Stebbins v. Guthrie , 4 Kan. 353 ( 1868 )

By the Court,

Kingman, C. J.

This was an action for the recovery of real property, brought by the defendants in error, to recover the east part of lot 7, in block 12, in the city of Atchison. The (cause was tried by the court, who found the right of possession in the defendants in error. The plaintiffs in error claimed the benefit of the statute entitled “An act for the relief of occupying claimants of land,” which demand the court refused, and the plaintiff in error brings the case to this court for review.

The court found and stated the conclusions of fact, and from them deducted the conclusion of law, that the ■ applicants were not entitled to the benefit of said act.

The facts found are substantially these: On the 27th day of April, 1865, Yates was owner of the property in controversy, which he had bought from McCubbin. There was a mortgage on the property for something over $1,200, made by Yates to McCubbin.

Stebbins & Porter on that day bought the mortgage for the amount due thereon. On the 29th day of the same month, they bought of Bartholow & Brother a judgment which was obtained against Yates by an attachment on this lot, for two hundred and twenty-seven dollars, under which judgment'the property was sold on the 19th day of May, 1865, and Stebbins and Porter became the purchasers. This sale was confirmed on the 13th day of July, 1865, and a sheriff’s deed made September 3, .1866.

On the 27th day of April, 1865, Stebbins & Porter bought a tax sale certificate of the same property, certifying that the premises had been sold for taxes on the 24th day of May, 1864; and on the 14th day of July, 1866, a tax deed was made to them therefor.

The judgment under which the sale was made was, upon proceedings duly had, declared null and void, at the December term, 1866, of the district court of Atchison county. The tax deed and certificate were, at the same term this case was tried, in proceedings duly had, declared null and void.

In the tax certificate the lot was described as “lot Ept. 7, block 12, in old Atchison, in Atchison city, situated iu Atchison county, Kansas. ’ ’ In the tax deed it was fully described.

Stebbins & Porter took possession of the premises about' the 1st day 'of June, 1865, and commenced building, and by the middle of August thereafter had completed lasting and valuable improvements thereon, costing them .$7,500, and had remained in possession ever since.

These are briefly all the facts necessary to state for a full understanding of the only points we shall decide in the case. The mortgage cuts no figure in the case, as it was not foreclosed.

We shall abstain from any consideration of the judgment, and the sale, and sheriff’s deed thereunder, as the view we take of the occupying claimant act is decisive of this case on the tax sale.

The occupying claimant law of this state is copied from that of Ohio, with some additions, not affecting the case before us. This law, enacted many years ago in that state, has been passed upon' by its highest courts in almost every conceivable aspect of it, and received a judicial construction, so uniform and consistent, and in such entire harmony with the language of the statute, and the equitable objects sought to be attained by its enactment, that it'will relieve this court from any difficulty in its application to the case before us. In the. case of Bemis v. Becker and others (1 Kan., 248), this court held:

Where one state adopts a law from another, the judicial construction given to the statute in the state where it originated, follows it to the state of its adoption. This well known principle stands upon the ground that the legislature of the state is presumed, in adopting the law, to take it with the construction previously placed upon it, and such will he considered the legislative intent, unless the language of the law manifestly indicates another construction. There is no such trouble with the case under consideration.

One of the conditions pointed out in the first section is: being in possession of, and holding any land under any sale for taxes authorized by the laws of the state, entitle the occupant to the benefit of the provisions of the statute, if his possession has been obtained without fraud or collusion.

It will be seen that in this section it is only made' necessary that the occupant holds under any sale for taxes; but lest it should be contended, as it was in this case, that no sale was perfected until the deed was made, thus leaving property unimproved and unproductive for two years, it is further provided in section two, which is a legislative construction of section one, that if the claimant holds a certificate of sale of the lands from a collector of taxes, or county treasurer, &c., he shall be deemed to have sufficient title to said land to demand the value of improvements made under provisions of the first section.

Now, the plaintiffs in error had such certificate at the time they made the improvements for which they demand compensation, and that, by the obvious terms of the law, entitled them to its benefits; but the defendants in error object that the tax certificate was void, because it was declared so by the court. The findings do not show for what cause the court declared it void. It was declared in proceedings duly had, wherein these defendants were plaintiffs and the claimants were defendants. Why was such a suit brought ? The defendants in error are men learned in the law, and it would seem that they had some idea that there was some show of title in the tax certificate, or they would not have sought to set it aside. The decision of the court in that case was, that the tax certificate should be held null and void. We are to presume that that judgment was right. It only imports, however, that for some cause, henceforth they are so held. And the experience of other states has shown that most titles held in that way would, upon proper proceedings had, be likewise declared void. Such a conclusion must be reached in some way, before the unsuccessful party can 'claim the benefit of the occupying claimant law. If the tax title was good, then the claimant under it would hold the property in litigation. A defective title only will enable a party to claim. The defendants in error preferred to test each claim of the plaintiffs in error, separately. They set aside the judgment in one suit, the tax certificate and title in another, and the right of possession was determined by a third. They take nothing by this. The law does not favor a multiplicity of suits. The case here is, as to this claim, as though but one suit had been brought, and the tax title held an insufficient defense. Then, nothing further appearing, the claimants were clearly entitled to the benefits ■ of the law, both by its plain language, its manifest objects, and a long train of decisions in the state from whose statutes we adopted it. But it is further urged that, till the expiration of two years, no title is acquired, and therefore no rights can attach save that of a right to a deed, if the property is not redeemed. This is á misconception of the law. The purchaser at a tax sale buys the property then, becomes the owner then, the title only being defeasible by redemption for two years. But if we are wrong in this, the law we are considering makes the tax certificate such a title as authorizes one holding under it to make improvements, and, if evicted, to get pay for them.

Again, it is said the tax certificate was void on its face, and so put the holder on his guard that he could not, in good faith, make any improvements thereunder ; that the description was so vague and uncertain that it ought, at once, to have impressed the conviction on the mind of the buyer that it was void for uncertainty. And yet the counsel, who insists that the holder should perceive its worthlessness from its face, made an elaborate argument to this court, and cited many authorities, to show that it was void upon its face. Now, we have already said that it must be' held in some way or other to be void, before a case can be made where the claimant can even ask the benefit of this act. But here the counsel insists that it was so apparently worthless on its face, that to make improvements under it showed a fraudulent purpose on the part of parties unlearned in the law. We might well pi ace the counsel’s acts, against his arguments. A defect so patent that not to notice it is evidence of fraud — proof of a purpose to commit a flagrant trespass when out of court — might well have been left to the decision of the court without extended argument, if the counsel’s convictions on that point had been as strong as his assertions. By our view of the law of this case, it is unnecessary to decide whether the description in the tax certificate was sufficient or not. We only find it necessary to say that it was not so defective as would make the holder of it guilty of fraud by pretending to hold under it and making improvements on his holding. . While the writer of this opinion has no doubt on this matter, he purposely leaves his views unexpressed, so that the uncertainty of each lawyer, who has not given the subject a careful examination, may "be our reason, for holding that the point is not well taken in this case.

But whatever defect may have existed in the description of the property, "by abbreviations in the tax certificate, or whether the certificate was evidence of ownership or not, still, when the case was tried, the defendant was in possession, under a tax deed, describing the land fully; and this was sufficient to authorize the parties to claim the benefit of the law.

In the case of the Lessees of Davis v. Powell (13 0., 320), the court held that a defendant, holding possession under claim of title, will be allowed, under the occupying claimants law, as well for improvements made by him before his title commenced, as for those made after; and the learned judge, who delivered the opinion, very justly observed:

£ £ The equity of the statute embraces all improvements made in the honest belief of ownership, if at the time of rendition of judgment, the occupant is in possession under such title as brings him within the meaning of the statute. If such a state of facts exists as to call the statute into action, it never stops until it has worked out complete equity and justice, and embraced the en- ■ tire improvement, beneficial to the successful claimant, and honestly made. Any other construction would permit an honest purchaser of land, buying from one without color of title, who sells from mistaken belief of ownership, to be swept out of the hard toil of years, expended in improvéments made' for the provision of Ms family or the repose of age. The statute is to be construed, whenever a case comes within its letter, that the person receiving the benefits and advantages of improvements shall make compensation. It rests on the broadest equity, and may justly claim a liberal construction.”

In the case of the Lessees of Shuler v. Majin (2 O. JR., 236), the same doctrine is held. Apply these principles to this case, and the tax deed alone would have been enough to justify the plaintiffs in error in claiming the benefit of the act. So that their claim, under the tax certificate — which they held when the improvements were made — or under the tax deed, was good, and should have been allowed by the court.

We do not refer to the numerous cases decided in Ohio, for they are found in almost every volume of the reports, and are not only accepted as constructions of our statute previous to our adoption of it, but also as fair and just applications of the provisions of the statute to the purposes for which it was enacted. We have examined with care the numerous decisions to which we were referred by the counsel for the defendant in error, but they are in explanation of statutes so wholly unlike ours, and so much more limited in their scope and application, as to throw little or no light upon the act we are considering.

Besides the main question which we have examined, the defendants in error claim there are other points which will preclude the plaintiffs in error from having the benefit of this act.

1. It is insisted that they made their claim at the wrong time. The claim was first made in a supplemental answer to a supplemental petition, a short time previous to the trial; and it seems, from the findings of the court below, was persisted in all through the proceedings, and is again insisted on here. We think the objection not well taken.

2. It is urged that there were no witnesses to the tax deed. We do not think, where a deed is acknowledged, any witnesses are necessary; hut if it were otherwise, of what avail would it be % It would show a defective title, and it is only under such that the provisions of this act apply.

Again, it is urged that the findings of the court do not show good faith on the part of Stebbins & Porter. To this we answer, that the statute requires that the holding of the claimant should be without fraud or collusion. Now, in the absence of any finding or any fact showing fraud, the presumption is, none existed ; but as we followed the counsel beyond the facts found to the testimony in the case, we -were strongly impressed that, instead of fraud or collusion, the contrary appeared.

The judgment of the court below is reversed, and the cause remanded for further proceedings.

All the justices concurring.