Board of Com'rs of Sheridan County v. Acre

• Decision Date: 07 July 1945
• Docket Number: 36399.
• Citation: 160 P.2d 250,160 Kan. 278
• Parties: BOARD OF COUNTY COMMISSIONERS OF SHERIDAN COUNTY v. ACRE et al.
• Court: Kansas Supreme Court

160 P.2d 250

160 Kan. 278

BOARD OF COUNTY COMMISSIONERS OF SHERIDAN COUNTY v. ACRE et al.

No. 36399.

Supreme Court of Kansas

July 7, 1945

Rehearing Denied Sept. 4, 1945.

Appeal from District Court, Sheridan County; W. K. Skinner, Judge.

Action by the Board of County Commissioners of Sheridan County Kan., against Albert Hamilton Acre and others to foreclose delinquent tax liens, wherein the Federal Farm Mortgage Corporation intervened. From a judgment overruling plaintiff's motion to dismiss the intervening petition plaintiff appeals.

Reversed with directions.

HOCH WEDELL, and BURCH, JJ., dissenting.

Syllabus by the Court.

In a county commissioner's tax foreclosure action on separate mineral interests in a quarter section of land the petition named persons as being the owners, or supposed owners, of such mineral interests and also named others as having or claiming to have some interest therein. In the decree the court found the owner, or supposed owner, and the persons having or claiming to have an interest in the property to be those alleged in the petition. The order of sale followed the decree of the court in those matters. The sale was regularly had and the mineral interests sold to one who was not a party to the action. The sale was confirmed and a sheriff's deed was issued to the purchaser and recorded. More than a year after the sheriff's sale a party to the action, which had been personally served with summons and had entered a written appearance reserving time to plead by a certain date, but had filed no pleading as to the mineral interests in question, filed an intervening petition alleging that at the time the tax foreclosure suit was brought it was the holder of a certificate of purchase in a mortgage foreclosure action involving the same land; that because thereof it should have been named as an owner or as one having or claiming to have an interest in the property, and that because it was not so named the judgment of the court in the tax foreclosure action was void, and that the order of sale and confirmation thereof were void as to it. Held: The judgment in the tax foreclosure action was not wholly void for the reasons alleged, and further held that the intervening petition was filed too late. G.S.1943 Supp. 79-2804b.

Alex. M. Fromme, Co. Atty., of Hoxie, for appellant.

Edw. H. Jamison, of Wichita (C. L. Thompson, of Hoxie, and Robert C. Dow and Conrad L. Ball, both of Wichita, on the brief), for appellee.

HARVEY Chief Justice.

This was an action by the county to foreclose delinquent tax liens on mineral interests in real estate. The petition, filed December 18, 1942, described tax liens upon approximately 200 mineral interests which had been separately taxed. We are concerned here with but five of them, being five separate mineral interests separately taxed and approximating 15/32 of the mineral interests in one-quarter section of land,--the northeast quarter of Section 33, in Township 9, Range 26, west. In the petition the item No. 137, described an undivided 3/16 interest in the oil, gas and other minerals in, under, or that may be produced from the 160 acres of land described, and named as the owner, or supposed owner, J. L. Conroe, and as persons having, or claiming to have, some interest therein, The Republic Natural Gas Company, a corporation, F. A. Sansome, Dora N. Houston, Dewey E. Waggoner, Homer H. Heath, S. J. Houston, and O. R. Phelps. Tract No. 138 was an undivided 1/32 interest in such minerals in the same land and named as the owner, or supposed owner, Dewey E. Waggoner; tract No. 139 was on a 1/6 interest in the minerals in the same land and named as owner, or supposed owner, F. A. Sansome; tract No. 140 upon a 1/8 interest in the minerals in the same land and named as the owner, or supposed owner, S. J. Houston; and tract No. 141 was for a 1/16 interest in the minerals under the same land and named as the owner, or supposed owner, Dora N. Houston; and in each of the tracts 138, 139, 140 and 141, all the persons not named as the owners, or supposed owners who were named as the owner, or supposed owner, and as having or claiming to have some interest in tract 137, were named as persons who had or claimed to have some interest in each of the respective tracts.

A large number of persons and corporations were named as defendants in the action. Service of summons was made on each of them personally, where the could be done, otherwise by publication. Among the defendants named in the petition was The Federal Farm Mortgage Corporation, which corporation was not only served personally, but filed a written entry of appearance in the action, reserving only the right to plead by February 5, 1943. The prayer of the petition was that each of the defendants be required to appear and establish his claim of any estate, right or title in or to any of the real estate described in the petition; that the court determine the amount of the taxes, interest and charges against each piece of land; determine the name of the owners, or party or parties having an interest therein, and for a decree that the amount so found due be a first and prior lien upon the real estate, and that the same be advertised and sold as provided by law.

In the judgment and decree of the court, rendered September 16, 1943, the court found J. L. Conroe, Dora N. Houston, Homer H. Heath, S. J. Houston, O. R. Phelps, Republic Service Gas Company, a corporation, P. A. Sansome, and Dewey E. Waggoner (among others) were duly and regularly notified of the pendency of this suit by publication notice of summons, as provided by law, and further found that The Federal Farm Mortgage Corporation (among others) had been duly and legally served personally with summons, as provided by law; and the court particularly found 'generally for the plaintiff herein and against the above named defendants and each of them, * * * and the name or names of the ascertained owners, defendants herein, are as follows;' listing as owner of tract No. 137, J. L. Conroe; tract No. 138, Dewey E. Waggoner; tract No. 139,F. A. Sansome; tract No. 140, S. J. Houston, and tract No. 141, Dora N. Houston. Judgment of foreclosure for the amount of the taxes found was duly rendered; and it was further ordered that if the taxes on the interest in minerals, set out and described, be not redeemed by the payment of the liens thereon within ten days, an execution or order of sale be issued by the clerk, directed to the sheriff, commanding him to cause the property to be advertised and sold according to law, and providing how the proceeds of the sale should be disbursed, and continued: 'It is further ordered that from and after the confirmation of the said sale, and the execution and delivery of deeds by the sheriff to the purchasers, that all defendants and all persons claiming, or hereafter to claim by, through, from, or under them, or any of them, shall be forever barred, cut out, and foreclosed of and from ever asserting any right, title, claim, interest, lien, or equity of redemption in or to the said property, or any part thereof, and the grantee in such sheriff's deeds shall have all necessary writs of assistance of other processes to put him or them in possession of the property.'

The tracts in question were not redeemed prior to the day of sale. The order of sale was duly issued and named the owners of the tracts in question the same as they were named in the decree. The sale was duly advertised and held on October 7, 1943, at which sale the five mineral interests above mentioned were sold to one Ad Smith for sums aggregating $155. The sale was duly confirmed and the court directed the sheriff to issue a sheriff's deed to the purchasers for the tracts or units of minerals purchased by them at the sale. The sheriff's deed was duly issued to Ad Smith on November 14, 1943, for the tracts in question, which deed was filed for record in the office of the register of deeds on February 3, 1944.

On December 7, 1944, the Federal Farm Mortgage Corporation, with leave of court, filed its intervening petition in which it alleged the general nature of the action, the duties of officers under the statute relating thereto, which will be later noted, and that on November 2, 1942, in an action in the same court, entitled 'Federal Farm Mortgage Corporation, a corporation, plaintiff, v. O. R. Phelps, et al.,' all the property described in the tax foreclosure suit (items 137, 138, 139, 140, 141), including all mineral interests in connection therewith, was sold by the sheriff pursuant to a judgment in the mortgage foreclosure action to the Federal Farm Mortgage Corporation, and that a certificate of purchase was issued to it on November 14, 1942; that the petitioner was the owner of record of the equitable interest in and to all the property described in the items referred to in the tax foreclosure action on the date the petition in that action was filed; that through inadvertence, design or mistake the plaintiff in the tax foreclosure action failed to name the Federal Farm Mortgage Corporation as one of the defendants owning or claiming to have some interest in the mineral interests described; that the judgment of the court, and the order of sale issued, failed to name the petitioner as an owner or as having an interest in the property; that by reason of these failures the court was without jurisdiction to adjudicate and determine the rights of the petitioner in and to the various mineral interests upon which plaintiff attempted to foreclose its tax lien, and that all the proceedings therein, including the judgment, order and sale, and confirmation thereof, are void and of no effect insofar as the rights of the petitioner are concerned. It was further alleged that the...