Greenlee v. Smith

46 P. 543, 4 Kan. App. 733, 1896 Kan. App. LEXIS 268

• Court: Court of Appeals of Kansas
• Decided: October 7, 1896
• Docket: No. 121
• Status: Published

Opinion

The opinion of the court was delivered by

Dennison, J. :

The court made no separate findings of fact, and the question for us to consider is, whether Smith established his title to the lot and his right to recover the same. He introduced evidence endeavoring to prove his title by three different conveyances and transactions, and it must be conceded that, if he has established a legal title in himself through any one of these three transactions, he is entitled to recover. The conveyance by which Smith first attempted to obtain a title to the lot was the deed from the Osawatomie Town Company to him, dated and acknowledged March. 26, 1883, and filed for record February 28, 1887. At the time this deed was executed, the Osawatomie Town Company had conveyed the lot to Gilmore, and H. B. Smith,.as notary public, took the acknowledgment of H. H. • Williams, president, to the deed. Gilmore testified that he only got a bond for a deed from Mr. Williams, but that H. B. Smith made out the deed and gave it to him, so that it cannot be said that Smith had no notice of the deed from the town company to Gilmore. Further than this, Smith, as notary public, took the acknowledgment of H. H. Williams to the deed executed March 26, 1883, in which said Smith was the grantee. “An acknowledgment of a deed, being a guasi-judicial proceeding, must be taken before some officer not interested in the land.” (Wills v. Wood, 28 Kan. 400.) Brewer, J., in delivering the opinion of the court in the above case, says that a person, if interested in the land, is incompetent to take the acknowledgment of a deed in relation thereto, “on the principle that an acknowledgment is a quasi-j udicial proceeding, and that no man can sit as a judge in a case in which he is interested.” We must therefore hold that Smith did not establish his title and right of possession to the lot by reason of the deed from the town company to him executed in 1883.

The next attempt of Smith to procure the title to said lot was by virtue of the tax deed dated Décember 18, 1885, and recorded January 13, 1886. It must be conceded that, under our statute of limitations, Smith must have brought his action to recover under said tax deed within two years from the time the action might first have been brought. Smith C( u I have brought his action to recover from Greenlee upon the day that Greenlee first took possession of the lot. There is no question that Greenlee had possession of the lot. The petition recites that he had such possession, and the allegation of the petition is admitted in the answer. The only evidence introduced upon tlie trial which fixes the date when such possession commenced was that Greenlee took possession of the lot and fenced it on the 25th day of March, 1887. There is some evidence tending to show that the possession might have been a few days later than this, but all the evidence established the fact that it was either on said day or very shortly thereafter. Smith testified that a number of months after he purchased the lot from Gilmore he was down in that end of town and saw a wire fence stretched around the lot, and, after making some inquiry, found that Greenlee claimed the lot. This action was commenced on December 9, 1890, which was three years and about eight and a half months after the 25th day of March, 1887,- and was certainly more than two years after Smith might have first commenced an action to recover under the tax deed. Therefore, Smith is not entitled to recover under the tax deed, for the reason that his right of action is barred.

Smith’s next and last attempt to obtain the title to said lot was the transaction between Gilmore and himself on March 26, 1887, when he contracted with Gilmore for the latter’s interest in said lot, and paid him $50, for which Gilmore gave him a receipt. During the conversation, and after the receipt had been given, Smith ascertained that Gilmore had the original deed which he had received from the town company, and that it was unrecorded, when Smith paid him the other $50, upon his making the indorsement mentioned above upon the receipt and also the quitclaim indorsement upon the deed. Upon this last transaction Smith t ikes nothing, by reason of the registry laws, as none of the papers was filed for record. He takes only what interest Gilmore had in the lot on March 26, 1887, at which time Gilmore quitclaimed to the town company and also in his receipt certified : “ I have sold said H. B. Smith our quitclaim interest to said lot 20, block 10, for $100.” At that time, or at least very soon thereafter, Greenlee was in possession of said lot under a claim of title by virtue of the offer of Gilmore contained in the letter and his claim of acceptance thereof. It may be said that the general finding of •the court is,a finding in Smith’s favor upon this transaction. Each side set up a claim to the lot, and the court decided in favor of Smith. We are unable to say whether the finding was predicated upon the tax deed, or the deed of 1883, or the last transaction. The tax deed was barred, and the deed of 1883 was invalid. The court erred in admitting either of them in evidence. For this error a new trial must be granted. We will not attempt to define the rights of the parties under the last transaction, for the reason that no finding was made by the court upon this transaction qxcept the general finding, and the case is not properly briefed upon this question. Upon a retrial of this case with the above incompetent evidence eliminated, the questions involved will be very much simplified.

• The judgment of the district court is reversed, and the cause remanded for a new trial.

All the Judges concurring.