Harris v. Defenbaugh

Citations

• 82 Kan. 765
• 109 P. 681

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Publication Service — Defendant Not Alive. In an action quieting title to lands a judgment obtained on service by publication only is void where the action is not commenced until after the person named as defendant is dead. .</p> <p>2. -Unknown Heirs — Order Authorizing Publication Service. Where an attempt is made to obtain service by publication upon the unknown heirs or devisees of a defendant, under section 78 of the code (Gen. Stat. 1901, §4512), without an order of the court authorizing the same, the service is void.</p> <p>3. Wills — Nonresident—Record—Notice—Purchaser in Good Faith — Tax-deed Holder. A tax-deed holder is not within the protection of section 9827 of the General Statutes of 1909, which provides that the title of a purchaser in good faith, without knowledge of a will, derived from the heirs of any person who is not a resident here at the time of his death shall not be defeated by the production of the will unless the same shall be offered for record within two years of the final probate. In order to bring himself within its protection he must be a purchaser in good faith and have acquired his title from the testator or the heirs or devisees of the testator.</p> <p>4. Laches — Quieting Title — Plaintiff in Possession. Laches is ordinarily no defense in an action to quiet title or remove a cloud where the plaintiff is in possession.</p> <p>5. -Equitable Estoppel — Mere Lapse of Time Insufficient. The doctrine of laches is founded to some extent upon the principles of equitable estoppel. Where, by reason of acquiescence or long lapse of time, there is a possible loss of testimony or increased difficulty of defense, the doctrine may be applied in the discretion of the court; but laches does not consist in mere lapse of time.</p> <p>6. --Defendant without Equitable Rights. The doctrine of laches is never invoked in aid of a party where the equities are not in his favor.</p> <p>7. -Rights of Tax-deed Holder Not Equ