Morris v. Winderlin

• Decision Date: 07 July 1914
• Docket Number: 18,957
• Citation: 142 P. 944,92 Kan. 935
• Parties: FRED L. MORRIS, Appellant, v. JAMES A. WINDERLIN, Appellee
• Court: Kansas Supreme Court

142 P. 944

92 Kan. 935

FRED L. MORRIS, Appellant, v. JAMES A. WINDERLIN, Appellee

No. 18,957

Supreme Court of Kansas

July 7, 1914

Decided July, 1914.

Appeal from Haskell district court; GEORGE J. DOWNER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. QUIETING TITLE--Defect of Parties--Void Judgment--Judgment Set Aside--Rights of Innocent Purchaser. A judgment was rendered upon publication service, quieting title against the two owners of a tract of land. One of these owners was dead when the action was commenced. Applications were made by the living owner, and trustees under the will of the deceased owner, to open the judgment and be let in to defend, which applications were sustained. On the trial each of these owners recovered judgment quieting title to an undivided one-half of the tract and setting aside tax deeds thereon. This action was brought by the grantee of the owners whose title had been quieted. The defendant in this action is an innocent purchaser, holding under a conveyance from the plaintiff in the former action, relying upon the judgment. It is held:

(a) The judgment first rendered in the former action against the deceased owner was void.

(b) The form of the application to set aside a void judgment is not important. Although applying to open the judgment and to be let in to defend, the application of the trustees did not make the void judgment effectual for any purpose.

(c) The defendant in this action is protected in his title purchased in reliance upon the judgment that was afterwards set aside, only so far as the court had jurisdiction to proceed against the living party, but his title is not valid as against the grantees of the trustees under the will of the party who was dead when the action was commenced.

2. JUDGMENT -- Set Aside -- Inures to Benefit of Cotenant. A judgment setting aside tax deeds at the suit of a tenant in common inures to the benefit of a cotenant.

3. FOREIGN WILL--Trustees' Deed--Not Void. A deed made by trustees under a will made in another state and recorded in the probate court of the county in this state where the land is situated is not void merely because the trustees have failed to give the bond required by section 9483 of the General Statutes of 1909.

4. WILL--Trustees--Authority to Sell Property. A will directing trustees to place the property in a fund, the income of which they are required to apply to the support of a charity created by the will, necessarily vests the trustees with authority to sell the property.

Bennett R. Wheeler, and John F. Switzer, both of Topeka, for the appellant.

Walter T. Matson, of Wichita, William Easton Hutchison, and C. E. Vance, both of Garden City, for the appellee.

OPINION

BENSON, J.

This is an action to recover possession of an undivided one-half of a quarter section of land in Haskell county and for partition.

The defendant asserts that he is the owner of the land in fee simple, and denies that the plaintiff has any interest in it.

Both parties allege that Angenette A. Hunt and Ysidora B. Payne became the owners of the land on July 27, 1893, subject only to a tax deed issued June 12, 1902, to Orthy Connet for the delinquent taxes of the years 1893 to 1901, inclusive, recorded June 13, 1902, and a tax deed of an earlier date, referred to as the Eyman deed, issued to C. C. Rush. Miss Hunt died in New York in December, 1891, while a resident of that state, leaving a will, under which her interest in this land became vested in three trustees.

In January, 1903, Orthy Connet commenced an action in the district court of Haskell county against Angenette A. Hunt and Ysidora B. Payne, E. O. Eyman and others to quiet his title to the land in controversy. Service was made by publication and judgment was rendered on March 9, 1903, by default, quieting title as prayed for. Afterwards Connet, by warranty deed, conveyed the land to Elbert H. Rice, who, by warranty deed, conveyed it to John S. Wallace, and John S. Wallace, on September 13, 1905, conveyed it to the defendant, Winderlin, who, relying upon the judgment quieting title, paid $ 600 for the conveyance, which was made by warranty deed. It is conceded that in this situation Winderlin owns one-half the land in fee simple. The title to the other half only is in dispute.

In February, 1906, Ysidora B. Payne applied to the district court under the statute for leave to come in and defend the action of Orthy Connet. On the same day the trustees under the will of Miss Hunt filed their application in the same cause, setting forth the fact that the testator was dead at the time that action was commenced, asking for an order setting aside the judgment that had been rendered against her and for permission to come in and defend. Both applications were sustained, and on May 14, 1907, all the parties appearing, the cause was tried and judgment was rendered declaring that Ysidora B. Payne owned one-half of the land and the trustees under the will of Angenette A. Hunt owned the other half in fee simple, setting aside the Connet tax deed, and also the Eyman tax deed, but adjudging a lien of $ 275 in favor of the holder, who appeared in the action.

In the year 1906 the trustees filed an exemplified copy of the will of Angenette A. Hunt in the probate court of Haskell county, which was admitted to record in that court. On June 17, 1907, the trustees conveyed the land to Fred L. Morris, who afterwards commenced this action. No bond was ever filed, as provided by section 9843 of the General Statutes of 1909, which provides that trustees named in a foreign will may execute the trust upon giving bond to the state, with sureties approved by the court in which the will is recorded.

The defendant invokes the protection afforded to an innocent purchaser who has relied upon a judgment afterwards set aside. (Civ. Code, § 83, former Civ. Code, § 77.) This claim would readily be conceded if Miss Hunt had been living when the Connet action was commenced but being dead, the judgment against her was void. It is contended, however, that although void when rendered, yet when the application was made to open it and to be let in to defend, the question of jurisdiction was...