Printable Format79-2801. Action to enforce lien for unredeemed real estate bid in by county; summons; service by publication; assistance by city in foreclosure proceedings, when. (a) Except as provided by K.S.A. 79-2811, and amendments thereto, whenever real estate has been or shall be sold and bid in by the county at any delinquent tax sale and remains unredeemed on September 1 of the second year after the sale, or any extension thereof as provided by subsection (b) of K.S.A. 79-2401a, and amendments thereto, or whenever real estate described by subsection (a)(2) of K.S.A. 79-2401a, and amendments thereto, has been or shall be sold and bid in by the county at any delinquent tax sale and remains unredeemed on September 1 of the first year after the sale, the board of county commissioners shall order the county attorney or county counselor and it shall be the duty of the county attorney or county counselor to institute an action in the district court, in the name of the board of county commissioners, against the owners or supposed owners of the real estate and all persons having or claiming to have any interest therein or thereto, by filing a petition with the clerk of the court. The board of county commissioners may provide for special legal and other assistance necessary to secure the timely performance of duties required by this act. Whenever the real estate involved is a mineral interest in land which has been severed from the fee, the bringing of the action for the foreclosure of the mineral interest shall be within the discretion of the board of county commissioners. Whenever the aggregate assessed valuation of the real estate subject to sale is less than $300,000, or the aggregate amount of delinquent taxes, including special assessments, is less than $10,000, the bringing of the action shall be within the discretion of the board of county commissioners. The petition shall contain a description of each tract, lot or piece of real estate including, if in a city of the first or second class, the street number or location. The petition shall state, as far as practicable, the amount of taxes, charges, interest and penalties chargeable to each tract, lot or piece of real estate, the name of the owner, supposed owner and party having or claiming to have any interest therein or thereto, and giving the year the real estate was sold for delinquent taxes under the provisions of K.S.A. 79-2302, and amendments thereto. The petition shall request that the court determine the amount of taxes, charges, interest and penalties chargeable to each particular tract, lot or piece of real estate, the name of the owner or party having any interest therein. The petition also shall request that the court adjudge and decree the amount due to be a first and prior lien upon the real estate and that the same be sold at public sale for the satisfaction of the lien, costs, charges and expenses of the proceedings and sale and other necessary relief. The petition shall be filed in duplicate and a copy delivered by the clerk to the county treasurer, who thereafter shall accept no payments of taxes upon the real estate included in the petition except as provided by K.S.A. 79-2801 to 79-2810, inclusive, and amendments thereto.
A summons shall be issued and personally served or publication made as provided in other cases under the code of civil procedure. If service is made by publication, the notice, in addition to the requirements prescribed by the code of civil procedure, shall contain a description of the real estate. Any member of the board of county commissioners, county attorney or county counselor who fails to perform the duties required by this section shall forfeit the office held by the officer. Any person may secure enforcement of the provisions of this act through mandamus. Such proceeding shall be initiated by filing a petition in a court of competent jurisdiction.
(b) The governing body of any city may provide for the rendering of legal and other assistance to the county attorney or county counselor to secure the expeditious judicial foreclosure of real estate on which there is unredeemed delinquent tax liens, including delinquent special assessments. The provision of such services by the city shall not relieve any county officer of the requirement to perform the duties required by this act. The actual and necessary costs incurred by a city in providing such assistance shall be considered as costs incident to the sale of the real estate and the city may be reimbursed therefor from the proceeds of the sale in an amount apportioned pursuant to K.S.A. 79-2805, and amendments thereto.
(c) If the board of county commissioners fails to initiate proceedings for a judicial tax foreclosure sale on property located within the corporate limits of a city and if the taxes on such property have remained delinquent for at least three years after such property first becomes eligible for sale by the county at a judicial tax foreclosure sale pursuant to K.S.A. 79-2801 et seq., and amendments thereto, the governing body of the city in which such property is located may initiate a judicial tax foreclosure sale on such property. The governing body of such city shall have the same powers and duties of the board of county commissioners under K.S.A. 79-2801 et seq., and amendments thereto, which are necessary to effectuate the sale of such property. The city attorney of such city shall have the same powers and duties of the county attorney or county counselor under K.S.A. 79-2801 et seq., and amendments thereto, relating to the judicial tax foreclosure sale of such property. All other county officers shall perform the duties prescribed by law relating to the sale of such property in the same manner as if such sale had been initiated by the board of county commissioners.
History: L. 1901, ch. 392, § 1; R.S. 1923, 79-2801; L. 1931, ch. 306, § 1; L. 1933, ch. 312, § 11; L. 1941, ch. 375, § 16; L. 1945, ch. 362, § 1; L. 1949, ch. 477, § 1; L. 1968, ch. 398, § 4; L. 1984, ch. 355, § 3; L. 1985, ch. 320, § 1; L. 1986, ch. 379, § 1; L. 1992, ch. 320, § 4; L. 1993, ch. 257, § 2; L. 2001, ch. 214, § 2; July 1.
Source or prior law:
L. 1877, ch. 39, § 1.
Law Review and Bar Journal References:
Service by publication provision discussed in note on constitutional law and publication notice as fulfilling due process requirements, 11 K.L.R. 396 (1963).
"Mineral Reservations by States and Counties in Property Acquired by Tax Foreclosures," Alan L. Roff, 14 K.L.R. 637, 646 (1966).
Case note discussing insufficient notice by publication, 16 K.L.R. 623 (1968).
"Survey of Kansas Law: Taxation," Sandra Craig McKenzie and Virginia Ratzlaff, 33 K.L.R. 71, 92 (1984).
Attorney General's Opinions:
Judicial foreclosure and sale of real estate; initiation by county; multiple petitions. 84-14.
Collection and cancellation of taxes; action for debt to collect taxes. 85-5.
Real estate brokers and salesmen; exemptions from licensing requirement. 86-111.
County counselor; duties; who may hold public office. 86-174.
Real estate foreclosure by county; order of sale, deed, execution and recordation; tax lien. 88-175.
Real estate foreclosure and sale by county; recordation; filing fees; purchase by county or city. 91-90.
Provisions of K.S.A. 79-2024 do not repeal by implication any provisions of K.S.A. 79-2803, providing for real estate redemption prior to foreclosure. 94-122.
Tax foreclosure proceedings; K.S.A. 60-2201 and doctrine of lis pendens applied. 97-87.
CASE ANNOTATIONS
1. Service of summons; personal service as distinguished from constructive service. Atchison County v. Challiss, 65 Kan. 179, 69 P. 173; Thisler v. Little, 86 Kan. 787, 790, 121 P. 1123.
2. Act not unconstitutional as vesting discretion in board of commissioners. Baker v. Atchison County, 67 Kan. 527, 73 P. 70.
3. Holder of unrecorded deed has rights as purchaser pendente lite. Atchison County v. Lips, 69 Kan. 252, 254, 76 P. 851.
4. Result of forfeiture of contract for school lands; liens extinguished. Russell County v. Mahoney, 69 Kan. 661, 77 P. 692.
5. Consolidation of suits; taxation of costs; illegal increment eliminated; limitation of action on liability created by statute not applicable. Whitney v. Morton County, 73 Kan. 502, 503, 85 P. 530.
6. Opening judgment rendered on publication service; illegal taxes; full answer. Williams v. Kiowa County, 74 Kan. 693, 694, 88 P. 70.
7. Commissioners not limited to one proceeding; court may consolidate actions. Douglass v. Leavenworth County, 75 Kan. 6, 7, 8, 88 P. 557.
8. Judgment under act is simply for foreclosure of tax lien. Davidson v. Cattle Co., 76 Kan. 462, 466, 92 P. 705.
9. Foreclosure of tax lien; liability of city to contractor. Atchison v. Friend, 78 Kan. 30, 32, 96 P. 348.
10. Decree of foreclosure on publication service cannot be attacked collaterally. Sheehy v. Lemons, 99 Kan. 283, 284, 161 P. 662; Training School v. White, 110 Kan. 498, 499, 204 P. 688.
11. County not an ordinary purchaser at tax sale. Warner v. Pile, 105 Kan. 724, 727, 185 P. 1041.
12. Publication service on unknown devisees of deceased landowners is proper. Training School v. White, 110 Kan. 498, 499, 204 P. 688.
13. Foreclosure tax lien; title holder not personally liable for deficiency. Ness County v. Light & Ice Co., 110 Kan. 501, 204 P. 536.
14. Foreclosure of tax lien; insufficient application to open judgment. Wyandotte County v. Kerr, 112 Kan. 463, 211 P. 128.
15. Tax-lien foreclosure judgment held void; R.S. 1923, K.S.A. 79-2324 through 79-2326 construed. Crawford County Comm'rs v. Radley, 134 Kan. 704, 707, 8 P.2d 386.
16. Sale of land for taxes through mistake set aside; caveat emptor. Isenhart v. Powers, 135 Kan. 111, 114, 9 P.2d 988.
17. County failing to foreclose lien cannot enjoin waste. Crawford County Comm'rs v. Kurent, 138 Kan. 556, 557, 27 P.2d 226.
18. L. 1935, ch. 307 (see K.S.A. 79-2415), did not suspend operation of this and following sections. Pawnee County Comm'rs v. Adams, 144 Kan. 787, 788, 62 P.2d 844.
19. Action brought prior to prescribed period did not render judgment void; waiver. Moore v. Graham, 151 Kan. 193, 197, 98 P.2d 111.
20. L. 1937, ch. 365, and L. 1939, ch. 326 (see K.S.A. 79-2415), do not prevent proceedings under this act. Labette County Comm'rs v. Abbey, 151 Kan. 710, 711, 713, 100 P.2d 720.
21. Oil "royalty" interest extinguished by judicial tax foreclosure of "mineral" interest. Rathbun v. Williams, 154 Kan. 601, 603, 121 P.2d 243.
22. Special tax bill liens concurrent with general tax lien are extinguished by tax foreclosure. Wyandotte County Comm'rs v. Adams, 155 Kan. 160, 164, 123 P.2d 818.
23. Various constitutional objections considered and act held valid; special tax bill lien concurrent with general tax lien. State v. Wyandotte County Comm'rs, 154 Kan. 222, 223, 224, 229, 230, 232, 117 P.2d 591.
24. Current unpaid taxes should be included in tax foreclosure judgment. Shawnee County Comm'rs v. Abbott, 155 Kan. 154, 158, 123 P.2d 318.
25. Abstractor's fee for searching records may be, but fee of attorney assisting county attorney cannot be, included in judgment. Womer v. Aldridge, 155 Kan. 446, 447, 448, 449, 450, 451, 125 P.2d 392.
26. Judgment will not be disturbed on appeal from order confirming sale. Mitchell County Comm'rs v. Allen, 156 Kan. 701, 703, 137 P.2d 143.
27. 1941 act is constitutional; amendments procedural not substantive. Wyandotte County Comm'rs v. General Securities Corp., 157 Kan. 64, 65, 67, 68, 69, 70, 72, 78, 138 P.2d 479.
28. Sheriff's deed subject to subsequent installments of special tax bills upheld. Wyandotte County Comm'rs v. Adams, 157 Kan. 80, 138 P.2d 490.
29. Showing necessary to vacate judgment obtained by publication service determine. Sherman County Comm'rs v. Demaree, 157 Kan. 478, 479, 142 P.2d 722.
30. Purpose and history of act discussed; construed. State, ex rel., v. Shawnee County Comm'rs, 159 Kan. 87, 91, 151 P.2d 700.
31. Party made defendant but not as owner; effect when actually owner; jurisdiction. Sheridan County Comm'rs v. Acre, 160 Kan. 278, 284, 286, 288, 160 P.2d 250.
32. Discussed; quiet title action cannot collaterally attack final tax foreclosure judgment. Magnolia Petroleum Co. v. Moyle, 160 Kan. 722, 725, 726, 165 P.2d 419. Reversed: 162 Kan. 133, 138, 140, 149, 153, 175 P.2d 133. Affirmed: 163 Kan. 368, 182 P.2d 127. But see Phillips Petroleum Co. v. Moore, 179 Kan. 482, 490, 297 P.2d 183.
33. Judgment based on service at residence valid; receipt of summons. Sedgwick County Comm'rs v. Ellis, 161 Kan. 631, 170 P.2d 145.
34. Tax foreclosure is proceeding in rem; jurisdiction of res essential. Magnolia Petroleum Co. v. Moyle, 162 Kan. 133, 138, 140, 149, 153, 175 P.2d 133. Affirmed: 163 Kan. 368, 182 P.2d 127. Overruled: Phillips Petroleum Co. v. Moore, 179 Kan. 482, 490, 297 P.2d 183.
35. District court properly refused to confirm sale; irregularities. Cherokee County Comm'rs v. Barnard, 162 Kan. 500, 502, 178 P.2d 189.
36. Civil code governs procedure in absence of express provision herein. Moorhead v. Guliford, 163 Kan. 730, 732, 186 P.2d 275.
37. Discussed; levy of execution of royalty assignment held invalid. Robison v. Robison, 165 Kan. 494, 499, 196 P.2d 159.
38. Court without jurisdiction if taxes not delinquent. Shell Oil Co. v. Board of County Comm'rs, 165 Kan. 642, 645, 646, 647, 649, 651, 197 P.2d 925. Overruled, Phillips Petroleum Co. v. Moore, 179 Kan. 482, 490, 297 P.2d 183.
39. Publication service on corporation considered and held sufficient. Board of County Comm'rs of Cherokee County v. Smith, 169 Kan. 623, 626, 220 P.2d 131.
40. Cotenancy extinguished where property purchased by third party; repurchase by cotenant, effect. Pease v. Snyder, 169 Kan. 628, 631, 220 P.2d 151.
41. Incumbent county commissioner in private capacity not an eligible purchaser. Shell Oil Co. v. Board of County Comm'rs, 171 Kan. 159, 164, 165, 167, 169, 231 P.2d 220. Affirmed: 171 Kan. 595, 596, 237 P.2d 257.
42. Sheriff's deed conveys title only to land on which taxes are unpaid. In re Moore, 173 Kan. 820, 827, 252 P.2d 875.
43. Where taxes are not delinquent, foreclosure sale void. Board of County Comm'rs v. Allen, 175 Kan. 460, 461, 463, 264 P.2d 916. Overruled: Phillips Petroleum Co. v. Moore, 179 Kan. 482, 490, 297 P.2d 183.
44. Federal and state constitutional objections considered; section held valid. Phillips Petroleum Co. v. Moore, 179 Kan. 482, 488, 489, 490, 297 P.2d 183.
45. Procedure for publication service in tax foreclosure action held not violative of this section. Phillips Petroleum Co. v. Moore, 179 Kan. 482, 490, 297 P.2d 183. Overruling four cases on subject of when action to vacate tax foreclosure may be commenced, to wit: Magnolia Petroleum Co. v. Moyle, 162 Kan. 133, 175 P.2d 133; Magnolia Petroleum Co. v. Moyle, 163 Kan. 368, 182 P.2d 127; Shell Oil Co. v. Board of County Comm'rs, 165 Kan. 642, 197 P.2d 925; Board of County Comm'rs v. Allen, 175 Kan. 460, 264 P.2d 916.
46. Proceedings under act are in rem; procedure is complete, independent code. Phillips Petroleum Co. v. Moore, 179 Kan. 482, 489, 297 P.2d 183.
47. Procedure statutory; general statutes inapplicable; construed, discussed. Jesberg v. Klinger, 184 Kan. 519, 522, 523, 524, 337 P.2d 660.
48. Foreclosure judgment cannot be vacated or corrected after time limited by K.S.A. 79-2804b. Board of County Commissioners v. Abbott, 185 Kan. 687, 692, 693, 347 P.2d 410.
49. Tax foreclosure judgment; provisions limiting time for challenge (K.S.A. 79-2804b) applicable to owners though not parties to action. Robertson v. Lemmon, 189 Kan. 619, 623, 371 P.2d 175.
50. Lawful assessment of taxes remaining unpaid is condition precedent to action hereunder. Armstrong v. Royalty Holding Co., 214 F.2d 286, 288.
51. Certain proceedings under this and succeeding sections resulted in deprivation of property without due process. Pierce v. Board of County Commissioners, 200 Kan. 74, 78, 80, 434 P.2d 858.
52. Exclusive procedure provided under this section and succeeding sections subject to due process requirements. Chapin v. Aylward, 204 Kan. 448, 454, 464 P.2d 177.
53. Tax foreclosure action filed by board of county commissioners; service by publication; reversed. Board of Sedgwick County Commissioners v. Fugate, Administrator, 210 Kan. 185, 499 P.2d 1101.
54. Service by publication held sufficient to satisfy constitutional requirements of due process and equal protection of laws; description sufficient. Board of County Commissioners v. Alldritt, 217 Kan. 331, 333, 335, 536 P.2d 1377.
55. County's failure to attempt service on defendant after notice of defendant's interest in the property violated defendant's right of due process. Board of Leavenworth County Comm'rs v. Cunningham, 5 Kan. App. 2d 508, 509, 512, 619 P.2d 525.
56. Sale of property set aside for failure to include as necessary parties all persons having or claiming interest in property. Board of Johnson County Comm'rs v. Roberts, 231 Kan. 135, 138, 139, 140, 143, 643 P.2d 138 (1982).
57. Allegations of constructive fraud cannot be raised for first time in tax foreclosure action; exhaustion of administrative remedies required. Board of Osage County Comm'rs v. Schmidt, 12 Kan. App. 2d 812, 815, 758 P.2d 254 (1988).
58. County not required to serve notice on redeeming party who failed to notify county of interest in property. Newman v. Board of Shawnee County Comm'rs, 14 Kan. App. 2d 648, 653, 804 P.2d 353 (1990).
59. Only one filing fee may be charged in action hereunder regardless of number of parcels sold in sale. Board of Sedgwick County Comm'rs v. Graham, 254 Kan. 260, 864 P.2d 1141 (1993).
60. BOTA had jurisdiction to consider taxpayer's valuation appeal; trial court reversed. In re Tax Protests & Grievances of Curtis Machine Co., 26 Kan. App. 2d 395, 397, 985 P.2d 725 (1999).
61. Trial court's refusal to confirm tax foreclosure sale of valuable farm ground affirmed. Board of Reno County Comm'rs. v. Akins, 271 Kan. 192, 21 P.3d 535 (2001).
62. Party dissatisfied with appraisers' award under K.S.A. 12-527 has right to trial de novo on reasonableness of award. Rural Water District No. 2 v. City of Louisburg, 288 Kan. 811, 207 P.3d 1055 (2009).