The Board of County Commissioners of Montgomery County v. Benefiel

• Decision Date: 08 December 1923
• Docket Number: 24,752
• Citation: 114 Kan. 819,221 P. 276
• Parties: THE BOARD OF COUNTY COMMISSIONERS OF MONTGOMERY COUNTY, Appellee, v. (F. M. BENEFIEL, ARRA BALLARD, et al., Appellees), C. M. WILMOT, Appellant
• Court: Kansas Supreme Court

221 P. 276

114 Kan. 819

THE BOARD OF COUNTY COMMISSIONERS OF MONTGOMERY COUNTY, Appellee, v. (F. M. BENEFIEL, ARRA BALLARD, et al., Appellees), C. M. WILMOT, Appellant

No. 24,752

Supreme Court of Kansas

December 8, 1923

Decided July, 1923.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

TAX LIEN--Foreclosure--Redemption before Date of Sheriff Sale--Sheriff's Deed Voidable. In a suit by a county to foreclose a tax lien upon real property owned by a minor where an offer to redeem was made to the clerk of the district court and at his direction the payment was made to the county treasurer and the property redeemed from the tax sale, before the sale of the property by the sheriff in the foreclosure suit, held, that the sale by the sheriff and the sheriff's deed issued thereon are voidable and should be set aside upon timely application.

W. R. Hobbs, and S. H. Piper, both of Independence, for the appellant.

M. D. L. Cox, and Charles D. Ise, both of Coffeyville, for appellee Arra Ballard.

OPINION

HARVEY, J.:

This is an appeal from an order setting aside a judgment and a sheriff's deed based thereon in a suit brought by the county to foreclose a tax lien.

Briefly, the facts are: In April, 1921, the county attorney filed suit under sections 11476-11482 of the General Statutes of 1915 to foreclose the tax lien upon lot 6, block 14, city of Coffeyville (and other lots), which had been sold September 4, 1917, for the taxes of 1916, and alleged that the property was owned by Arra Ballard. A summons was issued and returned by the sheriff with the indorsement, "the within named Arra Ballard not found in Montgomery county, Kansas." The county attorney then filed an affidavit for publication summons in which it was stated "that the defendant, Arra Ballard, is a nonresident of the state of Kansas and that plaintiff is, with due diligence, unable to make personal service of summons upon her in said state." On this affidavit summons by publication was had. On June 14, 1921, the summons upon Arra Ballard by publication was approved and a decree rendered by which the court found the amount of taxes, interest and penalties on lot 6, block 14, Coffeyville, to be $ 37.32; that the property should be assessed $ 4 as its proportionate share of the costs of the action; that the taxes and costs were a first lien upon the property, and ordered it sold. On June 20 an order of sale was issued which was returned August 18, showing that lot 6 in block 14, in Coffeyville was not sold. On October 21 an alias order of sale was issued, publication made thereunder for the sale on November 28, and on that date it was sold to C. M. Wilmot for $ 12. On November 30 the sale was confirmed by the court and the sheriff was ordered to execute a deed to the purchaser, which deed was executed and recorded November 30, 1921.

On November 8, 1921, Mary Ballard, the mother of Arra Ballard, paid for her to the county treasurer $ 27.83 and obtained a redemption certificate, redeeming the property from the tax sale of 1917.

On September 20, 1922, Arra Ballard, a minor, by her next friend, filed her application under section 83 of the code to set aside the judgment and set out that she was a resident of Montgomery county at all the times mentioned and that she had no knowledge of the pending suit; that she was a minor, then seventeen years of age; that through her mother she redeemed the property on November 8, 1921, from the tax sale of 1917 and that she had been in continuous possession of the property for many years, and offered to pay the court costs if the court required her to do so, and with the application filed an answer that she was the owner in fee of the property; that all the taxes due on the property at the time of the filing of the action had been paid. This application was resisted and the answer demurred to by C. M. Wilmot. The demurrer was overruled. Wilmot then filed an answer reciting the proceedings in the foreclosure action; averred that he purchased the property at the sheriff's sale in good faith and paid the purchase price in full reliance upon the judgment of the court, and set out a copy of his deed.

Upon the trial of the issues thus joined between Arra Ballard, the owner of the property, and C. M. Wilmot, the purchaser at the sheriff's sale, all the records pertaining to the matter were considered in evidence and it was shown that Arra Ballard was a minor; that she lived in a residence upon lot 6, block 14, in Coffeyville, the title to which was in her name, and had resided there continuously with her mother since she was about three years of age. Concerning the redeeming of the property the evidence showed that Mary Ballard, acting for her daughter, went to the clerk of the court's office on November 8, 1921, and asked if that was the sheriff's office. She was told it was not, and as she tells it, "He (the clerk) said, 'What do you want with the sheriff?' . . . I said, 'They claim my place sold at sheriff's sale,' and said, 'I want to see about it.' He said, 'All right.' And he goes back in the next room right next to it and reaches up on a kind of a wardrobe like and pulls out some yellow papers and looks all over them papers and says, 'Oh, I see.' And put them papers back up on this wardrobe like. Must have been a book case. And he said, 'Come on, I'll go down stairs. I'll show you where to pay this.' And we come right on down the same stairs" and to the treasurer's office where she paid the amount of the taxes for the tax sale of 1917 with interest, penalties and costs, amounting to $ 27.83 and was given a redemption certificate. She further testified that she did not know the amount of the taxes and gave the treasurer a $ 50 bill and told him she wanted to pay all the taxes. He gave her back the change and this receipt and told her that the taxes were paid in full.

Upon this evidence the court set aside the sheriff's sale of November 28; also set aside the deed to the purchaser at that sale and he has appealed.

Appellant contends, first, that the evidence does not show a redemption as provided by law, and second, that in any event the court should not have set aside the sheriff's deed for the reason that the purchase had been made upon the faith of the judgment and decree of the court and that the deed had been of record more than six months at the time the application to open the judgment was filed.

As to the first question, in the foreclosure of a tax lien by the county, the owner of the property may redeem at any time before the day of sale by paying to the clerk of the court or to the sheriff holding the order of sale the amount of the tax lien as found by the court, with interest and costs (Gen Stat. 1915, § 11478), and the clerk of the court then pays the tax money to the county treasurer. Here the plaintiff's representative went to the clerk of the court, asked for the sheriff, the clerk looked through his papers until he understood, evidently, what should be done, then instead of directing her to the sheriff or receiving the money himself, he told her he would show her where to pay that and took her to the county treasurer's office, where she did pay the tax with interest, penalties and costs upon which the tax lien...