Broquet v. Warner

Opinion by Clogston, C.: The single question now presented is, could the plaintiff in error obtain a valid tax title upon land in which his wife had an interest, as one of the surviving heirs of James Blue, her father? It is to be remembered that this action was to foreclose a mortgage that was executed in the lifetime of James Blue. After his death the plaintiff in error obtained a tax title upon the property mortgaged, in which his wife was an heir, and the plaintiff in error now insists that the question of the validity of this tax title could not be litigated in this action. This question has been decided in this court, and against the plaintiff in error, in Bradley v. Parkhurst, 20 Kas. 462, where it is held that all outstanding tax liens might be brought in and determined in an action to foreclose a mortgage. The remaining questions are, was the tax title void because issued to the plaintiff in error, and had he, by reason of being the husband of an heir at law of James Blue, such an interest in the property as to render the tax title void ? The record is silent on the question of possession or claim of homestead interest by plaintiff in error, and in the absence of any claim [50] of that kind, we must presume that no possession vested in him; and if no possession vested in Ernest Broquet, then can can it be said that he was under any legal obligation to pay the taxes upon the premises ? It has been universally held that where a husband and wife had an interest in common with other heirs, that neither could obtain a tax title upon the property. This is based upon the assumption that, being in the possession and enjoyment of the premises, an obligation rested upon them to pay the taxes. (Burns v. Bryne, 45 Iowa, 285; Austin v. Barrett, 44 id. 488; Busch v. Huston, 75 Ill. 343.) But where these facts do not exist, we think they are freed from this obligation, and the husband might procure a valid tax title upon the property, although his wife may have an interest in the property. It is recommended that the judgment of the court below be reversed, and the cause remanded with directions to sustain the demurrer of the defendant to the plaintiff’s petition. By the Court: It is so ordered. All the Justices concurring.