cluded in the consideration. Kennedy v. cital appearing in the deed approved in Nagle Scott, 72 Kan. 359, 83 Pac. 971; Martin v. Garrett, 49 Kan. 131, 30 Pac. 168; Vogler v. Stark, 75 Kan. 831, 89 Pac. 653. v. Tieperman, supra, and is a substantial compliance with the statute. Martin v. Garrett, 49 Kan. 131, 30 Pac. 168. Indeed, this is the precise form prescribed by statute where only one tract is included. The objection that the description in the granting clause, "the real property last hereinbefore described," applies to but one of the tracts, is fully met by the opinion in Gibson v. Shiner, 74 Kan. 728, 88 Pac. 259. Another objection, based upon the supposed insufficiency of the seal, is unavailing. Clarke v. Tilden, 72 Kan. 574, 84 Pac. 139; Jackson v. McCarron, 77 Kan. 776, 95 Pac. 402. Extraneous evidence that the county used a different seal afterwards, if admissible, did not overthrow the presumption that the one used at the time the deed was executed was the seal of the county. We conclude that the tax deed was valid, In Gibson v. Kueffer, 69 Kan. 534, 77 Pac. 282, a tax deed, covering several disconnected tracts of land, which did not state the amount for which each separate tract was conveyed, was adjudged invalid upon its face, even after the lapse of five years from the date on which it was recorded. The deed recited the sale of several tracts for the taxes of 1891, stating the amount for which each tract was sold, the payment by the purchaser of the subsequent taxes for the years 1892, 1893, and 1894, amounting to $65.67, without specifying the several amounts paid upon each tract. The consideration was stated in the granting clause at a gross sum. The difference between the recitals in that deed and the one under consideration is important. The only basis for an apportion- and divested the plaintiff, Kessler, of the ment of the subsequent taxes in that case was the amounts paid at the original tax sale. Here we have not only these amounts, but we also have the amounts paid upon the assignments of the certificates, only 84 days before the date of the deed, showing that the same proportion had continued down to that time. It should also be observed that in that case the only question considered was what result followed when a tax deed covering disconnected tracts failed to show how much of the gross consideration was charge able against each. No suggestion was made or passed upon that it might be possible to ascertain from the face of the deed how much was paid on each tract by presuming that the taxes for the subsequent years were apportioned in the same ratio as in the year of the first delinquency. fee. It is therefore unnecessary to examine the questions arising upon the sheriff's deed, as the defendant's title under the tax deed must prevail. This A motion was made to dismiss this proceeding for the reason that it does not appear that the amount or value in controversy exceeds $100, and there is no certificate of the judge that this case belongs to one of the excepted classes, as provided in section 5019 of the General Statutes of 1901. action was tried, the judgment rendered, and the proceedings taken to this court after the section referred to was amended by chapter 256, p. 406, of the Laws of 1907, dispensing with such certificate. As this action involves the title to real estate, and as no certificate was required when the appeal was taken, the motion is overruled. The judgment is reversed upon the petition in error filed by the defendants Polkosky and wife, with directions to enter judgment in their favor in accordance with the views expressed in this opinion. All the Justices concur. In the later case of Nagle v. Tieperman, 74 Kan. 32, 55, 88 Pac. 969, where it appeared that the two tracts included in the deed had been assessed for the same amounts for the year 1888, the court said: "If they continued to be so taxed for the years 1889, 1890, and 1891-and the deed does not show that they were not so taxed-the consideration for the conveyance of each tract could be ascertained by simple division." While in that case the proportions were equal, the (Supreme Court of Kansas. Nov. 6, 1909.) division by two fixed the amounts, yet the 1. VENDOR AND PURCHASER (§ 231*)-BONA proportion may be arrived at with the same FIDE PURCHASERS-QUITCLAIM-RECORDS. certainty where the amounts are unequal. whose grantor holds by quitclaim deed only will A purchaser of real estate by warranty deed The decision in that case, however, is also be regarded as a purchaser in good faith notbased upon another ground. The language withstanding such quitclaim deed, if his granquoted was not necessary to sustain the con- tor's title as shown by the registry record is apclusion reached, and is therefore not deci-parently valid and clear, and he has no notice of any defect in the title. sive. DOWNS v. RICH. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 513-539; Dec. Dig. § 231.*] Another objection urged against this deed is the recital in the granting clause that the consideration named is the amount of "taxes, costs, and interest" instead of "taxes, interest, and penalty," according to the language of the statute. This is the form of the re 2. VENDOR AND PURCHASER (§ 231*) - BONA FIDE PURCHASERS-QUITCLAIM-RECORDS. warranty deed. The purchaser did not place the The owner of real estate conveyed it by conveyance upon record for 12 years. While such deed was withheld from record, the same owner was induced to execute a quitclaim deed to the land as an accommodation to a person who represented that such a conveyance was necessary to remove a cloud from the title. The grantee in such deed placed it upon record and not show who paid this money, except that conveyed the land by warranty deed to a purchaser, who paid an adequate consideration therefor, and did not have notice of any defect in the title, nor of the transaction in which his grantor obtained the quitclaim deed. Held, that the holder of the last-named warranty deed obtained a good title to the land, and his warranty deed would convey a good title to his grantee. and Mrs. Butler conveyed the land to Robinson, the deed was executed with the name of the grantee blank, and they were paid $100 for the conveyance, but the evidence does it was not Robinson, and that he had nothing at all to do with the matter except to allow his name to be inserted in the deed from Leggett and Butler, and to make the warranty deed to Warren, all of which was done at the request of L. S. Dickey; that Warren, when he purchased the land, had no knowledge, so far as the evidence shows, of the prior unrecorded deed from Leggett and Butler to Anderson; that for several Coun-years the land was vacant and unoccupied, but at the time of beginning of this suit, the possession of Wm. Reese as agent of and ever since August 16, 1905, it was in Downs, the defendant." [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 513-539; Dec. Dig. § 231.*] (Syllabus by the Court.) Error from District Court, Wichita ty; Charles E. Lobdell, Judge. Action by W. H. Rich against John Downs. Judgment for plaintiff, and defendant brings error. Affirmed. H. J. Bone and J. S. West, for plaintiff in W. M. Glenn (Wheeler & Switzer, of counsel), for defendant in error. GRAVES, J. W. H. Rich on April 17, 1906, commenced this action in the district court of Wichita county to quiet his title to the land in controversy against the claims of John S. Downs, who was asserting ownership thereto. The defendant in his answer denied the claim of the plaintiff, and alleged ownership and possession in himself, and prayed that his title be quieted as against the claims of the plaintiff. Plaintiff replied by a general denial. The case was tried to the court without a jury, and the court found in favor of Rich, and awarded him judgment for the land. Downs brings the case here for review. As conclusions of law it found as follows: "And as conclusions of law the court finds that W. H. Rich, the plaintiff, by his warranty deed from Warren, acquired the same title to the land which Warren had, and that Warren by his warranty deed from Robinson acquired the complete title to the land free and clear from the defect of the title of the previous unrecorded warranty deed from Leggett and Butler to Anderson; that the defendant, John Downs, acquiring the title of Anderson after the deed to Warren had been recorded, is in the same position as Anderson would have been if he had been the defendant and had made no conveyance to Downs." As supplemental to and explanatory of these conclusions, it appears from the testimony that some person whom the testimony fails to identify wrote to Leggett requesting a quitclaim deed to the lands in controversy for the purpose of removing a cloud from the title. Leggett thinks this request came from one of the county officers of Wichita county. He thinks the county treasurer, or register of deeds, but is not certain. Leggett in reply to the request wrote that they had long before conveyed the land, and did not have any right or interest therein, but, if it was necessary to remove a cloud from the title, they would be glad to assist in any way. Subsequently they received quitclaim deeds prepared and ready to be acknowledged. They were also requested to obtain certified copies of other papers relating to the title; and $100 was sent to pay them for their trouble. The papers were duly obtained and sent by mail to the person making the request, but who it was Leggett could not state. The name of the grantee in the quitclaim deeds was left blank. The deeds subsequently appeared in the possession of L. S. Dickey, the register of deeds of Wichita county. How he obtained them does not appear. The only evidence upon the subject indicates that he had no com The district court upon the trial found conclusions of fact and made them a part of the journal entry, as follows: "The court finds from the evidence that the three quarter sections of land belonged to Leggett and Butler, and on March 4, 1893, they conveyed it by warranty deed to B. M. Anderson, and that such deed was filed for record in the office of the register of deeds for Wichita county on August 16, 1905; that Anderson conveyed the land by quitclaim deed to John Downs, the defendant, on August 2, 1905, which deed was filed for record on August 16, 1905; that after the conveyance to Anderson, and on December 23, 1897, the widow and devisee of Butler, together with Leggett, conveyed the land by quitclaim deed to E. A. Robinson, which deed was filed for record on April 27, 1898; that Robinson conveyed the land on March 2, 1898, to Benjamin Warren by warranty deed, which deed was filed for record on May 4, 1898, and Warren conveyed the land to W. H. Rich, the plaintiff, on October 12, 1905, by warranty deed, and that deed was filed for record on October 21, 1905; that, when Leggett munication with Leggett concerning the 148 U. S. 31, 13 Sup. Ct. 458, 37 L. Ed. 354; transaction. Dickey induced E. A. Robinson to permit his name to be written in the deeds as grantee, and also to execute a warranty deed to Benjamin Warren, Jr. Robinson had no interest in or knowledge of the transaction, and permitted 'the use of his name merely to accommodate Dickey. All the evidence. upon the subject indicates that Dickey was not acting for Warren, and had not had any communication with him upon the subject. Who furnished the $100 sent to Leggett, or who sent it, does not appear. Warren resided at Peoria, Ill., where he was engaged as a dealer in grain. The evidence does not show that he had any actual personal knowledge of the condition of the title when he accepted and paid for the deed. Nor is it shown by whom the deed was delivered to him nor to whom he paid the purchase price. There is quite an extensive correspondence and some oral evidence showing that J. C. Donnell, who was county treasurer, transacted a large amount of business for Benjamin Warren, Jr., in buying real estate and paying taxes, but nothing to show that the land in controversy was the subject of any of this correspondence or was considered by either of them. From this the plaintiff in error infers that Donnell, acting for Warren, obtained the quitclaim deed from Leggett and Butler, and caused Dickey to use Robinson as a "straw man" for the purpose of completing a good title to Warren. In that case Donnell must have known the entire transaction, and, being the agent of Warren, his knowledge would be imputed to Warren. This conclusion would require a very robust interpretation of the testimony, but, if the trial court had so found, this court might have hesitated before disturbing the finding, but, since the trial court found the contrary, we are unable to say that there is no evidence to justify his conclusion. It is argued with much force that Warren stands in the same attitude as though he were holding under a quitclaim deed, and should be held to the same diligence in searching the records for outstanding conveyances, liens, incumbrances, and equities of all kinds that is required of one who takes a quitclaim deed. The trouble, however, with this contention is that Warren did not take a quitclaim deed, but received a deed of warranty for which he paid a valuable and adequate consideration. The law relating to quitclaim deeds does not therefore apply to him. His rights are not affected by the fact that his grantor held under a quitclaim deed only. Meikel v. Borders, 129 Ind. 529, 29 N. E. 29; Winkler v. Miller, 54 Iowa, 476, 6 N. W. 698; Finch v. Trent, 3 Tex. Civ. App. 568, 22 S. W. 132, 24 S. w. 679; Sherwood v. Moelle (C. C.) 36 Fed. 478, 1 L. R. A. 797; United States v. Land Co., Stanley v. Schawalby, 162 U. S. 255, 16 Sup. Ct. 754, 40 L. Ed. 960; Babcock v. Wells, 25 R. I. 23, 54 Atl. 596, 105 Am. St. Rep. 848. This case has a note in which are collected a large number of cases upon various questions relating to quitclaim deeds. At the time Warren received his warranty deed from Robinson, the record showed a quitclaim deed from Leggett and Butler to Robinson which was the only conveyance of any kind disclosed by the record in which they were grantors. At this time Warren does not appear to have had notice that there was any infirmity in his grantor's title. Under such circumstances, it seems that he acted with at least ordinary care and prudence in taking the warranty deed, and ought to be protected against an unrecorded conveyance. The deed of B. M. Anderson had been negligently withheld from record for 12 years. A man who ignores the requirements of the registry laws in this manner is not entitled to any great consideration if he suffers thereby. By negligently withholding a deed from record an invitation is given to those so disposed to mislead and defraud whoever may thereafter wish to deal with the land conveyed. Such a practice should not be encouraged. Finally, it is urged that Downs placed his deed on record five days before the deed to Rich was recorded; but that fact seems to be immaterial. Downs held under .a conveyance from Anderson, who had nothing to convey, his rights having been extinguished by the recorded conveyance to Warren; and, since Warren held a good title, he could convey it to Rich, which he did. We think the conclusions of the trial court are justified under the facts. The judgment of the district court is affirmed. All the Justices concurring. LOCKE et al. v. WILEY. (Supreme Court of Kansas. Nov. 6, 1909.) 1. WAREHOUSEMEN (§ 24*)-STORAGE IN DIFFERENT BUILDING THAN AGREED-LIABILITY FOR LOSS. A warehouseman who contracts to store the goods of another in a brick building, but in violation of his agreement stores them in an adjoining wooden building, sheeted with iron, a fire which did not destroy the brick building, which is less secure, and the goods are burned in or its contents, is liable for. the loss of the goods. [Ed. Note. For other cases, see Warehousemen, Cent. Dig. §§ 49-51; Dec. Dig. § 24.*] 2. WAREHOUSEMEN (§ 24*)-CARE REQUIRED IN GENERAL. In the absence of an express agreement, the law implies that a warehouseman for compensation will exercise reasonable care to protect and preserve property intrusted to him for safe-keeping, and imposes a liability for a loss resulting from his failure in that respect. [Ed. Note. For other cases, see Warehousemen, Cent. Dig. § 48; Dec. Dig. § 24.*] 3. WAREHOUSEMEN (§ 24*)-CARE REQUIREDPLACE OF STORAGE. He is not an insurer of goods received for storage, nor is he required to provide a building which is secure from danger from within or without that could not be foreseen or provided against. He is required not only to place such goods in a building reasonably adequate and safe against danger from within, but should exercise due care to store them in a place where they will not be exposed to unusual hazards from without. and which was generally recognized as a fire trap, and that a fire originated in this barn, which was communicated to the adjoining warehouse and destroyed the goods of appellee, and, further, that the failure of the appellants to provide an adequate building and proper facilities for the safe-keeping of the goods turned over to them was a violation of their duty as warehousemen, which [Ed. Note. For other cases, see Warehouse-made them liable for $435, the amount of men, Cent. Dig. 88 48, 49, 51-54; Dec. Dig. the loss sustained. The appellants' answer 24.*] denied the making of the verbal agreement alleged by the appellee, and then set forth a copy of a printed and written receipt, which it was alleged constituted the agreement between the parties and which contained provisions differing greatly from those of the alleged verbal agreement. The trial resulted in favor of Wiley, who was awarded $435, the value of the goods destroyed. The court denied a motion of appellants asking that the appellee be required to elect upon which ground of his petition he would seek a recovery, and of this ruling complaint is made. There was no occasion to make an 4. ACTION (§ 45*)-ACTIONS FOR LOSS-PETI- [Ed. Note. For other cases, see Action, Cent. Dig. § 431; Dec. Dig. § 45.*] (Syllabus by the Court.) Error from District Court, Reno County; P. J. Galle, Judge. Action by George W. Wiley against E. R. Locke and others, copartners. Judgment for plaintiff, and defendants bring error. Af firmed. F. F. Prigg and C. M. Williams, for plaintiffs in error. A. C. Malloy, for defendant in error. election. But one cause of action was pleaded, and only one recovery was sought. That was for the loss of the appellee's goods through a failure of appellants to take proper care of them. The first count pleaded a liability of appellants because of a breach of an express agreement as to the conditions of storage, and the second was upon the implied undertaking of a warehouseman for compensation that he would exercise reasonable care in providing an adequate and safe place for the goods placed in his keeping. Both counts are based on the same transaction, and between them there is no such inconsistency as will prevent the uniting of them in the same action. A pleader is permitted to set up his cause of action in different forms in order to meet the exigencies of the proof. The failure of the appellee to prove a breach of the express agreement is no reason why he should not establish the breach of the implied undertaking. Edwards V. Hartshorn, 72 Kan. 19, 82 Pac. 520, 1 L. R. A. (N. S.) 1050; Berry v. Craig, 76 Kan. 345, 91 Pac. 913. JOHNSTON, C. J. The appellants, who were doing business under the partnership name of the "City Transfer Company," received the household goods of George W. Wiley for storage, and shortly afterwards the goods, as well as the building in which they were stored, were destroyed by a fire which originated in a livery stable adjoining the warehouse. In his petition Wiley alleged that he made a verbal agreement with appellants to place and keep his goods on the ground floor of a brick building, that appellants failed to put the goods in their brick building, but, instead, had stored them in an adjoining wooden structure covered with Whether the verdict of the jury was foundcorrugated iron, which was consumed by ed on the first or second count of the petifire. It was averred that the brick ware- tion is not disclosed by the record. There house of appellants was not burned, and was a general finding in favor of the appelthat if the goods, which were of the value lee, and it appears that the appellants did of $435, had been stored there, in accord- not ask for special findings or take any steps ance with the verbal agreement, there would to learn the basis of the verdict. There was have been no loss. In a second count of the testimony tending to show an express agreepetition, there was an averment of the de- ment to store the goods in a brick building, livery of the goods to appellants as ware- and also that goods stored in that building housemen, and that without the knowledge were not injured by the fire which destroyed of appellee they placed them in a wooden the adjoining wooden one. Assuming that building sheeted with iron that was within there was such an agreement, it follows that 12 feet from a livery barn, a dilapidated, the placing of the goods in a different buildwooden structure containing great quanti-ing, which subjected them to a risk not conties of hay and other inflammable material, templated by the parties, and wherein they and preserve property placed in his custody; that is, such care as an ordinarily prudent person engaged in that business is in the habit of exercising towards property intrusted to him for safe-keeping. He should not only store them in a building reasonably adequate and safe against danger from within, but should exercise due care to store them in a place where they will not be exposed to unusual hazards from without. There was testimony that the goods were put in this sheeted building, about 14 inches from an old livery barn, made of pine lumber, containing large quantities of hay, that hay protruded through the cracks of the stable, and all along the edge of the building there was hay which had been thrown out of the mangers. In addition, it was draped with cobwebs. This inflammable material was immediately against the wooden building in which the goods were stored. Whether the storing of the goods in close proximity to the stable where there was such a litter and so much inflammable material, exposed to ignition by those using the livery stable, was due care, was fairly a question of fact for the jury. A were destroyed by fire, makes the appellants due care and reasonable precaution to protect liable for the resulting loss. An agreement to keep property in a certain kind of a building is not satisfied by placing and keeping it in a different kind of a warehouse, and especially one less secure than the kind of warehouse provided for in the agreement. McSherry v. Blanchfield, 68 Kan. 310, 75 Pac. 121. Wiley had a right to insist on the security and every advantage there is in a brick warehouse, and when appellants stored the goods in another building, where they were burned, they made themselves liable for the value of the goods destroyed. In a similar case the Supreme Court of Minnesota held that: "Where goods have been removed by the bailee from an agreed to another place of storage without notice to or consent of the bailor and are destroyed by fire, the bailee is liable in an action at law for the reasonable market value of the goods. Schouler on Bailments, § 106. Such a state of facts makes out a case of the defendant having taken the plaintiff's goods to a place where he had no right to take them. Therefore he must pay for the goods." McCurdy v. Wallblom Furniture & Carpet Co., 94 Minn. 326, 102 N. W. 873; Hudson v. Colum-like question arose in Judd v. New York & T. bian Transfer Co., 137 Mich. 255, 100 N. W. 402, 109 Am. St. Rep. 679; Lilley v. Doubleday, L. R. 7 Q. B. D. 510; St. Losky v. Davidson, 6 Cal. 643; Hatchett & Bro. v. Gibson, 13 Ala. 587; Butler v. Greene, 49 Neb. 280, 68 N. W. 496; 30 A. & E. Encyc. of L. 53. Complaint is made of the admission of testimony showing the character and situation of the livery stable adjoining the building in which the goods were stored and in which the fire originated. Exception was also taken to the instruction that "it is the duty of warehousemen to furnish a building that is reasonably fit and safe for storage, and if the building prove unsafe, and property stored therein is damaged cr destroyed by fire, the warehouseman will be held liable for the loss if they fail to exercise due and reasonable care in furnishing said building." It is insisted that, as the fire did not originate in the warehouse, but from without, any testimony of the conditions outside of the warehouse was not admissible, and, further, that there was no occasion for submitting to the jury the question of appellant's negligence in storing the goods close to the livery stable. Evidently this testimony and the instruction based upon it was submitted under the averment that the appellants had failed to exercise the care that the law requires of a bailee for hire. When appellee proved that he had intrusted his goods to appellants, who were unable to return them because they were burned, it then devolved upon appellants to show that the loss did not occur through any want of care on their part. A warehouseman is not an insurer of goods received for storage, nor is he required to provide a building secure against all danger from outside risks. S. S. Co., 117 Fed. 206, 54 C. C. A. 238, where property stored in a warehouse was burned by a fire which originated in an adjoining building owned by another. It was contended that, if proper precautions were taken against fire in the warehouse itself, no responsibility could arise by reason of a fire starting on and communicated from adjoining premises not owned, or occupied, or controlled by the warehouseman, since the fire was so violent in character as to defy any resistance that could possibly be opposed to it. The court ruled against this contention, holding that: "The fact that a carrier, which placed goods received for shipment in its warehouse, took adequate precaution against fire on its own premises, does not exonerate it from liability as a matter of law, for the destruction of the goods from a fire originating on adjoining premises, although such fire was so violent that it was impossible to prevent it from spreading to its own building, where it had full knowledge of the manifest danger to its own premises arising from the especially hazardous condition of those adjoining, and took no means to guard against it. Under such circumstances, it may have been culpable negligence and a breach of duty of a bailee for hire to place the goods in such warehouse." In Prince & Co. v. Compress Co., 112 Mo. App. 49, 86 S. W. 873, a warehouseman stored goods in a building close to a river, and he was held bound to the exercise of care in order to protect the goods against the breaking of a dike and the overflow of the river, and that if he failed to exercise due care he was liable for damages caused by the flood, although he had nothing to do with the dike and was under no duty |