Kager v. Vickery

• Decision Date: 06 January 1900
• Docket Number: 11,439
• Citation: 61 Kan. 342,59 P. 628
• Parties: B. N. KAGER et al. v. IRA M. VICKERY et al
• Court: Kansas Supreme Court

59 P. 628

61 Kan. 342

B. N. KAGER et al. v. IRA M. VICKERY et al

No. 11,439

Supreme Court of Kansas

January 6, 1900

Decided January, 1900.

Error from Cowley district court; W. T. McBRIDE, judge.

Judgment reversed.

Chas L. Brown, for plaintiffs in error.

C. T Atkinson, J. E. Torrence, Madden & Buckman, Jackson &amp Love, and Pollock & Lafferty, for defendants in error.

OPINION

DOSTER, C. J.:

This was an action in ejectment, for partition, and for the rents and profits of the land. Eustace B. Kager was at one time the owner of the tract in dispute. He and his wife, Ada L. Kager, executed a mortgage on the land to secure the payment of money. They made default in the payment of the debt, and on the 9th day of September, 1878, suit to foreclose the mortgage was brought in the circuit court of the United States for the district of Kansas. On the 23d day of September, 1878, they were both duly served with a subpoena in chancery issued in the case. On January 8, 1879, the defendant Eustace B. Kager died intestate, leaving surviving him his wife, Ada, and two minor children. These two children were the plaintiffs in the action of ejectment in the court below and are the plaintiffs in error in this court. On July 15, 1879, final decree was rendered and entered in the foreclosure action against the defendants, Eustace B. and Ada L. Kager. This decree adjudged the amount due on the mortgage indebtedness and directed a sale of the land to be made to satisfy it.

The sale was made on the 23d of February, 1880, and on the 5th day of April, 1880, the sale was confirmed and a deed executed to the purchaser, one J. B. Watkins. By mesne conveyances the title of Watkins has been transferred to Ira M. Vickery, the defendant in the ejectment suit and the defendant in error here. B. N. Kager and Ada Kager, the children and heirs of Eustace B. Kager, having arrived at majority, instituted an action for the partition of the land and to recover an undivided one-half of it, and for the rents and profits of such portion, on the theory that their ancestor having died before the rendition of the decree of foreclosure such decree was a nullity and could not be made the basis of the sale that was had and the deed that was executed. It is to be assumed that the decree was procured by complainant's counsel and rendered by the court in ignorance of the previous death of the defendant Eustace B. Kager.

Upon the above-recited state of fact these questions arise: Were the foreclosure decree rendered by the circuit court on the 15th day of July, 1879, and the succeeding sale and deed void as to the plaintiffs in error, and subject to the collateral attack made on it, by reason of the death of Eustace B. Kager on the 8th day of January, 1879, after the bringing of suit and service of process upon him? or, Did his death render the proceedings had thereafter voidable only and not subject to collateral attack? The court below ruled that the decree and other proceedings were not void but were voidable only, and therefore could not be collaterally attacked. From this ruling the plaintiffs below have prosecuted error to this court. In our judgment the contention of the plaintiffs in error is sound and must prevail. The foreclosure decree and subsequent proceedings were void and constituted no basis for a claim of title. Upon the precise question involved counsel for plaintiffs in error has not carried his investigation of the authorities along the entire line of decisions applicable thereto, and because thereof we have been compelled to make such independent research as the multiplicity of our labors would allow, and in consequence have rested our judgment largely upon what appears to be the reason and principle of the question and less upon the authority of adjudged cases. We are free to confess that the position of the defendants in error is supported by the greater weight of authorities numerically considered. In the Encyclopedia of Pleading and Practice, volume 11, page 843, it is said:

"As to the validity of a judgment rendered for or against a party after his death the authorities seem to be hopelessly irreconcilable. Thus, according to numerous decisions, such judgments are utterly void and may be collaterally attacked. The decided weight of authority, however, seems to be that if a court of general jurisdiction, or a court which has acquired full jurisdiction over the cause and over the parties, renders a judgment for or against a party after his death, the judgment is not for that reason void. Such a judgment, while erroneous and voidable when properly assailed in a direct proceeding for that purpose, is valid until reversed by some appropriate proceeding, and may not be collaterally attacked."

In Freeman on Judgments, 4th ed., volume 1, section 153, it is said:

"The decisions respecting the effect of judgments for or against persons who were not living at the time of their rendition are conflicting and unreasonable. Some of them apparently affirm that a judgment so rendered is void under all circumstances, and others that it is valid under all circumstances, because its rendition implies that the parties for and against whom it was given were then living, and that to show that either was then dead is to dispute the verity of the record, and therefore not permissible."

In Black on Judgments, volume 1, section 200, it is said:

"The great preponderance of authority is to the effect that, where the court has acquired jurisdiction of the subject-matter and the persons, during the lifetime of a party, a judgment rendered against him after his death is, although erroneous and liable to be set aside, not void nor open to collateral attack."

However, in the preceding section (199) the author says:

"At the common law an action was abated by the death of a sole plaintiff or defendant. And in some of the states the doctrine appears to be irrevocably settled that a judgment against a person who was dead at the time of its rendition is absolutely null and void."

In Life Association of America v. Fassett, 102 Ill. 315, the court says:

"Much of the confusion and uncertainty which prevail in the authorities on this subject is attributable doubtless, to the fact that courts, in jurisdictions where the common-law system obtains, in attempting to follow the adjudications of other courts have failed to distinguish the cases resting on purely common-law grounds from those resting, in whole or in part, upon statutes modifying the common law. A careful examination of the authorities clearly shows that a judgment by the common law, in the absence of any statutory provisions on the subject, against a dead person, either natural or artificial, is absolutely void, and the fact that service may have been obtained, or the suit commenced, before the death of the party, makes no difference in this respect; and this was unquestionably the rule from the earliest period of the common law down to the seventeenth year of the reign of Charles II, when the British parliament passed the first act somewhat modifying the common law on the subject. Randel Case, 2 Mod. 308; 1 Salk. 8; 2 Sandf. 72, note m. The rule of the civil law was the same. 7 Rob. Practice, 157.

"By statute (17 Car. 2, ch. 8, sec. 1) it was enacted, in substance, that the death of neither plaintiff nor defendant, between verdict and judgment, should be assigned for error, provided the judgment should be entered up within two terms after such verdict. The courts of Westminster, in giving a construction to this act, held that where a party -- and there was no difference between plaintiff and defendant in this respect -- died in term time, though before verdict, the cause might nevertheless proceed to trial and judgment, upon the theory the entire term was in contemplation but one day. (2 Sandf. 72, note m.) The judgments in these cases were entered in precisely the same manner as if the death of the party had not occurred, and the statute applied as well where the right of action did not survive to or against the legal representatives of the deceased party, as where it did. Ibid.

"The next legislation on the subject was the statute of 8 and 9 W. 3. Section 6, chapter 11, of that act, provided, in substance, that in all actions to be commenced in any court...