| Kan. | Jan 15, 1885
The opinion of the court was delivered by
Eliza Reihl brought this action to quiet title to lot No. 8, in block No. 109, in the city of Winfield, against a tax deed held by the defendant Joseph Likowski. She alleged in her petition that she, as the widow, and John A. Reihl and Charles A. Reihl, her two minor sons, were the sole heirs-at-law of Jacob Reihl, who died intestate, in the month of July, 1877, seized in fee simple of the lot in controversy, and that she and the minor heirs have the legal title to the lot and are in the peaceable possession of the same. She sets forth the tax •deed under which.she says the defendant claims, and alleges it to be invalid for several reasons that are stated.
The defendant -filed an answer and cross-petition, in which he first sets up his tax' deed; and then for a cause of action against the plaintiff and the minor heirs, he alleges that he is the owner and has the equitable title to the undivided one-half •of the real estate in controversy; that prior to April 9, 1873, •Jacob Reihl, deceased, was the owner of the undivided one-half ■of said real estate, and C. C. Harris and B. B. Dougherty together owned the other undivided half thereof, and that on the last said day, the defendant purchased from Harris and Dough-erty their interest in the lot and paid them therefor the sum of $250, and thus Jacob Reihl and the defendant became the joint owners of said real estate, each owning an undivided one-half thereof; that Jacob Reihl had become surety upon a bond given by the defendant under the dramshop act, and to indemnify him from loss by reason of such suretyship, the defendant procured the deed of the lot to be made directly from Harris and Dougherty to Reihl, it being understood and agreed
The minor heirs were made parties, and a guardian ad litem appointed for them, who filed an answer to the cross-petition of the defendant, denying the interest therein set forth and claimed by the defendant. The action was tried by the court at the October term, 1883, and it found that the defendant’s tax deed was void, but that the allegations set up by the defendant in his cross-petition were true; that he was the equitable owner of the undivided one-half of the real estate in controversy; that the plaintiff and the minor heirs together held the legal title in trust for him, and that he was entitled to have partition made thereof, and decreed accordingly. The plaintiff and the minor heirs bring the case to this court for review.
The first point made by them is, that the court erred in overruling their motion to require the defendant to elect upon which of the two defenses that were set forth in his answer
It is next contended by the plaintiffs in error, that the cause of action set up by the defendant in his cross-petition was barred by the statute of limitations. It was alleged in the cross-petition, and also found by the court, that Likowski was the real owner of the undivided one-half interest in the lot purchased from Dougherty and Harris on March 8, 1873, the purchase-price of which was paid by Likowski. The legal title to this interest in the lot was held by Jacob Reihl in trust for Likowski. The statute of limitations therefore could not run as between them so long as the trust subsisted. The plaintiffs in error took the property subject to this trust. Where the legal title to realty is in one person and the real interest is in another, the statute does not run until there is a renunciation of the trust, or until the party holding the legal title by some act or declaration asserts a claim adverse to the interest of the real owner. There was no denial of the trust by Jacob Reihl during his lifetime, nor was there ever any act of hostility done or adverse claim made by him. He openly acknowledged that the defendant was the joint owner with him in the lot, and from March 9, 1873, they held the premises as tenants-in-common, and the stipuláted rent thereof was equally divided between them. The first disavowal of the trust and adverse action were when Eliza Reihl took exclusive possession of the premises and asserted that the defendant had no right or interest therein. This was in August,
The defendant’s cause of action stated by him in his cross-petition is substantially one for the recovery of real property. The accounting and partition asked for by the defendant are incidental to the main action. The defendant, as was alleged . and found, is the real owner of an undivided one-half interest in the premises. He jointly owned the lot with the heirs-at-law of Jacob Reihl. They denied his ownership and interest in the lot, and excluded him from the possession of the same. He sought by the action to recover the possession of the property, and at the same time to have all adverse claims thereto settled and adjusted. Clearly, then, the action comes within the provisions of the fourth subdivision of §16 of the code, and the statutory limitation of fifteen years is the one which is applicable.
The case of Main v. Payne, 17 Kan. 608" court="Kan." date_filed="1877-01-15" href="https://app.midpage.ai/document/main-v-payne-7884325?utm_source=webapp" opinion_id="7884325">17 Kas. 608, cited by the plaintiffs in error is not an authority against the-maintenance of this action. While in that case the plaintiff alleged that she was the equitable owner of the premises, and that the legal title to the property was held in trust for her, and asked that the same be conveyed to her, yet she did not allege that she was out of, or entitled to the possession of the premises, and did not by her action seek to obtain the possession of the property. For aught that appeared in her pleading she was in the possession of the premises, and the court therefore held that the action was not for the recovery of real property. 1
It is also suggested that the defendant’s cause of action ought not to be taken cognizance of, because of the staleness of his demand and of his laehes and negligence in asserting his right of recovery. It is true that equity requires that suitors should be prompt and diligent in pursuit of their rights, and where
Lastly, the plaintiffs in error complain that they were denied a trial by jury. Upon this question they are concluded by the record, as it shows that all the parties appeared in open court and waived a trial by jury, and agreed to submit the cause to the court for trial. Afterward, it appears that there was some dispute between the court and counsel in respect to the waiver, but it is expressly stated in the judgment entry that the parties, including the guardian ad litem, who appeared for the minor heirs, expressly waived a jury trial; and this must be held as controlling in this court. The agreement of the guardian ad litem in this regard was equally binding as in the case of the other parties.
We see no error in the record, and the judgment of the district court will therefore be affirmed.