botham and wife conveyed by quitclaim deed all their interest in said lots to John C. Douglass, plaintiff in error, which deed was immediately recorded; that in 1873 the city of Leavenworth issued to John C. Douglass, plaintiff in error, a tax deed of said lots for city taxes, which was immediately recorded; and again, in 1877, issued to him a second tax deed on the same property; that up to 1877 or 1878 the lots in controversy were vacant, at which time the plaintiff in error took possession of the same, and leased them to one Burley, who fenced the lots and occupied the same for about three years; that the two deeds issued by the city of Leavenworth did not convey the title to said property to the plaintiff in error; that plaintiff in error paid taxes thereon, including interest, penalties, and costs, to the amount of $88.12; that in 1883 the defendant entered upon said lots and erected a small house, and has continued to occupy the same ever since. Upon said findings of fact the court made the following conclusions of law: (1) That upon the foregoing findings of fact the plaintiff is not entitled to recover the possession of the said lots 8 and 9, in block 15, in Central addition to the city of Leavenworth. (2) That the plaintiff is entitled to recover the sum of $88.12,— his taxes, interest, and costs, referred to in finding 7,--with interest thereon from May 24, 1884, until paid, at 7 per cent. per annum, and that the same constitute a lien upon said lots and property; and should said sum, with interest, not be paid on or before the first day of July, 1884, execution issue for the sale of said premises according to law, for the satisfaction of said sum, with all costs accruing from and after the rendition of this judgment. (3.) That all costs incurred up to this time be paid by plaintiff. And upon said findings and conclusions rendered judgment in favor of the defendant for costs, and declared the taxes thereon found due in favor of the plaintiff, and made the same a lien upon the land, and quieted the defendant's title to the premises as against the plaintiff. Plaintiff brings the case here for review. J. C. Douglass, for plaintiff in error. Lucien Baker, for defendant in

error.

CLOGSTON, C., (after stating facts as above.) This was an action in ejectment, brought by the plaintiff in error to recover possession of two lots in the city of Leavenworth. The findings of fact show that some time in 1877 or 1878 plaintiff took possession of the lots and leased the same, and that the lessee enclosed the premises with a fence, and occupied them about three years. At this time the plaintiff had two deeds issued by the city of Leavenworth for city taxes. Under these claims of title he took and held possession of the property. The defendant, in 1883, entered upon the premises and erected a small house, and has retained possession ever since. This right of possession is the only claim the defendant asserts to the property. Without passing upon the questions of what interest plaintiff possessed by virtue of his quitclaim deed from Higginbotham, and also the effect of the quitclaim deed from Higginbotham to Leavenworth county, we yet hold that plaintiff's possession under a claim and color of title was a sufficient interest and title upon which to maintain an action in ejectment; and this title, being paramount to the title or interest of the defendant, is sufficient to maintain a judgment in favor of the plaintiff for the possession of the premises, unless it is found that at the time the defendant entered into possession the plaintiff had abandoned his possession or right of property. Gilmore v. Norton, 10 Kan. 491; Duffey v. Rafferty, 15 Kan. 1; Simpson v. Boring, 16 Kan. 248; Mooney v. Olsen, 21 Kan, 697; Hollenback v. Ess, 31 Kan. 88, 1 Pac. Rep. 275. The findings of fact on that point show that plaintiff went into possession in 1877 or 1878, and that the premises were fenced. The fencing of the property was an improvement of a character such as would doubtless remain after the three years' possession of the lessee. It would be a part of the realty, and would, in the absence of other showing, become the property

of the plaintiff. When it is once shown that property has been improved, and that the character of the improvements is of a lasting nature, such as would survive for a period of years, that same improved condition will be presumed to have continued until the contrary is shown. If this be true, then, in the absence of any showing on the part of the defendant that at the time he entered into possession of the property it was abandoned, or that the improvements had been removed, we must hold that at the time the defendant entered upon the property it was in like improved condition as described by the plaintiff in 1877 or 1878. This being true, the defendant had no right or interest in the property, and, his possession being wrongful, plaintiff is entitled to a judgment for its possession.

It is therefore recommended that the judgment of the court below be reversed.

PER CURIAM. It is so ordered; all the justices concurring.

(38 Kan. 432)

NEAL v. REYNOLDS et ux.

(Supreme Court of Kansas. February 11, 1888.)

1. PLEADING AMENDMENT-BLENDING LOCAL AND TRANSITORY ACTIONS.

A party who seeks to rescind a contract for the exchange of real estate, by an action instituted in the county in which the real estate is situated, against persons who reside in another county, cannot, after they have been summoned and appear in the action, amend his petition by adding thereto a second cause of action for damages for the breach of the covenants of warranty, and thus blend a local with a transitory cause of action. He must be confined to the cause of action that authorizes such a service by summons.

2. EQUITY-RESCISSION OF CONTRACT-WHEN GRANTED.

In an action brought to rescind a contract for the exchange of real estate, the real property, the subject-matter of the action, must be in such condition that the contract can be set aside in toto, and both parties restored to the same relation, respecting the property, they occupied before the contract was made. (Syllabus by Simpson, C.)

Commissioners' decision.

WELL, Judge.

Error to district court, Allen county; L. STILL

Action by Moses Neal against John L. Reynolds and others.

PETITION.

The plaintiff says: "That on or about the day of December, A. D. 1878, he was the owner of, and in the possession of, the following real estate, situated in Allen county, state of Kansas, to-wit: Lots Nos. nine and ten, in block thirty-five, (35,) in the city of Humboldt; that on or about said date he entered into an agreement with the defendant for the exchange of said property for property situated in the state of Missouri; that in pursuance of said agreement he transferred to said defendant John L. Reynolds an undivided one-half interest in and to said property, and in exchange therefor he received from said defendant a warranty deed to the south-west quarter of section one, township fifty-seven, range twenty-one west, Linn county, Missouri, excepting four acres and Hannibal & St. Joe Railroad right of way; also the northeast quarter of section three, township fifty-six, range twenty-one, and the south-east quarter of the south-east quarter of section five, township fifty-six, range 21 west, both tracts in Chariton county, Missouri; that at the time said deeds were executed to plaintiff by defendants, they, the said defendants, had no title, either in law or in equity, to the two pieces of land situated in said county of Chariton, as hereinbefore set forth; and plaintiff avers that he never had knowledge of these facts until within a short time of the filing of this petition, and does aver that said defendants had full knowledge of all the v.16p.no.10-50

facts connected with their title to said land, and full well knew that they had not title, either in law or in equity, to said land, and that with said knowledge they executed and delivered the deed to said lands to him, all of which were done by defendants fraudulently, with the intent to deceive, wrong, and defraud plaintiff. Plaintiff says that, relying upon the deeds so executed and delivered to him, and relying on the good faith of defendants, and supposing his title in all of said different described pieces and parcels of land was perfect, he sold the first-mentioned piece of land, situated in Linn county, Missouri, for the sum of $300; that long after said sale he discovered the facts in regard to the two pieces of land situated in Chariton county, Missouri. Plaintiff further says that the defendants have had the possession of the real estate he transferred to them since the day of December, A. D. 1878, and have had the rents, income, and profits thereof ever since, amounting to the sum of $- -. Plaintiff further alleges that the defendants are totally insolvent, and that the only property the defendants have is the real estate so deeded to them by plaintiff. Plaintiff hereby avers his willingness to reconvey to said defendants all of said real estate situated in Chariton county, Missouri, and to return to them the proceeds of the sale of the land situated in Linn county, Missouri, and hereby proffers to bring the same into court. Plaintiff further avers that, by reason of the facts herein set forth, he has been damaged in the sum of two thousand dollars. Wherefore plaintiff prays that the conveyance made by him to said defendants for one-half interest in lots No. nine and ten, block thirty-five, in the city of Humboldt, Kansas, be set aside and held for naught; and that he do have and recover his damages against said defendants for the said sum of two thousand dollars, and that the said sum of three hundred dollars received by plaintiff for the land sold by him, situated in Linn county, Missouri, be applied upon said judgment; and plaintiff further asks that, in the event the relief herein asked be refused, that he be granted such other or further relief as in equity he may be entitled to."

And afterwards, to-wit, May 30, 1885, the plaintiff filed his amended and supplemented petition in the above-entitled cause, in the district court of Allen county, Kansas, in words and figures as follows, to-wit:

AMENDED AND SUPPLEMENTED PETITION.

"The plaintiff says that on or about the day of December, 1878, he was the owner and in the possession of the following real estate, situated in Allen county, state of Kansas, to-wit: Lots No. 9 and 10 in the city of Humboldt; that on or about said date he entered into an agreement with the defendant for the exchange of said property for property claimed by said defendant, situated in the state of Missouri; that in pursuance of said agreement he transferred to said defendant, John L. Reynolds, an undivided one-half interest in and to said property, and in exchange therefor he received from said defendant a warranty deed to the south-west quarter of section one, township fifty-seven, range (21) twenty-one west, Linn county, Missouri, excepting four acres and Hannibal & St. Joe right of way; also the north-east quarter of section three, township fifty-six, range 21, and the south-east quarter of section five, township 56, range 21 west, both tracts in Chariton county, Missouri; and said defendants executed to plaintiff deeds of conveyance of said tracts with covenants of said defendants covenanting and agreeing that they were lawfully seized of an indefeasible estate in all of said premises, and that they have good right to convey the same, and that the same were clear of all incumbrance, and that they would forever warrant and defend the plaintiff's title. At the time of making the same, they well knew that they had no title, either in law or in equity, to said land in Chariton county, Missouri, and yet said defendants, although well knowing such facts, represented and stated to plaintiff that they were the owners of said land, and assented and covenanted with intent to defraud plaintiff; and the plaintiff, relying upon said represen

tations, and believing them to be true, and believing said covenants were not and would not be broken, made the exchange, and executed a deed conveying said lots in Humboldt, as herein before stated, and accepted said deeds from defendants. And plaintiff says that before plaintiff ascertained the fact that defendants had no title to said land in Chariton county, Missouri, he sold and conveyed said property in Linn county for the sum of three hundred dollars, said sum being the value thereof, and that thereafter, and a short time prior to the beginning of this suit, he discovered the fact that the defendant had no title thereunto. Plaintiff says that defendants have had possession of the said lots in Humbolt ever since said date, and that the value of the use thereof is the sum of $1,000.00. Plaintiff says that defendants are insolvent, and that said lots are the only property defendants have; and plaintiff says that he is ready and willing to reconvey to defendant whatever title he received by virtue of said deeds from defendants to said property situated in Chariton county, Missouri, and is ready to return to them the $300.00 received for the sale of said Linn county property. And for a further cause of action plaintiff says that heretofore he made an exchange of certain lots in Humboldt, Allen county, Kansas, which are more particularly described in the preceding cause of action, for the certain property mentioned in the foregoing cause of action as being situated in Linn county, Missouri, and in Chariton county, Missouri, and that defendants executed to him the deeds as mentioned in the preceding cause of action; and the same facts that are stated in said prior cause of action as to the nature of said exchanges are also a part of the facts which constitute this cause of action, and therefore he adopts the statements as to the nature of said exchanges as a part of this cause of action. Plaintiff further says that in the deed from defendants to plaintiff for the land mentioned as being in Chariton county, Missouri, defendants covenanted and agreed that they were the lawful owners of said premises, and seized of an indefeasible estate in fee in the premises thereby conveyed, and that they had good right to convey the same, and that the same were free and clear from all incumbrance, and that they would warrant and defend the same title to said premises, to plaintiff, his heirs and assigns, forever, against the lawful claims of all persons whomsoever; and plaintiff says said defendants were not at any time the owners of said property in Chariton county, Missouri, and never had any indefeasible estate of inheritance therein, and did not have good right to convey the same, and have not warranted or defended the title thereto unto plaintiff and his assigns, nor have they made or kept their said covenants, nor any of them, for that the defendants never had possession of said premises, nor any title whatever thereto; and after the execution of said deed, plaintiff executed a deed therefor to Isaac Cuppy, who attempted to take possession of said premises, but the land was in the possession of parties claiming adversely to the title claimed by defendants; and said Cuppy instituted legal proceeding for recovery thereof, and was unable to gain possession thereof, although said Cuppy had all the title which plaintiff received from defendants. And afterwards said Cuppy brought an action against plaintiff, on his covenants of title and warranty contained said deed from plaintiff to said Cuppy; and thereupon plaintiff caused notice to be served on defendants, duly notifying them of the pendency of said action, and notifying them that they were expected and requested to appear and defend said action and defendants did so appear; and in said action, and since the commencement of this suit, said Cuppy received a judgment against plaintiff for breach of such covenants, for the sum of $800,--his damages sustained by reason of such breach. And plaintiff says that one thousand dollars was the value of the property whereof the title has failed, and said sum was the value of the consideration paid by plaintiffs to defendant therefor. Wherefore plaintiff asks judgment in the alternative: (1) A rescission of said contract of exchange, and revesting of plaintiffs in said lots, together with judgment for the value of the use of said lots by defendants, and that the $300.00 received for sale of

said land in Linn county be allowed as credit against said judgment. (2) That if plaintiff be not allowed to recover such relief, that he have judgment for the value of said Chariton county property, and for such other and different relief as to the court may seem just and proper.

And afterwards, to-wit, June 15, 1885, the defendant filed a motion in said cause in said court, in the clerk's office, in words and figures as follows, towit:

MOTION.

"The said defendants, appearing specially for the purpose of this motion, and for no other purpose, move the court to strike out and dismiss the second cause of action set out in said plaintiff's amended petition, for the following reasons, viz.: The said second cause of action, inserted in said petition by way of amendment, is a cause of action for the recovery of money only, and is not properly brought in the county of Allen, because said defendants did not, at the time of the commencement of this action, and never have, resided in the county of Allen; and both said defendants, at the time of the commencement of this action, resided in the county of Douglas, and have ever since resided in said county of Douglas; and the only service of summons made in this action was a service of a summons upon the defendants in Douglas county, by the sheriff of said Douglas county, said summons having been is ́sued upon the original petition herein, which contained a cause of action for the recovery of real estate only, which cause of action was properly brought in Allen county; and this court has no jurisdiction of the person of said defendants as to said second cause of action, because said action can only be brought in a county where the defendants reside, or may be summoned; and the service of summons in said action, which was local, and properly brought in Allen county, does not give the court jurisdiction to substitute another action, or to require the defendants to litigate in said county of Allen such other action, which could not properly be brought in said county of Allen."

AFFIDAVIT AS ATTACHED, AND PART OF SAID MOTION.

"State of Kansas, County of Douglas-ss.: John L. Reynolds, of lawful age, being first duly sworn, on his oath deposes and says: That he is one of the defendants above named, and that his co-defendant, Mary Reynolds, is athant's wife; that afliant and his said wife, at the time of the commencement of this action, to-wit, on the twenty-second day of March, 1883, resided in the county of Douglas, state of Kansas, and the only service of summons ever made upon defendants, or either of them, in this action, was made upon defendants by the sheriff of the county of Douglas, in the state of Kansas, while defendants resided in said county of Douglas, and in said county. And affiant further says that defendants did not, nor did either of them, reside in Allen county, Kansas, on the twenty-second day of March, 1883, nor at any time since, and no summons has ever been served upon defendants, or either of them, in this action by the sheriff of Allen county, Kansas, and no summons of any kind has been served upon defendants, or either of them, in this action, except the summons served upon defendants by the sheriff of Douglas county, in said Douglas county, while defendants resided therein."

RULING OF THE COURT.

And afterwards, to-wit, June 23, 1885, at the June term of the district court of Allen county, Kansas, among others, the following proceedings were had in the above-entitled cause, in words and figures as follows, to-wit: “And now comes said cause on to be heard on this twenty-third day of June, 1885, upon motion of defendants to strike the second cause of action in plaintiff's second amended petition; and the court, upon consideration thereof, does sustain the same; to which the plaintiff did then and there duly except." Whereupon court adjourned till June 24, 1885, at 8 A. M.

And afterwards, to-wit, June 25, 1885, the defendant filed his demurrer in said cause, in the said clerk's office, in words and figures as follows, to-wit: