28 Kan. 211 | Kan. | 1882
The opinion of the court was delivered by
In reference to possession, the only finding was as follows :
“That said land remained vacant and unoccupied from the date of said deed until the 20th day of March, 1879, when the plaintiff built a line of fence about eight or ten rods long on the west side of said quarter-section, at the north end of said west line.”
And from these findings as a conclusion of law, the following :
“The court finds that the plaintiff’s cause of action was*214 barred at the time said answer and reply were filed; and that the defendant recover posssession of said land, and that he is entitled to hold and enjoy the estate therein free from any claim of the plaintiff thereto.”
Neither on the other hand can we concur with the counsel for the defendant, that the right of the plaintiff to challenge the validity of this deed is cut off by § 141 of the tax law. It is true, as counsel contend, that plaintiff had dismissed his,. .action, and the case is to be treated as though' on August 12,
“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 land 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;”
It follows from these considerations that the district court erred in awarding to the defendant the possession of the land. All that he was entitled to was an adjudication of his lien for taxes. The judgment of the district court will therefore be reversed, and the case remanded with instructions to grant a new trial.