Pierce v. Board of County Com'rs of Leavenworth County, 44848

• Decision Date: 09 December 1967
• Docket Number: No. 44848,44848
• Citation: 200 Kan. 74,434 P.2d 858
• Parties: Ciaire M. PIERCE and Hazel F. Pierce, Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF LEAVENWORTH COUNTY, Kansas, Defendant, and Dean R. Davis, Appellant.
• Court: Kansas Supreme Court

Page 858

434 P.2d 858

200 Kan. 74

Ciaire M. PIERCE and Hazel F. Pierce, Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF LEAVENWORTH COUNTY Kansas, Defendant and Dean R. Davis, Appellant.

No. 44848.

Supreme Court of Kansas.

Dec. 9, 1967.

Syllabus by the Court

1. K.S.A. (formerly G.S.1949) 79-2801 et seq. provides a full, complete and comprehensive procedure for the foreclosure of tax liens and the sale of real estate thereunder, including the institution of actions or proceedings to open, vacate or set aside any judgment entered, or any sale made under, the provisions of that act.

2. Under the provisions of K.S.A. (formerly G.S.1949) 79-2804b, an action to set aside or vacate a sale made pursuant to a judgment entered in a tax foreclosure action must be commenced within 12 months from date of confirmation.

3. As a general rule, a reviewing court will consider only those issues on which the parties have relied in trying their case, but exceptions exist where the newly asserted issue involves only a legal question arising on proved or admitted facts which will be finally determinative of the case, or where consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights.

4. The judgment of a trial court is to be upheld, if it is correct, even though the court may have relied on a wrong ground or assigned an erroneous reason for its decision.

5. The requirements of due process contemplate that, where feasible, notice of legal proceedings be given by means reasonably calculated to inform all parties having legal rights which might be directly and adversely affected thereby.

6. Where the names and addresses of adverse parties are known or are easily ascertainable, notice of pending proceedings by publication service, alone, is not sufficient to satisfy the requirements of due process under the 14th Amendment to the rederal Constitution or § 2 of the Bill of Rights of the Kansas Constitution.

7. Syllabus 2 and corresponding portions of the opinion in Phillips Petroleum Co. v. Moore, 179 Kan. 482, 297 P.2d 183, are disapproved, as well as certain language in Robertson v. Lemmon, 189 Kan. 619, 371 P.2d 175.

8. There record is examined in an action to set aside a sheriff's deed issued to a purchaser at a tax foreclosure sale and for reasons appearing in the opinion it is held: 1. The action was timely brought under the provisions of G.S.1949 (now K.S.A.) 79-2804b. 2. The procedural provisions of G.S.1949, 60-2530 have no application to this case. 3. Equitable powers were mistakenly exercised. 4. Proceedings had in a tax foreclosure action resulted in plaintiffs being deprived of their property without due process of law.

John H. Fields, Kansas City, argued the cause, and David W. Carson, John K. Dear, Ernest N. Yarnevich, J. W. Mahoney, and Joseph T. Carey, Kansas City, were with him on the brief for the appellant.

John H. Murray and John C. Tillotson, Leavenworth, argued the cause, and were on the brief for the appellees.

FONTRON, Justice.

This is an action to set aside a sheriff's deed issued to Dean R. Davis, herein called Davis or defendant, as the purchaser at a tax foreclosure sale held ursuant to proceedings instituted by the Board of County Commissioners of Leavenworth County. The plaintiff landowners prevailed in the court below and Davis has appealed.

On January 31, 1958, Claire M. Pierce and Hazel F. Pierce, hereafter referred to by name or as plaintiffs, acquired title to forty acres of land in Leavenworth County, from a Mary Perry. Plaintiffs paid some $5500 or $6000 of their own money on the $12,500 purchase price and borrowed the balance from Nellie M. Bonebrake, securing payment of the same by mortgage. In this transaction the Pierces were represented by a real estate agent by the name of Buckles, upon whom they relied, and who represented the seller, as well. Buckles had the abstract to the property brought up to date and delivered the same to Mrs. Bonebrake, the mortgagee, without ever showing it to the Pierces. The abstract disclosed that on January 16, 1958, some fifteen days before plaintiffs received their deed, the last half of the 1957 taxes were due and unpaid. This information was never communicated personally to the Pierces, and Dr. Pierce never saw the abstract until he took it to his present attorney.

In June of 1958, after remodeling the house, the Pierces moved to their Leavenworth County property and have resided there ever since. In August, 1959, having failed to receive the statement for 1958 taxes, Dr. Pierce went to the county treasurer's office where he paid the 1958 tax and interest due thereon, in full. At this time Dr. Pierce asked that future tax statements be mailed to him at Turner, Kansas, where he maintained his office.

Tax statements for the years 1959, 1960 and 1961 were addressed to Dr. Pierce at Turner, were received by him there, and the taxes were paid in full in December of each year. Each tax statement contained a place to be checked if delinquent taxes were due, but no delinquent taxes were indicated on either of the three statements.

In either 1961 or 1962, Dr. Pierce borrowed additional money from Mrs. Bonebrake to pay for some remodeling, and at one time he placed an FHA improvement loan on the place which he later paid off.

In April, 1962, the Board of County Commissioners of Leavenworth County filed a tax foreclosure action in which the Pierces were included as defendants, alleging the last half of the 1957 tax was unpaid on plaintiffs' property and asking that its lien for taxes be foreclosed and the land sold to pay the taxes and interest, which then amounted to $97.29. A summons was issued for the Pierces which was returned by the sheriff on May 3, 1962, as not served for the reason that, after diligent search, he was unable to locate them in Leavenworth County. Thereafter the county attorney filed an affidavit for service for publication averring that plaintiff was unable to obtain personal service of summons upon the Pierces within the state of Kansas. Publication service was thereupon commenced against the Pierces.

Judgment was ultimately taken foreclosing the tax lien against the Pierce property, notice of sale was published as required by law and the property was sold to Davis for the sum of $600. This sale was confirmed on October 25, 1962, a sheriff's deed was issued to Davis, and the deed was recorded November 29, 1962.

On April 27, 1963, Mr. Davis demanded immediate possession of the property from Mrs. Pierce, which was the first either she or her husband knew of the foreclosure proceedings under which their home had been sold. Approximately a month later Mr. Davis returned at night, routed Dr. Pierce out of bed and wanted to know what he was going to do about it.

The present action was filed in June, 1963, naming both Davis and the Board of County Commissioners as defendants and alleging the tax foreclosure proceedings were void on two grounds: first, because no taxes were due and unpaid when the tax foreclosure action was commenced; and second, that in the affidavit for publication service it was knowingly and falsely alleged that personal service could not be had on plaintiffs, when in fact they resided on the premises. The plaintiffs prayed that the sheriff's deed be set aside and that they be given such other relief as was just and equitable.

To this petition the Board filed a general denial, while Davis answered denying the tax foreclosure proceedings were void. Davis further filed a counter claim against the plaintiffs for the rental value of the property after November 29, 1962, and filed a cross claim against the county commissioners for $600 plus interest should sale of the property to him be held invalid.

In this posture the case proceeded to trial to the court, after preliminary motions to dismiss had been overruled. The court again overruled a motion to dismiss after plaintiffs' evidence was introduced, and at the conclusion of the trial filed findings of fact and conclusions of law, and entered judgment setting aside the deed to Davis, on condition that plaintiffs pay all back taxes and interest together with costs chargeable to them in the foreclosure action and the costs of this case. The court also denied Davis's counter claim against the plaintiffs for rent, but entered judgment in his favor on his cross claim against the county for $600 plus 6% interest.

The trial court found, in addition to facts already reflected in this opinion, that plaintiffs were not personally served with summons in the tax foreclosure action and had no actual knowledge that the taxes on the real estate for 1957 had not been paid in full until they learned of the tax foreclosure sale on or about May 1, 1963; that plaintiffs had paid the taxes for the years 1958 to 1962, inclusive, but that the last half of the taxes for 1957 had not been paid; and that plaintiffs stood ready to pay all delinquent taxes with interest.

Four conclusions of law were entered by the court:

'1. This court has jurisdiction of the subject matter and of the parties to this action.

'2. The proceedings in the tax foreclosure suit, Case No. 37871, were regular and valid. The sheriff of Leavenworth County, Kansas, acted in good faith in attempting to serve the defendants in said action with a copy of the summons, and the county attorney of said county acted in good faith in filing the affidavit for publication service in said action.

'3. The plaintiffs have properly availed themselves of the benefits of K.S.A. 79-2804(b).

'4. The factual situation in this case is such as to require this court to exercise its judicial discretion and its equity powers and to give the plaintiffs an opportunity to save their home.'

None of the trial court's findings of fact are questioned by Mr. Davis in this appeal but the third and fourth conclusions of law are challenged.

The challenge to conclusion of law No. 3 is predicated...