Board County Com'rs v. Welch
| Decision Date | 09 February 1889 |
| Citation | 40 Kan. 767,20 P. 483 |
| Parties | THE BOARD OF COMMISSIONERS OF MARION COUNTY v. D. B. WELCH et al |
| Court | Kansas Supreme Court |
Error from Marion District Court.
ACTION to quiet title. Judgment for plaintiffs Welch and another for $ 232.43 and costs, at the June term, 1885. The defendant County Board brings the case to this court. The facts appear in the opinion.
Judgment affirmed.
J. S Dean, for plaintiff in error.
L. F Keller, for defendants in error.
OPINION
This was an action commenced in the district court of Marion county, and the material facts are these: On the 22d day of September, 1881, tax deeds were executed and delivered to the defendants in error, for two quarter-sections of land situate in Marion county. On the 28th day of September, 1881, one Laura A. Challen, claiming to be the owner in fee simple of said tracts of land, commenced an action in the district court of that county, against the defendants in error, to quiet the title to said tracts of land. The defendants were and are non-residents of the state of Kansas, and service of summons was made upon them in Harrison county, Ohio, by the sheriff of said county, under the provisions of § 76, code of civil procedure. The defendants in error never made any appearance in said suit, and a decree was rendered on default against them, in May, 1882. This decree provided that the title of the said Laura A. Challen in and to all the lands in her petition described, be, as against these defendants in error, and all persons claiming under them, forever quieted, and said defendants in error and all persons claiming under them be forever enjoined from setting up, or claiming, or urging against the plaintiff their pretended title. On the 7th day of April, 1884, these defendants in error presented a bill to the board of county commissioners of Marion county for the amount of taxes stated in the tax deeds, with the subsequent taxes paid by them, with interest, for allowance. This bill was allowed, and an appeal taken by the county to the district court. The trial in that court resulted in a judgment in favor of the defendants in error for the amount of all taxes paid, with interest thereon, and costs. The case has been brought to this court for review, and several assignments of error are made.
The principal contention of counsel for the plaintiff in error is, that the decree in the case of Challen v. Welch and Estep, which was introduced by the defendants in error to show that their tax deeds had been adjudged invalid, was and is a nullity. For this contention two reasons are assigned. The first is, that the action to quiet title was a "strictly personal one," and the decree intended to operate in personam; and as there was no personal service within the jurisdiction of the court, it is a nullity. The second is, that the pleadings in that action show that the plaintiff therein did not know or allege the nature of the claim of Welch and Estep to the land, and they filed no answer setting up that they claimed by virtue of the tax deeds, and hence there was no adjudication as to the invalidity of the tax deeds. The first goes to the power of the court to render the decree quieting title, and the second to the admissibility of the record in that action to show an adjudication against the validity of the tax deeds.
Counsel for plaintiff in error is probably mistaken in his assumption that the action of Challen v. Welch and Estep was an equitable one. The record shows that the petition alleged that the plaintiff was the owner in fee simple, and was entitled to, and is in the possession of the land described. It is true that there is an admission that Laura A. Challen is a resident. of the state of Ohio, and never has resided in Kansas; and yet she could have been in actual possession of the land by a tenant, and as there is no evidence about possession contained in the record, we give the allegation in the petition full force and effect, as it was admitted by the default. If there was...
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