Duphorne v. Moore

• Citation: 82 Kan. 159,107 P. 791
• Decision Date: 12 March 1910
• Docket Number: 16,425
• Parties: MARCEL DUPHORNE, Appellant, v. M. L. MOORE, Appellee
• Court: Kansas Supreme Court

107 P. 791

82 Kan. 159

MARCEL DUPHORNE, Appellant, v. M. L. MOORE, Appellee

No. 16,425

Supreme Court of Kansas

March 12, 1910

Decided January, 1910.

Appeal from Kearny district court; WILLIAM H. THOMPSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGMENTS -- Validity -- Publication Service -- Willfully False Affidavit. A judgment based upon a willfully false affidavit for service by publication is not absolutely void.

2. JUDGMENTS -- Vacation -- Fraud -- Limitation of Action. An action to set aside a judgment because it is based upon such an affidavit is one for relief on the ground of fraud, and is required to be brought within two years after the actual or constructive discovery thereof.

3. JUDGMENTS -- Record of Fraudulent Judgment is Notice to a Purchaser. One who purchases land while the records of the district court of the county in which it is situated show a judgment annulling the title of the grantor, which is fair on its face but in fact voidable because based on a willfully false affidavit for service by publication, must be deemed to have notice from that time of the perpetration of the fraud.

J. G Campbell, and Ray Campbell, for the appellant.

R. L. Holmes, and Charles G. Yankey, for the appellee.

OPINION

MASON, J.:

The Walton Loan Company, a Kansas corporation, owned a tract of land in Kearny county. C. H. Puckett, having a tax deed thereto, brought an action in that county to quiet title, making service upon the company by publication, in virtue of an affidavit stating that its officers had departed from the state and could not be found. Judgment was rendered on June 23, 1903, as prayed in the petition. On June 24, 1905, the company executed a deed for the land to Marcel Duphorne. On March 20, 1908, Duphorne began an action in Kearny county against M. L. Moore, who had acquired the interest of Puckett, asking relief against the judgment on the ground that the affidavit for service by publication was not only false, but was made fraudulently and in bad faith. A demurrer to his petition was sustained, and he prosecutes error.

In Davis v. Land Co., 76 Kan. 27, 90 P. 766, where it was held that a judgment resting upon publication summons could not be vacated on motion after five years merely upon a showing that the affidavit on which it was based was untrue in fact, a distinction was suggested between the situation there presented and that arising where the affidavit was willfully false. The distinction is manifestly sound. (See Dunlap v. Steere, 92 Cal. 344, 28 P. 563, and the cases cited in a note thereto in 16 L.R.A. 361.) But even a judgment based upon perjured testimony that the defendant can not be personally served is not an absolute nullity. Its condition is not the same as though there had been no service whatever. The false affidavit challenges the attention of the court. The court in effect makes a finding of fact upon the strength of it, and acts upon such finding in rendering judgment. Whatever remedies the defendant may have to redress the wrong done him, he can not safely ignore the record made against him. It binds him until corrected in some proper and timely proceeding.

"Every judgment, whether obtained through fraud or not, is valid and binding and conclusive as to all parties thereto, and their privies, until reversed, vacated, set aside, or perpetually enjoined by some proceeding instituted directly for that purpose. . . . A judgment that merely ought to be nullified is still a judgment." (Simpson v. Kimberlin, 12 Kan. 579, 588, 589.)

(See, also, the discussion in McCormick v. McCormick, ante, p. 31, and the cases there cited.)

It follows from the principle stated that Duphorne could not maintain an action to quiet his title to the land by removing a cloud cast thereon by the Puckett judgment. He was not entitled to a decree declaring that there had never been such a judgment. All he could rightfully ask was that the judgment should be annulled because it had been procured by imposition practiced upon the court. Viewed in that aspect, his action was one for relief on the ground of fraud and was required to be brought within two years after its discovery. (...