110 Kan. 498 | Kan. | 1922
The opinion of the court was delivered by
This is an action in ejectment. Judgment was rendered in favor of the defendant for the possession of the property and for $247.66 rent during the time that the plaintiff deprived the defendant of possession. The plaintiff appeals.
The plaintiff, a corporation organized under the laws of the state of Kansas, holds as devisee under the will of Abraham Grant, who owned the property and who died in possession of it. His will was probated in Wyandotte county on January 27, 1911. The defendant holds under a sheriff’s deed issued on a sale of the property under a judgment foreclosing tax liens held by Wyandotte county for the taxes of the year 1916 and several years .prior thereto. (Gen. Stat. 1915, §§ 11476-11482.). The petition in the foreclosure action was filed August 14, 1917; service by publication was made on Abraham Grant and upon his unknown heirs, executors, administrators, devisees, trustees, successors, and assigns; judgment was rendered November 21, 1917; the property was sold January 21, 1918; the sale was confirmed March 16, 1918; and the sheriff’s deed was executed March 28, 1918, and was^ recorded April 1, 1918. Although by tenant occupying the property in controversy at the time the foreclosure action was commenced, this plaintiff by name was not a party to it. On June 21, 1919, a writ of assistance was
“If the defendants or either of them are nonresidents, service may be made by publication, when there is filed with the clerk an affidavit that such defendants to be served are nonresidents of the state, or that the plaintiff with due diligence is unable to make personal service of summons upon said defendant or defendants.”
Section 48 of the code of civil procedure provides that an action “for the sale of real property under a mortgage, lien or other incumbrance or charge” must be brought in the county where the land is situated. Section 78 of the code provides that service by publication may be made in actions brought under section 48 of the code. Section 79 of the code provides for service by publication against unknown devisees.
An action to foreclose a tax lien comes strictly within the language of section 48 of the code, and the provisions of the code
In Davis v. Land Co., 76 Kan. 27, 90 Pac. 766, this court said:
“A decree quieting title to real estate, where the only service upon the defendants is made constructively as provided by the statute for non-residents of the state, is not void because the grounds stated in the affidavit are untrue.” (Syl. A1.)
In Duphorne v. Moore, 82 Kan. 159, 107 Pac. 791, this court used the following language:
“A judgment based upon a willfully false affidavit for service by publication is not absolutely void.” (Syl. fl 1.)
What has been said disposes of all questions argued.
The judgment is affirmed.