Board of Regents of Kansas State Agricultural College v. Linscott

— 258 — The opinion of the court was delivered by Valentine, J.: This was an action in the nature of ejectment, brought December 2, 1881, in the district court of Jackson county, by S. K. Linscott against the board of regents of the Kansas state agricultural college, Frank Purcell and C. W. Noble, to recover the northwest quarter of section 30, in township 5, of range 15, in said county, and for rents and profits. The defendants filed separate answers, setting up title in themselves, and pleading the statute of limitations. The first trial of the case was had on March 30, 1882, and the second was had on June 15 and 16,1882, when the court made certain findings of fact and conclusions of law, and rendered judgment upon the same in favor of the plaintiff and against the defendants, who now bring the case to this court and ask for a reversal of such judgment. James PI. Mauzey was the original patentee of the property in controversy. The patent was issued to him by the government-of the United States, on July 2, 1860; and there is nothing in the record of the case prior to the decision of the court below, showing that he had any interest in the property prior to that time. -Prior to March 1, 1868, the property in controversy was situated in Brown county, Kansas; but since that time it has been included by a change of boundary lines, in the county of Jackson. (Special Laws of 1868, ch. 15, § 2.) The plaintiff, Linscott, claims title to the property in controversy under a quitclaim deed executed by Mauzey to him, on June 24, 1881, and recorded in the office of the register of deeds of Jackson county, on June 25, 1881, and under a tax deed executed by the county clerk of Brown county to him, on June 14, 1880, in pursuance of a tax sale had on May 5, 1868, for the taxes of 1867, which tax deed was recorded in the office of the register of deeds of Jackson county, on June 14, 1882. The defendant C. W. Noble claims title to the land in. controversy under a tax deed executed to W. W.. Gavitt by the county clerk of Jackson county on October 2, 1880, and — 259 — recorded in the office of the register of deeds of Jackson county on the same day, and a quitclaim deed from Gavitt to Noble, executed 'December 20, 1880, and recorded in the office of the register of deeds of Jackson county on the next day. The other defendants, Frank Purcell and the board of regents of the Kansas state agricultural college, claim title to the property in controversy by virtue of a sale (without a deed) made by the sheriff of Brown county in 1863, to Sarah J. Mauzey, under an execution issued by the clerk of the district court of Jackson county, upon a judgment rendered by such court in favor of Sarah J. Mauzey and against James H. Mauzey, for $500 as alimony, in an action for divorce; and by virtue of a tax deed executed by the county clerk of Brown county to H. M. Robinson on April 4,1864, and recorded in the office of the register of deeds of Brown county on the same day; and by virtue of deeds of conveyance from Sarah J. Mauzey and H. M. Robinson, down through various intermediate claimants to Frank Purcell, who is now in possession of the property and claiming the same as owner immediately under the board of regents of the Kansas state agricultural college, as his grantor. The defendants also claim title by virtue of an adverse possession, and the statutes of limitations. The plaintiffs in error, defendants below, claim that the court below committed error in various particulars. I. They claim that the court below erred in overruling the defendants’ application for a continuance. We cannot say, however, that the court below did so err. Granting or refusing a continuance is so largely within the discretion of the trial court, that its ruling in the matter will always be sustained unless it clearly appears that such court has abused its discretion or mistaken some well-settled principle of law. (Davis v. Wilson, 11 Kas. 74; Swenson v, Aultman, 14 id. 273; Payne v. National Bank, 16 id. 147.) And where the continuance is asked for on account of the absence of the evidence of a material witness, the affidavit should show not only — 260 — that the party applying for the continuance has used due diligence to obtain such evidence, but the affidavit should also state the facts which it is expected the absent witness would testify to, in the same manner in which such facts should be stated in a deposition. (See case last above cited.) In the present case the affidavit for the continuance was not sufficient. It hardly showed sufficient diligence. It did not state the facts which it was claimed the absent witness would testify to, as well as they should have been stated. Besides, the facts were such that they could have been proved or disproved by various other witnesses, and they were in fact disproved by other witnesses on the trial; and the plaintiff offered on the trial to permit the affidavit to be read in evidence, notwithstanding the objections that might be urged against it. II. The plaintiffs in error, defendants below, also claim that the court below erred in admitting the tax deed to the plaintiff in evidence; and this for the reason that the tax deed was executed by the county clerk of Brown county, although the land in controversy was then included within the limits of Jackson county and was included within such limits when the tax sale was made and the tax deed executed. We do not think this objection to the tax deed is good. When the land was taxed, it was in fact, under the statutes then in force, situated within the boundaries of Brown county; and when the boundaries of Brown and Jackson counties were so changed as to place the land within the boundaries of Jackson county, no provision of law existed or was created by statute or otherwise authorizing the taxes already levied upon the land to be collected in Jackson county; but many of the provisions of the statutes then and now in force indicate that the taxes should be collected in Brown county, notwithstanding the change of boundary lines. Brown county levied the taxes, and immediately a lien was created by statute on the land for the taxes, which lien under the law was to continue in force until such taxes were paid. (Laws of 1866, ch. 118, §62; Gen. Stat. of 1868, ch. 107, §74; — 261 — Laws of 1876, ch. 34, §85; Comp. Laws of 1879, ch. 107, §85.) The statutes also provided that “the repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced under or by virtue of the statute repealed.” (Comp. Laws of 1862, ch. 188, §1; Gen. Stat. of 1868, ch. 104, §1; Comp. Laws of 1879, ch. 104, §1.) Also, the statutes in 1868 and since, further provided that “all matters relating to the sale and conveyance of lands for taxes under any prior statute shall be fully completed according to the laws under which they originated, the same as if such laws remained in force.” (Gen. Stat. of 1868, ch. 107, §143; Laws of 1876, ch. 34, § 155; Comp. Laws of 1879, ch. 107, § 155. See also the cases of Austin v. Holt, 32 Wis. 478; Moss v. Shear, 25 Cal. 38, and the numerous cases cited in the brief of counsel for defendant in error; also Blackwell on Tax Titles, 295, and note.) In the case of Austin v. Holt, ante, it was decided-that where a county was divided after land therein was assessed for taxes and returned delinquent and before it was sold, and by such division the land was included within a new county, the sale and deed for such taxes made by the proper officers of the old county were valid. Some of the other cases referred to by counsel for defendant in error are to the same effect. III. The plaintiffs in error, defendants below, also claim that the plaintiff’s tax deed was void, because it does not appear therein that the plaintiff paid anything to the county treasurer of Brown county for the assignment of the tax-sale certificate to him. Now the tax deed shows upon its face that $50.10 was paid to such treasurer, and the deed itself is in exact conformity with the form prescribed by statute. (Laws of 1876, ch. 34, § 138; Comp. Laws of 1879, ch. 107, §138.) We suppose that that is all that is required. (See also McCauslin v. McGuire, 14 Kas. 234; Morrill v. Douglass, 14 id. 294.) IY. The plaintiffs in error, defendants below, also claim — 262 — that the plaintiff’s tax deed is void for the reason that no sufficient notice could have been published of the expiration of the time for redemption. The statute requires that such notice shall be published for at least four months prior to the expiration of such time for redemption. (Tax Law of 1876, § 137.) The plaintiffs in error claim that this could not be done while the land was held by the county under the tax sale, and that it could not have been done after the tax-sale certificate was assigned to the plaintiff, and before the tax deed was executed, for the reason that the tax-sale certificate was assigned on June 2,1880, and the tax deed was executed on June 12,1880, and that four months could not have intervened between these two dates. We think the plaintiffs in error are mistaken. The notice may be given while the land is still held by the county. Section 137 of the tax law provides for such notice, and it provides that such notice shall contain “a list of all unredeemed' lands and town lots.” This language is certainly broad enough to cover all*lands that have been sold for delinquent taxes, whether the lands have been sold to the county and are still held by the county, or not. Any other construction of the statute would , work great inconvenience, and would certainly not be what the legislature intended. Besides, this question is raised for the first time in this court. V. The plaintiff’s tax deed vested in him an absolute estate in fee simple in such land. (Gen. Stat. of 1868, ch. 107, § 112; Laws of 1876, ch. 34, §138; Comp. Laws of 1879, ch. 107, § 138.) And of‘course his right to recover for the rents and profits dates from the date of his deed, and not from the time of recording the same. VI. The tax deed to H. M. Robinson was void and of no effect. It was executed for the taxes of 1859 — atimewhen the land was not taxable, as was found by the court below, and as the evidence seems to show. (Hobson v. Dutton, 9 Kas. 477-488.) There was no pretense made upon the trial that Mauzey had made final payment for the land to the government in 1858, as the plaintiffs in error now claim; and there was no — 263 — evidence introduced on the trial tending to show the same. From anything appearing in the case up to the close of the trial and the decision of the court below, Mauzey did not own or have any interest in the land until July 2, 1860. But suppose the land was taxable in 1859, and that this deed to H. M. Robinson, executed April 4, 1864, was valid; still it could not be valid as against the plaintiff’s tax deed, which was executed June 14,1880, for the taxes of 1867 — six years afterward. For where different tax deeds for the same land are executed to different persons for the taxes of different years, the tax deed last executed for the taxes of the latest year will be paramount to the tax deed previously executed for the taxes of some previous year. "VII. The plaintiffs in error, defendants below, also claim that the court below erred in permitting the plaintiff below to introduce evidence tending to show that the tax deed from the county clerk of Jackson county to W. W. Gavitt was void. "We do not think that any such error was committed. Under § 275 of the civil code, the court is expressly authorized in its discretion to direct the order in which the trial shall proceed, and in the exercise of a sound judicial discretion we think the court did not err in permitting the plaintiff below to introduce his evidence tending to show that the tax ■deed to Gavitt was void at the time such evidence was introduced. It is also claimed that the evidence was erroneous for other reasons. Possibly some of it may have been; but under the circumstances it could not have affected prejudicially any of the substantial rights of any of the defendants. VIII. From the evidence and findings of the court below, it would appear that the tax deed to Gavitt was void for at least three reasons: First, for an excessive levy of school taxes; second, because of injunction proceedings pending against the county clerk, enjoining him from issuing such tax deed; third, an excessive charge for printer’s fee. The execution of this tax deed was an attempt to build up a title to the land in controversy in violation of the injunction, against the title of — 264 — Mauzey and the plaintiff and of all the defendants except Noble. We think, under the circumstances, the court below rightly held that it was void. But the court below allowed Noble all taxes, interest, penalties, etc., paid by him or his grantors in procuring such tax deed. This is all that Noble;, or the parties standing back of him, are entitled to claim. IX. We think the finding of the court below that the plaintiff’s title was not barred by any statute of limitations is correct. As we understand, the defendants now claim only under the fifteen-year statute of limitations, and certainly both from the evidence and the findings of the court below, the defendants did not, either in the aggregate or othérwise, hold the property adversely to the plaintiff and his-grantors for the period of fifteen years. There was not only no evidence tending to show that the land was occupied from 1863 up to 1869, but the evidence clearly and conclusively showed that the land was vacant and unoccupied during that time, and the court below so found. X. Mrs. Mauzey never had any title to the property in controversy. She never obtained a sheriff’s deed, as none was-ever executed. Her claim to'the property was founded solely upon a sheriff’s sale, and this sale was made by virtue of an execution issued upon a judgment for $500 in money, in an action for divorce and alimony; and in this action no personal service was ever made upon the defendant Mauzey, Uor did he make any appearance in the case, but service was made only by publication of summons in a newspaper. No-judgment was rendered in the case with reference to the land-in controversy, and there was no prayer in the petition expressly asking for a money judgment. The petitiou, however, .prayed for “ reasonable alimony,” and “ for such other and further relief as the nature of her case in equity may require.” We think it may therefore be safely said that Mrs. Mauzey never obtained any title to the property in controversy, and therefore had no title to transfer to any of the defendants. Besides the other irregularities, we might say that a mere sheriff’s sale never vests a legal title: it takes a — 265 — deed to vest a legal title upon a sheriff’s sale. (Civil Code of 1859, §450; Civil Code of 1868, §459; and see authorities cited in brief of counsel for defendant in error.) But at the time Mrs. Mauzey’s action for divorce and alimony was brought, which was in June, 1862, and when her judgment in such action was rendered, which was on April 21, 1863, and when said sheriff’s sale was made, which was on June 20, 1863, the statute concerning divorce and alimony was not a part of the code of civil procedure, and there was then no provision for issuing an ordinary execution in such an action, and no provision making a money judgment in such an action a lien upon any property, and probably no such judgment could be a lien upon any property. (Olin v. Hungerford, 10 Ohio, 269.) Besides, a purely personal judgment for money upon service by publication alone is not generally regarded as having any validity. (See authorities cited by counsel for defendant in error.) XI. The court below properly refused to allow the defendants the benefit of the oceupying-claimants act prior to June 14, 1880, the date of the plaintiff’s tax deed. The title acquired under a tax deed is an independent title, and “ vests in the grantee an absolute estate in fee simple.” (Comp. Laws of 1879, ch. 107, §138.) And of course such a title extinguishes all former rights and titles of individuals except those reserved by statute. XII. The plaintiffs in error, defendants below, also claim that the court below erred in overruling the motion for a new trial on the ground of “surprise which ordinary prudence could not have guarded against.” Now after a careful examination of the entire record of the case, we cannot say that the court below committed any such error: (1.) It would seem from the record that reasonable diligence on the part of the defendants below would have prevented the possibility of the alleged surprise. As before stated, the case was commenced on December 2,1881; a first trial of the case was had on March 30, 1882; and the second trial, at which the judgment was rendered of which the plaintiffs in error now — 266 — complain, was had on June 15 and 16,1882. There seems to have been ample time for the defendants to have made all necessary preparation for their case. Besides, at the first trial, they might, if they had so chosen, have had every question in the case examined and passed upon by the court; they might have put the plaintiff himself upon the witness stand, and examined him as to every muniment of title possessed or claimed by him. The principal object in allowing a second trial in actions of ejectment like the present action is, to guard against the possibility of mistakes and surprises. See also §§368 and 369 of the civil code, as furnishing a means whereby parties may obtain copies of instruments held by the adverse party. Under these sections, the defendants could have obtained a copy of the plaintiff’s tax deed, provided they had had the slightest suspicion that he held or claimed to hold under any such tax deed; or, if the plaintiff had failed to furnish a copy to the defendants, after a proper demand therefor under said sections, then the defendants could have excluded it from being introduced in evidence on the trial. (2.) It also appears from the record that no surprise was manifested at the trial, and no delay asked for on account of any supposed surprise. The case was tried before the court without a jury, and the postponement of the case for a day or a few days could easily have been had, to enable the parties to obtain any additional evidence; or the case could have been continued till the next term of the court. But it would seem that the defendants voluntarily chose to take the chances for a decision in their favor upon the evidence introduced, and for the first time intimated that they were surprised after the trial was completed, and after they found that the decision of the court was against them. (See the numerous authorities cited by counsel for defendant in error.) (3.) It does not appear from the showing made on the hearing of the motion for a new trial, that a new trial would necessarily, or even probably, lead to a different decision. (4.) The granting or refusing of a new trial upon the ground of surprise is largely within the sound judicial discretion of the trial court. — 267 — (See Green v. Bulkley, 23 Kas. 130, 135, 136; and authorities cited by counsel for. defendant in error in the present case.) We certainly cannot say, in the present case, that the court below abused its discretion, or mistook any well-settled principle of law. XIII. The defendants below were not entitled to a new trial on the ground of newly-discovered evidence, for the reasons, (1) that much of it was not newly-discovered evidence ; (2) that by the exercise of reasonable diligence all of the supposed newly-discovered evidence could have been discovered before the commencement of the trial; (3) it is not clear if it had been introduced on the trial, that it with the other evidence would have required a different decision ; (4) the principal witness with regard to this supposed newly-discovered evidence was thoroughly impeached; and (5), the question of granting a new trial for this reason was largely within the sound judicial discretion of the trial court. (See authorities cited by counsel for defendant in error.) We think the defendant in error, plaintiff below, had authority to impeach the testimony of the witnesses of the defendants below, introduced on the motion for the new trial. Such a practice will certainly tend to promote the interests of justice. The judgment of the court below will be affirmed. All the Justices concurring.