142 P.2d 722 | Kan. | 1943
On November 25, 1941, the county brought this action under G. S. 1941 Supp. 79-2801 et seq. to enforce its lien for taxes upon a described eighty-acre tract of land (and- other tracts not involved here), the title to which stood in the name of T. H. Downing and on which the unpaid taxes for the years 1931 to 1940, both inclusive amounted to $311.29. Service of summons by publication, as provided by G. S. 1935, 60-2525 et seq., was had upon T. H. Downing and wife, if living, and if deceased upon their unknown heirs, etc., as authorized by G. S. 1941 Supp. 79-2801. On February 19, 1942, no appearance having been made by defendants, the court, upon due consideration, rendered judgment for plaintiff, foreclosing its tax lien upon the property in question. In due course an order of sale was issued and on April 13 the sale was had, at which time the land in question was sold to Orville Mann for $625. On April 25, 1942, plaintiff filed a motion to confirm the sale. Two days later T. Mac Downing, by his attorney, filed a motion asking the court to refuse to confirm the sale for the reason “that this petitioner, with his sister, owns this land, was not made a party to this action, had no knowledge of the sale, or the proceedings as had therein, . . .”
On June 2, 1942, T. Mac Downing filed an answer, which contained a general denial, and alleged that he, jointly with his sister, was the owner and in possession by a tenant of the land; that the tenant knew his address to be McComb, 111., and that his address was also on record with the Farm Bureau in the courthouse, and further alleged the rendition of the judgment of February 19, the sale on April 13, and that he had filed the motion asking the court to refuse to confirm it. He further alleged that he had no knowledge of the proceedings prior to about April 20, 1942; that Orville Mann purchased the property with full knowledge of the fact that it was to be sold to satisfy the judgment obtained on publication service, with knowledge of the tenancy, and was not a purchaser in good faith, and that defendant is ready and willing to pay to the clerk of the court the sum alleged to be due, $311.29, with interest and costs. The prayer was that the sale held April 13 be set aside and for an order of the court directing that the amount alleged be paid into the hands of the court. This was verified by defendant’s attorney.
Orville Mann, the purchaser at the sheriff’s sale demurred to this answer, which demurrer was sustained by the court.
Orville Mann, as purchaser at the sheriff’s sale, moved to strike that answer from the files for the reason that it was filed out of time without the consent of the court. On January 6, 1943, T. Mac Downing filed an affidavit stating that he and his sister jointly owned the land in question and that during the pendency of the cause neither of them had any actual notice or knowledge of the pendency of the suit in time to appear and defend. On January 6, 1943, the court sustained the motion to strike from the files the second amended answer of T. Mac Downing. He then asked permission of the court to file the answer, which was granted. Orville Mann demurred thereto for the reason that it did not state facts sufficient to constitute a defense to the cause of action set forth in the petition. This demurrer was considered and sustained. The court also confirmed the sale and ordered the sheriff to execute a proper deed to the purchaser, Orville Mann. This order was stayed pending this appeal by the giving of a supersedeas bond.
Appellant contends the court erred in sustaining the demurrers to his several answers. The point is not well taken. It is well settled that to open a judgment rendered on publication service under our statute (G. S. 1935, 60-2530) the defendant must not only show to the satisfaction of the court that he had no actual
Appellant argues that the court erred in not accepting as payment of the tax the payment made into court for'that purpose on August 8, 1942. The statute (G. S. 1941 Supp. 79-2803) only authorizes defendants to pay before the day of sale, which in this case was April 13, 1942. So at the time the payment was made by appellant to the clerk of the court he had no statutory right to make the payment and insist on having the sheriff’s sale set aside. In this court appellant calls our attention to Atchison County Comm’rs v. Wright, 151 Kan. 325, 99 P. 2d 857, where the court held that the trial court had a measure of discretion which should have been exercised in favor of the taxpayer in that case. The facts, however, are quite different. The property there was the homestead of the taxpayer and his wife. They had bought the property in 1920 and paid $2,000 for it and since that time had occupied it for their home. At the time of the hearing it was worth about $500. The judgment for taxes against the property was $38.96. The bid at the sale was only $13.50. The character of the property and its use, its value, and the low bid compared with the judgment, prompted this court to conclude that the trial court should have exercised a judicial discretion and given the taxpayer an opportunity to save his home. The court did not hold, and did not intend to hold, that in any case the taxpayer might ignore not only the judgment of the court but the judicial sale and come in and pay the taxes any time before a sheriff’s deed is issued. To do so would discourage bidding at such sales. The factual situation in this case is quite different. Here
The amendments made to our tax laws ip recent years have looked toward the more prompt collection of taxes. Since appellant had no statutory right to pay the taxes in August, 1942, and have the sheriff’s sale set aside, and we find no reason to say that the situation is such as to require the court to exercise its equity powers for the relief of the taxpayer, we find no error in the trial court’s ruling.
The result is the judgment of the court below should be and is affirmed.