40 Kan. 767 | Kan. | 1889
Opinion by
This was an action commenced in the district court of Marion county, and the material facts are these: On the 22d day of September, 1881, tax deeds were executed and delivered to the defendants in error, for two quarter-sections of land situate in Marion county. On the 28th day of September, 1881, one Laura A. Challen, claiming to be the owner in fee simple of said tracts of land, commenced an action in the district court of that county, against
The pi’incipal contention of counsel for the plaintiff in error is, that the decree in the case of Challen v. Welch and Estep, which was introduced by the defendants in error to show that their tax deeds had been adjudged invalid, was and is a nullity. For this contention two reasons are assigned. The first is, that the action to quiet title was a “strictly personal one,” and the decree intended to operate in personam; and as there was no personal service within the jurisdiction of the court, it is a nullity. The second is, that the pleadings in that action show that the plaintiff therein did not know or allege the nature of the claim of Welch and Estep to the land, and they filed no answer setting up that they claimed by virtue of the tax deeds, and hence there was no adjudication as to the invalidity of the tax deeds. The first goes to the power of the court to
Counsel for plaintiff in error is probably mistaken in his assumption that the action of Challen v. Welch and Estep was an equitable one. The record shows that the petition alleged that the plaintiff was the owner in fee simple, and was entitled to, and is in the possession of the land described. It is true that there is an admission that Laura A. Challen is a resident of the state of Ohio, and never has resided in Kansas; and yet she could have been in actual possession of the land by a tenant, and as there is no evidence about possession contained in the record, we give the allegation in the petition full force and effect, as it was admitted by the default. If there was-actual possession, the action was under § 594 of the civil code. The effect of the personal service of summons on Welch and Estep by the sheriff of Harrison county, Ohio, was the same as if obtained by publication notice. The precise question raised by the plaintiff in error is decided adversely to its views in the case of Venable v. Dutch, 37 Kas. 515; Dillon v. Heller, 39 id. 599. See also Gillespie v. Thomas, 23 Kas. 138; Rowe v. Palmer, 29 id. 337. In actions of this character, a service by publication made in conformity to the provisions of our statutes, has always been held sufficient in this court,, and judgments rendered on such a service, and sales made im pursuance of such judgments, have become a settled rule of property- in this state. It must be borne in mind that the attack in this case of the action of Challen v. Welch and Estep is a collateral one, and the cases of Douglass v. Nuzum, 16 Kas. 515, and of Sanford v. Weeks, 39 id. 649, are not applicable:, the first because it was not brought under the statute, and because there was a direct attack upon the sufficiency of the petition; the second because whatever defects there were in the-original petition were cured by the subsequent pleadings. The-record of the case of Challen v. Welch and Estep is upheld by the case of Entreken v. Howard, 16 Kas. 551, and the later cases that followed that rule. There is no doubt that accord
The next contention is, that the invalidity of the tax deeds was not determined in that action, as the pleading in that action shows that the plaintiff therein did not know the nature of the claim or title set up by the defendants; hence that the tax deeds were not passed upon. In reply to this it may be said generally, that it is not necessary in this action, any more than it was necessary in Sanford v. Weeks. 39 Kas. 649, to decide whether in a petition under § 594 of the code, it is necessary to set out the nature of the defendant’s claim, and the grounds of its invalidity, because the exact question now discussed can be determined by the application of a well-known and firmly-established rule, to the effect that a general finding of title in the plaintiff, and consequently of no title in the defendants, is a conclusive and binding decision against the defendants on the question of title, from whatever source it may be derived, and forever estops them from asserting a claim of title which existed at the time of the decree. A judgment is conclusive of all matters actually litigated, and as to all matters that might, under the pleadings, have been litigated. A judgment by default is attended by the same legal consequences as if there had been a verdict for the plaintiff. (Freeman on Judgments, § 330, and authorities cited.) We think that the record must be held to include an adjudication that the tax deeds were invalid ; and for this purpose it was admissible, although the board of county commissioners of Marion county was not a party to it. (Morgan v. Comm’rs of Miami Co., 27 Kas. 89.)
We find no error in the record, and it is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
