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property. From a judgment for possession
by plaintiff upon payment to defendants of
the amount paid by them as taxes on the
property, plaintiff brings error. Modified.

George P. Uhl, for plaintiff in error.
Kirkpatrick, for defendants in error.

S. S.

would perfect one must follow the plain pro- | Small and others to recover possession of vision of the statute, otherwise he must look to the man with whom he made his contract." Under section 3 of the act of 1872, the statement must contain, not only the amount claimed, but also include, as nearly as practicable, an itemized list of the materials furnished, and the time when they were furnished. The statement including these matters with some other requirements must be verified by affidavit. An unverified list of items filed with the clerk of the district court, and to which no reference is made in the statement, cannot be regarded as a part of the statement, nor even a substantial compliance with the statute. In the first section of the act provision is made for the filing of a copy of a note given for the amount of the indebtedness, and also of a list of items used; but, as has already been decided, this does not dispense with a strict compliance with section 3 of the act, which provides the manner by which a lien may be perfected. Newman v. Brown, supra. In Blattner v. Wadleigh, 48 Kan. 295, 29 Pac. 165, it is held that a lien "is created by the statement filed, containing all the necessary allegations of the statute; and this statement cannot be reinforced by outside reference; it must be complete within itself to have effect as a statutory lien." See, also, Conroy v. Perry, 26 Kan. 472; Hentig v. Sperry, 38 Kan. 459, 17 Pac. 42. The ruling of the court is sustained by the authorities, and its judgment must therefore be affirmed. All the justices concurring.

(54 Kan, 651)

UHL v. SMALL et al.
(Supreme Court of Kansas. Feb. 9, 1895.)
TAX TITLE-PURCHASE BY TENANT-LIEN FOR
TAXES PAID.

1. A tenant in possession of real property, for the use of which he neither agrees to pay rent nor taxes, is not bound, merely because of such occupancy, to redeem the property from back taxes, nor is he estopped from afterwards buying in a tax title based on a tax sale made prior to his taking possession of the same.

2. Though a party in possession of lands under an invalid tax deed is not chargeable with rents or profits until repayment to him of the amount of taxes he has paid, with interest. etc., allowed by law, if he removes from the lands and converts to his own use valuable buildings which were on the lands when the taxes were levied, the value of such buildings will be a valid counterclaim against his lien for taxes; and in determining the amount of taxes, etc., which the successful party in an action of ejectment to recover the property shall be required to pay before being let into possession, the court should deduct therefrom the value of the buildings so removed by the parties holding under the tax deed.

(Syllabus by the Court.)

Error from district court, Wilson county; L. Stillwell, Judge.

Action by George P. Uhl against H. T.

ALLEN, J. The plaintiff, Uhl, brought suit to recover the south half of lot 4 in block 9 in the city of Fredonia. The defendants answered, denying his title. On the trial it was admitted that the plaintiff was the owner of the land, unless the title of John Risse, the plaintiff's grantor, had been divested by a tax deed under which the defendants claim. The tax deed offered in evidence shows that a number of distinct tracts were sold together for one gross sum, and on the issue as to the title to the property the court found in favor of the plaintiff. The defendants thereupon made application for a determination of the amount of taxes paid by them and those under whom they claimed. At a subsequent term of court this matter was considered. The tax deed bears date June 9, 1875, and it is based on the taxes for the year 1871. It appears from the evidence that about the year 1874, John Risse, who then owned the property, put it in charge of Charles Blume to sell. At that time there was a shop, which he used for a stable, and a small house, on the half lot. Blume continued in charge of the property until after the tax deed was issued, and thereafter he paid rent to Roadcap, the grantee named in the tax deed. Afterwards Blume bought the property from the administrator of Roadcap's estate, and the title of the defendants was derived through mesne conveyances from Blume. There is evidence to the effect that the shop was worth about $90, and the house about $50, and it appears that Roadcap moved the house off the lot into the country, and that Erp, to whom Blume conveyed, moved the stable off. Two ques

tions are argued by the plaintiff in error: First. It is claimed that Blume, being in possession of the lot, was bound to pay the taxes on it, and that when he took the conveyance from Roadcap it operated as a redemption of the lot. This contention is not sound. There is nothing to indicate any obligation resting on Blume to pay the taxes of 1871, for which the land was sold. He was not in possession of the property until 1873 or 1874, and, of course, was under no obligation whatever, in the absence of any agreement to do so, to pay any back taxes. Duffitt v. Tuhan, 28 Kan. 292, has no application to the facts in this case. The second contention is that the parties holding under the tax deed, having converted to their own use the buildings on the lot which gave to it its chief value, and on which the taxes forming the basis of their title were levied, cannot retain these improve

ments, and also charge the bare lot with the whole amount of taxes. In this claim we think the plaintiff is right. The party in possession under an invalid tax deed has a right to retain possession of the land, and is not chargeable with rent until repayment of the amount of taxes due him. Hoffmire v. Rice, 22 Kan. 749; Rose v. Newman, 47 Kan. 18, 27 Pac. 181. But this is not a question of mere use and occupation of the land and enjoyment of the rents and profits thereof. The defendants have taken away a part of the realty itself.

The half lot, with these buildings on, was assessed in 1872 at $250, while the north half of the same lot was assessed at only $50; and there is evidence tending to show that the different portions of the lot, exclusive of buildings, were of about equal value. It is manifestly unjust to allow a tax purchaser to convert to his own use buildings which give the principal value to the property, and yet hold a lien on the bare land for taxes, imposed mainly because of the value of the buildings. The court should have deducted the value of the buildings removed by those holding under the tax deed from the amount of taxes found due the defendants, requiring payment of the balance only, if any, before letting the plaintiff into possession of the property. As the value of these buildings was not found by the court, and different valuations are placed on them by different witnesses, we cannot direct the entry of a proper judgment. The case is therefore remanded for determination of the amount of the lien of the defendants for taxes in accordance with the views herein expressed. All the justices concurring.

(54 Kan. 643)

RULLMAN v. BARR.

(Supreme Court of Kansas. Feb. 9, 1895.) DEED AS EVIDENCE DEFECTIVE ACKNOWLEDGMENT-SECONDARY EVIDENCE-CASE MADE -CERTIFICATE OF CLERK.

1. The defective acknowledgment of a deed does not invalidate it, and the deed itself may be offered in evidence although the seal of the officer taking the acknowledgment is not affixed.

2. To admit secondary evidence of a deed alleged to have been lost, the party offering it must have shown that he had in good faith and with reasonable diligence made a search for the same, using such sources of information and means of discovery as were reasonably accessible to him.

3. A certificate of the clerk of the district court attached to a case made, after the same has been settled and signed, to the effect that all of the evidence produced upon the trial is included in such case made, is of no effect; and, unless the case made which is served shows that the evidence is preserved, the sufficiency of the same cannot be reviewed. (Syllabus by the Court.)

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JOHNSTON, J. George W. Barr brought an action to recover from Louis Rullman the possession of two lots situate in the town of Wathena. At the trial, which was had without a jury, the court found in favor of Barr, awarding him full possession of one lot, and the possession of an undivided one-third of the other lot. Rullman alleges error, and his principal complaint is that the findings of the court are not sustained by the evidence. This objection, however, is not available to him, for the reason that it does not appear from the record that all of the testimony has been preserved. There is a certif

icate of the clerk of the district court, made after the case had been settled and signed, to the effect that all of the evidence produced upon the trial was included in the case made, but this is of no effect. Eddy v. Weaver, 37 Kan. 540, 15 Pac. 492; Railroad Co. v. Grimes, 38 Kan. 241, 16 Pac. 472; Lebold v. Ottawa County Bank, 51 Kan. 381, 32 Pac. 1103.

A deed offered by Barr was admitted in evidence, and it is now contended that it was not properly authenticated, and therefore not admissible. The objection is that the notary public did not attach his seal to the acknowledgment. A defective acknowledgment, or the entire absence of one, would not invalidate the deed. If the record of the deed had been offered, the objection would have been material; but as the deed itself was produced, and no special objection was made with reference to its execution, the matter of acknowledgment was not important. Besides, the certificate of the notary specifically recites that he had affixed his notarial seal, and it is said that it was actually so authenticated, but that it was inadvertently omitted in preparing the case made. No error was committed in the admission of the deed.

Another ground of complaint is the exclusion of a deed from Crabb to Taylor, claimed to have been executed in 1863. It was claimed that the deed was executed, but never recorded, and had since been lost. A preliminary inquiry was made as to the execution, destruction, or loss of the deed, and the testimony upon this point failed to convince the trial court that the loss or destruction was sufficiently proved to warrant the admission of secondary evidence. The finding of the court that the testimony was insufficient to account for the loss is controlling here, in view of the fact that all of the testimony is not included in the record. To admit secondary evidence of a deed alleged to have been

Error from district court, Doniphan county; lost, Rullman should have shown that he had James Falloon, Judge pro tem.

Action by George W. Barr against Louis

in good faith, and with reasonable diligence, made a search, using such sources of infor

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1. Where the payee of a negotiable promissory note indorses the same in blank, before it is due, and intrusts it to others upon condition, and with the direction that the proceeds of the note, when collected, shall be applied to a designated use, and those to whom it is intrusted, in violation of instructions and conditions, transfer the note to another as security or in pay ment of a debt, and such party receives it in due course of business, without notice of the conditions or instructions under which it was held, and in good faith, he is entitled to the position of a bona fide holder for value, and to protection against equities, offsets, and other defenses which might have been available between antecedent parties.

2. The testimony examined, and held to be insufficient to sustain the judgment that was rendered.

(Syllabus by the Court.)

to the satisfaction of the Dakin mortgage debt. Afterwards the firm of Bodwell & Hamilton had other dealings with Bemis, and took several notes from him, among which was one for the sum of $2,062, which was secured by another mortgage upon the land previously mortgaged to Judith Dakin. The lastmentioned note was sold and transferred to the First National Bank of Frankfort, and several other of the notes mentioned were used by Bodwell & Hamilton as collateral security to obtain a loan from the National Bank of St. Joseph, Mo. Default having been made in the payment of the Dakin mortgage, a proceeding in foreclosure was begun, in which all of those interested in the land were made parties. All of the various claims and liens were adjusted without difficulty, except the note for $700 due from Gould to Bemis, which, with the mortgage to secure the same, was deposited with Bodwell & Hamilton under the contract heretofore mentioned. From the record it appears that this $700 note, which was payable to the order of Bemis, was indorsed in blank, and left with Rodwell & Hamilton, and that, instead of retaining it and collecting and using the proceeds to discharge the Dakin mortgage debt, in accordance with the agreement, they wrongfully indorsed and transferred the same to the National Bank of St. Joseph, Mo., as collateral security for a loan obtained from that bank, and, subsequently, they made an absolute sale

Error from district court, Phillips county; and transfer of the same in payment of a G. Webb Bertram, Judge.

Action by Judith Dakin against D. D. Bemis and others for foreclosure of a mortgage. The National Bank of St. Joseph, Mo., intervened. From a judgment against the bank, and in favor of defendant Bemis, the bank brings error. Reversed.

Wm. C. Don Carlos, for plaintiff in error. John V. Coon and G. A. Spaulding, for defendants in error

JOHNSTON, J. D. D. Bemis, who was the owner of a quarter section of land in Phillips county, executed a mortgage thereon to Judith Dakin to secure the payment of a debt. Afterwards he sold one-half of the tract to W. J. Gould, and as a part of the purchase price took Gould's note for $700, payable in five years, with annual interest at the rate of 8 per cent. per annum, and took a mortgage on the same land to secure the payment of the note. It was stipulated and agreed in writing by the parties that the $700 debt to be paid by Gould should be paid to Judith Dakin, to extinguish the mortgage debt due to her, and to satisfy and discharge a part of the original mortgage which Bemis executed to her. There was a further stipulation that the note and mortgage given by Gould should be deposited with the banking firm of Bodwell & Hamilton, and that payments made to them thereon should be immediately applied

portion of the debt due from them to the National Bank of St. Joseph. Afterwards Bodwell & Hamilton became insolvent, and when the foreclosure proceeding was begun the National Bank of St. Joseph was allowed to interplead, and set up the Gould note for $700, and under the mortgage to secure the same they claimed a second lien upon the premises. Some of the other claimants contested the validity of the transfer of the $700 note to the National Bank of St. Joseph, alleging that Bemis did not indorse or transfer the note, but merely left the same with Bodwell & Hamilton in trust, the proceeds of which were to be collected by them, and used to extinguish the Dakin debt; that they wrongfully diverted the $700 note so left with them to the National Bank of St. Joseph, which bank obtained no title or ownership therein. Bemis, the payee of the note, also answered, setting up the fraud of Bodwell & Hamilton, and averring that the note was never indorsed or transferred to the bank as its absolute property, but was only delivered as collateral for the debt of Bodwell & Hamilton, and that the debt has since been paid from other collaterals held by the bank. He further avers that the bank is not a bona fide owner or holder for value, but obtained the same unlawfully, and in fraud of the rights of Bemis and the other claimants.

The main issue on this branch of the case was the validity of the transfer of the Gould

note, or whether the bank was a bona fide owner and holder of the same. On this issue the court found against the bank, that Bemis was the owner, and that there was due to him thereon $976.88, and decreed that the money, when collected, should be paid in discharge of the Dakin debt and lien. It is undisputed that the note was negotiable in form; that it was transferred to the bank before due, in the regular course of business; that it was received by the bank in good faith, as collateral security for a loan of money by the bank to Bodwell & Hamilton; and that it was finally transferred absolutely, in partial payment of the debt for which it was originally transferred as security. It was accepted as security for an actual debt, and there is nothing to show that the bank had any notice of the true ownership of the note, or that Bodwell & Hamilton had put it in circulation in violation of any trust or of any condition under which they held it. Under such circumstances, the bank must be regarded as a bona fide holder, unaffected by the wrongful transfer of Bodwell & Hamilton, or of any equities existing as between the antecedent parties. Although there was a denial of the allegation of indorsement and transfer by Bemis, the proof is clear that he did indorse it in blank, and in his own testimony he declines to say that he did not so indorse it. Having indorsed a negotiable promissory note in blank, and intrusted it to others, he cannot complain if he is held liable to an innocent holder for value, although it may have been wrongfully used or diverted from the purpose for which it was intended. Under the unrestricted indorsement, any one without notice of the title had a right to assume that Bodwell & Hamilton were the owners of the same. "The mere possession of a negotiable instrument, payable to order and properly indorsed, is prima facie evidence that the holder is the owner thereof, that he acquired the same in good faith, for full value, in the usual course of business, before maturity, without notice of any circumstance that would impeach its validity, and that he is entitled to recover upon it its full face value, as against any of the antecedent parties." Mann v. Bank, 34 Kan. 747, 10 Pac. 150. It is true that Bodwell & Hamilton committed a flagrant fraud upon Bemis and the other parties in the transfer of the note, but, as Bemis intrusted the paper to others in such form as to enable them to hold themselves out as the absolute owners of the note, he should suffer, rather than the bank, which had no notice or knowledge of the wrong. In such cases the rule is that, of two innocent persons, the one who placed it in the power of others to commit the wrong must suffer for his misplaced confidence, rather than the one who is not in fault. As far as the testimony goes, nothing on the face of the paper or in the circumstances of the transfer would give rise to any

suspicions in regard to the title of Bodwell & Hamilton. They had frequently borrowed money from the bank, and had transferred to it as collateral security numerous promissory notes of their customers, and among them were several others upon which Bemis was liable. The bank, having made a loan upon the pledge and transfer of the collateral security, is entitled to the position of a bona fide holder for value, and to protection against equities, offsets, and other defenses which might have been available between antecedent parties. It is even held that a pre-existing debt affords sufficient consideration for the transfer of collaterals as security for its payment. Best v. Crall, 23 Kan. 482; Swift v. Tyson, 16 Pet. 1; Goodman v. Simonds, 20 How. 343; Oates v. Bank, 100 U. S. 239; Brooklyn, etc., R. Co. v. National Bank, 102 U. S. 14; Spencer v. Sloan, 108 Ind. 183, 9 N. E. 150; Maitland v. Bank, 40 Md. 540; Jones, Pledges, § 107; Story, Prom. Notes, § 195; Daniel, Neg. Inst. § 824 et seq. If there was no indorsement of the note by Bemis, or if the bank knew of the conditions under which Bodwell & Hamilton held the note, the bank would not be entitled to protection as a holder for value. The testimony in the record fails to show that the debt which was secured by the transfer of the note has been paid. Indeed, it would appear that if the note should be collected by the bank, and the proceeds applied on what was due to it from Bodwell & Hamilton, a considerable part of the debt would still remain unsatisfied. We conclude that the testimony is insufficient to sustain the judgment that was rendered, and for that reason there must be a reversal and a new trial. All the justices concurring.

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1. Where property owners assail the validity of a special assessment made for improving a street, the burden rests upon them to establish the invalidity of the proceedings.

2. Where property owners seek to enjoin the levy and collection of a special assessment upon the ground that the petition did not contain the names of three-fourths of the owners of the property fronting on the street to be improved; and where they, in their own testimony, offer the petition to the city council, to which is attached the certificate of the city engineer, stating that the petition was signed by three-fourths of the resident property owners of the property abutting on the street to be improved; and where they also introduce an ordinance providing for the making of the improvement, which also recites that more than threefourths of the property owners had petitioned the mayor and council to make the improvement, and which testimony is received without objection,-it will be held to be a prima facie

showing that the petition had a sufficient number of signers to confer jurisdiction upon the mayor and council.

3. An estimate for the grading of a street, which states the number of cubic yards of earth to be removed, the cost per yard for doing the work, as well as the total cost of the entire work, and which includes the number of feet of sewer pipe required, as well as the size and cost of the same, is sufficient to meet the requirements of paragraph 825 of the General Statutes of 1889.

(Syllabus by the Court.)

Error from court of common pleas, Wyandotte county; Thomas P. Anderson, Judge. Action by G. H. Simmons and others against the city of Argentine and others. From a judgment for plaintiffs, defendants bring error. Reversed.

Thos. J. White and H. A. Bailey, for plaintiffs in error. Younge & Frankey and L. D. L. Tosh, for defendants in error.

JOHNSTON, J. Proceedings were taken by the city of Argentine under which a por tion of Metropolitan avenue was graded, and the cost thereof assessed against the property abutting on the improvement. Some of the owners of the abutting lots brought this action to enjoin the city and its officers from enforcing the levy and collection of the special tax, alleging several grounds of irregularity and invalidity, and the court granted a temporary order of injunction, which was subsequently made perpetual. It is now insisted that the mayor and council acted without jurisdiction, but it is conceded that this is not the ground upon which the decision of the trial court was based. To sustain the ruling, the defendants in error rely solely on the contention that there was such a departure from the statutory requirements as to vitiate the proceedings, and therefore that the mayor and council had no jurisdiction to contract for the improvements, nor to make an assessment to pay for the same. They do not count on any mere irregularity, and concede that, if the proceedings are not absolutely void, the judgment of the trial court should be reversed. They urge that it did not appear that the petition which initiated the proceedings and upon which the council acted was sufficient. As a condition precedent to the making of the improvements, threefourths of the property owners fronting on the street to be graded or improved must petition the council to make the improvement. In their attempt to establish a cause of action, the plaintiffs below introduced the petition, to which was attached the certificate of the city engineer, stating that the petition was signed by three-fourths of the resident property owners of the property abutting on the street to be improved. They also introduced an ordinance providing for the grading of the avenue, which recited that more than three-fourths of the owners

of the real estate fronting on the avenue had petitioned the mayor and council to grade the same. A later ordinance, amending the former, recited the same fact, and all together abundantly established the fact that the petition contained the requisite number of property owners and was legally sufficient. It is true that the petition, upon its face, did not state that the petitioners constituted three-fourths of the property owners; but this is not required. It was the plaintiff's below who assailed the validity of the proceedings, and the burden of proving illegalities must rest upon those objecting to the proceedings. Aside from the presumption that the officers proceeded regularly, and what ought to have been was done, the plaintiffs themselves, by testimony which was received and acted upon without objection, proved that the petition was regular and sufficient. Their testimony also showed a proper estimate by the engineer, that the work was ordered and performed, and that, after the property had been appraised, the cost had been equalized and apportioned upon the abutting property in accordance with the petition and in the manner provided by law. The claim that the petition was so indefinite as to be void is without force, and the further contention that the estimate of the engineer is not in compliance with law cannot be sustained. In it was an estimate of the number of cubic yards of earth to be removed, and the cost per yard for doing the work, as well as the total cost of the grading. It also included the sewer pipes that would be required, as well as the size and cost of the same. This was sufficient to meet the requirements of the statute. Gen. St. 1889, par. 825. There is the further contention that the appraisers were not appointed in the manner provided by law. Appraisers were appointed by resolution. They qualified and acted, and no charge is made that their work was not well done. It is contended that they should have been appointed by ordinance, but the statute does not specifically require the appointment to be made in that manner; and, even if this was a defect, it was at most an irregularity, and not sufficient to destroy the validity of the proceedings. We think that the testimony offered by the plaintiffs below was insufficient to maintain their action, and that the demurrer thereto should have been sustained, and judgment rendered in favor of the city. For this purpose the judgment will be reversed, and the cause remanded. All the justices concurring.

(54 Kan, 630)

BARNARD v. MERCER. (Supreme Court of Kansas. Feb. 9, 1895.) TAXES-PAYMENT BY DRAFT.

1. A county treasurer has no authority to receive a draft in payment of taxes, and where

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