Kelso v. Norton, No. 14,718; No. 14,689

No. 14,718; No. 14,689 | Kan. | Oct 6, 1906

The opinion of the court was delivered by

Graves, J.:

Plaintiff in error Kelso insists that the recital in the judgment, “although personally. served with summons,” and the order of confirmation, together with the presumption which usually obtains in favor of the judgments of courts of general jurisdiction, constitute prima facie proof that a sealed summons was served upon the defendants in the foreclosure suit, which is not overcome by the evidence presented in this case. In view, however, of the opportunity which the trial court had to examine the original summons, and compare it with an impression “made by the seal of the court,in use at the time the summons was issued and near the date thereof, we feel bound by the court’s finding that the only writ served upon the defendants in the foreclosure suit had no seal affixed thereto.

Kelso also urges that, even if the summons was without a seal, the absence thereof is unavailing in a collateral proceeding. This court has held that a summons having no seal is void, and service thereof will not confer jurisdiction. (Dexter v. Cochran, 17 Kan. 447" court="Kan." date_filed="1877-01-15" href="https://app.midpage.ai/document/dexter-v-cochran-7884293?utm_source=webapp" opinion_id="7884293">17 Kan. 447; Lindsay v. Comm’rs of Kearny Co., 56 Kan. 630" court="Kan." date_filed="1896-04-11" href="https://app.midpage.ai/document/lindsay-v-board-of-commissioners-7890415?utm_source=webapp" opinion_id="7890415">56 Kan. 630, 44 P. 603" court="Kan." date_filed="1896-04-11" href="https://app.midpage.ai/document/gilmore-v-hirst-7890414?utm_source=webapp" opinion_id="7890414">44 Pac. 603; Gordon v. Bodwell, 59 Kan. 51" court="Kan." date_filed="1898-01-08" href="https://app.midpage.ai/document/gordon-v-bodwell-7890754?utm_source=webapp" opinion_id="7890754">59 Kan. 51, 51 Pac. 906, 68 Am. St. Rep. 341; Taylor v. Buck, 61 Kan. 694" court="Kan." date_filed="1900-04-07" href="https://app.midpage.ai/document/taylor-v-buck-7891371?utm_source=webapp" opinion_id="7891371">61 Kan. 694, 60 Pac. 736, 78 Am. St. Rep. 346; Stouffer v. Harlan, 68 Kan. 135" court="Kan." date_filed="1903-12-12" href="https://app.midpage.ai/document/stouffer-v-harlan-7894371?utm_source=webapp" opinion_id="7894371">68 Kan. 135, 137, 74 Pac. 610, 64 L. R. A. 320, 104 Am. St. Rep. 396.) It has also held that a judgment or other proceeding of a court not having'jurisdiction is a nullity, and may be attacked at any time, collaterally as well as directly. (Mastín v. Gray, 19 Kan. 458" court="Kan." date_filed="1878-01-15" href="https://app.midpage.ai/document/mastin-v-gray-7884513?utm_source=webapp" opinion_id="7884513">19 Kan. 458, 27 Am. Rep. 149; Meixell v. Kirkpatrick, 28 Kan. 316; McNeill v. Edie, Sheriff, etc., 24 Kan. 108" court="Kan." date_filed="1880-07-15" href="https://app.midpage.ai/document/mcneill-v-edie-7885126?utm_source=webapp" opinion_id="7885126">24 Kan. 108; Amsbaugh v. Exchange Bank, 33 Kan. 100" court="Kan." date_filed="1885-01-15" href="https://app.midpage.ai/document/amsbaugh-v-exchange-bank-of-maquoketa-iowa-7886429?utm_source=webapp" opinion_id="7886429">33 Kan. 100, 105, 5 Pac. 384; Olson v. Nunnally, 47 Kan. 391" court="Kan." date_filed="1891-07-15" href="https://app.midpage.ai/document/olson-v-nunnally-7888658?utm_source=webapp" opinion_id="7888658">47 Kan. 391, 28 Pac. 149, 27 Am. St. Rep. 296.) We are unable, therefore, to say that the trial court erred in finding the foreclosure proceedings void, or in permitting the defendants in error to redeem.

We think the court erred, however, in allowing only six per cent, interest on the taxes paid by Kelso after the date of the sheriff’s deed. We do not concur in the contention of the defendants in error that these taxes were paid by Kelso as owner, and not as mortgagee. The defendants in error invoked a remedy purely equitable. They asked the court to set aside and ignore the entire foreclosure proceedings, including the sheriff’s deed, as void. They asked that an accounting be taken between them and Kelso, on the basis that he was in possession under his mortgage and not by virtue of a sheriff’s deed. To grant the relief prayed for it was necessary to adjust the rights of the parties upon the assumption that no foreclosure proceedings were ever commenced and that the relation of mortgagor and mortgagee had at all times existed between them. In this view the rights and duties of Kelso must be measured by his mortgage. The defendants in error offered to redeem the land by payment of the mortgage debt, and they should not be permitted to regard the foreclosure proceedings as-valid -for one purpose and invalid for another.

The statute relating to a' mortgagee’s right to pay taxes when the mortgagor neglects to do so was as much a part of the mortgage as if it had been written therein, and all payments of taxes made by Kelso should be regarded as payments by him as mortgagee, that being his only relation to the land. It would be inequitable to deprive him of any part of his security merely because he erroneously supposed himself to be the owner of the land.

In the case of McMurray v. Norton et al., No. 14,689, submitted with this case, we are unable to say that the district court erred in refusing to permit MeMurray to be made a party to this suit. He was not a necessary party to the complete determination of the controversy involved, and his rights could not be injuriously affected by the result of that suit. The-judgment under which MeMurray claims is a mere statutory lien upon whatever interest the Norton heirs may have, if any, in the land which they are seeking to redeem. If such an interest is uncovered and established in that suit, MeMurray can reach it with an execution. Otherwise, if he thinks such an interest exists, he can cause it to be sold at execution sale, and whoever buys at such sale will be the owner of such interest and possess all the rights of the original mortgagor. Such a person might be in a position to invoke relief in an equitable suit to redeem, but a mere lien-holder is not. The only function of an equitable suit to redeem is to adjust equities between a mortgagor and mortgagee, and these are the only necessary parties to such a case.

The judgment of the district court permitting the defendants in error in case No. 14,718 to redeem is affirmed. The court is directed to amend its judgment so as to make the aggregate amount to be paid by the defendants in error the sum of $3954.35, with interest from July 10, 1905, at the rate of eight per cent, per annum until paid. The costs in both courts will be divided between the parties equally.

The order of the court refusing to permit A. W. McMurray to be made a party is affirmed.

All the Justices concurring.