80 Kan. 626 | Kan. | 1909
The opinion of the court was delivered by
In this,action Fred L. Morris al-, leged that he was the owner and entitled to the possession of certain lots in Independence, and that E. J. Gregory unlawfully kept him out of the possession. He then proceeded and alleged in substance that the defendant claimed an interest in the lots under a quitclaim deed from J. F. McCorkle and wife, who acquired their right from E. T. Mears, to whom the land was conveyed by a tax deed for the taxes of 1893. He attacked the tax deed by alleging that it was void- because it was not recorded within the time required by law and that it was void upon its face. It was averred that when Mears purchased the lots at the tax sale he was the agent of the Neosho Valley Investment Company, which then held the title to the lots; that he purchased them for the company and took the certificate as well as the tax deed in his own name, and that he had no interest in the lots except as agent of the company. The plaintiff concluded by an averment that by reason of the facts stated the defendant had no title to the lots,, and asked a judgment for possession and for other’ proper relief. In the defendant’s answer, aside from a, denial, he alleged that the plaintiff’s cause of action was. barred by the two-year and also by the five-year statute of limitations. At the trial the court found generally for the defendant, and it is insisted here that on the-pleadings and evidence the judgment should have'been, for the plaintiff.
The tax deed introduced in evidence was fair on its-, face, but the plaintiff undertook to show that the action of Mears in purchasing the lots and taking the title-in himself when he was in fact commissioned to obtain-
The court rightly decided the case in favor of the defendant. Although denied by Mears, it may be said that the evidence strongly tended to prove that he was acting as the agent of the company in making the purchase at the tax sale and that the funds of the company were used in paying for the land. If it be assumed that he acted in that capacity, and committed a fraud upon the company in failing to assign the tax certificate and in subsequently taking a deed to the land in himself, it does not follow that the plaintiff, the grantee of the company, can maintain this action against the defendant, who purchased the land without knowledge of the fiduciary relationship or of the fraud. If the plaintiff’s petition is to be interpreted as an attack upon the tax deed and as showing a purpose on the part of the plaintiff to have it set aside for the faithlessness and fraud of Mears, the action was barred by the statute which provides that an action for relief on the ground of fraud must be brought within two years after the cause of action shall have accrued. (Civ. Code, § 18.) If the plaintiff’s averment and testimony that Mears purchased the land with the money of the company and took title in his own name when he was instructed to purchase for the company are accepted as true, his conduct operated as a fraud, and to defeat the accomplishment of the fraud the plaintiff was required to act promptly and at least within two years after the discovery of the fraud. Of the early discovery of the fraud by the company there can be no, doubt. According to the plaintiff’s testimony a letter was written to Mears directing him to attend the tax
It is argued, however, that the action brought is fdr the recovery of real property, and hence the two-year statute of limitation provided for in section 18 of the code does not apply. The petition contains appropriate averments for an action of ejectment, and it contains besides averments ordinarily used in an action to an
“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.” (Gen. Stat. 1901, § 7680.)
The tax deed in question was recorded on August 30, 1898, and this action was not commenced until April 16, 1906. The conveyance having been of record more than five years before the litigation was begun, the case falls within the limitation of the quoted statute. As against this view it is urged that the case is taken out by the provision excluding “cases where the taxes have been paid or the land redeemed as provided by law.” The contention is that the purchase of the lots at the tax sale by Mears, the agent of the company, amounted to no more than a payment of the taxes by the company, and that therefore the limitation can not apply. It is an equitable rule of frequent application that an owner of an interest in land can not purchase it at tax sale and acquire a tax title which he can assert as against his cotenant or mortgagee. To prevent an injustice the purchase is deemed to be a payment of the taxes. A cotenant, mortgagee or other person interested in the land against whom the company might be setting- up the tax title so acquired would have "a right to insist that the purchase at the tax sale wqs the equivalent of a payment of the taxes, but the company is not in a position to insist that the purchase made in this instance was a payment, as against an innocent purchaser of the land. The plaintiff, its grantee, is in no better position. It would be harshly inequitable if, after author
The contention that the defendant can not be regarded as a bona fide purchaser because he is holding under a quitclaim deed is fully answered in Eger v. Brown, 77 Kan. 510, and Ennis v. Tucker, 78 Kan. 55.
The judgment of the district court is affirmed.