Where the owner of land desiring to redeem the same from the holder of a tax certificate, under the provisions of chapter 43, Sess. Laws 1879 (Gen. St. 1889, pars. 6987, 6988), tenders to the purchaser of the tax certificate the amount paid for the property therein described, with all subsequent taxes, and interest thereon, as prescribed by section 2, c. 43, Sess. Laws 1879 (Gen. St. 1889, par. 6988), before any tax deed is authorized or issued, and the purchaser of the tax certificate, without notice or knowledge to the owner, has assigned the tax certificate to another person, but gives no information thereof to the owner at the time of the tender, and the assignment by the purchaser is not entered on the treasurer's sale book or the clerk's duplicate, and the owner of the property has no notice or knowledge that the tax certificate has been assigned or transferred until after the issuance and recording of the tax deed, held that, under such circumstances, the tender to the purchaser of the tax certificate is sufficient, and any tax deed made thereafter is a nullity. (Syllabus by the Court.) Error from district court, Jefferson county; Robert Crozier, Judge. Action by Willard R. Douglass against Archibald McKeever. Judgment for defendant, and plaintiff brings error. Reversed. The On the 13th day of October, 1889, Willard R. Douglass commenced his action against Archibald McKeever, under section 595 of the Civil Code, to recover the possession of the N. E. 4 of section 14, township 9, range 17, in Jefferson county, and for the rents and profits thereof since March 1, 1880. petition alleged, among other things, that Douglass was the owner of the land, and entitled to the possession of the same; that McKeever had kept him wrongfully out of the possession of the land since March 1, 1880; and that the rents were worth $1,500. McKeever filed an answer containing a general denial. Trial had before the court without a jury on the 13th of February, 1890. Douglass introduced evidence showing a title in fee in himself to the land in dispute on and after April 13, 1874, unless divested by the tax title under which McKeever claimed. The tax deed was dated the 29th of November, 1880, and recorded on the 3d day of December, 1880, in the office of register of deeds of the proper county. The land was struck off at the tax sale to the county for the want of bidders on May 6, 1874. The tax certificate was assigned to B. P. Stanley on the 18th day of May, 1880, under the compromise act of chapter 43, Sess. Laws 1879 (Gen. St. 1889, par. 6987). The next day Stanley assigned the certificate to J. C. Foster. Douglass also offered evidence upon the trial tending to show he was a minor until the 22d day of December, 1886; that his father, John C. Douglass, on the 25th of June, 1880, called upon B. P. Stanley, the party to whom the tax certificate had been first assigned, and informed him, on behalf of his son, that he wanted to redeem the land from the tax sale certificate that Stanley had purchased, and then tendered him for the redemption of the same $41, the amount paid for the property, with interest, as prescribed by section 2, c. 43, Sess. Laws 1879; that Stanley declined to receive it; that he did not want Douglass to redeem it; that his father, John C., had the charge of the land for him, and that he had no knowledge or notice that J. C. Foster held the tax certificate, or that Stanley had assigned the same at the time of the tender. Subsequently, the tax deed was received in evidence, against the objection of the plaintiff. The court rendered judgment for the defendant for costs. The plaintiff excepted, and brings the case here. John C. Douglass, for plaintiff in error. Keeler & Welch, for defendant in error. HORTON, C. J. (after stating the facts). On June 25, 1880, when Willard Douglass offered to redeem the real estate described in the petition from B. P. Stanley, the purchaser of the tax certificate, no tax deed had issued. The trial court ruled that the plaintiff "had not used due diligence to discover the holder of the tax certificate." Stanley purchased the tax certificate on the 18th day of May, 1880, and assigned it the next day to J. C. Foster, who had an office in the same room with him. Stanley admits that he did not want Douglass to redeem the land. At the time of the tender, he did not inform him that he had transferred the tax certificate to Foster, and Douglass never knew, until the deed had been issued and recorded, that Foster was the holder of the tax certificate. The assignment of the tax certificate to Foster was not entered on the treasurer's sale book or the clerk's duplicate thereof. Gen. St. 1889, par. 6965. The provisions for redemption should be regarded favorably, and construed with liberality. Cooley, Tax'n, p. 363, c. 16. Upon the facts disclosed, the tender to the purchaser of the tax certificate was sufficient, as the plaintiff had no notice or knowledge from the purchaser, or the public records, that Foster had obtained an assignment of the tax certificate from Stanley. It would be unjust to rule that the owner of land should be compelled to redeem, under chapter 41, Sess. Laws 1879 (Gen. St. 1889. par. 6976), from the holder of a tax certificate acquired under chapter 43, Sess. Laws 1879, if he could not, from the purchaser of the tax certificate or the public records, ascertain who the assignor or holder was, because under the provisions of section 2 of chapter 43 an owner may redeem by repaying the amount paid by way of compromise for the tax certificate, with subsequent taxes, and interest, but under chapter 41, Sess. Laws 1879 (Gen. St. 1889, par. 6976), he must pay the amount for which the land was sold, with subsequent taxes and charges thereon, and interest. The owner of land has the right to redeem it from tax sale at any time before the execution of the tax deed. Mathews v. Buckingham, 22 Kan. 166; Olin v. Rohrbaugh, 28 Kan. 412. Therefore, within the prior rulings of this court, a sufficient tender having been made, the tax deed is a nullity. The judgment will be reversed, and cause remanded for further proceedings in accordance with the views herein expressed. All the justices concurring. (54 Kan. 709) GOODMAN v. WILSON et al. (Supreme Court of Kansas. March 9, 1895.) LAND SOLD FOR TAXES-SUIT TO RECOVER - LIMITATIONS DISABILITY OF INFANCY-EFFECT. The limitation of the tax law providing that an action against a tax purchaser for the recovery of land sold for taxes must be brought within five years from the time of recording the tax deed, and not thereafter, is not modified or limited by the Code provision which permits the bringing of an action by an infant within two years after the disability of infancy is removed. (Syllabus by the Court.) Error from district court, Jefferson county; Robert Crozier, Judge. Action by Julia M. Goodman against James P. Wilson and others. Judgment for defendants, and plaintiff brings error. Affirmed. John C. Douglass, for plaintiff in error. Keeler & Welch, for defendants in error. JOHNSTON, J. Julia M. Goodman brought this action against the defendants to recover a quarter section of land in Jefferson county, and the rents and profits of the same, from March 1, 1885, to December 8, 1887, alleged to be of the value of $2.000. The answer of the defendants was a general denial, and that they were in possession under a tax deed good upon its face, and which had been recorded more than five years before the commencement of the action. They, therefore, claimed that the action of the plaintiff was barred by the statute of limitations. At the trial it was shown that the plaintiff's title was derived through a conveyance made to her on November 5, 1887, by Willard R. Douglas, and that in April, 1874, Douglas acquired his title to the land and continued to own it until he conveyed it to plaintiff, unless it had been divested by the tax title under which defendants claim. Douglas was a minor until December 22, 1886, when he became 21 years of age. It was further shown that the tax deed under which the defendants claim title and held possession was good upon its face, and was duly recorded in August, 1880, while the action was not commenced until December 8, 1887. The court below found that the defendants' tax deed, while good upon its face, would be voidable if it had been attacked within five days of the time it was recorded; but evidence outside of the face of the deed tending to show invalidity was refused, and judgment given for defendants. From the facts in the case it is plain that the cause of action is barred under section 141 of the tax law. It provides that a suit or proceeding against the tax purchaser for the recovery of land sold for taxes, except where the taxes have been paid or the land redeemed, must be commenced within five years from the time of recording the tax deed. The plaintiff attempts to parry the force of the objection by the claim that the statute did not run because of the infancy of her grantee. The plaintiff was not under the disability of infancy, and even her grantee, Douglas, brought no action, although the title was in him for about one year after he reached majority. But if the privileges of infancy were conceded to be transferable, the bar in this case must be held to be complete. It is conceded that section 141 of the tax law makes no exception of persons under the disability of infancy. But the contention is that this provision is modified and controlled by section 17 of the Code of Civil Procedure, which authorizes the bring ing of an action for the recovery of real property by one under legal disability, when the cause of action accrues within two years after the disability is removed. This identical question has been decided adversely to the contention of the plaintiff in error. In Cartwright v. Korman, 45 Kan. 515, 26 Pac. 48, it is expressly decided that the limitation of the tax provision is not modified or limited by section 17 of the Civil Code, nor are persons who are under disability excepted from its operation. See, also, Beebe v. Doster, 36 Kan. 666, 14 Pac. 150; Edwards v. Sims, 40 Kan. 235, 19 Pac. 710. We see no reason to reopen the question or to disturb the ruling which has been made. The judgment of the district court will be affirmed. All the justices concurring. (54 Kan. 742) PLEASANT VIEW TP. v. SHAWGO. (Supreme Court of Kansas. March 9, 1895.) TOWNSHIP BOARD-POWERS-ERECTION OF BRIDGE -COUNTY COMMISSIONERS-DELEGA- 1. Chapter 16 of the General Statutes of 1889 confers no power on a township board to bind the township by a contract for the construction of a bridge costing more than $200. ALLEN, J. Several objections are made to the consideration of the case in this court, but none of them are valid. The order extending the time for making and serving a case was made in due time, and unobjectionable in form. The proof before us shows that the case was actually filed by the district clerk of Crawford county. The motion for a new trial might be heard before the formal entry of judgment, as well as after. It is an application for a re-examination of the questions of fact. If no new trial is granted, judgment on a general verdict, where there are no special findings conflicting with it, follows as a matter of course. This action was brought in the district court of Cherokee county by J. W. Shawgo, to recover from Pleasant View township a balance of $638.74, with interest, claimed to be due the plaintiff under a written contract for the construction of the abutments and wing walls for a bridge across Cow creek, in said township. The contract price was $5 per cubic yard. The petition alleges that the work was completed according to contract, and contained 353 20-27 cubic yards. Under this contract, $1,130 had been paid, and a controversy arose between the parties in reference to the measurement of the work, the plaintiff claiming in the neighborhood of 60 yards more than was conceded by the township officers. The written contract sued on is signed by the township trustee, clerk, and treasurer. The first and most important question pre-, sented is whether the township officers had power, under the law, to bind the township by such a contract. Chapter 16 of the General Statutes of 1889 provides for the construction of bridges, placing the duty on the county board of determining what bridges are necessary where the expense exceeds $200, leaving only those costing $200 or less to be constructed by the township officers. Under the general law, it is clear that the township board had no power to bind the township by a contract for a bridge costing more than $200. Salt Creek Tp. v. King Iron Bridge & Manuf'g Co., 51 Kan. 520, 33 Pac. 303. v.39p.no.6-45 We are referred to chapter 75 of the Laws of 1886, which authorizes the board of county commissioners of Cherokee county to levy taxes for certain purposes, and, among others, to provide a sum not exceeding $1,400 with which to build bridges in Pleasant View township. It is claimed that this sum was raised and turned over to the township by the board of county commissioners, and that they might delegate to the township the power to use the money and construct the bridge, making the township their agent for that purpose. This contention is not sound. The board of county commissioners cannot delegate power to a municipal township. The board, it is true, has power to select its own agents for proper purposes, and such agents, acting within the scope of their authority, may bind the county; but it cannot select agents, and authorize them to bind a municipal subdivision of the county, without legislative authority so to do. The act last referred to authorizes the board of county commissioners to proceed, prepare plans and specifications, advertise for bids, and let contracts for the work. This does not mean that they may turn over the money raised to a township board, and authorize them to make plans, advertise for bids, and let contracts on behalf of the township. The commissioners are authorized to issue scrip in payment for improvements under such contracts. This, however, did not confer authority on them to issue scrip in advance of the performance of the work to be used by another board at their discretion. It appearing from the face of the petition that the contract sued upon did not bind the township, the plaintiff cannot recover in the action, and it is unnecessary to consider any The other matter discussed by counsel. judgment is reversed. All the justices concurring. (54 Kan. 738) FRANKHOUSER, Sheriff, v. FISHER et al. (Supreme Court of Kansas. March 9, 1895.) CHATTEL MORTGAGE-WHAT CONSTITUTES-VALIDITY AS AGAINST CREDITORS-FAILURE TO FILE -CHANGE OF POSSESSION. 1. The instrument under which the plaintiffs claimed the corn in controversy in this action, being given to secure the payment of money, is held to be a chattel mortgage. 2. Where a mortgagee neglects to file his mortgage, or a copy thereof, in the office of the register of deeds, but claims a delivery of the property to him, he must show an actual and continued change of possession of the thing mortgaged; and, where it appears that no actual change of possession was had, the mortgage is absolutely void, as against creditors of the mortgagor. (Syllabus by the Court.) Error from district court, Osage county; William Thomson, Judge. Action by R. E. Fisher and S. B. Enderton against N. Frankhouser, sheriff. Judgment for plaintiffs, and defendant brings error. Reversed. Pleasant & Pleasant, for plaintiff in error. L. T. Wilson, for defendants in error. ALLEN, J. Fisher and Enderton brought this action against Frankhouser, who was the sheriff of Osage county, to recover a crib of corn stored on the premises occupied by W. L. Nealy. The corn had been raised by Nealy. Before it was gathered, he executed and delivered to the plaintiff an instrument in writing, as follows: "Melvern, Kan., October, 24th, 1889. In consideration of $300 to me paid, I hereby sell to Fisher & Enderton 2,000 bushels of corn now standing in the field on my farm in Osage county, Kansas, N. 1⁄2 of Sec. 36, 18, 15; and I agree to crib said corn on the same premises for the said Fisher & Enderton. It is also agreed that said corn shall be marketed by Fisher & Enderton at any time after the first day of May, 1890, or before that time with my consent; and, if the market price be more than fifteen cents per bushel, the overplus, after deducting all costs of removal and ten per cent. interest to the date of sale, shall be paid to me, by a credit on my note for $780.80 to Fisher & Enderton. W. L. Nealy." This instrument was never filed for record, but it is claimed that the corn was gathered and cribbed as therein agreed, and delivered in the crib to the plaintiffs. The trial court correctly held that this instrument was a chattel mortgage. The main question for our consideration is whether the evidence shows a delivery of the corn thereunder. S. B. Enderton testified to the execution and delivery of the chattel mortgage, copied above, which was termed by him a "bill of sale," and was then asked: "Q. Now, Mr. Enderton, you may state what you did after the execution of that instrument. What was done by you in regard to the possession of the corn? A. Well, about a month after this bill of sale was delivered, Mr. Nealy came in, and told me my corn was in the crib, and I told him, as soon as I had leisure, I would go up and measure it; and in a few days, when I was there, he showed me a crib of corn, and told me his son, Jay, had a third interest in it, and that they had divided, and Jay took the north third of the corn, and he turned the corn over to me, and I stepped the crib off, and estimated the height of it." On crossexamination he was asked: "Q. Very well, what control had you or what did you ever do with this corn, except to see it, and estimate how much there was of it? A. Why, I went to take possession of it. Q. Well, did you take it away? A. No, sir. Q. Did you take any away? A. No, sir; I just made an estimate of it. Q. Did you go in the crib? A. No, sir; I could not get in. Q. Then, the only thing you did was to go and talk to Mr. Nealy about it, and make an estimate of the amount of corn in the crib, and go back home again? A. Why, yes, sir; I did not take any corn away with me." W. L. Nealy, also called as a witness for the plaintiff, testified, as follows: "Q. After you cribbed it,, you say Mr. Enderton came there? A. Yes, sir. Q. Now, what did you do when he was there? A. I showed him the corn and the division. Q. What did you say about it? A. I told him the north part was my share. Q. What did you say to him about it? A. I told him he could have it. Q. That he could have it? A. Yes, sir. Q. Did you show him or did you state to him anything about any division between one part of the crib and another? A. I think I did. Q. What did you say? A. I told him that was the division between myself and son. Q. Now, I will ask you if either you or he stated to each other anything about who was to have the control of that corn from that time on. A. Why, Mr. Enderton. Q. Well, what was said? A. I supposed, of course, that he was the owner of the corn. Q. I am talking about if any. thing was said between either one of you as to who was to control the corn from that on. A. I think not at that time. Q. Was there at any other time? A. I am not positive whether there was or not." These were the only witnesses testifying in the case. The court held that a sufficient delivery was shown, and rendered judgment for the plaintiffs. Section 9 of chapter 68 of the General Statutes of 1889 provides that "every mortgage, or conveyance intended to operate as a mortgage of personal property, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof shall be forthwith deposited in the office of the register of deeds, in the county where the property shall then be situated, or, if the mortgagor be a resident of this state, then of the county of which he shall at the time be a resident." The statute, it will be seen, requires an actual and continued change of possession. Does this evidence show it? The corn was placed in the crib by Nealy, on his farm. There it remained after the conversation with Enderton, and until levied on by the sheriff, in precisely the same condition, so far as the evidence shows, as when placed there. Nealy and Enderton looked at it, estimated the quantity, and talked about it, but did absolutely nothing to make any physical change in its condition, or in the dominion of the parties over it. Enderton did not take physical possession of any part of the corn, of the crib, or even of anything giving him exclusive access to it. The corn still remained on the farm of the mortgagor to all appearances, and, in fact, as completely in the actual possession of the mortgagor as it was before Enderton came there. As was well said by Mr. Justice Valentine in Swiggett v. Dod son, 38 Kan. 702, 17 Pac. 594: The statute means what it says. It requires actual and continued change of possession. The mere use of a formula of words, which might, under some circumstances, amount to a delivery between buyer and seller, will not fulfill the requirements of the statute. It is perhaps somewhat difficult to lay down a rule which would apply to all cases of the delivery of ponderous articles not easily moved. There must, however, be a change of control over the property, discernible in some manner by third parties. Bank v. Sargent, 20 Kan. 576; Throop v. Maiden, 52 Kan. 358, 34 Pac. 801; Tootle v. Rice, 53 Kan. 576, 36 Pac. 990. We are clearly of the opinion that the evidence in this case fails to show a delivery. The judgment is therefore reversed, and a new trial ordered. All the justices concurring. (54 Kan. 702) In re SMITH. (Supreme Court of Kansas. March 9, 1895.) CARRYING ON LOTTERIES-PUNISHMENT-VA GRANCY. The operating or carrying on of a lottery is included under the words "engaged in any unlawful calling whatever," as used in section 368. of the Criminal Code (Gen. St. 1889, par. 2509). (Syllabus by the Court.) Petition by Joseph Perry Smith for a writ of habeas corpus. Writ refused. On the 15th day of December, 1894, the county attorney of Wyandotte county filed an information in the court of common pleas of that county charging "that said Joseph Perry Smith did, in the county of Wyandotte, state of Kansas, and on or about the 21st day of June, 1894, engage in an unlawful calling, to wit, the calling of managing and operating a lottery, and the selling of lottery tickets, and did then and there establish a lottery for unlawfully disposing and distributing personal property, to wit, money, and did then and there unlawfully set on foot and carry on said lottery for the purpose of exposing money to be by the lot and chance of certain drawings disposed of and distributed to and among persons who became purchasers of the tickets therein in said lottery, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state of Kansas." The information contained 12 counts, all of which are the same, excepting the dates as to the alleged offenses. The petitioner was arrested by the sheriff of Wyandotte county, and while in custody made an application to one of the justices of this court for a writ of habeas corpus, which was issued, and made returnable on the 4th day of January, 1895. The sheriff of Wyandotte county filed his duly-verified return to the writ of habeas corpus, setting up a copy of the information filed against Joseph Perry Smith and the warrant under which Smith was arrested and held in custody. Upon the hearing, the return was excepted to, upon the ground that the information did not show that Smith had committed any public offense, or violated any provision of the statute, and that there was no legal reason for his detention or imprisonment. The hearing was had before this court at the February sitting for 1895. Junius W. Jenkins, McGrew, Watson & Watson, and John A. Hale, for petitioner. F. B. Dawes, Atty. Gen., and Samuel C. Miller, for respondent. HORTON, C. J. The information in this case was filed under the provisions of section 368 of the Criminal Code, which reads as follows: "Any person who may be found loitering around houses of ill fame gambling houses, or places where liquors are sold or drunk, without any visible means of support, or shall be the keeper or inmate of a house of ill fame or gambling house, or engaged in any unlawful calling whatever, or any able-bodied married man who shall neglect or refuse to provide for the support of his family, shall be deemed a vagrant, and, upon conviction thereof, may be fined in any sum not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year." Gen. St. 1889, par. 2509. The contention on the part of the petitioner is that the words "engaged in any unlawful calling whatever," must be construed with reference to the preceding language, and, giving them such a construction, that the operating or carrying on of a lottery is not an unlawful calling; that such a calling is not within the letter or the spirit of the statute, and therefore that the petitioner is not guilty of violating any provision of section 368, Cr. Code (paragraph 2509, Gen. St. 1889). Adopting this rule of construction, that when there are general words following particular and specific words, the former must be confined to things of the same kind, we are of the opinion that not only is the operation or carrying on of a lottery an unlawful calling, but that it is of like kind to the keeping or carrying on of a gambling house. Section 3 of article 15 of the constitution of the state ordains "that lotteries and the sale of lottery tickets are forever prohibited." The constitution, therefore, makes the operation or carrying on of a lottery an unlawful calling, notwithstanding it fails to provide any punishment for those engaged in that business. The legislature cannot charter or license the carrying on of lotteries or the sale of lottery tickets. State v. Association, 45 Kan. 351, 25 Pac. 984. Under the common law, such an occupation was unlawful. And.. Law. Dict. 640; Ex parte Blanchard, 9 Nev. 101; 4 |