O'Brien v. Creitz

The opinion of the court was delivered by Brewer, J.: This was an action brought by defendant in -error to qniet title to a lot in the town of Holton. In his ■petition he alleged that he held the legal title, and was in peaceable possession, and that O’Brien set up an adverse interest. Upon the trial he testified that the lot was entirely vacant and unoccupied, and then offered his deeds, which were objected to on the ground that he had not shown himself in actual possession. The objection was overruled, and this is alleged as error. We see none. It was decided in Eaton v. Giles, 5 Kas., 24, that “ an action to quiet title may be brought by the holder of the legal title when he is not in possession, if the real estate for which he holds the title is vacant.” Where real estate is unoccupied and vacant the holder of the legal title has the constructive possession. It is true, when there is no actual possession the party holding title cannot proceed under § 594 of the civil code. Yet he is [204] not therefore without remedy. He can have his title, determined and protected. See case of Eaton v. Giles, just cited. It is further insisiod that the plaintiff did not show a legal title in himself, his chain of title commencing with a deed from C. C. Whiting. It is true only two deeds are preserved in the record, but there is nothing to, show that it contains all the testimony, and we are not at liberty therefore to assume that it does, and that, the plaintiff did not prove title from government by regular chain of conveyances to himself. The judgment will be affirmed. All the Justices concurring.