53 Kan. 424 | Kan. | 1894
The opinion of the court was delivered by
Noyes Spicer brought this action in the district court of Greenwood county to recover the north half of the northwest quarter of section 3, township 24, range 11. The case was tried by the court, and the facts found specially. A patent was issued for the land from the United States to Moses Elliott in 1869, and on September 20, 1886, Moses Elliott deeded to the plaintiff. The defendant claims title derived from a proceeding in the district court of Greenwood county, under chapter 39 of the Laws of 1877. On the 3d day of October, 1877, a petition was filed in the district court by the county attorney of Greenwood county, entitled “ The board of county commissioners of Greenwood county, plaintiff, v. the southeast quarter of the northwest quarter of section 9, in township 25, of range 13, and other property, and F. A. McLane, J. H. Struthers, and others unknown, and all persons having or claiming any interest therein.”
The body of the petition commences as follows:
“The board of county commissioners of Greenwood county, the above-named plaintiff, complains of the southeast quarter of section 9, township 25, range 13, and other property, and F. A. McLane and others unknown, and all persons having or claiming any interest therein, and above-named defendants, and alleges that said described real estate was sold at delinquent tax sale in said county on the 3d day of May, 1870, for the delinquent taxes for the year 1869, and the same was bought in by said county, and has ever since remained and still does remain unredeemed, and the certificate of sale uu-transferred, and that a list is hereto attached, marked ‘Exhibit AJ and made a part of this petition, which shows the amount of the tax for which said real estate was sold, including penalties, rate per cent, and costs of said sale, together with the amount of subsequent levies for the years 1870, 1871, 1872, 1873, 1874, 1875 and 1876 charged up to said*429 sale, and the amount of the penalties, interest and costs' due on said subsequent levies, and the total amount of all taxes, penalties, interest, charges and costs due and unpaid on said described real estate, together with the name of the owner thereof, as appears from the tax roll of said Greenwood county.”
The petition concludes with a prayer for judgment for the unpaid taxes, penalties, and interest, and the sale of the lands described. The trial court further found, that “an exhibit which was filed therewith, and as a part thereof, but which was never in fact in any way attached thereto, and which was in words and figures following, to wit.” Then follows a paper containing a description of the lands mentioned in the petition and those in controversy, with a statement of taxes, penalties, costs, and interest. The name of J. H. Struthers, which appears in the title of the action, is placed opposite the description of the lauds in controversy in this case, though no such person appears to have had any interest in them. Based on this petition and a publication notice, and without any appearance on the part of the owner of the land, a judgment was rendered directing the land to be sold, and the title claimed by the defendant is derived solely through these proceedings.
The only one of the questions raised in this case we deem it necessary to consider is, whether the district court gained any jurisdiction over the land in controversy by virtue of the proceedings instituted by the county attorney under chapter 39 of the Laws of 1877. The proceeding contemplated is one in rem. In Pritchard v. Madren, 24 Kas. 487, it was held that,
“In proceedings under that chapter, an omission from the title of the petition of the description of the land and the name of the owner is not such a defect as renders the judgment void in a collateral attack, provided ¿t appears that the land was fully described in the body of the petition, and also that due and legal service was made.”
In Doty v. Bassett, 44 Kas. 754, at the first hearing, a syl
“In a suit to collect delinquent taxes on real estate, bid in by a county, under chapter 39 of the Laws of 1877, each tract of land or town lot should be described in the petition, to give the court jurisdiction over the subject-matter. Where a petition is so essentially defective as to show no description of the land against which a decree was rendered for alleged taxes, held, that such judgment and decree as to that particular tract of land, not described in the petition, is void, for want of jurisdiction.”
On a rehearing of that case, the court, in a per curiam opinion, reconsidered and withdrew the syllabus and opinion first announced, and decided the case on the point that the lands were not taxable for the year for which the taxes were levied.
In this case, while the point is raised also that the lands were not taxable, wé do not think the findings of the court clearly negative their taxability. The question, then, is squarely presented, whether jurisdiction can be obtained over a tract of land by filing a petition describing one piece, and referring to an exhibit as attached to and- made a part of the petition which is not so attached, but a loose piece of paper containing a description without any of the essential characteristics of a petition is filed with the clerk. We think the rule first declared in Doty v. Bassett, supra, must- obtain, and that, as to the lands involved in this case, the district court of Greenwood county was entirely without jurisdiction ; that to hold that no reference to the property sought to be affected by the proceedings need be made in the body of the petition, but that an exhibit attached to it containing the description and the amount of taxes and charges claimed to be a lien on the property is sufficient, is an extreme relaxation of the rules of pleading; but to go to the limit we must necessarily reach in this case to uphold the judgment requires us to affirm that property can be condemned and sold • without any mention whatever of the property itself, or of the owner, either in the title or body of the petition, but that it is sufficient if it refers to an exhibit containing the de
The judgment is reversed, with the direction to enter judgment on the facts as found in favor of the plaintiff, and against the defendant.