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petition and reply were sustained so far as the same relate to the mortgage to Tuck by Merrick and Stickney, the assignment of the same to Sumner, and Sumner's settlement and deed of conveyance from the assignee in bankruptcy, and his title from said Sumner by deed, and possession thereunder. It will be seen by this claim that the 15-years statute of limitations is abandoned; in fact, the evidence failed to establish adverse possession for 15 years. The next question presented is the legal effect of the schedule made by Merrick and Stickney as bankrupts, including this land as part of the assets, and the settlement by the assignee with Sumner, and his transfer of the land in settlement of the Tuck mortgage. Defendant in error insists that this was an adjudication, and as such it is entitled to the same protection as that of all other courts of competent jurisdiction. If this is true, then Chellis' title was wiped out by that judgment. Defendant insists that Chellis was a party thereto; that by reason of his filing a claim against the bankrupts, and his settlement of said claim with said bankrupts, he was bound to take notice of the entire proceedings in bankruptcy, and whatever of those proceedings affected his interest he must take notice of and defend against, or be forever estopped from claiming title to the property. There is no pretense that Chellis had actual notice of these proceedings; but it is claimed-First, that he had constructive notice of what the record shows by being a party to said proceedings; and, second, by his having appointed Stickney his agent or attorney in fact to settle, compromise, and adjust his claims, that whatever knowledge Stickney had was notice to Chellis. If this claim is true, then Chellis had actual knowledge; for whatever was knowledge to the agent was knowledge to the principal, if within the line and scope of his authority.

In addition to the foregoing, the defendant insists that if plaintiff in error was not estopped by these proceedings from claiming title, then he is barred by the two-years statute of limitations provided for in the bankrupt law, which is, in substance, as follows: "No suit at law or in equity shall in any case be maintainable by or against any person claiming an adverse interest touching the property and rights in property of the bankrupt, transferable to or vested in such assignee, in any court whatsoever, unless the same shall be brought within two years of the time the cause of action accrued." The first question to be considered is, was the defendant barred by this statute of limitations? If he was, that disposes of the action. The plaintiff in error insists that if this statute was in force then it was not pleaded by the defendant, and therefore he cannot take advantage of it. By a careful examination of the plaintiff's reply, we find no allegation of this kind; nowhere does he directly point out or claim that by reason of this statute of limitations the defendant is barred. He pleads the 15-years statute of limitations, and alleges it as a separate defense; in reply he pleads res adjudicata and estoppel, and alleges that by reason of the decision of the bankrupt court, setting aside this land to Sumner in satisfaction of his claim, that this was such an adjudication as would bind the defendant, who was a party to that action. Second, that the defendant was estopped from claiming title to the land even though he was not barred by this decree or judgment, for the reason that he had full knowledge of the transaction and of the good faith of Sumner, and with this knowiedge kept silent, and is therefore barred from claiming title thereto; but nowhere in this reply does he suggest that he claimed by reason of the lapse of two years from the sale by the assignee to Sumner, and that by reason of such lapse of time the defendant is barred from claiming title by said two-years statute. To avail himself of this statute, he must specifically plead it; and, not having done so, he cannot now claim the benefit of it. Then it is not material for us to inquire whether or not this statute would have protected the plaintiff if properly pleaded.

We will now pass to the remaining questions: Was this schedule of the property to the assignee, and the sale and transfer by the assignee to Sumner,

and the confirmation thereof by the court, an adjudication of the claim of the defendant in error? It is not claimed by the plaintiff in error that, if the matter had been properly presented to the bankrupt court, all the questions in relation to the title might not have been settled by that court; and, when so presented to the court, that the judgment would not have been as binding as if rendered in any other proceeding; but in this case, as far as shown by the record, no such presentation of the facts was made, by which the court could or would have passed upon the question of title. The bare fact that both Sumner and Chellis held claims against the bankrupts; that both filed their claims and both claims were compromised, not apparently conflicting with each other; no controversy between the parties; no common claim upon any of the property in controversy; no question as to which of the claimants should have this or that property; no question presented to the court as to what interests the bankrupts had in any of the property; and yet under this presentation it is claimed that this was an adjudication of the rights of the parties. This question has been passed upon by this court in Wilkins v. Tourtellott, 28 Kan. 825, in which it was said: "But the mere fact that the assignee of his own volition scheduled it, and upon his own application obtained an order for its sale, does not conclude the bankrupt. All that the order of the court determined is the fact of bankruptcy, the regularity of the proceedings, and that whatever title the bankrupt had at the time of filing the petition in bankruptcy has been transferred to the purchaser. There is no warranty of title in a sale by the assignee in bankruptcy, any more than in any other judicial sale." In re Goodfellow, 1 Low. Dec. 510; Hynson v. Burton, 5 Ark. 492; Mays v. Bank, 64 Pa. 74. From these authorities, under the facts of this case, there was no such adjudication as will bind the plaintiff in error from claiming title.

We now pass to the last question: Is the plaintiff in error estopped by reason of his being a party to the proceedings, or by the knowledge possessed by Stickney, his agent? We think not. It is a well-settled rule that to constitute estoppel of this character with respect to the title of property, such as will prevent a party from asserting his legal rights, and the effect of which would be to transfer the enjoyment of property to another, the intention to deceive and mislead, or negligence so gross as to be culpable, should be clearly established. Judge STORY says: "In all this class of cases the doctrine proceeds upon the ground of constructive fraud, or of gross negligence which, in effect, implied fraud." The evidence in this case shows that Chellis had no actual knowledge that Merrick and Stickney had mortgaged that property to Tuck, and no knowledge that they had included this land in a list of their assets, and that the same was turned over to Sumner in satisfaction of his secured claim or mortgage on the land by the assignee. True, Stickney had full knowledge of these facts. He had this knowledge independent of his connection with the bankrupt proceedings as the agent of Chellis. None of this information came to him by reason of such agency, or by any act to be performed by him for Chellis. It was a knowledge he had independent of the settlement of the Chellis claim,-knowledge that he possessed because of the business transacted by himself. Then how can it be said that this knowledge must bind the plaintiff in error? He had given no power of attorney to transact or bind in any manner, save and except to compromise and settle his claim with the assignee. What fraud is brought home to him? He made proof of his claim at his home in New Hampshire; was not present at the transaction of any of the business connected with the bankrupt estate. But counsel insist that the law implies a knowledge of whatever took place in the bankrupt proceedings. That is true so far as the matters connected with the transactions in which he was interested or was bound to be interested by virtue of his claim against the estate, and no further. Davis v. Daris, 26 Cal. 23; Palmer v. Meiners, 17 Kan. 483; Brant v. Coal & Iron Co., 93 U. S. 326.

Again, Sumner did not accept this land in his settlement by virtue of any declaration or act or omission on the part of Chellis, nor in fact upon the deslarations or acts of Stickney, but he did it because it was included in his mortgage. He was resting secure, believing that Merrick and Stickney had a title to the land. He perhaps believed that from the fact that Merrick and Stickney had executed this mortgage to Tuck; but had he investigated the facts and taken the ordinary precaution to look up the records of Dickinson county, he would have been informed that Chellis had a clear title to a threefifths interest in the land. Now he asks that he be protected, when he exercised no diligence to protect himself. As we said in the start, the facts in this case are not in dispute; and as disclosed by the record they show an entire want of testimony in support of the judgment pronounced by the court. It is therefore recommended that the judgment of the court below be reversed. BY THE COURT. It is so ordered; all the justices concurring.

(37 Kan, 536)

FEDRICK . BIRKETT.

(Supreme Court of Kansas. November 5, 1887.)

VENDOR AND VENDEE-FAILURE OF TITLE-ACTION TO RECOVER PAYMENTS.

Where a purchaser of land refuses to accept a warranty deed for the land purchased when tendered by the vendor, solely on the ground that the vendor has not a good title, or that the deed is not in proper form, and subsequently brings an action to recover back a payment made by him upon the land, but makes no reference therein to any lien or incumbrance for taxes, if the defects alleged do not exist, he ought not to recover because a small amount of taxes were not paid upon the land at the time the deed was tendered, when it appears that, prior to the commencement of his action for the recovery of the payment, the taxes had been discharged.

(Syllabus by the Court.)

Error from district court, Greenwood county; CHARLES B. GRAVES, Judge. D. B. Fuller and C. N. Sterry, for plaintiff in error. T. L. Davis, for de fendant in error.

HORTON, C. J. The facts in this case are substantially as follows: On March 25, 1882, J. M. Fedrick and wife executed and delivered to Skelton Birkett a bond for a deed of 351 acres of land in Greenwood county, in this state. The bond was of the penal sum of $8,500, and was conditioned that Fedrick and wife should execute and deliver to Birkett on or before March 1, 1883, "a good and sufficient warranty deed conveying an absolute and indefeasible estate in fee-simple, with the usual covenants, in and to said tract and parcel of land." The consideration expressed in the bond was $1,500 in cash to be paid upon its execution, and $8,500 to be paid on March 1, 1883. By the agreement of the parties, the deed was to be deposited in the Eureka Bank, at Eureka, in this state, to be delivered to Birkett upon his payment of the balance of the purchase money. In February, 1883, Fedrick and wife executed a warranty deed for the conveyance of the premises to Birkett, and deposited the same in the Eureka Bank, together with the note of Birkett for the balance of the purchase money, with instructions to deliver the deed upon the payment of the note. On March 5, 1883, Birkett and his attorney met Fedrick and his attorney, and there was some talk between them about the balance of the purchase money. At this time Fedrick offered to accept the money and deliver the deed he had executed. Birkett refused to do this; claiming the deed was not good, and that Fedrick did not have a good title. Subsequently, Birkett brought his action in the district court of Greenwood county, to recover $1,500 as damages, and alleged in his petition that at the execution of the written bond the defendants did not have an absolute and indefeasible estate in fee-simple to the lands therein described, and that they

had not since that time acquired such estate and title. Trial was had before the court with a jury, which resulted in a judgment in favor of Birkett for the sum of $1,500 interest, and costs. Complaint is made of the rendition of this judgment.

Upon the trial, it was shown on the part of Birkett that, after the execution of the bond, taxes to the amount of about $70 had been levied upon the premises. These taxes were alleged to be an incumbrance upon the land, and therefore that Birkett was not required to accept the conveyance tendered him. The court instructed the jury as follows: "Taxes assessed against real estate for any year become a lien on said real estate on the first day of November of that year. If one-half () of the taxes due and payable in any year are paid on or before December 20 of that year, then the other one-half (1) is not due and payable until the following June. But if the first one-half () is not paid on or before December 20th, then the whole amount becomes due and payable, with five (5) per cent. added as penalty, and the whole amount becomes a lien on said land. If there was a tax lien on the lands in controversy at the time plaintiff demanded a deed from the defendant, then the plaintiff was not bound to accept a deed while said lien remained on the land; and in such case you will find for the plaintiff." We think these instructions, under the circumstances of this case, erroneous and misleading. Birkett was not put in possession of the land after the execution of the bond, and as that instrument required Fedrick to execute a good and sufficient warranty deed, conveying the premises to Birkett in fee-simple, with the usual covenants of title, on March 1, 1883, all taxes levied prior to that date must fall upon Fedrick, and not upon Birkett. But it appears, by the findings of the jury, that Birkett never tendered nor paid to the defendants, on or before March 1, 1883, the balance of the purchase money; and that he did not, on or before that day, demand or request a conveyance of the land under the terms of the bond. Further, that when Fedrick deposited his deed, and offered to deliver the same upon the payment of the balance of the purchase money, nothing whatever was said by Birkett concerning the unpaid taxes, and no objection was made to the acceptance of the deed therefor. The refusal was based upon the ground that the deed was not good, and that Fedrick did not have a good title. If Birkett had objected to the deed because of the tax incumbrance, Fedrick would have undoubtedly paid the same, and released the lien.

Subsequently, and on June 16, 1883, all the taxes and the penalties were paid. This action was not brought until after that date. The petition did not refer to the unpaid taxes, nor make any reference whatever to the alleged incumbrance therefor. This incumbrance was removed before this action was commenced, and long before the trial. At the time the action was commenced there was no tax lien or incumbrance against the land; and, upon the facts disclosed upon the trial, the taxes should have been wholly omitted from the instructions, and also from the consideration of the jury Indeed, a careful perusal of the whole record convinces us that the objection to the deed on account of the failure of Fedrick to pay the taxes of 1882 was an after-thought, not contemplated when Birkett talked about making a tender of the balance of the purchase money, nor even considered at the time he commenced this action to recover damages. If Birkett declined to complete his purchase upon the ground that Fedrick did not have any title, or that his deed was not in proper form, and if these alleged defects did not exist, in an action to recover back a payment made, he ought not to succeed because certain taxes were not paid, when it appears that prior to the commencement of his action these taxes had been discharged. Bell v. Wright, 31 Kan. 236, 1 Pac. Rep. 595; Welch v. Dutton, 79 Ill. 465; Ashbaugh v. Murphy, 90 III. 182. It is a rule of equity to decree a specific execution of a contract for the sale of land on the application of the vendor, if the latter is able to make a good

title at any time before the decree is pronounced; therefore, if Fedrick, within a reasonable time after March 1, 1883, had sued Birkett for a specific performance of the contract, he could have recovered if he had established his own title, and showed that he had discharged the taxes alleged to have been an incumbrance.

Again, it appears that the third finding of fact of the jury is not only contrary to the evidence, but not sustained by any testimony. Fedrick deposited with the Eureka Bank a warranty deed, with the usual covenants, for the land in controversy, before March 1, 1883, according to the terms of the bond, and was ready to deliver it to Birkett at any time, upon the payment of the balance of the purchase money There is considerable discussion in the briefs of the omission of the court to charge the jury that Fedrick had obtained title by adverse possession under the statute of limitations; but no instruction embracing this point was requested, so we shall make no comment thereon. The judgment of the district court will be reversed, and the cause will be remanded for a new trial.

(All the justices concurring.)

(37 Kan. 579)

TENNEY and another v. SIMPSON.

(Supreme Court of Kansas. November 5, 1887.)

1. PARTNERSHIP-ACCOUNTING-DIVISION OF LAND.

Where a tract of land was purchased jointly by two persons, to be subdivided and sold for profit, and not as a permanent investment, it being agreed that the legal title to the same should be taken in the name of one of the partners, who should execute conveyances for such portions of the real estate as were sold, and the terms of purchase, method of payment, and of the sale and disposition of the land, as well as the respective interest which each was to receive, were also agreed on, and all were embodied in a writing signed by both; and where, after the purchase, and after some sales had been made, and before the enterprise was fully carried out, the party in whom the legal title was placed refused to iurther recognize the rights of his partner, or to execute conveyances when sales were made: held, that the other partner may maintain an action for an accounting, and to determine the interest of each in the land remaining unsold, and to set off to each his respective share thereof; and any judgment rendered for a balance found due on the accounting from one partner may be declared a lien upon the share of land set off to him.

2. TRUSTS-EXPRESS-HOW CREATED-SEVERAL PAPERS.

No particular form of expression is required to create an express trust, nor need all the terms and conditions of the trust be declared in a single writing. They may be embraced in several papers, provided they are so referred to and connected as to clearly show that they relate to the same transaction, and together clearly point out. the nature and purposes of the trust.

(Syllabus by the Court.)

Error from district court, Wyandotte county; W. R. WAGSTAFF, Judge. This was an action to determine the rights and interest of the parties thereto to certain real estate, situated in Wyandotte county, alleged to have been purchased on joint account, and for an accounting between them for the proceeds of the sale of a portion of the real estate, and to set off in severalty to each his respective share of that which remained unsold. The action was begun on January 17, 1884, and on July 6, 1885, the cause was referred to W. T. Johnston, Esq., of Paola, Kansas, for trial, and to determine all issues, both of fact and law, his report to be filed on the first day of the succeeding term. A trial was had before the referee, and in December, 1885, he made and filed his report as follows, to-wit:

"IN DISTRICT COURT, COUNTY OF WYANDOTTE, TENTH JUDICIAL DISTRICT, STATE OF KANSAS.

“S. N. Simpson, Plaintiff, vs. Wm. C. Tenney and John F. Moors, Def'ts -Report of Referee.

"On the thirty-first day of January, 1879, Jerome B. Thomas was the owner of the following described land, situated in the county of Wyandotte, State of

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