43 Kan. 209 | Kan. | 1890
The opinion of the court was delivered by
This was an action in the nature of ejectment, brought in the district court of Sumner county on December 18, 1885, in the name of Robert Thompson against Kate Patterson and others, to recover lot 17 in block 59 in the city of Wellington. Afterward, and with the consent of the parties, A. A. Richards was substituted as the plaintiff in the place of Robert Thompson, and Kate Patterson having died the action was revived against Robert Thompson her executor, and against Margaret J. Thompson and others her devisees. The case was tried twice before the court without a jury, the second trial being upon the same evidence as was introduced on the first trial, and the court found generally in favor of the defendants and against the plaintiff, and rendered judgment accordingly; and the plaintiff, as plaintiff in error, brings the case to this court for review.
The facts of the case are substantially as follows: On December 20, 1873, and prior thereto, Robert H. Thompson owned the land in controversy, and on that day mortgaged it to John G. Tucker to secure the sum of $200, to become due on February 20, 1874. On January 25, 1876, Robert H. Thompson died, at Warner, in the state of New Hampshire, intestate, leaving as his sole heir his father, Robert Thompson. On August 8, 1877, the mortgage debt being overdue, and the mortgagee having no knowledge of the death of Robert H. Thompson, such mortgagee commenced an action in the district court of Sumner county to recover the mortgage debt and to foreclose the mortgage, making Robert H. Thompson and him alone the defendant. Service of summons was obtained by publication, and the foreclosure proceedings were carried on to final consummation; and on September 7,1878, a sheriff's deed was executed under the foreclosure proceedings to Christiana Tucker for the property in controversy,
The principal questions urged in this case are with refer
“Sec. 6. Any person claiming title to real estate may, notwithstanding there may be an adverse possession thereof, sell and convey his interest therein in the same manner and with like effect as if he was in the actual possession thereof.”
The objections urged by the plaintiff against- the sheriff’s deed are as follows: First, all the foreclosure proceedings upon which the sheriff’s deed is founded took place long after the death of Robert H. Thompson, the mortgagor, and the only defendant in such foreclosure proceedings. Second, no summons was ever issued or served in the foreclosure proceedings. The service, however, was by publication. Third, there was no foreclosure decree in the foreclosure proceedings. It would seem from the record that this is a mistake. Fourth, the sheriff’s deed was executed on September 7, 1878, upon a judgment stated in the sheriff’s deed to have been rendered on November 15, 1878. The judgment was in fact rendered on November 15, 1877.
The tax deed is alleged by the plaintiff to be void for the following reasons: First, the tax deed was executed on September 7, 1878, on a tax sale made September 7, 1875 — one day too soon — and is therefore void. Second, the tax deed shows that the property was sold at the tax sale to Sumner county, and does not show that Sumner county or any officer for it ever assigned the tax-sale certificate. Third, the tax deed shows that the tax-sale certificate was assigned by Whitney R. Tucker, as administrator of the estate of John G. Tucker, to Christiana Tucker, who obtained the tax deed, but does not show that Whitney R. Tucker ever had any power or rightful authority to make such an assignment.
It is unnecessary to extend this opinion farther. The judgment of the court below will have to be reversed. This per
The judgment of the court below will be reversed, and the cause remanded for a new trial.