Pritchard v. Madren

The opinion of the court was delivered by Valentine, J.:

This was an action in the nature of ejectment, brought by Agnes Madren against Horatio Pritchard, in the district court of Greenwood county, Kansas, to recover the south half of the north half of the southwest quarter of section 12, in township 22, of range 11, in said county. The ease was tried before the court without a jury, and the court made certain findings and conclusions; and thereon rendered judgment in favor of the plaintiff and against the defendant for the recovery of the property, and for $300 damages, and for costs.

To reverse this judgment, the defendant brings the case to this court.

The plaintiff in error, defendant below, claims that the court below erred in several particulars. He claims: 1st, that the findings of fact are not sustained by sufficient evidence; 2d, that the conclusions of law and the judgment are not sustained by the findings of fact; 3d, that the court below erred in admitting in evidence the record of the case of Pritchard v. Madren; 4th, that the court below erred in admitting in evidence the sheriff’s deed to Greenwood county; 5th, that the court below erred in excluding certain parol evidence tending to show that the land conveyed by said sheriff’s deed, which is the land in controversy, had never in fact been appraised.

I. The findings of fact have all been preserved and brought to this court, but the evidence has not; hence the findings of fact, as made by the court below, must be considered as sufficiently sustained by the evidence.

II. It appears from the findings of fact, that the plaintiff, Pritchard, holds title to the property in controversy from the *45 original patentee, down through intermediate owners to himself, and that he and his grantors have been in the possession of the property since 1872. Hence, unless his title is defeated or overthrown by the other facts of the case, it must be held that he is the owner of the property in controversy; that he holds the paramount title thereto; and that he is entitled to recover in this action. Among the other facts of the case as found by the court below, are the following: On October 3, 1877, the board of county commissioners of Greenwood county, Kansas, in pursuance of chapter 39, of the Laws of 1877, page 69, et seq., commenced an action in the district court of said county against the property in controversy, along with other property, to foreclose certain alleged tax liens thereon, and to sell the property for the taxes alleged to be due thereon. The property in controversy was described as belonging to Margaret Pritchard. Service of summons was made by publication. At the May term of the court in 1878, judgment was rendered against the property in controversy for the taxes, interest and penalties then due thereon, amounting in the aggregate to the sum of $66.47 and costs, and the property was ordered to be sold for the payment of such judgment and costs. Afterward, on November 11, 1878, in pursuance of such judgment and the law, the property was in fact sold at sheriff’s sale to the county of Greenwood, and the sale was afterward, on November 23,1878, confirmed by the court; and on January 1,1879, a sheriff’s deed was duly executed to the county, in pursuance of such sale. This deed was duly recorded on February 3, 1879. On February 28, 1879, the county, in consideration of $24, sold and conveyed by deed of general warranty the property in controversy, to Matthias Madren; and this deed was recorded March 3, 1879. On June 2, 1879, Madren, in consideration of $1,000, sold and conveyed by deed of general warranty, the property in controversy to Agnes Seward. Afterward, and on the same day, Madren and Agnes Seward were married, and became husband and wife. On July 19, 1879, Pritchard commenced an action against Madren to quiet his (Pritchard’s) title to the property *46 in controversy; and at the. November term of the court in 1879, judgment was rendered in favor of Madren and against Pritchard for costs. - On January 15,1880, the deed from Madren to Agnes Seward was duly recorded. On May 13,1880, the case of Pritchard v. Madren was taken to the supreme court, where, at the July term of the supreme court in 1880, the judgment of the district court was affirmed. (Pritchard v. Madren, 24 Kas. 486 .) On January 26, 1881, this present action of ejectment was commenced by Agnes Madren, formerly Agnes Seward, against Pritchard. . On May 10, 1881, Pritchard filed a motion under §77 of the civil code} to open up the judgment rendered in the case of the board of county commissioners of Greenwood county against the property in controversy, which motion was at first overruled; but finally, after the case had been taken to the supreme court, (Pritchard v. Comm’rs of Greenwood Co., 26 Kas. 585 ,) and the order of the district court overruling the motion reversed, the motion was conditionally allowed, and a new trial was had, which new trial resulted in modifying the former judgment in the case, by reducing the amount thereof from $66.47 to $26.22. In no other respect was the former judgment in the case disturbed. The judgment .as thus modified seems to be still in force, unpaid and unsatisfied. On May 19, 1882, the judgment in this present ejectment case was rendered as aforesaid in favor of Mrs. Madren and against Pritchard; and this is the judgment which Pritchard, as plaintiff in error, now seeks to have reversed.

Upon the facts of the case as found by the court below, we think the judgment is correct. From such facts, it appears that the court in the case of the board of county commissioners against the land in controversy, had ample jurisdiction of the subject-matter of the action, and sufficient jurisdiction of all the parties interested therein; and that all the proceedings had in such action from its commencement down to and including the final execution of the sheriff’s deed, were sufficiently regular and valid to render such proceedings invulnerable to any collateral attack in any collateral proceeding; and the property in *47 controversy has gone into the hands of an innocent purchaser. Nearly all the questions arising upon the foregoing facts have already been adjudicated and settled by the decisions of this court, above cited. It appears that on the second .trial in the case of Pritchard against the commissioners of Greenwood county, or, rather the commissoners against Pritchard and the land in controversy, the judgment was reduced from $66.47 to $26.22; but this modification of the original judgment certainly cannot have the force or effect to destroy the title to the property already vested in Mrs. Madren. (See §§77 and 467 of the Civil Code; Howard v. Entreken, 24 Kas. 428 ; Rorer on Judicial Sales, § 132; Freeman on Executions, §345.) These sections of the .statute and this decision we think are conclusive upon the subject. Mrs. Madren purchased the property in controversy in good faith, paying therefor the sum of $1,000, upon the faith of a judgment of a court of competent jurisdiction; and this at a time when it does not appear that any question had ever been raised with regard to the validity or regularity of the judgment, or with respect to the title to property founded upon such judgment.

It is claimed, however, by the plaintiff in error, defendant below, that the findings of fact show that there were some irregularities in the original tax proceedings. Now even if there were any such irregularities in the original tax proceedings, still they were matters for consideration and adjudication in the ease of the board of county commissioners against the property in controversy, and should have been adjusted in that case. But whether they were adjusted in that case or not, they cannot now be brought forward for the purpose of being litigated in this case, or for the purpose of defeating or annulling the judgment rendered in that ease, or for the purpose of destroying the fruits of that judgment. The principal supposed irregularity mentioned by the plaintiff in error, defendant below, is with reference to the redemption of an undivided half of the north half of a piece of land which includes the land in controversy, when in fact the whole of such piece of land was taxed in gross and sold in gross. Upon *48 this subject, see § 100 of the tax law of 1868, and § 127 of the present tax law, and the case of Corbin v. Inslee, 24 Kas. 160 . Under these sections and this decision, we think the supposed irregularity hardly amounts to an irregularity; indeed, it does not amount to an irregularity at all. But even if there had been irregularities in the tax proceedings, still the plaintiff in error, defendant below, cannot litigate them in this action, for all these matters must be considered as having been settled in the action of the board of county commissioners against the land in controversy, and as having become res adjudieata.

III. No material error was committed in admitting in evidence the record of the case of Pritchard v. Madren. If it proved any material fact in the case, then it was rightfully admitted; for no question was then, or is now, raised with regard to the preliminary proof authorizing its admission; but if it did not prove anything in the case, then no harm was done. In this connection, defendant in error cites: Parrish v. Ferris, 67 U. S. (2 Black), 606; Stark v. Stark, 1 Sawyer (U. S. C. C.), 270, 275; and Freeman on Judgments, §309. These authorities were cited by the defendant in error upon the theory that the matters and things in issue in the present case were litigated in the case of Pritchard against Madren, and therefore that such matters and things had become res adjudieata prior to the commencement of this action. Upon this question we express no opinion.

IV. The plaintiff in error, defendant below, claims that the court below erred in admitting in evidence the said sheriff’s deed; and this he does for two reasons: (1) The judgment recited in the sheriff’s deed appears to be for a sum in gross, when it should have been, as the plaintiff in error claims, a separate judgment for the amount of the taxes, etc., upon each separate tract of land; (2) the sale itself was in gross and in the lump, when it should have been, as the plaintiff in error claims, a separate sale of each separate tract of land.

The sheriff’s deed recites, among other things, the following:

*49 “The said plaintiff, the board of county commissioners of Greenwood county, by the consideration of said court, recovered a judgment against the above-described real estate and other property, and said other defendants and others unknown, for the sum of ten thousand and twenty-five and y2-^ dollars, being the amount of the taxes, interest and penalties assessed thereon and then due, and all costs in and about said action expended, taxed at one hundred and eighty-one and dollars.”

Now this seems to indicate that the above-mentioned judgment was in fact, as is claimed by the plaintiff in error, rendered for a sum in gross. Such, however, was not the case, and the foregoing quotation from the sheriff’s deed does not conclusively show that such was the case. The judgment was in fact rendered as a separate judgment against each separate ■tract of land for the taxes, etc., due on each of such separate tracts of land. But suppose the judgment was rendered as the plaintiff in error claims, it would still not be void, for the reason that the court rendering the same had ample jurisdiction of the subject-matter of the action in which such judgment was rendered. The judgment at most would be only irregular and voidable, and could be attacked only by some direct proceeding, and cannot be attacked in the manner in which the plaintiff in error now seeks to attack it. The judgment, however, was in fact regular, and was not rendered in the manner in which the above quotation from the sheriff’s deed would seem to indicate. This point, therefore, we think is not well taken.

The plaintiff in error, defendant below, also claims that the sale was void because it was a sale in the lump of several separate and distinct tracts of land. The sheriff’s deed upon this subject recites, among other things, the following:

“And whereas, on the said 11th day of November, 1878, at 10 o’clock A. M. of said day, at the court-house door aforesaid, the said sheriff did offer the said lands and tenements, to wit: [Here a great many pieces of land, including the land in controversy, are described,] for sale; and whereas no person did bid two-thirds of the appraised value of said lands and tenements, the said sheriff did sell the same to Green *50 wood county for the sum of ten thousand eight hundred and sixty-one and dollars, said sum being not less than the amount of the taxes, penalties, interest and charges thereon, and no person having offered a higher price therefor.”

This would seem to indicate that the sale was made in the lump, although it is our understanding that the sale was in fact made of each particular tract of land. For the purposes, however, of this sheriff’s deed, we shall consider that the sale was in fact made in bulk: and then is the deed void ? The great weight of authority would seem to be that neither the deed nor the sale is void, but at most only voidable; and that in order to defeat either the sale or the deed, it must be attacked by some direct and appropriate proceeding. (See Johnson v. Hovey, 9 Kas. 65 ; Paine v. Spratley, 5 id. 525; Bunker v. Band, 19 Wis. 271 ; Raymond v. Pauli, 21 id. 531; Raymond v. Holborn, 23 id. 57; Tillman v. Jackson, 1 Minn. 183 ; San Francisco v. Pixley, 21 Cal. 56 ; Williams v. Allison, 33 Iowa, 279 ; Cunningham v. Cassidy, 17 N. Y. 276 ; Mohawk Bank v. Atwater, 2 Paige’s Ch. 54; Van Valkenburg v. Trustees, 66 Ill. 103 ; Evans v. Wilder, 5 Mo. 313 ; Rector v. Hartt, 8 id. 448 ; Winters v. Heirs, &c., 6 Coldw. 328 .)

In Michigan and Indiana, the decisions are the other way under local statutes, though the following decisions in Indiana are in accordance with the general rule: West v. Cooper, 19 Ind. 1 ; Patten v. Stewart, 19 id. 233. See also upon this subject, Freeman on Executions, §296; Borer on Judicial Sales, §749, et seq.

The proper way to attack a sheriff’s sale for irregularities is by motion, in the same ease and before confirmation of the sale, to set aside the sale. There may be other proper modes of defeating irregular sheriffs’ sales and sheriffs’ deeds, bu,t we do not think it is necessary now to refer to them. We shall refer to this subject hereafter.

~V. The plaintiff in error, defendant below, also claims that the court below erred in excluding certain parol evidence tending to prove that the land in controversy was not appraised before it was sold at sheriff’s sale. On the trial, he *51 first offered to prove that the land in controversy had not been appraised upon actual view.; and secondly, he offered to prove that the appraisers, through a mistake, appraised a tract of land immediately south of the land in controversy, and did not appraise the laud in controversy at all. The court refused to permit the plaintiff in error, defendant below, to introduce this kind of evidence, and this he claims was error. The record of the case in which the sheriff’s deed was executed, shows that the property was in fact appraised, and duly appraised, by the appraisers upon actual view. Now can the plaintiff in error, defendant below, in this collateral proceeding, and by parol evidence, show that this record was not true? Can he show it after the sale has been made and confirmed; after a sheriff’s deed has been executed; and after the property has gone into the hands of an innocent purchaser — and all this in a collateral proceeding? Under the authorities, we think this question must be answered in the negative. (Paine v. Spratley, 5 Kas. 525 ; Freeman on Executions, §§311 and 343; Rorer on Judicial Sales, § 1059.)

VI. We now wish to make some general remarks upon the questions involved in the present case, and also with reference to chapter 39 of the Laws of 1877. This is the chapter under which the case of the board of county commissioners of Greenwood county against the land in controversy was prosecuted, and the law in pursuance of which the judgment was rendered, the sheriff’s sale made, and the sheriff’s deed executed under which the defendant in error, Mrs. Madren, claims the property in controversy. The action under said chapter 39 is of course an action in rem, but it also partakes of the nature of an action in personam. A petition is to be filed in such action, which is to be a petition not only against the real estate upon which taxes are due, but also to some extent a petition against the owners of the property. Section 4 of said chapter provides, among other things, as follows:

“The owners and all persons interested in any such real estate shall be considered as personally parties defendant in the proceedings provided for in this act, whether named in *52 such petition or not, and the words ‘and others unknown’ shall be inserted with the defendants named in such petition; and by those words all owners and- persons interested in any such real estate shall be deemed and held to be made defendants, the Same as though personally named in the petition, publication and other proceedings in this act provided for, and shall be bound accordingly by every judgment or order in the case.”

A judgment is rendered as in other eases, and an order of sale issued, and the sale is to “ be made and conducted in all respects as sales upon execution.” (Sec. 2 of the act.) The real estate may be sold to the county, just as it was sold in this case; and when sold to the county, “the sheriff shall execute a deed to the board of county commissioners of said county,” (sec. 5 of the act;) and the county may then “take possession of and sell, rent or dispose of such real estate the same in all respects as private individuals; and all deeds made in pursuance of any sale made by virtue of this act shall be made in the same form and shall have the same effect and the purchaser at such sale be entitled to the same remedies, relief and protection, as purchasers at sales on foreclosure of mortgage, or sales on execution.” (Sec. 6 of the act.) And Mr. Rorer, in his work on Judicial Sales, §1.059, uses the following language:

“A sheriff’s deed on execution sale to a bona fide purchaser, if regular in itself, cannot be impeached in a collateral proceeding for mere error or irregularity in the proceedings, judgment, execution or return, or for want of a return, if there be a valid judgment and execution, nor for the reason that the appraisers, where the sale is under the appraisement law, acted without seeing the land, nor by parol evidence that the execution on which the sale was made was withdrawn, or that the levy had been abandoned before the sale, nor because the execution issued out of season, or for any fault of the sheriff in not following the statute, if the court has jurisdiction of the case from which the execution' emanated, nor by any failure of the sheriff to advertise, if the purchaser be a bona fide one.” (See also Freeman on Executions, § 343.)

We have discussed all the material points presented by *53 counsel, and have reached a conclusion that the judgment of the court below must be affirmed. And while probably under the facts of the case it is only justice to the defendant in error, yet it works great hardship to the plaintiff in error. By this decision the plaintiff in error loses property worth probably $1,000 for the taxes due upon it, amounting to only $26.22. This is partially due to the negligence of the plaintiff in error in not examining the records of the county carefully to see. whether all taxes due upon his land were paid or not, and if not, to pay the same; and partially to the fault of the statute, said, chapter 39. Under said chapter, the sheriff’s deed is not to be construed as a tax deed, but is to be construed as any other sheriff’s deed; and the owner of the property has no equity of redemption. If the legislature had given some reasonable time within which the owner of the property might redeem the land after the sheriff’s deed was executed, probably no such hardship as the present would have occurred or could occur. Tax deeds may be held void for irregularities that will not render sheriff’s deeds void; but when tax deeds are declared void, the party holding them usually recovers the taxes which he has paid. But if this present deed was held void, there is no provision of statute authorizing the holder thereof, or his grantee, to recover anything. There is no provision of the statute authorizing any equitable adjustment in such cases between the original owner of the land and the holder of the sheriff’s deed, or his grantee. If the sheriff’s deed is valid, it would seem that the holder thereof or his grantee must recover all, and the original owner of the property lose all; but if the sheriff’s deed is void, then the holder of the sheriff’s deed or his grantee must lose all, and the original owner of the property recover all. This would hardly seem just; but yet if it is the law, it must prevail.

The judgment of the court below will be affirmed.

All the Justices concurring.