90 Kan. 253 | Kan. | 1913
The opinion of the court was delivered by
The action in the district court was brought by the plaintiff, Estella Van Gundy, as vendor, to compel the defendant, Clum C. Shewey, as vendee, to specifically perform a contract for the sale of a quarter section of land. Judgment was rendered for the plaintiff, and the defendant appeals.
The defendant declined to perform on his part because he was not satisfied with the ti|le offered. The contract did not guarantee a perfect record title» and consequently the defendant must be satisfied with a marketable title. The subject of what is a marketable
The plaintiff derived title through deeds from the heirs of George Fossler, deceased, whose estate was not probated. Attached to the abstract furnished to the defendant is a showing by the affidavit of a person having knowledge of the facts that Fossler died intestate possessed of the real estate in question, that the grantors in the deeds referred to were his heirs and only heirs, that they were of legal age when they conveyed, and that all of Fossler’s debts at the time of his death and his funeral expenses were paid in full.
A title is not unmarketable because there is a break in the record occasioned by the death of the owner and consequent devolution of title by operation of law. From the very nature of the case, however, the only way in which an abstract can be made to exhibit a good title in such instances is by a showing of the kind just described. When a vendor has by this means exhibited a title free from doubt, it devolves upon a vendee objecting to it to show wherein the title is bad or doubtful. (Maupin on Marketable Title to' Real Estate, 2d ed., § 295.) The defendant does not dispute any of the facts set forth in the affidavit referred to, or show that he woi^ld labor under any difficulty in proving them should occasion arise. Therefore the title appears to be free from doubt so far as the matter under consideration is concerned..
In 1888 the then owner of forty acres of the land gave a mortgage upon it to Edward E. Holmes, as trustee for Willis G. Myers, as beneficiary. The beneficiary assigned the mortgage and the assignee released it many years ago. Technically, perhaps, the release may be said to be defective because the trustee did not join. Since, however, satisfaction of the debt has been acknowledged by the party entitled to the benefit of the security, and sintíe the release has been acquiesced in by the trustee and the beneficiary for a
A number of claimed defects in the title to the south half of the quarter section were pointed out and time was extended to the plaintiff in which to cure them by an action to quiet title. Service was made upon the defendants in such action by publication. Section 79 of the new code radically changed the requirements of section 73 of the old code respecting the contents of the affidavit for service by publication. It reads as follows:
“Before service by publication can be made, an affidavit must be filed, stating the residence, if known, of the defendant or defendants sought to be served, and if not known, stating that the plaintiff has diligently inquired as to the residence of such defendant or defendants and has been unable to learn the place of such residence and that the plaintiff is unable to procure actual service of summons on such defendant or defendants within this state, and showing that the case is one of those mentioned in the preceding section. When such affidavit is filed the party may proceed to make service by publication.” (Civ. Code, § 79.)
In the suit to quiet title the affidavit stated that the defendants were nonresidents of the state of Kansas, that their residence was unknown to the plaintiff, and
The plaintiff has title to the south half of the quarter section by virtue of a tax deed issued in 1896, good on its face and of record for more than fifteen years at the time of the trial, during all of which time the land has been in the possession of the plaintiff and her grantors. The plaintiff herself had been in possession for more than three and one-half years when the decree quieting her title was rendered, and there is no pretense that possession for more than five years is not readily provable. The defendant claims the tax deed is void on its face because the consideration stated can not be arrived at from the data furnished by the antecedent recitals, but it is easy enough to do so under the liberal rules which have been adopted for the interpretation of tax deeds which have been of record for five years or more. This deed effectually extinguishes the basis of all claims which might, according to the abstract, be asserted by the defendants in the action to quiet title. Indeed the defendant made no serious objection to the tax title until after judgment had been rendered in the suit to quiet title. He now argues that the suit to quiet title exposed the tax deed to attack for irregularities in the proceedings upon which it was based, and consequently destroyed its impregnability as a muniment of title should any of the defendants choose to treat the void service as valid and ask to be let in to defend.
The decree quieting title purports to be based upon
Several questions of practice have been presented but the court has passed them by and has given its attention to the real character and strength of the title which the defendant has been ordered to accept. Believing that such title is good beyond all reasonable doubt, the judgment of the district court if affirmed.