counsel for appellants are the second and fourth. The second assignment of error is based upon the proposition that there was a material variance between the complaint and the evidence adduced at the trial, which sought to charge appellant Wilson with liability as a maker of the note. It is evident that, if the error assigned was committed, it affects appellant Wilson alone. "Where several parties unite in one assignment of errors, they will encounter defeat, unless the assignment is good as to all. If the errors affect the parties severally and not jointly, the proper practice is for each party to assign errors, for the rule is well settled that a joint assignment will not permit one of several parties to avail himself of errors alleged upon rulings which affect him alone, and not those with whom he unites in the assignment. The rule that a joint assignment of errors must be good as to all who unite in it is in harmony with the general principle of pleading which requires a demurrer, an answer, or a motion to be good as to all who join in it." Elliott, Appellate Procedure, 318; 2 Cyc. 1003, and cases cited; 2 Ency. P. & P. 933, and cases cited. The rule above stated is peculiarly applicable to this case. No attempt was made at the trial to establish a defense for the appellant corporation. There is no pretense upon the part of appellants, if error there be in the error assigned, of any injury thereby to the appellant corporation. Injury must result from the error complained of to the party complaining to effect a reversal of the judgment of the court below. Joining the corporation with himself in this appeal, appellant Wilson protected it against the execution of a just judgment against it. If he had felt aggrieved at errors committed against himself, the action being joint and several, the Code provides a method by which he might have had such errors reviewed and corrected, if they existed. The fourth assignment of error is that the court erred in entering final judgment against appellants without having disposed of the issues raised by the answer of the other three defendants. This question was not presented to or passed upon by the court below, and under the well-settled practice of this court will not be considered. Marean v. Stanley, 21 Colo. 43, 39 Pac. 1086. The judgment will be affirmed. The CHIEF JUSTICE and CASWELL, J., concur. GOODSTEIN v. FRANTZ McRAY IRON WORKS CO. (Supreme Court of Colorado. Nov. 4, 1907.) ATTACHMENT-GROUNDS-PROOF. Where, in an action for breach of contract, aided by attachment on alleged grounds that defendant fraudulently incurred the liability, and that defendant was about to fraudulently convey its property to hinder and delay its creditors, etc., a finding that plaintiff and defendant entered into a contract which was different from that relied on by plaintiff to sustain the attachment, and that, while plaintiff was entitled to recover for defendant's breach of the contract made, such breach was not fraudulent conduct sufficient to sustain the attachment, was not erroneous as a matter of law. Error to District Court, City and County of Denver; Samuel L. Carpenter, Judge. Action by A. Goodstein against the Frantz McRay Iron Works Company. From a judgment for plaintiff on the merits, but refusing to sustain an attachment, plaintiff brings error. Affirmed. C. H. Pierce and W. C. Bowen, for plaintiff in error. Charles J. Hughes, Jr., for defendant in error. MAXWELL, J. Plaintiff in error sued out an attachment against the defendant in error upon an affidavit, which, as subsequently amended, set forth that defendant was about to fraudulently convey, transfer, or assign its property or effects so as to hinder and delay its creditors, or some one or more of them; that defendant was about to fraudulently conceal, remove, and dispose of its property or effects so as to hinder and delay its creditors; and that the defendant fraudulently incurred the liability respecting which this suit is brought, by fraudulent conduct, false representations, and false pretenses. The attachment affidavit was traversed. The issue thus formed and the issues presented by the pleadings were tried together by the court without a jury. The issues in the main case were found in favor of the plaintiff, and judgment rendered thereon in the sum of $728.09. As to the attachment, the court said, in part: "With respect to the attachment, in the opinion of the court the grounds of attachment are not sustained. Counsel for the plaintiff has well said that the burden to establish this rested upon him. The first ground set up was that of fraudulent representations. I don't think the evidence sustains that proposition. I think it simply sustains the violation of the contract; nothing more. These parties entered into a contract, and it appears by the testimony of the plaintiff his own testimony, leaving the tes timony in behalf of the defendant out of the question to be a case of a contract entered in by which the respective parties were to do certain things, and that the defendant did not in all respects what he had agreed to do; and the violation of the terms does not make the contract fraudulent, nor does it amount to a fraudulent representation, either at criminal law or upon the civil side of the court." Judgment was rendered dissolving the attachment, to reverse which this writ of error is prosecuted. The sole question presented by counsel for plaintiff in error is thus stated in his brief: "The sole question which we desire to present 704 * is: Should the attachment, under the evi- value of certain scrap and pig iron delivered to defendant by plaintiff, to be made into castings by the defendant; the castings to be delivered to plaintiff in payment of cash a vanced and the material delivered defendant. Judgment was prayed for $1,541.98. The answer was a general denial and a cross-complaint, which upon the trial was stricken out. The undisputed evidence shows that plaintiff and defendant had business relations with each other from April, 1900, to January, 1902, when this suit was commenced, during all of which time defendant was indebted to plaintiff in varying amounts. Plaintiff testified that in September or October, 1901, an agreement was made between plaintiff and defendant whereby plaintiff was to advance the defendant money wherewith to conduct its business, and furnish it with certain material to be by defendant manufactured into castings, which castings were to be plaintiff's property and delivered to him upon demand, and that all of the castings to which he was entitled were not so delivered. Defendant's president, and secretary and treasurer, testified to an entirely different contract. Much documentary evidence was introduced showing the condition of the accounts from time to time. There was no direct evidence touching the attachment, but the evidence unquestionably shows that there was a contract between the parties, and the court so found. A determination of the terms of the contract rested with the court upon conflicting evidence, likewise a determination of the circumstances surrounding the parties at the time the contract was entered into, together with their intention, if any was manifest. Under such condition of the evidence the court found as above quoted. To paraphrase the opinion of the court: "Taking the testimony of plaintiff alone, these parties entered into a contract; but such contract was not the contract relied upon by plaintiff to sustain the attachment, for, while the defendant did not comply with all the terms of the contract testified to by plaintiff, such failure upon its part was not such fraudulent conduct as would sustain the grounds of attachment in this case." In other words, the court expressly found that the contract relied upon by plaintiff to sustain his attachment and testified to by him did not bring the case within the grounds of the attachment alleged. A careful examination of the record leads to the conclusion that counsel's interpretation of the opinion of the court is untenable. This being true, his whole argument falls. The judgment will be affirmed. Affirmed. The CHIEF JUSTICE and CASWELL, J., concurring. 705 BENSON, J. The plaintiff, C. W. Carson, commenced this action in the district court of Comanche county, October 4, 1904, to recover the possession of two 80-acre tracts of land to which he held the patent title. The defendant, Mortimer R. Platt, was then in possession of the land, and had been in such possession for more than five years under a tax deed recorded September 6, 1897. This deed purported to convey 480 acres, including the lands in controversy. The descriptions were of 80 and 40 acre subdivisions, all of which were contiguous, as shown upon the following plat: to set the five years' limitation of the tax law in operation, because from the descriptions given it must be presumed that the lands were not patented, held, or used as a single tract, but as several tracts. In support of this contention, it is said: "In noting the outlines of this body of land, a single farm is not suggested, nor can it occur to one that it is used and occupied as a single tract of land." It is urged that the outlines of this land, and its intersection by section lines, suggest highways, and division lines between different holders and occupants. We can arrive at such a conclusion only by a presumption, but, under the decisions of this court, presumptions and inferences are not to be indulged in to defeat, but are to be indulged in to sustain, the validity of a tax deed after it has been of record five years. Nagle v. Tieperman, 74 Kan. 53, 88 Pac. 969. It is certainly not impossible that this body of land could have been owned and occupied as an entire tract. The exterior lines of farms may be such as will suit the convenience and purposes of the owner, and no presumption of separation of contiguous lands can be indulged in, merely because of an unusual boundary. The presumption of regularity in the tax proceedings will overthrow any possible presumption from peculiarity of contour. Sections 138 and 141 of the tax law (Gen. St. 1901, §§ 7676-7680). In several of the cases in this court, where similar questions have been considered, the lands were referred to as comprising a compact body, but the tax deeds were upheld because of the presumption that the lands comprised an entire tract, and not because they were in compact form. Cross v. Herman, 74 Kan. 554, 87 Pac. 686. The fact that the plaintiff sued for only a part of this land does not tend to show that it was not sold as one tract. The plaintiff also insists that this deed is void upon its face because it does not show separately for each year the amount of taxes paid by the purchaser after the sale. The deed appears to be substantially in the statutory form in this respect, and is sufficient. Ide v. Finneran, 29 Kan. 569. The judgment of the district court will be affirmed. All the Justices concurring. (76 Kan. 462) DAVIDSON et al. v. PLUMMER. SAME v. (Supreme Court of Kansas. Nov. 9, 1907. Rehearing Denied Dec. 13, 1907.) TAXATION-INVALID TAX DEED-SALE TO PAY TAX LIEN-REDEMPTION. The holder of an invalid tax deed in possession of the real estate brought an action to quiet his title. The tax deed was held void as a muniment of title, but the lien of the taxes was preserved, and the land was ordered sold and was sold to satisfy it. Held, the redemption act (chapter 109, p. 188, Laws 1893) has no application to such a sale, and neither the defendant owner nor the holder of a mortgage lien has any right to redeem therefrom. (Syllabus by the Court.) Error from District Court, Stanton County; William Easton Hutchison, Judge. Action by the J. P. Cattle Company against C. L. Davidson and A. M. Allbe, and by the Dr. Rea Cattle Company against C. L. Davidson, and by John Plummer against C. L. Davidson. Judgments for plaintiffs, and defendants bring error. Affirmed. J. A. Brubacher, for plaintiffs in error. Geo. J. Downer and Geo. Getty, for defendants in error. At BURCH, J. The J. P. Cattle Company commenced an action against C. L. Davidson and many other defendants to quiet its title to a large number of tracts of land. The petition alleged that the plaintiff was he owner in fee simple and in the actual and peaceable possession of all the land brought into controversy. Davidson answered, admitting the plaintiff's possession, but denied its title, claimed mortgage liens upon some tracts which he asked to have Zoreclosed, and claimed to be the owner of other parcels, the possession of which he demanded. the trial the plaintiff's title was found to be based upon tax deeds which were declared to be void as muniments of title, but the lien for taxes was preserved. Davidson was adjudged to be the owner of the tracts to which he claimed title and was declared to be entitled to possession of them upon payment of taxes. His mortgages upon other tracts were foreclosed and sales ordered after six months. The court further decreed that, if the plaintiff's tax liens were not discharged within 60 days from the rendition of the judgment, the tracts of land to which they attached should be sold according to law for their satisfaction, and in due time sheriff's sales were made in execution of this provision of the judgment. Upon confirmation, the court ordered sheriff's deeds to be made. Davidson prosecutes error, claiming the redemption act of 1893 (Laws 1893, p. 188, c. 109; Gen. St. 1901, § 4927 et seq.) applied, and that certificates of purchase alowing redemption should have issued, instead of deeds. The question is one of statutory interpretation. Section 25 of the redemption act (Gen. St. 1901, § 4951) reads as follows: "The provisions of this act shall apply to all sales under foreclosure of mortgage, trust deed, mechanics' lien, or other lien, whether special or general, and the terms of redemption shall be the same." The words "other lien," "special or general," are sufficiently inclusive to sustain the claim of the plaintiff in error, but the purpose of the law cannot be determined from them alone. Other provisions of the statute and the causes which led to its enactment must be considered. Al though the decision in Beverly v. Barnitz, 55 Kan. 466, 42 Pac. 725, 31 L. R. A. 74, 49 Am. St. Rep. 257, was subsequently reversed, Chief Justice Martin, in delivering the opinion of the majority of the court, correctly stated the real occasion for the enactment of the law and the primary object to be attained through its instrumentality: "From causes upon which all do not agree, and that we need not discuss, the burden of a private debt has been enormously increased of late years. Farms valued five years ago both by borrower and lender at $3,000 or $4,000, and mortgaged for $1,000, are now knocked down under the sheriff's hammer for less than the mortgage debt; the accumulations of a lifetime being often swept away by the shrinkage, and this through no fault of the mortgagor. Now, may not a state Legislature take cognizance of such a condition of affairs and prescribe a rule, for application in its courts, regulating the equity of redemption, and even extending it beyond the time formerly allowed? In other words, why may it not, in a time of general depression, reasonably extend the indefinite estate impliedly reserved by the mortgagor, as the federal courts of equity do in particular cases, beyond the six months allowed by the general practice? This reserved estate belongs to the mortgagor, and because of its indefinite duration the Legislature ought to have power to regulate it, within reasonable bounds, so as to protect the interests and equities of both debtor and creditor." True, a nortgagor might not at the time of sale be the owner of the premises he had incumbered, and other than mortgage liens upon land were considered; but mitigation of what was then spoken of as "the mortgage evil" was paramount in the legislative mind, and the oppression of debt was in all cases the mischief to be remedied. A consideration of all the various provisions of the law discloses that this purpose was consistently carried out, and that in its entirety it is essentially a debtor and creditor act, and that the liens, general or special, to which it makes reference, are those arising from obligations created in or connected with dealings between private parties. It s well established ooth upon reason and authority that taxes are not debts in the usual sense of the term. The law relating to assessment and taxation makes elaborate provision for the collection of taxes and the protection and enforcement of tax liens. The redemption act does not purport to modify or repeal any portion of this law, and is not inconsistent with any of its provisions. The difficulty, if not the absurdity, of attempting to apply the redemption act in this case, is quite apparent. The cherished object of the redemption act, as expressed in section 2 (section 4928, Gen. St. 1901), is that the defendant owner shall enjoy the possession of real estate charged with a lien during the period of redemption. To give Davidson the benefit of this provision it would be necessary to oust the plaintiff, and this would nullify section 142 of the tax law, which secures to the holder of an invalid tax deed possession of the premises until he is reimbursed for the taxes represented by his deed. Certainly the Legislature contemplated no such action. The remedy by way of the foreclosure of tax liens is supplementary to the act relating to assessment and taxation, but is not of statutory creation. It is a device of courts of equity to accomplish justice in particular instances. Whether or not it shall be used, and if used to what extent, is a matter for the sound discretion of the court in each case. The subject is so far outside the general law relating to the enforcement of liens that doubtless it would be within the power of the court to order a strict foreclosure of the right of redemption from the lien of a tax deed holder in possession. By the remedy noted the courts afford to individuals substantially the same relief respecting tax liens that chapter 392, p. 705, Laws 1901 (Gen. St. 1991, § 7718 et seq.) gives to the board of county commissioners when real estate has been bid in by the county at a tax sale, and has remained unredeemed, and the certificate of sale has remained untransferred for a period of 31⁄2 years. The judgment in each case is simply for the foreclosure of a tax lien. When the county board is plaintiff, the landowner's rights are cut off absolutely by the sheriff's deed. No good reason can be suggested for allowing a landowner an additional 18 months in which to redeem, when the foreclosure is made at the suit of an individual to whom the lien has passed. The statute cited is an indication of the policy of the Legislature upon the subject under consideration and affords additional ground for believing the Legislature did not intend, by the redemption act, to enlarge the rights of a defendant owner to any extent as against a tax deed holder in possession. The owner of land having no right of redemption, a simple mortgagee can have none. The case of Shrigley v. Black, 66 Kan. 213, 71 Pac. 301, is cited by the plaintiff in error. It has no application. In that case a sale with redemption had been made, and all parties to the litigation treated it as lawful. Then redemption was made by parties under obligation to pay the taxes for which the land had been sold, and the only question open for decision was the effect of the redemption upon a mortgage lien. However, the court took occasion to express a doubt whether the redemption law was intended to make inroads upon the tax law without in any way referring to it. The foregoing considerations dispose of the claims of other plaintiffs in error, and also dispose of cases No. 14,911 and No. 14,913, Davidson v. Plummer and Davidson v. Dr. Rea Cattle Co.: and the judgments in the three cases are affirmed. LINCOLN MORTGAGE & TRUST CO. v. DAVIS. (Supreme Court of Kansas. Nov. 9, 1907.) 1, TAXATION-TAX DEED-VALIDITY. In the case of a tax deed covering several tracts, which has been of record for five years, the failure to add to the statutory form (which includes but one description) words showing explicitly that the recitals are meant to apply to the tracts severally, and not collectively, is not fatal. Such omission results, at most, in an ambiguity, and a construction must be adopted which will uphold the deed. [Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 1519-1522, 1544.] 2. SAME-TAX SALE-ASSIGNMENT OF CERTIFI The compromise act, which authorizes the county commissioners, where property offered at tax sale remains unsold for three years for want of buyers, to cause a certificate to be issued for less than the full amount due thereon, does not violate the constitutional requirement that the rate of assessment and taxation shall be equal; nor is its title insufficient: nor is it void as an attempt to devolve judicial powers upon administrative officers. [Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional Law, §§ 143-145; vol. 44. Statutes, §§ 127, 173.] (Syllabus by the Court.) Error from District Court, Seward County; Wm. Easton Hutchison, Judge. Action between the Lincoln Mortgage & Trust Company and Robert Davis. From the judgment, the trust company brings erAffirmed. ror. Francis C. Price, for plaintiff in error. Sutton & Seates and Albert Watkins, for defendant in error. MASON, J. This case turns upon the question whether the trial court erred in holding a tax deed, which had been of record more than five years, to be good upon its face. Two deeds were in fact involved, covering different tracts, but, as they were substantially similar in form, the discussion may be confined to one of them. The deed covered several separate tracts and contained these recitals: "And whereas said property could not be sold for the amount of tax and charges thereon, whereas said lands have remained unredeemed for three years and no person has offered to purchase the same for the taxes, charges and interest thereon." * * * and It is argued that this language implies merely that all of the tracts together could not be sold for the total amount against them, and falls short of showing that as to each description there was a failure to sell |