Caldwell v. Bigger

• Decision Date: 08 June 1907
• Citation: 76 Kan. 49,90 P. 1095
• Parties: CALDWELL v. BIGGER et al.
• Court: Kansas Supreme Court

90 P. 1095

76 Kan. 49

CALDWELL v. BIGGER et al.

Supreme Court of Kansas

June 8, 1907

Rehearing Denied July 5, 1907.

Syllabus by the Court.

In an action to quiet title, a notice by publication, which describes the real estate by the lot and block numbers of an addition to a city according to the recorded plat thereof which plat designates the land by its proper government subdivision, which has in fact been of record for a number of years, which has been recognized by the city and the public generally, and which has been acted upon by the authorities for purposes of taxation, sufficiently identifies the property affected to give the court jurisdiction as against a defendant, who, if he had desired, might have impeached the plat as invalid.

A judgment, quieting the title of a tax deed holder rendered by a court having jurisdiction, cannot be impeached in a collateral action of ejectment, nor can the validity of the tax deed be relitigated in such an action, no matter how vulnerable it might have been if it had been properly assailed.

[Ed No.-For cases in point, see Cent. Dig. vol. 30, Judgment, § § 907-912.]

A party who withholds a conveyance of real estate from record until after an action to quiet title against his grantor has been commenced by a person who is ignorant of the existence of the deed is a purchaser pendente lite, and is bound by the judgment rendered in the action.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Lis Pendens, § § 47-52.]

The relation of attorney and client can be created only by a contract of employment, express or implied.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attorney and Client, § § 85, 86.]

If a party to a suit assign the judgment in his favor to a stranger, so that his relation to the case ends, the relation of his attorney to the suit also ends, unless he be re-employed by the assignee.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attorney and Client, § 131.]

An attorney for the owner of a judgment is not disqualified to purchase real estate sold on execution to satisfy the judgment at a sale held after his client has assigned the judgment to a stranger who has not re-employed him.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attorney and Client, § 253.]

A sheriff’s sale is not, after confirmation and the issuance of a sheriff’s deed, void and subject to collateral attack because the owner of the judgment wrote a letter to the sheriff directing a return of the order of sale, which letter was not received until after the sale had been made.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Execution, § § 736-739.]

A transaction between an attorney and his client examined and sustained.

Error from District Court, Reno County; P. J. Galle, Judge.

Action by John Caldwell against L. A. Bigger and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Car W. Taylor, for plaintiff in error.

H. Whiteside, Fairchild & Lewis, Prigg & Williams, and Vandeveere & Martin, for defendants in error.

OPINION

BURCH, J.

The plaintiff in this case brought an action of ejectment to recover the possession of ¹³/₂₈ of a quarter section of land. His right to possession depended upon ownership. The defense was that the plaintiff never had title, but if such were not the case whatever rights he once possessed were extinguished by a judgment quieting title against him and by a sheriff’s deed executed and delivered in consummation of an execution sale based upon a judgment against him.

For the purposes of this decision it may be conceded that prior to October, 1893, the plaintiff was the owner of the interest which he asserts in the land in controversy, and attention may be directed entirely to the sufficiency of the defenses urged. In October, 1888, the Hutchinson Investment Company, claiming to be the owner in fee simple of the land, and actually being the owner of a ¹⁵/₂₈ interest in it, platted it into lots, blocks, streets, and alleys, and filed a copy of the plat with the register of deeds of the county as the Hutchinson Investment Company’s Ninth Addition to the city of Hutchinson. The certificate to the plat specifically stated that it embraced the northeast quarter of section 12, township 23 south, range 6 west of the sixth principal meridian. Thereafter the land was shown upon the tax rolls by lot and block descriptions. It was assessed by the city assessor, taxes were levied against it in that form, and in October, 1893, a tax deed for substantially all the lots in the addition was issued to E. L. Myers and duly recorded. At different times proceedings were instituted to bring the land covered by the plat within the limits of the city of Hutchinson. In the year 1890 the plaintiff was in Hutchinson, having business which called him there, and saw that the land had been laid out in streets. Deeds of portions of it by lot and block numbers were made and recorded, and possession was taken under them. In January, 1894, the grantee in the tax deed brought an action to quiet his title against the plaintiff. In the petition it was alleged that Myers was the owner of the legal and equitable title to the land and in the actual and peaceable possession of it, that the defendant claimed an interest in it, the true source of which was stated; but it was alleged such claim was a cloud upon Myers’ paramount rights, and he prayed that he be declared to be the owner and holder of the legal and equitable title, that the claim of the plaintiff be declared void, and that his title be quieted against the plaintiff. Service was made by publication. The affidavit was in due form, and the notice was regular in every respect except that the land was described as lots in blocks of the Hutchinson Investment Company’s Ninth Addition to the city of Hutchinson according to the recorded plat thereof. The plaintiff defaulted, and the relief prayed for in the petition and described in the notice was granted in full. No proceeding in error was instituted to reverse, vacate or modify the decree, and no attempt was made within the three-year statute of limitations to open it because based on publication service. The question is, therefore, if the Myers’ title was open to question in the plaintiff’s ejectment suit.

Attack by means of ejectment is collateral (O’Keefe v. Behrens, 73 Kan. 469, 473, 85 P. 555), and the judgment declaring the plaintiff to be without title and declaring Myers to have the legal and equitable title to the land is conclusive unless some fact altogether destructive of jurisdiction was wanting in the proceedings. The only claimed defect is that regarding the description of the land in the notice. The statute provides that, when service is made by publication, the notice shall state the nature of the judgment to be taken. To make the notice perfect, real estate to be affected by the judgment should be described. But it need not describe the real estate at all to be good against a collateral attack, if it shows even inferentially or imperfectly that real estate will be affected. The decision in Garrett v. Struble, 57 Kan. 508, 46 P. 943, is conclusive upon this question. In that case the notice reads as follows: "Said petition will be taken as true, and judgment rendered in said action against said defendant, William J. Strouble, for the sum of $828.64, with interest thereon at the rate of 7 per cent. per annum from the 23d day of July, 1887, and for the sale of certain real property attached in this action." In the opinion it is said: "The only question which we deem necessary to consider is whether said notice was void or not. It was complete in all respects, except those pointed out by the trial court. In these it was irregular, defective, and at least voidable. It could not have withstood a direct attack, because it did not sufficiently state the nature of the judgment which would be rendered upon default of answer. It indicated the amount of the judgment that would be taken and that certain real property attached in the action would be sold, but it did not describe the land. As against a direct attack the notice was insufficient under the authority of Adolph Cohen v. C. B. Trowbridge, 6 Kan. 385, and Cackley v. Smith, 38 Kan. 450, 17 P. 156. In Harris v. Claflin, 36 Kan. 543, 13 P. 830, it was held that, if there is a total want of evidence upon a vital point in the affidavit for publication, the court acquires no jurisdiction by publication of the summons; but where there is not an entire omission to state some material fact, but it is inferentially or insufficiently set forth, the proceedings are merely voidable. The same principle, as nearly as may be, should be applied as the test of the sufficiency of a publication notice. If there is a total failure to state in the notice any material matter required by section 74 of the Civil Code of Procedure, the service is void; but if there is not an entire omission of such material matter, and it is inferentially or insufficiently set forth, the notice is merely voidable and not void. Following this rule, we hold that the notice of the case of Garrett against Strouble was irregular, defective, and voidable, but that it was not void, and therefore must be held sufficient as against a collateral attack."

It is not necessary that land be described in a notice by publication by the government description or by lot or block number. All that is required is that any person of common understanding may be able to locate and identify it by following up the notice. In this case the notice gave a true description. The land had been platted as the Hutchinson Investment Company’s Ninth Addition to the city of Hutchinson. The plat was valid on its face, its dedications had...