62 P. 1011 | Kan. | 1900
The opinion of the court was delivered by
This was an action brought by O. W. Smith to recover a tract of land in Lyon county from O. S. Cross. After the action was begun Cross died, and the case was revived and prosecuted in the name of his heirs and the administrator of his estate. About 1881 E. W. Cunningham obtained a tax-sale certificate on the land, and the interest thus acquired was sold and transferred to F. E. Smith, who subsequently transferred it the plaintiff, C. W. Smith. The owner of the land redeemed it from the tax sale, and Smith surrendered his certificate to the county treasurer and received the redemption money. A wire fence was built by the Smiths enclosing the land and making it a part of a pasture controlled by them. C. S. Cross rented the land from the Smiths in 1893, and paid them rent thereon until the end of the year 1895. No taxes were paid on the land by the Smiths, and it was sold in 1892 for the taxes of the preceding year, and in 1895 a tax deed was executed to F. O. Lakin, who conveyed the same to C. S. Cross, on December 28, 1895. In February, 1897, a tax deed, based on other taxes which were in default on the land, was issued to C. S. Cross. After Cross obtained a tax title to the land he refused to pay further rent to the Smiths, and he held possession of the land for the years 1896, 1897, and 1898, and until the commencement of this action, holding it adversely
In behalf of the plaintiff, it is contended that Cross, being a tenant of Smith, could not deny the latter’s title, and that before doing so he must surrender the possession derived from the landlord. The fact that Cross was holding under Smith does not deprive him of the right to acquire a tax deed to the property. The taxes upon which the Lakin deed was based accrued before the Cross tenancy began. Neither at that time nor during the tenancy was Cross under any obligation to pay taxes. That obligation rested upon the owner or those claiming to own the land. In Weichselbaum v. Curlett, 20 Kan. 709, it was held’ that "a tenant under no obligation or duty to pay taxes may purchase the property at a tax sale made during his term and resist recovery by his former landlord for rent accruing after the tax sale by virtue of an adverse title so acquired.” See, also, Shoup v. C. B. U. P. Rld. Co., 24 Kan. 547, 558. Cross had a right to and did acquire a tax title to the land, and after that time he claimed and held possession under that title, and not under Smith.
Even if the tax deed was void on its face, and the action had been brought by the owner of the fee-simple title, Cross, who had paid taxes, penalties, and costs, would have been entitled to hold possession until the tax charges had been fully paid. (Smith v. Smith, 15
The judgment of the district court will be affirmed.