His

Neff at Downs, he (Huff) was absent attending court at Mankato. There is some direct and much circumstantial evidence tending to show that the plaintiff in error knew that Neff had many creditors, was practically insolvent, and unable to pay his debts, at the time he purchased the stock of goods from Huff. Indeed, there is abundant evidence tending to sustain the special findings of the jury, and to support the general verdict. Of course, it is largely circumstantial, as the common experience of the profession is that direct proof of commercial fraud is hardly ever produced either before court or jury. Huff's dealing with Neff is not conducted with ordinary business prudence. loans to Neff of large sums of money, the loans following each other so speedily without security or a demand for security, are not in accordance with business methods. No explanation is offered as to how the proceeds of the loan were disposed of. The knowledge of the loans are confined to Huff alone, so far as the record discloses. He claims to have been making these loans on individual account, and carries about his person large sums of money with which to accommodate Neff whenever he calls upon him. These, probably, are some of the many considerations that controlled the verdict of the jury, and operated on the mind of the court; and they appear to us such strong and natural inferences from the special acts and general conduct of the parties that we deem these and other established facts sufficient to sustain the special findings and the general verdict.

2. The next cause for reversal urged is that the trial court erred in giving to the jury the following instruction, (No. 13.) "That if you find from the evidence that Neff sold, or pretended to sell, the goods in question to J. W. Huff on a pretended or fictitious indebtedness, and that the same was done for the purpose of hindering, delaying, or defrauding Neff's creditors, and that Meibergen knew of such fraudolent intent, and bought with such knowledge, or if you should find from the evidence and surrounding circumstances that Meibergen was in a situation that a reasonably prudent man should or would have known of such fraudulent intent, then Meibergen cannot recover in this action. Meibergen could not blind his eyes to the facts and circumstances which surrounded him, and protect himself by the claim that he had no actual or express knowledge of such fraudulent intent. If facts and circumstances came to the knowledge of Meibergen as should have excited the suspicions of and put a prudent man upon inquiry, and that such inquiry would have led to a discovery of the fraudulent intent of Neff in selling said goods to Huff, the law holds Meibergen to be possessed of all such knowledge, in respect to such transaction or fraudulent intent, as such inquiry might have developed. And, if you find from the evidence that Meibergen bought the goods at a price much less than their actual value, then it is for you to say whether or not this fact, together with the other circumstances which came to the knowledge of Meibergen as shown by

the evidence, were not sufficient to arouse the suspicions of a reasonably prudent man in his situation, and put him upon inquiry as to why Neff and Huff were selling said goods at a sacrifice." While this instruction is somewhat verbose, and frequent repetitions of the same principle are indulged in, still, stripped of its verbiage, it contains the essence of the law applica ble to the state of facts presented by the record. We cannot reverse this case for the errors suggested and urged. We are disposed to think that justice has been done, and that there has been no such serious departure from established rules as compels a new trial. We recommend that the judgment be affirmed.

BY THE COURT. It is so ordered; all the justices concurring.

(45 Kan. 484)

DOUDNA et al. v. HARLAN. (Supreme Court of Kansas. Feb. 7 1891.) TAX-TITLE-ADVERSE POSSESSION-TAX-SALEREDEMPTION BY MINORS.

1. A tax-deed valid upon its face starts the statute of limitations provided in paragraph 6995 of the General Statutes of 1889 to running when recorded in the proper county, and, after said statute has fully run in its favor, such deed cannot be overthrown by an action begun thereafter, except by showing that the land was not subject to taxation when listed therefor, or that the taxes have been paid, or the land redeemed, as pro-. vided by law.

2. When lands are advertised to be sold for taxes, and at the time of the sale no one bids the amount of the taxes and costs thereon, and the land is bid off by the county treasurer for the county, held, that such "bidding off" constitutes a sale of said land under our statute relating to tax-sales.

3. Paragraph 6977, Gen. St. 1889, provides "that lands of minors, or any interest they may have in any land sold for taxes, may be redeemed at any time before such minor becomes of age, and during one year thereafter." Held, that the right of redemption conferred by this paragraph applies only to lands that belong to minors and lands in which minors have an interest at the time they are sold for taxes.

(Syllabus by Strang, C.)

Commissioners' decision. Error from district court, Labette county: GEORGE CHANDLER, Judge.

F. M. Smith and J. H. Crichton, for plaintiff in error. Case & Glasse, for defendant in error.

The

STRANG, C. Action of ejectment for the possession of lots 9, 10, 11, 12, and 13, in block 36, in the city of Chetopa, Labette county, Kan. Defendant admits possession in herself, and alleges that she is the owner of the lots in dispute by virtue of a tax-deed and other conveyances. case was submitted to the court below without a jury upon the following agreed statement of facts, November 2, 1887: “(1) Before the sale in September, 1875, hereinafter mentioned, the title of the property in controversy in this suit was perfect in Willoughby Doudna, the husband of the plaintiff, Ruth A. Doudna, and the father of the other plaintiffs. (2) Said property was sold for taxes in September, 1875, for the taxes thereon for the year 1874, costs,

penalties, and expenses, and was, by the County treasurer of Labette county, at such sale bid off to and for said county. (3) Said Willoughby Doudna died intestate on November 4, 1878, leaving a widow, said Ruth A. Doudna, and four children, who were then minors; and the younger died in March, 1886. The other three children are the plaintiff above named, Mrs. Mattie Bennett, now 23 years of age; Hosea W. Doudna, now 16 years old; and Oliver R. Doudna, now 14 years old. (4) In the month of July, 1880, Lee Clark purchased and took an assignment of the taxsale certificate of said property on said tax-sale of September, 1875, and in said month of July procured tax-deeds therefor, the records of which, including date of recording, may be used in evidence instead of originals, as hereinafter stipulated; and thereafter he and his wife sold and conveyed said property to one J. L. Van Note, and Van Note and his wife thereafter sold and conveyed said property to said defendant, Emma J. Harlan. The records of these conveyances, including date of recording, may be used in evidence instead of originals. (5) Defendant, Emma J. Harlan, since the purchase of said property improved same to an extent left for further inquiry and determination, if necessary to an adjustment of the rights of the parties to this suit. She is now in the possession of the property, and has been in the possession thereof since this suit. (6) In October, 1886, said plaintiff paid to the county treasurer of said county, for the purpose of redeeming said property, except lot 13, from tax-sale of September, 1875, the sum of $114.60, and received from the treasurer of said county the redemption certificate, which is to be introduced in evidence, to speak and show for itself, and for all purposes for which it is competent. The payment of said money was for and on behalf of said minors, and the money is still in the hands of the treasurer of said county. (7) Said property was no part of the homestead of said Willoughby Doudna nor of his family. That Exhibit A, hereto attached, contains the levies of the taxes for general county purposes and poor and incidental funds for the year therein described and set forth. (8) Said lots 9, 10, 11, 12, and 13, and lots 14, 15, and 16, comprise the north-west quarter of said block 36; and in the summer and fall of 1881 said Van Note built a house on lots 15 and 16, and a barn on 12, 13, and 14; and in February, 1882, completed the building of an iron fence in iront of all said lots, and part way on each line of said lot 9, and part way on west line of said lot 16, and a wooden fence around balance of said quarter block. This house was burned down in February, 1884." It was likewise admitted on the trial of the cause that more than five years had elapsed from the time of the recording of the tax-deeds under which the defendant claims and the commencement of this ac tion, and that at the time of the sale of the property therein described the plaintiffs had no interest therein other than that Ruth A. Doudna was the wife of Willoughby Doudna, and the other plaintiffs were his children, he then being alive.

That the assessed valuation of both personal and real property in Labette county, Kan., from 1874 to 1880, did not exceed $3,000,000, and that the levies made by the county commissioners, as above stated and set forth, were not submitted to a vote of the electors of said county of Labette and state of Kansas before said levies were made, or at any time.

"No. 1179-1180-1181-1182. $113.75. Connty Treasurer's Office. State of Kansas, Labette county-ss.: I, C. W. Littleton, treasurer of Labette county, Kansas, do hereby certify that Mrs. Ruth Ann Doudna, for Hosea Doudna and Oliver Dondna, 'minors,' has this day redeemed the following real estate from the sale of 1875, towit: Chetopa, lots 9, 10, 11, & 12, block 36. The above-described real estate was sold on the 7th day of September, A. D. 1875, to Labette county, and assigned July, 1880, to Lee Clark, for the sum of three and 4-100 dollars, being the delinquent tax for the year 1874, by the payment to the said treasurer of the following amounts: Paid by purchaser at sale.....

The following tax indorsed on sale: 1875-6-7-8-9 amt.

Tax paid by purchaser 1880.

$ 3 04

5 56

1 12

"Witness my hand this 18th day of November, A. D. 1888.

"C. W. LITTLETON, Treasurer. "By H. T. ATWOOD, Deputy. "County fees: Treasurer's, .40; county clerk, .25."

The court, upon said statement of facts, found for the defendant, and adjudged that she recover her costs. The plaintiffs objected to the findings of the court, and moved for a new trial, which motion was overruled.

The first contention of the plaintiff in error is that the tax-deed relied upon by the defendants in error is void, and therefore never operative as a transfer of title. Coupled with this is the further contention that, said deed being void, it never did and could not set the five-years statute of limitations to running, and therefore the trial court should have set aside the tax-deed in controversy, and found for the plaintiff in error. In support of this position counsel cite the case of Richards v. Thompson, 43 Kan. 214, 23 Pac. Rep. 106. An examination of that case shows that the tax-deed involved therein was void on its face. It is well settled that a deed void on its face will not set the stat

ute to running. The defect in the deed in that case is patent. The deed itself, and the record thereof, carry with them the evidence of their invalidity, of which the grantee and those who claim under him must take notice; and the five-years statute of limitations prescribed in paragraph 6995 of the General Statutes of 1889 will not run in favor of such a deed. But the defect which renders a deed invalid may not appear upon its face. It may be ascertainable only upon an examination of the proceedings antecedent to the issuance of the deed or the sale. Such a deed carries with it a presumption in favor of the regularity of the conditions precedent thereto, and in such a case our understanding is that it is sufficient to set the statute to running in its favor. In this case it is not insisted that the land was not subject to taxation at the time it was listed. It is admitted the tax was not paid before the sale, and that the land was not redeemed according to law, before the deed was issued. But it is claimed that, as the tax upon which it was sold was in excess of the amount that the commissioners were by law allowed to levy, they had no power to levy the tax upon which the sale was had, and that a deed following a sale on a tax that the commissioners were without jurisdiction to levy could not start the statute of limitations to running in its favor. If there were no question of the statute of limitations involved in the case the showing might be sufficient to avoid the deed. But this court has settled the question, as presented here, against the plaintiff in error, in the case of Edwards v. Sims, 40 Kan. 235, 19 Pac. Rep. 710. In that case Mr. Commissioner SIMPSON, writing the opinion for the court, says: "We have noticed all the objections urged against the tax-deed, and, it not being pretended that the taxes were paid, the land redeemed, or that it was not subject to taxation at the time it was listed, it becomes to us a matter of positive duty, in obedience to the lawmaking power of the state, to apply the limitation contained in section 141 of the tax law to the facts as shown by the record; and the result is that none of the matters alleged against the deed can be considered by the court, because the deed had been recorded for more than five years before the commencement of this action against the assigns of the tax purchaser for the recovery of the land, and at that time the bar of the statute is complete." In Jordan v. Kyle, 27 Kan. 190, it is held that, "where the land is taxable, and the taxes have not been paid, or the land redeemed as provided by law, and the tax-deed is executed by the officer authorized by law, is regular on its face, contains a perfect description of the land conveyed, and has been of record more than five years before December 3, 1879, the date of the commencement of the suit against the tax purchaser, the bar of the statute of limitations fully attached to said tax-deed before the action was brought." In Maxson v. Huston, 22 Kan. 643, the court held that "a tax-deed regular on its face, containing a perfect de. scription of the land conveyed, and of rec

ord the time prescribed by the statute of limitations, is protected by said statute from impeachment by evidence that the description of the land on the assessment roll and in the sale certificate is fatally defective." In this case, Justice BREWER, in promulgating the opinion of the court, very pertinently says: “If the proceedings must be so regular as to make a valid sale before the statute of limitations will start to run upon a tax-deed good upon its face, then the statute has but little virtue in these cases as a statute of repose; for upon a valid sale a valid deed can be compelled, and the statute will rarely be invoked except in cases where it is not needed." See, also, as bearing upon this question: Barr v. Randall, 35 Kan. 126, 10 Pac. Rep. 515; Mack v. Price, 35 Kan. 134, 10 Pac. Rep. 521; Sanger v. Rice, 43 Kan. 580, 23 Pac. Rep. 633. We are referred by counsel for plaintiff to the case of Kemper v. McClelland, 19 Ohio, 327. In that case, however, there was no question of the statute of limitations, and we have no doubt that the court properly avoided the tax-deed, because of the excess of tax upon which the sale was had. If, however, the deed had been valid upon its face, and the five-years statute had run in that case, as in this, the question would have been analogous to the one in the case before us, and the decision would have been different. The tax-deed under which the defendant claims being valid on its face, and having been of record more than five years before the commencement of this action, and it being admitted that the land in controversy was subject to taxation when listed, that the taxes were not paid, and the land not having been redeemed as provided by law, the action to avoid the deed cannot be maintained.

The plaintiff next complains that "the court erred in finding that the bidding off of the lots in controversy by Labette county was a sale." The contention of the plaintiff is that, when the county bids off property at a tax-sale, it does not become a purchaser, but simply bids off property, and holds it until some one pays the taxes and penalties thereon, and takes an assignment of the bid from the county; and that in such case there is no sale of the property until it is assigned by the county to the party paying the county the taxes, penalties, and costs thereon. We do not think this position is tenable. There is but one sale mentioned in the statute, and that very clearly refers to the bidding off of the property at the time it is advertised to be sold for the taxes. Nor do we think it any less a sale, because it is bid off by the treasurer for the county, than when bid off by some person for himself or some other individual. The "bidding off" of the property by the treasurer in the name of the county and for the county has been constantly treated as a sale by the bench and bar of the state. If the county is not a purchaser when property is so bid off, who is the owner in the mean time? The former owner has lost his title, except so far as he has the right of redemption. No third party has obtained any interest therein as yet, and there must be some per

purchased by Smith, for the purpose o sowing it and raising a crop; that it was warranted by the plaintiffs to be good. but that it was worthless: that ho (Smith) sowed it, but that it did not germinate; and that he lost his time, labor. and use of his ground; and that he was damaged thereby in the sum of $150. And he asked judgment for that amount, and costs of suit. The trial resulted in a verdiet in favor of the defendants and against the plaintiffs for the sum of $90, and judg'ment was rendered accordingly; and the plaintiffs, as plaintiffs in error, bring the case to this court for review.

It appears from the evidence that the facts of the case are substantially as follows: The plaintiffs, G. B. Shaw & Co., were dealers in flaxseed at Cambridge, in said Cowley county. Smith went to their place of business about April 20, 1886, and found Joseph Fraley, their agent, in charge. Shaw & Co. did not have any flaxseed on hand, but they were about to order some. Smith told Fraley to order eight bushels for him, for the purpose of sowing it and raising a crop. Fraley told Smith that they would furnish the flaxseed upon the conditions substantially as set forth in the foregoing instrument. Afterwards the flaxseed arrived, and Fraley gave notice to Smith. Smith then, on April 30, 1886, went to Cambridge and received the seed, about 8 bushels in amount, inclosed in sacks, from Fraley, and took it home and sowed it upon about 12 acres of ground. The seed appeared to be good, and Fraley and Smith believed it to be good, but in fact it was not good, and it did not germinate; and Smith lost all his time and labor in procuring it, and in preparing the ground for sowing it, and in sowing it, and he got no crop, and lost the use of his ground. And upon these facts the jury found in favor of the defendants and against the plaintiffs, and assessed the defendants' damages at $90, as aforesaid. The only questions now involved in the case are as follows: (1) Under the contract between the parties, and under the circumstances of the case, was there any such implied warranty on the part of Shaw & Co., respecting the sufficiency of the flaxseed for the purposes of sowing it and raising a crop, that the plaintiffs may be defeated in their action on the aforesaid written instrument? (2) If so, then under such contract and warranty and circumstances, may the defendants, Smith and McClellen, or rather Smith, recover damages for Smith's losses, necessarily occasioned by reason of the worthlessness of the flaxseed? (3) And, if so, then what is the measure of Smith's damages? The maxim of the common law, caveat emptor, is the general rule applicable to purchasers and sales of personal property so far as the quality of the property is concerned; and, under such maxim, the buyer, in the absence of fraud, purchases at his own risk, unless the seller gives him an express warranty, or unless, from the circumstances of the sale, a warranty may be implied. In the present case no express warranty was given, and the question then arises, was there any implied warranty? At the time when the

contract for the purchase and sale of the flaxseed was entered into, such seed was not present so that it could be inspected by the purchaser, and, when it arrived and was delivered to him, the defect in the seed was not apparent, and was probably not discoverable by any ordinary means of inspection, and it was not discovered until after it was sowed, and when it failed to germinate. When the original contract for the purchase and sale of the flaxseed was made, the flaxseed was purchased and sold for the particular purpose, known to both the buyer and the seller, of sowing it in a field, and of raising a crop from it; and therefore this purpose was a part of the contract, and demanded that the seed should be sufficient for such purpose. It, in effect, constituted a warranty on the part of the seller that the seed should be the kind of seed had in contemplation by both the parties when the contract was made. The purchaser had to rely upon the seller's furnishing to him the kind of seed agreed upon, and the seller, in effect, agreed that the seed furnished should be the kind of seed agreed upon. The entire contract when made was executory, and it was to be executed and performed afterwards, and to be performed in parts and at different times. The seller was first to furnish the seed, and he did so in about 10 days after the contract was made, and of course the seed was to be a kind of seed that would grow. The purchaser was afterwards to sowit and to raise a crop, and afterwards the purchaser was to sell, and the seller was to buy, the crop, upon certain terms and conditions expressed in the contract. We think there was an implied warranty on the part of the seller that the seed should be sufficient for the purpose for which it was bought and sold. Wolcott v. Mount, 36 N. J. Law, 262, 38 N. J. Law, 496; Van Wyck v. Allen, 69 N. Y. 61; White v. Miller, 7 Hun, 427, 71 N. Y. 118; Whitaker v. McCormick, 6 Mo. App. 114. also think that the purchaser may recover damages from the seller for all the losses necessarily sustained by the purchaser, by reason of the worthlessness of the flaxseed furnished by the seller. See the authorities above cited, and also the following: Passenger v. Thorburn, 34 N. Y. 634; Flick v. Wetherbee, 20 Wis. 392; Ferris v. Comstock, 33 Conn. 513; Randall v. Raper, El., Bl. & El. 84. And it is not claimed that the purchaser in the present case recovered for more than the foregoing losses. The claim is that the purchaser had no right to recover at all, and that the seller had the right to recover on the instrument sued on. No other questions are presented. We think no material error was committed in the case, and the judgment of the court below will be affirmed. All the justices concurring.

SHAW et al. v. JONES.

We

(45 Kan. 339)

(Supreme Court of Kansas. Feb. 7, 1891.) Error from district court, Cowley county; M. G. TROUP, Judge.

Samuel Dalton, for plaintiffs in error. S. E. Fink, for defendant in error.