Krutz v. Fisher

8 Kan. 90

Opinion

Tbe opinion of tbe court was delivered by

Kingman, O. J.:

There is only one error assigned or complained of in tbe petition in error, and that is tbe overruling of tbe demurrer of plaintiffs to tbe four defenses setting up tbe several statutes of limitation; hence tbe only question for us to decide is, whether any of these several pleas was a good defense to tbe action.

* If either was a good defense, then tbe demurrer, being to all jointly, was properly overruled.

Tbe question is, whether either of tbe limitations set up constitutes a defense, by itself, to tbe facts set up in tbe petition. It is conceded that tbe statute of limitations might be so connected with other grounds of defense, that, taken with those grounds, it would constitute a perfect bar to tbe petition. For instance, if tbe answer to such a petition as tbe one in this case, set up.a bolding under a valid tax title, and claimed that such a bolding bad continued, after tbe recording of tbe deed more than two years before tbe commencement of the action, this would constitute a good defense; for, if true, it might be a complete bar to a recovery. Put in this case, each ground of defense setting up hmitation is independent of other grounds of defense, and is connected with them merely by reciting that plaintiff’s cause of action set forth in tbe petition did not ac- ' crue, etc. It is a rule of pleading that each defense is to be regarded as if it stood alone, and as if it were tbe sole defense, and should be complete in itself, unless by distinct and intelligible reference it be connected with facts stated elsewhere in the answer. (Swan’s PL, 266.) Tbe question then recurs, whether either of tbe limitations set up in tbe answer, would, if true, be of itself a bar to tbe plaintiffs’ recovery, on tbe facts set up in their petition; and we think it would not, for reasons that will be presently given.

Of the four several defenses setting up the different limita tions, it may be observed that the one setting up the two years is so defectively stated that it must be entirely disregarded; but the three years limitation was well enough stated to be comprehended, and as it is for a longer period than two years, would, if true for three years, be good for the lesser time. Five years is set up in one count, and ten years in another. This last is a limit not now on our statute book, and is not so pleaded as to make it apply to the late statute.

The argument has been wholly on the two-years limitation, and to that we shall give our chief attention, merely remarking that what may be said on that will apply equally well to the others. Our statute has provided that an action for the recovery of real property sold for taxes must be brought within two years after the date of the recording of the tax deed. This provision is substantially repeated in section 116 of chap. 107 of the general statutes, and we have no disposition to refine away this portion of the law. The action in this case is not to recover land sold for taxes, or to resist the sale, or to set it aside, or defeat, or avoid it. The plaintiffs, by their petition, concede the validity of all the proceedings, and only seek to have their rights under the tax sale adjusted. So far from contesting the sale for taxes, they claim whatever rights they seek in their petition under the tax sale. They claim that the purchaser from the county acted as the agent of their grantor, and whatever right he obtained was for the interest of his principal, and that the agent cannot hold adversely to his principal, and that his heirs are in no better situation. To this state of facts the two-years limitation is no answer. It is not our purpose to decide on what may be the merits of this case, only that the limitation of two years, as it was pleaded, was no answer to the facts as stated in the petition; and therefore the court erred in not sustaining the demurrer.

The facts stated in the petition made a good cause of action, and entitled the plaintiffs to the relief prayed for. The principle is old and well established that an agent undertaking any business for another is disabled in equity from dealing in the matter of the agency upon his own account, or for his own benefit; and if he do so in his own name he will be considered as holding in trust for his principal. Eor the application of this principle to the case before us see the case of Baker v. Whiting, 3 Sumner, 475, where Mr. Justice Story says: “ The whole question in the present case turns upon this: whether the defendant Whiting, at the time of his purchase of the premises at the sale for taxes in August, 1821, was the agent of the heir of Jacob Tidd, of Simpson, and of other proprietors, of their undivided shares in the premises. If he was, then, upon the acknowledged principles of courts of equity, he, as an agent, could not become a purchaser at the sale for himself, but his purchase must be deemed a purchase for his principals. It matters not whether, in such a case, the defendant intended to pinchase for himself, and on his own account, or not,” In Bartholomew v. Leech, 7 Watts, 172, it was held that an agent having charge of wild lands cannot become a purchaser thereof at a sale for taxes, without a previous and explicit renunciation of the agency. In this case, Gibson, O. J., in delivering the opinion of the court, observes: “The most open, ingenuous, and disinterested dealing is required of a confidential agent while he consents to act as such; and there must be an unambiguous relinquishment of his agency before he can acquire an interest in the subject of it. To leave a doubt of his position in this respect is to turn himself into a trustee. It is unnecessary to recur to authority for a principle so familiar, and so accordant with common honesty.” The same question is decided in Oldham v. Jones, 5 B. Monroe, 467, and in Schedda v. Sawyer, 4 McLean, 181. The cases cited apply the principle to the exact state of facts set up in the petition. The general principle is stated in a multitude of cases, many of which are referred to in Hare & Wallace’s notes to Keech v. Sanford, 1 Lead. Cas. in Eq., 91, and to Fox v. Mackrett, and Pitt v. Mackrett, id. 208. The petition, then, setting up a state of facts that if proved entitled the plaintiffs to the relief sought, and the clauses of the answer setting up the limitations not being a bar to the action, the demurrer should have been sustained; and for error in refusing to sustain it, the judgment must be reversed, and the cause sent bach for further proceedings in accordance with this opinion. As we do not know what the facts really were on the trial, nor what they may be on another trial, we do not decide anything more than that as pleaded, no one of the four clauses of the answer setting up.a limitation was a good defense to the facts set up in the plaintiffs5 petition. Judgment reversed, and a new trial awarded.

Ail the Justices concurring.

TnE record in this case shows that plaintiffs in error “ excepted,"firsts to the overruling of their demurrer to the several pleas of the statutes of limitation; second, to the finding of the court that Fisher was the agent of Statham at the date of his purchase of the tax certificate; third, to the finding of the court, as conclusion of law, that the plaintiff’s action was barred; fourth, to the giving of judgment for the defendants. It would seem therefore, (from the language of the Chief Justice,) as matter of practice^ that the supreme court will assume that the plaintiff in error waives every exception or error appearing in the record, unless brought to the notice of the court by proper assignment in the petition in error. — Kbpobtbr.]