Action on a promissory note, brought by the Woodson National Bank against I. M. and C. A. Rilea. James and Charles Newman interpleaded, claiming the property attached by the bank. Judgment was rendered in favor of the plaintiff, and the interpieaders bring error.

J. E. Picket and Charles Newman, for plaintiffs in error. W. H. Slavens and G. R. Stephenson, for defendant in error.

HOLT, C. The Woodson National Bank brought this action against I. M. Rilea and C. A. Rilea on a promissory note given by the Rileas to the bank, and attached some personal property. The plaintiffs interpleaded, claiming to own the property attached. The ownership of the property is the vital question to be decided in this case. In the trial at the October term, 1885, of the Woodson district court, a jury was waived, and the court found in favor of the bank. The interpleaders, as plaintiffs in error, bring the case here for review. In the trial, the only evidence offered was the testimony of James Newman, and the articles of agreement between the Newmans and I. M. Rilea. It appears that in 1880 the Newmans owned a large tract of land in Woodson county, and entered into a contract with Rilea to improve and cultivate it, and raise stock thereon. The Newmans were to furnish money to be expended by Rilea in building permanent improvements, buying stock and necessary implements to carry on the farm. Rilea was to report each month his money transactions, and to give an inventory of all the stock and crops on the place twice a year, and at the end of the tenth year he was to return the money furnished, less the costs of permanent improvements; and if the Newmans furnished stock, they were to be credited as cash furnished. Rilea was to buy and raise stock on the farm, and was to have control of buying and selling of all stock and farm produce. One-half of the net proceeds of the farm and stock should belong to Rilea, and the other half should be paid to the Newmans. Fraud or non-compliance by either party should render the contract voidable, the party complaining to give 30 days' notice.

Did the Newmans own the property, or were they simply creditors of Rilea? Let us examine. The money to buy this property was intrusted to Rilea, with the power to purchase what he thought best. If special articles were furnished, he was charged with them, as so much money advanced. A division was to be made from time to time of the proceeds of the farm and the net increase of the stock, and the Newmans share was to be paid in money. At the end of the 10 years the money advanced by the Newmans was to be repaid, less the amount expended in permanent improvements upon the farm. All payments were to be paid to the Newmans in money, unless they elected to receive it in some other form. Rilea could sell this property without consulting the Newmans, though he would be liable to them for the one-half of the net amount sold. At the time the goods were attached no notice had been served, as provided in the agreement, that they intended to annul their contract with Rilea. From the terms of this contract we are convinced that the property attached was Rilea's, and that the Newmans were simply his creditors. The bank was also his creditor, but was more active in securing its claim. The property was regularly attached; was then owned by Rilea, and was subject to attachment for his debts.

A motion was made for a new trial, and one of the grounds alleged was the discovery of material evidence which could not have been produced by the exercise of reasonable diligence at the trial. We do not deem it necessary to pass upon the question of diligence or want of diligence in obtaining it, as we think the evidence alleged to have been newly discovered was not material. The judgment of the court was correct, and we therefore recommend its affirmance.

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

(38 Kan. 465)

SPICER v. HOWE.

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

TAXATION-SALE FOR NON-PAYMENT-DEED-DESCRIPTION.

A tax deed which contains several distinct descriptions of real estate, and the granting clause of which provides that the real property "last herein before described" is conveyed, is upon its face invalid as a conveyance of any tracts other than those included in the last description.

(Syllabus by the Court.)

Error to district court, Lyon county; CHARLES B. GRAVES, Judge.

This is an action of ejectment brought by Harriet N. Spicer to recover from Sara C. Howe the east 60 acres of the N. W. of section 4, township 19, range 10, situated in the county of Lyon. Plaintiff claimed title through a tax deed executed and recorded February 16, 1874, based on a tax sale made on May 3, 1870, for the delinquent taxes of 1869. Defendant claimed title and right of possession of the land by virtue of a tax deed from Lyon county to E. M. Forde, executed and recorded September 5, 1881, based upon the sale of September, 1878, for the taxes of 1877; a deed of general warranty from E. M. Forde and wife to H. Parkman, dated May 24, 1882, and recorded June 5, 1882, and also a quitclaim deed from Thaddeus H. Walker and wife to H. Parkman, (Walker holding the patent title from the United States,) which deed was executed on April 2, 1884, and recorded on May 23, 1884. The land remained vacant and unoccupied until June 20, 1882, at which time H. Parkman went into the actual possession thereof, and began making improvements thereon, and continued in actual possession and to make improvements under his title from Ford and Walker until the sale and conveyance of the land to the defendant; and the defendant has been in the actual possession of the property since that time. The deeds under which the defendant holds are in due form and properly executed, but the tax deed from Lyon county to E. M. Forde is voidable for errors and irregularities in the proceedings prior to its execution. The tax deed under which the plaintiff holds is also voidable for errors and irregularities in the proceedings prior to its execution; and it is in the following form:

"Know all men by these presents, that whereas, each piece or parcel of the following described real property, viz.: The S. E. of sec. 21, twp. 21, R. 10; the S. W. of sec. 2, tp. 21, R. 12; the E. of N. W. of sec. 6, tp. 18, R. 13; the W. and S. E. of N. W. 4 of sec. 10, tp. 18, R. 12; 60 acres off E. side of N. W. of section 4, tp. 19, R. 10; 116 acres of S. E. of sec. 17, tp. 19, R. 10, being all of said quarter section lying north of Cotton wood river, [here follow descriptions of 20 other pieces and parcels of real estate,] situated in the county of Lyon and state of Kansas, was subject to taxation for the year A. D. 1869, and was separately assessed. And whereas, the taxes assessed upon each piece or parcel of said 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 May, A. D. 1870, by virtue of authority in him vested by law, at the sale begun and publicly held on the first Tuesday of May, A. D. 1870, 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 piece of the real property above described, separately, for the payment of the taxes, interest, and costs then due and unpaid on such piece of said real property, respectively. And whereas, at the place aforesaid, H. N. Davis, of the county of Lyon and state of Kansas, having offered to pay as follows, to-wit: (1) For said S. E. of sec. 21, tp. 21, R. 10, the sum of $9.25; (2) for said S. W. of sec. 2, tp. 21, R. 12, the sum of $12.79; (3) for said 60 acres off E. side of N. W. of sec. 4, tp. 19, R. 10, the sum of $5.44. And whereas, at the place aforesaid, F. G. Hunt, of the county of Lyon and state of Kansas, having offered to pay as follows, to-wit, for said 116 acres of S. E. of sec. 17, tp. 19, R. 10,

being all that portion of said quarter section lying north of the Cottonwood river, the sum of $44.41. And whereas, at the place aforesaid, D. S. Gilmore, of the county of Lyon and state of Kansas, having offered to pay as follows, to-wit: For said E. of N. W. of sec. 6, tp. 18, range 13, the sum of $4.78; for said W. and S. E. of N. W. 4 of sec. 10, tp. 18, R. 12, the sum of $9.79. And whereas, at the place aforesaid, E. T. Kerns, of the county of Lyon and state of Kansas, having offered to pay as follows, to-wit: For said lot 2, blk. 11, in Americus, the sum of 37 cts., [here follow descriptions of 19 other pieces and parcels of real estate, with the prices offered.] Said several sums being, respectively, the whole amount of taxes, interest, and costs then due and remaining unpaid on said several pieces or parcels of said real property, respectively, which said several pieces or parcels of said real property were respectively the least quantities bid for. And payment of said several sums having been by said H. N. Davis, F. G. Hunt, D. S. Gilmore, and E. T. Kerns made to the said treasurer, upon the said pieces or parcels of said real estate so bid for by them, respectively, the said several pieces or parcels of said real property were respectively stricken off to said several parties upon their several bids aforesaid. And whereas, the said F. G. Hunt did on the 3d day of May, A. D. 1870, duly assign the certificate of the sale of said property bid off by him, as aforesaid, and all his right, title, and interest to said property, to H. N. Davis, of the county of Lyon and state of Kansas. And whereas, the said D. S. Gilmore did, on the 1st day of January, A. D. 1873, duly assign the certificate of the sale of said several pieces or parcels of said property to H. N. Davis, of the county of Lyon and state of Kansas. And whereas, the said E. T. Kerns did, on the 1st day of January, A. D. 1873, duly assign the certificates of the sale of said several pieces or parcels of said property bid off by him as aforesaid, and all his right, title, and interest to said several pieces or parcels of said property, to H. N. Davis, of the county of Lyon and state of Kansas. And whereas, the subsequent taxes for the years 1870, 1871, and 1872 have been paid by the purchasers as provided by law on each of said several pieces or parcels of said real property first hereinbefore described, except the said 116 acres of S. E. 4 of sec. 17, twp. 19, R. 10, being all that portion of said quarter section north of the Cottonwood river, amounting to the sum of one hundred and seventy-two dollars and ninetyseven cents. And whereas, the subsequent taxes of 1870 and 1871, amounting to the sum of one hundred and four dollars and twenty-eight cents, has been paid by the purchaser, as provided by law, on the said 116 acres of S. E. 4 of sec. 17, twp. 19, R. 10, being all that portion of said quarter section north of the Cottonwood river. And whereas, the said H. N. Davis has since married, and her name is now H. N. Spicer. And whereas, three years have elapsed since the date of said sale and the said property has not been redeemed therefrom as provided by law: Now, therefore, I, J. S. Craig, county clerk of the county aforesaid, for and in consideration of the sum of nine hundred and thirty-one dollars and twenty-five cents, taxes, costs, and interest due on said lands for the years 1869, 1870, 1871, 1872, (excepting for 1872 on the 116 acres of the S. E. S. 17, t. 19, R. 10, north of river,) to the treasurer paid as aforesaid, and by virtue of the statutes in such case made and provided, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said H. N. Spicer, her heirs and assigns, the real property last hereinbefore described, to have and to hold unto her, the said H. N. Spicer, her heirs, and assigns, forever; subject, however, to all rights of redemption provided by law.

"In witness whereof, I, J. S. Craig, county clerk as aforesaid, by virtue of the authority aforesaid, have hereunto subscribed my name and affixed the official seal of said county, on this 16th day of February, A. D. 1874. J. S. CRAIG, County Clerk.

"Witnesses: F. G. HUNT,

"W. L. TAYLOR.

"[Lyon county seal, Kansas.]"

The district court held that the tax deed under which the plaintiff claimed title was not good upon its face, and conveyed no title to the land to her, and gave judgment to the defendant for her costs. The plaintiff excepted to the rulings and judgment, and, to reverse them, she has brought this proceeding in error.

Gillett, Fowler & Sadler, for plaintiff in error. defendant in error.

Kellogg & Sedgwick, for

JOHNSTON, J., (after stating the facts as above.) The first and controlling question in the case is in regard to the validity of the tax deed under which the plaintiff claims title to the land in controversy. The district court determined that it was void upon its face as a conveyance of the real property sought to be recovered; and an examination of the instrument leads us to the same conclusion. The recitals of the deed include the description of 28 distinct parcels of real estate. In the opening clause of the instrument it is recited that all of these tracts and parcels were subjec > taxation for the year 1869; were separately assessed; that the taxes thereon were not paid; and that on May 3, 1870, each of these tracts was sold for the payment of the taxes, interest, and costs charged against it. Then follows a recital of the tracts sold, the amounts for which they were sold, and the persons to whom sold. Following this is a recital that H. N. Davis, one of the purchasers, obtained assignments of the certificates of sale from the other purchasers for the property bid in by them. In this connection it is recited that the taxes on each of the tracts for the subsequent years 1870, 1871, and 1872, have been paid by the purchasers, excepting upon the 116-acre tract, which is definitely described; and that the taxes for 1870 and 1871 upon that tract, (again describing it,) were paid by the purchaser, as provided by law. Following this is a statement that H. N. Davis has since married, and her name is now H. N. Spicer, and that three years have elapsed since the date of the sale, without any redemption of the property sold. Then comes the granting clause of the deed, which states that, in consideration of a stated amount, "the taxes, costs, and interest due on said lands for the years 1869, 1870, 1871, 1872, (excepting for 1872 on the 116 A. of the S. E. S. 17, T. 10, R. 10, north of river,) 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 said H. N. Spicer, her heirs and assigns, the real property last herein before described." The property "last hereinbefore described" does not include the tract the title and possession of which is now in dispute, but embraces only the 116-acre tract. That property is separately and definitely described in the clause immediately preceding the words of conveyance and hence the phrase "last hereinbefore described" expressly and clearly limits the extent of the lands conveyed to the single tract of 116 acres. The plaintiff contends that all parts of the deed, read together, show that the parcels of land described in the opening clause of the deed were intended to be conveyed; but the language employed by the county clerk in the granting clause leaves no room for interpretation. It is true that under the recitals the plaintiff appears to have been entitled to a tax deed for all the parcels described in the opening clause of this instrument; but the officer for some reason, and in terms which are not ambiguous, chose to limit the real property conveyed to the single tract, and we are not permitted to import into the instrument a meaning wholly at war with the language which he used. The holding asked for by the plaintiff would require the substitution of the word "first" for "last," so that the phrase in the granting clause would read, "the property first hereinbefore described." It is said by plaintiff that the statutory form of tax deed has been followed in this case, as the granting clause of that form uses the terms the "real property last hereinbefore described." The form of the deed must be in substantial compliance

with the statute, but it must also conform with the real facts upon which the deed is based. If only a single tract had been described in the deed, the form used would have been appropriate and sufficient; but in this deed there was the history of 28 distinct parcels, and the steps taken were not the same as to all these tracts. To correctly recite the facts, it became necessary, in the deed, to separately describe some of the tracts; and therefore the necessity to depart from the form given as a guide in the statute. To give flexibility to that statute, the legislature has provided that the form given shall be substantially followed. In Norton v. Friend, 13 Kan. 532, it is said that "a tax deed should follow the form given by statute only so far as it can do so truthfully, and where it cannot do so truthfully, it should state the facts as they really exist." In Magill v. Martin, 14 Kan. 67, it was remarked, with reference to a strict adherence to the statutory form, that "when the conditions of the sale are such that to follow the form is to recite an untruth, and show an illegal sale, the form must be modified to suit the facts. To make a statement of an illegal and void sale evidence of a valid and legal sale is a contradiction not to be imputed to the legislative intent. The statute says that the deed shall be in substantial compliance with the form. It thus contemplates minor modifications, and those modifications must be such as to make the deed recite the truth, and comply with the conditions of valid action." Only a modification of a word or two was required in order to have conveyed all the lands sold, if such had been the intention. The cited case of Dodge v. Emmons, 34 Kan. 732, 9 Pac. Rep. 951, does not strengthen the position of plaintiff. The granting clause of that deed contained words similar to those used in the present deed, and immediately preceding that clause there was a defective, or rather an attempted, description. However, it was only a starting point, and was held not to be a description, and the words "the property herein last before described" were held to refer back to the first description given in the deed. In fact, there was only a single tract described in that deed; and it was ruled that the first description, was really the only one embraced in the instrument. The plaintiff was never in possession of the land in dispute, and the deed upon which she relies wholly failed to convey the land to her; and hence she had no title or right of possession therein.

The judgment of the district court will be affirmed.

All the justices concurring.

(38 Kan. 597)

CHICAGO, K. & W. Ry. Co. v. FREEMAN et al., Board of Com'rs of

Osage Co.

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

1. RAILROAD COMPANIES-MUNICIPAL AID-LIMITATION OF AMOUNT.

The proviso contained in section 1 of the act to enable counties, townships, and cities to aid, in the construction of railroads, etc., (page 783, Com p. Laws 1885,) is a limitation on the amount to be subscribed by a township to aid in the construction of railroads, whether extended to one or to several railroad companies. It prescribes a limit as to the amount of bonds to be issued, beyond which the commissioners cannot go for any purpose. Up to this limit aid may be voted to one railroad company, or it may be divided among several; but the sum of $15,000 and five per cent. additional of the assessed value of the property of the township is all that can be legally voted and issued, under any circumstances.

2. SAME PRIORITY OF SUBSCRIPTIONS.

When the board of county commissioners is authorized by a favorable vote of the electors of a township to subscribe on behalf of said township to the capital stock of a railroad company, in the full amount that the township is authorized by law to subscribe, that proposes to build its line through said township, on the terms and conditions prescribed in the vote, and a subscription is duly made and accepted in writing by the railroad company, the subscription and its acceptance creates a contract binding on the township, and, when the railroad company performs all the