(58 Kan. 773)

MARYSVILLE INV. CO. v. HOLLE et al. (Supreme Court of Kansas. Dec. 11, 1897.) TOWN SITES-VALIDITY OF DEED-TAX TITLESNOTICE OF ADVERSE CLAIMS-ESTOPPEL BY CONDUCT.

The town site of Palmetto was entered by the probate judge of Marshall county for the benefit of the occupants thereof, under the act of congress of May 23, 1844. He thereafter conveyed the property to M. and 11 other parties named as members of the Palmetto Town Company, which was a corporation. M. and several of the others conveyed their interests to the plaintiff, which brought this suit to recover certain lots occupied by the defendants. defendants claimed by virtue of adverse possession under a void tax deed for a period of about 10 years. Held: First. That the deed from the probate judge to M. and others conveyed a valid title as against the defendants. Second. That

The

uncertainty as to the respective rights of the Palmetto Town Company and the persons named in the deed from the probate judge neither enlarged nor diminished the rights of the defendants under their tax title. Third. That mere failure to assert his title for a long period of time will not estop the owner from maintaining an action against one claiming under à void tax deed, whose possession has never ripened into a title by prescription, and is not protected by any statute of limitations. Fourth. One who claims under a tax title is chargeable with notice of the existence of the original patent title as an adverse claim, and it is unimportant, under the facts in a case like this, whether he is rightly or wrongly informed as to who the holder of that title may be. Fifth. Estoppel by conduct arises only where the person claiming the estoppel is influenced in some degree by the conduct set up as constituting the estoppel, and the failure of the owner of town lots to pay the taxes on them does not operate by way of estoppel to strengthen or validate a void tax deed.

(Syllabus by the Court.)

Error from court of appeals, Northern department, Central division.

Action by the Marysville Investment Company against Wilhelm Holle and others. Judgment for defendants was affirmed by the court of appeals (49 Pac. 332), and plaintiff brings error. Reversed.

The plaintiff in error brought an action in ejectment in the district court of Marshall county against William Holle and F. Anton Kienlen and wife, to recover lots 6, 7, and 8 in block 23 in the original town of Palmetto, included in the city of Marysville. The defendants denied the plaintiff's title and right to recover. The case was tried with a jury. The plaintiff introduced in evidence a patent from the United States to Joshua E. Clardy, probate judge, for the S. W. 4 of section 28, township 2, of range 7, in Marshall county, as a town site, "in trust for the several use and benefit of the occupants of the town site of Palmetto, according to their respective interests"; a deed from Joshua E. Clardy, prɔbate judge, to F. J. Marshall and 11 others, as members of the Palmetto Town Company, conveying to them the S. 1⁄2 of section 28, township 2, of range 7; and deeds from F. J. Marshall and wife and others of the grantees named in the last-mentioned deed to the plaintiff, conveying their interests in the half

section of land above described. Other evidence, both oral and documentary, was offered on behalf of the plaintiff, but, as it has no bearing on the questions decided, it is not necessary to state it. The defendant Kienlen testified that he was in possession of the property, which he occupied as a home with his family, and had so occupied for about 10 years. There was a stable and a house on lot 7 when he bought it, and he afterwards built a new house, and made other improvements, costing him about $600. He bought lot 7 from Antone Huber, for $140, receiving from him a quitclaim deed, dated June 16, 1887. He stated on the witness stand that he had no title to lots 6 and 8. The defendants introduced in evidence a chain of conveyances from the administrator of J. D. Brumbaugh to Antone Huber. They also of fered in evidence a tax deed from James Smith, county clerk, to J. D. Brumbaugh, for a considerable number of town lots, dated November 1, 1873, for the consideration of $5.45. An objection to the introduction of this deed was sustained. They also offered proof of the incorporation of the Palmetto Town Company by special act of the territorial legislature, and oral testimony, and records of the proceedings of the Palmetto Town Company, participated in by Marshall and others named in the deed executed by the probate judge, tending to show that the Palmetto town site was treated by the grantees in the probate judge's deed as the property of the Palmetto Town Company, rather than of the individuals named as grantees.

At the conclusion of the testimony, the plaintiff asked the court to instruct the jury to bring in a verdict in its favor for 42/60 of the lots in controversy. This was refused. The court, of its own motion, gave the jury, among others, the following instructions: "Fourth. If for more than twenty-five years the plaintiff's grantors represented the Palmetto Town Company as the owner of the property in controversy, or for that length of time permitted the Palmetto Town Company to appear as such, or as having complete authority over it, and afterwards made claim of ownership, and made deeds attempting to convey their interests in the premises to the plaintiff, the plaintiff will now be estopped to deny such ownership or authority of the Palmetto Town Company against persons who, relying on such representations or silence, have purchased or acquired interests in the property. Fifth. If the plaintiff's grantors, for more than 28 years owners of the property in suit, neglected to pay taxes on the property, and made no claim to it, and suffered the corporation called the Palmetto Town Company to be held out to the world as the owner, and after said corporation had become defunct, so that it could not make deeds for real estate, suffered the belief to prevail in the community that a tax title was the only obtainable title to the property, and without objection, and without making

known their claim to the property, suffered the defendant and his predecessors in interest to take possession of the property under tax deeds, and make valuable and lasting improvements, greatly enhancing the value thereof, under the honest belief on the part of the defendant and his grantors that their tax titles were all the title that was obtainable, and in ignorance of any claim on the part of the grantors of the plaintiff, the plaintiff's grantors would now be estopped from asserting title to the property; and the plaintiff, their grantee, would be in no better position, but would also be estopped. If you find from the evidence that the plaintiff is so estopped, you will return a verdict for the defendants. Sixth. The act of congress under which the probate judge of Marshall county entered the Palmetto town site made the probate judge a trustee for the occupants of said town site, according to their respective interests. Under this law, the occupants of the town site at the time it was entered were entitled to a deed or deeds from the probate Judge, for their respective interests. In making such deeds, the probate judge was to be governed by such rules and regulations as should be prescribed by the legislative authority of the state or territory in which said town site was situated, so far as such rules and regulations did not conflict with said act of congress. The territorial legislature of Kansas passed in 1858 an act which provided, in substance, that where the persons who selected or laid out a town site have been incorporated as a town company, with power to purchase and hold the land on which said town site is situated, it should be the duty of the probate judge to convey the land thus entered to such incorporated company, under the provisions of these two acts. If it is shown by the evidence that the persons who selected and laid out the town site of Palmetto were incorporated as the Palmetto Town Company, with power to purchase and hold the land on which said town site was situated, and if the Palmetto Town Company so incorporated was the sole occupant of said town site, then it was the duty of the probate judge to deed said town site to said company, and any deed made by him to any other person or persons would be void, and would convey no title to the individuals named therein. And this would be true although some or all of the individuals named in said deed were actually occupying some part of said town site, if their occupancy was merely as members of the Palmetto Town Company, and for the purpose of enabling said company to make good its occupancy of said town site, and to acquire title thereto, under the laws already referred to." The jury brought in a general verdict in favor of the defendants, on which judgment was entered. On proceedings in error to court of appeals, this judgment was affirmed; Mahan P. J., dissenting. The title to real estate being involved, the case is brought to this court for review.

W. S. Glass, for plaintiff in error. E. Hutchinson, for defendants in error.

ALLEN, J. (after stating the facts). The town site of Palmetto was entered by the probate judge in accordance with the act of congress, for the benefit of the occupants thereof, as a town site. He conveyed the land to 12 persons by name, as members of the Palmetto Town Company. Some of these persons, and the heirs of others, have conveyed to the plaintiff, which now claims the lots in controversy, which are included in the town site. The defendants do not stand on the strength of their title, which is founded on a void tax deed and a possession insufficient to establish title by adverse possession; but they attack the plaintiff's title, anl contend that the deed from the probate judge to the plaintiff's grantors was void mainly because the statutes of Kansas required the conveyance to have been made to the Palmetto Town Company. They also contend that the plaintiff is estopped by the conduct of its grantors, and by their laches to assert title to any of this property. On the first proposition it is urged that whatever occupancy of the town site was held by individual members of the Palmetto Town Company was for the benefit of the corporation, and not of themselves as individuals, and that the corporation alone was authorized under the law to receive the deed, and that it alone was entitled to the land conveyed.

There is much evidence in the record tending to show that the town site was treated as the property of the Palmetto Town Company. Meetings were held by the directors, at which directions were given with reference to the drawing of lots by the members of the company, the sale and conveyance of others for their benefit by the president, the collection and disbursement of moneys belonging to the company, and other matters strongly tending to show that the grantees of the probate judge treated the town site as corporate property. Give to this testimony all the force the defendants claim for it, it yet can amount to only this: the title to the town site passed from the United States to the probate judge, in trust for the occupants thereof. The probate judge conveyed it directly to the beneficiaries, who treated it as common property belonging to their corporation, instead of individual property held by them as tenants in common. If the probate judge had deeded to the Palmetto Town Company, instead of the individuals, the town company would then have held the legal title; but it would have held it in trust for the occupants, who, so far as this record discloses, were the very persons named in the probate judge's deed. It would then have been the duty of the corporation to have conveyed and disposed of the land for the benefit of the members of the company. The corporation would have been a mere trustee, holding the legal title for its mem

bers, the cestuis qui trustent, who held the full equitable title. The state of the case if the conveyance had been as the defendants' counsel claims it should have been would not have differed in substance from that presented by the case actually before us. The substantial interest in either case was vested in Marshall and others, to whom the probate judge made the conveyance. It may well be that, as against them, all conveyances made by the officers of the town company are valid, and that they would be estopped by their conduct from asserting any claim against persons holding under such conveyance; but, as against parties having no rights whatever in the property, they are to be treated as the full legal and equitable owners. This is in accordance with the conclusions reached in the case of Investment Co. v. Munson, 44 Kan. 491, 24 Pac. 977, in which case these same matters were under consideration. The defendants in this case do not claim any privity with the Palmetto Town Company. They have derived no right or title from that company, or from any other person, to whom title passed by the deed executed by the probate judge. Their title starts from a deed executed by William C. McCurdy, as administrator of Jerome D. Brumbaugh to John C. Nelson, on the 19th of September, 1878. This deed recites a consideration of $6, and purports to convey lots 3 and 7 in block 23. Lot 3 is not in controversy in this action. This deed conveyed no title, because the grantor had none to convey. The defendants offered in evidence a tax deed to Brumbaugh, but the court excluded it. It was clearly void on its face, and is conceded to have been so.

The fourth instruction given by the court would have been applicable and sound in a case where the defendants claimed title through the Palmetto Town Company, but it was utterly inapplicable to this case, and seriously misleading.

The fifth instruction does not correctly state the law, and would be erroneous in any case. It is especially erroneous, however, as applied to the facts presented to the jury in this case. The court seems to have forgotten that it had excluded the tax deed under which the defendants claim, and that no tax title was in evidence before the jury. It is extremely doubtful whether, under our statutes, a case could possibly arise where the holder of the patent title would be estopped by mere silence or nonaction to assert his title as against a purchaser under a tax deed. Our statutes provide a very brief limitation for the protection of parties claiming under tax deeds. In case a deed is issued which is void on its face, there are various ways through which the purchaser can protect himself. The occupying claimant law and the provisions with reference to the recovery of taxes actually paid by the tax-title holder are liberal, and protect the purchaser against loss in most cases very effectually. A tax-title holder is always noti

fied when he makes his purchase that his title comes not in privity with that of the holder of the government title, but adverse to it. He may not be informed with reference to the particular person who holds that title, but that some one holds it he always knows, else there could be no tax title. Until title passes from the government, the state has no right to impose taxes on the land. They are levied as a charge against private property. He who would build up an independent title, with tax proceedings only for its foundation, must look to the legality of the proceedings of the officers. If he obtains a deed valid on its face, five years' possession under it cuts off all attacks based on defects in prior proceedings. Fifteen years' undisputed possession where the opposing party rests under no disability to sue may give a perfect title, even though the deed be void on its face. But it certainly is a novel application of the principle of estoppel to hold that it may arise in favor of a tax-title holder through controversies between those holding or claiming the patent title, or from their acts with each other, based on misapprehensions of their legal rights. Conduct, to furnish a basis for estoppel, must be calculated to influence the action of the party relying on it.

The sixth instruction is faulty because it ignores the proposition that all entries of town sites are for the benefit of the occupants thereof, and asserts that a town site may be entered solely for the benefit of a corporation, and that the occupants may hold merely for the benefit of the corporation, without having bona fide individual claims. This is not in accordance with a sound interpretation of the law governing the entry of town sites. They are not entered primarily for speculative corporations, but for actual settlers engaged in building a town. The seventh instruction is subject to the same criticism.

We think the record contains abundant evidence tending to show that the deed from the probate judge to Marshall and others was delivered and accepted. It was placed on record, and the grantees assumed the right to plat, distribute, and dispose of the town lots. In fact, our attention is not called to any evidence indicating that the deed was not delivered and accepted. The instructions of the court on these matters, while abstractly correct, do not seem to have any basis of fact to rest on.

We appreciate the force of the suggestion in the brief for the defendants in error that the plaintiff corporation appears somewhat in the attitude of a speculator in stale titles, and, as such, is not entitled to any special favor from the court. The law, however, seems to allow the purchase of whatever title a vendor may have. The owner never loses his title by mere lapse of time alone, if it is unoccupied. We are well aware that the law relating to title to land falls far short of effecting an equal or seemingly equitable distribution of the face of the earth among the

people. Arbitrary rules, often exceedingly harsh in their application, fix the rights of parties. Courts are not at liberty to take from one, and give to another whom they deem more worthy, unless the established rules of law sustain his right. In the eye of the law, the need of one weighs nothing as against the strict right of another, who may have absolutely no apparent use for the property in controversy. It is better that we should adhere to and enforce the law as we find it than be guilty of any disregard of its principles, for the purpose of attaining what, as individuals, may appear to us better justice. The plaintiff appears to have the legal right to an interest, the exact extent of which we shall not attempt to determine, in the land in controversy. The defendants appear to have but a possessory title, with valid claims for taxes and improvements. The verdict was the result of erroneous instructions as to the law. The judgment based on it must be reversed, and the cause remanded for a new trial. All the justices concurring.

BEELER v. FENN.

(Supreme Court of Kansas.

Dec. 13, 1897.) CITY TREASURER-FILING BOND. Under a statute providing that a city treasurer shall give a bond, to be approved by the mayor, within 10 days after an election, it is a sufficient compliance where the treasurer gave a bond within such time, which was approved by the mayor, who informed him that he must procure an additional bond.

Original proceedings in quo warranto by Otto C. Beeler against Amos A. Fenn. On demurrer to petition. Overruled.

J. T. O'Keefe, J. H. Atwood, and J. T. Hurd, for plaintiff. W. A. Porter and John W. Haussermann, for defendant.

It is con

PER CURIAM. The demurrer to the plaintiff's petition must be overruled. The petition shows that the plaintiff was duly elected treasurer of the city of Leavenworth; that he gave a bond on the 15th of April following, which was approved by the mayor. ceded that this bond was filed in due time, but it is contended that, as the mayor informed the plaintiff that he must procure an additional bond, the approval amounted to nothing; that the additional bond was not filed until May 10th, which was more than 10 days after the election; and therefore it is urged that the plaintiff failed to qualify within the time required by the statute and the ordinance of the city. The statute provides that the treasurer shall give a bond to be approved by the mayor. He did file a bond, which the mayor approved, within due time. This we think prevented a forfeiture of the office, notwithstanding the fact that he was notified to file an additional bond. An ordinance of the city requires the treasurer to qualify by taking the oath and

giving bond within 10 days after election. The statute, however, gives 10 days after notice of his election within which to qualify. It also provides that the certificate of election shall be issued, signed by the mayor and clerk, to the person receiving the highest number of votes as shown by the canvass thereof. So far as the ordinance conflicts with the statute it must give way. The second bond appears to have been given before the certificate of election was delivered to the plaintiff. We are not prepared to say that this bond was not also filed in time to prevent a forfeiture of the office. There clearly has been no purpose on the part of the plaintiff to refuse to accept the office, and he is not chargeable with such neglect as amounts to a refusal to accept. The demurrer is overruled.

MASON ▼. KANSAS CITY C. RY. CO. et al. (Supreme Court of Kansas. Dec. 11, 1897.) JUDGMENT-PETITION TO SUSTAIN.

A judgment obtained on a petition containing no averments showing liability on the part of defendant will be set aside.

Error from district court, Wyandotte county; H. L. Alden, Judge.

Action by James M. Mason against the Kansas City Circular Railway Company and others. There was an order setting aside a judgment against defendant Nicholas McAlpine, and plaintiff brings error.

Affirmed.

James M. Mason, in pro. per. McGrew, Watson & Watson, for defendants in error.

PER CURIAM. This proceeding is brought to obtain a review of a ruling vacating and setting aside a judgment and enjoining a sale of property by the plaintiff made thereunder. The only question presented is whether plaintiff's petition warranted a money judgment against McAlpine. It contains averments showing a liability on the part of two railroad companies to plaintiff, but none stating a liability against McAlpine. He and other persons were named as defendants, and, while the allegations of the petition might have authorized a judgment enjoining them from transferring or disposing of property, the judgment for $5,078.30, rendered against McAlpine, was not within the issues in the case, and the district court committed no error in setting it aside. Gille v. Emmons, 58 Kan. 118, 48 Pac. 569. Judgment affirmed.

FARWELL v. LAIRD. (Supreme Court of Kansas. Dec. 11, 1897.) APPEAL AND ERROR-PRACTICE-FILING OPINIONS The law does not require that the reasons for rulings on motions and interlocutory proceed ings shall be written out and filed; and the right to determine whether such rulings are of suffi cient interest or importance to justify opinions

setting forth the views of the court is therefore reserved.

Motion for rehearing. Overruled.
For former opinion, see 49 Pac. 518.

PER CURIAM. The first motion for rehearing in this case is a repetition of the brief and argument of defendant in error in his motion to dismiss. Due consideration was given to all the points made in favor of the motion to dismiss, not only after its submission along with the cause, but upon the previous hearing of the motion, when it was submitted alone in advance of the hearing of the cause. The motion to dismiss was held to be not well taken, and is still so held. Complaint is made that the court did not set forth its views upon the motion in a formal opinion. The law does not require that the reasons for the court's rulings upon motions and interlocutory proceedings be written out and filed. To do so would impose a burdensome task, without accomplish. ing any end of value or interest to the legal profession or to the public. The court reserves to itself the right to determine whether rulings upon motions to dismiss, and the like, are of sufficient interest or importance to justify opinions setting forth their views, and it holds itself competent to make such determination without any suggestions from counsel.

The defendant in error has also filed an additional motion for rehearing, in which complaint is made that the instructions of the court and the rulings upon evidence of which plaintiff in error complains were not excepted to by him, and therefore cannot constitute a basis for the reversal of the judgment. The statement of facts made by the court in its opinion was, for the purpose of presenting the meritorious question in the case, in as succinct a form as possible. That question was whether the findings of a justice of the peace, made upon a preliminary trial of a criminal case, of the lack of probable cause to believe the defendant guilty, were admissible thereafter in a suit for malicious prosecution, in support of the claim of lack of probable cause. We might have elaborated the statement of facts by showing that, upon the close of the trial of the case, the defendant moved the court to direct a verdict in his favor, which motion the court overruled, and to which ruling the defendant excepted, as set forth on page 29 of the record. We might also have adverted to the fact that defendant moved for a new trial, because the verdict against him was contrary to law, and not supported by the evidence, which motion was overruled, and to which ruling the defendant excepted, which matters are set forth on pages 41 and 42 of the record. It shortened and made clearer the statement of the case to present it in the mode adopted, even though the objection to the admission of the justice's findings was general, as counsel pointed out,

and even though the erroneous instruction in question was not excepted to. Counsel have no meritorious ground upon which to ask for a rehearing of this case. The precise question discussed by them, to wit, the admissibility of the justices' findings, was passed upon by the court, after full consideration of their views and the authorities cited by them; and their complaint that the court should have based its judgment upon a different form of presentation of the same errors is decidedly fault-finding and querulous. There was not a scintilla of testimony in the case tending to show lack of probable cause to believe the defendant on trial before the justice (the defendant in error) guilty, and we are entirely satisfied with the former decision of the case. The motion for rehearing is therefore overruled.

RASDELL et al. v. SHUMWAY. (Supreme Court of Kansas. Dec. 11. 1897.) ADVERSE POSSESSION-FEnce Line. Adverse possession to a strip of land along one's boundary is not obtained by the erection of a fence inclosing it under a mistake as to the location of the true line, when the party claiming adversely brings no claim to the strip to the notice of the holder of the legal title.

Error from court of appeals, Northern department, Eastern division.

Action of ejectment by H. E. Shumway against Maggie Rasdell and John Rasdell. The court of appeals affirmed a judgment for plaintiff (49 Pac. 631), and defendants bring error. Affirmed.

B. F. Hudson, for plaintiffs in error. Waggener, Horton & Orr, for defendant in error.

PER CURIAM. This was an action of ejectment to recover possession of a narrow strip of ground forming a portion of a lot in the city of Atchison, claimed by defendant in error, but which had been for more than 15 years in the possession of plaintiffs in error, and upon which during the time of their possession they had erected some small improvements, of inconsiderable value. The plaintiffs in error bought two lots adjoining the strip in 1873, which lots at the time of their purchase were inclosed with a fence which included the strip of ground in question. The district court found that the erection of the fence on the lots claimed by defendant in error, so as to exclude the strip, and throw it into the inclosure along with the lots of plaintiffs in error, was a mistake,. made by the owners of the strip and the adjoining lot respectively, as to the location of the true line, and was not done with a knowledge of the facts, for the purpose of surrendering the possession of the strip; and also found that plaintiffs in error made no claim to such strip of ground until a short time before the bringing of the action. This is an epitome of the findings, not, however,