"FINDINGS
OF FACT.
"This
is an action in ejectment, brought by the said plaintiffs
against the defendants to recover possession of the southeast
quarter of section sixteen (16) in township one (1), of range
thirty-four (34), in Rawlins county, Kansas, and for the
rents of the same. At the March, 1908, term of the court a
jury was duly waived by all the parties and the trial was had
to the court. At the same time the parties in this action
and also the parties in the action number 2675, pending in
this court, in which the plaintiffs in this action are also
plaintiffs, and Fred Howard and John Nevil are defendants
agreed in open court that whatever the judgment and decision
of this court might be in this first-mentioned action, No
2676, the same should be held and considered to be applicable
to, and a determination of, the last-mentioned case, all
parties waiving a jury in said action as in the first. This
action having been duly submitted to the court, the same was
by the court taken under advisement until the November, 1908,
term of this court.
"(1)
The land involved in this suit is what is known in this state
as school land, and the plaintiffs claim title thereto under
the original purchaser thereof, and from assignments had from
him and his grantors, and the defendant, C. F. Howard, claims
title and ownership to the land by virtue of certain tax
proceedings and schoolland contract sale hereinafter referred
to.
"(2)
On the 22d day of December, 1884, a certificate of purchase
was, by the county clerk of said Rawlins county, duly issued
to a qualified purchaser for the sum of $ 480, and the
purchaser at that time duly paid the one-tenth thereof, being
$ 48, and by a succession of assignments one John H. Hagener
became the owner of certificate of purchase and all rights to
the land thereby contracted for or conveyed. The said Hagener
became such owner on the 28th day of October, 1901.
"(3)
Some time prior to the sale of land for taxes in said county,
on September 3, 1901, the provisions of chapter 162, Laws of
Kansas of 1891, being paragraph 7659 of the General Statutes
of the state of Kansas for 1901, were duly adopted by said
county, and such law so adopted remained in full force and
effect during all the years relating to the tax proceedings
hereinafter mentioned.
"(4)
On the 3d day of September, 1901, at a sale of lands for said
county for delinquent taxes, the said land was by the county
treasurer of said county of Rawlins, under and by virtue of
the provisions of said chapter 162, Laws of Kansas for 1891,
bid off in the name of said county for the delinquent taxes
of the year 1900, for the sum of $ 14.80, and afterward, and
on September 28, 1903, the county clerk of said county
assigned the tax-sale certificate to said land to defendant
C. F. Howard for the sum of $ 19.90.
"(5)
The said sale of lands was had and held under and by virtue
of a notice of such sale, in words and figures as follows:
'Delinquent Tax List. Office of county treasurer, Rawlins
county, Kansas. Atwood, Kan., July 15, 1901. Notice is hereby
given that taxes for the year 1900 on the following land and
town lots remain due and unpaid, and so much of each lot or
parcel of land as may be necessary will be sold at the county
treasurer's office at public sale on the first Tuesday in
September, 1901, and the next succeeding days, for the taxes,
costs and penalties. F. L. Schwab, county treasurer.'
Then follows a list of this and other lands.
"(6)
Proof of the publication of this notice was never transmitted
or deposited in the county clerk's office of said county.
As a part of the costs of the assignment of said tax-sale
certificate, and included therein, were the costs of sale of
said land for the years of 1902 and 1903, and a redemption
fee of fifty cents.
"(7)
That upon these tax proceedings the county clerk of said
county executed to defendant, Howard, a certificate of
purchase of school land, upon the 28th day of September,
1903; afterward, and on December 18, 1903, the said clerk
issued to defendant Howard a renewal certificate of purchase,
in place of the former, and by virtue thereof defendant
Howard entered into possession of said land and has ever
since held possession thereof and received the rents thereon.
Defendant Nevil makes no claim by answer, or otherwise, in
this case. Upon these tax proceedings and certificate of
school land issued by virtue thereof defendant Howard claims
the right to said land.
"(8)
In 1904, and prior to November 12 of said year, the said John
H. Hagener was in the United States district court, southern
division of the state of Illinois, and, by virtue of the
judgment and order thereof, duly adjudged a bankrupt, and all
of his property, including the said certificate of purchase
of the land involved in this action, was placed in the hands
and custody of said court as the property and assets of said
bankrupt's estate, and one R. R. Hewitt was duly
appointed and qualified as the trustee of said bankrupt's
estate, and he duly entered upon his duties as such officer.
"(9)
That on the 12th day of November, 1904, by virtue of an order
made by said court so to do, a public sale, at the city of
Beardstown, in the state of Illinois, was had, by the said
trustee, of the assets of said bankrupt, including the said
certificate of purchase, and at such sale one Henry Fraumann
offered by his bid the sum of $ 115 for said certificate of
purchase and some other property of said bankrupt, and the
said bid was, by the said trustee, accepted, and the sale
being afterward reported to said court, the same was approved
and confirmed by said court, and by virtue thereof the said
trustee, on November 30, 1904, assigned and delivered the
said certificate of purchase to the said Henry Fraumann.
"(10)
That afterward the said Henry Fraumann and his wife, on July
19, 1905, sold, assigned and transferred and delivered the
said certificate of purchase and his right to any rents of
said lands, if any he had therein, to plaintiff, Fred
Robertson, and thereafter, and on the 5th day of August,
1905, the said Fred Robertson and wife sold, assigned and
delivered an undivided half interest in and to said
certificate to said land, if any he had, as well as an
undivided one-half interest in and to any rents or profits he
had therein, to the said W. J. Ratcliff.
"(11)
That thereafter, and on the 19th day of June, 1907, the said
John H. Hagener and wife made, executed and delivered to the
plaintiffs a quitclaim deed to said land, and also their
assignment of said certificate of purchase, as well as their
rights, if any, in and to any rents and profits of said land.
"(12)
That upon the 20th day of November, 1907, the said John H.
Hagener was duly discharged as such bankrupt from all his
debts provable under the bankrupt law, and therafter, and on
the same day, the said R. R. Hewitt, as such trustee, was
duly discharged and the said bankrupt proceedings were fully
and finally closed up and disposed of.
"(13)
That said John H. Hagener and his grantors paid all the taxes
upon said land up to the year 1900, and caused to be broken
all of land, before the defendant acquired his tax-sale
certificate to said land.
"(14)
On August 15, 1905, plaintiffs tendered to the county
treasurer of said county the sum of $ 630 lawful money, $ 170
of which was for the benefit of defendant Howard, and which
was the full amount that was then due the state of Kansas,
the said county of Rawlins and the defendant, Howard, each of
which tenders were refused, although they fully covered
everything that was then due, and such tenders have ever
since been held good.
"(15)
That thereafter, and on the 5th day of January, 1907, in an
action then pending in the supreme court of the state of
Kansas, in which the plaintiffs herein were plaintiffs and
the county treasurer of said county was defendant, a
peremptory writ of mandamus was by said court issued to said
county treasurer to take the said money so tendered to him by
said plaintiffs, the said $ 630, and as such officer receipt
therefor, which he did, and such order, so far as the receipt
and acceptance of such tender is final only as to the parties
to said action, and thereafter and before the commencement of
this action a patent for said land was issued to plaintiffs.
"(16)
That the rents and profits of said land, so far as received
by defendant, Howard, amount to the sum of $ 150, and the
rental value of said land is $ 50 per annum.
"CONCLUSIONS
OF LAW.
"(1)
The plaintiffs, Fred Robertson and W. J. Ratcliff, by virtue
of the various conveyances, assignments and certificates
executed and delivered to them by the various parties named
in the special findings of fact, and by the acts done by them
therein stated, have acquired a full and complete title and
ownership in and to the land described and are the owners of
the same, and are entitled to the possession thereof.
"(2)
That as the board of county commissioners of Rawlins county
has adopted the provisions of chapter 162, Laws of Kansas
1891, being paragraph 7659 of the General Statutes of the
state of Kansas for 1901, and the same...
