Warner v. Broquet

The opinion of the court was delivered by Horton, C. J.: This is the second time that this case has been in this court. (43 Kas. 48.) When the case was here before it was heard by the commission, and the opinion was prepared by Clogston, C. It was decided therein that the husband could obtain a tax title upon land in which his wife had an interest. It was intimated in the opinion that if the husband and wife were in possession of the premises, neither could obtain a tax title upon the property. There is sufficient evidence contained in the record showing that Ernest Broquet had actual possession of the land at the date of the tax sale at which he purchased the same, and also at the date that the tax deed was issued to him. Therefore, upon the intimation of the foregoing opinion, as the wife had an interest in common in the land with other heirs, and as her husband had the actual possession thereof, his alleged tax title is of no actual validity. The relation of the husband and the wife to the property was such that neither could obtain a valid tax title thereon. But we are not willing to rest this decision upon the actual possession of the land by the husband or wife, or by both. There is nothing in our statutes recognizing the legal existence of the wife and her equal property rights which abrogates the marital rights of trust and confidence incident to the relation of husband and wife. The existence and continuance of these relations are fully recognized in the statutes. (Civil Code, §323, subdiv. 3; Fisher v. Conway, 21 Kas. 18; Chandler v. Dye, 37 id. 765-767.) Both husband and wife have an interest, either direct or indirect, in each other’s real estate. These interests and the mutual confidence which ought to ex [651] ist between husband and wife forbid either from obtaining a tax title upon the real estate of the. other. (Laton v. Balcom, 64 N. H. 92: same case, 22 Rep. 733; Burns v. Byrne, 45 Iowa, 285.) The case of Broquet v. Warner, 43 Kas. 48, will be overruled. The motion for a new trial ought to have been sustained. The judgment will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. All the Justices concurring.