37 Kan. 33 | Kan. | 1887
The opinion of the court was delivered by
The facts in this case are substantially as follows: On November 23, 1858,William J. Turner was the owner of the real estate in controversy; upon that day he executed a mortgage upon the real estate to Henry Aten, to secure the payment of two hundred dollars, which mortgage was recorded on December 2,1858; upon the same day he conveyed to John N. Jefferson the real estate by warranty deed, which was recorded November 29, 1858. Henry Aten assigned his mortgage to C. M. Aten, who brought an action to foreclose the same and recovered judgment thereon, October 13, 1862. In that action William J. Turner and Henry Aten were made defendants. Under a sale upon the foreclosure of the mortgage, C. M. Aten obtained a sheriff’s deed to the real estate, on December 12, 1863. David T. Mitchell obtained a warranty deed of the real estate from John N. Jefferson, on March 28, 1884. C. M.Aten filed his petition against David T. Mitchell
The foreclosure proceedings in the action of C. M. Aten against William J. Turner, et al., were received in evidence, without objection. After the argument of the case the plaintiff moved to strike from the evidence this record, for the reason that it was not signed by the district judge. This motion was sustained, and this ruling is complained of. The record was offered by Mitchell to prove that the judgment of foreclosure under which Aten claimed title was absolutely void. This upon the ground that the judgment was taken by default, on October 13,1862, when defendants had twenty days after October 25, 1862, in which to appear and answer.
It is not necessary for us to pass upon the question whether the district court erred in refusing to consider as evidence the record of the foreclosure case of Aten v. Turner, et al. Turner was notified by publication to appear and answer the petition on or before twenty days after October 25, 1862. The service of publication was completed prior to October 13, the date of the judgment. Judgment was not rendered, therefore, until several days after service. Jurisdiction having been obtained, the fact that the judgment was ' ^ o xz> rendered sooner than it should have been does not make the judgment void; a judgment thus rendered is irregular only. It might have been set aside by motion, or upon proceedings in error, but the judgment is not vulnerable to a collateral attack. (Code, § 569; Freeman on Judgments, §§119, 126, 135; Town of Lyons v. Cooledge, 89 Ill. 529.)
We are not passing upon the rights or equities of Jefferson ; therefore it is immaterial whether he had the superior equity in the real estate, or not. Mitchell, although he derived his title from Jefferson, cannot be protected by the priority of the record, because such priority is founded upon his own negli
The judgment of the district court will be affirmed.