Hamilton v. Wilson

• Decision Date: 10 February 1900
• Docket Number: 11,608
• Citation: 61 Kan. 511,59 P. 1069
• Court: Kansas Supreme Court
• Parties: GEORGE A. HAMILTON v. J. M. WILSON, as Clerk, &c

59 P. 1069

61 Kan. 511

GEORGE A. HAMILTON v. J. M. WILSON, as Clerk, &c

No. 11,608

Supreme Court of Kansas

February 10, 1900

Decided January, 1900.

Original proceeding in mandamus. Writ allowed.

STATEMENT.

THE facts in this case have been agreed to by the parties in writing, and are as follows:

"That the said George A. Hamilton, plaintiff, is now and has been a resident of the state of Iowa, and has never been a resident of the state of Kansas; that on or about the 27th day of November, 1889, the said George A. Hamilton recovered a judgment on a certain note and mortgage held by said Hamilton and which had been sent to Ellsworth, Kansas, for collection in the district court of Ellsworth county, Kansas, against one Thomas N. Rankin for the sum of $ 2,484.10, which said sum drew interest from the date of said judgment at the rate of seven per cent. per annum, and for the foreclosure of a mortgage on certain real estate in Ellsworth county, Kansas that in May, 1890, the said real estate was duly sold under foreclosure proceedings and the proceeds of the sale were applied to the payment of the judgment debt, leaving a balance due of $ 563.23; that on the 28th day of July, 1891 the clerk of the district court of Ellsworth county, Kansas, duly issued an execution to the sheriff of Ellsworth county, Kansas, for the purpose of collecting the balance due on the said judgment, and said execution was directed to the said sheriff to collect such balance out of the goods and chattels, and for want of same, out of the real estate of the said Thomas N. Rankin; that said execution was duly received by the said sheriff and was by him on the 8th day of August, 1891, returned unsatisfied, having indorsed thereon a return that he could find no property of the said defendant; that thereafter, and on the 14th day of January, 1895, an execution was duly issued by the clerk of said district court of said Ellsworth county, and directed to the sheriff of said county, on said judgment, and directing the said sheriff to collect from the said Thomas N. Rankin the amount then due on the said judgment, which execution was returned by J. H. Hutchins, the then sheriff of said county, on the 14th day of March, 1895, with an indorsement thereon that he could find no goods and chattels and real estate of the said Thomas N. Rankin in said county; that thereafter, pursuant to the provisions of chapter 243 of the Session Laws of 1897 of the state of Kansas, relating to the taxation of judgments, the said judgment hereinbefore referred to, and being then of record in the district court of Ellsworth county, Kansas, was duly listed for taxation and taxed in accordance with the provisions of the said act; and that there was a default in the payment of the said tax levied upon the said judgment, and said judgment was duly advertised for sale in manner and form as required by the provisions of said act, and was, according to the provisions of said act, duly sold to the highest and best bidder, and in the manner and form as required by the provisions of the said act of the legislature; and that at the said sale the said judgment was purchased by the said Thomas N. Rankin for the sum of $ 13.80, that sum being the full amount of all taxes and charges assessed and levied on and against said judgment; that thereafter a certificate, showing the tax sale of the said judgment, was duly issued as required by the said act of the legislature to the said Thomas N. Rankin, as the purchaser of the said judgment at the said sale; that thereafter, and on the 16th day of March, 1899, the said Thomas N. Rankin as the owner of the said judgment by virtue of the said tax-sale proceedings hereinbefore recited, duly entered upon the records of the district court of Ellsworth county, Kansas, a release and discharge of the said judgment, and at the same time filed and left with the clerk of the said court the certificate before that time received by him, showing that he had purchased the said judgment at said tax sale, which said certificate was then and there by the said clerk of the said district court filed as a part of the records of the office of the said clerk of the said district court, and still remains a part thereof; that the said Thomas N. Rankin does not own nor claim any ownership in said judgment or any right to release the same of record except such ownership or right as he may have acquired by reason of the tax proceedings herein set forth.

"It is further admitted by the parties hereto for the purposes of this action that all of the proceedings had in reference to the listing, taxation, advertising and sale of the said judgment, and the purchasing of same, were strictly in accordance with the provisions of the said act of the legislature hereinbefore referred to, and being chapter 243 of the Laws of 1897 of the state of Kansas.

"It is further expressly stipulated and agreed that in the event that the said proceedings as hereinbefore recited do not in law operate as a release and discharge of the said judgment, said judgment has not otherwise been paid, released or satisfied by the said Thomas N. Rankin or said plaintiff, or by any one for or on his behalf and account.

"It is further agreed by the parties hereto that the said George A. Hamilton had no actual knowledge of any of the tax proceedings herein recited in relation to said judgment until after the said Thomas N. Rankin had released the judgment of record as herein stated under his claim of right to do under his said tax proceedings.

"It is further stipulated that on the 16th day of September,...