Sheaff v. Husted

The opinion of the court was delivered by Smith, J. : It will be decisive of' this case to determine whether a tenant of the owner of a fee-simple title to real estate may attorn to the holder of a tax deed regular on its face but voidable for the reason that illegal taxes were included in the amount of the expressed consideration stated in the same. The plaintiff below, plaintiff in error here, was defeated in his action to quiet title upon the ground that he was not in possession of the property. One Barnes, the tenant of the defendants in error, after a tax deed had been issued, recorded, and exhibited to him, recognized the tax-deed holder as his landlord, and the plaintiff below, who was the grantee in such deed, alleged this possession as the basis for a suit to quiet his title against the original owners. The court [771] of appeals held (Sheaff v. Husted, 8 Kan. App.-, 55 Pac. 507) that this act of attornment on the part of the tenant was a denial of the title of the landlord, coming within t'he familiar rale that the tenant cannot be permitted to dispute such title. We differ with the court of appeals in the application of the rule to the facts of the case before us. The plaintiff in error held a tax deed, which was regular upon its face and in substantial conformity with the form prescribed by section 197, 'chapter 158, General Statutes of 1897 (Gen. Stat. 1889, ¶ 6991). When presented with this title the tenant-was justified in recognizing the grantee in such deed as the owner of the property. The original owner had suffered the property to be sold for taxes and his-delinquency continued until a tax deed was issued. It has been held, in Smith v. Cooper, 38 Kan. 446, 16 Pac. 958, that a tax deed void on its face conveys no title. The tenant, however, by an examination of this deed could see that it conveyed title, and it would be unreasonable to require him to examine into the tax proceedings back of the deed and make his-right to attorn depend on their regularity. In 1 Wood’s Landlord and Tenant, 497, it is said : “In all cases it is competent for the tenant to show that the landlord’s title has terminated, as, that the premises have been sold under foreclosure proceedings, under execution, or for taxes, or, indeed, that the title of the landlord has, from any cause, expired.” See Weichselbaum v. Curlett, 20 Kan. 709; Lyn v. Washburn, 3 Colo. 201; George v. Putney, 4 Cush. 351. The judgments of the court of appeals and the district court are reversed and a new trial ordered.