84 P. 747 | Kan. | 1906
The opinion of the court was delivered by
W. H. Bigger sued Kate and Nannie Young to recover the possession of a tract of land, and for mesne profits. The plaintiff’s petition was general in form, and claimed a complete title. The answer included a general denial, coupled with a statement that the defendants owned an undivided nine-twentieths of the land and had no information as to who
Plaintiffs in error contend that the form of the plaintiff’s petition was fatal to his recovery in this action because of the requirement of section 597 of the civil code (Gen. Stat. 1901, § 5084), which reads:
“In an action by a tenant in common of real property against a cotenant, the plaintiff must, in addition to what is required in section 595, state in his petition that the defendant either denied the plaintiff’s right, or did some act amounting to- such denial.”
.The contention is not well founded, for the reason that the plaintiff did not sue as a tenant in common, but as one having complete title to the property. That his evidence failed to support his claim in its entirety did not affect his right to recover the interest to which he established his title. (Gatton v. Tolley, 22 Kan. 678.) The defendants, by including in their answer a general denial, made an issue upon the question whether the plaintiff had a right to any part of the property, and, the proof being against them, they were properly taxed with the costs. The fact that their pleading only claimed title for themselves to nine-twentieths of the land, and recited that they had no information concerning the ownership of the remaining interest, has no bearing on the matter. Their denial of plaintiff’s claim was no less effective because they avowed ignorance of the real fact, or because they asserted only a partial title for themselves. Moreover, there was some evidence tending to show that before the bringing of the action they had asserted an exclusive right of possession as against the plaintiff.
The evidence showed that in 1882 W. E. Winner.
The action was brought December 3, 1903. The trial was completed and the cause submitted to the court July 18, 1904. The decision was announced and judgment rendered November 19, 1904. The court found that the plaintiff was entitled to recover $132 as his proportionate share of the rent for twenty months. This finding seems to be based upon evidence of the reasonable rental value of the property. The plaintiffs in error claim that they were tenants in common who had not ousted their cotenant, and were only liable for a share of the rents actually received. In the brief of the defendant in error it is said:
“We recognize the rule .that a party can only be liable for the amount of rents actually received, 'if that amount be shown. ... It is not disputed that Young was in possession and rented and received the rent.”
The court allowed the plaintiff a lien upon the defendants’ interest in the property for a proportionate amount of the taxes, the payment of which was evidenced by the tax deed that was held.to be invalid. The defendants complain of this on the ground that inasmuch as the plaintiff was a part owner of the property when Horton conveyed to him he was disqualified to acquire a tax title, that his attempted purchase of one operated ás a redemption, and that he cannot take advantage of the statute requiring the reimbursement of the holder of a tax deed which is set aside on account of defects. There was evidence, however, that the plaintiff really bought the tax title before he had any interest in the property, although the deed in consummation. of the purchase was not
The final error assigned is based upon the refusal of the court to allow the defendants to charge against the plaintiff a part of the taxes which they had paid upon the entire property before he acquired any interest in it. The taxes paid by the defendants upon the part of the property owned by Allen gave them a lien upon it, as against him. (17 A. & E. Encycl. of L. 686.) Bigger, when- he bought from Allen, received only a quitclaim deed. He therefore stood in the shoes of the grantor. He acquired no higher right than Allen had had, and took the property charged with this lien. There is no showing that when these taxes accrued or were paid the defendants had ousted their cotenants or were in the receipt of any income from the property. We therefore think the court erred in not allowing the defendants credit for the taxes they had paid in excess of their due proportion. The judgment is reversed, and a new trial ordered.