93 Kan. 471 | Kan. | 1914
The opinion of the court was delivered by
This was an action brought by plaintiffs to recover from defendants the possession of a city lot and damages for withholding possession of the same. It appears that the patent title to the lot was in plaintiffs, while defendants’ claim of ownership was based on a tax deed issued in 1904. Since the issuance of the tax deed defendants have paid the taxes on the lot and made some improvements thereon. At the trial the court held the tax deed to be void and so advised the jury, and in answer to special questions of fact the jury found that lasting improvements had been made by defendants on the property of the value of $33, that they had paid $300.54 as taxes on the property, and that the fair rental value of it while-occupied by defendants was $180. The court set aside the special findings and rendered judgment awarding the property to plaintiffs, and reserved the questions as to the amount of taxes paid, the rental value received by them and the permanent improvements which they had made for future consideration. At a later hearing the court, over the objection of defendants, found that the rental value of the premises for the time they were occupied by defendants was equal to the amount expended by defendants for taxes paid and improvements which they had made upon the property, and gave judgment accordingly. The defendants appeal, alleging a number of errors on the rulings made on the original trial as well as the subsequent one.
The ruling to the effect that the deed was invalid and that the paramount title to the property is in plaintiffs
Complaint is made of the ruling of the court in setting aside findings which, it is said, deprived defendants of the benefits of the occupying claimants law. The finding as to lasting and valuable improvements was set aside,, it is said, because that element is only for the consideration of a sheriff’s jury drawn as provided by the occupying claimants law. It is said that the finding as to taxes was set aside because the rate of interest applied was too low, and that defendants were entitled to a greater credit for taxes than was awarded to them. In the entry setting aside the findings as to rents and taxes it is stated that they are not sustained by the testimony, and that the one relating to improvements was not a proper matter to submit to the jury. The statute requires that lasting and valuable improvements made by the unsucessful occupying claimant shall be assessed by a sheriff’s jury, and it provides that the proceeding may be initiated at the request of either party. (Civ. Code, § 624.) The improvements made by defendants on the property in question were not assessed, as we have seen, in that way. When plaintiffs asked to have the reserved questions adjudicated, the defendants objected, and the trial court, instead of authorizing a sheriff’s j ury, proceeded to try this question as well as those relating to taxes and rentals, and disposed of them on the evidence submitted in the original trial. It may be that the failure of defendants to specifically ask for a sheriff’s jury and their general objection to proceeding with the trial of
“The rents and profits to- be recovered in an action in the nature of ej ectment, are only those that have accrued within three years before the commencement of the action.” (Syl. ¶ 4.)
In Seibert v. Baxter, 36 Kan. 189, 12 Pac. 934, an ejectment case, it was ruled that an action for the recovery of rents and profits is not governed by the limitation applicable to the recovery of the land itself but is controlled by the limitation applicable to an implied contract, and although a cause of action therefor had been joined with one in the nature of ejectment, the ordinary three-year statute of limitations was held to apply.
The error in adjudicating the rents and profits, however, will not overturn the judgment rendered in the ejectment branch of the case, but will require a retrial and an adjudication of the reserved questions, namely, the amount of the rents and profits to which plaintiffs are entitled, the amount of the taxes paid by defendants, and the assessment of the lasting and valuable improvements which they have made. For these purposes the cause will be remanded to the district court.