Clark v. Tandy

Decision Date07 July 1917
Docket Number20945
PartiesCLARK v. TANDY ET AL.
CourtKansas Supreme Court

Rehearing Denied Oct. 12, 1917.

Syllabus by the Court.

An attack by strangers on a sheriff’s deed in an action separate from that in which the sheriff’s deed was issued, on the ground that out of the proceeds of the sale the current taxes were not paid, nor the land redeemed from tax sales, is a collateral attack, and cannot be maintained.

The grantee in a sheriff’s deed obtains as good a title to the real property conveyed as was held by the person against whom execution was issued. This includes the right to attack a voidable tax deed.

A tax deed is voidable when based on a redemption notice which includes illegal interest, and which does not comply with section 11446 of the General Statutes of 1915.

Appeal from District Court, Shawnee County.

Action by J. A. Clark against W. G. Tandy and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Robert H. Steele, of Topeka, for appellants.

E. A Austin, of Topeka, for appellee.

OPINION

MARSHALL, J.

The plaintiff commenced this action to foreclose a real estate mortgage given by defendants A. C. Austin and Edwin A. Austin. The plaintiff and A. C. Austin recovered judgment for the possession of the real property in controversy. Defendants W. G. Tandy, Hampton A. Steele, C. A. Forter, Emma Morrison, Mary A. Hoopes, and Maude Allen appeal.

A. C. Austin holds two titles to the property, one evidenced by a sheriff’s deed, and the other based on a tax deed. The appealing defendants hold tax deeds subsequent to the tax title and sheriff’s deed of A. C. Austin.

1. The sheriff’s deed was executed on the confirmation of a sheriff’s sale, under an execution issued on a judgment against Frank J. Brown. The appealing defendants attack the sheriff’s deed for the reason that out of the proceeds of the sale the land was not redeemed from the tax sales nor the current taxes paid, as required by section 11279 of the General Statutes of 1915. The sheriff’s sale could, before the deed was issued, have been attacked by any party to the action; but after the sale was made and confirmed, and a deed was executed and delivered, the matter was closed. In another and independent action or proceeding, as the present action, the deed cannot now be attacked, either by parties to the action or by strangers. The attack made by the appealing defendants is a collateral attack on the sheriff’s deed and on the judgment confirming the sheriff’s sale; and such an attack cannot be maintained. Pracht v. Pister, 30 Kan. 568, 1 P. 638; Rounsaville v. Hazen, 33 Kan. 71, 5 P. 422; Stetson v. Freeman, 35 Kan. 523, 11 P. 431; Trowbridge v. Cunningham, 63 Kan. 847, 66 P. 1015; Caldwell v. Bigger, 76 Kan. 49, 90 P. 1095; Beeler v. Elwell, 92 Kan. 586, 141 P. 551; 24 Cyc. 72.

2. Section 502 of the Code of Civil Procedure (Gen. St. 1915, § 7406) provides, in substance, that every sheriff’s deed made under any execution shall vest in the purchaser as good and perfect estate in the premises described as was vested in the person against whom the execution was issued. A. C. Austin acquired the same rights under the sheriff’s deed that had been possessed by the judgment debtor, Frank J. Brown. The attack on the sheriff’s deed is not that Brown did not have title, but that the sheriff’s deed itself is invalid. The sheriff’s deed vested in A. C. Austin the same right to attack the tax deeds...

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3 cases
  • Howard v. Howard
    • United States
    • United States State Supreme Court of Kansas
    • 28 Gennaio 1939
    ......Ralston, 10 Kan. 206; Walker. v. Braden, Sheriff, 34 Kan. 660, 9 P. 613; Markley. v. Investment Co., 67 Kan. 535, 73 P. 96; Clark v. Tandy, 101 Kan. 328, 167 P. 1039; Metz v. Hicklin,. supra; Union Pac. R. Co. v. Huse, 127 Kan. 601, 274. P. 240; Bryant v. Fordyce, 147 Kan. ......
  • Catlin v. William Deering & Company
    • United States
    • United States State Supreme Court of Kansas
    • 12 Gennaio 1918
    ...law which are involved therein, save such as go to the question of jurisdiction. (Carter v. Hyatt, 76 Kan. 304, 91 P. 61; Clark v. Tandy, 101 Kan. 328, 167 P. 1039.) 2. attested copy of the journal entry of the Kingman county judgment was filed in the office of the clerk of the district cou......
  • The Home State Bank v. Frank
    • United States
    • United States State Supreme Court of Kansas
    • 7 Dicembre 1929
    ...... sheriff's deed, he may redeem as owner from a subsequent. sale under such prior judgment (see, also, Andrews v. Alcorn, 13 Kan. 351; Clark v. Tandy, 101 Kan. 328, 167 P. 1039), so it is rightly contended that the right. of Anderson, the original owner, passed absolutely to Brady. by ......

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