(185 P.)

County.

at an ordinary tax sale. Before the county Appeal from District Court, Montgomery could obtain a deed and the right to possession, foreclosure proceedings would be necessary under the provisions of section 11476, to quiet title against Action by J. Daugherty, a tax title holder, C. M. Paxson and others, as the original owner and his mortJudgment for defendants, and plaintiff appeals. Affirmed.

Gen. Stat. 1915.

T. S. Salathiel, of Independence, for appellant.

"The title acquired by the state or a munic-gagees. ipality at a tax sale is not quite the same as that vesting in a private purchaser, since the object of the purchase is not the acquisition of property, but rather the collection of the taxes; hence it is not, at least in its inception, an absolute legal title, carrying with it the right of possession and of disposition, but in the nature of an equitable title existing for the purpose of compelling satisfaction of the taxes and charges due." 37 Cyc. 1355.

It is true that a sale to an individual of real estate at a tax sale constitutes a contract with the state, and any tax law enacted thereafter will not affect the rights of the purchaser, but the appellant did not become a purchaser until 1916, after the amendment of 1915 was in effect. There is a provision in the general tax law (Gen. Stat. 1915, 8 11490) which declares that

"All matters relative to the sale and conveyance of lands for taxes under any prior statute shall be fully completed according to the laws under which they originated, the same as if such laws remained in force."

Walter McVey, of Independence, for appellees.

BURCH, J. The action was one by a tax title holder to quiet title against the original owner and his mortgagees. The plaintiff was defeated, and appeals.

The decision may have been rested on matter of fact. It was essential to successful prosecution of the action to quiet title that the tax title holder be in actual possession of the land. Possession by a tenant was aswhether the tenant held under the tax title serted, but the evidence left it very doubtful holder or the original owner. However this may be, the decision was well founded on matter of law.

The land was bid in by the county on September 2, 1913, under the provisions of chapter 162 of the Laws of 1891 (Gen. Stat. 1915, §§ 11431-11433). The tax sale certificate was issued and assigned and the tax deed was issued on July 25, 1917. At the legislative session of 1915 an act was passed contain

[4] The appellant contends that, even if chapter 363, Laws of 1915, is held constitutional, section 11490 required the deeds to be issued according to the law as it stood prior to 1915. However, we hold that the proceed-ing the following, among other provisions: ings for the sale and conveyance of the lands mentioned in these deeds did not originate under the law in force at the time the county bid in the property, but that they originated at the time the county assigned the certificates. The deeds are void because they show that notice was not given to the owner as required by the law of 1915 which was in force from the time the proceedings originated until after the deeds were executed.

The judgment is affirmed.
All the Justices concurring.

(105 Kan. 722)

DAUGHERTY v. PAXSON et al. (No. 22322.) (Supreme Court of Kansas. Dec. 6, 1919.)

(Syllabus by the Court.) TAXATION 794-TAX TITLE INVALID ON FAILURE TO GIVE REDEMPTION NOTICE.

The proceedings examined, and held, that a tax title is invalid, and should not be quieted against the original owner and his mortgagees, because of failure to give the special redemption notice provided for by the law in force at the time such redemption notice was due.

"When any county is operating under the provisions of chapter 162 of the Session Laws of 1891 * * the county treasurer shall, at least three months and not more than six months in advance of the end of three years from the date of the sale to the county, notify the owner of the real estate and the holder of every recorded mortgage thereon, that unless the owner, his agent or the mortgagee shall redeem the land from the sale to the county before the expiration of the said three-year period, a certificate may issue. * "" Laws 1915, c. 363, § 1; Gen. Stat. 1915, § 11434.

*

While the act of 1915 was repealed in 1917, before the certificate was issued and assigned, it was in force until March 8, 1917, and the special redemption notice provided for, which is very different from the customary redemption notice, should have been given. This was not done, and the tax deed is invalid.

In the case of Warner v. Pile (No. 22360), 185 Pac. 1041, decided at the present session,

it is held the act of 1915 applied to tax proceedings of the kind under consideration.

The judgment of the district court is affirmed.

All the Justices concurring.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(105 Kan. 695)

Ex parte KRIG. (No. 22340.) (Supreme Court of Kansas. Dec. 6, 1919.)

(Syllabus by the Court.)

MENT AND COMMITMENT AFTER 8 MONTHS
ILLEGAL.

A sentence of fine and imprisonment was pronounced against defendants by a justice of the peace under an arrangement with the prosecuting officer and the justice, in effect, that the fine, attorney's fees, and costs should be paid by the defendants, and that the sentence of imprisonment would then be suspended at least 90 days, and might be indefinitely postponed, but if occasion should require their return, or they should be recalled by the officers to serve the jail sentence, they would surrender themselves on request. After about 8 months the petitioner was taken into custody on a commitment then issued. Held, in a habeas corpus proceeding, that the commitment was illegally issued and the petitioner was entitled to a discharge.

ready for harvest, and also many cattle requiring attention. When the sentence was imposed, petitioner stated that his wheat crop would be lost if he was kept in jail, and the county attorney and justice of the peace agreed that if he would pay the fine, HABEAS CORPUS 29-SUSPENSION OF SEN- attorney's fee, and costs he would not be reTENCE BY JUSTICE OF FINE AND IMPRISON-quired to serve the term of imprisonment at that time. A bond was prepared by the county attorney requiring them to surrender themselves to the sheriff on September 24, 1918, and executed, each signing for the other as surety. There is some conflict in the testimony as to the terms and intent of the agreement that the jail sentence should not be served. The petitioner testified that he was told that if he would pay the fine, fees, and costs he would not have to go to jail, that an extension of 90 days would be granted, and at the end of that period other extensions would be granted from time to time until the matter was forgotten, and that statements of a like character were made by the county attorney. The testimony of the other defendant was substantially the same as that of the petitioner. When the 90 days spoken of had expired no action was taken by the officers to require compliance with the sentence. Three months later or six months after the conviction the county attorney wrote a letter to the petitioner calling his attention to the unsatisfied part of the judgment. It appears this letter did not reach the Richard J. Hopkins, Atty. Gen., and Mau- petitioner, but was returned to the writer. rice McNeil, of Kansas City, Mo., for ap-Another letter was subsequently sent to the pellee.

Application by S. E. Krig for writ of habeas corpus for discharge from respond ent's custody under a commitment. Petitioner discharged.

Charles T. Meuser, of Paola, and David Ritchie, of Salina, for appellant.

petitioner, but not until February 8, 1919. In response to this letter the petitioner returned

JOHNSTON, C. J. S. E. Krig seeks a re-to Miami county to adjust the matter, and lease from the custody of the respondent on the ground that the commitment under which he is held was issued without authority of law and is therefore void. He and another were arrested for violation of the prohibitory liquor law, pleaded guilty before a justice of the peace of Miami county, and | each was sentenced to pay a fine of $100 and to be imprisoned in the county jail for 30 days. Each paid the fine assessed and also an attorney's fee of $50 and costs, amounting to $5.25, and was then released and set at large. There is some confusion in the record as to the penalties imposed on the defendants; some of the testimony shows that there was a fine of $100 on each of the two counts alleged in the complaint against each defendant; but there is testimony to the contrary, and the justice of the peace testified that they paid all the fines, fees, and costs that were assessed against them. The arrangement by which they were discharged from custody and not required to serve the sentence of imprisonment is the subject of controversy.

The petitioner appears to be the owner of an extensive ranch, and when arrested on June 24, 1918, had a large acreage of wheat

was then committed to jail. The county attorney and the justice of the peace admit that they agreed to suspend the operation of the sentence upon the payment of the fines, fees, and costs, but say that they understood the defendants were to return at the end of 90 days and submit to the imprisonment imposed by the judgment. Each stated that he had doubts of the power of the justice to suspend judgment or to parole the defendants, but in view of the big wheat crop which was in peril, as well as the necessities of the period, which was during the war, and the difficulty to obtain harvesters, together with the claim of the defendants that the liquor in their possession was being taken home to meet the requirements of men employed to harvest the crop, it was concluded to take the chances of invalidating the judgment and allow the defendants to go at large and harvest the crop. The justice of the peace might have suspended sentence for a reasonable time (State v. Massa, 90 Kan. 129, 132 Pac. 1182; In re Strickler, 51 Kan. 700, 33 Pac. 620), but the statute does not give him power to sus pend the juugment or any part of it (Gen. Stat. 1915, §§ 8314, 8316). It is said in Re Strickler, supra:

(185 P.)

"When a sentence has been pronounced by the court, its operation begins at once, and under the section just quoted it is the duty of the sheriff to immediately proceed to carry the sentence into effect."

tence as a matter of discipline or as a method of regulating the conduct of the defendants for a long time in the future, as in the case of State ex rel. v. Sapp, supra. Nor was there a bargaining with the officers that only a certain part of the penalty should be enforced, as in the present case. The case we are considering is more nearly analogous to the rules announced in the Strickler and Sapp Cases. There are circumstances tending to support the testimony of the petition

In that case a sentence of imprisonment was suspended and hung over the defendant for 90 days, to be executed at such time as the county attorney and the judge of the court might see fit, and it was held that the judgment was wholly unauthorized by law and the commitment issued under it was il-er, such as the failure to rearrest the defendlegal. In its facts that case is closely akin to this one, where the penalty of imprisonment was held over the defendant for about 8 months, dependent upon the will and action of the county attorney and the court.

ants for so long a period while they were within the reach of process, the fact that no steps were taken at the end of the 90-day period named in the bond, and also the apologetic letters that were subsequently sent to The facts of another case are somewhat them. There is considerable in the testimony similar to those of the instant case, namely, tending to show that they were allowed to go State ex rel. v. Sapp, 87 Kan. 740, 125 Pac. at large on the theory that they might not ever 78, 42 L. R. A. (N. S.) 249. There the defend- be required to suffer the additional penalty, ants pleaded guilty to a charge under an ar- and that they would not have been rearrested rangement that their sentences were to be sus- but for the fact that a judicial decision was pended upon the payment of the costs. The brought to the attention of the officers that suspensions were to continue until the first they had exceeded their authority in susday of May following, about 5 months, and pending the execution of part of the senthey were required to report at that time and tence, and that they were finally spurred to show their good faith in the matter. They action because of the complaint that other were allowed various periods ranging from defendants were not accorded the same 30 to 90 days, in which to pay the costs. It favors. It appears that the county attorney was held that under the circumstances the discussed with them the fact that the councourt had no discretion to suspend the im-ty commissioners had certain powers to reposition of the sentence as a disciplinary lease prisoners from custody and that an measure, or to permit defendants to go at appeal might be made to them in an emerlarge with the understanding that their sub-gency. sequent might affect the penalty and that they might escape punishment altogether under some circumstances. In a mandamus proceeding to require the court to pronounce sentence and impose the penalty of the law, it was ruled that the unreasonable delay, together with the lapse of the term, resulted in a loss of jurisdiction and a want of power to impose sentence and punishment.

His letters indicated that he told them that they might or might not be recalled, but if they were wanted they should return on request, and that they were to come back if occasion should present itself. In a letter which was substantially alike an earlier one, the county attorney wrote:

"Gentlemen: of the other to appear here if occasion should Each of you signed the bond present itself for a purpose known best to each of you.

"The Supreme Court of this state has recently ruled that where one is charged with an offense and pays the fine, the justice of the peace must issue a commitment for the balance sued by Justice Ed. H. Wilson in each of your of sentence. A commitment was therefore is

The respondent places much reliance upon State ex rel. v. Piper, 103 Kan. 794, 176 Pac. 626, where a justice of the peace undertook to remit a part of the sentence and parole prisoners against whom he had pronounced a sentence of imprisonment, and shortly afterwards resigned his office. His successor issued a commitment to enforce the jail sentence that had been previously adjudged and the defendants were taken into custody. In a habeas corpus proceeding the probate judge ordered a discharge. Afterwards a proceeding in mandamus was begun to compel the execution of the sentence, and it was decided that the paroles issued were invalid and that,ment here because some of the local fellows "Ts matter has been cause of much comthere having been no unreasonable delay, could not get off. We accommodated you, you the judgment should be enforced. There will remember, because of your big wheat crops lying idle.

there was no indefinite sentence; no hanging of an axe over the heads of the defendants subject to fall on them at the discretion of the county attorney or the court, as in the case of In re Strickler, supra. Neither was there any suspension of judgment and sen

cases and I remembered that you each asked me to write you should you be wanted instead of sending for you. I wish you would each get in touch with the other at once and come to finish the sentence as soon as convenient and save any embarrassment to yourselves or the officers here who accommodated you, at sheriff's office.

"Your friend. "Feb. 8, 1919."

Following the rule in Re Strickler, supra, and State ex rel. v. Sapp, supra, it must be

DAWSON, J. This action questions the Jurisdiction of a district court to render a judgment for an accounting, against a nonresident of the county, in an action brought for specific performance of a real estate contract, when it developed in the course of the trial that specific performance could not be decreed, owing to some misunderstanding touching the contract, although pursuant thereto the contracting parties had partially performed it.

1. SPECIFIC PERFORMANCE 128(2)-JURIS DICTION TO TAKE ACCOUNTING ON IMPOSSIBILITY OF RELIEF FOR WANT OF MUTUALITY. In an action for specific performance of a contract for the exchange of real and personal The plaintiff's assignor, C. E. Bradburn, property, where the execution of the contract made a bargain with defendant, in writing, is pleaded, and the contract is exhibited, and to convey to defendant, Ragan Thomas, cernot denied, and the defendant joins in the pray-tain lands in Finney and Kiowa counties in er for specific performance "so far as the real estate is concerned," the action is maintainable, although the trial court finds that the contract cannot be specifically enforced, "because of a want of mutual understanding as to all its terms"; and where pursuant to such imperfect contract the parties have partially performed it by a transfer of a bank account, and by payments and expenditures pertaining to the personal property, the court may properly retain jurisdiction and order an accounting, and give such judgment as justice may require. 2. TRIAL INTERPRETATION

404(1)

EQUIVOCAL FINDING OF FACT.

OF

A seemingly equivocal finding of fact touching the trial court's construction of a contract may be interpreted in the light of the pleadings and the contract itself, and no error will be based thereon, when the judgment itself is

correct.

3. SPECIFIC PERFORMANCE 104-JURISDICTION TO ORDER ACCOUNTING NOT LOST BY IN

ABILITY TO DECREE PERFORMANCE.

The Civil Code (Gen. St. 1915, § 6946) permits an action for specific performance of a contract concerning land to be brought in any county where part of the land is situated, and it may be so brought although an exchange of some personal property is also involved in the contract; and the court does not lose jurisdiction to adjudicate all matters pertaining to the contract, although it finds that a decree of specific performance should not be rendered; and in such case the court may decree an accounting between the parties on pertinent matters which arose because of their acts in partially carrying the contract into effect.

exchange for some lands, residence, building, and a stock of merchandise in Lane county. Bradburn assigned the contract to plaintiff, and the latter brought suit in Finney county for its enforcement. The defendant, Thomas, resided in Lane county, and was served with summons in Lane county.

Defendant's motion to quash the summons for want of jurisdiction was overruled. The

trial court found that the contract had been
made and partially performed, but that it
could not be specifically enforced, because
of want of mutuality as to all its terms; so
an accounting was had between the parties,
The court's
and judgment given thereon.
findings and judgment, in part, read:

"That the contract set up in plaintiff's petition was not in fact entered into between the plaintiff and the defendant because of a want of mutual understanding between the parties as to all its terms. For said cause the court finds that

the contract cannot be specifically enforced.

"The court further finds that in attempting to carry out the plaintiff's part of the contract, the plaintiff has paid to the defendant the sum of $500 in cash, and has paid out for the use and benefit of the defendant, in the payment of the defendant's obligations, the sum of $201.50.

"The court further finds that the plaintiff has received from the defendant merchandise of the value of $17.14.

"The court further finds that there is a small balance on deposit in the Farmers' State Bank which should now be turned over to the defendof Shields, Kan., in the name of the plaintiff, ant; the exact amount of said balance being

Appeal from District Court, Finney Coun- not now known to the court. ty; George J. Downer, Judge.

"The court further finds that the defendant still retains all money paid to him and to his use, as aforesaid, by the plaintiff.

Action for specific performance of a real estate contract by E. A. Orr against Ragan the value of the merchandise received by plain"The court finds that said sum of money, less Thomas. From the trial court's finding that tiff, as aforesaid, should be paid to the plaincontract had been made and partly perform-tiff by the defendant. ed, and could not be enforced for want of "Wherefore it is now by the court considered, mutuality, and its judgment on an account-ordered, adjudged, and decreed that said de

(185 P.)

fendant pay to the plaintiff the sum of $684.42, | a difficulty which did not arise until the with interest thereon at 6 per cent. from February 1, 1918."

[1, 2] An action for the specific perform- [3] No error transpired in overruling the ance of a contract is none the less such an defendant's motion to quash and its motion action merely because the court whose equi- to dismiss. An action for the specific pertable powers are invoked may not be able to formance of a contract concerning realty grant the particular and especial relief pray-may be brought in the county where the land ed for. If the facts disclose a meritorious or any part of it is located (Civ. Code, § 56 case for equitable cognizance, a court of [Gen. St. 1915, § 6946]); and if such action equity will retain jurisdiction and grant is meritorious and is grounded fundamentalsuch appropriate relief as justice seems to ly upon equitable principles which govern require. 36 Cyc. 752, 753; 10 R. C. L. 370-specific performance, the court does not 374; 25 R. C. L. 341.