(b) Tenants in common. In an action against a tenant in common the petition must state that the defendant either denied plaintiff's right, or did some act amounting to such denial.
(c) Judgment; when plaintiff prevails. If plaintiff prevails the judgment shall be for possession and damages for the loss of rents and profits, if any, and execution to enforce the same shall be issued to the sheriff by the clerk at the written request of the party entitled thereto.
(d) When action becomes moot. If the right of the plaintiff to the possession of the premises expires after the commencement of the suit and before the trial, the judgment shall be for the damages and costs.
History: L. 1963, ch. 303, 60-1001; Jan. 1, 1964.
(b) Action to bar lien claim, when. When a lien on property has ceased to exist, or when an action to enforce a lien is barred by a statute of limitation or otherwise, the owner of the property may maintain an action to quiet title.
History: L. 1963, ch. 303, 60-1002; Jan. 1, 1964.
(2) If the number of shares or interests is known, but the owners thereof are unknown, or if there are, or are supposed to be, any interests which are unknown, contingent or doubtful, these facts must be set forth in the petition with reasonable certainty.
(3) Persons claiming or having a specific or general lien upon all or any portion of the property, may be made parties.
(4) An allegation of ownership of an interest implies an allegation of right to possession of the property, and it is not necessary to claim the remedy of ejectment in an action for partition.
(b) Answer. The answers of the defendants shall include allegations of the nature and extent of their respective interests. They may also deny the interests of any of the plaintiffs, or any of the defendants. Any claim of adverse possession shall be affirmatively pleaded and the burden of proving the same is on the defendant.
(c) Procedure. (1) Order of partition. The judge shall first determine and make an order specifying the interest of the respective parties and directing partition.
(2) Commissioners. Upon making an order of partition, the judge shall appoint three (3) commissioners to partition the property among the parties according to their respective interests, but if such partition cannot be made without manifest injury, or is for any reason impracticable, the commissioners shall appraise the value of the property, valuing each tract separately, if more than one, and report their conclusions to the court.
(3) Exceptions to commissioner's report. Any party may file exceptions to the commissioners' report and the judge may, after hearing with reasonable notice to all parties affected approve or disapprove the same, or make such modifications as justice and equity may require, including an order requiring specific portions of the property to be awarded to specific parties, or direct such further proceedings as the judge deems equitable, but if no exceptions are filed to the commissioners' report as to division in kind the judge shall so enter judgment in accordance with the report.
(4) Election or sale. Where the property is not subject to partition in kind, any one or more of the parties may elect within a time so fixed by the judge to take the property or any separate tract at the appraised value, but if none of the parties elect to so take the property, or two or more elect to so take, in opposition to each other, the judge shall order the sheriff to sell it in the manner provided for sale of property on execution. No sale shall be made at less than two-thirds of the valuation placed upon the property by the commissioners.
(5) Costs and fees. The court making partition shall tax the costs, attorney fees and expenses, including an allowance for preparation or bringing up to date of an abstract of title or title insurance to the real estate involved in the action, which may accrue in the action, and apportion the same among the parties according to their respective interests, and may award execution therefor, as in other cases.
(d) General powers of judge. The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests, or may refuse partition if the same would result in extraordinary hardship or oppression.
History: L. 1963, ch. 303, 60-1003; Jan. 1, 1964.
(b) Procedure. If in any action the judge concludes that the occupying claimant should be dispossessed, the judge shall before entering final judgment determine the compensation due the occupying claimant under the provisions of section 1 [*] of this article or if requested by either party he or she shall submit the question to a jury for determination.
History: L. 1963, ch. 303, 60-1004; Jan. 1, 1964.
(a) Affidavit. The plaintiff shall file an affidavit, unless the plaintiff's petition has been verified, which in either event shall show:
(1) That the plaintiff is the owner of the property claimed, sufficiently describing it, or is lawfully entitled to the possession thereof,
(2) that it is wrongfully detained by the defendant, or if it is held by an officer under legal process, that demand for the same has been made and refused, and
(3) the estimated value thereof.
(b) Hearing, notice; bond. Except as otherwise provided herein, after filing the affidavit or verified petition, the plaintiff shall apply to the court for an order for the delivery of the property to the plaintiffs in the manner prescribed by subsection (b) of K.S.A. 60-207, and amendments thereto, and the motion made thereunder shall be served upon the defendant pursuant to K.S.A. 60-205, and amendments thereto. After a hearing and presentation of evidence on plaintiff's motion, and if the judge is satisfied as to the probable validity of plaintiff's claim and that delivery of the property to the plaintiff is in the interest of justice and will properly protect the interests of all the parties, the judge may enter or cause to be entered an order for the delivery of the property to the plaintiff.
Notwithstanding the foregoing provisions of this subsection, the judge may enter or cause to be entered the order for delivery of property after an ex parte hearing and without notice to and the opportunity for a hearing by the defendant, only if the judge is satisfied as to the probable validity of the following allegations to be contained in plaintiff's affidavit or verified petition:
(1) Possession of the property by the plaintiff is directly necessary to secure an important governmental or general public interest; and
(2) There is a special need for very prompt action due to the immediate danger that the defendant will destroy or conceal the property.
In lieu of the foregoing procedure providing for the issuance of an order for the delivery of the property, the plaintiff may apply to the court for a restraining order directed to the defendant, imposing such conditions and restrictions as the court deems necessary to protect the property during the pendency of the action and to protect the court's jurisdiction over such property. Such restraining order may be issued without the requirement that the plaintiff file a bond as required for issuing an order for the delivery of the property.
Prior to the issuance of the order for delivery of the property, the plaintiff shall file with the clerk of the court in which the action is brought a bond in not less than double the amount of the value of the property as stated in the affidavit or verified petition, or as found by the court at the hearing on plaintiff's motion, with one or more sufficient sureties. It shall be to the effect that plaintiff shall duly prosecute the action, and pay all costs and damages that may be awarded against the plaintiff, and that if the plaintiff is given possession of the property, the plaintiff will return it to defendant if it be so adjudged. If the bond is found to be sufficient, the judge of the district court shall approve the bond and note the judge's approval thereon. The defendant may challenge the sufficiency of the bond as provided in subsection (b) of K.S.A. 60-705, and amendments thereto.
(c) Property in custodia legis. If the property the possession of which is sought is in the custody of an officer under any legal process it shall nevertheless be subject to replevin under this section, but if the same is in the custody of any officer under any process issued out of a judicial proceeding, the petition or affidavit and bond shall be filed in the same proceeding out of which such process issued.
(d) Order for delivery of property. The order for the delivery of the property to the plaintiff shall be delivered to the sheriff of any county in the state in which the property is located. The order shall state the names of the parties, the description of the property and the value as set out in plaintiff's affidavit or verified petition, or as found by the court at the hearing on plaintiff's motion pursuant to subsection (b). It shall command the sheriff to take immediate possession of the property and deliver it to plaintiff at the expiration of 24 hours unless there is compliance with the requirements of subsection (f) and make return of the order on the day named therein. If the sheriff is a party defendant, then the order shall be served upon the sheriff by the clerk of the court.
(e) Return and execution of order. (1) Obtaining possession. In the execution of the order the sheriff may break open any building or enclosure in which the property is located, if the sheriff cannot otherwise obtain possession of the property or entrance.
(2) Execution. The sheriff shall execute the order by taking possession of the property described therein, and serving a copy on the person charged with the unlawful detainer in the same manner as for personal service if the person can be found in the county.
(3) Return. The return day of the order of delivery shall be 20 days after it is issued.
(f) Redelivery bond. The defendant, within 24 hours after service of a copy of the order, may deliver to the sheriff a bond to be approved by the sheriff, in not less than double the amount of the value of the property as stated in the order, with one or more sufficient sureties, and the sheriff shall return the property to the defendant. The bond shall be to the effect that the defendant will deliver the property to the plaintiff if it be so adjudged, and will pay all costs and damages that may be adjudged against the defendant. The sheriff shall file the bond with the clerk after noting approval thereon. If the defendant is a public officer, board, or government agency, such officer, board or agency, in lieu of giving a redelivery bond, may retain possession of the property seized by filing with the clerk within the time required for giving the redelivery bond a writing certifying that the public health, safety or welfare would be jeopardized or impaired if the plaintiff acquired possession of the property prior to final judgment, in which case hearing may be had on the issue of public interest at the instance of any party.
(g) Judgment in action. In an action to recover the possession of personal property, judgment for the plaintiff may be for possession or for the recovery of possession, or the value thereof in case a delivery cannot be had, and for damages for the detention. If the property has been delivered to the plaintiff and the defendant claims a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same.
History: L. 1963, ch. 303, 60-1005; L. 1973, ch. 235, § 1; L. 1992, ch. 314, § 10; July 1.
(a) Affidavit or petition. The plaintiff shall file an affidavit, unless the plaintiff's petition shall have been verified, which in either event shall show: (1) The instrument of indebtedness or the terms thereof; (2) the amount of the indebtedness owed; (3) the security agreement or the terms thereof; (4) a description of the personal property; (5) that plaintiff is lawfully entitled to the foreclosure of the specific personal property; (6) the estimated value of the personal property to the best of plaintiff's knowledge and belief, and when several articles are claimed, the estimated value of each article shall be so stated; and (7) that the personal property is wrongfully detained by the defendant.
(b) Hearing, notice; bond. Except as otherwise provided herein, after filing the affidavit or verified petition, the plaintiff shall apply to the court for an order for the delivery of the property to the plaintiff in the manner prescribed by subsection (b) of K.S.A. 60-207, and amendments thereto, and the motion made thereunder shall be served upon the defendant pursuant to K.S.A. 60-205, and amendments thereto. After a hearing and presentation of evidence on plaintiff's motion, and if the judge is satisfied as to the probable validity of plaintiff's claim and that delivery of the property to the plaintiff is in the interest of justice and will properly protect the interests of all the parties, the judge may enter or cause to be entered an order for the delivery of the property as provided in subsection (c).
Notwithstanding the foregoing provisions of this subsection, the judge may enter or cause to be entered the order for delivery of property after an ex parte hearing and without notice to and the opportunity for a hearing by the defendant, only if the judge is satisfied as to the probable validity of the following allegations to be contained in plaintiff's affidavit or verified petition:
(1) Possession of the property by the plaintiff is directly necessary to secure an important governmental or general public interest; and
(2) There is a special need for very prompt action due to the immediate danger that the defendant will destroy or conceal the property.
In lieu of the foregoing procedure providing for the issuance of an order for the delivery of the property, the plaintiff may apply to the court for a restraining order directed to the defendant, imposing such conditions and restrictions as the court deems necessary to protect the property during the pendency of the action and to protect the court's jurisdiction over such property. Such restraining order may be issued without the requirement that the plaintiff file a bond as required for issuing an order for the delivery of the property.
Prior to issuance of the order for delivery of the property, the plaintiff shall file with the clerk of the court in which the action is brought a bond in not less than double the amount of the estimated value of the property, as stated in the affidavit or verified petition, or as found by the court at the hearing on plaintiff's motion, with one or more sufficient sureties. It shall be in favor of the defendant and shall be to the effect that plaintiff shall duly prosecute the action and pay all costs and damages that may be awarded against the plaintiff, and that if plaintiff is given possession of the property the plaintiff will return it to the defendant if it be so adjudged. If the bond shall be found to be sufficient, the judge of the district court shall approve the same and note approval thereon. The defendant may challenge the sufficiency of the bond in the manner provided in subsection (b) of K.S.A. 60-705, and amendments thereto.
(c) Order. The order shall be delivered to the sheriff of any county in the state in which the property is located. The order shall state the names of the parties, the description of the property and the estimated value as set out in plaintiff's affidavit or verified petition, or as found by the court at the hearing on plaintiff's motion pursuant to subsection (b). It shall command the sheriff to take immediate possession of the property and to keep it until further order of the court, subject to the provisions of subsections (e), (f) and (g), and to make return of the order on the day named therein.
(d) Return and execution of order. (1) Obtaining possession. In the execution of the order the sheriff may break open any building or enclosure in which the property is located, if the sheriff cannot otherwise obtain possession of the property or entrance to the building on demand.
(2) Execution. Such officer shall execute the order by taking possession of the property described therein, and by serving a copy on the person charged with the unlawful detainer. Should the officer be unable to serve the defendant in accordance with the provisions of K.S.A. 60-304, and amendments thereto, but can take possession of the personal property described in the order, the action may proceed to foreclose the security interest once service is made pursuant to K.S.A. 60-307, and amendments thereto.
(3) Perishable goods. When there is actually seized property which is likely to perish or to materially depreciate in value or threatens to decline speedily in value before the probable termination of the suit, or the keeping of which would be attended with unreasonable loss or expense, the court may order the same to be sold by the sheriff on such terms and conditions as the judge may direct, and a return of the proceedings thereon shall be made by the sheriff at a time to be fixed by the judge.
(4) Return. The time for return of the order of delivery shall be as prescribed by subsection (d) of K.S.A. 60-312, and amendments thereto.
(e) Redelivery bond. The defendant, within 24 hours after service of a copy of the order, may deliver to the sheriff a bond to be approved by the sheriff, in not less than double the amount of the value of the property as stated in the order, with one or more sufficient sureties, and the sheriff shall return the property to the defendant. The bond shall be in favor of the plaintiff and shall be to the effect that the defendant will deliver the property to the sheriff if it be so adjudged, and will pay all costs and damages that may be adjudged against the defendant. The sheriff shall file the bond with the clerk after noting approval thereon. If the defendant does not file a redelivery bond as provided above, then the sheriff shall deliver the property to the custody of the plaintiff, unless the plaintiff directs that the officer retain possession of the property and deposits sufficient security, as determined by the court, to pay the cost of storing such property.
(f) Possession in third party. When the sheriff finds the property in possession of a person other than a defendant and deems it advisable to leave such person in possession, the sheriff shall declare to the person in possession that such person shall hold such property in such person's possession, subject to the further order of the court, and shall summon such person as a garnishee by serving upon such person a copy of the order which directs the sheriff to take immediate possession of the property. The sheriff may require of such person in possession an undertaking with good and sufficient sureties in such sum as the sheriff deems sufficient. The undertaking shall be to the effect that such person will deliver the property to the sheriff at the time and place fixed for sale, if such be ordered by the court. The sheriff shall give such person written notice of the time and place fixed for the sale by delivery in person or by restricted mail.
(g) Property claimed by third person. If the sheriff, by virtue of the order, shall take possession of, or be requested by the plaintiff to take possession of, personal property claimed by any person other than a defendant, the sheriff, before proceeding, may require the plaintiff to give the sheriff an undertaking with good and sufficient sureties to pay all costs and damages that the sheriff may sustain by reason of the execution of such order.
(h) Judgment. Judgment for the plaintiff shall be for a money judgment and foreclosure of the security interest, and the plaintiff may proceed to foreclose the security interest in accordance with the terms of the security agreement covering the property, as governed by the provisions of the uniform commercial code, unless the court otherwise directs. If the court directs the plaintiff to proceed to enforce the judgment other than pursuant to the security agreement, and if the judgment is not satisfied within 10 days thereafter, then the clerk shall issue an order of special execution directed to the sheriff to sell the property in accordance with K.S.A. 60-1007, and amendments thereto. If the property is not then in the possession of the sheriff, the order also shall direct the person having possession to deliver such property to the sheriff. If the property has been delivered to the sheriff, and the defendant claims a return thereof, judgment for the defendant may be for a return of the property and damages for the taking and withholding of same.
History: L. 1973, ch. 236, § 1; L. 1992, ch. 314, § 11; July 1.
(b) If the personal property to be sold shall consist of more than one item of property, the sheriff shall sell only so much of the personalty in the sheriff's custody as is necessary to satisfy the judgment, interest and costs, and shall return the balance of any property remaining unsold to the defendant by notifying the defendant of the time and place when same may be obtained.
(c) Neither the sheriff nor any other member of his or her staff may bid at any such sale.
(d) The provisions of K.S.A. 60-2411 relating to advancement of printer's fees shall apply to this section.
History: L. 1973, ch. 236, § 2; L. 1976, ch. 255, § 2; July 1.
History: L. 1973, ch. 236, § 3; July 1.
(b) in accordance with the provisions of K.S.A. 60-2406;
(c) in satisfaction of all judgments rendered in the action against the defendant or the property in accordance with the priority determined by the court;
(d) any surplus shall be paid to the debtor-defendant, except that if any other security interest holder has, subsequent to the entering of the judgment of foreclosure, filed with the clerk of the court a written notification of demand furnishing reasonable proof of his or her interest, the clerk shall withhold any payment to the debtor-defendant. Such security interest holder must serve the debtor-defendant with notice of his or her demand within ten (10) days after such filing and furnish proof of such notice to the court.
If the debtor-defendant does not notify the clerk in writing within ten (10) days that he or she takes exception to the demand of said security interest holder, the clerk shall apply said surplus to the said demand and pay any balance to the debtor-defendant.
If the debtor-defendant does notify the clerk in writing within ten (10) days that he or she takes exception to said demand, the clerk shall withhold all surplus in his or her hands for a period of thirty (30) days. If said security interest holder has not commenced a separate action to recover his or her claim and garnished the clerk within said time, the clerk shall pay said surplus to the debtor-defendant.
History: L. 1973, ch. 236, § 4; July 1.
History: L. 1973, ch. 236, § 5; July 1.
(b) A defendant owner, the tenant of a person subject to civil action as provided in this act or the holder of the mortgage before a sheriff's sale and holder of the certificate of purchase during the period of redemption, shall each have the right to maintain a civil action under the code of civil procedure against any person, corporation, limited liability company, general partnership, limited partnership or joint venture, referred to hereinafter as a person who engaged in the purchase of one, two, three or four family dwellings, including condominiums and cooperatives, or the acquisitions of any right, title or interest therein, including any equity or redemption interests, which are subject to a loan in default at time of purchase or in default within one year subsequent to the purchase if: (1) The loan is secured by a mortgage; (2) the person fails to notify the mortgage holder or holder of the certificate of purchase of the interest acquired, in writing, within 20 days after purchase; and (3) the person fails to apply the rent proceeds from such dwellings to the mortgage as the payments come due, regardless of whether the purchaser is obligated on the loan.
(c) The civil action may allow recovery of all actual damages, court costs and attorney fees in addition to recovery of all rents received by the person.
History: L. 1992, ch. 167, § 2; July 1.