Horner v. Ellis

• Decision Date: 11 May 1907
• Docket Number: 14,692
• Citation: 75 Kan. 675,90 P. 275
• Parties: A. M. HORNER et al. v. A. W. ELLIS
• Court: Kansas Supreme Court

90 P. 275

75 Kan. 675

A. M. HORNER et al. v. A. W. ELLIS

No. 14,692

Supreme Court of Kansas

May 11, 1907

Decided January, 1907.

Error from Pratt district court; PRESTON B. GILLETT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACTS--Specific Performance--Jurisdiction of Defendant. Prior to the enactment of chapter 384 of the Laws of 1903 a suit for the specific performance of a contract to convey real estate was an action in personam and could be brought only in the county where the defendants or any of them resided, but no jurisdiction of a defendant could be obtained by publication service.

2. EJECTMENT--Issue to be Tried. The issue in an action of ejectment is, Who has the better title? And the title of a tenant in common owning a moiety of the fee is superior to that of one in possession of the land under a voidable tax deed.

3. EJECTMENT Tenant in Common of the Fee--Holder of Voidable Tax Deed. A tenant in common owning a moiety of the fee may in an action of ejectment recover the entire possession of a tract of land from one who holds the same only by virtue of a voidable tax deed, on payment of the lien for taxes.

C. W Fairchild, for plaintiffs in error.

William Barrett, and R. F. Crick, for defendant in error.

OPINION

SMITH, J.:

This action in ejectment was brought in the district court of Pratt county by A. W. Ellis against A. M. Horner and Daisy M. Hutto to recover possession of 160 acres of land in that county. The case was tried by the court, without a jury. Judgment was rendered in favor of the plaintiff, subject to the payment of a tax lien, and the defendants bring the case here for review.

The land in question was patented by the United States to William H. Albright, who, when he was advanced in years and without wife or child, made an agreement with his niece, Emily Irene Knowlton, as she alleged in her suit against his heirs for specific performance of the contract, that if she would go with him to a hospital, where he was going for an operation, and would nurse him and live with and take care of him till he died, he would give her the land in question; that he told her he had already executed and delivered a deed of the land to a man in Pratt county, with instructions to deliver it to her on receipt of information that he was dead. She also alleged that her uncle died without making the transfer, and pleaded fully the execution of the contract on her part. The petition did not disclose whether this contract was oral or in writing, and did not allege that the plaintiff went into possession of the land under the contract or that she made any improvements thereon.

Probably this petition did not state facts sufficient to constitute an equitable cause of action for specific performance of the contract. (Baldwin v. Squier, 31 Kan. 283, 1 P. 591.) But even if it did not it does not follow that the judgment rendered thereon is void or that it is by reason thereof subject to collateral attack. The petition does contain sufficient matter to challenge the attention of the court to its merits, and therefore the judgment is not void. (See Rowe v. Palmer, 29 Kan. 337; Head v. Daniels, 38 Kan. 1, 15 P. 911.)

The service in the Knowlton case was personal upon Mrs. Fowler (one of the heirs) and her husband in Pratt county; and, the other defendants being nonresidents of the state of Kansas, an attempt was made to get service upon them by publication. No one appeared, and judgment was rendered against all the heirs as upon default.

There was no element of trust between Albright and his niece, Knowlton, and under the decision in Close v. Wheaton, 65 Kan. 830, 70 P. 891, the court acquired no jurisdiction of the persons of the defendants, except by personal service. In that case it was said:

"An action to compel the specific performance of an agreement to convey land, if the defendant's obligation is in contract merely, without any element of trust, is an action in personam, and must be brought in the county where the defendant resides, and not of necessity in the county where the land is situated." (See, also, Gen. Stat. 1901, §§ 4476, 4477.)

This was the law of this...