82 Kan. 528 | Kan. | 1910
The opinion of the court was delivered by
In 1899, and for some time prior and subsequent thereto, the Blue Rapids Company, a cor-' poration, owned the 40-acre tract of land which is in dispute, and which is located in Marshall county, Kansas. The taxes levied against the land for 1899 were not paid. Litigation having been commenced between certain of the stockholders of the corporation and the corporation itself in the district court of that county, the court, in March, 1900, appointed one Russell receiver of all the real and personal property of the corporation. Russell was succeeded as receiver in February, 1901, by one Winter. At the tax sale in 1900 the land was sold for the taxes of 1899 to one Frazier, and in May, 1902, Frazier assigned the tax certificate to J. L. Hamilton. In March, 1903, Hamilton leased the land from the receiver, Winter, under a verbal lease for one year, and took possession of the same. September 12, 1903, the county clerk issued and delivered to Hamilton a tax deed to the land, which was filed for record on the same day.' Some time after the issuance of the tax deed Hamilton paid the receiver the rent of the land for one year, and thereafter held possession of the land under the claim of ownership, refusing to rerent at the close of the year, but continuing in possession thereof until the’trial of this action.
The plaintiff, Yurann, was a stockholder in the Blue Rapids Company, and as a result of the litigation in the company the land in question was by decree or otherwise conveyed to Yurann, as an individual and as trustee for six other stockholders of the corporation. In August, 1908, Yurann, for himself and as trustee, as aforesaid, began this action against Hamilton and wife by filing a petition in the district court of Marshall
In addition to disclosing the facts heretofore recited, it appeared that the order of the court directing the receiver to take charge of the real and personal property of the corporation contained the following:
“All creditors of said Blue Rapids Company are hereby enjoined from in any way intermeddling with the property hereby directed to be turned over to said receiver, and all officers, directors, agents and tenants of said Blue Rapids Company are hereby enjoined from interfering with or disposing of said property of said company, and described herein, in any way except to transfer, convey and turn over the same to said receiver.”
The case was tried at the October, 1908, term of the court, and resulted in a judgment in favor of the defendants.
The plaintiff, in the progress of the trial, offered numerous objections to the introduction of evidence by the defendants, but no objection appears to have been made on the ground that no answer had been filed. The case was tried as if at issue. In due time after the judgment was rendered the plaintiff filed a motion for a new trial on the statutory grounds, and also set forth that the cause was in default, no answer having been filed therein, and alleged error in permitting the defendants to introduce testimony without the filing of an answer. Thereupon, upon the application of the defendants, the court allowed the answer to be signed by their attorney.
In the motion for a new trial an affidavit was introduced on the part of the plaintiff tending to show a verbal agreement between the attorneys of the parties in regard to certain evidence, or the submitting of the case without certain evidence, which agreement was said to have been made before the parties announced
The orders of the court allowing the answer to be signed and allowing the defendants’ attorney to make a statement of facts and afterward to reduce the same to writing in an affidavit, and the consideration of the oral statement on the motion for a new trial, are alleged as error. An answer was really filed, lacking the signature of the defendants’ attorney, and the case was tried as if it were in fact a valid answer. The order allowing the answer to be signed should have been made as a matter of course. The acceptance of an oral statement on the hearing of the motion was of course irregular; but the statement was afterward reduced to writing, and is certified by the court in the case-made, and that it accords with the oral statement is not questioned. The two affidavits relating to accident and surprise arising out of an agreement between the attorneys presented an issue of fact, which the court decided in favor of the defendants on the conflicting evidence, and we can not say that the court erred in its determination.
It is contended on behalf of the plaintiff that the order of the court, above copied, enjoining all creditors of the corporation from intermeddling with the property of the company turned over to the receiver is decisive of this case; that Hamilton, by purchasing the tax-sale certificate, became a creditor of the company, and that the acceptance of the assignment of the certificate and the tax deed, and holding possession of the land thereunder, were in violation of this order. We can not concur in this view. The tax proceeding was
Again, it is argued that Hamilton did not take possession of the land under the tax deed, but as tenant of the receiver, and that at the time the tax deed was issued he was indebted to the receiver for rent (which he soon afterward paid) in a sum greater than the amount due upon his tax certificate; and inferentially it is claimed that he should have paid the amount due to himself on the tax certificate and accounted to the receiver only for the balance of rent due. This also is untenable. Neither his contract with the receiver nor his relation to any of the parties interested in the land imposed upon him the duty to pay the taxes; and a tenant who is under no obligation to pay taxes may purchase the leased premises sold for taxes and assert his title thus acquired against his landlord in defense of a claim for rent. (Weichselbaum v. Curlett, 20 Kan. 709; Smith v. Newman, 62 Kan. 318.) It must also be borne in mind that neither the accruing of the taxes nor the sale of the land for taxes was during the time that Hamilton was the tenant of the receiver on the land. The taxes accrued in 1899; the tax sale was in September, 1900, to Frazier, and Frazier sold the tax certificate to Hamilton in 1902. Hamilton became tenant of the receiver March 1, 1903.
We are unable to see that either the case of Railway Co. v. Love, 61 Kan. 433, 437, or that of Cramer v.
As we find no error in the three questions raised, the judgment is affirmed.