of right to a iury, within
Counsel refer to the fact that, as Lamar B. Keith was in possession when the suit was brought, and as the result of the action is to divest him of possession, that it is substantially an action of ejectment. Now this argument is not conclusive, because many actions, the result of the judgment in which may deprive the defendant of any right or title to the property in controversy, and accordingly eventuate in divesting him of possession, are not actions of the character as to authorize as a matter of right two trials. Take the ordinary case of the foreclosure of a mortgage, where a defendant is in possession, and the proceedings therein against him may be such as to bar all his rights in the property, and eventually eject him from the premises.
Counsel suggest, however, that Uri S. Keith cannot maintain a suit to quiet title, or otherwise settle the adverse interests to the real estate, unless he is in possession. The plaintiff is not proceeding under § 594 of the code; but is seeking a character of relief formerly given in courts of chancery, and has set forth such a state of facts in his petition as under the rules of equity practice would entitle him to relief. Therefore, to succeed, it is not necessary for him to have alleged or shown that he was in the actual possession of the real estate. (Douglass v. Nuzum, 16 Kas. 515-519.)
We have examined all the other matters submitted, but do not think that anything appears in either of the cases requiring further comment.
In case No. 2092, of Lamar B. Keith v. Uri S. Keith, the judgment of the district court will be affirmed, with costs against the plaintiff in error.
In case No. 2168, of Uri S. Keith v. Parthenia J. Keith, the judgment of the district court will be reversed, with costs; and the case is remanded to the court below with direction that the judgment for plaintiff, Uri S. Keith, may be modified upon the findings of fact so that the decree shall quiet the plaintiff’s title to the entire tract of land set forth in his petition, and forever bar Parthenia J.- Keith from any title, estate or interest therein.