The opinion of the court was delivered by
Valentine, J.:This was an action in the nature of ejectment, and also to set aside a tax deed. It was brought in the district court of Ellis county on March 4, 1884, by E. W. Cameron against F. D. West and J. C. West for the recovery of section 23, (640 acres,) in township 13, range 19, in said county, and also to set aside a tax deed upon the land executed to F. D. West by the county clerk of said county on November 28, 1881, for the taxes of 1877. The taxes on the land for that year were $59.80, and West at the date of the tax deed paid for the tax-sale certificate and for the tax deed the sum of $106.14. This tax deed was recorded on November 29,1881. The plaintiff below claims that the tax deed is void for the reason that the land was not subject to taxation for the year 1877, and also that it was not legally assessed, nor legally advertised for sale, nor legally sold for taxes. The case was tried by the court without a jury, and judgment was rendered in favor of the plaintiff for the recovery of the land, and in favor of the defendant, F. D. West, *738for the recovery of the taxes; and both sides now complain, the defendant, F. D. West, filing a petition in error, and the plaintiff, Cameron, filing a cross-petition in error. The plaintiff in error, defendant below, now claims that the plaintiff below could not and cannot maintain his present action, and that the court below erred for the following reasons, to wit: 1. The plaintiff has at no time tendered the amount of the taxes paid by the defendant upon the land in controversy. 2. The tax deed is valid upon its face, and the statute of limitations has completely run in its favor. 3. The defendant’s answer to the plaintiff’s petition set up new matter, to which the plaintiff has never .replied. 4. The court, after hearing the case and taking the same under advisement, erroneously, and on motion of the plaintiff, opened up the case for the purpose of receiving further evidence therein; and then erroneously granted the plaintiff a continuance for the purpose of receiving such evidence, and such evidence was so received. 5. The court, at the instance of the plaintiff, erred in admitting the records of the register of deeds in evidence to prove the execution, the existence and the contents of a deed of conveyance, which deed was shown to be in the possession and under the control of the'plaintiff himself. 6. It is also claimed by the defendant below, that as this was an action of ejectment under § 595 of the civil code, the court erred in refusing a second trial under § 599 of the civil code.
The plaintiff below, defendant in error, by his cross-petition claims that the court below erred in requiring him to pay the taxes paid by the defendant below on the land.
We think the rulings of the court below with one exception are substantially correct.
I. In an action of ejectment where it appears that the plaintiff is the owner of the property, and that the defendant holds the same under a void or voidable tax deed, as in this case, the plaintiff’s action cannot be defeated by showing that the plaintiff has not tendered the amount of the taxes paid by the defendant on the land; and even in an equitable action brought by the owner of the land to set aside a tax deed thereon, where *739it is honestly believed and alleged by the plaintiff that the tax deed is void for the reason that the land was not subject to taxation at the time it was taxed, the action may be maintained without a previous tender of the taxes paid by the defendant on the land. (Sapp v. Morrill, 8 Kas. 677; Corbin v. Young 24 id. 198, 202; Millbank v. Ostertag, 24 id. 462, 470, et seq.; Shaw v. Kirkwood, 24 id. 476; Cartwright v. McFadden, 24 id. 662; McKeen v. Haxtun, 25 id. 698; Hoffman v. Groll, 35 id. 652.) The payment of the taxes may be adjusted when the decision is rendered.
II. The owner of land has five years after a tax deed upon it has been recorded within which to commence an action to set aside or to defeat, or avoid the tax deed. (Tax Law, § 141; Thornburgh v. Cole, 27 Kas. 490; Harris v. Curran, 32 id. 580; Hafey v. Bronson, 33 id. 598; Beebe v. Doster, 36 id. 666.)
III. The new matter set up in the defendant’s answer did not constitute a defense to the plaintiff’s petition, and therefore did not require a reply. It was simply that the defendant had made valuable and lasting improvements on the land, and that the plaintiff had not tendered the taxes. These are matters to be adjusted after the decision upon the main question in the ease.
IV. The opening up of the case for further evidence, and the continuance of the case for the same purpose, and the receiving of such evidence, were all within the judicial discretion of the trial court, and we cannot say that the trial court abused its discretion.
V. We are inclined to think that the court below erred in admitting in evidence the record copy of a deed from the Kansas Pacific Railway Company to the plaintiff for the land in controversy, which deed, it was admitted, was at the time in the possession and under the control of the plaintiff. (Conveyance Act, § 27; Civil Code, § 372; City of Waterville v. Hughan, 18 Kas. 473; Shaw v. Mason, 10 id. 184; Williams v. Hill, 16 id. 23. See also Brock v. Cottingham, 23 Kas. 383; C. B. U. P. Rld. Co. v. Walters, 24 id. 504, 510, and cases there *740cited.) It is true that the plaintiff was at the time absent from the state and in New York, and had the deed in his possession at that place. Rut as it was a necessary link in the chain of his title — one of the muniments of his title — in fact the sole foundation upon which his specific title rested, he should have sent it to his attorney in Ellis county, in this state, so that it could have been introduced in evidence on the trial.
VI. Neither party asked for a second trial under § 599 of the civil code, and therefore the court did not err in failing to grant a second trial under that section. (Anderson v. Kent, 14 Kas. 207.)
VII. Under the evidence introduced on the trial and the presumptions in favor of the taxing officers and of the tax proceedings, we would think that the court below decided correctly that the land in controversy was taxable for the year 1877. The tax deed was held void for another and a sufficient reason.
For the error in admitting the record copy of the plaintiff’s deed in evidence, the judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring.