Page images
PDF
EPUB

on. The tract of land in question is the southeast quarter of section 17 in township 3 of range 32, in Rawlins county. The tax deed was offered in evidence, and on objection was excluded as void upon its face. Omitting the acknowledgment and certificate of filing and recording it reads:

"Tax Deed.

Filed

"Rawlins County to C. F. McGrew. for record this Sth day of December, A. D. 1898, at 10:25 a. m. Paul Haller, Register of Deeds, by Frank E. Robinson, Dep.

"Know all men by these presents, that whereas, the hereinafter described tracts or pieces of ground, situated in the county of Rawlins and state of Kansas, were subject to taxation for the year A. D. 1894; and whereas, the taxes assessed upon said respective tracts and pieces of real property. for the year aforesaid, remained due and unpaid at the date of the sale hereinafter mentioned; and whereas, the treasurer of said county did, on the 3d day of September, A. D. 1895, by virtue of the authority in him vested by law, at (an adjourned sale of) the sale begun and publicly held on the first Tuesday of September, A. D. 1895, expose to public sale at the county seat of said county in substantial conformity with all the requisitions of the statute in such case made and provided each of said tracts and pieces of ground separately for the payment of the taxes, interest and costs, then due and remaining unpaid upon said tracts and pieces of ground. respectively; and whereas, at the place aforesaid, said tracts and pieces of ground could not be sold for the amount of taxes and charges thereon. and was therefore bid off by the county treasurer for said county, for the whole amount of taxes and charges then due thereon; the said amount being herein stated as follows, to wit:

The SE4 of Sec. 1, Town 1, Range 31, for.........$20.46 The NE of Sec. 12, Town 1, Range 32, for. .$12.57 The NE4 of Sec. 10, Town 1, Range 35, for. $19.76 The E2 of

.....

.....

NE4 of Sec. 9. Town 2, Range 32, for.... $ 5.42 The SW4 of Sec. 25. Town 2, Range 32, for.. .$21.70 The NE4 of Sec. 20, Town 2, Range 34, for. $12.45 The SW4 of Sec. 15, Town 2, Range 36, for........ .$10.80 The SE of Sec. 17, Town 3, Range 32, for.. .$ 9.83 The SW4 of Sec. 21, Town 4, Range 31, for.. .$19.02

And whereas, for the sums of $30.65 for the SE $20.22 for the NE $29.46 for the NE $ 8.13 for the E2

...

of Sec. 1, Town 1, Range 31, and of Sec. 12, Town 1, Range 32, and of Sec. 10, Town 1, Range 35, and

NE4 of Sec. 9, Town 2, Range 32, and $32.55 for the SW4 of Sec. 25, Town 2, Range 32, and $18.65 for the NE4 of Sec. 20, Town 2, Range 34, and $16.20 for the SW4 of Sec. 15, Town 2, Range 36, and $14.70 for the SE4 of Sec. 17, Town 3, Range 32, and $28.50 for the SW4 of Sec. 24, Town 4, Range 31, -aggregating the sum of one hundred ninetynine dollars and six cents, paid to the treasurer of said county, on the 7th day of December, A. D. 1898, the said treasurer did give to C. F. McGrew certificate of that date, as in such case provided by law, for and concerning said property, and the county clerk

of said county did on the same day duly assign to the purchaser aforesaid the said certificate of sale, and all the interest of said county in said property; and, whereas, three years have elapsed since the date of said sale, and the said tracts or pieces of ground have not been redeemed therefrom as provided by law:

"Now, therefore, I, Frank Johnson, county clerk of the county aforesaid, for and in consideration of the sum of one hundred ninetynine dollars and six cents, taxes, costs, and interest due on said land for the year A. D. 1894, by him to the treasurer paid as aforesaid, and by virtue of the statute in such case made and provided, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said C. F. McGrew his heirs and assigns, the real property hereinbefore described, to have and to hold, unto him, the said C. F. McGrew, his heirs and assigns, forever, subject, however, to all rights of redemption provided by law.

"In witness whereof, I, Frank Johnson, county clerk as aforesaid, by virtue of authority aforesaid, have hereunto subscribed my name and affixed the official seal of said county, on this 7th day of December, A. D. 1898. "Frank Johnson, County Clerk. [Seal.] "[50c. I. R. S. affixed to document.]"

The deed does not literally follow the form prescribed by the statute, and mainly for this reason it is reproduced here. It does not follow that the deed is void because not in the exact statutory form, but to sustain it we must find therein all the essential statutory requirements. Martin v. Garrett, 49 Kan. 131, 30 Pac. 168. The objections to the deed are set forth in the following conclusions of the court, to wit: "65) The deed fails to describe any property taxed. scribes only property which was sold. (6) The deed is for a large number of tracts, and fails to state the amount of tax, interest, and penalty for which each separate tract is sold and conveyed, and the sums or amounts which are given do not, when computed, make the gross or aggregate consideration of the deed. (7) None of the several tracts are so numbered or marked in any way that reference can be made thereto. (8) The county and the state of the residence of the assignee, C. F. McGrew, does not appear in the deed. (9) The interest of the county in all the various tracts was conveyed in one certificate. (10) The lands were not severally and separately taxed. (11) The lands were not severally and separately sold. (12) The lands were not severally and separately bid off by the county treasurer for the county, but were by him bid off in one bunch at one time. (13) No sufficient separate consideration is given for each of the several tracts in the deed, nor for the tracts involved in this case. (14) The consideration charged for the tract in question appears to be in excess

of the amount legally chargeable for the certificate given to the assignee, C. F. McGrew, and assigned to him by the county clerk. (15) Said deed contains several separate tracts of land, and the same were not purchased at any tax sale."

A comparison of the language of the deed with the form prescribed by the statute (section 7676, Gen. St. 1901) shows conclusion 5 to be very technical. The prescribed form has the description of the land subject to taxation at the beginning of the deed, and the land sold is thereinafter referred to as "the real property above described." In this deed, the land subject to taxation is described as "the hereinafter described tracts or pieces of ground," and the land sold is fully thereinafter described. One way of describing the land is as definite as the other, and neither can lead to mistake.

Conclusion 6, except so far as it evinces a mistake in computation by the court, is evidently based upon the statutory form where taxes paid subsequently to the sale form a part of the consideration for the deed, which is not the case here.

The omission, noted in conclusion 7, would occur had the statutory form been literally followed.

As stated in conclusion 8, the deed does not give the residence of the assignee of the certificate, who is also the grantee, although the statutory, form leaves a blank for that purpose. The mention of the county in which the purchaser resides, however, hardly amounts to one of the recitals of a tax deed in any strict sense. "A recital in a deed is defined to be the setting down or report of something done before, or, more specifically, the narrative of the previous agreements or matters of fact upon which the transaction is founded." 24 A. & E. Encyc. of L. 57. The residence of the purchaser has no relation to the tax proceedings-does not affect them in any way. Moreover, the prescribed form does not contemplate a statement that the purchaser is a resident of a certain county. The recital of fact is that the assignment was made to a certain person, who is indicated by his name and residence. The reasonable conclusion seems to be that the Legislature in preparing a form for such conveyances merely conformed to the general practice of conveyancers of adding to the name of the grantee the county and state of his residence -that the reference thereto was intended merely as a part of the designation of the purchaser, and not as an independent fact essential to the validity of the deed. Although the blanks left for the residence follow the ones left for the names of the original purchaser and his assignee, not that left for the grantee of the deed, this is plainly because in the orderly recital of the proceedings the

name of the grantee is first stated in connection with the sale of the land or the assignment of the certificate, and naturally provision is made for the addition of the county and state of his residence where his name is mentioned for the first rather than for the last time. It is worthy of mention that in Dodge v. Emmons, 34 Kan. 732, 9 Pac. 951, as well as in Edwards v. Sims, 40 Kan. 235, 19 Pac. 710, a tax deed was upheld which was set out in full in the opinion and did not state the residence of the assignee or grantee. The point here urged was not raised in either of these cases, and therefore they do not amount to authorities upon the proposition, but the fact that the obvious omission was not made a ground of attack affords some indication that the view here announced was regarded by a part of the profession as too plainly correct for serious challenge. A somewhat similar question has been raised under an earlier statute. The statutory form of tax deed formerly contained the word "witnesses" opposite the signature of the county clerk. Comp. Laws 1862, p. 879, c. 198, § 10. It was contended in McCauslin v. McGuire, 14 Kan. 234, that this amounted to a requirement that the clerk's signature should be attested by "witnesses," that is by at least two persons, but the contention

denied upon a full discussion. The same conclusion was stated in the last paragraph of the syllabus in Stebbins v. Guthrie, 4 Kan. 353. It is difficult to conceive how the statement of the assignee's residence could be of any benefit to any person claiming an interest in the land, or how the omission thereof could be prejudicial to him, any more than the omission of the residence of the maker from a promissory note. However, if it were really a recital, or if the statute specifically required it to be stated, it should be held essential. The omission is as to a mere matter of form, and, not being prejudicial, will be disregarded.

Conclusion 9 simply points out an irregularity in the certificate, and does not render the tax deed void upon its face.

Conclusions 10, 11, 12, 13, and 15 seem to be in direct contradiction of the recitals in the deed.

As to conclusion 14, a computation shows that the amount charged against the tract is about 20 cents in excess of the amount for which it was bid in by the county treasurer, with interest to date of the deed. Legal fees could easily cover this discrepancy.

We conclude that the tax deed is not void upon its face, and hence the plaintiff is entitled to the relief prayed for. The judgment is reversed, and the case is remanded, with instructions to enter judgment for the plaintiff in accordance with the views herein expressed. All the Justices concurring.

(76 Kan. 222)

HUBBARD et al. v. CHENEY et al. (Supreme Court of Kansas. July 5, 1907.

Rehearing Denied Oct. 5, 1907.)

1. MORTGAGES-WHAT CONSTITUTE EVIDENCE. A deed purporting to convey land to a husband and wife jointly, where the wife is named as a grantee to secure payment of a sum of money which she loans to her husband to make up the purchase price of the land, is, as to the wife, no more than a mortgage, and, when the loan is paid. her interest terminates, and his title becomes clear and complete, and the fact that the deed was intended to operate as a mortgage may be shown by parol evidence. 2. EVIDENCE-DECLARATIONS.

In a controversy between the heirs of such grantees as to whether the deed was in fact a mortgage, the declarations of the husband at the time of the purchase and while he was in possession of the land, explanatory of the possession and of the rights claimed in the land, were competent evidence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 35, Mortgages, $ 98.]

3. SAME-DOCUMENTARY-LETTERS.

Declarations of that character, included in letters shown to have been actually written while the declarant was in possession of the land, may be received in evidence, although they do not clearly show whether or when the letters were received by the one to whom they were addressed.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 20, Evidence, $$ 840-844.]

(Syllabus by the Court.)

Error from District Court, Shawnee County; A. W. Dana, Judge.

Action by Frederick R. Hubbard and others against Ernest and Maud Cheney. Judgment for defendants, and plaintiffs bring error. Affirmed.

T. F. Garver and J. B. Larimer, for plaintiffs in error. J. J. Schenck, for defendants in error.

JOHNSTON, C. J. This was an action by Frederick R. Hubbard, Leverett W. Hubbard, and Belle Hubbard Ransom, cousins and only surviving heirs to Jennie E. Cheney, against Ernest and Maud Cheney to recover an 80acre tract of land in Shawnee county. Henry W. Cheney was the husband of Jennie E. Cheney. In 1879, Henry W. Cheney purchased the land in controversy for $1,600, and $300 of the purchase price was furnished by his wife, Jennie E. Cheney. Both husband and wife were named as grantees in the deed of conveyance. In May, 1904, Henry W. Cheney executed a will, leaving all of his estate to Jennie E. Cheney, his wife, and in one of the clauses stated that it was his desire that his wife should remember his nephew, Ernest R. Cheney, when she had no fur ther use of the property; she to make such provision for him as she thought just and equitable. About a month later Jennie E. Cheney made a will which contained a number of specific devises and bequests, and left the residue of the estate to her husband. her will it was provided: "It is also my desire that in case of the death of my hus

In

band, Henry W. Cheney, while I am still liv ing, that his estate shall go to Ernest and Maud Cheney. It is my express desire that my cousin, Charles E. Hubbard, his wife and children, are not to receive anything from my estate. *** All the residue of my estate, real, personal and mixed property, I give, devise and bequeath to my husband, Henry W. Cheney, with no conditions or restrictions having full confidence that when he shall have no further use for the property he will remember my cousins named in paragraph two of my will [being the plaintiffs in error], and make such provision and distribution of whatever remains of my estate among said cousins, as to him may seem just and equitable." On June 14, 1904, Henry W. Cheney died, and 18 days later his wife passed away. The will of each was duly probated, and the validity of either has never been questioned. The plaintiffs insisted that they had a perfect title to the land; that the deed of 1879 to Henry W. Cheney and Jennie E. Cheney created an estate by the entirety; that, when Henry W. Cheney died, his surviving wife became the absolute owner; and that at her death it necessarily went to the plaintiffs, as the residuary legatee under the will was dead, and the land not having been disposed of by will, and Charles E. Hubbard, one of her four cousins, having been expressly excluded by the will, the three remaining cousins inherited the property. On the other side, it was contended that the deed, although executed jointly to the husband and wife, was a mere security to the wife for the $300 which she had advanced towards the purchase price, and the wife merely held the property in trust until the repayment of the borrowed money; that, when the money was repaid, the husband became the sole owner of the property, and under the wills of both husband and wife it passed to the defendants. Whether the naming of Jennie E. Cheney in the deed was intended as a conveyance to her, or only as a means of securing the payment of the money borrowed from her, was the principal question in the trial of the cause. The following interrogatories were submitted and answered by the jury: "(1) Did Henry W. Cheney purchase the real estate in controversy about 1879? Answer: Yes. (2) If you answer question No. 1 in the affirmative, then you may state whether or not Jennie E. Cheney, his wife, loaned him $300, or any other amount, with which to make the purchase. Answer: Yes. (3) If you answer question No. 2 in the affirmative, then you may state whether or not there was an arrangement, agreement, or understanding between Henry W. Cheney and Jennie E. Cheney, his wife, at the time of said .purchase, that the title of the real estate should be taken in the name of Henry W. Cheney and Jennie E. Cheney jointly for the purpose of securing Jennie E. Cheney in the money she had loaned to Henry W. Cheney? Answer: Yes." In addition to the special find

ings, the jury found generally in favor of the defendants, and upon these judgment against plaintiff's was given.

Plaintiffs contend here that the conveyance to husband and wife jointly created an estate by the entirety which could only be divested by a conveyance or by a written contract legally made. It is well settled that a deed to land absolute on its face, and taken as a security, is no more than a mortgage. If the land in question was purchased by Henry W. Cheney, and Jennie E. Cheney was only named as a grantee to secure the payment of the $300 loaned to her husband to make up the purchase price, she would only hold in trust for her husband, and when her loan was paid her interest would cease, and his title become clear and complete. It was competent then to show the resulting trust, that the deed was intended to operate as a mortgage, by parol evidence, and the rule applies where the instrument is in form a joint deed the same as if it had been made to Mrs. Cheney alone. Equity, looking back of forms to the substance of things, regards the transaction as the parties themselves regarded it, namely, the giving and taking of security for borrowed money. The purpose of the parties in having the deed made to her, and that it was intended as a mere security, which had been discharged. could be proven without writings or records. Moore v. Wade, 8 Kan. 380; Glynn v. Building Association, 22 Kan. 746; Bennett v. Wolverton, 24 Kan. 284; McDonald v. Kellogg, 30 Kan. 170, 2 Pac. 507; Marsh v. Davis, 33 Kan. 326, 6 Pac. 612; Hutchison v. Myers, 52 Kan. 290, 34 Pac. 742.

It is claimed, however, that the evidence received was insufficient for that purpose, and, further, that the court admitted testimony that was incompetent. Objections were unsuccessfully made to the admission of letters written by Henry W. Cheney to his wife and sister about the time the land was purchased, and also to declarations by him and his wife respecting the purchase and ownership of the land, some of which were made long after the purchase, but during their possession of the land. These rulings are not good grounds for a reversal of the judgment. The declarations of persons in possession of real property, which illustrate the character of their possession and explain their claims. of ownership. are admissible to show the character and extent of their claims. State v. Gurnee. 14 Kan. 111. The rule has been applied in cases where the possession and ownership of personal property is in controversy. Stone v. Bird. 16 Kan. 488: Reiley v. Haynes, 38 Kan. 259, 16 Pac. 440, 5 Am. St. Rep. 737. In an action of ejectment by the grantee against the heirs of the grantor, where the question was whether a deed absolute on its face was intended as a mortgage, the Supreme Court of Indiana held that the declarations of the grantor while in possession of the land, explanatory of the pos

session and of the rights claimed in the land, might be received in evidence. It was also held that the declarations need not be made while the claimant is actually on the land, but that it was sufficient to establish their competency when it was shown that it was made in connection with some act relating to the character of possession, and which evidenced ownership. To that end the declarations of the deceased grantor while negotiating for buildings and insurance, and while making improvements, were held to be admissible. Creighton v. Hoppis, 99 Ind. 369. See, also, Bennett v. Camp, 54 Vt. 36; Maus v. Bome, 123 Ind. 522. 24 N. E. 345; MeDaneld v. McDaneld, 136 Ind. 603, 36 N. E. 286: Fyffe v. Fyffe, 106 Ill. 646; Duffey v. Presbyterian Congregation, 48 Pa. 46; Stockton Savings Bank v. Staples, 98 Cal. 189, 32 Pac. 936; Kingsford v. Hood, 105 Mass. 495; Wigmore on Evidence, § 1779; 2 A. & E. Encyc. of Law, 690.

The letters written by Henry W. Cheney to his wife and sister about the time of the purchase of the land were competent evidence in the case, not to show that the statements contained in them were true, but to illustrate and explain the accompanying acts of purchase and possession. One of them, it is true, had very little in it that was material to the case: but its weight and force in showing that the title was in the husband, and that the wife had only held a lien on the land, was for the determination of the jury. There is no force in the objection that they failed to show that the letters were mailed by Henry W. Cheney, or that his wife ever received or saw them. They were identified as the letters of Henry W. Cheney, were shown to be in his handwriting, and, further, that they had been in the possession of Mrs. Cheney. The fact that she received the letters or the time of their reception is not as important as if the letters had been offered to show a contract or some like purpose. Since they were offered to illustrate and qualify the purchase and possession of the land, it is only important that they be shown to have accompanied the acts of purchase and possession, and hence it is immaterial whether they were received and acted upon by Mrs. Cheney. The oral declarations of Henry W. Cheney while he was in possession, testified to by a number of witnesses, are admissible under the rule stated. The declarations made by Mrs. Cheney while living on the land, to the effect that she had no title in the land, and that the only interest she ever had was a lien thereon for the $300 loan, were declarations against interest, and are therefore admissible under another rule. Some of the statements given in evidence were rather remote from the question in issue, and some of them were immaterial; but we do not regard their admission to be prejudicial or to furnish cause for reversal.

The judgment of the district court will be affirmed. All the Justices concurring.

(77 Kan. 813)

MAYSE V. WILLIAMS.

(Supreme Court of Kansas. July 5, 1907. Rehearing Denied Oct. 5, 1907.)

MORTGAGES-RELEASE-VALIDITY.

Laws 1899, p. 340, c. 168, repealing Laws 1897, p. 345, c. 160, which latter required the recording of assignments of mortgages and provided that "a release by the last recorded assignee shall discharge the mortgage," provided for recording assignments and omitted the quoted provision. Defendant, with the expectation of subsequently acquiring title to certain land free from a mortgage, secured the release the reof from the last assignee of record at a time when he had reason to believe that she was not the owner of the mortgage, but before a previous assignment thereof by her to a third person had been recorded. Held that, on foreclosure by the last assignee, defendant could not complain of a judgment which credited the sum paid by him for such release on the amount of the mortgage debt.

Error from District Court, Clark County; F. H. Madison, Judge.

Action by Noah Williams against Robert C. Mayse. There was a judgment for plaintiff, and defendant brings error. Affirmed.

[blocks in formation]

PER CURIAM. Williams brought this action to foreclose a mortgage on Clark county land which had been executed in 1887 and assigned to him. In 1904, the records showed Nancy Brewer, of Springwater, N. Y., to be the assignee of the mortgage, and Mayse, who was trying to buy the equity of the owner of the land, wrote to her and offered her $50 for an assignment. She replied that she was unable to find the mortgage among her papers, but would write him if she succeeded in finding it. He then wrote and offered her $25 for a release, but asked her to make an affidavit, which he inclosed, stating that she owned the mortgage and had power to release it, but that it was lost and she was unable to find it. She refused to make the affidavit, but he accepted and paid for the release. As a matter of fact, Mrs. Brewer had assigned the mortgage with others in 1901, but was not aware of it. The assignment to Williams was not recorded until after Mayse secured the release of the mortgage and the quitclaim from the owner of the land. The court allowed plaintiff in error a credit of the $25 paid, and found generally for plaintiff foreclosing the mortgage. It is contended that this was error.

Under Laws 1897, p. 345, c. 160, requiring all such assignments to be recorded within 90 days after the transfer, and providing in express terms that a release executed to the last recorded assignee should discharge the mortgage, the release relied upon here would have been a complete defense to the action. But in 1899 that law was repealed, and a new act (chapter 168, p. 340, Laws 1899) enacted in its place. In the latter, the provision that a release by the last assignee of record shall

be effectual to fully discharge the mortgage is omitted. The title to the act of 1897 is as follows: "An act providing for the recording of assignments of real-estate mortgages, and for the release of such mortgages by assignees thereof, and providing penalties for failing to record such assignments." And that of 1899 reads: "An act in relation to assignments of real-estate mortgages, and to repeal chapter 160 of the Session Laws of 1897." Whatever the purpose of the Legislature may have been-whether, as suggested, it believed the former provision hindered and impaired the usefulness of mortgage notes as security-it is clear that the provision was eliminated from the act of 1899, and nothing of the kind left in its place. Plaintiff in error was not a purchaser of the land in this transaction. He was attempting to secure a release and satisfaction of a mortgage from a person whom the evidence shows he had some reason to believe might not be the owner, with the expectation of afterwards acquiring the title to the land free from the mortgage. The judgment, we think, gave him all that he was entitled to under the circumstances. Judgment affirmed.

(151 Cal. 655)

FARMERS' & MERCHANTS' BANK OF LOS ANGELES v. CITY OF LOS ANGELES. (L. A. 1,660.) (Supreme Court of California. Aug. 13, 1907.) MUNICIPAL CORPORATIONS-CLAIMS-PRESEN

TATION-RECOVERY OF TAXES-PLEADING. Los Angeles City Charter, § 208, provides that all claims and demands whatever against . the city, except interest on bonds and bonds of the funded debt, shall be paid only on demands as therein provided for. Section 209 requires that such demands be presented to the council and referred to its finance committee, which shall indorse its approval or rejection, when the council shall consider the demands and approve or reject in whole or in part. Section 216 declares that no payment can be made from the city treasury, or out of the public funds of the city, unless the same be specially authorized by law or the charter, or unless the demand which is paid be audited as in the charter provided, and section 222 provides that no suit shall be brought on any claim for money or damages against the city until a demand for the same has been presented, as provided, and rejected in whole or in part. Held, that a claim against the city to recover alleged illegal taxes, under Pol. Code, § 3819, authorizing the recovery of taxes paid under protest, by suit, or under the city's charter, was not maintainable without allegation and proof that it had been presented to the city for allowance and rejected in whole or in part.

McFarland, Henshaw, and Lorigan, JJ., dissenting.

In Bank. Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge.

Action by the Farmers' & Merchants' Bank of Los Angeles against the city of Los Angeles. From a judgment in favor of plaintiff, defendant appeals. Reversed.

W. B. Mathews, City Atty., and Hartley Shaw, for appellant. Graves, O'Melveny & Shankland (Jeff. Paul Chandler. of counsel). for respondent.

« PreviousContinue »