Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

NEWMAN v. BOARD OF SHAWNEE COUNTY COMM'RS

February 9, 1990.

MICHAEL A. NEWMAN, Appellee,
v.
BOARD OF COUNTY COMMISSIONERS OF SHAWNEE COUNTY, KANSAS, Defendant, and J. PHILLIP KISSLING AND DOROTHY C. KISSLING, Appellants.



*fn1 REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish by an order dated April 24, 1990, pursuant to Rule 7.04 (1989 Kan.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 action.

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 tract."

[14 Kan. App. 2d 650]

     

 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 tax sales.

[14 Kan. App. 2d 651]

     

  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 foreclosure sale?
  The Kisslings contend Newman was not entitled to personal service of notice of the tax sale because he failed to record ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.