
    John Thornburgh v. James N. Cole, et al.
    
    1. Specific Performance, or Rescission of Contract, No Action for. Where a party sells land, executes to the purchaser a title bond therefor, receives a.part of the purchase-money, takes several promissory notes for the deferred installments of the purchase-money, puts the purchaser in possession, (time not being of the essence of the contract, by the terms of the bond itself,) he cannot, after delaying until the notes are barred by the statute of limitations, without furnishing any sufficient excuse for his great delay, bring an action for a specific performance under-the contract, or demand a rescission of the contract and possession of the premises. ' ,
    .2.--Subdivision 3, $ 16 of the code was not repealed by ? 141, ch. 34, Laws of 1876. Said subdivision applies to a tax-title purchaser out of possession, and such a party can only bring his action for the recovery of real estate sold for taxes within two years after the date of the recording of the tax deed.
    •3. ---- Sec. 141, ch. 34, Laws of 1876, applies to 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 land for taxes. In such cases, the owner of the fee out of possession may commence his action within five years frbm the time of the recording of the tax deed.
    4. Ejectment; Neno Action by Transferee. Where the purchaser of a tax title, holding the tax deed, commenced his action in the nature of ejectment on the 22d day of September, 1879, and on the 29th day of October, 1879, sold and transferred his title to another party, and on the 6th day of September, 1880, dismissed his action by leave of the court, his transferee may commence a new action within one year after the dismissal by his grantor. (Shively v. Beeson, 24 Kas. 352.)
    ■5. Practice; Polling Jury. In an action in the nature of ejectment, the court instructed and directed the clerk to prepare a verdict for the defendants. The verdict was so prepared by the clerk and presented to the jury, and then the court directed one of their number to sign the same as foreman, which was accordingly done. The plaintiff, on the return of the verdict by the jury, objected to the filing of the same, and requested the clerk to poll the jury, which request the court refused. Held, Error. (Madusha v. Thomas, 6 Kas. 153.)
    
      Error from Leavenworth District Court.
    
    On the 11th day of February, 1867, the plaintiff) John 'Thornburgh, the owner of the S.W.J of sec. 30, T. 7, range 21, situate in Leaveuworth county, agreed to sell to one Melinda D. Ballinger, his sister, the W.-J of said quarter, less six acres thereof; and with his wife executed the following bond:
    “Know all men by these presents, that we, John Thorn-burgh and Rachel his wife, both of the county of Leavenworth and state of Kansas, are held and firmly bound unto Melinda Ballinger in the sum of four thousand dollars, for the payment of which we do bind ourselves, our heirs, executors, administrators and assigns. Witness our hands and ■seals, this February — , 1867. The condition of the above ■obligation is such, that if the said Melinda Ballinger shall pay or cause to be paid unto the said John Thornburgh the •following sum of money, to wit, eight hundred dollars at ■the ensealing and delivery of this bond, the payment of which is hereby acknowledged, a certain mortgage which the •said Melinda Ballinger holds on a certain real estate in Jackson county, described as follows, to wit: the N.W. fractional •quarter of sec. thirty-one (31), township No. six (6), range No. fifteen (15), executed by John Black to secure the payment of the sum of eight hundred dollars, payable as follows, to wit: four hundred dollars in one year from date of mortgage; four hundred dollars in two years from date of same; .the same is assigned to the within John Thornburgh, for the said sum of eight hundred dollars; four hundred dollars payable in one year from the date of this bond, for which payment the said Melinda Ballinger hath executed her cer-. tain promissory note bearing even date with this instrument. That the said Melinda Ballinger is to pay interest at the rate ■of ten per cent, per annum on the last four hundred dollars mentioned in the mortgage, which will amount to forty dollars, for the payment of whic[i she hath executed her promissory note bearing date with this bond, and payable at the .time the four hundred dollars mentioned in the mortgage becomes due; then the said John Thornburgh and Rachel Thornburgh shall make or cause to be made unto the said Melinda D. Ballinger, her heirs, assigns, a good warranty •deed in fee simple to the following-described real estate, to wit: The west half of the southwest quarter of section thirty ■(30), township seven (7), range (21) — except the following within that boundary: commencing at the southwest corner, running due north one hundred and twenty rods (120), east from same corner eight rods (8), [thence south one hundred and twenty rods (120), thence west eight rods (8), to the-place of beginning,] making six acres — containing eighty-two-acres, lying and being situate in Leavenworth county, state of Kansas-. Then this obligation shall be null and void;, otherwise,'of full force and effect.
    “ In testimony whéreof, we have hereunto set our hands and affixed our seals, the day and year first above mentioned.
    John Thornburgh. [seal.]
    Rachel Thornburgh, [seal.]”
    “State op Kansas, County op Leavenworth, ss : Be-it remembered, that on this Sept. 20, 1869, personally came-before me, a justice of the peace within and for said county,. John Thornburgh and Rachel his wife, who are personally known to me to be the persons who have signed and sealed the within instrument of writing, and acknowledged the signing and sealing of the same, for the purposes therein mentioned, and that it is their own voluntary act and deed.
    “Witness my hand, this September 20th, 1869.
    J. PI. Eenton, J. P.”
    Melinda Ballinger paid therefor the sum of $600 in cash-, as part of the purchase-money, and afterward caused to be-paid the further sum of $800 as an additional payment, leaving a balance of $680 and interest due and unpaid. MelindaBallinger, immediately after purchasing the land, went into-possession thereof, and lived thereon until her death, on January 22,1880. The defendants are her heirs-at-law, and during all said time and ever since her death have lived on the-land. The taxes on the land for the year 1873 were not paid by Mrs. Ballinger. The land was sold in May, 1874, at tax sale, to one B. S. Rotch. On the first day of August, 1877, Rotch assigned and transferred - the tax certificate to Charles-L. Flint, and on the 5th day of November, 1877, a tax deed-was issued to said Flint — the latter paying the subsequent taxes for the years 1874-5 and 6 — which was recorded in-the office of the register of deeds of Leavenworth county, on-the 22d day of November, 1877. On the 22d day of September, 1879, Flint commenced suit in the district court of' Leavenworth county, against Melinda Ballanger and this-plaintiff, to recover possession of the land in controversy. On the 22d day of October, 1879, the plaintiff purchased of Flint the tax title, and took a quitclaim deed from him therefor. The consideration named in the deed is $268. After the purchase of the tax title by plaintiff, the action of Flint •against Mrs. Ballinger and plaintiff was dismissed. On the 4th day of January, 1881, the plaintiff commenced an action against the defendant to foreclose the bond dated February 11, 1867. Before the answer was due in that action,- the plaintiff filed his amended petition, setting up a copy of the bond, averring non-payment of the $680 due as the balance •of the purchase-money, the death of Mrs. Ballinger, and praying that the bond be treated as a mortgage, and that the heirs be foreclosed as to any rights in the premises. On the 25th day of January, 1881, the defendants filed their demurrer to the amended petition, and on the 29th day of January following, the demurrer was heard by the court and sustained. The court thereupon gave the plaintiff leave to file an amended petition, which was accordingly done on February 2, 1881. The substante of the amended petition was, that the plaintiff averred the execution of the agreement of sale, the putting of Mrs. Ballinger in possession of the land, her death, the execution and tender of a deed of the premises to the defendant, ¡the bringing the same into court, to be delivered upon the payment to him of the balance due for the purchase-money, the refusal of Mrs. Ballinger and the defendants to pay the balance of the purchase-money due. The prayer was, that -the defendants be given some time in which to pay the balance, and, on a failure so to do, the plaintiff to be released from his liability to specifically perform his contract, and in -that event, the rights of all the defendants in the premises be declared forfeited, and plaintiff be adjudged entitled to the possession of the land. The petition also contained a second count, in the nature of ejectment. The defendants filed a demurrer to the amended petition, and on March 19, 1881, the court sustained such demurrer to the first count or cause of action in the amended petition, and overruled the demurrer as to the other count. At the September Term, 1881, the action was tried upon the count in the nature of ejectment, to a jury. Upon the trial, the plaintiff offered in evidence certain patents to the land in dispute to himself, which were admitted by the court. Thereupon he also offered in evidence the tax deed of the county of Leavenworth to Charles L. Flint; also the original papers, with the journal entries, in the suit of Flint v. Melinda D. Ballinger and this plaintiff; the quitclaim deed of Flint to this plaintiff; the assessment roll, showing’the assessment of this land; the convening order of the board of county commissioners of Leavenworth county for the year 1873, and their order levying the tax on this land; the tax roll of sales of the county for 1874, showing the assessment of taxes on this land, and the amount for which it was sold; also the order dismissing the suit of Charles L. Flint v. Melinda Ballinger and John Thornburgh, in the district court of Leavenworth county, of date of September 6th, 1880; the original tax-sale certificates for the delinquent taxes of 1873, and the assignments on the same, and the receipts for the taxes of the years 1874, 1875 and 1876; also the tax-sale certificates for the delinquent taxes for the years 1877 and 1878; the receipt of the county treasurer of Leavenworth county for the taxes of 1879; also the tax receipt for the taxes for the year 1880; also the evidence of Jacob Geyer that he delivered the quitclaim deed of Charles L. Flint, as agent of Flint, to plaintiff. To the offer of each of the above deeds, papers, records and other evidence, the defendants objected, and the court sustained the objection. Thereupon the defendants produced in evidence the original bond for a deed, executed by plaintiff and wife, and also offered in evidence a portion of plaintiff’s amended petition filed in the case, relating to payments made upon the land. The defendants then proved by James N. Cole that such defendants were in possession of the land. On cross-examination he stated his mother went into possession of the land under and by virtue of the bond for a deed above referred to. The defendants then rested. The plaintiff in rebuttal offered to read the whole petition from which the defendant had read a portion. The defendant objected, and the court sustained the objection. The plaintiff then called Moses Potter, and offered to prove by him that. Mrs. Ballinger in her lifetime had stated the amount of money she was owing to plaintiff upon the land; and offered to prove that one of the defendants, James Cole, had come to him five- or six years ago to borrow $600 to pay off the balance due as purchase-money under the bond for a deed upon the land. The defendants objected to the evidence, and the court sustained the objection. The plaintiff then offered to prove that he had offered to deliver a warranty deed to defendants, and asked them to pay him the balance due him on the bond for a deed. Defendants objected to this evidence, and the court, sustained the objection. The plaintiff asked the court to instruct the jury as follows:
    “1. If the jury believe from the evidence that there is due to-the plaintiff any sum of money on the contract of purchase, from the defendants or their ancestor, and said defendants-refuse to pay the sum so due, then the plaintiff may recover in ejectment.
    “2. The defendants have proven that there was due the-plaintiff the sum of six hundred dollars, with interest thereon, and until they show a willingness to pay said sum they are not entitled to recover in this action of ejectment.
    “ 3. That nothing less than fifteen years’ adverse possession will operate to bar the plaintiff’s right to recover, and. if the defendants entered into possession under an agreement to purchase, the limitation will begin to run from the time of the refusal to pay. That the defendants admit that they entered into possession of said lands and obtained the possession from the plaintiff, and that under a written contract; and they also admit that they have failed and neglected to perform said contract, and on said admission. the defendants are estopped to deny the title of plaintiff, and the jury should find for the plaintiff.”
    These instructions on the part of the plaintiff were by the court refused. The defendants requested the court to instruct the jury to find for them. The court gave said instruction, and directed the clerk to prepare a verdict in accordance therewith. The verdict was so prepared by the clerk and presented to the jury, and then the court directed one of their number to sign the same as foreman, which was accordingly done. The verdict was in these words: “ We the jury find for the defendants. — John W. Fleming, foreman.” The clerk thereupon read the verdict to the jury, and none of them expressed ■ány dissent therefrom. The plaintiff, on the return of the verdict of the jury, objected to the filing of the same, and then and there requested the court to poll the jury, which request the court refused. Judgment was entered upon the verdict in favor of the defendants and against the plaintiff, on October 9, 1881. The plaintiff brings the case to this court.
    
      Ii. Miles Moore, and H. T. Green, for plaintiff in error.
    
      Luden Baker, and N. A. Mann, for defendants in error.
   The opinion of the court was delivered by

Horton, C. J.:

It is contended on the part of the plaintiff in error that the court below ought to have overruled the demurrer to the first count or cause of action set forth in the .amended petition filed on February 2,1881. The argument is, that the plaintiff was entitled to a rescission of the contract for a conveyance of the real estate in controversy under the facts alleged in such amended petition. It is said that so long as the right to'specific performance exists in the one party to the contract, the other party possesses the right to have specific performance, or else to have the contract rescinded and declared forfeited; that the rights of the parties are reciprocal. Courtney v. Woodworth, 9 Kas. 443, is cited as an authority that the plaintiff had the right to commence his action to ask the court to rescind the contract. It is true that in the latter case it was stated that where a purchaser holding under a title bond fails or refuses to.pay the purchase-money when due, and fails to pay the same for a long time thereafter, and after being frequently requested to pay the same, the vendor may, where the equities are sufficient, seek relief by an action to rescind the contract and recover possession. But the case presented does not fall within the rule. It is a general doctrine of equity, that specific performance will not be decreed in favor of a plaintiff who has been guilty of laches, either in performing his part of the contract, or in applying to the court for relief.

The plaintiff has neglected for a great length of time to assert any right under the contract or upon the notes executed thereunder. No adequate excuse for the delay has been presented, and such delay has been so long as to charge the plaintiff with gross negligence'in seeking relief. The balance of the purchase-money for the land was due according to the dates of the promissory notes more than eleven years before the commencement of this action. Of course, under the statute of limitation, any action on the notes was therefore barred many years before the plaintiff saw fit to institute his suit. It is conceded that no judgment could have been rendered on the notes. The delay is a bar to plaintiff’s action for any specific performance as vendor. As time was not of the essence of the contract or the agreement between the parties, and as the ancestor of defendants was let into possession and plaintiff deferred any action until, after the notes given to pay the balance of the purchase-money had long been barred by the statute of limitations, we do not perceive that possession of the premises can be recovered on the ground that the contract had been forfeited. In O’Neill v. Martin, 26 Kas. 494, the matter of delay or laches was not presented or noticed. This leaves for determination the question whether plaintiff was entitled to maintain his action of ejectment by virtue of the tax deed executed to Flint and recorded November 22, 1877, aided by the quitclaim deed from Flint to plaintiff executed the 22d day of October, 1879. But for the action commenced by Flint on the 22d day of September, 18.79, the plaintiff would clearly be out of time to claim anything under his tax purchase, as his action was not commenced until the 4th day of January, 1881, more than two years after the date of the recording of the tax deed. (Subdiv. 3, § 16, art. 3 of the code.) Said subdivision was not repealed by §141, ch. 34, Laws of 1.876, which took effect on March 11,1876. The two-years statute of limitation mentioned in said subdivision applies to a party out of possession and seeking to recover upon the strength of a tax title. Such a party must-bring his action for the recovery of the real property sold for taxes within two years after the date of the recording of the tax deed. Sec. 141 of ch. 34, Laws 1876, applies to any suit or proceedings against the tax purchaser, his heirs or assigns, for the recovery of land sold for taxes, or to defeat or avoid a sale or conveyance of land for taxes. Under said section, the owner- of the fee out of possession may commence his action against the tax purchaser at any time within five years from the time of recording the tax deed. However, as Flint dismissed his action on the 6th day of September, 1880, he failed in such action otherwise than upon its merits, and he had the right to commence a new action within one year after the dismissal. Under the authority of Shively v. Beeson, 24 Kas. 352, as Flint could have sued within one year after the dismissal, his assignee, the plaintiff, had the same right. Counsel for defendants claim that plaintiff could have commenced his action only within one-year from the time he obtained his deed, which was October 22, 1879, and insist as a reason for this, that plaintiff could not have taken Flint’s place in the action because he could not sue himself. The fact is, the plaintiff was merely a nominal party in the action of Flint v. Thornburgh, and could have been substituted in the place of plaintiff as against Melinda Ballinger, and the case could then have been carried on in the court below as between plaintiff and said Ballinger.. By the conveyance to Flint, and from Flint to plaintiff, the-plaintiff obtained an assignment and transfer of all the rights of Flint in the premises, and thereafter he stood in his shoes. He might have been substituted as plaintiff, and as the action of Flint failed otherwise than upon its merits, plaintiff, as assignee of Flint, had the same right as Flint to commence a new action within one year after the dismissal.

There is nothing in the record to show that there was ever any settlement between Flint and Mrs. Ballinger, or that the action of Flint was settled by any compromise or agreement with Mrs. Ballinger, and the intimation made that Flint and Mrs. Ballinger settled with each other is not sustained.

The court below seems to have tried the ejectment proceeding upon the theory that plaintiff was barred by the two-years statute of limitation from recovering the real estate; or if the tax title was invalid, from recovering the amount due thereon, together with interest, penalty and costs, as the tax deed and all evidence offered of the payment of taxes, and the proceedings attending the tax sale, were rejected. This view was erroneous on account of the provisions of § 23 of the code, and the arrangements between Flint and plaintiff. Subdivision 3 of §16 of the code is no bar to the suit of plaintiff.

Of course the action of the trial court in refusing to poll the jury when requested so to do by plaintiff was erroneous. A party entitled to a jury trial is entitled to have a verdict of a jury, unless a jury is waived. A judgment is not fo.unded upon a verdict' of the jury where' such verdict is rendered under the orders and directions of the court, and the party is not permitted to have the jury polled. (Maduska v. Thomas, 6 Kas. 153.)

The judgment of the district court will be reversed, and the case remanded with directions for further proceedings in accordance with the views herein expressed.

All the Justices concurring.  