"1.
That on the 2d day of July, 1860, the president of the United
States, being thereunto duly authorized and lawfully
empowered, did duly execute and deliver to James H. Mauzey a
patent in writing of that date for the land in controversy,
and thereby granted and conveyed to said James H. Mauzey, his
heirs and assigns, the said tract of land described in
plaintiff's petition.
"2.
The said land was subject to and duly assessed for taxation
in Brown county, Kansas, for the year 1867. The taxes for
that year were not paid, and the land was duly sold by the
county treasurer of Brown county aforesaid for such
delinquent taxes on the 5th day of May, 1868, and on the 14th
day of June, 1880, the county clerk of said Brown county
executed, signed, sealed, acknowledged and delivered to the
said S. K. Linscott a tax deed in writing of that date for
said tract of land in controversy, which tax deed was based
upon the sale of land made by the county treasurer of Brown
county aforesaid on the 5th day of May, 1868, at the county
seat of Brown county aforesaid for the delinquent taxes,
charges and penalties then due and remaining unpaid thereon
for the year 1867. The said tax deed is in due form of law,
and all the requirements of law relative to the assessment
and taxation of land were fully complied with in the matter
of the assessment and taxation of said land for the year
1867, and in the matter of the sale thereof and proceedings
thereon up to and including the execution, acknowledgment,
sealing and delivery of said tax deed to the plaintiff.
"3.
On the 24th day of June, 1881, the said James H. Mauzey and
Margaret Mauzey his wife, made, executed, acknowledged and
delivered to the plaintiff a deed in writing of that date for
said tract of land.
"4.
On the 21st day of April, 1863, Sarah J. Mauzey, who was then
the wife of said James H. Mauzey, obtained a judgment and
decree against said James H. Mauzey in the district court of
Jackson county, state of Kansas, adjudging and decreeing that
the marriage between said Sarah J. and James H. Mauzey be
dissolved, that she be restored to her maiden name, and have
the custody, nurture, education and control of the minor
children of the marriage, and enjoining said James H. Mauzey
from interfering with her in the nurture, education and care
of said children, and also that she have and recover of said
James H. Mauzey the sum of $ 500 alimony, and all costs. But
said judgment and decree did not award to said Sarah J.
Mauzey any other alimony except said sum of $ 500, and did
not declare the same to be a lien on any specific property,
or adjudge that any specific property be sold to satisfy the
same, nor was the tract of land in controversy in this action
mentioned or referred to in said judgment and decree. [To
which findings of fact the plaintiff at the time excepted.]
"5.
On the 24th day of April, 1863, the said Sarah J. Mauzey
caused an execution to issue on her said judgment, directed
to the sheriff of Brown county, state of Kansas, for said sum
of $ 500 and costs, and under said execution the sheriff of
said Brown county, on the 5th day of May, 1863, levied on the
premises here in controversy, and on the 20th day of June,
1863, sold the same at sheriff's sale to said Sarah J.
Mauzey, and issued to her a certificate of such sale. Said
sheriff's sale was confirmed by the court, but no
sheriff's deed ever issued thereon. The said execution
upon which such levy and sale were made was in form an
ordinary execution for money only, and did not contain any
order or command directing the sale of any specific property
to satisfy the same.
"6.
The said land was not subject to taxation for the year 1859,
but was assessed in said Brown county for taxation for that
year, and on the 4th day of April, 1864, there was executed
to one H. M. Robinson an instrument in writing purporting to
be a tax deed based upon a sale of said land on the 11th day
of September, 1860, for delinquent tax for the year 1859.
"7.
The said Sarah J. Mauzey (now Anderson) and her husband John
M. Anderson executed a warranty deed for said land to A. J.
Reid on the 22d day of April, 1865. H. M. Robinson and wife
executed a quitclaim deed for said land to A. J. Reid on the
16th day of June, 1865. A. J. Reid executed a warranty deed
for said land to P. B. Rust on the 2d day of June, 1869. P.
B. Rust executed a bond for a deed to Allen Calkins and Wm.
Dunn on October 11, 1869, for said land. Wm. Dunn and wife
executed a quitclaim deed for said land to Allen Calkins
December 7, 1869. P. B. Rust and wife executed a warranty
deed for said land to Allen Calkins on the 6th day of
December, 1869. Allen Calkins and wife executed a deed for
said land to Wm. R. Benton on the 14th day of August, 1871.
Wm. R. Benton and wife executed a warranty deed for said land
to the board of regents of the Kansas state agricultural
college on the 15th day of June, 1875, and the said board of
regents executed a bond for a deed to the defendant, Frank
Purcell, on the 11th day of January, 1879, for said land.
"8.
The premises in controversy were entirely vacant and
unoccupied from the fall of 1863 until 1870, when said Allen
Calkins entered into possession thereof, and he and his
grantees have ever since that time been in possession
thereof.
"9.
The board of regents of the state agricultural college and
Frank Purcell have been in the possession of said premises,
and the defendant Frank Purcell has received all of the
rents, issues and profits thereof for two years last past,
and wholly deprived the plaintiff of the same. The said rents
and profits for one year next preceding the commencement of
this action amount to the sum of $ 100, and since the
commencement and during the pendency of this action amount to
the sum of $ 75.
"10.
On the 19th day of August, 1880, the board of regents of the
Kansas state agricultural college commenced an action in this
court against J. G. Porterfield, county clerk of Jackson
county, Kansas, and others, to enjoin the issuing of a tax
deed based upon a sale of said land in September, 1877, for
taxes thereon for the year 1876, and a temporary order of
injunction was on the 19th day of August, 1880, granted and
served on said Porterfield, enjoining him from issuing such
tax deed during the pendency of said action, which said
temporary injunction is still in force; that said
Porterfield, in disobedience of said injunction, did, on the
2d day of October, 1880, execute and deliver a tax deed based
upon said sale of said land in September, 1877, for taxes of
1876, to one W. W. Gavitt, and on the 12th day of December,
1880, the said W. W. Gavitt, in consideration of $ 200, to
him paid by said Porterfield, and at Porterfield's
request, executed a quitclaim deed for said land to the
defendant C. W. Noble.
"11.
The board of county commissioners of said Jackson county, at
the July session, 1877, on the 5th day of July, 1877, let the
county printing for the next ensuing year to the proprietors
of The Holton Recorder, upon an agreement to pay only
three-fourths legal rates for printing the delinquent
tax-sale notices.
"12.
A fee of twenty-five cents was charged against said land for
printing delinquent sale notice, upon the sale thereof in
September, 1877, for tax of 1876.
"13.
School District No. 55, Jackson county, Kansas, includes the
land in controversy, and did include the same in 1876, and at
the annual school meeting of said school district, held in
August, 1876, a tax was levied on all the property in said
school district, as follows: For building fund, one per
cent.; for teachers' wages, three mills; for incidental
fund, one and one-half mills. This tax levy was included in
and constituted a part of the tax on the premises in
controversy for 1876, and for which the land was sold in
September, 1877.
"14.
The said C. W. Noble paid no consideration for said quitclaim
deed from W. W. Gavitt, but holds his claim of title
thereunder solely as a matter of accommodation for said
Porterfield.
"15.
The taxes on said land for the years 1876, 1877, 1878 and
1879 were paid by W. W. Gavitt, and together with the
penalties, interest, and all costs to date, amount in the
aggregate to the sum of $ 231.38.
"16.
The defendant Purcell paid the taxes on said land for the
years 1880 and 1881, amounting in the aggregate to $
40."
