Nagle v. Tieperman

The opinion of the court was delivered by

Smith, J.:

This is, in effect, a suit to have a tax deed issued to Katie M. Fike adjudged void, at least as to a two-thirds interest in the land in question. If the tax deed is void the plaintiff is entitled to recover an interest in the land; otherwise the defendant, as the court below adjudged, was the sole owner of the land at the time of the commencement of the suit. If the plaintiff is entitled to recover any interest in the land the judgment of the court below should be reversed; otherwise it should be affirmed. Section 7680 of the General Statutes of 1901 provides:

“Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, except in cases where .the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.”

The tax deed in question had been recorded nearly twice five years before the commencement of this suit, and the taxes had not been paid nor had the land been redeemed “as provided by law,” unless Katie M. Fike, as the wife of one of the cotenants, is by reason of such marriage relation disqualified from acquiring the title to the land by a tax deed and her attempt to do so amounted to a payment of the taxes or to a redemption. The following question, then, to which the plaintiff asks an affirmative answer and the defendant a negative answer, is the sole question for our consideration: Where the marriage relation exists can one spouse, who is not in the possession and is not deriving benefits from the land of the other, in good faith and with his or her separate means, acquire the title to such land of the other, or to land of which the other is a cotenant, by a tax deed?

The answer to this question depends upon whether or not one spouse has such an interest or estate in the real property of the other, by virtue of such relationship alone, as imposes upon him or her either a legal or a moral obligation to .pay taxes upon the real estate of the other. The common law and the decisions of the courts of sister states where marital relations and the rights of the spouses are essentially different from such relations and rights under the constitution and laws of this state afford us little or no aid in arriving at the proper determination of this case. The decisions of the courts of this state, and indeed the decisions of this court, have been conflicting upon the question, and it is hoped that by this decision it may be satisfactorily settled and that property rights involved may be permanently determined. It is of great importance that a right so frequently called in question should be settled and determined.

At the very formation of our state a radical departure from the common-law relations between husband and wife was provided for. Section 6 of article 15 of our constitution reads:

“The legislature shall provide for the protection of the rights of women, in acquiring and possessing property, real, personal and mixed, separate and apart from the husband; and shall also provide for their equal rights in the possession of their children.” (Gen. Stat. 1901, § 232.)'

In obediehce to this constitutional mandate the legislature enacted the “married woman’s act,” which reads in part as follows:

“Section 1. The property, real and personal, which any woman in this state may own at the time of her marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to her by descent, devise or bequest, or the gift of any person except her husband, shall remain her sole and separate property, notwithstanding her marriage, and not be subject to the disposal of her husband or liable for his debts.

“Sec. 2. A married woman, while the marriage relation subsists, may bargain, sell and convey her real and personal property and enter into any contract with reference to the same in the same manner, to the same extent and with like effect as a married man may in relation to his real and personal property.

“Sec. 3. A woman may, while married, sue and be sued, in the same manner as if she were unmarried.

“Sec. 4. Any married woman may carry on any trade or business, and perform any labor or services, on her sole and separate account; and the earnings of any married woman from her trade, business, labor or services shall be her sole and separate property, and may be used and invested by her in her own name.” (Gen. Stat. 1901, §§ 4019-4022.)

The spirit and intent of the constitutional provision should be recognized by the courts in the interpreta-, tion of the law relating to married women as implicitly as it was the duty of the legislature to regard it in passing a law to give it effect. And the courts of this state should ignore any principle of the common law and the decisions of any sister state, although sustained by never so high authority, if they conflict with the spirit of this constitutional provision or with the letter or spirit of this statute. And this in the main is the history of the decisions of this court. Step by step these decisions have discarded the shackles which the common law placed upon married women, and, passing beyond the mere letter of the statute, by interpretation have advanced toward the real spirit of the constitutional provision; With the added powers and rights they have accorded to married women they have also imposed upon them added responsibilities. And with the decreased power of the husband over the person and property of the wife have come decreased responsibilities, especially for the care of her property. If she participates in crime it is no longer presumed that she does so by the compulsion of her husband. She is as fully amenable to the law as is he; judgment is rendered against her on her promissory note although she may only be a surety; she may contract her services and skill in the future and is liable for damages if she fails to perform the contract, and, if she perform it, may recover the value of her services. Without any separate estate she may purchase property on credit and her obligation to pay is valid. She is liable upon her covenants of warranty in a deed in which she joins with her husband for the conveyance of his land. Indeed it is almost literally true, as said by Mr. Justice Valentine in The State v. Hendricks, 32 Kan. 559, 564, 4 Pac. 1053: “In Kansas, women have all the rights and privileges that men have, except merely that they cannot vote at general elections.”

In Harrington v. Lowe, 73 Kan. 1, 84 Pac. 570, a well-considered opinion by Mr. Justice Burch, unanimously concurred in by the other members of the court, it was said:

“Therefore the one-person idea of the marriage relation as expounded by the common-law authorities can no longer be made the touchstone of a married woman’s rights or capacities in this state. Her powers and responsibilities do not depend upon the principle of unity, but upon the principle of diversity.” (Page- 20.)

Conversely, it is evident that the above excerpt, if applied to the rights, capacities, powers and responsibilities of a married man, would be equally true. He is no longer, by virtue of his relation, the owner, nor even the trustee, of his wife’s property. He may sell to or buy from her as freely as with a third person, and if his contracts with her are in good" faith and for a fair consideration his and her creditors are as helpless to interfere as they would be to interfere with his dealings with a third person.

In view of the profound admiration and even veneration which every true lawyer must feel for that grand system of jurisprudence known as the common law, which has indicated the high-water mark of advancing civilization for at least four centuries, and has been illuminated by the reasoning and refinement of the greatest minds of those ages, it is not strange that, in the advancing march toward a higher civilization and a greater freedom for one-half of the people of Kansas, provided for them in the state constitution, even the highest court in this state should occasionally take a backward glance and a receding step. This is in accord with all the impulses of our nature and with the history of all social and judicial advancement. Thus we find that after this court had decided, in Broquet v. Warner, 48 Kan. 48, 22 Pac. 1004, 19 Am. St. Rep. 124, in accordance with the numerous previous decisions of this court as to the right of husband and wife to invest, manage and control his or her separate fortune independently of the other, that the mere fact of marriage does not impose upon the husband any obligation to pay taxes upon his wife’s land, and of itself does not disqualify him from acquiring title thereto by tax deed, in Warner v. Broquet, 54 Kan. 649, 39 Pac. 228, it overruled the former decision.

Let us then examine these two decisions, since both cannot be right, to see which, if either, is in accord with the constitutional provision and the statute enacted thereunder.

The statute above quoted guaranteed to every married woman that the property which she had at her marriage, with the rents, issues and profits thereof, should remain her sole and separate property and not be subject to disposal by her husband nor liable for his debts; that she might bargain, sell and convey her property and might enter into any contract with reference to the same, to the same extent and effect as might any married man; that she might carry on any trade or business and that her earnings from a trade or .business, labor or services would remain her separate property and might be used and invested by her in her own name. This court by repeated decisions has interpreted this statute to mean that a woman may not only sell and convey her property but may buy it for cash or on credit or may barter for it. Mrs. Ffke bought the tax certificate from W. P. Peter, and, since it is agreed that she bought it with her own money, the •presumption is that the money was derived from property which she had at the time of her marriage, or had inherited, or that she had acquired it by her own labor, trade or business or from the profits of her individual investments. In either case she had the absolute, unqualified right under the statute to invest it in her own name, and that it should not be subject to the disposal of her husband nor liable for his debts. She did invest it in her own name, and, if the statute means anything, she was entitled to the benefit of her investment, which was the title to the land sold for taxes, provided it was not redeemed according to law.

Harking back to the rule of the common law it is ' contended that, as her husband could not acquire the title of his cotenants to the land in question, Mrs. Fike could not so acquire such title. It was said in Warner v. Broquet, 54 Kan. 649, 650, 39 Pac. 228:

“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 exist between husband and wife forbid either from obtaining a tax title upon the real estate of the other.” ■

To apply this rule to this case would be to deny to Mrs. Fike arbitrarily, and in deference to a common-law rule, a right which the statute expressly confers upon all married women. It would subject her money or property to disposal by her husband and would make the same liable for the payment of his debts. If she obtained no title by the purchase of the tax-sale certificate, the securing of the deed, and the payment of taxes on the land for many years, any creditor of her husband could have levied upon and sold his interest in the land, as could also the creditors of his cotenants their .interests, free and clear of any lien or claim of hers. If it was a voluntary payment of her husband’s and his cotenants’ taxes she would have no remedy to recover from him or them the money paid, and, in case of the partition of the land between the husband and his cotenants, he would have no recourse to recover from them the taxes which his wife had voluntarily paid for them. Again, Katie M. Fike never hay-' ing been a resident of the state, her husband and his cotenants could have sold and conveyed the entire interest in the land without her consent-and free from any lien or claim in her favor, even as the cotenants have attempted to do in this case. Furthermore, as Katie M. Fike has sold and by warranty deed conveyed to the defendant the land in question for the consideration of $1600, if she acquired no title by her tax deed she is responsible in damages to her grantor under her warranty.

Thus this common-law theory not only denies to a married woman the rights accorded to her by the laws of the state, but, if applied to this case, would become •the instrument of fraud. It would render the records of the county unreliable as an evidence of title to land. The tax deed had been of record much more than five years. It contained no information that the grantee therein was the wife of one .tenant in common of the land. The county treasurer’s books showed neither that the taxes had been paid nor that the land had been redeemed according to law. Lawyers advised that all action against the tax deed was barred, and that the grantee therein had and could convey good title. Relying on these records, and thus advised, the defendant bought the land for $1600. If the common-law theory should prevail he could pocket his loss or seek his remedy against his warrantor in a distant state, there, perchance, to discover that she is insolvent. On the other hand, Henry and Anna Fike are entitled to little consideration. Knowing their land was subject to taxation they gave it no attention for thirteen long years. Their grantee, the plaintiff, has no greater equities. For a trifling consideration he bought a lawsuit, hoping to reap where, not he, but others, had sown.

Katie M. Fike’s interest in the land, prior to her purchase of the tax-sale certificate, was quite analogous to the interest of an heir. Suppose that she and her husband had a son, an only child. She being a non-resident of the state, the husband and father could have disposed of his interest in this land without the consent of the wife or of the son. Upon the death of the husband and father, if the land had not been conveyed prior thereto, and had not been necessary for the payment of his debts, the wife and son would each have inherited one-half in value of the land. It could not be contended that the son would have been incapable of procuring title to his father’s land by a tax deed. A mortgagee might have had an interest in this land of far greater value than the inchoate interest of the wife, yet, as has been repeatedly held by this court, he could have acquired title to the entire fee by a tax deed. It was said in Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245:

“While the wife’s right and interest in the real estate of her husband, not occupied by the family as a homestead, is inchoate s£nd uncertain, yet it possesses the element of property to such a degree that she may maintain an action during the life of her husband to prevent its wrongful alienation or disposition under fraudulent judgments procured and consented to by the husband, with the object and for the purpose of defeating the wife’s right.” (Syllabus.)

That was a suit for divorce by the wife against her husband, and to set aside fraudulent judgments which he had consented to and procured to be rendered against hixh for the purpose of defrauding his wife of her rights in case of divorce. Upon granting a divorce to the wife it is by statute made the duty of the court to award to the wife all of her separate property, and the court may further award her such portion of the husband’s property or may award her such sum in money, as alimony, as seems equitable. If the wife has no separate property the court may award her such portion of his property or sum in money out of his estate as seems equitable. The judgment in that case might as well have been based upon the personal obligation of the husband to support and maintain his wife. A judgment creditor would under the same circumstances have had the same right to maintain a suit to prevent the wrongful alienation or disposition of his debtor’s property under fraudulent judgments procured and consented to by the debtor, yet it would not be contended that a judgment creditor has such an interest in the real estate of his debtor that he could not acquire title thereto by a tax deed. The cases of Busenbark v. Busenbark, supra, and Munger v. Baldridge, 41 Kan. 236, 21 Pac. 139, 13 Am. St. Rep. 276, base the argument that the wife has a present interest and property in the real estate of her husband upon the provision of the statute of descents and distributions which reads:

“One-half in value of all the real.estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property, in fee simple, upon the death of the husband, if she survives him.” (Gen. Stat. 1901, § 2510.)

The argument- is fallacious. The conclusion does not follow that the wife has a present property interest in the real estate of her husband. If so it would be repugnant to the fourteenth amendment to the constitution of the United States, in that the property interests of the wife could be sold on an execution against her husband in an action to which she was not a party. This is not due process of law. It would also be repugnant to the constitution and statutes of Kansas ' hereinbefore cited. At most this statute creates an interest in the husband’s real estate which attaches, not during his lifetime, but upon his death. It has been frequently decided that the husband has the same rights in the property of the wife that the wife has in his property, upon the death of either, respectively. In fact section 2529 of the General Statutes of 1901 expressly so provides. Yet the constitution of our state, before cited, commands the legislature to make provision to protect the rights of women to acquire and possess real property, separate and apart from the husband, and as before said the legislature has complied with the mandate, and to that extent the act of the legislature has the potency of a constitutional provision. Now it is impossible for a married woman to own real estate separately from her husband and at the samé time for the husband to have a property interest in the same. It seems more logical to say that the statute last above quoted was enacted for the protection of purchasers. The husband and the wife each having the right not only to acquire real estate from others, but to sell and convey one to the other, it may have been anticipated that it would be difficult for third parties to determine their respective rights in lands to which either held the legal title. It is a matter of public policy that land titles should be kept free from doubt and that the public records should be a reliable index to the condition of such titles.

However this may be, the argument of present in-, terest fails when applied to this case. Under the proviso to the section of the statute last above quoted it is not requisite that the wife should sign her husband’s deed to his land to devest her of her contingent interest when at the time of the conveyance she had never been a resident of this state.

If we are right in our conclusions thus far — that the wife has no present interest in the real estate of her husband which forbids her from obtaining a tax title on his real estate — there only remains to determine whether or not the “mutual confidence,” the remaining ground for the decision in Warner v. Broquet, 54 Kan. 649, 39 Pac. 228, forbids the same. As a complete answer to this contention, attention is again called to Harrington v. Lowe, 73 Kan. 1, 84 Pac. 570. Also the following from the opinion of Mr. Chief Justice Johnston, in Munger v. Baldridge, 41 Kan. 236, 21 Pac. 139, 13 Am. St. Rep. 276:

“Thé statutes of Kansas recognize no conflict of interest between them [husband and wife], nor any necessity to protect the wife against the act of the husband. They do not contemplate that she may be led to convey her interest through fear, compulsion, or the undue influence of her husband; and hence we have no enactment, as some states do, that in making a conveyance she must undergo a private examination by an officer to learn whether she is intimidated by her husband or is executing the conveyance against her will. On the contrary, the law proceeds upon the theory of confidence, good faith and honest dealing between husband and wife.” (Page 244.)

In other words there is no presumption that the mutual confidence which should exist between husband and wife has been betrayed by either, and any denial of a right to either, based on such an assumption, is a wrong. The utmost good faith and fair dealing should be, and is, demanded of each in dealing with the other; ■and, if either is wronged by a breach of the trust and confidence which the other has a right to rely upon, the courts of our state are sensitive to afford speedy relief.

Instead of its being a fraud or wrong Upon the rights of the husband to maintain the title of the wife, acquired under the tax deed in this case, it would, as before indicated, be a great wrong to him as well as to her to deny her the rights guaranteed to her under the constitution and laws of the state. He has recognized her title to the land and has executed with her a deed of general warranty therefor to the defendant.

The principle here enunciated has been asserted in Broquet v. Warner, 43 Kan. 48, 22 Pac. 1004, 19 Am. St. Rep. 124, and has been denied in Warner v. Broquet, 54 Kah. 649, 39 Pac. 228. The latter case, so far as it overrules the former, should in turn be overruled, and the former should stand as a correct interpretation of the laws of this state.

The judgment of the district court is affirmed.

Porter, Graves, JJ., concurring.