Shields v. Miller

9 Kan. 390

• Court: Supreme Court of Kansas
• Decided: January 15, 1872
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

This was an action for the recovery of real property. Charles P.. Bullock was the original owner of the land in controversy, the common source of title of both the plaintiff and the defendants. The plaintiff claims title to the land under a quitclaim deed from Bullock to himself, dated February 5th 1870. The defendants claim title under a sheriff’s deed executed November 17th, 1865, in pursuance of a judgment, execution, etc., against Bullock. And the whole controversy in this case, so far as it is now presented, depends-mpon the validity of said sheriff’s deed.

The sheriff’s deed was introduced in evidence prior to any •evidence being introduced to prove the existence of any judgment, execution, or sale. This was not erroneous. The ¡statute of this state concerning sheriff’s deeds, and sheriff’s .sales, provides that “The deed shall be sufficient evidence of the legality of such sale, and the proceedings therein, until the contrary be proved, and shall vest in the purchaser as good and as perfect an estate in the premises therein mentioned as was vested in the party, at or after the time w'hen such lands and tenements became liable to the satisfaction of the judgment.” (Civil code, Comp. Laws, 200, §450; Gen. Stat., 717, § 459.) The sheriff’s deed proves prima fade under said statute that the sale under which it was made was legal. This it could not do, unless it also proved prima fade that the judgment and execution under which the sale was made were also valid. A judgment cannot be void, and the sale made under it legal and valid. If the judgment is illegal and void the sale must also necessarily be illegal and void. A sheriff’s deed is therefore of itself prima fade evidence-that the grantee holds all the title and interest in the land that was held by the judgment-debtor at the time of the rendition of the judgment, or at any time thereafter up to the time of the sale of the premises; and it is prima fade evidence of the validity of the judgment itself. After the sheriff’s deed was introduced in evidence the plaintiff introduced the record of the oase in which the deed was executed to show that the deed, and all the proceedings upon which it-was founded, were void. The foundation of the deed was an action to foreclose a mortgage on the land in controversy. The service of the summons in said action was by publication in a newspaper. The defendant was never personally served, and he never made any appearance in the case. The plaintiff in this case claims that the service by publication was void, and therefore that the court never obtained any jurisdiction of the defendant in the foreclosure case, and therefore that the judgment in that case, and all proceedings under it, including the sheriff’s deed, were void. This kind of action, (that is, an action to foreclose a mortgage on real estate,) must be commenced in the county in which the-land is situated: Civil code, Comp. Laws, 132, §52; Gen. Stat., 638, §46. But a summons may be issued to any county in the state, and there be personally served upon the defendant: Comp. Laws, 134, § 66; Gen. Stat., 641, § 60. Where the defendant is a nonresident of the state, service may be made upon him by publication in a newspaper: Comp. Laws, 136, § 78; Gen.’ Stat.,. 642, §72. But “Before service can be made by publication, •an affidavit must be filed, that service of a summons cannot be made within this state, on the defendant or defendants, to be served by publication. * * * When such affidavit is filed, the party may proceed to make service by publication.” Comp. Laws, 136, § 79; Gen. Stat., 643, § 73. At the time this foreclosure suit was commenced the defendant Bullock was a nonresident of the state, having prior thereto gone from this state to the state of Missouri. But no affidavit was made or filed in the case showing that service of a summons could not be made personally upon him within this state. For this reason it is claimed that all the proceedings, including the sheriff’s deed, were void. There was an affidavit made and filed in said case for the purpose of obtaining service by publication; but from anything that appears in said ■affidavit the defendant may have been in Bourbon county, or .even on the land in controversy, when this affidavit was filed, and might therefore have easily been served with a summons in this state. This defect in the affidavit we think is fatal. 'The law is explicit and peremptory, and there is no way of evading it. The affidavit is the foundation upon which jurisdiction is obtained. The plaintiff has no authority or power to obtain service by publication until after he has filed the proper affidavit. Without the affidavit the attempted service by publication is a nullity. And without a valid service, every subsequent proceeding, including the judgment, the .execution, or order of sale, the sale, and the deed, must necessarily be void. Section 60 of the civil code of 1859, as .amended in 1860 (Comp. Laws, 133, § 60; id., 233, § 1,) has no application to this foreclosure case. The court below seems to have supposed otherwise: (see instruction No. 8.) This case was an action “for the sale of real property under a mortgage,” as mentioned in § 52 of said code, and was not the “other action” mentioned in said § 60 of the code. The •court below instructed the jury in the case at bar that they must find for the defendants. This was error. The judgment must therefore be reversed and cause remanded for a new trial.

All the Justices concurring,