Ford v. Willits
| Decision Date | 27 September 1984 |
| Docket Number | No. 55585,55585 |
| Citation | 688 P.2d 1230,9 Kan.App.2d 735 |
| Parties | J.M. FORD, II, and The First National Bank of St. Joseph, as co-trustees of Albert L. Bartlett Trust, Appellants, v. Russell W. WILLITS and Cities Service Gas Co., Appellees, and Russell W. WILLITS, Cross-Appellant, v. BOARD OF COUNTY COMMISSIONERS and Jefferson County Abstract Co., Cross-Appellees. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. As real parties in interest, successor trustees have standing to bring an action on behalf of the trust.
2. Due process requires, where feasible, that notice of proceedings be given by means reasonably calculated to inform all parties whose legally protected interests might be adversely affected thereby.
3. When parties who have an interest in the property are neither named as party defendants in a foreclosure nor served, they are denied due process.
4. The failure to properly serve parties in interest deprives the court of personal jurisdiction of the unserved parties.
5. A judgment is void if the court that rendered it lacked jurisdiction of the parties, or if its actions resulted in a denial of due process.
6. A judgment that is void for lack of due process may be set aside at any time. The time limitation found in K.S.A. 79-2804b has no applicability to void judgments.
7. Actual knowledge of the foreclosure proceedings after the foreclosure sale occurred did not affect the underlying lack of personal jurisdiction which rendered the judgment void.
8. A void judgment may be challenged at any time; laches will not bar the action.
9. A party who asserts equitable estoppel must show prejudice.
10. Under the provisions of K.S.A. 1983 Supp. 79-420, a mineral deed which is not recorded within ninety days after execution is void if not listed for taxation. Compliance with one of the alternative requirements of the statute is a condition precedent to the vesting of title in the grantee of such mineral deed.
11. "Listed for taxation," as contemplated by K.S.A.1983 Supp. 79-420 requires the grantee of the deed to take prompt affirmative action to bring the property to the attention of the taxing authorities. In this case, recording the mineral deed before March 1, the date set forth in G.S.1935, 79-420, was sufficient to list the property for taxation.
12. An undivided one-fourth mineral interest in property located in Jefferson County was conveyed to a trust in 1946. The mineral deed conveying the interest was not recorded within ninety days from its execution, but it was recorded before March 1, 1947.
A tax foreclosure was filed in Jefferson County in 1974. One of the properties included in the foreclosure was the undivided one-fourth mineral interest owned by the trust. Neither the trust nor its trustees were named as parties defendant to the foreclosure, or served personally or through publication.
The successor trustees learned of the tax foreclosure sale after the sale had been confirmed, but within twelve months after the sale. The successor trustees filed a quiet title action seven years later, contending that the lack of notice to them of the tax foreclosure action (1) constituted a denial of due process; and (2) rendered the judgment void for lack of personal jurisdiction. The purchaser of the mineral interest and other defendants countered by contending the trustees' action was barred by K.S.A. 79-2804b, laches and equitable estoppel. The validity of the trustees' mineral deed was also challenged, as well as their standing to bring the action. The trial court entered summary judgment for the purchaser after concluding the trustees' action was barred under K.S.A. 79-2804b and by laches. The trustees appealed. Held:
(A) The successor trustees have standing to bring the quiet title action on behalf of the trust.
(B) Under the facts set forth at length in the opinion, the lack of notice to the trust and its trustees of the pendency of the tax foreclosure resulted in their being deprived of their property without due process.
(C) The judgment entered in the foreclosure was void because it was rendered without personal jurisdiction of the trust or trustees and in violation of their due process.
(D) The provisions of K.S.A. 79-2804b, requiring that any action to open, vacate, modify or set aside any tax foreclosure judgment or sale be commenced within twelve months after the date of confirmation of the sale, is inapplicable to the void foreclosure judgment.
(E) Neither laches nor equitable estoppel bars the quiet title action.
(F) The mineral deed is not void. Although the mineral deed was not recorded within ninety days after its execution, it was recorded before March 1. This recording was sufficient to list the property for taxation and thereby vest title in the trustees under the provisions of G.S.1935, 79-420.
(G) The trial court's order granting summary judgment to defendants and third-party defendants and denying plaintiffs summary judgment is reversed and remanded for further proceedings. In addition, the dismissal of the third-party petition is reversed and remanded with directions to reinstate the third-party petition.
Larry R. Mears of Duncan, Senecal, Bednar & Mears, Chartered, Atchison, for appellants.
Peter K. Curran of Petefish, Curran & Immel, Lawrence, for appellee and cross-appellant Russell W. Willits.
Glenn D. Cogswell, Topeka, for appellee Cities Service Gas Co.
Milton P. Allen, Jr., of Allen, Cooley & Allen, Lawrence, for cross-appellee Board of County Comrs.
Deanne Watts Hay and Alan V. Johnson of Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, for cross-appellee Jefferson County Abstract Co.
Before FOTH, C.J., and PARKS and BRISCOE, JJ.
This is a quiet title action in which the plaintiffs, co-trustees, seek to quiet their title to an undivided one-fourth mineral interest which had been sold to defendant Willits at a tax foreclosure sale seven years earlier. The trial court entered summary judgment for defendant Willits, after concluding plaintiffs' action was barred under K.S.A. 79-2804b and by laches.
Our recitation of the undisputed facts in this case begins with the creation of the Albert L. Bartlett Trust (hereinafter referred to as the Bartlett Trust) on July 19, 1940. The trust instrument named Walter C. Bartlett, Albert L. Bartlett, Jr., and Mae Y. Bartlett as trustees and contained the following provisions for appointment of successor trustees:
"If any Trustee hereunder shall die, go to reside abroad, resign or become incapable or unfit to act, then, and in every or any such case and so often as the same shall happen, it shall be lawful for the Trustees continuing to act hereunder, by a writing, executed as a deed, to be recorded, to declare a vacancy to exist in the place of such Trustee, and, in their discretion, to appoint any person or corporation to fill such vacancy, ... shall be vested with all and the same powers, rights, duties, privileges, immunities, election and discretions as if originally named herein, such declaration that a vacancy exists shall be conclusive evidence thereof as to any purchaser or other person dealing with the Trustees."
In September, 1946, the Bartlett Trust conveyed the following described real estate to Russell W. Willits The Southwest Quarter, and the West Half of the Southeast Quarter, of Section 33, Township 9, Range 20, in Jefferson County, Kansas.
On September 24, 1946, Willits conveyed back to the Bartlett Trust an undivided one-fourth interest in the mineral rights in the above-described property. Willits signed the mineral deed on September 30, 1946, but the deed was not recorded with the Jefferson County Register of Deeds until January 18, 1947. The deed indicated that the conveyance was from Russell W. Willits to "Walter C. Bartlett, Albert L. Bartlett, Jr., and Mae Y. Bartlett, Trustees, their heirs, successors and assigns."
On September 16, 1950, the trustees of the Bartlett Trust leased their property to Cities Service Gas Company for gas storage. The First National Bank of St. Joseph, as depository for the Bartlett Trust, received the lease payment of $60 per year from September 16, 1966, through September 16, 1973.
In 1962, we see the beginning of a shift in trustees of the Bartlett Trust. As a result of the death of Walter C. Bartlett, J.M. Ford, II, was appointed as a substitute trustee for the Bartlett Trust on September 20, 1962. On November 23, 1965, Albert C. Bartlett, Jr., resigned, leaving Mae Y. Bartlett and J.M. Ford, II, as co-trustees. They appointed the First National Bank of St. Joseph as a substitute trustee on December 1, 1965. The appointments of J.M. Ford, II, and the First National Bank of St. Joseph were never recorded in Jefferson County, Kansas.
The undivided one-fourth interest does not appear on the tax rolls of the County Treasurer of Jefferson County until 1964. The Bartlett Trust failed to pay property taxes on its mineral interest for the years 1947 through 1973. As a result, a tax foreclosure action was filed by the county attorney of Jefferson County on July 16, 1973, describing the mineral interest and naming Walter C. Bartlett as a defendant and as owner of the interest. Peyton W. Bartlett, a nephew of Walter C. Bartlett, was personally served. Peyton had no interest in the Bartlett Trust. The Bartlett Trust was neither named as a party defendant in the foreclosure action, nor served by publication or otherwise.
Russell W. Willits purchased the undivided one-fourth mineral interest at the tax foreclosure sale on July 1, 1974. The sale was confirmed and on August 21, 1974, a sheriff's deed to Willits was issued and recorded. Willits promptly informed Cities Service Gas Company by letter of his ownership of the mineral interest and forwarded a copy of his sheriff's deed to it.
On August 19, 1974, an employee of Cities Service telephoned the cashier of the First National Bank of St. Joseph...
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