262 P. 569 | Kan. | 1928
The opinion of the court was delivered by
A defendant in an action to quiet title, who had been served by publication and had made default, petitioned the court to vacate the judgment in favor of plaintiffs^on the ground the judgment had been procured by fraud. A demurrer was sustained to the petition to vacate, and defendant Falkenberg appeals.
In May, 1914, Falkenberg commenced an action to foreclose a mortgage on the land in controversy, given by O. M. West to L. M. McClure and assigned byJVIcClure to Falkenberg. The petition alleged that Potts and wife claimed an interest in the land, the exact nature of which was unknown, but that the interest, whatever'it was, was subject and inferior to the mortgage. Potts and wife did not appear. The foreclosure proceeding f^ook the usual course, and resulted in a sheriff's deed to Falkenberg, which was filed for record in October, 1915. In October, 1919, Potts and wife commenced an action to quiet their title to the land. Falkenberg and others were made defendants, and Falkenberg was served by publication. The
The affidavit on which publication service was based was specific with reference to Falkenberg’s residence in Missouri and plaintiffs’ inability to serve him with process in Kansas, and jurisdiction of the court to proceed rested on the showing made by the affidavit. (Davis v. Land Co., 76 Kan. 27, 90 Pac. 766.) The petition to vacate did not allege Falkenberg resided in Kansas, or could have been served in Kansas; his attorneys specifically admit he was a resident of another state than Kansas, and was absent from this state, and consequently, whether there was fz-aud in the service depends on whether a genuine cause of action to quiet title existed.
The petition to vacate was filed in the original action to quiet title, in accordance with the code of civil procedure, and the proceedings are governed by the code. (R. S. 60-3007, 60-3008, 60-3011.)
Falkenberg asks that the petition to vacate be considered a petition in a new and independent suit in equity, to- set aside the judgment quieting title on the ground of fraud. That may not be done, because the fraud of which he complains was intrinsic in the determination of the action to quiet title. Equity may set aside a judgment procured by extrinsic fraud, but public policy requires there shall be an end to litigation, and when a party to an action has been duly served, and has not been prevented by actual fraud from defending on the merits, he has had his day in court, and may not appeal to equity to undo the result on the ground the stated cause of action was based on fictitious grounds or was sustained by perjury. (Blair v. Blair, supra.) The distinction between extrinsic fraud, which prevents fair presentation of the controversy to the court, and intrinsic fraud, which relates to fair determination of the controversy by the court, was clearly pointed out in the case of Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 735, 106 Pac. 1079. It was there said that equity will relieve against extrinsic fraud, but not against intrinsic fraud, and authorities for the doctrine were collated. The subject was again treated in a recent hard case in which a distressingly fraudulent judgment was rendered in December, 1919, and the petition to vacate was not filed until January, 1923. (Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 215, 243 Pac. 306.) In the case of Harvey v. Dolan, 103 Kan. 717, 176 Pac. 134, the defendant in an action to quiet title, who had been served by publication, filed a belated petition to vacate the judgment on the ground of fraud. The fraud charged was that the petition in the action to quiet title contained a false and fraudulent allegation relating to plaintiff’s possession, and the court was imposed on by false testimony. In the opinion it was said the proceedings in the action to quiet title did not reveal the fraud; therefore, the defendant’s remedy was that provided by the code, and be
“The misfortune of the plaintiffs, that they failed to learn of the decree until some six years after its rendition, cannot operate to extend the running of the statute beyond the period fixed by the legislature. Had the plaintiffs come into court within the statutory period, the matters of cotenancy and adverse possession argued by counsel would have been proper for consideration, but the time for such consideration has passed.” (p. 719.)
The result is, the demurrer to the petition to vacate was properly sustained.
In a supplemental brief filed by Falkenberg, the sufficiency of the affidavit for publication service in the action to quiet title is challenged. The challenge was not made in the petition to vacate, and it may not be considered here.
The judgment of the district court is affirmed.