Page images

The tract of land in question is the of said county did on the same day duly assoutheast quarter of section 17 in township sign to the purchaser aforesaid the said cer3 of range 32, in Rawlins county. The tax

The tax tificate of sale, and all the interest of said deed was offered in evidence, and on ob-county in said property; and, whereas, three jection was excluded as void upon its face. years have elapsed since the date of said Omitting the acknowledgment and certificate sale, and the said tracts or pieces of ground of filing and recording it reads:

hare not been redeemed therefrom as pro

vided by law : "Tax Deed.

"Yow, therefore, I, Frank Johnson, county "Rawlins County to C. F. McGrew. Filed clerk of the county aforesaid, for and in confor record this sth day of December, A. D. sideration of the sum of one hundred ninety1898, at 10:25 a. m. Paul Haller, Register of nine dollars and six cents, taxes, costs, and Deeds, by Frank E. Robinson, Dep.

interest due on said land for the year A. D. "Know all men by these presents, that 1894, by him to the treasurer paid as aforeWhereas, the hereinafter described tracts or said, and by virtue of the statute in such pieces of ground, situated in the county of case made and provided, have granted, barRawlins and state of Kansas, were subject gained, and sold, and by these presents do to taxation for the year A. D. 1894; and grant, bargain, and sell, unto the said C. F. whereas, the taxes assessed upon said re McGrew his heirs and assigns, the real propspective tracts and pieces of real property, erty hereinbefore described, to have and to for the year aforesaid. remained due and hold, unto him, the said C. F. McGrew, his unpaid at the date of the sale hereinafter heirs and assigns, forever, subject, however, mentioned; and whereas, the treasurer of to all rights of redemption provided by law. said county did, on the 3d day of September, "In witness whereof, I, Frank Johnson, A. D. 1895, by virtue of the authority in hiin county clerk as aforesaid, by virtue of authorvested by law, at an adjourned sale of) ity aforesaid, have hereunto subscribed my the sale begun and publicly held on name and affixed the official seal of said counfirst Tuesday of September, A. D. 1895, ex ty, on this 7th day of December, A. D. 1898. pose to public sale at the county seat of said "Frank Johnson, County Clerk. [Seal.] county in substantial conformity with all

“[50c, I. R. S. affixed to document.]" the requisitions of the statute in such case made and provided each of said tracts and The deed does not literally follow the form pieces of ground separately for the pay- prescribed by the statute, and mainly for ment of the taxes, interest and costs, then this reason it is reproduced here. It does due and remaining unpaid upon said tracts not follow that the deed is void because not and pieces of ground. respectively; and in the exact statutory form, but to sustain it whereas, at the place aforesaid, said traits we must find therein all the essential statand pieces of ground could not be sold for

utory requirements. Martin v. Garrett, 49 the amount of taxes and charges thereon. Kan. 131, 30 Pac. 168. The objections to the and was therefore bid off by the county deed are set forth in the following conclutreasurer for said county, for the whole

sions of the court, to wit: "J) The deed amount of taxes and charges then due there

fails to describe any property taxed. It deon; the said amount being herein stated as

scribes only property which was sold. (6) follows, to wit:

The deed is for a large number of tracts, and The SE4 of Sec. 1, Town 1, Range 31, for.... .$20.46 fails to state the amount of tax, interest, and The NEI of Sec. 12, Town 1, Range 32, for......$19.57

penalty for which each separate tract is sold The NE4 of Sec. 10, Town 1, Range 35, for......$19.76 The E2 of

and conveyed, and the sums or amounts NE4 of Sec. 9, Town 2, Range 32, for..... $ 5.42

which are given do not, when computed, make The SW 4 of Sec. 25, Town 2, Range 32, for......$21.70 The NE4 of Sec. 20, Town 2, Range 34, for. $12.45 the gross or aggregate consideration of the The SW4 of Sec. 15, Town 2, Range 36, for......$10.80 deed. () None of the several tracts are so The Set of Sec. 17, Town 3, Range 32, for...... .$ 9.83 The SW4 of Sec. 24, Town 4, Range 31, for......$19.02 numbered or marked in any way that ref

erence can be made thereto. (8) The county And whereas, for the sums of

and the state of the residence of the assignee, $30.65 for the SEA of Sec. 1, Town 1, Range 31, and

C. F. McGrew, does not appear in the deed. $20.22 for the NEI of Sec. 12, Town 1, Range 32, and $29.46 for the NEI of Sec. 10, Town 1, Range 35, and (9) The interest of the county in all the va$ 3.13 for the E2

rious tracts was conveyed in one certificate. VE# of Sec. 9, Town 2, Range 32, and $32.55 for the SW# of Sec. 25, Town 2, Range 32, and

(10) The lands were not severally and sep$18.65 for the VE4 of Sec. 20, Town 2, Range 34, and

arately taxed. (11) The lands were not sey$16.20 for the SW4 of Ser. 15, Town 2, Range 36, and $14.70 for the SE of Sec. 17, Town 3, Range 32, and erally and separately sold. (12) Tlre lands $28.50 for the SWof Sec. 24, Town 4, Range 31,

were not severally and separately bid off by -aggregating the sum of one hundred ninety the county treasurer for the county, but nine dollars and six cents, paid to the were by him bid off in one bunch at one treasurer of said county, on the 7th day of time. (13) Yo sufficient separate consideraDecember, A. D. 1898, the saill treasurer did tion is given for each of the several traits give to C. F. McGrew certificate of that date, in the deed. nor for the tracts involved in as in such case provided by law. for and con this case. (14) The consideration charged for cerning said property, and the county clerk | the tract in question appears to be in excess

of the amount legally chargeable for the cer name of the grantee is first stated in contificate given to the assignee, C. F. McGrew, nection with the sale of the land or the asand assigned to him by the county clerk. (15) signment of the certificate, and naturally proSaid deed contains several separate tracts of vision is made for the addition of the county land, and the same were not purchased at and state of his residence where his name any tax sale."

is mentioned for the first rather than for the A comparison of the language of the deed last time. It is worthy of mention that in with the form prescribed by the statute (sec Dodge v. Emmons, 34 Kan, 732, 9 Pac. 951, tion 7676, Gen. St. 1901) shows conclusion 5 as well as in Edtvards v. Sims, 40 Kan. to be very technical. The prescribed form has 235, 19 Pac. 710, a tax deed was upheld which the description of the land subject to taxation was set out in full in the opinion and did at the beginning of the deed, and the land not state the residence of the assignee or sold is thereinafter referred to as "the real grantee. The point here urged was not raised property above described." In this deed, the in either of these cases, and therefore they do land subject to taxation is described as "the not amount to authorities upon the proposihereinafter described tracts or pieces of tion, but the fact that the obvious omission ground," and the land sold is fully therein was not made a ground of attack affords after described. One way of describing the some indication that the view here announced land is as definite as the other, and neither was regarded by a part of the profession as can lead to mistake.

too plainly correct for serious challenge. Conclusion 6, except so far as it evinces a A somewhat similar question has been raised mistake in computation by the court, is evi under an earlier statute. The statutory dently based upon the statutory form where form of tax deed formerly contained the taxes paid subsequently to the sale form a word "witnesses" opposite the signature of part of the consideration for the deed, which the county clerk. Comp. Laws 1802, p. 879, is not the case here.

c. 198, § 10. It was contended in McCauslin The omission, noted

noted in conclusion 7, v. McGuire, 14 Kan. 231, that this amounted would occur had the statutory form been to a requirement that the clerk's signature literally followed.

should be attested by "witnesses," that is As stated in conclusion 8, the deed does by at least two persons, but the contention not give the residence of the assignee of the was denied upon a full discussion. The certificate, who is also the grantee, although same conclusion was stated in the last parathe statutory, form leaves a blank for that graph of the syllabus in Stebbins v. Guthrie, purpose. The mention of the county in 4 Kan. 353. It is difficult to conceive how which the purchaser resides, however, hardly the statement of the assignee's residence amounts to one of the recitals of a tax deed could be of any benefit to any person claimin any strict sense. “A recital in a deed is ing an interest in the land, or how the omisdefined to be the setting down or report of sion thereof could be prejudicial to him, any something done before, or, more specifically, more than the omission of the residence of the narrative of the previous agreements or the maker from a promissory note. Howmatters of fact upon which the transaction is ever, if it were really a recital, or if the founded." 24 A. & E. Encyc. of L. 57. The statute specifically required it to be stated, residence of the purchaser has no relation to it should be held essential. The omission is the tax proceedings-does not affect them in as to a mere matter of form, and, not being any way. Moreover, the prescribed form does prejudicial, will be disregarded. not contemplate a statement that the pur Conclusion 9 simply points out an irregularchaser is a resident of a certain county. The ity in the certificate, and does not render the recital of fact is that the assignment was tax deed void upon its face. made to a certain person, who is indicated Conclusions 10, 11, 12, 13, and 15 seem to be by his name and residence. The reasonable in direct contradiction of the recitals in the conclusion seems to be that the Legislature deed. in preparing a form for such conveyances As to conclusion 14, a computation shows merely conformed to the general practice of that the amount charged against the tract conveyancers of adding to the name of the is about 20 cents in excess of the amount grantee the county and state of his residence for which it was bid in by the county treas--that the reference thereto was intended urer, with interest to date of the deed. Legal merely as a part of the designation of the fees could easily cover this discrepancy. purchaser, and not as an independent fact We conclude that the tax deed is not void essential to the validity of the deed. Al upon its face, and hence the plaintiff is enthough the blanks left for the residence fol titled to the relief prayed for. The judgment low the ones left for the names of the original is reversed, and the case is remanded, with inpurchaser and his assignee, not that left for structions to enter judgment for the plaintiff the grantee of the deed, this is plainly because in accordance with the views herein ex. in the orderly recital of the proceedings the pressed. All the Justices concurring.

(76 Kan. 222)

band, Henry W. Cheney, while I am still liv. HUBBARD et al. v. CHENEY et al. ing, that his estate shall go to Ernest and (Supreme Court of Kansas. July 5, 1907.

Maud Cheney. It is my express desire that Rehearing Denied Oct. 5, 1907.)

my cousin, Charles E. Hubbard, his wife and

children, are not to receive anything from 1. MORTGAGES-WHAT CONSTITUTE-EVIDENCE.

* All the residue of my A deed purporting to convey land to a hus- my estate. * band and wife jointly, where the wife is named estate, real, personal and mixed property, I as a grantee to secure payment of a sum of give, devise and bequeath to my husband, money which she loans to her husband to make up the purchase price of the land, is, as to the Henry W. Cheney, with no conditions or rewife, no more than a mortgage, and, when the strictions having full confidence that when he loan is paid. her interest terminates, and his shall have no further use for the property he title becomes clear and complete, and the fact will remember my cousins named in parathat the ileed was intended to operate as a mortgage may be shown by pa rol evidence.

graph two of my will [being the plaintiffs in 2. EVIDENCE-DECLARATIONS.

error], and make such provision and distribuIn a controversy between the heirs of such tion of whatever remains of my estate among grantees as to whether the deed was in fact a said cousins, as to him may seem just and mortgage, the declarations of the husband at the time of the purchase and while he was in pos

equitable.” On June 14, 1901, Henry W. session of the land, explanatory of the possession Cheney died, and 18 days later his wife passand of the rights claimed in the land, were com ed away. The will of each was duly probatpetent evidence.

ed, and the validity of either has never been [Ed. Note.--For cases in point, see Cent. Dig. questioned. The plaintiffs insisted that they vol. 35, Mortgages, $ 98.]

had a perfect title to the land; that the deed 3. SAME-DOCUMENTARY-LETTERS. Declarations of that character, included in

of 1879 to Henry W. Cheney and Jennie E. letters shown to have been actually written Cheney created an estate by the entirety; while the declarant was in possession of the that, when Henry W. Cheney died, his surland. may be received in evidence, although they viving wife became the absolute owner; and do not clearly show whether or when the letters were received by the one to whom they were ad

that at her death it necessarily went to the dressed.

plaintiffs, as the residuary legatee under the [Ed. Note.--For cases in point, see Cent. Dig. will was dead, and the land not having been vol. 20, Evidence, $$ $10-$14.]

disposed of by will, and Charles E. Hubbard, (Syllabus by the Court.)

one of her four cousins, having been expressError from District Court, Shawnee Coun

ly excluded by the will, the three remaining ty; A. W. Dana, Judge.

cousins inherited the property. On the othAction by Frederick R. Hubbard and oth

er side, it was contended that the deed, alers against Crnest and Maud Cheney. Judg- though executed jointly to the husband and ment for defendants, and plaintiffs bring er

wife, was a mere security to the wife for the ror. Affirmed.

$300 which she had advanced towards the

purchase price, and the wife merely held the T. F. Garver and J. B. Larimer, for plain- property in trust until the repayment of the tiffs in error. J. J. Schenck, for defendants

borrowed money; that, when the money was in error.

repaid, the husband became the sole owner

of the property, and under the wills of both JOHNSTON, C. J. This was an action by husband and wife it passed to the defendFrederick R. Hubbard, Leverett W. Hubbard, ants. Whether the naming of Jennie E. and Belle Hubbard Ransom, cousins and only Cheney in the deed was intended as a consurviving heirs to Jennie E. Cheney, against veyance to her, or only as a means of securErnest and Maud Cheney to recover an 80 ing the payment of the money borrowed from acre tract of land in Shawnee county. Hen- her, was the principal question in the trial ry W. Cheney was the husband of Jennie E. of the cause. The following interrogatories Cheney. In 1879, Henry W. Cheney purchas were submitted and answered by the jury : ed the land in controversy for $1,600, and "(1) Did Henry W. Cheney purchase the real $300 of the purchase price was furnished by estate in controversy about 1879? Answer: his wife, Jennie E. C'heney. Both husband Yes. (2) If you answer question No. 1 in the and wife were named as grantees in the deel affirmative, then you may state whether or of conveyance. In May, 1901, Henry W. not Jennie E. Cheney, his wife, loaned him Cheney executed a will, leaving all of his $300, or any other amount, with which to estate to Jennie E. Cheney, his wife, and in make the purchase. Answer: Yes. (3) If one of the clauses stated that it was his de you answer question No. 2 in the affirmative, sire that his wife should remember his neph. then you may state whether or not there was ew, Ernest R. Cheney, when she had no fur. an arrangement, agreement, or understanding ther use of the property; she to make such between Henry W. Cheney and Jennie E. provision for him as she thought just and Cheney, his wife, at the time of said .purequitable. About a month later Jennie E. chase, that the title of the real estate should Cheney made a will which contained a num be taken in the name of Henry W. Cheney ber of specific devises and bequests, and left and Jennie E. Cheney jointly for the purpose the residue of the estate to her husband. In of securing Jennie E. Cheney in the money her will it was provided : "It is also my she had loaned to Henry W. Cheney? Andesire that in case of the death of my hus swer: Yes.” In addition to the special find

ings, the jury found generally in favor of the session and of the rights claimed in the land, defendants, and upon these judgment against might be received in evidence. It was also plaintiff's was given.

held that the declarations need not be made Plaintiffs contend here that the conveyance while the claimant is actually on the land, to busband and wife jointly created an es but that it was sufficient to establish their tate by the entirety which could only be di competency when it was shown that it was vested by a conveyance or by a written con made in connection with some act relating to tract legally made. It is well settled that a the character of possession, and which evideed to land absolute on its face, and taken denced ownership. To that end the declaraas a security, is no more than a mortgage. tions of the deceased grantor while negotiatIf the land in question was purchased by ing for buildings and insurance, and while IIenry W. Cheney, and Jennie E. Cheney was making improvements, were held to be adonly named as a grantee to secure the pay missible. Creiglton v. IIoppis, 99 Ind, 369. ment of the $300 loaned to her husband to See, also, Bennett v. Camp, 57 Vt. 36; Niaus make up the purchase price, she would only v. Bome, 12: Ind. 522, 21 X. E. 315; Mehold in trust for her husband, and when her Daneld r. McDaneld, 136 Ind. 003, 36 N. E. loan was paid her interest would cease, and 286; Fyffe v. Fyffe, 106 Ill. 616; Duffey v. his title become clear and complete. It was Presbyterian Congregation, 18 la. 46; Stockcompetent then to show the resulting trust, ton Savings Bank v. Staples, 08 Cal. 189, 32 that the deed was intended to operate as a Pac. 936; Kingsford v. IIood, 105 Mass. 49; mortgage, by parol evidence, and the rule ap Wigmore on Evidence, $ 1779; 2 A. & E. plies where the instrument is in form a joint Encyc. of Law, 690. (leed the same as if it had been made to Mrs. The letters written by IIenry W. Cheney Cheney alone. Equity, looking back of forms to his wife and sister about the time of the to the substance of things, regards the trans purchase of the land were competent eviaction as the parties themselves regarded it, dence in the case, not to show that the statenamely, the giving and taking of security for ments contained in them were true, but to borrowed money. The purpose of the parties illustrate and explain the accompanying acts in haying the deed made to her, and that it of purchase and possession. One of them, it was intended as a mere security, which had is true, had very little in it that was material been discharged. could be proven without to the case: but its weight and force in writings or records. Moore v. Wade, 8 Kan. showing that the title was in the husband, 380; Glynn v. Building Association, 22 Kan. and that the wife had only held a lien on the 746; Bennett v. Wolverton, 24 Kan. 281; land, was for the determination of the jury. McDonald v. Kellogg. 30 Kan. 170, 2 Pac. There is no force in the objection that they 507; Marsh v. Davis, 33 Kan. 326, 6 Pac. failed to show that the letters were mailed 612; Ilutchison v. Myers, 52 Kan. 290, 34 by IIenry W. Cheney, or that his wife ever Pac. 742.

received or saw them. They were identified It is claimed, however, that the evidence as the letters of Henry W. Cheney, were received was insufficient for that purpose, shown to be in his handwriting, and, further, and, further, that the court admitted testimo

that they had been in the possession of Mrs. ny that was incompetent. Objections were Cheney. The fact that she received the letunsuccessfully made to the admission of let

ters or the time of their reception is not as ters written by Henry W. Cheney to his wife important as if the letters had been offered and sister about the tiine the land was pur to show a contract or some like purpose. chased, and also to declarations by him and Since they were offered to illustrate and his wife respecting the purchase and owner qualify the purchase and possession of the ship of the land, some of which were made land, it is only important that they be shown long after the purchase, but during their pos to have accompanied the acts of purchase and session of the land. These rulings are not possession, and hence it is immaterial whethigood grounds for a reversal of the judgment. er they were received and acted upon by Mrs. The declarations of persons in possession of Cheney. The oral declarations of Henry W. real property, which illustrate the character Cheney while he was in possession, testified of their possession and explain their claims to by a number of witnesses, are admissible of ownership. are admissible to show the under the rule stated. The declarations made character and extent of their claims. State by Mrs. Cheney while living on the land, to v. Gurnee. 14 Kan. 111. The rule has been the effect that she had no title in the land, applied in cases where the possession and and that the only interest she ever had was ownership of personal property is in contro a lien thereon for the $300 loan, were derversy. Stone v. Bird, 10 Kan. 458; Reiley v. larations against interest, and are therefore Ila ynes, 38 Kan. 2.799, 16 Par. 110, 5 Am. St. admissible under another rule. Some of the Rep. .737.

In an iction of ejectment by the statements given in evidence were rather regrantee aguinst the heirs of the grantor, mote from the question in issue, and some of where the question was whether a deed al them were immaterial; but we do not regard solute on its face was intended as a mort their admission to be prejudicial or to furnish gage, the Supreme ('ourt of Indiana held that cause for reversal. the delarations of the grantor while in pos The judgment of the district court will be Session of the land, explanatory of the pos affirmed. All the Justices concurring.

(77 Kan. 813)

be effectual to fully discharge the mortgage MAYSE Y. WILLIAMS.

is omitted. The title to the act of 1897 is as (Supreme Court of Kansas. July 5, 1907.

follows: "An act providing for the recording Rehearing Denied Oct. 5, 1907.)

of assignments of real-estate mortgages, and

for the release of such mortgages by assignees MORTGAGES-RELEASE_VALIDITY.

Laws 1899, p. 340, c. 108, repealing laws thereof, and providing penalties for failing 1897, p. 343, c. 160, which latter required the to record such assignments." And that of recording of assignments of mortgages and pro 1899 reads: "An act in relation to assignvided that "a release by the last recorded as signee shall discharge the mortgage," provided

ments of real-estate mortgages, and to repeal for recording assignments and omitted the quot

chapter 160 of the Session Laws of 1897.” ed provision. Defendant, with the expectation Whatever the purpose of the Legislature may of subsequently acquiring title to certain land have been-whether, as suggested, it believfree from a mortgage, secured the release thereof from the last assignee of record at a time

ed the former provision hindered and impairwhen he had reason to believe that she was not ed the usefulness of mortgage notes as securithe owner of the mortgage, but before a previous ty—it is clear that the provision was eliminassignment thereof by her to a third person had

ated from the act of 1899, and nothing of the been recorded. Held that, on foreclosure by the last assignee, defendant could not complain of a

kind left in its place. Plaintiff in error was judgment which credited the sum paid by him not a purchaser of the land in this transacfor such release on the amount of the mortgage tion. He was attempting to secure a release debt.

and satisfaction of a mortgage from a person Error froin District Court, Clark County ; whom the evidence shows he had some reaE. H. Madison, Judge.

son to believe might not be the owner, with Action by Noah Williams against Robert C. the expectation of afterwards acquiring the Mayse. There was a judgment for plaintiff, title to the land free from the mortgage. The and defendant brings error. Affirmed.

judgment, we think, gave him all that he was

entitled to under the circumstances. Francis C. Price, for plaintiff in error. H.

Judgment affirmed. J. Bone and D. R. Hite, for defendant in error.

(151 Cal. 655)

FARMERS' & MERCIANTS' BANK OF PER CURIAM. Williams brought this ac

LOS ANGELES v. CITY OF LOS tion to foreclose a mortgage on Clark county land which had been executed in 1897 and

ANGELES. (L. A. 1,600.) assigned to him. In 1904, the records showed

(Supreme Court of California. Aug. 13, 1907.) Nancy Brewer, of Springwater, N. Y., to be MUNICIPAL CORPORATIONS-CLAIMS-PRESENthe assignee of the mortgage, and Mayse,


Los Angeles City Charter, 8 208, provides who was trying to buy the equity of the own that all claims and demands whatever against. er of the land, wrote to her and offered her the city, except interest on bonds and bonds of $50 for an assignment. She replied that she

the funded debt, shall be paid only on demands was unable to find the mortgage among her

as therein provided for. Section 209 requires

that such demands be presented to the council papers, but would write him if she succeed

and referred to its finance committee, which ed in finding it. He then wrote and offered shall indorse its approval or rejection, when the

council shall consider the demands and approve her $25 for a release, but asked her to make

or reject in whole or in part. Section 216 dean affidavit, which he inclosed, stating that

clares that no payment can be made from the she owned the mortgage and had power to city treasury, or out of the public funds of the release it, but that it was lost and she was

city, unless the same be specially authorized by

law or the charter, or unless the demand which unable to find it. She refused to make the

is paid be audited as in the charter provided, affidavit, but he accepted and paid for the re and section 222 provides that no suit shall be lease. As a matter of fact, Mrs. Brewer had brought on any claim for money or damages assigned the mortgage with others in 1901,

against the city until a demand for the same

has been presented, as provided, and rejected in but was not aware of it. The assignment to

whole or in part. Held, that a claim against Williams was not recorded until after Mayse the city to recover alleged illegal taxes, under secured the release of the mortgage and the

Pol. Code, § 3819, authorizing the recovery of

taxes paid under protest, by suit, or under the quitclaim from the owner of the land. The

city's charter, was not maintainable without court allowed plaintiff in error a credit of allegation and proof that it had been presented the $25 paid, and found generally for plain to the city for allowance and rejected in whole tiff foreclosing the mortgage. It is contend

or in part. ed that this was error.

McFarland, Henshaw, and Lorigan, JJ., dis

senting. Under Laws 1897, p. 345, c. 160, requiring all such assignments to be recorded within

In Bank. Appeal from Superior Court, 90 days after the transfer, and providing in Los Angeles County; N. P. Conrey, Judge.

Action by the Farmers' & Merchants' Bank express terms that a release executed to the last recorded assignee should discharge the

of Los Angeles against the city of Los Angelmortgage, the release relied upon here would

es. From a judgment in favor of plaintif, have been a complete defense to the action.

defendant appeals. Reversed. But in 1899 that law was repealed, and a new W. B. Mathews, City Atty., and Hartley act (chapter 168, p. 310, Laws 1899) enacted Shaw, for appellant Graves, O'Melveny & in its place. In the latter, the provision that Shankland (Jeff. Paul Chandler, of counsel). A release by the last assignee of record shall | for respondente

« PreviousContinue »