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would perfect one must follow the plain pro- | Small and others to recover possession of vision of the statute, otherwise he must look property. From a judgment for possession to the man with whom he made his con- by plaintiff upon payment to defendants of tract.” Under section 3 of the act of 1872, the amount paid by them as taxes on the the statement must contain, not only the property, plaintiff brings error. Modified. amount claimed, but also include, as nearly as practicable, an itemized list of the mate

George P. Uhl, for plaintiff in error. S. S. rials furnished, and the time when they were Kirkpatrick, for defendants in error. furnished. The statement including these matters with some other requirements must ALLEN, J. The plaintiff, Uhl, brought suit be verified by affidavit. An unverified list to recover the south half of lot 4 in block 9 of items filed with the clerk of the district in the city of Fredonia. The defendants ancourt, and to which no reference is made in swered, denying his title. On the trial it was the statement, cannot be regarded as a part admitted that the plaintiff was the owner of of the statement, nor even a substantial com- the land, unless the title of John Risse, the pliance with the statute. In the first sec- plaintiff's grantor, had been divested by a tax tion of the act provision is made for the filing deed under which the defendants claim. of a copy of a note given for the amount of The tax deed offered in evidence shows that the indebtedness, and also of a list of items a number of distinct tracts were sold together used; but, as has already been decided, this for one gross sum, and on the issue as to the does not dispense with a strict compliance title to the property the court found in favor with section 3 of the act, which provides the of the plaintiff. The defendants thereupon manner by which a lien may be perfected. made application for a determination of the Newman v. Brown, supra.

In Blattner v. amount of taxes paid by them and those unWadleigh, 48 Kan. 295, 29 Pac. 165, it is der whom they claimed. At a subsequent held that a lien “is created by the statement term of court this matter was considered. filed, containing all the necessary allegations | The tax deed bears date June 9, 1875, and it is of the statute; and this statement cannot be based on the taxes for the year 1871. It apreinforced by outside reference; it must be pears from the evidence that about the year complete within itself to have effect as a 1874, John Risse, who then owned the propstatutory lien.” See, also, Conroy v. Perry, | erty, put it in charge of Charles Blume to sell. 26 Kan. 472; Hentig v. Sperry, 38 Kan. 459, At that time there was a shop, which he used 17 Pac. 42. The ruling of the court is sus- for a stable, and a small house, on the half tained by the authorities, and its judgment | lot. Blume continued in charge of the propmust therefore be affirmed. All the justices / erty until after the tax deed was issued, and concurring.

thereafter he paid rent to Roadcap, the grantee named in the tax deed. Afterwards

Blume bought the property from the admin(54 Kan. 651)

istrator of Roadcap's estate, and the title of UHL V. SMALL et al.

the defendants was derived through mesne (Supreme Court of Kansas. Feb. 9, 1895.)

conveyances from Blume. There is evidence

to the effect that the shop was worth about Tax TITLE-PURCHASE BY TENANT-LIEN FOR Taxes Paid.

$90, and the house about $50, and it appears 1. A tenant in possession of real property,

that Roadcap moved the house off the lot infor the use of which he neither agrees to pay

to the country, and that Erp, to whom Blume rent nor taxes, is not bound, merely because of conveyed, moved the stable off.

Two quessuch occupancy, to redeem the property from

tions are argued by the plaintiff in error: back taxes, nor is he estopped from afterwards buying in a tax title based on a tax sale made

First. It is claimed that Blume, being in posprior to his taking possession of the same. session of the lot, was bound to pay the taxes

2. Though a party in possession of lands on it, and that when he took the conveyance under an invalid tax deed is not chargeable with rents or profits until repayment to him of the

from Roadcap it operated as a redemption of amount of taxes he has paid, with interest, etc., the lot. This contention is not sound. There allowed by law, if he removes from the lands is nothing to indicate any obligation resting and converts to his own use valuable buildings

on Blume to pay the taxes of 1871, for which which were on the lands when the taxes were levied, the value of such buildings will be a valid the land was sold. He was not in possession counterclaim against his lien for taxes; and in of the property until 1873 or 1874, and, of determining the amount of taxes, etc., which the

course, was under no obligation whatever, successful party in an action of ejectment to recover the property shall be required to pay be

in the absence of any agreement to do so, to fore being let into possession, the court should pay any back taxes.

Duffitt v. Tuhan, 28 deduct therefrom the value of the buildings so Kan. 292, has no application to the facts in removed by the parties holding under the tax

this case. The second contention is that the deed.

parties holding under the tax deed, having (Syllabus by the Court.)

converted to their own use the buildings on Error from district court, Wilson county; the lot which gave to it its chief value, and L. Stillwell, Judge.

on which the taxes forming the basis of their Action by George P. Uhl against H. T. title were levied, cannot retain these improvements, and also charge the bare lot with the Rullman. From a judgment for plaintiff, dewhole amount of taxes. In this claim we fendant brings error. Affiried. think the plaintiff is right. The party in possession under an invalid tax deed has a right

Fred J. Close, for plaintiff in error. S. L. to retain possession of the land, and is not

Ryan and J. J. Baker, for defendant in error. chargeable with rent until repayment of the amount of taxes due him. Hoffmire v. Rice, JOHNSTON, J. George W. Barr brought 22 Kan. 749; Rose v. Newman, 47 Kan. 18, an action to recover from Louis Rullman the 27 Pac. 181. But this is not a question of possession of two lots situate in the town of mere use and occupation of the land and en- Wathena. At the trial, which was had withjoyment of the rents and profits thereof. The out a jury, the court found in favor of Barr, defendants have taken away a part of the awarding him full possession of one lot, and realty itself. The half lot, with these build- the possession of au undivided one-third of ings on, was assessed in 1872 at $250, while the other lot. Rullman alleges error, and the north half of the same lot was assessed at his priucipal complaint is that the findings only $50; and there is evidence tending to of the court are not sustained by the evishow that the different portions of the lot, ex- dence. This objection, however, is not availclusive of buildings, were of about equal able to him, for the reason that it does not value. It is manifestly unjust to allow a tax appear from the record that all of the testipurchaser to convert to his own use buildings mony has been preserved. There is a certifwhich give the principal value to the proper- icate of the clerk of the district court, made ty, and yet hold a lien on the bare land for after the case had been settled and signed, taxes, imposed mainly because of the value to the effect that all of the evidence produced of the buildings. The court should have de- upon the trial was included in the case ducted the value of the buildings removed made, but this is of no effect. Eddy v. Weavby those holding under the tax deed from the er, 37 Kan. 540, 15 Pac. 492; Railroad Co. v. amount of taxes found due the defendants, Grimes, 38 Kan. 241, 16 Pac. 472; Lebold v. requiring payment of the balance only, if any, Ottawa County Bank, 51 Kan. 381, 32 Pac. before letting the plaintiff into possession of 1103. the property. As the value of these build- A deed offered by Barr was admitted in evings was not found by the court, and different idence, and it is now contended that it was valuations are placed on them by different not properly authenticated, and therefore not witnesses, we cannot direct the entry of a admissible. The objection is that the notary proper judgment. The case is therefore re- | public did not attach his seal to the acknowl. manded for determination of the amount of edgment. A defective acknowledgment, or the lien of the defendants for taxes in ac- the entire absence of one, would not invalicordance with the views herein expressed. date the deed. If the record of the deed had All the justices concurring.

been offered, the objection would have been material; but as the deed itself was pro

duced, and no special objection was made (54 Kan. 613)

with reference to its execution, the matter of

acknowledgment was not important. Besides, RULLMAN V. BARR.

the certificate of the notary specifically re(Supreme Court of Kansas. Feb. 9, 1895.)

cites that he had affixed his notarial seal, and DEED AS EVIDENCE DEFECTIVE ACKNOWLEDG- it is said that it was actually so authenticated, MENT-SECONDARY EVIDENCE-CASE MADE but that it was inadvertently omitted in pre-CERTIFICATE OF CLERK.

paring the case made. No error was com1. The defective acknowledgment of a deed

mitted in the admission of the deed. does not invalidate it, and the deed itself may be offered in evidence although the seal of the

Another ground of complaint is the excluofficer taking the acknowledgment is not af- sion of a deed from Crabb to Taylor, claimed fixed.

to have been executed in 1863. It was claim2. To admit secondary evidence of a deed

ed that the deed was executed, but never realleged to have been lost, the party offering it must have shown that he had in good faith corded, and had since been lost. A prelimand with reasonable diligence made a search inary inquiry was made as to the execution, for the same, using such sources of informa

destruction, or loss of the deed, and the testion and means of discovery as were reasonably accessible to him.

timony upon this point failed to convince the 3. A certificate of the clerk of the district trial court that the loss or destruction was court attached to a case made, after the same sufficiently proved to warrant the admission has been settled and signed, to the effect that all of the evidence produced upon the trial is

of secondary evidence. The finding of the included in such case made, is of no effect; court that the testimony was insufficient to and, unless the case made which is served account for the loss is controlling here, in shows that the evidence is preserved, the suf

view of the fact that all of the testimony is ficiency of the same cannot be reviewed. (Syllabus by the Court.)

not included in the record. To admit second

ary 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.

in good faith, and with reasonable diligence, Action by George W. Barr against Louis made a search, using such sources of inforration and means of discovery as were rea- to the satisfaction of the Dakin mortgage sonably accessible to him. From the testi- debt. Afterwards the firm of Bodwell & mony which is in the record, it appears that Hamilton had other dealings with Bemis, and this was not done, and hence it cannot be took several notes from him, among which held that error was committed in refusing was one for the sum of $2,062, which was setestimony of the contents of the deed. The cured by another mortgage upon the land prejudgment of the district court will be affirm- | viously mortgaged to Judith Dakin. The lasted. All the justices concurring.

mentioned note was sold and transferred to the First National Bank of Frankfort, and

several other of the notes mentioned were (54 Kan. 656)

used by Bodwell & Hamilton as collateral NATIONAL BANK OF ST. JOSEPH v.

security to obtain a loan from the NationDAKIN et al.

al Bank of St. Joseph, Mo. Default having

been made in the payment of the Dakin mort(Supreme Court of Kansas. Feb. 9, 1895.)

gage, a proceeding in foreclosure was begun, in NEGOTIABLE INSTRUMENTS BONA FIDE HOLDERS

which all of those interested in the land were -UNAUTHORIZED USE.

made parties. All of the various claims and 1. Where the payee of a negotiable promis

liens were adjusted without difficulty, except sory note indorses the same in blank, before it is due, and intrusts it to others upon condition,

the note for $700 due from Gould to Bemis, and with the direction that the proceeds of the which, with the mortgage to secure the same, note, when collected, shall be applied to a des was deposited with Bodwell & Hamilton un. ignated use, and those to whom it is intrusted,

der the contract heretofore mentioned. From in violation of instructions and conditions, trang. fer the note to another as security or in pay. the record it appears that this $700 note, ment of a debt, and such party receives it in which was payable to the order of Bemis, due course of business, without notice of the

was indorsed in blank, and left with Bodwell conditions or instructions under which it was held, and in good faith, he is entitled to the

& Hamilton, and that, instead of retaining it position of a bona fide holder for value, and to and collecting and using the proceeds to disprotection against equities, offsets, and other

charge the Dakin mortgage debt, in accorddefenses which might have been available be

ance with the agreement, they wrongfully intween antecedent parties.

2. The testimony examined, and held to dorsed and transferred the same to the Nabe insufficient to sustain the judgment that was tional Bank of St. Joseph, Mo., as collateral rendered.

security for a loan obtained from that bank, (Syllabus by the Court.)

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.

portion of the debt due from them to the Na. Action by Judith Dakin against D. D. Be- tional Bank of St. Joseph. Afterwards Bodmis and others for foreclosure of a mortgage.

well & Hamilton became insolvent, and when The National Bank of St. Joseph, Mo., inter- the foreclosure proceeding was begun the Navened. From a judgment against the bank,

tional Bank of St. Joseph was allowed to inand in favor of defendant Bemis, the bank terplead, and set up the Gould note for $700, brings error. Reversed.

and under the mortgage to secure the same

they claimed a second lien upon the premises. Wm. C. Don Carlos, for plaintiff in error.

Some of the other claimants contested the vaJohn V. Coon and G. A. Spaulding, for de

lidity of the transfer of the $700 note to the fendants in error

National Bank of St. Joseph, alleging that

Bemis did not indorse or transfer the note, JOHNSTON, J. D. D. Bemis, who was the but merely left the same with Bodwell & owner of a quarter section of land in Phil- Hamilton in trust, the proceeds of which were lips county, executed a mortgage thereon to to be collected by them, and used to extinJudith Dakin to secure the payment of a debt. guish the Dakin debt; that they wrongfully Afterwards he sold one-half of the tract to diverted the $700 note so left with them to W. J. Gould, and as a part of the purchase the National Bank of St. Joseph, which bank price took Gould's note for $700, payable in obtained no title or ownership therein. Befive years, with annual interest at the rate of mis, the payee of the note, also answered, set8 per cent. per annum, and took a mortgage ting up the fraud of Bodwell & Hamilton, on the same land to secure the payment of and averring that the note was never inthe note. It was stipulated and agreed in dorsed or transferred to the bank as its absowriting by the parties that the $700 debt to lute property, but was only delivered as colbe paid by Gould should be paid to Judith lateral for the debt of Bodwell & Hamilton, Dakin, to extinguish the mortgage debt due and that the debt has since been paid from to her, and to satisfy and discharge a part of other collaterals held by the bank. He furthe original mortgage which Bemis executed ther avers that the bank is not a bona fide to her. There was a further stipulation that owner or holder for value, but obtained the the note and mortgage given by Gould should same unlawfully, and in fraud of the rights be deposited with the banking firm of Bod- of Bemis and the other claimants. well & Hamilton, and that payments made to The main issue on this branch of the case them thereon should be immediately applied was the validity of the transfer of the Gould note, or whether the bank was a bona fide , suspicions in regard to the title of Bodwell owner and holder of the same. On this issue & Hamilton. They had frequently borrowthe court found against the bank, that Bemis ed money from the bank, and had transferwas the owner, and that there was due to red to it as collateral security numerous him thereon $976.88, and decreed that the promissory notes of their customers, and money, when collected, should be paid in dis- among them were several others upon which charge of the Dakin debt and lien. It is un- Bemis was liable. The bank, having made disputed that the note was negotiable in a loan upon the pledge and transfer of the form; that it was transferred to the bank

collateral security, is entitled to the position before due, in the regular course of business; of a bona fide holder for value, and to prothat it was received by the bank in good tection against equities, offsets, and other faith, as collateral security for a loan of mon- defenses which might have been available ey by the bank to Bodwell & Hamiiton; and between antecedent parties. It is even held that it was finally transferred absolutely, in that a pre-existing debt affords sufficient conpartial payment of the debt for which it was

sideration for the transfer of collaterals as originally transferred as security. It was Security for its payment. Best v. Crall, 23 accepted as security for an actual debt, and Kan. 482; Swift v. Tyson, 16 Pet. 1; Goodthere is nothing to show that the bank had man v. Simonds, 20 How. 313; Oates v. any notice of the true ownership of the note, Bank, 100 U. S. 239; Brooklyn, etc., R. Co. or that Bodwell & Hamilton had put it in v. National Bank, 102 U. S. 14; Spencer v. circulation in violation of any trust or of any Sloan, 108 Ind. 183, 9 N. E. 150; Maitland condition under which they held it. Under v. Bank, 40 Md. 510; Jones, Pledges, § 107; such circumstances, the bank must be re- Story, Prom. Notes, $ 195; Daniel, Neg. Inst. garded as a bona fide holder, unaffected by $ 824 et seq. If there was no indorsement the wrongful transfer of Bodwell & Hamil- of the note by Bemis, or if the bank knew ton, or of any equities existing as between of the conditions under which Bodwell & the antecedent parties. Although there was Hamilton held the note, the bank would not a denial of the allegation of indorsement and

be entitled to protection as a holder for value. transfer by Bemis, the proof is clear that The testimony in the record fails to show he did indorse it in blank, and in his own

that the debt which was secured by the testimony he declines to say that he did not transfer of the note has been paid. Indeed, so indorse it. Having indorsed a negotia- it would appear that if the note should be ble promissory note in blank, and intrusted

collected by the bank, and the proceeds apit to others, he cannot complain if he is held plied on what was due to it from Bodwell & liable to an innocent holder for value, al- Hamilton, a considerable part of the debt though it may have been wrongfully used or would still remain unsatisfied. We conclude diverted from the purpose for which it was that the testimony is insufficient to sustain intended. Under the unrestricted indorse

the judgment that was rendered, and for ment, any one without notice of the title had

that reason there must be a reversal and a a right to assume that Bodwell & Hamilton

new trial. All the justices concurring. were the owners of the same. "The mere possession of a negotiable instrument, pay. able to order and properly indorsed, is prima

(54 Kan. 699) facie evidence that the holder is the owner

CITY OF ARGENTINE et al. v. SIMMONS thereof, that he acquired the same in good

et al. faith, for full value, in the usual course of business, before maturity, without notice of

(Supreme Court of Kansas. Feb. 9, 1895.) any circumstance that would impeach its STREET ASSESSMENT - VALIDITY PetitiOY FOR validity, and that he is entitled to recover

IMPROVEMENT-PRESUMPTIONS-SUFFI

CIENCY OF ESTIMATE. upon it its full face value, as against any of the antecedent parties.” Mann v. Bank,

1. Where property owners assail the valid

ity of a special assessment made for improving 34 Kan. 747, 10 Pac. 150. It is true that Bod

a street, the burden rests vpon them to estabwell & Hamilton committed a flagrant fraud lish the invalidity of the proceedings. upon Bemis and the other parties in the trans- 2. Where property owners seek to enjoin fer of the note, but, as Bemis intrusted the

the levy and collection of a special assessment

upon the ground that the petition did not conpaper to others in such form as to enable

tain the names of three-fourths of the owners them to hold themselves out as the absolute of the property fronting on the street to be imowners of the note, he should suffer, rather proved; and where they, in their own testi

mony, offer the petition to the city council, to than the bank, which had no notice or knowl

which is attached the certificate of the city enedge of the wrong. In such cases the rule gineer, stating that the petition was signed by is that, of two innocent persons, the one who

three-fourths of the resident property owners placed it in the power of others to commit

of the property abutting on the street to be im

proved; and where they also introduce an ordithe wrong must suffer for his misplaced con

nance providing for the making of the improvefidence, rather than the one who is not in ment, which also recites that more than threefacit. As far as the testimony goes, nothing

fourths of the property owners had petitioned on the face of the paper or in the circumstan

the mayor and council to make the improve

ment, and which testimony is received without ces of the transfer would give rise to any 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.

on

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 plaintiffs 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 reg. ularly, and what ought to have been was done, the plaintiff's 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

This was sufficient to meet the requirements of the statute. Gen. St. 1889, par. 82). There is the further contention that the ap. praisers 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 suflicient 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.

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 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

same.

(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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