37 Kan. 107 | Kan. | 1887
Opinion by
This is an action of ejectment to recover lot 1, block 131, in the city of Fort Scott. The petition contains the usual averments, and the answer is a general denial. The case was tried by the court, without a jury, and judgment entered for defendants, awarding them the lot, subject to the lien for taxes paid by plaintiff, amounting to $226.31. Defendants bring the case here.
The defendants below, plaintiffs in error, claim under a warranty deed from James Hart, dated September 13, 1880. Hart claimed under two deeds, a tax deed dated September 10, 1877, for the taxes for the year 1876, and also under a quitclaim deed from R. C. Anderson, the original owner, dated May 11, 1883, and filed for record March 24, 1884, at 3 o’clock p. m. At the time of the tax sale of 1877, the lot had been sold to Bourbon county for the taxes of 1874. Both tax deeds are good upon their face, and Hart and his grantees had been in actual possession of the lot and paid the taxes thereon since the recording of his tax deed September 13, 1880. The title to the property down to Anderson was good.
The question urgently presented in the briefs as to the effect of the priority of registration of the quitclaim deeds, may be answered by simply stating that the defendants and their grantor took their quitclaim deeds from Anderson, who was also the grantor of plaintiff. The deed to Hart was under date of May 11, 1883; to Hewitt, of March 18, 1884. The deed from Anderson to Hewitt of March 18, 1884, conveyed nothing more than what he actually owned at that time. (Utley v. Fee, 33 Kas. 683.) He had before that time conveyed his entire interest to Hart. Therefore the plaintiff took nothing as against him by his quitclaim deed.
The defendants claimed title under a tax deed from the tax sale of 1877 for the taxes of 1876. In 1875 the land had been bought in by Bourbon county at a tax sale for the taxes of 1874, and when it was offered for sale in 1877 for the taxes of 1876, the land had neither been redeemed nor sold, nor the tax-sale certificate assigned; therefore that tax sale was void. (Comp. Laws of 1879, ch. 107, §122; Belz v. Bird, 31 Kas. 139.) A tax deed was issued to Hart, the grantor of defendant, September, 1880, and he immediately took possession under his tax deed.
It is contended in this action, that because Hart had been in possession and had had his tax deed recorded more than two years before the commencement of this action, he held the lot, divested of all tax liens for taxes levied before the date of the tax sale of 1877. Now while the tax deed of Hart, after the two years had expired, would probably have been valid against everybody except Anderson, it would have been voidable as to him. Hart secured from Anderson, in 1883, his interest in the lot. Now this quitclaim deed was a better and a stronger title than the tax deed held by Hart, and, under the well-known rule of law, the weaker and inferior title was merged in the stronger and superior title, and he took the lot, under such quitclaim deed, subject to all liens that would have been upon it while owned by Anderson. If Anderson had not parted with his title to any person until this action had been brought, the taxes under Hewitt’s tax deed would have been a lien upon the lot; and the defendants, claiming under Hart, the grantee of Anderson, have the same rights and are under the same liabilities, so far as this tax lien on the lot is concerned, as Anderson himself would have been had he not given a deed for the lot. The taxes
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.