Holden v. Byrd
| Decision Date | 08 November 1969 |
| Docket Number | No. 45430,45430 |
| Citation | 204 Kan. 113,460 P.2d 559 |
| Parties | Tom HOLDEN, Appellee, v. Clyde O. BYRD, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in an action to quiet title to certain personal property previously sold by the sheriff upon execution issued by the clerk of the district court upon judgments for unpaid personal property taxes certified to the clerk by the county treasurer, all as provided by K.S.A. 79-2101, is examined, and, as more fully set forth in the opinion, it is held the district court erred in rendering judgment in favor of the appellee and against the appellant.
William Wagner, waKeeney, argued the cause, and Ernest J. Deines, WaKeeney, was with him on the brief for appellant.
W. R. Hainline, WaKeeney, argued the cause and was on the brief for appellee.
This appeal involves proceedings in the nature of an action to quiet title to certain personal property, a building and equipment, located on leased premises on the Union Pacific Railroad right of way. The action collaterally attacks a sheriff's sale of the property to satisfy personal property tax judgments against the appellee, Tom Holden, in the district court of Trego County, Kansas.
The facts are not in dispute. The appellee owned a lease on a portion of the Union Pacific Railroad right of way approximately 500 feet west of the city of WaKeeney. A building had been constructed on the site and equipped for processing mud for use in the drilling of oil wells. The business was owned by the appellee and operated under the firm name of Lubri-Gel Products or Lubri-Gel Company, and was unincorporated. The property was duly assessed each year by the taxing authorities of Trego County. The taxes for the years 1961 through 1965 were unpaid and personal property tax warrants were issued to the sheriff, and returned 'not collected.' Thereafter, for each of those years the county treasurer filed with the clerk of the district court an abstract of the total amount of unpaid taxes and interest due, plus penalties and costs, accompanied by the tax warrant, and the clerk entered such total amount on his judgment docket against Lubri-Gel Company or Lubri-Gel Products as the name appeared on the warrant, which total amount became a judgment in the same manner and to the same extent as any other judgment. (K.S.A. 79-2101.)
On January 2o, 1967, the Board of County Commissioners directed the clerk of the district court to issue execution to the sheriff of Trego County on the several personal property tax judgments. One execution was issued and docketed in the district court as case No. 4631, which recited a total judgment in favor of the Board of County Commissioners and against Lubri-Gel Company for $2,479.24, with interest at ten percent per annum, and $8.75 costs of which $2,487.99 remained unpaid. A copy of the execution was served upon the appellee by the sheriff on January 26, 1967, and he was told that if the amount of taxes due was not paid he, the sheriff, would levy on the appellee's building and equipment located west of WaKeeney and it would be advertised and On February 16, 23, and March 2, 1967, the sheriff duly published a notice of sale of the property in question in The Western Kansas World of WaKeeney, as follows:
sold to pay the judgment. Thereafter, the sheriff duly levied on the property in question. On February 7, 1967, the sheriff filed an appraisal which recited that he and two householders appraised the 'buildings and equipment of Lubri-Gel Corporation of WaKeeney, Kansas,' at $3,500. (Emphasis supplied.)
'In the District Court of Trego County, Kansas, ss:
'Board of County Commissioners of Trego County
'vs
'Lubr-Gel Corporation.
'Notice is hereby given that under and by virtue of an execution issued by the Clerk of the District Court in and for said county of Trego, in a certain action in said court numbered 4631, wherein the parties above named were respectively plaintiff and defendant, and to me the undersigned Sheriff of said county directed, I will offer for sale and sell at public auction, and sell to the highest bidder for cash in hand, at the west front door of the court house in the city of WaKeeney, in said County, on the 3rd day of March, 1967, at 2 o'clock P.M. of said day, the following described personal property, to-wit:
'All buildings and equipment located on the Union Pacific Railroad right-of-way owned by Lubri-Gel Corporation and located approximately Five Hundred (500) feet west of the west city limits of WaKeeney.
Trego County Sheriff.'
(Emphasis supplied.)
The property was sold on March 3, 1967, as advertised in the notice of sale. In response to the notice, some fifteen to twenty-five people attended the sale and there was competitive bidding up until the final bid. The sheriff returned the execution to the clerk of the district court, which showed it was received by him on January, 25, 1967; that he levied on the property in question and advertised the same for sale and sold the goods and chattels at the price set opposite the same respectively:
'Lubri-Gel Building and Equipment, less 2-50 h. p. electric motors and hook-up disconnects owned by Central Kansas Power, and 1 west sliding door and track owned by Ray Stithem, sold to Clyde O. Byrd $2600.00.'
On March 8, 1967, in response to a motion to confirm the sale, the district court entered an order in which it found that the,
'* * * personal property listed in said notice was purchased by Clyde O. Byrd for the sum of $2,600.00, and that said sale, and all notice thereof, was had as provided by law and that said sale of personal property should be, and it is confirmed by the court and the sheriff of Trego County, Kansas, is authorized and directed to place Clyde O. Byrd, the purchaser of said property, in possession thereof.' (Emphasis supplied.)
The record shows the appellee had money to pay the personal property tax judgments and that he conferred with the county attorney and the Board of County Commissioners after the issuance of the execution in an effort to have the commissioners 'knock off' or 'forgive' the interest due on said judgments. He was advised the property had been levied upon and was advertised for sale on March 3, 1967.
On May 1, 1967, and after the time to perfect an appeal or institute other proceedings in case No. 4631, the appellee filed his petition in the present action to quiet title to the property previously sold to the appellant, Clyde O. Byrd. All proceedings had in case No. 4631 were attached to and made a part of his petition.
The appellant's motion for summary judgment was considered by the district court and overruled. The district court concluded the execution was properly issued against Lubri-Gel Company but that the notice of sale referred to property of Lubri-Gel Corporation and that matters raised in the appellee's action were not res judicata by reason of the tax sale.
Thereafter, the appellant filed his answer to the appellee's petition, and alleged ownership of the building and equipment by virtue of the sheriff's sale and his possession of the property; that all matters...
To continue reading
Request your trial