85 Kan. 324 | Kan. | 1911
The opinion of the court was delivered by
On February 25, 1907, Joe L. Parker began an action to quiet title against George Vaughn and wife and their unknown heirs, his petition alleging that he was the owner and in possession of the tract involved, and that the defendants claimed an interest therein which was in fact void. Dennis D. Doty was made a defendant upon his own application and filed an answer and cross-petition, consisting of a general denial and an allegation that he owned an undivided one-third interest in the land, which he asked to have-partitioned. The plaintiff in a reply set out a tax deed
At the trial the plaintiff introduced his tax deed, and evidence tending to show these facts: The land belonged to one Samuel Vaughn at the time of his death; he died intestate in June, 1902, leaving no widow, but two daughters and one son, unless the son was already dead. This son, George Vaughn, had disappeared when he was seventeen years old and had not been heard from by his relatives since, the period being over eighteen years. In August, 1902, the daughters conveyed an undivided two-thirds interest in the property to Daniel Larmor, who is not a party and whose title is not brought in question. Doty’s only claim to the property is under a deed from the two daughters, executed March 2, 1907, purporting to convey an undivided one-third interest and reciting that they had not heard from George Vaughn for about twenty-four years.
Doty, at the conclusion of the plaintiff’s evidence, dismissed his cross-petition. The plaintiff then admitted, subject to the objection that Doty had no standing to raise the question, that the tax deed was void for irregularities not showing upon its face, one of them being that no redemption notice had been published. Doty then introduced the depositions of the two sisters of George Vaughn, covering matters already stated and showing that they had not heard from him for fifteen or twenty years and regarded him as dead.
The court gave judgment for the plaintiff, decreeing him to have a perfect title as against George Vaughn, his heirs and devisees, and Doty, and barring them from any interest in the premises. Doty appeals.
From this statement it will be seen that if George Vaughn died before his father, his sisters inherited the entire tract, and their deed to Doty conveyed an un
The ordinary rule is that in an action to quiet title the plaintiff must either allege and prove actual possession or plead in detail the facts upon which his claim is based. Here the petition was drawn in the short form, which the statute authorizes only when the plaintiff is in possession. (Civ. Code, § 594, Gen. Stat. 1901, § 5081, Code 1909, § 618; Douglass v. Nuzum, 16 Kan. 515.) But as the subsequent pleadings developed the claims of the parties, it is not apparent that any prejudice could have resulted from the lack of a more complete statement. (Brice v. Sayler, 82 Kan. 500.) Apart from any question of the pleadings and apart from the question whether the plaintiff could maintain the action without showing that the land either was in his own possession or was unoccupied, we think the judgment erroneous. It in effect adjudges that the plaintiff has a good title, when in fact he has only an invalid tax deed, which may ripen into a perfect title but which can be set aside upon a timely attack, leaving the holder with merely a lien for taxes paid. The plaintiff seeks to justify the judgment on the ground that the tax deed is good on its face and that Doty, having failed to prove title in himself, has no standing
The cause is remanded, with directions to modify the judgment, either by dismissing the action as to Doty and his grantors, or by making the decree, so far as it relates to Doty, show the fact regarding the invalidity of the tax deed as a conveyance of title, the option to rest with the plaintiff. Doty, of course, is not to be given a right to redeem or any affirmative relief.