100 Kan. 234 | Kan. | 1917
The opinion of the court was delivered by
This appeal presents the too familiar 'predicament of a man whose right to a tract of land has been cut off by a judgment founded on a publication service pursuant to the statutes.
The plaintiff, who had little or' no claim -to the land, filed a suit against the defendant, Nicholas Wagener, and others, claiming to be the legal and equitable owner.of the land in controversy and other lands mentioned in his petition, alleg
Wagener, the owner of the land, resided in Iowa, and he was summoned by publication — which he, of course, knew nothing about — and judgment was rendered against him by default. The decree adjudged the plaintiff to be the absolute owner of the land in question, and confirmed his title and possession and decreed that if the defendant was in possession a writ of restitution should issue forthwith to eject any and all persons in possession and to deliver the possession to the plaintiff.
When Wagener learned of these judicial transactions he filed a motion to open the judgment, and filed his answer designing title through mesne conveyances from the United States and also an independent title founded on tax deeds. The judgment was opened, but one W. S. Hodges, who had procured a warranty deed to the land from the plaintiff executed six months and twelve days after the default judgment was rendered against Wagener, appeared and claimed the property as a bona fide purchaser without notice and that he had relied upon the default judgment.
The court gave judgment for Hodges, the plaintiff’s grantee, and Wagener appeals.
If we do not find some way to upset this judgment it will not be for want of an inclination to .do so, but only because of legal obstacles which we have no right to ignore. The general finding of the trial court settles all' the issuable facts in favor of Hodges, so that avenue of relief for appellant is barred. The statute provides that the rights of bona fide purchasers of property the title to which has been judicially determined, after six months, shall not be affected by proceedings to set aside judgments obtained by default and on publication service. (Civ. Code, § 83.) The precedents respecting this statute are too numerous and too formidable to be overcome. (Howard, Adm’r, v. Entreken, 24 Kan. 428; Loan Co. v. Cable, 65 Kan. 306, 68 Pac. 1127; Morris v. Winderlin, 92 Kan. 935, 142 Pac. 944.)
Nor do we find an analogy between the case at bar and that of McNutt v. Nellans, 82 Kan. 424, 108 Pac. 834, which counsel for appellant urges us to consider. It was there said:
“The objection which the plaintiffs still make to the title is that the judgment was rendered upon service by publication and may be vacated at any time within three years. The doctrine, however, is established by numerous decisions that the title of a purchaser in good faith who relies upon a judgment quieting title to the land in his grantor can not be affected or disturbed by the vacation of the judgment, but is protected by the express provisions of the statute. (Civ. Code, § 77, Gen. Stat. 1901, §4511; Code, 1909, §83; Howard, Adm’r, v. Entreken, Adm’r, 24 Kan. 428; Loan Co, v. Cable, 65 Kan. 306; Randall v. Barker, 67 Kan. 774.) If, therefore, the plaintiffs had taken a conveyance from the defendant their title would not be affected by the vacation of the judgment, provided they could prove that they purchased in good faith' and in reliance upon the judgment.” (p. 427.)
Noticing other features of appellant’s argument, we are constrained to hold that Hodges did maintain the burden of proof to show that he purchased the property in good faith and in reliance on the judgment — at least the trial court had sufficient evidence submitted to it to warrant such determination. There was an allegation in plaintiff’s petition that defendant was in possession, but it developed that the land was not in the actual occupancy of any person, being the characteristic undeveloped land still quite common in that part of the state. There is a doctrine that wild lands are constructively in the possession of the true owner, but this doctrine can not be extended to charge a purchaser with constructive notice of constructive possession of such lands. (Haas v. Wilson, 97 Kan. 176, 154 Pac. 1018.) There was no impropriety in the recital in the decree granting a conditional writ of possession if any person was found in possession of the land, and the issue and execution of such a writ to put the plaintiff in possession of this wild and unoccupied land would have been an idle ceremony. It is also contended that one can not quiet his title if he has no title. He can not if his adversary having
We note that the attorneys who examined the title advised Hodges—
“If a client of ours should take title, we would want them to look up the possession of the land, at the date judgment was rendered, which was on the 6th day of June, 1913, and see who occupied the land at that time, and see whether it has been occupied since that time. If it has not been occupied, no one in possession of the land or making any claim of ownership over it, then we would say that a warranty deed from L. H. Whiteman would give good title to this land.”
In deference to this suggestion, an affidavit of one who knew the land was appended to the abstract which recited that the land was not in the actual possession of any person; that it was “raw prairie land.” We see no way to overturn this case on the question of possession: That section 83 of the civil code serves a salutary purpose is undeniable; that its wise provisions may .be perverted has frequently been recognized by this court. Much may be done by trial courts to prevent its being misused. Doubtless much is so done. But the matter of security of title is essentially a question for the legislature. Its fiat may be wise or unwise, just or unjust, but within constitutional limitations its will is supreme, and however reluctant we may be to apply the law to a given case — and this appears to be such a one — our duty to recognize and to declare it may not be avoided. We can not avoid it here, and the judgment is affirmed.
