33 Kan. 260 | Kan. | 1885
The opinion of the court was delivered by
This was an action brought by "W. H. Burke against E. E. Muthersbaugh, J. W. Muthersbaugh, W. H. C. Riley, Helen A. Riley, K. D. Finn, and C. H. Finn, for equitable relief, and to recover the undivided one-half interest in lot No. 7, in block No. 3, in Rader’s addition to Osborne city, Osborne county. The action was tried by the court without a jury, and the court found generally in favor •of the plaintiff and against the defendants, and rendered judgment accordingly. The defendants then moved for a new trial for the following reasons, to wit:
“ 2. That said decision and judgment are contrary to law.
“ 3. That said judgment was rendered for the plaintiff, when by the law and the evidence it ought to have been rendered for the defendants.”
This motion was overruled by the court below, and the defendants, as plaintiffs in error, then brought the case to this court, and assign the following alleged errors, to wit:
“1. The said court erred in this, that the said judgment was given in favor of the said W. H. Burke, defendant in error, when it ought to have been given in favor of the plaintiffs in error, according to the law and the evidence.
“2. That the said judgment was rendered contrary to the law and the evidence as produced at said trial.
“ 3. That the court erred in overruling the motion for a new trial filed by plaintiffs in error.”
The brief of the plaintiffs in error, defendants below, is too long to be copied, but we think-its principal ground for a reversal of the judgment of the court below, if not its only gi’ound, is that the court below erred in its general finding upon the law and the evidence. If the finding is correct, the judgment which follows it is unquestionably correct; and we cannot say that the finding is not correct. The material facts of the case seem from the pleadings and the evidence to be substantially as follows: Originally, E. E. Muthersbaugh and H. D. Yeager jointly owned and jointly possessed the property in controversy, and Yeager and J. W. Muthersbaugh, the husband of E. E. Muthersbaugh, kept a livery stable on the premises. Afterward Yeager sold out his interest in the livery business to Muthersbaugh, but retained his interest in the real estate, and Muthersbaugh alone continued to carry on ■the livery business on the premises. Burke, who held a mortgage on the interest of Yeager, foreclosed the mortgage against Yeager and wife, and at sheriff's sale purchased Yeager’s and wife’s interest in the real estate, and obtained a sheriff’s deed conveying to him such interest. Burke of course then took the place of Yeager. Afterward, C. H. Finn, acting for his wife,
We think the decision of the court below is correct. As a - general rule, a tenant-in-common will not be permitted to assert against his co-tenant a tax title acquired by him for taxes imposed on the joint property. (Blake v. Howe, 15 Am. Dec. 688, note, and cases there cited; Venable v. Beauchamp, 28 Am. Dec. 85, note, and cases .there cited. See also, as having some application, the cases of Keith v. Keith, 26 Kas. 27; Jones v. Comm’rs, 30 id. 278; Comm’rs v. Land Co., 23 id. 196.) Usually where a tenant-in-common purchases a tax title against the joint property, the purchase will be held to be a payment of the taxes, or the extinguishment of an adverse claim, or cloud, or lien, and will inure to the benefit of all the joint owners; and the purchaser will simply be entitled to be reimbursed by his co-tenants, and will have a lien upon the land for the
The judgment of the court below will be affirmed.