Smith v. Cooper, 38 Kan. 446

Smith v. Cooper

38 Kan. 446 | Kan. | 1888

The opinion of the court was delivered by

Valentine, J.:

This action was brought under §594 of the civil code, which reads as follows:

“Sec. 594. An action may be brought by any person in possession, by himself or tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse estate or interest.”

Under this section and the facts of this case, the main question presented for our consideration is whether the plaintiff' was in the possession of the property in controversy or not, either “by himself or tenant.” On June 25,1885, and prior thereto, the property belonged to Fritz Baumberger, and was actually occupied by his tenant, W. W. Ross. On that day the property was sold and conveyed by warranty deed by Baumberger to the plaintiff', Sylvester Smith. On July 1, 1885, Ross acknowledged the plaintiff as his landlord, and agreed to pay the subsequent rents to him, and under this arrangement the plaintiff permitted Ross to remain in the occupancy of the premises as his (plaintiff’s) tenant. The rent was to be $15 per month, and Ross paid such rent to the plaintiff for the next two months. The plaintiff at the time had the unquestioned title to the property, and his contract with Ross gave to him the actual possession of the property by his tenant. On September 9, 1885, the defendant, Cooper, obtained a tax deed to the premises, and put it upon record, but it was void upon its face, and therefore gave him no rights; but, nevertheless, on October 1, 1885, the tenant, *449Ross, agreed to acknowledge Cooper as his landlord, and to pay the further rents to him. On February -22, 1886, the plaintiff tendered to the county treasurer the full amount of all the taxes due on the property, together with interest, penalties and costs, and then commenced this action. Ross was still in the actual occupancy of the premises, the defendant’s tax deed was still void, and the plaintiff had the incontrovertible right to redeem his land from the taxes. We think the plaintiff, at the time of the commencement of this action, was in the possession of his property by his tenant, Ross; for Ross, by contract and agreement with the plaintiff, became his tenant on July 1,1885, and was allowed to remain in the possession of the property because of such agreement and tenancy, and no change of title has occurred since. The defendant’s tax deed did not extinguish the plaintiff’s title, nor even lessen it in the slightest degree. The tax deed was void, and Ross could not attorn to the defendant or cease in law to be the plaintiff’s tenant; nor could he, as against the plaintiff, become the defendant’s tenant. (Landlord and Tenant’s Act, § 14.) Ross held his possession and occupancy under the plaintiff and the plaintiff’s grantors. Of course where a landlord’s title is extinguished or ceases to exist during the tenancy, the tenant may recognize the new owner as his landlord, and may show, as against his former landlord, that such landlord’s title has ceased to exist, but he cannot deny that such landlord had a good and valid title when he procured his tenancy from him. Under the facts of this case, we think the plaintiff was in the possession of the property by his tenant when this action was commenced, and that, in such action, he had then and still has the right to have his title quieted as against the defendant. Of course the plaintiff must keep his tender good. He must pay the taxes which he tendered on February 22,1886. As before stated, as no valid tax deed had then been issued, the plaintiff had the right to redeem his land from the taxes, and as he tendered the full amount of all the taxes against it, with all the interest, penalties and costs which had then ac*450crued, no valid tax deed could afterward be executed upon the same premises for such taxes.

The judgment of the court below will be reversed, and the cause remanded, with the order that judgment be rendered in favor of the plaintiff and against the defendant, quieting the plaintiff’s title.

All the .Justices concurring.