65 P. 219 | Kan. | 1901
The opinion of the court was delivered by
The questions of law in the case are presented by a statement signed by both attorneys, and are as follows :
“The question, and the only question, to be determined by the court of appeals in this case is as follows : Is a purchaser at tax sale, whose deed is afterward, in an action brought to foreclose a mortgage covering the same real estate described in the tax deed, which is dated and recorded in the proper office prior to the issuance of such tax deed, declared to be invalid on account of irregularities*227 leading up to said sale, and on account of excessive taxes levied upon said real estate, entitled to the value of the improvements placed by him on said property, as against the plaintiff in the foreclosure suit ?
“Is the tax-deed purchaser entitled to a lien upon said property for the value of such improvements superior to the lien of the mortgage?
“Is the tax-deed purchaser entitled to the benefits of article 25, chapter 80, General Statutes of 1889, ‘ the occupying-claimant law,’ in an action brought to foreclose such mortgage ? ’ ’
The facts, briefly stated, are these: Mercer held a mortgage on certain real estate, given by Justice and wife, dated April 13, 1889. He brought an action to foreclose the same, making Perkins a party defendant, and alleging that the latter had some interest in the real estate which was subsequent and inferior to the lien of the plaintiff thereon. Perkins answered, setting up a tax deed dated September 5, 1894, based upon a tax sale of 1891, and filed for record September 8, 1894.
Upon the trial, the court, finding that this tax deed, though good on its face, was void as an instrument of title, for informalities and irregularities in the tax-sale proceedings, ascertained the amount of the taxes due to Perkins and declared the same to be a first lien on the real estate in controversy, and decreed a foreclosure of plaintiff’s mortgage and a sale of the premises, and disposition of the proceeds in accordance with the priorities as found. The court also listened to evidence showing that Perkins had taken possession of the real estate under his tax deed and made valuable and lasting improvements thereon, and directed that he be permitted to avail himself of the provisions of the occupying-claimant law to ascertain the amount
“Said Perkins shall have from the proceeds of the sale of said premises, in addition to the amount heretofore found in his favor as a first lien thereon for taxes and interest, the sum of $324.85, if said premises shall sell for sufficient to pay said sum ; and no writ or process of eviction of said defendant Perkins shall be issued until this judgment shall be paid.”
This last part of the court’s judgment is the pox’tion that plaintiff in error especially complains of, and insists that the occupying-claimant act does not apply to cases of this character, and that the mortgagee had a right to have his mortgage foreclosed upon the premises as they were, including in the sale upon such foreclosure the permanent improvements placed thereon by the tax-deed holder.
The statute defining the right of the tax-deed holder in possession, who has made valuable improvements, is as follows:
“In all cases, any occupying claimant, . . . being in possession of and holding any land under any sale for taxes authorized by the laws of this state, or the laws of the territory of Kansas, . . . shall not be evicted or thrown out of possession by any person or persons who shall set up and prove an adverse and better title to said lands until said occupying claimant, his, her or their heirs, shall be paid the full value*229 of all lasting and valuable improvements made on said lands by such occupying claimant.” (Gen. Stat. 1901, § 5088.)
Plaintiff in error further contends that the occupy
“If the successful claimant, his heirs, or the guardians of said heirs, they being minors, shall elect to receive the value without improvements so as aforesaid assessed, to be paid by the occupying claimant within such reasonable time as the'court may allow, and shall tender a general warranty deed of the land in question conveying such adverse or better title within said time allowed by the court for the payment of the money in this section mentioned, and the occupying claimant shall refuse or neglect to pay said money (the value of the land without the improvements) to the successful claimant, his heirs or their guardians, within the time limited as aforesaid, then a writ of possession shall be issued in favor of said successful claimant, his heirs or their guardians.” (Gen. Stat. 1901, § 5097.)
It is contended that plaintiff, being the successful claimant, cannot elect to receive the value of the land without the improvements, because he cannot tender to the occupying claimant a general warranty deed for it. We see no insurmountable difficulty in this claim. Plaintiff might have tendered an assignment of the mortgage, which was all the title or claim he had, and thereupon demand of the occupying claimant the value of the land without the improvements, up to the amount of his mortgage lien. That amount was all that, as between plaintiff and the occupying claimant, plaintiff was entitled to receive.
We are not confined in the adjustment of an occupying claimant’s rights to the procedure pointed out by our statute; for, independent of all statutes, as a matter of equity cognizance and administration, the unsuccessful occupying claimant had a right to a lien upon the premises which he had made more valuable by his improve,ments. The rule of equity procedure was that, “whenever the owner of land was compelled to obtain an account of rents and profits against the occupant, the courts required him in the first place to do equity by paying for improvements made by the occupant in good faith, and under color and claim of title.” (Jones, Liens, § 1132.) So, in the accomplishment of equity in this action, and independent of any statute, the court should have required that this oc
The court committed no error and its judgment will be affirmed.