Great Bend Land & Lot Co. v. Cole, 52 Kan. 790

52 Kan. 790 | Kan. | 1894

The opinion of the court was delivered by

HortoN, C. J.:

It is insisted that the district court of Barton county did not have jurisdiction in the case of Cole «.Walters et al. to render any judgment, upon the ground that there was no proper service, by publication or otherwise, upon the defendants, who were minors under 14 years of age. It has already been ruled by this court that a nonresident minor may be served by publication as well as a nonresident adult. (Civil Code, § 71; Walkenhorst v. Lewis, 24 Kas. 420; Head v. Daniels, 38 id. 12.) In the case of Cole v. Walters et al., it appears that Lenora Walters, the widow of Elias Walters, deceased, filed an answer. After the notice of publication had been approved, upon application to the district court, Elrick C. Cole was appointed guardian ad litem for the minor heirs, viz., Charles Walters, Robert Walters, and Lenora Walters, jr., and as such guardian he filed an answer for them. Under the statute and the facts disclosed, the trial court had full jurisdiction over all the parties.

It is next insisted that the trial court had no jurisdiction to render the particular judgment entered of record. The petition contained allegations in the nature of an action to quiet title, and also for specific performance. It was alleged that the plaintiff was in the quiet and peaceable possession of the premises, and had the equitable title thereto by virtue of a contract of purchase from Elias Walters, the former owner, then deceased; that the defendants set up and claimed an estate or interest in the premises adverse to the estate and interest of the plaintiff. It also alleged that the plaintiff had complied with all the terms and conditions of the contract of purchase on his part, and was entitled to a decree in his favor of the legal title to the premises. The prayer of the petition was, that the defendants should be compelled to show their title, and that the same should be determined null and void as against the title of the plaintiff.

“In an action to quiet title to land, 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 iorever estops them from asserting a claim of title which existed at the time of the finding and judgment.” (Comm’rs of Marion Co. v. Welch, 40 Kas. 767.)

“Where a landowner executes a written agreement to convey to a person therein named, for a valuable consideration, a certain piece of land, on payment of the purchase price, and the party accepting the contract takes possession of the land and agrees to pay the price in 30 days from date, it is not presumed the parties intended that time should be of the essence thereof; and, upon such contract, the purchaser is entitled to a conveyance of the title, if he pays or tenders the purchase price and interest within a reasonable time after the time specified for payment.” (Sanford v. Weeks, 38 Kas. 319.)

The trial court not only had jurisdiction over the parties and the subject-matter, but it also had power to enter judgment quieting title to the premises in favor of the plaintiff against the defendants, and perhaps for a decree of specific performance. The original judgment and the judgment as amended were somewhat informal or irregular, but show that T. C. Cole was fully entitled to the possession of the premises described in his petition, and that the defendants had no estate, right or title therein. We cannot say that the judgments were so informal or irregular as to be utterly void. After the rendition of such judgments, it is certainly clear that none of the defendants were entitled to any estate or interest in or to the premises. If the cause was here upon error, we might modify or correct the judgments. It is sufficient, however, as against a collateral attack. (Bryan v. Bauder, 23 Kas. 95; Walkenhorst v. Lewis, supra; Rowe v. Palmer, 29 Kas. 337; Clouston v. Gray, 48 id. 30; Bank of Santa Fé v. Haskell Co. Bank, 51 id. 50.)

It is finally insisted that the trial court erred in not permitting witnesses to explain the meaning of a stipulation in the mortgage. The clause referred to is not ambiguous, and the court committed no error in rejecting the evidence.

The judgment will be affirmed.

All the Justices concurring.