Harris v. Claflin

• Decision Date: 06 May 1887
• Citation: 13 P. 830,36 Kan. 543
• Parties: T. A. HARRIS v. WM. CLAFLIN
• Court: Kansas Supreme Court

13 P. 830

36 Kan. 543

T. A. HARRIS v. WM. CLAFLIN

Supreme Court of Kansas

May 6, 1887

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error from Shawnee Superior Court.

ON November 15, 1884, T. A. Harris commenced an action in the district court of Shawnee county in the nature of ejectment, against Wm. Claflin, for the possession of the east half of the southeast quarter, section 28, township 12, range 14, in Shawnee county, excepting therefrom one acre occupied by School District No. 31. On March 18, 1885, the case was transferred by the district court of Shawnee county to the superior court of that county. Trial had May 18, 1885. Judgment rendered September 5, 1885, for defendant. The court made and filed the following conclusions of fact:

"1. On the 25th day of July, 1859, Lee M. Clark was the owner in fee of the land in controversy in this suit, viz.: The east half of the southeast quarter of section twenty-eight, town twelve, range fourteen east, in the county of Shawnee; and on said day said Clark made, executed and delivered to John W. Brown a mortgage on said premises, to secure the payment of twenty-five dollars in six months from the date of said mortgage, with interest at the rate of five per cent. per month until paid; and said mortgage was, on the 31st day of August, 1859, duly recorded in the register's office of Shawnee county, in volume 3, on page 47 of the records of deeds.

"2. On the 20th day of May, 1861, John W. Brown assigned and transferred said mortgage to Nathan P. Case, and on the 5th day of June, 1861, Case, as the owner and holder of the mortgage, commenced a suit against Clark in the district court of Shawnee county, to foreclose said mortgage.

"3. At the time of the commencement of said foreclosure suit, Lee M. Clark was, and for several years thereafter he continued to be, a non-resident of the state of Kansas.

"4. Process of summons was duly issued from said court against Lee M. Clark on the 5th day of June, 1861, directed to the sheriff of Shawnee county to execute, returnable according to law, and it appears by the return of the sheriff on said summons that Lee M. Clark could not be found in said county.

"5. On the 5th day of June, 1861, an affidavit was made and filed in said suit, in the words and figures following:

"'THE STATE OF KANSAS, COUNTY OF SHAWNEE, SS. -- In the Third Judicial District, Shawnee County, Kan., October Term, 1861. -- Nathan P. Case, Plaintiff, v. Lee M. Clark, Defendant.-- Affidavit for Publication.--A. H. Case, being first duly sworn, doth depose and say that he is the attorney for the plaintiff in this suit, and that Lee M. Clark, defendant in the above-entitled cause, is a non-resident of this state, and when last heard from by this defendant, resided in the state of Illinois, and that to the best of his knowledge and belief, personal service of a summons cannot be made upon defendant in this state. And further saith not.

A. H. CASE.

"'Sworn to and subscribed before me, this 5th day of June, 1861.

JAMES FLETCHER, Clerk.

By H. MCARTHUR, D. C.'

"No other affidavit for publication of notice to defendant in said cause was produced in the trial.

"6. On the 14th day of October, 1861, there was filed in said cause an affidavit of publication, with a printed notice attached thereto; which affidavit and printed notice are in the words and figures following:

"'THE STATE OF KANSAS, SHAWNEE COUNTY, SS.--N. P. Case v. Lee M. Clark.--E. G. Ross, being first duly sworn, doth depose and say: That the annexed notice was published in the State Record, in the city of Topeka, Shawnee county, Kansas, a newspaper of general circulation in said county, for seven weeks, as follows, to wit, the first insertion being made on the 7th day of June, 1861; the second, on the 14th day of June, 1861; the third, on the 21st day of June, 1861; the fourth, on the 28th day of June, 1861; the fifth, on the day of July, 1861; the sixth, on the day of July, 1861; the seventh, on the day of July, 1861. And further saith not.

E. G. Ross.

"'Sworn and subscribed before me, this 8th day of October, 1861, as witness my hand and seal of office.

A. H. CASE,

"'[Seal.]

Notary Public.

"'NOTICE.--Lee M. Clark, of the state of Illinois, will take notice, that Nathan P. Case, of the state of Kansas, did, on the 5th day of June, 1861, file his petition in the district court, sitting in and for the county of Shawnee, in the third judicial district in the state of Kansas, against the said Lee M. Clark, defendant, setting forth that the said Lee M. Clark gave a mortgage to one John W. Brown on the east half of the southeast quarter of section twenty-eight, township twelve, and range fourteen east, to secure the payment of twenty-five dollars, according to the tenor and effect of said mortgage, and praying that said Lee M. Clark may pay said sum of money now claimed to be due, with interest thereon from the 25th day of July, 1859, at the rate of five per cent. per month, or that the said premises may be sold to pay the same; which said mortgage was duly assigned and delivered to the said plaintiff by the said Brown, on the 20th day of May, 1861; and the said Lee M. Clark is notified that he is required to appear and answer said petition within twenty days after the 22d day of July, 1861, or judgment will be entered against him by default.

"'TOPEKA, June 5, 1861.

NATHAN P. CASE.

By his attorney, A. H. CASE.

"'Attest: JAMES FLETCHER, Clerk.

By H. MCARTHUR, D. C.'

"7. No other service of process than as above set forth was had upon defendant Lee M. Clark, in said foreclosure suit, and he did not enter his appearance in said suit, nor anyone for him.

"8. On the 5th day of June, 1861, a petition was filed in said cause by plaintiff, Nathan P. Case, showing on its face a cause of action in favor of him, the said Nathan P. Case against Lee M. Clark, for the foreclosure of said mortgage.

"9. On the 14th day of October, 1861, a judgment or decree was entered by the court in said cause, in the words and figures following:

"NATHAN P. CASE v. LEE M. CLARK.--And now comes the said Nathan P. Case, by A. H. Case his attorney; and the said Lee M. Clark still failing to demur or answer to the said petition, it is considered that the plaintiff ought to recover the amount due him by reason of the premises, and the court with the consent of the plaintiff finds that there is due from the defendant to the plaintiff on the mortgage set forth in said petition the sum of $ 63.84. It is therefore considered by the court here that the plaintiff recover of the defendant the sum of $ 63.84, the sum so found due as aforesaid, as also his costs, taxed at $______. And it is considered and adjudged that in case the defendant fails for ninety days from the closing of this term of court to pay the plaintiff the sum of $ 63.84, so as aforesaid found due, with costs of suit, that an order issue to the sheriff of said county, commanding him to cause the said lands and tenements in the petition described, to wit, the east half of the southeast quarter of section twenty-eight, township twelve, range fourteen east, in the state of Kansas, to be appraised, advertised and sold according to law, and apply the proceeds of said sale in satisfaction of said judgment as aforesaid rendered. And it is further ordered and adjudged, that the defendant be and he is hereby forever barred of all rights of equity of redemption in and to said mortgaged premises.'

"10. In pursuance of said decree, an order of sale was issued for the sale of said land, and the same was appraised and advertised, and on the 22d day of May, 1862, sold at public sale by the sheriff of said county, to Nathan P. Case and A. H. Case, for the sum of $ 84, and on the 29th day of May, 1862, said sale was confirmed by the order and judgment of said court, and the sheriff was ordered to make and execute a deed of said land to purchasers, Nathan P. Case and A. H. Case.

"11. In pursuance of the order and judgment of said court, the sheriff did, on the 18th day of June, 1862, make, execute and deliver a sheriff's deed of said land to Nathan P. Case and A. H. Case, which deed was afterward, on the 20th day of June, 1862, recorded in the office of the register of deeds of said county, in vol. 6, on page 483 of the records of deeds, and said deed was in due form of law.

"12. At the time of said sheriff's sale, in 1862, said land was vacant and unimproved, and not in fact worth any more in cash than the amount at which it was appraised prior to said sale, to wit, $ 125.

"13. At the time of the commencement of this present suit in 1884, said land was worth $ 10 per acre.

"14. On the 26th day of February, 1863, Nathan P. Case and his wife executed and delivered to the defendant William Claflin a warranty deed of the undivided one-half of said land, which deed was on the day it bears date filed for record and recorded in vol. 7, on page 171, in the register's office of Shawnee county.

"15. On the 26th day of February, 1863, A. H. Case and wife made, executed and delivered to the defendant William Claflin a warranty deed of the undivided one-half of said land, which deed was filed for record on the day it bears date, and recorded in vol. 7, on page 168, in the register's office of said county.

"16. The defendant, William Claflin, under claim of ownership by purchase as aforesaid, in good faith paid all the taxes on said land each year from 1866 to 1883, both inclusive. Lee M. Clark paid all the taxes assessed on said land prior to and including those assessed for the year 1865.

"17 D. S. Skinner, a resident of Topeka, Kansas, acted as the agent of William Claflin in the payment of said taxes, and on one occasion...