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first suit was unauthorized, and not ratified was assigned to B. P. Stanley on the 18th by the plaintiffs, they would not be bound; day of May, 1880, under the compromise act but if the attorney who brought the suit of chapter 43, Sess. Laws 1879 (Gen. St. had authority to act for the plaintiffs, and 1889, par. 6987). The next day Stanley asdid act for them, his knowledge would be signed the certificate to J. C. Foster. Dougtheir knowledge, and they would be bound lass also offered evidence upon the trial tendby the steps taken by him. Plow Co. v. ing to show he was a minor until the 22d Rodgers, 53 Kan. 743, 37 Pac. 111.

day of December, 1886; that his father, John The judgment is reversed, and a new trial C. Douglass, on the 25th of June, 1880, called ordered. All the justices concurring.

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 (54 Kan. 767)

wanted to redeem the land from the tax sale DOUGLASS v. MCKEEVER.

certificate that Stanley had purchased, and (Supreme Court of Kansas. March 9, 1895.) then tendered him for the redemption of the REDEMPTION FROM TAX SALE TENDER TO PUR- same $41, the amount paid for the property, CHASER-PREVIOUS ASSIGNMENT OF CER

with interest, as prescribed by section 2, c. TIFICATE-EFFECT.

43, Sess. Laws 1879; that Stanley declined Where the owner of land desiring to re

to receive it; that he did not want Douglass deem the same from the holder of a tax certificate, under the provisions of chapter 43, Sess. to redeem it; that his father, John C., had Laws 1879 (Gen. St. 1889, pars. 6987, 6988), the charge of the land for him, and that he tenders to the purchaser of the tax certificate

had no knowledge or notice that J. C. Fosthe amount paid for the property therein described, with all subsequent taxes, and interest

ter held the tax certificate, or that Stanley thereon, as prescribed by section 2. c. 43, Sess. had assigned the same at the time of the Laws 1879 (Gen. St. 1889, par. 6988), before any

tender. Subsequently, the tax deed was retax deed is authorized or issued, and the purchaser of the tax certificate, without notice or

ceived in evidence, against the objection of knowledge to the owner, has assigned the tax cer- the plaintiff. The court rendered judgment tificate to another person, but gives no information for the defendant for costs. The plaintiff thereof to the owner at the time of the tender,

excepted, and brings the case here. and the assignment by the purchaser is not entered on the treasurer's sale book or the clerk's

John C. Douglass, for plaintiff in error. duplicate, and the owner of the property has no notice or knowledge that the tax certificate

Keeler & Welch, for defendant in error. has been assigned or transferred until after the issuance and recording of the tax deed, held that, under such circumstances, the tender to the HORTON, C. J. (after stating the facts). purchaser of the tax certificate is sufficient, and On June 25, 1880, when Willard Douglass ofany tax deed made thereafter is a nullity.

fered to redeem the real estate described in (Syllabus by the Court.)

the petition from B. P. Stanley, the purError from district court, Jefferson coun- chaser of the tax certificate, no tax deed had ty; Robert Crozier, Judge.

issued. The trial court ruled that the plainAction by Willard R. Douglass against tiff "had not used due diligence to discover Archibald McKeever. Judgment for defend- the holder of the tax certificate." Stanley ant, and plaintiff brings error. Reversed. purchased the tax certificate on the 18th day

On the 13th day of October, 1889, Willard of May, 1880, and assigned it the next day R. Douglass commenced his action against to J. C. Foster, who had an office in the Archibald McKeever, under section 595 of same room with him. Stanley admits that the Civil Code, to recover the possession of he did not want Douglass to redeem the land. the N. E. 14 of section 14, township 9, range At the time of the tender, he did not in17, in Jefferson county, and for the rents form him that he had transferred the tax and profits thereof since March 1, 1880. The certificate to Foster, and Douglass never petition alleged, among other things, that knew, until the deed had been issued and Douglass was the owner of the land, and en- recorded, that Foster was the holder of the titled to the possession of the same; that tax certificate. The assignment of the tax McKeever had kept him wrongfully out of certificate to Foster was not entered on the the possession of the land since March 1, treasurer's sale book or the clerk's duplicate 1800; and that the rents were worth $1,500. thereof. Gen. St. 1889, par. 6965. The proMcKeever filed an answer containing a gen- visions for redemption should be regarded eral denial. Trial had before the court with- favorably, and construed with liberality. out a jury on the 13th of February, 1890. Cooley, Tax'n, p. 363, c. 16. Upon the facts Douglass introduced evidence showing a title disclosed, the tender to the purchaser of the in fee in himself to the land in dispute on tax certificate was sufficient, as the plaintiff and after April 13, 1874, unless divested by had no notice or knowledge from the purthe tax title under which McKeever claimed. chaser, or the public records, that Foster had The tax deed was dated the 29th of Novem- obtained an assignment of the tax certificate ber, 1880, and recorded on the 3d day of De- from Stanley. It would be unjust to rule cember, 1880, in the office of register of deeds that the owner of land should be compelled of the proper county. The land was struck to redeem, under chapter 41, Sess. Laws 1879 off at the tax sale to the county for the want (Gen. St. 1889. par. 6976), from the holder of bidders on May 6, 1874. The tax certificate of a tax certificate acquired under chapter 43, Sess. Laws 1879, if he could not, from was a minor until December 22, 1886, when the purchaser of the tax certificate or the he became 21 years of age. It was further public records, ascertain who the assignor shown that the tax deed under which the or holder was, because under the provisions defendants claim title and held possession of section 2 of chapter 43 an owner may re- was good upon its face, and was duly redeem by repaying the amount paid by way corded in August, 1880, while the action of compromise for the tax certificate, with was not commenced until December S, subsequent taxes, and interest, but under 1887. The court below found that the dechapter 41, Sess. Laws 1879 (Gen. St. 1885, fendants' tax deed, while good upon its par. 6976), he must pay the amount for which face, would be voidable if it had been atthe land was sold, with subsequent taxes and tacked within five days of the time it was charges thereon, and interest. The owner of recorded; but evidence outside of the face land has the right to redeem it from tax sale of the deed tending to show invalidity was at any time before the execution of the tax refused, and judgment given for defenddeed. Mathews V. Buckingham, 22 Kan. ants. From the facts in the case it is plain 166; Olin v. Rohrbaugh, 28 Kan. 412. There- that the cause of action is barred under fore, within the prior rulings of this court, section 141 of the tax law. It provides that a sufficient tender having been made, the a suit or proceeding against the tax purtax deed is a nullity. The judgment will chaser for the recovery of land sold for be reversed, and cause remanded for further taxes, except where the taxes have been proceedings in accordance with the views | paid or the land redeemed, must be comherein expressed. All the justices concurring.

menced within five years from the time of recording the tax deed. The plaintiff at

tempts to parry the force of the objection (54 Kan. 709)

by the claim that the statute did not run GOODMAN V. WILSON et al.

because of the infancy of her grantee. The (Supreme Court of Kansas. March 9, 1895.)

plaintiff was not under the disability of

infancy, and even her grantee, Douglas, LAND SOLD FOR TAXES-SUIT TO RECOVER — LIMITATIONS-DISABILITY OF INFANCY-EFFECT.

brought no action, although the title was The limitation of the tax law providing

in him for about one year after he reached that an action against a tax purchaser for the re- majority. But if the privileges of infancy covery of land sold for taxes must be brought

were conceded to be transferable, the bar within five years from the time of recording the tax deed, and not thereafter, is not modified or

in this case must be held to be complete. limited by the Code provision which permits the

It is conceded that section 141 of the tax bringing of an action by an infant within two law makes no exception of persons under years after the disability of infancy is removed.

the disability of infancy. But the conten(Syllabus by the Court.)

tion is that this provision is modified and Error from district court, Jefferson coun- controlled by section 17 of the Code of ty; Robert Crozier, Judge.

Civil Procedure, which authorizes the bring. Action by Julia M. Goodman against ing of an action for the recovery of real James P. Wilson and others. Judgment property by one under legal disability, for defendants, and plaintiff brings error. when the cause of action accrues within Affirmed.

two years after the disability is removed. John C. Douglass, for plaintiff in error.

This identical question has been decided Keeler & Welch, for defendants in error.

adversely to the contention of the plaintiff

in error. In Cartwright v. Korman, 15 JOHNSTON, J. Julia M.: Goodman

Kan. 515, 26 Pac. 48, it is expressly decidbrought this action against the defendants

ed that the limitation of the tax provision to recover a quarter section of land in Jef

is not modified or limited by section 17 of ferson county, and the rents and profits of

the Civil Code, nor are persons who are unthe same, from March 1, 1885, to Decem- der disability excepted from its operation. ber 8, 1887, alleged to be of the value of

See, also, Beebe v. Doster, 36 Kan. 666, 14 $2,000. The answer of the defendants was

Pac. 150; Edwards v. Sims, 40 Kan. 23), a general denial, and that they were in pos

19 Pac. 710. We see no reason to reopen session under a tax deed good upon its

the question or to disturb the ruling which face, and which had been recorded more

has been made. The judgment of the disthan five years before the commencement

trict court will be affirmed, All the jusof the action. They, therefore, claimed

tices concurring. that the action of the plaintiff was barred by the statute of limitations. At the trial

(54 Kan. 742) it was shown that the plaintiff's title was PLEASANT VIEW TP. v. SHAWGO. derived through a conveyance made to her (Supreme Court of Kansas. March 9, 1895.) on November 5, 1887, by Willard R. Doug. TOWNSHIP BOARD-POWERS-ERECTION OF BRIDGE las, and that in April, 1874, Douglas ac

-COCNTY COMMISSIONERS-DELEGAquired his title to the land and continued

TION OF POWERS. to own it until he conveyed it to plaintiff,

1. Chapter 16 of the General Statutes of

1889 confers no power on a township board to unless it had been divested by the tax title

bind the township by a contract for the construcunder which defendants claim. Douglas tion of a bridge costing more than $200.

2. Chapter 75 of the Laws of 1886 does not We are referred to chapter 75 of the Laws authorize the board of county commissioners of

of 1886, which authorizes the board of counCherokee county to delegate its authority to the township board of Pleasant View township to

ty commissioners of Cherokee county to levy build bridges therein; nor is the township board taxes for certain purposes, and, among othof such township given any added power to bind ers, to provide a sum not exceeding $1,400 the township by a contract for the erection of a

with which to build bridges in Pleasant bridge, either by said act or by any action of the board of county commissioners thereon.

View township. It is claimed that this sum (Syllabus by the Court.)

was raised and turned over to the township

by the board of county commissioners, and Error from district court, Cherokee county;

that they might delegate to the township the J. S. West, Judge.

power to use the money and construct the Action by J. W. Shawgo against Pleasant

bridge, making the township their agent for View township. Judgment for plaintiff, and

that purpose.

This contention is not sound. defendant brings error. Reversed.

The board of county commissioners cannot John N. Ritter, for plaintiff in error. W. delegate power to a municipal township. R. Cowley and H. C. Root, for defendant in The board, it is true, has power to select its error.

own agents for proper purposes, and such

agents, acting within the scope of their auALLEN, J. Several objections are made thority, may bind the county; but it cannot to the consideration of the case in this court, select agents, and authorize them to bind a but none of them are valid. The order ex- municipal subdivision of the county, without tending the time for making and serving a legislative authority so to do. The act last case was made in due time, and unobjec- referred to authorizes the board of county tionable in form. The proof before us shows commissioners to proceed, prepare plans and that the case was actually filed by the dis- specifications, advertise for bids, and let contrict clerk of Crawford county. The motion tracts for the work. This does not mean for a new trial might be heard before the that they may turn over the money raised to formal entry of judgment, as well as after. a township board, and authorize them to It is an application for a re-examination of make plans, advertise for bids, and let conthe questions of fact. If no new trial is tracts on behalf of the township. The comgranted, judgment on a general verdict, missioners are authorized to issue scrip in where there are no special findings conflict- payment for improvements under such coning with it, follows as a matter of course.

tracts. This, however, did not confer auThis action was brought in the district court thority on them to issue scrip in advance of of Cherokee county by J. W. Shawgo, to re- the performance of the work to be used by cover from Pleasant View township a bal

another board at their discretion. ance of $638.74, with interest, claimed to be pearing from the face of the petition that due the plaintiff under a written contract for the contract sued upon did not bind the the construction of the abutments and wing township, the plaintiff cannot recover in the walls for a bridge across Cow creek, in said action, and it is unnecessary to consider any township. The contract price was $5 per

other matter discussed by counsel. The cubic yard. The petition alleges that the judgment is reversed. All the justices conwork was completed according to contract, curring. and contained 353 20-27 cubic yards. Under this contract, $1,130 had been paid, and a

(54 Kan. 738) controversy arose between the parties in reference to the measurement of the work, the FRANKHOUSER, Sheriff, v. FISHER et al. plaintiff claiming in the neighborhood of 60 (Supreme Court of Kansas. March 9, 1895.) yards more than was conceded by the town- CHATTEL MORTGAGE-WHAT CONSTITUTES-VALIDship officers. The written contract sued on

ITY AS AGAINST CREDITORS-FAILURE TO FILE

- CHANGE OF POSSESSION. is signed by the township trustee, clerk, and

1. The instrument under which the plaintreasurer.

tiffs claimed the corn in controversy in this acThe first and most important question pre-, tion, being given to secure the payment of money, sented is whether the township officers had

is held to be a chattel mortgage.

2. Where a mortgagee neglects to file his power, under the law, to bind the township

mortgage, or a copy thereof, in the office of the by such a contract. Chapter 16 of the Gen- register of deeds, but claims a delivery of the eral Statutes of 1889 provides for the con- property to him, he must show an actual and struction of bridges, placing the duty on the

continued change of possession of the thing mort

gaged; and, where it appears that no actual county board of determining what bridges change of possession was had, the mortgage is are necessary where the expense exceeds absolutely void, as against creditors of the $200, leaving only those costing $200 or less

mortgagor. to be constructed by the township officers.

(Syllabus by the Court.) Under the general law, it is clear that the Error from district court, Osage county; township board had no power to bind the William Thomson, Judge. township by a contract for a bridge costing Action by R. E. Fisher and S. B. Enderton more than $200. Salt Creek Tp. v. King Iron against N. Frankhouser, sheriff. Judgment Bridge & Manuf'g Co., 51 Kan. 520, 33 Pac. for plaintiffs, and defendant brings error. 303.

Reversed.
V.39P.no.6-45

It ap

Pleasant & Pleasant, for plaintiff in error. also called as a witness for the plaintiff, tesL. T. Wilson, for defendants in error.

tified, as follows: "Q. After you cribbed it, ,

you say Mr. Enderton came there? A. Yes, ALLEN, J. Fisher and Enderton brought sir. Q. Now, what did you do when he was this action against Frankhouser, who was there? A. I showed him the corn and the the sheriff of Osage county, to recover a crib division. Q. What did you say about it? of corn stored on the premises occupied by A. I told him the north part was my share. W. L. Nealy. The corn had been raised by Q. What did you say to him about it? A. I Nealy. Before it was gathered, he executed told him he could have it. Q. That he could and delivered to the plaintiff an instrument have it? A. Yes, sir. Q. Did you show him in writing, as follows: "Melvern, Kan., Oc- or did you state to him anything about any tober, 24th, 1889. In consideration of $300 division between one part of the crib and anto me paid, I hereby sell to Fisher & Ender- other? A. I think I did. Q. What did you ton 2,000 bushels of corn now standing in say? A. I told him that was the division the field on my farm in Osage county, Kan- between myself and son. Q. Now, I will ask sas, N. 12 of Sec. 36, 18, 15; and I agree to you if either you or he stated to each other crib said corn on the same premises for the anything about who was to have the control said Fisher & Enderton. It is also agreed of that corn from that time on. A. Why, that said corn shall be marketed by Fisher Mr. Enderton. Q. Well, what was said? A. & Enderton at any time after the first day I supposed, of course, that he was the owner of May, 1890, or before that time with my

of the corn. Q. I am talking about if any. consent; and, if the market price be more thing was said between either one of you as than fifteen cents per bushel, the overplus, to who was to control the corn from that on. after deducting all costs of removal and ten A. I think not at that time. Q. Was there per cent. interest to the date of sale, shall at any other time? A. I am not positive be paid to me, by a credit on my note for whether there was or not." These were the $780.80 to Fisher & Enderton. W. L. Nealy." only witnesses testifying in the case. The This instrument was never filed for record, court held that a sufficient delivery was but it is claimed that the corn was gathered shown, and rendered judgment for the plainand cribbed as therein agreed, and delivered tiff's. in the crib to the plaintiffs. The trial court Section 9 of chapter 68 of the General Statcorrectly held that this instrument was a utes of 1889 provides that “every mortgage, chattel mortgage.

or conveyance intended to operate as a mortThe main question for our consideration gage of personal property, which shall not be is whether the evidence shows a delivery of accompanied by an immediate delivery and the corn thereunder. S. B. Enderton testi- be followed by an actual and continued fied to the execution and delivery of the change of possession of the things mortchattel mortgage, copied above, which was gaged, shall be absolutely void as against termed by him a "bill of sale," and was then the creditors of the mortgagor, and asked: “Q. Now, Mr. Enderton, you may against subsequent purchasers and mort. state what you did after the execution of gagees in good faith, unless the mortgage, or that instrument. What was done by you in a true copy thereof shall be forthwith deregard to the possession of the corn? posited in the office of the register of deeds, Well, about a month after this bill of sale in the county where the property shall then was delivered, Mr. Nealy came in, and told be situated, or, if the mortgagor be a resime my corn was in the crib, and I told him, dent of this state, then of the county of as soon as I had leisure, I would go up and which he shall at the time be a resident." measure it; and in a few days, when I was The statute, it will be seen, requires an there, he showed me a crib of corn, and told actual and continued change of possession, me his son, Jay, had a third interest in it, Does this evidence show it? The corn was and that they had divided, and Jay took the placed in the crib by Nealy, on his farm, north third of the corn, and he turned the There it remained after the conversation with corn over to me, and I stepped the crib off, Enderton, and until levied on by the sheriff, and estimated the height of it.” On cross- in precisely the same condition, so far as the examination he was asked: “Q. Very well, evidence shows, as when placed there. Nealy what control had you or what did you ever

and Enderton looked at it, estimated the do with this corn, except to see it, and esti- quantity, and talked about it, but did absomate how much there was of it? A. Why, I lutely nothing to make any physical change went to take possession of it. Q. Well, did in its condition, or in the dominion of the you take it away? A. No, sir. Q. Did you

parties over it. Enderton did not take physitake any away? A. No, sir; I just made an cal possession of any part of the corn, of the estimate of it. Q. Did you go in the crib? crib, or even of anything giving him excluA. No, sir; I could not get in. Q. Then, the sive access to it. The corn still remained on only thing you did was to go and talk to the farm of the mortgagor to all appearances, Mr. Nealy about it, and make an estimate of and, in fact, as completely in the actual posthe amount of corn in the crib, and go back session of the mortgagor as it was before home again? A. Why, yes, sir; I did not Enderton came there. As was well said by take any corn away with me." W. L. Nealy, Mr. Justice Valentine in Swiggett v. Dod

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It requires actuala and

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son, 38 Kan. 702, 17 Pac. 594: The statute the information filed against Joseph Perry means what it says.

Smith and the warrant under which Smith continued change of possession. The mere was arrested and 'held in custody. Upon use of a formula of words, which might, un- the hearing, the return was excepted to, der some circumstances, amount to a deliv- upon the ground that the information did ery between buyer and seller, will not fulfill not show that Smith had committed any the requirements of the statute. It is per- public offense, or violated any provision of haps somewhat ditficult to lay down a rule the statute, and that there was no legal which would apply to all cases of the de- reason for his detention or imprisonment. livery of ponderous articles not easily moved. The hearing was had before this court at There must, however, be a change of control the February sitting for 1895. over the property, discernible in some man

Junius W. Jenkins, McGrew, Watson & ner by third parties. Bank v. Sargent, 20 Kan. 576; Throop v. Maiden, 52 Kan. 358,

Watson, and John A. Hale, for petitioner. 34 Pac. 801; Tootle v. Rice, 53 Kan. 576, 36

F. B. Dawes, Atty. Gen., and Samuel C.

Miller, for respondent. Pac. 990.

We are clearly of the opinion that the evidence in this case fails to show a delivery. HORTON, C. J. The information in this The judgment is therefore reversed, and a case was filed under the provisions new trial ordered. All the justices concur

tion 368 of the Criminal Code, which reads ring.

as follows: "Any person who may be found loitering around houses of ill fame gam

bling houses, or places where liquors are (54 Kan. 702)

sold or drunk, without any visible means In re SMITH.

of support, or shall be the keeper or inmate (Supreme Court of Kansas. March 9, 1895.) of a house of ill fame or gambling house, or CARRYING OX LOTTERIES-PuniSUMENT-VA

engaged in any unlawful calling whatever, GRANCY.

or any able-bodied married man who shall The operating or carrying on of a lottery is included under the words “engaged in

neglect or refuse to provide for the support any unlawful calling whatever,” as used in ser

of his family, shall be deemed a vagrant, tion 368. of the Criminal Code (Gen. St. 1889, and, upon conviction thereof, may be fined par. 2509).

in any sum not exceeding five hundred dol(Syllabus by the Court.)

lars, or by imprisonment in the county jail Petition by Joseph Perry Smith for a not exceeding one year.” Gen. St. 1889, writ of habeas corpus. Writ refused. par. 2509. The contention on the part of

On the 15th day of December, 1891, the the petitioner is that the words “engaged county attorney of Wyandotte county filed in any unlawful calling whatever," must be an information in the court of common construed with reference to the preceding pleas of that county charging "that said language, and, giving them such a construcJoseph Perry Smith did, in the county of tion, that the operating or carrying on of a Wyandotte, state of Kansas, and on lottery is not an unlawful calling; that about the 21st day of June, 1894, engage in such a calling is not within the letter or an unlawful calling, to wit, the calling of the spirit of the statute, and therefore that managing and operating a lottery, and the the petitioner is not guilty of violating any selling of lottery tickets, and did then and provision of section 368, Cr. Code (parathere establish a lottery for unlawfully dis. graph 2509, Gen. St. 1889). Adopting this posing and distributing personal property, rule of construction, that when there are to wit, money, and did then and there un- general words following particular and lawfully set on foot and carry on said lot- specific words, the former must be confined tery for the purpose of exposing money to to things of the same kind, we are of the be by the lot and chance of certain draw- opinion that not only is the operation or ings disposed of and distributed to and carrying on of a lottery an unlawful callamong persons who became purchasers of ing, but that it of like kind to the keepthe tickets therein in said lottery, contrary ing or carrying on of a gambling house. to the form of the statutes in such case Section 3 of article 15 of the constitution made and provided, and against the peace of the state ordains “that lotteries and the and dignity of the state of Kansas." The sale of lottery tickets are forever prohibinformation contained 12 counts, all of ited." The constitution, therefore, makes which are the same, excepting the dates as the operation or carrying on of a lottery an to the alleged offenses. The petitioner was unlawful calling, notwithstanding it fails arrested by the sheriff of Wyandotte coun- to provide any punishment for those enty, and while in custody made an applica- gaged in that business. The legislature tion to one of the justices of this court for cannot charter or license the carrying on a writ of habeas corpus, which was issued, of lotteries or the sale of lottery tickets. and made returnable on the 4th day of State v. Association, 45 Kan. 351, 25 Pac. January, 1895. The sheriff of Wyandotte 984. Under the common law, such an occounty filed his duly-verified return to the cupation was unlawful. And.. Law. Dict. writ of habeas corpus, setting up a copy of 640; Ex parte Blanchard, 9 Nev. 101; 4

or

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