a draft is sent for that purpose, if payment is refused by the drawee, the county treasurer, even after having issued a tax receipt and marked the taxes "Paid" on the tax roll, may proceed to collect the taxes from the lands against which they are charged.

2. Where a draft or check is remitted to a county treasurer in payment of taxes, and the amount thereof is in fact paid into the treasury, the tax is discharged; but an examination of the testimony in this case fails to show without dispute that payment was in fact made, and the judgment of the trial court refusing to enjoin the collection of the tax is therefore sustained. (Syllabus by the Court.)

change National Bank of Lincoln for protest and collection for his account. On the 4th of February these drafts, together with others, amounting in all to $2,753.86, were returned to the Phillips County Bank. which presented it to the defendant for payinent. He thereupon drew his check, as treasurer, for $2,753.86, and took up the protested drafts. The draft and indorsements thereon are as follows: "Commercial State Bank. $698$ Long Island, Kas., Dec. 20, 1892. No. 14,730. Pay to the order of J. A. Mercer, Treas., ($698.32) six hundred ninety-eight and

Action by M. M. Barnard against J. A. Mercer, county treasurer. From a judgment for defendant, plaintiff brings error. Affirmed.

The plaintiff in error brought this case against the defendant, as county treasurer of Phillips county, to restrain the collection of the taxes for the year 1892 on certain lands owned by the plaintiff in Phillips county, alleging that the taxes had been paid, and a receipt therefor duly issued, but that the defendant had advertised the lands for sale for such taxes, and intended to sell them on the first Tuesday of September, 1893. A temporary injunction was granted, and thereafter the defendant answered, denying that the taxes had been paid. On this issue the case was tried, and judgment rendered in favor of the defendant for costs. The principal facts, as disclosed by the evidence, are that the plaintiff, who resided at Long Island, near the northwest corner of the county, made arrangements with the Commercial State Bank of Long Island to pay her taxes. On the 20th of December, 1892, Giffen Culbertson, president of the bank, drew a draft on the Capital National Bank of Lincoln, Neb., for $698.32, which he sent to the defendant as treasurer, together with a list of property, including that of the plaintiff, for the purpose of paying the taxes thereon. This draft and accompanying list were received about the 23d of December, 1892. On or about the 20th of January, 1893, he indorsed the draft, and deposited the same in the Phillips County Bank, which was the county depository of public funds. The Capital National Bank of Lincoln failed on the 21st of January, 1893, before the draft was presented. It is claimed on behalf of the plaintiff that the Metropolitan National Bank of Kansas City, Mo., by direction of the Long Island bank, paid and took up the draft, and returned it to the Long Island bank on the 26th of January, 1893. Mr. Culbertson testified that he credited the Metropolitan National Bank with the amount of the draft, and that the Metropolitan National Bank charged the Long Island bank with the amount of it. On or about the 1st of February he states that he put the draft, with others, in his pocket, took them to Lincoln, Neb., and left them with the American Ex

bertson, Prest. To Capital National Bank, Lincoln, Neb."

Indorsed across the face: "Protested for nonpayment, Feb. 1, 1893. D. G. Wing, Notary Public."

Indorsed on the back as follows:

"Pay Phillips County Bank, Phillipsburg, Kans., or order, for collection account of county treasurer of Phillips County, Kansas. J. A. Mercer, County Treasurer."

"Pay State National Bank, St. Joseph, Mo., or order, for collection acct. Phillips County Bank, Phillipsburg, Kan."

"Pay for collection, for account of State National Bank, Jan. 21, 1893. St. Joseph, Mo. E. Lindsay, Cashier."

"Pay for collection, for account of Metropolitan Natl. Bank, Jan. 25, 1893, Kansas City, Mo. J. G. Strean, Cashier."

G. A. Spaulding and C. A. Lewis, for plaintiff in error. George W. Stinson and C. Angevine, for defendant in error.

The

ALLEN, J. (after stating the facts). plaintiff claims that, under the facts stated, the taxes were paid and the tax lien discharged. A tax receipt was issued by the county treasurer, and the taxes were marked paid on the tax roll. The court, however, holds that they were not paid in fact, and the only question we are required to determine is whether the evidence taken altogether shows, without contradiction, that the taxes were paid. The general rule is that taxes can only be paid in money, unless the law specifically authorizes the treasurer to receive something else. Judd v. Driver, 1 Kan. 455. A check or draft given to a collector for the payment of taxes does not discharge the tax, unless the check or draft be in fact paid. Houghton v. City of Boston, 159 Mass. 138, 34 N. E. 93; Black, Tax Titles, § 50; 2 Blackw. Tax Titles, § 825; 2 Desty, Tax'n, 693. Under the authorities, the actual acceptance by the treasurer of a draft in payment of the taxes would not bind the public if the draft afterwards proved to be worthless. The reason is that the treasurer is absolutely without power to discharge the rights of the public to the payment of the tax for anything else than money, or such warrants or public securities as the law specifically authorizes him to receive.

The main difficulty in this case probably arises from the fact that the treasurer held the draft so long that, if the transaction had been between individuals, the loss occasioned by the failure of the Lincoln bank would have fallen on him; but neither the taxpayer alone, nor with the aid of the treasurer, can impose on the public the risks incident to private commercial paper. If the taxpayer sees fit to send drafts to the county treasurer, the tax will only be paid when the money actually finds its way into the public treasury or depository. Whatever right of action, if any, the taxpayer, or the Long Island bank, may have against the treasurer, personally, for his delay in promptly forwarding the draft for payment, she has none as against the claim of the county for public dues. It is insisted, however, that the draft was in fact paid. First. It is contended that when the treasurer deposited the draft in the Phillips County Bank he received credit for it, against which he might draw for public purposes. This claim cannot be sustained. The draft was indorsed by the treasurer for collection only. It was not accepted by the bank as money, nor was it, in fact, drawn out and used. The plaintiff further insists that the draft was in fact taken up by the Metropolitan National Bank of Kansas City, and returned to the Long Island bank; that the Metropolitan National Bank did so under instructions from the drawer; that the amount was charged by the Metropolitan National Bank against the Long Island bank, and that the Long Island bank gave the Metropolitan National Bank credit, and that this operated as a full payment and discharge of the draft. It is urged with much ingenuity and plausibility that this canceled and discharged the paper, and that a reissue of it could not affect the rights of any one. Culbertson, who drew the draft, as president of the Long Island bank, afterwards had presentment made to the drawee, the paper protested, and returned to the Phillips County Bank for colection as a protested bill, and it appears it was so collected; the county treasurer being entirely ignorant of the transaction now claimed by the plaintiff to amount to a payment by the drawee. We cannot hold that the mere passing of credits between the Long Island bank and its Kansas City correspondent, without any showing of an actual remittance of funds to the county depository, amounts to an actual payment into the county treasury of the money represented by the paper. Whatever effect that might have as between the individuals directly interested in it, it is a transaction to which the public is in no sense a party. Unless it resulted in actually lodging funds in the county depository to the credit of the defendant, as county treasurer, the public interests could not be in any manner affected by it. It appears that the Long Island bank caused the protested draft to be taken up by the county treasurer, and then refused to pay over to

The

the county treasurer the amount of it. Long Island bank also proved up its account against the Lincoln bank, including the amount covered by the protested drafts, and received a dividend of 10 per cent. thereon. It is clearly apparent that not a dollar remains in the county treasury in fact in payment of these taxes. . We think the finding of the court that the tax was not paid is fully supported by the evidence, that its ruling on the law applicable to the case was right, and the judgment is therefore affirmed. All the justices concurring.

(54 Kan. 654)

CITY OF EUDORA v. DARLING. (Supreme Court of Kansas. Feb. 9, 1895.) CONSTITUTIONAL LAW-TITLE OF ACT-VACATION OF STREETS.

1. Chapter 261, Sess. Laws 1889, entitled "An act to vacate portions of certain town-sites in the state of Kansas therein named," is constitutional.

2. Under the provisions of section 61, c. 261, Sess. Laws 1889, the streets and alleys in the town of Eudora, Douglas county, lying south of Twelfth street, except C, E, and Nineteenth streets. are vacated.

(Syllabus by the Court.)

Error from district court, Douglas county; A. W. Benson, Judge.

Action by the city of Eudora against Thomas C. Darling. From a judgment for defendant, plaintiff brings error.

The city of Eudora was incorporated by an act of the territorial legislature of the territory of Kansas on the 28th day of February, 1859, and in the corporate limits were embraced all of section 8, except 40 acres taken off the west side, and 200 acres off the south and east sides of section 5, township 13, and range 21. This territory was laid off in blocks and lots, with public streets and alleys. The legislature of the state, by section 61, c. 261, approved March 2, 1889, attempted to vacate a part of the streets and alleys of the territory of Eudora. After the passage of the act of the legislature of 1889, vacating the streets and alleys lying south of Twelfth street, except C, E, and Nineteenth streets, the defendant, Thomas C. Darling, obstructed and fenced up the streets, basing his right to do so on the act of the legislature. The city of Eudora sought to enjoin him from so doing, and obtained a temporary restraining order from the district court, which, at the trial, was dissolved. That ruling of the court is now challenged as erroneous, and the city of Eudora brings the case here to review the judgment.

G. N. Elliott, for plaintiff in error. J. W. Green, for defendant in error.

HORTON, C. J. (after stating the facts). It is insisted that the territorial act of incor

poration invested the inhabitants of Eudora with rights of property of which they could not be divested without their consent, and therefore that section 61 of chapter 261, Sess. Laws 1889, vacating the streets in controversy, is of no force or validity, because it attempts to affect corporate powers granted by the territorial legislature, and also attempts to annul vested rights legally conferred. The streets and alleys laid out and established in Eudora were open for travel to the public. The legislature, as the representative of the public, has full power over the streets and alleys of a city to vacate the same. Railroad Co. v. Garside, 10 Kan. 552; Heller v. Railrcad, 28 Kan. 625. Therefore, when the city of Eudora dedicated to public use its streets and alleys, it granted to the legislature, as the representative of the public, control thereof. Section 61 of chapter 261, Sess. Laws 1889, does not interfere with corporate privileges or vested rights.

2. It is next insisted that chapter 261, Sess. Laws 1889, contains more than one subject, and therefore is unconstitutional, because in conflict with section 16 of article 2 of the constitution of the state. The title of the act is, "An act to vacate portions of certain town-sites in the state of Kansas therein named." In the body of the act the streets of various towns or cities are vacated, but within the prior decisions of this court the objection to the act is not tenable. Weyand v. Stover, 35 Kan. 545, 11 Pac. 355; Board of Com'rs v. Shoemaker, 27 Kan. 77; State v. Barrett. Id. 213.

3. It is finally insisted that. as the legis lature had previously lodged the power to vacate streets and alleys in the board of county commissioners of a county, such power is exclusive. Chapter 261. Sess. Laws 1889, has provided for the vacation of certain streets and alleys. The legislature has the power to do this, and the subsequent statute is operative. The judgment will be affirmed. All the justices concurring.

(54 Kan. 676)

PARKS et ux. v. FRAHM. (Supreme Court of Kansas. Feb. 9, 1895.)

MORTGAGE-VALIDITY-LIEN.

P. and wife entered into negotiations for a loan of $1,000, and to that end a note for that amount was signed, and a mortgage to secure the same, upon their homestead, was executed. The mortgage was filed for record, but before the transaction was completed an incumbrance upon the property was discovered, and the closing of the loan was postponed until the title could be cleared. By mutual consent the note first signed was destroyed, but the mortgage was left uncanceled. Twenty days afterwards, when the incumbrance was released, another note, identical in every particular with the first, was signed, in which reference was made to the mortgage which had been filed for record, and upon both the loan was made, and the

transaction completed. Held, that the delay in completing the transaction, and the substitution of one note for another, did not operate to invalidate the mortgage as a security for the loan which was made.

(Syllabus by the Court.)

Error from district court, Rooks county; Charles W. Smith, Judge.

Action by Thomas Frahm against Jasper Parks and Mary Parks. From a judgment for plaintiff, defendants bring error. Affirmed.

Action by Thomas Frahm to obtain a personal judgment against Jasper Parks and Mary Parks upon a debt of $1,000, and to foreclose a mortgage given to secure that debt. At the trial, special findings of fact and conclusions of law were made by the court, as follows: "(1) That the defendants, Jasper Parks and Mary Parks, are husband and wife, residents of the state of Kansas, and that during the month of July, 1886, and for several years prior thereto, and for a time subsequent to that date, they have occupied the land in question, being the southwest quarter of section 20, township 9 south, of range 16 west, in Rooks county, Kansas, which is 160 acres of farming land, as their homestead. (2) That during the year 1886 one W. F. Schulthers was a resident of the city of Stockton, Rooks county, Kansas, and was engaged in the business of making farm loans. (3) That during the month of July, 1886, the defendant Jasper Parks entered into negotiations with Schulthers, as the agent of the plaintiff herein, to procure from Schulthers, as such agent, a loan of one thousand dollars in money; that an agreement was consummated between the parties, whereby Schulthers was to loan said amount of money to Parks, which loan was to run five years, and was to draw 9 per cent. interest, payable semiannually. Said loan was to be secured by a real-estate mortgage or trust deed, to be executed and delivered by Parks and wife, on the land in question. (4) That on the 7th day of July, 1886, the defendants, 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 attached, which bond, by its terms, drew 7 per cent. interest; that at the same time they also executed ten interest notes, of ten dollars each, which said interest notes represented 2 per cent. on the thousand dollars borrowed, said two per cent. per annum being payable in semiannual installments of ten dollars each; that to secure the payment of the money so borrowed, or to be borrowed, defendants, Jasper Parks and his wife, Mary, on said 7th day of July, 1886, executed their two several mortgages or trust deeds, one to secure the principal sum of one thousand dollars, with interest at 7 per cent. per annum, interest payable semiannually, which mortgage is in question, and is drawn in favor of one Thomas Frahm; that, to secure the

payment of the interest notes,-the ten interest notes above referred to,-at the same time, they executed to said Schulthers their certain second or third mortgage, covering the same property, which mortgage was drawn payable to W. H. Lanning. (5) The court finds that the original indebtedness of one thousand dollars, or the original bond representing the principal indebtedness of one thousand dollars, and the first mortgage, as above described, or trust deed, was executed in the name of W. H. Lanning, as trustee for Thomas Frahm, cestui que trust, and that the interest notes were drawn in the name of said W. H. Lanning, and the said second mortgage drawn in his name, also. (6) The court further finds that on said 7th day of July, 1886, the said trust deed and mortgage was duly filed for record in the office of the register of deeds of Rooks county, Kansas. (7) The court further finds that the bond representing the principal indebtedness, with its interest coupons, as also the ten interest notes, were dated as of the 1st day of July, 1886. (8) That the said defendants, Jasper Parks and Mary Parks, executed the said trust deed and mortgage for the purpose and with the intent that the same should be so used by said Jasper Parks in procuring from said Schulthers, as the agent of the plaintiff, the sum of one thousand dollars, to be used by said Parks in the payment of divers individual debts of his own, and that they were delivered to Schulthers for that purpose. (9) That by reason of the existence of certain judgments which were of record in the office of the district clerk of Rooks county, Kansas, on the 7th day of July, 1886, the said loan was not completed on that date; the parties at that time being unable to procure the release of such judgments, and the plaintiff, through its agent, said Schulthers, being unwilling to make said loan until those judgments were canceled of record,-such judgments having been filed previous to the 7th day of July, 1886. (10) That on said 7th day of July, 1886, at the request of the defendants, said Schulthers destroyed the notes and bonds on that date executed by them, but failed to release of record the mortgage given for the purpose of securing the claimed indebtedness represented by such bond and notes. (11) That, after the destruction of the said notes, it was understood between Schulthers and the defendant Jasper Parks that such loan should be completed some time in the near future, or as soon as the judgments which were then on record against him, as above described, were canceled and satisfied, so that the title should show clear as against him, and against this piece of land; that afterwards, on or about the 27th day of July, 1886, said Schulthers prepared and delivered to the defendant Jasper Parks a second series of notes and bond, which were identical in all respects with the bond and notes

originally executed by Parks and wife, which second series of notes were taken by Parks to his home, in Corning township, Rooks county, Kansas, and were there executed by himself and wife, the defendant Mary Parks, -the notes and bond having been signed by Jasper Parks at his store in Motor, Kansas, and by his wife, Mary Parks, at home, a few miles distant therefrom. (12) That the bond was executed by the parties on the 27th day of July, 1886, was plainly written or printed, and that it contained a stipulation in the following words: It is expressly agreed and declared that this note is secured by trust deed on real estate, duly recorded; the said bond bearing date July 1, 1886, and being for one thousand dollars, drawing interest at 7 per cent., interest payable semiannually; said bond and coupons, and ten several notes, each and all bearing date of July 1, 1886, and were in all respects identical in their terms with the bond, coupons, and interest notes executed by Jasper Parks and his wife, Mary, on July 7, 1886, which were on that day destroyed, as stated in the above finding. (13) The court further finds that after the execution of said bonds they were delivered by Jasper Parks the defendant to Schulthers, who thereupon delivered to him the amount of the face of said bond, being one thousand dollars, less the sum of sixty cents, which was deducted as the cost of filing and recording the final receiver's receipts; that said defendant Jasper Parks received said money in the form of checks on the State Bank of Stockton, the greater portion of which checks he used in the payment of the judgments heretofore referred to, and which judgments were released on the day of payment, to wit, the 27th day of July, 1886, which release was antedated to the 7th day of July, 1886, the date of the filing and recording of the trust deed and the mortgage hereinabove referred to; that the balance of the proceeds of said loan were used by Jasper Parks in his business,-he then being engaged in mercantile business in the town of Motor, Rooks county, Kansas. (14) The court finds that the ten interest notes which were secured by a mortgage to W. H. Lanning were a part of the interest on the loan of one thousand dollars, and that they gave a bond, with coupons, and represented one and the same transaction. (15) The court further finds that the defendant Jasper Parks paid the installments and all interest due on said loan and mortgage, which installments fell due January 1, 1887, July 1, 1887, and January 1, 1888; that he made default in the payment of the July 1, 1888, installment of interest, and thereupon suit was instituted in the district court of Rooks county, Kansas, on the mortgage given by Parks, and originally executed by Parks and wife, which had never been released of record, to enforce the payment of the balance due on said ten several notes,

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 mortgage 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

and sale of the premises, and provided for the proper application of the proceeds of such sale. Exceptions were taken by the defendants to the findings and decision of the court, and, with a view of obtaining a review and reversal, they have brought this proceeding.

W. B. Ham, for plaintiffs in error. M. C. Reville, for defendant in error.

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 papers 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