Chapin v. Aylward

• Decision Date: 24 January 1970
• Docket Number: No. 45511,45511
• Citation: Chapin v. Aylward, 204 Kan. 448, 464 P.2d 177 (Kan. 1970)
• Parties: W. Luke CHAPIN and Ruth Chapin, His Wife, Appellants, v. J. A. AYLWARD and R. A. Aylward, Partners, d/b/a Aylward Drilling Company, and Cities Service Gas Company, a Corporation, Appellees, and Marathon Oil Company, a Corporation; N. Appleman Company, a Sole Proprietorship Owned by Nathan Appleman; Harold Mellor; Barthel N. Lies and Rev. Michael J. Lies, Intervening Defendants-Appellees.
• Court: Kansas Supreme Court

Page 177

464 P.2d 177

204 Kan. 448

W. Luke CHAPIN and Ruth Chapin, His Wife, Appellants, v.J. A. AYLWARD and R. A. Aylward, Partners, d/b/a Aylward Drilling Company, and Cities Service Gas Company a Corporation, Appellees and Marathon Oil Company, a Corporation; N. Appleman Company, a Sole Proprietorship Owned by Nathan ApplemanHarold Mellor; Barthel N. Lies and Rev Michael J. Lies, Intervening Defendants-Appellees.

No. 45511.

Supreme Court of Kansas.

Jan. 24, 1970.

Rehearing Denied Feb. 27, 1970.

Syllabus by the Court

1.With respect to service of notice, due process of law requires that, where feasible, notice of legal proceedings be given by means reasonably calculated to inform all parties having legal rights which might be directly and adversely affected thereby.

2.Whese the names and addresses of adverse parties are known or are easily ascertainable, notice of pending legal proceedings by publication service alone, is not sufficient to satisfy the requirements of due process under the 14th Amendment to the federal constitution or § 2 of the Bill of Rights of the Kansas constitution.

3.A tax foreclosure action was filed in Barber county.Certain defendant property owners resided in Sedgwick county, and had never lived in Barber county.Summons to them was issued to the sheriff of Barber county and was returned as 'not found in Barber county'.Despite the fact the names and addresses of such defendants were readily ascertainable from an examination of the county records, no summons was ever issued to the sheriff of Sedgwick county and no personal service was attempted or obtained upon them and they had no actual knowledge of the pendency of the tax foreclosure action.Pursuant to the 'not found' return of the sheriff, publication service was had.In due course the action proceeded to judgment of foreclosure and sheriff's sale.

Some three and one-half years after confirmation of the sale the defendants in question sought to have it set aside-alleging that under the facts the lack of personal notice to them of the tax foreclosure action constituted a denial of due process of law.The trial court sustained their contention and set aside the sale as being void.The purchasers at that sale appealed.

Held:

(A) Under the facts set forth at length in the opinion the lack of personal notice to defendants of the pendency of the tax foreclosure action resulted in their being deprived of their property without due process of law.

(B) The provision of K.S.A. 79-2804b, requiring that any action to open, vacate, modify or set aside any tax foreclosure judgment or any sale made thereunder be commenced within twelve months after the date of confirmation of the sale-is inapplicable to the facts of the case.

(C) The sheriff's sale was properly set aside.

Gordon Penny, Medicine Lodge, argued the cause and was on the brief for appellants.

Leo R. Wetta, Wichita, argued the cause and was on the brief for Barthel N. Lies and Rev. Michael J. Lies, intervening defendants-appellees.

George B. Collins, Wichita, argued the cause, and Robert M. Collins, Wichita, was with him on the brief for other named appellees.

PRICE, Chief Justice.

This case grows out of a tax foreclosure action.

K.S.A. 79-2804b provides that all actions to open, vacate, modify or set aside any tax foreclosure judgment or any sale made thereunder, must be commenced within twelve months after the date of confirmation of the sale, and that such time limitation is to be construed as a condition precedent to the bringing of any such action and not as a statute of limitations.

Under applicable decisions of this court and of the supreme court of the United States the undisputed facts of this case establish that with respect to the service of notice of the tax foreclosure action certain property owner defendants in that action were denied due process of law.More than twelve months after confirmation of the sale in that action those defendants sought-in this action-to set aside the sale of their property as being void.

The question here, therefore, is whether the twelve-months time limitation provision of 79-2804b bars them from attacking that sale.

The trial court held such provision to be inapplicable and set aside the tax foreclosure sale in question.

The purchasers at that sale have appealed.

This case was submitted to the trial court on the pleadings and an agreed statement of facts.

The background of the matter is this:

For many years the Barber county land in question was owned by the Lies family.In 1957 Margaretha Lies owned an undivided one-half interest in both the surface and minerals, and the other undivided one-half interest was owned by her 14 children in equal shares.In that year Margaretha conveyed her undivided one-half mineral interest to her 14 children.Barber county levied a tax on such mineral interest for the year 1957.The tax was not paid.In 1959, 12 of the Lies children conveyed all of their interest in the land-both surface and mineral-to the other 2 children-Barthel N.Lies and Michael J. Lies.Margaretha died in 1966, leaving her interest in the surface of the property to Barthel and Michael.

Proper newspaper publication notice of the above mentioned tax delinquency on the one-half mineral interest was given 1958, 1959, 1960, 1961 and 1962.

The Lies children resided at Andale, in Sedgwick county, and none had ever lived in Barber county.

On July 31, 1963, Barber county filed suit to foreclose its tax lien on the mineral interest in question-and on many other tracts and interests not here involved.An exhibit attached to the petition listed all 14 of the Lies children as owners of the mineral interest and Barthel and Michael as the surface owners of record.Summons was issued to the sheriff of Barber county for the 14 Lies children.It was returned as 'not found in Barber county.'No summons was ever issued to the sheriff of Sedgwick county and no personal service was attempted or obtained upon any of the Lies children, and they had no actual knowledge of the pendency of the tax foreclosure action.

Pursuant to the 'not found' return of the sheriff as to the Lies children, publication service was had.Without detailing it-it may be said that the affidavit for service by publication-the publication itself-and all proceedings thereunder, including the finding and approval by the court-were in the usual, regular and proper form.In due course the action proceeded to judgment of foreclosure and sale.The mineral interest in question was purchased at the sheriff's sale by W. Luke Chapin and Ruth Chapin-who are plaintiffs in the present action.The sale to them was confirmed on December 5, 1963, and a sheriff's deed was issued the next day.A week later Mr. Chapin wrote to the Aylward Drilling Co., the operating lessee, advising it of the tax sale so that Aylward's records could be corrected actordingly.Aylward's records could be corrected accordingly.Aylward did not notify any of its co-lessees or any member of the Lies family about the tax sale after receiving the letter from Chapin.

Real estate taxes on the land in question were paid by members of the Lies family at all times up to and including the year 1963 when the tax foreclosure action was filed as to the one-half mineral interest which had been conveyed by Margaretha to her children in 1957.While that mineral deed did not list the addresses of the grantees therein, and the records in the county treasurer's office did not show their addresses on the mineral interest roll-book-nevertheless--

'These addresses could have been discovered by county officials had they referred to the personal property tax rolls and personal property tax receipts as to taxes on the gas produced, or had they referred to real estate tax rolls.Tax receipts for the years 1960, 1961 and 1963 showing the address of members of the Lies family as Andale, Kansas, are attached as Defendants' Exhibits F. G and H.(SeeDefendants' Exhibit E).'

In February 1967 the Chapins-the purchasers at the tax foreclosure sale in 1963, and who, in the meantime, had paid taxes on the mineral interest in question-brought this action against Aylward and Cities Service Gas Co. for damages for conversion of gas produced and sold.For our purposes the issues between those parties need not be noted.Hereafter the Chapins will be referred to as plaintiffs.

On June 1, 1967, Barthel and Michael Lies, whose mineral interest had been sold to plaintiffs at the tax foreclosure sale, filed, as intervening defendants, an answer, which, by way of an affirmative defense, alleged their lack of notice of the tax foreclosure action until more than twelve months after the execution of the sheriff's deed; that their addresses were at all times readily available to the county officials so that actual notice of the pendency of the tax foreclosure action could have been given to them personally; that the lack of personal notice ot them was in violation of their rights under both the federal and state constitutions, and that the sheriff's deed to the purchasers, (plaintiffs) was therefore null and void.

As stated, this case was submitted to the trial court on the pleadings and an agreed statement of facts-a portion of which is quoted, above.

In its judgment the court found and ruled that under the authority of Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P.2d 858, the sale of the mineral interest owned by the intervening defendants Lies was void because they had not been given personal notice of the pendency of the tax foreclosure action as required by the federal and state constitutions; that defen...