Payne v. Anderson

• Decision Date: 05 December 1907
• Docket Number: 14,996
• Citation: 114 N.W. 148,80 Neb. 216
• Parties: CHARLES T. PAYNE, APPELLANT, v. PETER ANDERSON ET AL., APPELLEES
• Court: Nebraska Supreme Court

114 N.W. 148

80 Neb. 216

CHARLES T. PAYNE, APPELLANT, v. PETER ANDERSON ET AL., APPELLEES

No. 14,996

Supreme Court of Nebraska

December 5, 1907

APPEAL from the district court for Dawes county: WILLIAM H WESTOVER, JUDGE. Reversed.

REVERSED.

A. E Howard, E. M. Slattery, James E. Philpott and Berge, Morning & Ledwith, for appellant.

A. W Crites, contra.

DUFFIE, C. EPPERSON and GOOD, CC., concur.

OPINION

DUFFIE, C. J.

May 27, 1905, the plaintiff filed his petition in the district court for Dawes county, Nebraska, asking that his title to the northwest quarter of section 34, township 29, of range 9 west of the sixth P. M., be quieted. The petition alleges that he became the owner in fee of said land by purchase from the owner, John Strang, in 1893, and that his deed therefor was recorded in the office of the register of deeds January 4, 1894; that at the date of his said purchase, and ever since, he was an actual resident of the city of Lincoln, Lancaster county, Nebraska, where he has continued to reside with his family, and that the defendants had actual knowledge and constructive notice of his said place of residence; that in December, 1899, the defendant, Peter Anderson, began an action in equity in the district court for Dawes county, making the plaintiff a defendant therein, and demanding the foreclosure of certain pretended tax liens on the real estate above described; that, notwithstanding the knowledge and notice of the plaintiff's place of residence, the said Peter Anderson, plaintiff in said action, proceeded to obtain service upon the plaintiff by publication, but it is alleged that no proper or lawful affidavit of nonresidence of the plaintiff was ever filed in that action; that a decree of foreclosure was entered in said action, and the land thereafter sold by the sheriff of Dawes county; that Peter Anderson became the purchaser, and thereafter, and on August 13, 1900, a sheriff's deed to said Anderson was placed of record in the recorder's office of Dawes county, the deed bearing date July 17, 1900. It is further alleged that during the pendency of said action plaintiff had no notice or knowledge of the same, either actual or constructive; that he never made any appearance therein; that he was never served with process; that the court never obtained jurisdiction over him or his said property, and that the proceedings, including the decree, sale, and sheriff's deed, are absolutely void; that such proceedings and deed constitute a cloud upon plaintiff's title, which makes it impossible for him to sell his land or borrow money thereon. It is further stated that the defendant, Peter Anderson, conveyed the land to the defendant, Mary Anderson, and that the deed of conveyance was recorded October 19, 1904; that the consideration named in the deed is $ 1; that Mary Anderson is the mother of Peter Anderson, and that she took said conveyance with full knowledge and notice of all the foregoing facts; that no consideration was in fact paid for said deed, and that it still further clouds and impedes plaintiff's title. The relief prayed is that title to the land be forever settled and quieted in the plaintiff; that all proceedings had in the former case be set aside as void, and that the defendants be enjoined from asserting or claiming any right, title or interest in the premises; (2) that, if the court should find that the defendants, or either of them, are entitled to any claim or demand in, to or on said premises because of any tax liens, an accounting be had of the amount; that plaintiff be permitted to pay the same upon terms to be fixed by the court; and for such other, further or different relief as may be just and equitable. The defendants filed separate demurrers to this petition, alleging, first, that the petition failed to state facts sufficient to constitute a cause of action in favor of the plaintiff; and, second, the petition failed to state facts sufficient to entitle the plaintiff to any relief against defendant. The court entered an order sustaining these demurrers, and, the plaintiff electing to stand upon his petition, judgment was entered against him dismissing the petition and taxing him with the costs. From this judgment the present appeal was taken.

The demurrer admits all material facts alleged in the petition. These material facts are the following: At the date of Anderson's action to foreclose a tax lien against the land, the plaintiff was the legal owner thereof and a necessary party defendant to said action; second, he was an actual resident of Lancaster county, Nebraska, residing with his family in the city of Lincoln, where actual personal service of summons could be had on him; third, Anderson had both actual and constructive notice of his said residence; fourth, notwithstanding these facts, he proceeded to obtain service of summons by publication, and perpetrated a fraud both upon the court and upon the defendant by taking judgment in the action, knowing that the service required by statute had not been had upon the plaintiff, defendant in said action; that he procured a sale of plaintiff's land under said judgment, became the purchaser thereof, and has since transferred it to his mother, without consideration and with knowledge on her part of the facts above stated.

In Eayrs v. Nason, 54 Neb. 143, 74 N.W. 408, it was held that a decree foreclosing a mortgage was absolutely void as against the owner of the fee--a resident of the state--where the only service was by publication. In that case, as in this, the action was to redeem from the illegal sale and deed, and it was said that, even though the record in which a judgment is pronounced shows upon its face that the court had jurisdiction both of the subject matter of the suit and of the parties thereto, a party made liable by such judgment, who had never appeared in the action and who never had legal notice of its pendency, might, in a proper proceeding, either as a cause of action or as a defense, show that the recitals of the record that he was served with process of the court were false. It is true, as urged by the defendants, that the rule in some jurisdictions is that a judgment entered against a resident of the state on service by publication is valid where the plaintiff making the affidavit for such service was honestly mistaken as to defendant's nonresidence. Such is the case of Davis v. Vinson Land Co., 76 Kan. 27, 90 P. 766. The court in its opinion refers to German Nat. Bank v. Kautter 55 Neb. 103, 75 N.W. 566, which follows the rule in Eayrs v. Nason, supra, and approves the holding in that case under the facts disclosed in the record, while it disapproves the holding that an affidavit for publication on the ground of the nonresidence of the defendant, although made in good faith, did not confer jurisdiction on the court. We quote from the opinion: "In support of their contention the plaintiffs in error cite the case of German Nat. Bank. v. Kautter, 55 Neb. 103. In that case, however, the court found the action of the plaintiff in obtaining service and judgment to be...