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a draft is sent for that purpose, if payment is re- change National Bank of Lincoln for protest fused by the drawee, the county treasurer, even and collection for his account. On the 4th after having issued a tax receipt and marked the taxes "Paid" on the tax roll, may proceed

of February these drafts, together with othto collect the taxes from the lands against ers, amounting in all to $2,753.86, were rewhich they are charged.

turned to the Phillips County Bank, which 2. Where a draft or check is remitted to a

presented it to the defendant for payinent. county treasurer in payment of taxes, and the amount thereof is in fact paid into the treasury,

He thereupon drew his check, as treasurer, the tax is discharged; but an examination of for $2,753.86, and took up the protested the testimony in this case fails to show without

drafts. The draft and indorsements thereon dispute that

payment was in fact made, and the indgment of the trial court refusing to enjoin

are as follows: "Commercial State Bank. the collection of the tax is therefore sustained. $698$ Long Island, Kas., Dec. 20, 1892. No. (Syllabus by the Court.)

14,730. Pay to the order of J. A. Mercer,

Treas., ($698.32) six hundred ninety-eight and Error from district court, Phillips county; | 32/100 dollars, in current funds. Giffen CulA. C. T. Geiger, Trial Judge.

bertson, Prest. To Capital National Bank, Action by M. M. Barnard against J. A. Mer- Lincoln, Neb." cer, county treasurer. From a judgment for

Indorsed across the face: “Protested for defendant, plaintiff brings error. Affirmed.

nonpayment, Feb. 1, 1893. D. G. Wing, The plaintiff in error brought this case

Notary Public." against the defendant, as county treasurer

Indorsed on the back as follows: of Phillips county, to restrain the collection

“Pay Phillips County Bank, Phillipsburg, of the taxes for the year 1892 on certain

Kans., or order, for collection account of lands owned by the plaintiff in Phillips coun

county treasurer of Phillips County, Kansas. ty, alleging that the taxes had been paid,

J. A. Mercer, County Treasurer." and a receipt therefor duly issued, but that

"Pay State National Bank, St. Joseph, Mo., the defendant had advertised the lands for

or order, for collection acct. Phillips County sale for such taxes, and intended to sell

Bank, Phillipsburg, Kan.” them on the first Tuesday of September, "Pay for collection, for account of State 1893. A temporary injunction was granted, National Bank, Jan. 21, 1893. St. Joseph, and thereafter the defendant answered, de

Mo. E. Lindsay, Cashier." nying that the taxes had been paid. On

“Pay for collection, for account of Metro. this issue the case was tried, and judgment politan Natl. Bank, Jan. 25, 1893, Kansas rendered in favor of the defendant for costs.

City, Mo. J. G. Strean, Cashier." The principal facts, as disclosed by the evidence, are that the plaintiff, who resided at G. A. Spaulding and C. A. Lewis, for plainLong Island, near the northwest corner of

tiff in error. George W. Stinson and C. the county, made arrangements with the Angevine, for defendant in error. Commercial State Bank of Long Island to pay her taxes. On the 20th of December, ALLEN, J. (after stating the facts). The 1892, Giffen Culbertson, president of the plaintiff claims that, under the facts stated, bank, drew a draft on the Capital National the taxes were paid and the tax lien disBank of Lincoln, Neb., for $698.32, which he charged. A tax receipt was issued by the sent to the defendant as treasurer, together county treasurer, and the taxes were marked with a list of property, including that of the paid on the tax roll. The court, however, plaintiff, for the purpose of paying the taxes holds that they were not paid in fact, and the thereon. This draft and accompanying list only question we are required to determine is were received about the 23d of December, whether the evidence taken altogether shows, 1892. On or about the 20th of January, 1893, without contradiction, that the taxes were he indorsed the draft, and deposited the paid. The general rule is that taxes can only same in the Phillips County Bank, which was be paid in money, unless the law specifically the county depository of public funds. The authorizes the treasurer to receive something Capital National Bank of Lincoln failed on else. Judd v. Driver, 1 Kan. 455. A check the 21st of January, 1893, before the draft or draft given to a collector for the payment was presented. It is claimed on behalf of of taxes does not discharge the tax, unless the plaintiff that the Metropolitan National the check or draft be in fact paid. HoughBank of Kansas City, Mo., by direction of the ton v. City of Boston, 159 Mass. 138, 34 N. E. Long Island bank, paid and took up the draft, 93; Black, Tax Titles, $ 50; 2 Blackw. Tax and returned it to the Long Island bank on Titles, $ 825; 2 Desty, Tax'n, 693. Under the the 26th of January, 1893. Mr. Culbertson authorities, the actual acceptance by the treastestified that he credited the Metropolitan urer of a draft in payment of the taxes would National Bank with the amount of the draft, not bind the public if the draft afterwards and that the Metropolitan National Bank proved to be worthless. The reason is that charged the Long Island bank with the the treasurer is absolutely without power to amount of it. On or about the 1st of Feb- discharge the rights of the public to the payruary he states that he put the draft, with ment of the tax for anything else than money, others, in his pocket, took them to Lincoln, or such warrants or public securities as the Neb., and left them wito the American Ex- law specifically authorizes him to receive. The main difficulty in this case probably aris- the county treasurer the amount of it. The es from the fact that the treasurer held the Long Island bank also proved up its account draft so long that, if the transaction had been against the Lincoln bank, including the between individuals, the loss occasioned by amount covered by the protested drafts, and the failure of the Lincoln bank would have received a dividend of 10 per cent. thereon. fallen on him; but neither the taxpayer alone, It is clearly apparent that not a dollar renor with the aid of the treasurer, can impose mains in the county treasury in fact in payon the public the risks incident to private com- ment of these taxes. . We think the finding of mercial paper. If the taxpayer sees fit to the court that the tax was not paid is fully send drafts to the county treasurer, the tax supported by the evidence, that its ruling on will only be paid when the money actually the law applicable to the case was right, and finds its way into the public treasury or de- the judgment is therefore affirmed. All the pository. Whatever right of action, if any, justices concurring. the taxpayer, or the Long Island bank, may have against the treasurer, personally, for his delay in promptly forwarding the draft for

(54 Kan. 654) payment, she has none as against the claim

CITY OF EUDORA V. DARLING. of the county for public dues. It is insisted, however, that the draft was in fact paid.

(Supreme Court of Kansas. Feb. 9, 1895.) First. It is contended that when the treasurer CONSTITUTIONAL LAW-TITLE OF ACT- VACATION deposited the draft in the Phillips County

OF STREETS. Bank he received credit for it, against which

1. Chapter 261, Sess. Laws 1889, entitled he might draw for public purposes. This

"An act to vacate portions of certain town-sites

in the state of Kansas therein named,” is conclaim cannot be sustained. The draft was in- stitutional, dorsed by the treasurer for collection only. 2. Under the prcvisions of section 61, c. It was not accepted by the bank as money,

261, Sess. Laws 1889, the streets and alleys in

the town of Eudora, Douglas county, lying nor was it, in fact, drawn out and used. The

south of Twelfth street, except C, E, and Nineplaintiff further insists that the draft was in teenth streets, are vacated. fact taken up by the Metropolitan National (Syllabus by the Court.) Bank of Kansas City, and returned to the

Error from district court, Douglas county; Long Island bank; that the Metropolitan Na

A. W. Benson, Judge. tional Bank did so under instructions from

Action by the city of Eudora against the drawer; that the amount was charged by

Thomas C. Darling. From a judgment for the Metropolitan National Bank against the

defendant, plaintiff brings error. Long Island bank, and that the Long Island

The city of Eudora was incorporated by bank gave the Metropolitan National Bank

an act of the territorial legislature of the credit, and that this operated as a full pay

territory of Kansas on the 28th day of Febment and discharge of the draft. It is urged

ruary, 1859, and in the corporate limits were with much ingenuity and plausibility that this

embraced all of section 8, except 40 acres canceled and discharged the paper, and that a

taken off the west side, and 200 acres off reissue of it could not affect the rights of any the south and east sides of section 5, townone. Culbertson, who drew the draft, as

ship 13, and range 21. This territory was president of the Long Island bank, afterwards

laid off in blocks and lots, with public had presentment made to the drawee, the pa

streets and alleys. The legislature of the per protested, and returned to the Phillips

state, by section 61, c. 261, approved March County Bank for comection as a protested bill,

2, 1889, attempted to vacate a part of the and it appears it was so collected; the coun

streets and alleys of the territory of Eudora. ty treasurer being entirely ignorant of the

After the passage of the act of the legistransaction now claimed by the plaintiff to

lature of 1889, vacating the streets and amount to a payment by the drawee.

We

alleys lying south of Twelfth street, except cannot hold that the mere passing of credits

C, E, and Nineteenth streets, the defendant, between the Long Island bank and its Kan

Thomas C. Darling, obstructed and fenced sas City correspondent, without any showing

up the streets, basing his right to do so on of an actual remittance of funds to the county

the act of the legislature. The city of Eudepository, amounts to an actual payment in

dora sought to enjoin him from so doing, to the county treasury of the money repre

and obtained a temporary restraining order sented by the paper. Whatever effect that

from the district court, which, at the trial, might have as between the individuals direct

was dissolved. That ruling of the court is ly interested in it, it is a transaction to which

now challenged as erroneous, and the city the public is in no sense a party. Unless it

of Eudora brings the case here to review resulted in actually lodging funds in the coun.

the judgment. ty depository to the credit of the defendant, as county treasurer, the public interests could G. N. Elliott, for plaintiff in error. J. W. not be in any manner affected by it. It ap- Green, for defendant in error. pears that the Long Island bank caused the protested draft to be taken up by the county HORTON, C. J. (after stating the facts), treasurer, and then refused to pay over to It is insisted that the territorial act of incorporation invested the inhabitants of Eudora transaction completed. Held, that the delay in with rights of property of which they could

completing the transaction, and the substitution

of one note for another, did not operate to innot be divested without their consent, and

validate the mortgage as a security for the loan therefore that section 61 of chapter 261, which was made. Sess. Laws 1889, vacating the streets in con- (Syllabus by the Court.) troversy, is of no force or validity, because

Error from district court, Rooks county; it attempts to affect corporate powers grant- Charles W. Smith, Judge. ed by the territorial legislature, and also at

Action by Thomas Frahm against Jasper tempts to annul vested rights legally con- Parks and Mary Parks. From a judgment ferred. The streets and alleys laid out and

for plaintiff, defendants bring error. Afestablished in Eudora were open for travel

firmed. to the public. The legislature, as the repre- Action by Thomas Frahm to obtain a persentative of the public, has full power over sonal judgment against Jasper Parks and the streets and alleys of a city to vacate the

Mary Parks upon a debt of $1,000, and to same. Railroad Co. v. Garside, 10 Kan.

foreclose a mortgage given to secure that 552; Heller v. Railrcad, 28 Kan. 625. debt. At the trial, special findings of fact Therefore, when the city of Eudora dedi

and conclusions of law were made by the cated to public use its streets and alleys, court, as follows: "(1) That the defendants, it granted to the legislature, as the represent- Jasper Parks and Mary Parks, are husband ative of the public, control thereof. Sec- and wife, residents of the state of Kansas, tion 61 of chapter 261, Sess. Laws 1889, and that during the month of July, 1886, does not interfere with corporate privileges and for several years prior thereto, and for or vested rights.

a time subsequent to that date, they have oc2. It is next insisted that chapter 261, cupied the land in question, being the southSess. Laws 1889, contains more than one west quarter of section 20, township 9 south, subject, and therefore is unconstitutional, of range 16 west, in Rooks county, Kansas, because in conflict with section 16 of article which is 160 acres of farming land, as their 2 of the constitution of the state. The title homestead. (2) That during the year 1886 of the act is, "An act to vacate portions of one W. F. Schulthers was a resident of the certain town-sites in the state of Kansas city of Stockton, Rooks county, Kansas, and therein named.” In the body of the act the was engaged in the business of making farm streets of various towns or cities are va- loans. (3) That during the month of July, cated, but within the prior decisions of this 1886, the defendant Jasper Parks entered incourt the objection to the act is not tenable. to negotiations with Schulthers, as the agent Weyand v. Stover, 35 Kan. 545, 11 Pac. 355; of the plaintiff herein, to procure from SchulBoard of Com’rs v. Shoemaker, 27 Kan. 77; thers, as such agent, a loan of one thousand State v. Barrett. Id. 213.

dollars in money; that an agreement was 3. It is finally insisted that, as the legis

consummated between the parties, whereby lature had previously lodged the power to

Schulthers was to loan said amount of vacate streets and alleys in the board of money to Parks, which loan was to run five county commissioners of a county, such years, and was to draw 9 per cent. interest, power is exclusive. Chapter 261, Sess. Laws payable semiannually. Said loan was to be 1889, has provided for the vacation of cer

secured by a real-estate mortgage or trust tain streets and alleys. The legislature has deed, to be executed and delivered by Parks the power to do this, and the subsequent

and wife, on the land in question. (4) That statute is operative. The judgment will be

on the 7th day of July, 1886, the defendants, affirmed. All the justices concurring.

Jasper Parks and his wife, Mary Parks, came to the city of Stockton, and made, executed, and delivered their certain bond for

one thousand dollars, with interest coupons (54 Kan, 676)

attached, which bond, by its terms, drew 7 PARKS et ux. v. FRAHM.

per cent. interest; that at the same time (Supreme Court of Kansas. Feb. 9, 1895.) they also executed ten interest notes, of ten MORTGAGE-VALIDITY-LIEN.

dollars each, which said interest notes repP. and wife entered into negotiations for

resented 2 per cent. on the thousand dollars a loan of $1.000, and to that end a note for that borrowed, said two per cent. per annum beamount was signed, and a mortgage to secure ing payable in semiannual installments of the same, upon their homestead, was executed.

ten dollars each; that to secure the payment The mortgage was filed for record, but before the transaction was completed an incumbrance

of the money so borrowed, or to be borrowed, upon the property was discovered, and the clos. defendants, Jasper Parks and his wife, ing of the loan was postponed until the title Mary, on said 7th day of July, 1886, executed could be cleared. By mutual consent the note first signed was destroyed, but the mortgage

their two several mortgages or trust deeds, was left uncanceled. Twenty days afterwards,

one to secure the principal sum of one thouwhen the incumbrance was released, another sand dollars, with interest at 7 per cent. per note, identical in every particular with the first,

annum, interest payable semiannually, which was signed, in which reference was made to the mortgage which had been filed for record,

mortgage is in question, and is drawn in favor and upon both the loan was made, and the of one Thomas Frahm; that, to secure the payment of the interest notes,--the ten inter- originally executed by Parks and wife, which est notes above referred to,-at the same second series of notes were taken by Parks time, they executed to said Schulthers their to his home, in Corning township, Rooks certain second or third mortgage, covering county, Kansas, and were there executed by the same property, which mortgage was himself and wife, the defendant Mary Parks, drawn payable to W. H. Lanning. (5) The --the notes and bond having been signed by court finds that the original indebtedness of Jasper Parks at his store in Motor, Kansas, one thousand dollars, or the original bond rep- and by his wife, Mary Parks, at home, a resenting the principal indebtedness of one few miles distant therefrom. (12) That the thousand dollars, and the first mortgage, as bond was executed by the parties on the above described, or trust deed, was executed 27th day of July, 1886, was plainly written in the name of W. H. Lanning, as trustee or printed, and that it contained a stipula. for Thomas Frahm, cestui que trust, and tion in the following words: It is expressly that the interest notes were drawn in the agreed and declared that this note is secured name of said W. H. Lanning, and the said by trust deed on real estate, duly recorded; second mortgage drawn in his name, also. the said bond bearing date July 1, 1886, and (6) The court further finds that on said 7th being for one thousand dollars, drawing inday of July, 1886, the said trust deed and terest at 7 per cent., interest payable semimortgage was duly filed for record in the annually; said bond and coupons, and ten office of the register of deeds of Rooks several notes, each and all bearing date of county, Kansas. (7) The court further finds July 1, 1886, and were in all respects identhat the bond representing the principal in- tical in their terms with the bond, coupons, debtedness, with its interest coupons, as and interest notes executed by Jasper Parks also the ten interest notes, were dated as of and his wife, Mary, on July 7, 1836, which the 1st day of July, 1886. (8) That the said were on that day destroyed, as stated in the defendants, Jasper Parks and Mary Parks, above finding. (13) The court further finds executed the said trust deed and mortgage that after the execution of said bonds they for the purpose and with the intent that the were delivered by Jasper Parks the defendsame should be so used by said Jasper Parks ant to Schulthers, who thereupon delivered in procuring from said Schulthers, as the to him the amount of the face of said bond, agent of the plaintiff, the sum of one thou- being one thousand dollars, less the sum of sand dollars, to be used by said Parks in the sixty cents, which was deducted as the cost payment of divers individual debts of his of filing and recording the final receiver's own, and that they were delivered to Schul- receipts; that said defendant Jasper Parks thers for that purpose. (9) That by reason received said money in the form of checks of the existence of certain judgments which on the State Bank of Stockton, the greater were of record in the office of the district portion of which checks he used in the payclerk of Rooks county, Kansas, on the 7th ment of the judgments heretofore referred day of July, 1886, the said loan was not com- to, and which judgments were released on pleted on that date; the parties at that time the day of payment, to wit, the 27th day of being unable to procure the release of such July, 1886, which release was antedated to judgments, and the plaintiff, through its the 7th day of July, 1886, the date of the fil. agent, said Schulthers, being unwilling to ing and recording of the trust deed and the make said loan until those judgments were mortgage hereinabove referred to; that the canceled of record,-such judgments having balance of the proceeds of said loan were been filed previous to the 7th day of July, used by Jasper Parks in his business,-he 1886. (10) That on said 7th day of July, then being engaged in mercantile business 1886, at the request of the defendants, said in the town of Motor, Rooks county, Kansas. Schulthers destroyed the notes and bonds on (14) The court finds that the ten interest that date executed by them, but failed to notes which were secured by a mortgage to release of record the mortgage given for the W. H. Lanning were a part of the interest purpose of securing the claimed indebted- on the loan of one thousand dollars, and that ness represented by such bond and notes. they gave a bond, with coupons, and repre(11) That, after the destruction of the said sented one and the same transaction. (15) notes, it was understood between Schulthers The court further finds that the defendant and the defendant Jasper Parks that such Jasper Parks paid the installments and all loan should be completed some time in the interest due on said loan and mortgage, near future, or as soon as the judgments which installments fell due January 1, 1887, which were then on record against him, as July 1, 1887, and January 1, 1888; that he above described, were canceled and satisfied, made default in the payment of the July 1, so that the title should show clear as against 1888, installment of interest, and thereupon him, and against this piece of land; that suit was instituted in the district court of afterwards, on or about the 27th day of July, Rooks county, Kansas, on the mortgage 1886, said Schulthers prepared and delivered given by Parks, and originally executed by to the defendant Jasper Parks a second Parks and wife, which had never been reseries of notes and bond, which were iden- leased of record, to enforce the payment of tical in all respects with the bond and notes the balance due on said ten several notes,

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which then amounted to some seventy two or three dollars, and foreclosed the said mortgage or second lien; that in said action personal service of summons was had on both the defendants Jasper and Mary Parks; that they made default, and judgment was taken against them for the amount in said notes, to the amount of about seventy-three dollars, and a decree of foreclosure of said mortgage entered, ordering said land to be sold to satisfy the judgment so rendered; that no sale of the premises under said decree has been had; that said judgment and decree of foreclosure is still existing, unreversed and unmodified, and no steps have ever been taken to appeal from such judgment and decree. (16) That afterwards said defendant defaulted in the payment of the July, 1888, installment of interest on said principal note of one thousand dollars, whereupon suit was brought in the district court of Rooks county, Kansas, to 'enforce the payment of the interest due on the principal sum, and for a decree foreclosing the trust deed hereinabove referred to, which suit was instituted on March 13, 1889, and is the one in question. (17) The court further finds that at the time of the execution of this trust deed and mortgage herein referred to, and also the several notes and bonds and coupons, the defendants, Jasper Parks and wife, had no other real estate, except a few lots in the town of Motor, Kansas, and that the only trust or mortgage that was ever executed by them, or either of them, for the purpose of securing this indebtedness, was the trust deed and mortgage executed on the 7th day of July, 1886, which trust deed and mortgage were dated July 1, 1886. And the court further finds that all of the allegations and averments contained in the petition of said plaintiff filed herein are true, and that there is due from the said defendants, Jasper Parks and Mary Parks, to the said plaintiff, on the notes and mortgage sued on in this action, the sum of twelve hundred & seventyone 60-100 dollars, and that said notes specify that said indebtedness shall bear interest at the rate of 12 per cent. per annum, and that said mortgage has the words 'Appraisement waived' therein inserted. And the court further finds that said plaintiff bas a first lien on the lands and tenements in said petition described, by virtue of the mort. gage in said petition set out, to secure the payment of said indebtedness. It is therefore considered, ordered, and adjudged by the court that the said plaintiff do have and recover of and from the said defendants, Jasper Parks and Mary Parks, the said sum of twelve hundred & seventy-one 60-100 dollars, the amount so as aforesaid found due to said plaintiff, and the costs herein, taxed at $ -, and that said judgment for $1, 271.60 bear interest at the rate of 12 per cent. per annum from January - 1890." The court thereupon decreed a foreclosure

JOHNSTON, J. (after stating the facts). From the record it appears that Jasper Parks and wife entered into negotiations to procure a loan of $1,000, which was to run five years at 9 per cent. interest, payable semiannually, and was to be secured by mortgage upon their homestead. Separate notes were to be given for 2 per cent. of the interest which was to accrue, and what is presumably a commission mortgage upon the same property was to be executed as security for the last-named notes. The preparation of the papers was begun on July 7, 1886, and upon that day the notes and mortgages were first signed by Parks and his wife. After the paper3 had been signed and the mortgages filed for record, but before the money was paid, some unsatisfied incumbrances were discovered upon the record, which prevented the immediate completion of the transaction. It was found to be necessary to defer further action for several days, until the record title of the land could be cleared; and, by mutual arrangement, the $1,000 note which had been signed was destroyed, but the mortgage, which had been filed for record, was left uncanceled. About 20 days afterwards, when the incumbrances which have been mentioned were released and discharged, another note, identical in every particular, was signed, and substituted for the one destroyed; and, the loan having been perfected, the money was paid to the mortgagors. The note for $1,000 and the above-mentioned mortgage were made to correspond in date,-that is, they were dated back to July 1, 1886,--and in each reference was made to the other, thus showing that they were part of a single transaction. The contention is that when the first note was destroyed the mortgage was extinguished, and that the execution of the second note did not operate to revive the extinguished lien. The court correctly held that the mortgage was an existing obligation, and that it created a valid lien upon the property described therein. The validity of the mortgage does not require that it and the note should have been contemporaneously signed. The making of the note, the execution of the mortgage, and the delivery of both in exchange for the money borrowed, altogether, constituted a single transaction. Each is a step taken in effecting a loan, and none of them is effective-at

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