*fn1 REPORTER'S NOTE: Previously filed as an unpublished
opinion, the Supreme Court granted a motion to publish by an
order dated April 24, 1990, pursuant to Rule 7.04 (1989 Kan. Ct.
R. Annot. 34).
Defendants Phillip and Dorothy Kissling appeal a summary
judgment setting aside a tax foreclosure sale in favor of
plaintiff Michael A. Newman, the alleged owner of the property
who had not received notice of the tax foreclosure proceeding. It
is undisputed that Newman's interest in the property was not of
record. We reverse after concluding that, although the county was
involved in a prior suit which quieted title in third parties
subject to Newman's right to redeem, any knowledge garnered from
that prior suit was not sufficient to require the county either
to inquire regarding Newman's present interest in the property or
to provide notice to Newman in the subsequent tax foreclosure
The facts in this case are not in dispute. In 1976, Newman
entered into an installment contract to purchase 20 acres of
vacant land from the Eilerts and others (all of the owners are
jointly referred to hereafter as "the Eilerts"). Newman is a
licensed realtor, knowledgeable of the recording requirements
involved in the typical real estate transaction.
When no payments were made on the contract for three years, the
Eilerts brought an equitable foreclosure action against Newman in
1986. The Board of County Commissioners of Shawnee County was
also named as a party defendant because real estate taxes on the
20-acre tract were delinquent for the years 1981, 1982, 1983, and
1984 and were due and unpaid for 1985. Pursuant to an agreed
journal entry, Newman was awarded 3 acres of land and was also
given the right to redeem the remaining 17 acres before midnight
on June 30, 1986:
"6. That the defendant should be given the
opportunity to redeem the remainder of said tract of
approximately 17 acres by paying the remaining
principal sum due under the contract with accrued
interest, the court costs and publication fees in
this action on or before midnight, June 30, 1986."
If Newman did not redeem the land, title was quieted in the name
of the original sellers, the Eilerts.
"7. That in the event the defendant, Michael A.
Newman, fails to redeem said property as aforesaid
within said period of time, then title to the
remainder of said tract of approximately 17 acres
should be quieted in [the Eilerts] and the plaintiffs
should be entitled to a writ of possession restoring
them to possession and title of said remaining
The journal entry further provided:
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
title in and to the following tract is hereby quieted
in [the Eilerts] free and clear of any and all claims
of any of the defendants and subject only to the
right of redemption of the defendant, Michael Newman,
as hereinbefore provided."
Newman redeemed the 17 acres prior to the redemption deadline.
Nothing was filed in the action to evidence that Newman had
exercised his right to redeem. The escrow agent sent the deed to
Newman, but he failed to record the deed.
As a party to the Eilert action, the county, through the county
counselor, had knowledge of the above-quoted provisions of the
journal entry which set forth Newman's right to redeem. However,
the county counselor was not notified in any way of Newman's
subsequent redemption of the property.
No real estate taxes had been paid on the 17-acre tract since
1985. In order to institute tax foreclosure proceedings, Shawnee
County contracted with a title company to have it determine who
owned the property. The title company found no evidence of record
that Newman had any interest in the property. Included in the
title company's search was a review of the court records in the
Eilert action. As there was no indication in those records that
Newman exercised his right to redeem or any deed located which
established Newman had any interest in the property, the title
company concluded Newman had no interest in the property and was
not entitled to any notice of the tax foreclosure action.
Therefore, Newman was not named as a party defendant in the tax
foreclosure action and the county did not personally serve Newman
with notice of the tax foreclosure sale. The county did publish
notice of the tax sale as required by K.S.A. 79-2801, thereby
setting forth the legal description of the property. At the tax
sale held on May 16, 1988, Roy Stubblefield purchased the 17
acres for $1,100.
On June 20, 1988, the Kisslings purchased the property from
Stubblefield for $2,605. The Kisslings were aware that
Stubblefield had purchased the land at a tax sale a month
earlier. The Kisslings received a title insurance policy which
excepted any equitable and legal rights of any party to set aside
On July 18, 1988, Newman recorded the deed he had received from
the Eilerts. Newman then filed the present suit to non-confirm
and set aside the foreclosure sale and to quiet title in Newman.
The trial court granted Newman the relief he requested, finding
the county's participation in the prior suit where Newman was
given a right to redeem was enough to require the county to
inquire as to Newman's present interest in the property when the
county instituted tax foreclosure proceedings.
Was Newman entitled to personal service of notice of the tax
The Kisslings contend Newman was not entitled to personal
service of notice of the tax sale because he failed to record ...