5 P.2d 1078 | Kan. | 1931
The opinion of the court was delivered by
Has the district court the power to grant a new trial in a tax foreclosure action on the application of the intervener, claiming to be the owner of a mortgage lien assigned to her but which stood on the record in the name of another, who was named as a defendant in the foreclosure action? This is the question presented for decision.
On July 24,1923, Ella B. Adams, through her broker, W. D. Miles, made a loan of $7,000 to Rudolph Snyder and wife, taking as security for the loan a first mortgage on city property. S. N. Eisberg, father-in-law of Rudolph Snyder, procured the loan for the Snyders and he went into possession of the property. Subsequently, in 1928, Snyder and his wife conveyed the mortgaged property to S. N. Eisberg and M. J. Eisberg, who were brothers. In 1930, when the Adams note became due, the Eisbergs applied to Mrs. Adams for an extension of the loan. It appears that the note and mortgage had
“Anyone whose rights are affected by a judgment rendered without other service than by publication is entitled to have the judgment opened up when he complies with the provisions of section 83 of the code of 1909, whether or not he was named as defendant in the action.” (Syl. ¶ 2.)
In an opinion as to the nature of the remedy and the interpretation of the statute it has been said:
“Indeed, in order to do justice to both parties, the provisions of that section should be construed in no technical way, but fairly and reasonably. Every party ought to have his day in court; and while service by publication, which in fact imparts no actual notice, must be sustained, yet a party thus served, and who has in fact no knowledge of the proceedings, ought to be granted a hearing if it can be possibly done.” (Albright v. Warkentin, 31 Kan. 442, 445, 2 Pac. 614.)
Aside from that consideration it may be said that Mrs. Adams was brought into the case by the publication notice. In it, W. D. Miles, the broker, in whose name the notes and mortgage were taken, was named as a defendant, and also his assigns. Miles assigned the mortgage lien to Mrs. Adams, and hence she was in a sense a defendant within the terms of the notice served. In either view the remedy was available to her upon compliance with the prescribed conditions.
No reason is seen why the remedy is not as available in an action to foreclose a tax lien as in the foreclosure of a mortgage lien or other civil action wherein judgment is rendered upon service by publication only, and where the applicant had no knowledge of the pendency of the action in time to come in and defend. The effect of a judgment foreclosing a tax lien and a sale thereunder is just as vitally prejudicial to such a person as would be a judgment foreclosing other liens. The county asserts that the application was made without legal notice to Strauss, the purchaser at the sale. He is not complaining of the lack of notice. Notice was given to the county, the plaintiff in the action, and it does not appear that Strauss authorized the county to object to the opening of the judgment in his behalf. He may have understood that the principle of caveat emptor applies to a purchaser at tax sales (Sullivan v. Davis, 29 Kan. 28), and that Mrs. Adams had the right to have the judgment opened on timely application. When he purchased at the sale he knew, or should have known, that a judgment based on publication service only was subject to be opened up by an interested party, and that the interest obtained by a purchaser in good faith even would not ripen into a title until the lapse of six months. Under the statute the opening up of the judgment after that period will not affect the title of a purchaser in good faith. But, as we have seen, he did not question the right to have the judgment opened up in the district court and is not complaining here. The only complaint is by the county, and it does not appear that it has any right to speak or object for him.
We conclude that no error was committed by the trial court in overruling the motion of the county to strike the application and the pleading of the intervener from the files or overruling its demurrer to the intervening petition and answer.
The judgment is affirmed.