THE HOLL.\ DolY CASE.
841
On this suggestion, White seems to have advancl::d the $2,000, wbich Effinger tacitly accepted, and thereafter looked to what might be obtained in the suit as the measure and means of any further compensation. Certainly it was never in the contemplation of the parties that this large compensation was running on from month to month, and year to year, while the suit was much of the time at a stand-still. Effinger testifies that when judgment was obtained in the supreme court he purposed to apportion it between White, Elliott, and himself; but the latter immediately 'repudiated his claim and White's also; whereupon, as a protection for both himself and White, he fell back on his contract, and filed the notice of lien accordingly. And the controversy between these two is now, apparently, a friendly one, and may be adjusted by them irrespective of the action of this court. An ullconditional fee of $5,000, promptly paid or secured, would, in my judgment, be a reasonable compensation for Mr. Effinger's services. But if the compensation was wholly contingent on success,dependent on making the money out of the litigation,-.$10,000 would not be an unreasonable fee. After 1874, Effinger's compensation was practically contingent, not only on getting a decree, but in realizing on it. This delay and risk mllst be considered in fixing the amount of this contingent compensation. In addition to the $3,450 he received prior to 1875, I will allow him the sum of $5,000, with legal interest from August 15, 1879, the date of the judgment, which amounts to $7,871.85. The defendant Joseph Holladay states in his answer that he has "no knowledge, information, remembrance, or belief" as to the alleged contract and assignment, or the payment of any money thereunder by White, "wherefore he denies" the same. On the hearing he claimed the benefit of this denial as being evidence against the existence of such writings and the making of sl1ch payments. 'rhis allegation is a motley of code and equity pleading, but not proper under either. The Code "does allow a defendant to controvert an allegation in the complaint by denying "any knowledge or information thereof sufficient to form a belief," but not on that acqount to deny the allegation itself. In equity a defendant who has no knowledge, information, or belief concerning the matter of an allegation shonld say so; and this is sufficient to put the plaintiff on the proof thereof. But such an answer is not evidence that requires at least one witness and corroborating circumstances to overcome. It is a mere negation, and proves nothing; and the addition, "wherefore he denies the same," amounts to nothing except to stultify the defendant; for how can a party truthfully deny an allegation of which he has just affirmed he has not even a belief. Clark v. Van Riemsdyk, 9 Cranch, 160; Brooks v. Byam, 1 Story, 301; Dutilh v. Coursltult, 5 Cranch, C. C. 351. At the close of the argumept, counsel for Holladay also filed a motion to suppress the copies of the agreement and assignment, marked
842 KNOX,
FEDERAL REPORTER,
in the margin, respectively, Exhibits "A" and "B," "GEORGE T. Notary Public," and attached to the commission on which the depositions of the plaintiff and Martin White were taken. Both witnesses were asked about the contract and assignment. White, who was examined iirst, after answering that he had not the originals in his possession, added: "But I herennto attach a certified copy" of said agreement and assignrrtent, marked Exhibits "A" and "B." Hickox testified that the original contract and assignment were in his possession, and spoke as if he had them there in the presence of the commissioner, and added: "Under advice, I prefer to retain" them, "but a certified copy is attached hereto;" and, in the case of the assignment, he gave the place, book, and page of its record in Oregon. There is but one Exhibit A and B attached to the commission, and that is doubtless the one to which both witnesses refer, and which was probably furnished by Hickox. They are true copies of the agreement and assignment mentioned in the bill, and set out in the pleadings, in the case of White v. Elliott, and are doubtless what they purport to be,-true copies of the original writings in the possession of Hickox. Attached to each exhibit is the certificate of Edward Chattin, a notary public and commissioner for Oregon, to the effect that he had compared it with the original in the possession of Hickox, and that it was a true copy thereof. Had the officer who took these depositions done so in due form of law, it would appear therefrom that the witness produced the original writings before him, and identified them; but, not desiring to giv.e up the possession, he allowed the commissioner to take copies of them, which the latter attached to the commission, with his certificate that they were true copies of the original writings produced by the witness, and referred to in his testimony. Dundee, etc., Co. v. Cooper, 26 Fed. Rep. 665. Discarding the certificate of Chattin, who was a mere volunteer, and without authority in the premises, it does a.ppear, at least inferentially, that the witness Hickox, in whose custody the original writings then were, produced them before the commissioner, and furnished him with what he testified were true copies of the same; and that the commissioner, either on the strength of that statement or his own examination, and it may be on both, indorsed said copies as the Exhibits A and B referred to in the testimony of White and Hickox, and attached them as such to the commission, with the depositions. That all this is technically insuffident, for lack of an express certicate by the commissioner that he had compared the alleged copies with the originals, and found them correct, may be admitted. But the objection is one that cannot be made at the hearing. It should have been made by a motion to suppress before the cause was set for hearing, when, if allowed, the misbke might have been corrected by retaking the depositions. When cause is set for hearing all technical objections to the reading of
THE HOLLADAY CASE.
843
the testimony on file are waived. York Co. v. Central R. R., 3 Wall. 113; Blackburn v. Crawfords, Id. 191. See rules 27 and 28 of this court. The answer of Holladay also contains an allegation in bar of this suit, to the effect that on November 7, 1883, and prior to the commencement thereof, the circuit court of the state for the county of Mnltnomah, in a suit then pending therein between Ben Holladay and Joseph Holladay, appointed a receiver of all the property mentioned in the bill herein, who is now in possession of the same as such receiver, which suit is still pending in said court. In support of this defense counsel submit the proposition that while property is in the hands of a receiver appointed by a court, no other court can acquire or take jurisdiction of a suit concerning such property, and cites a number of authorities in support thereof. But the proposition is altogether too broad, and is unsupported by the authorities cited. The receiver has no right in the property, but only the possession thereof. So long as that is not disturbed or questioned, parties may litigate in the same court, or elsewhere, questions concerning the ultimate right and title to the property. And therefore, notwithstanding the suit of Holladay v. Holladay, and the possession of the receiver therein, this court may take jurisdiction of a suit to set aside or postpone an alleged fraudulent conveyance of any of this property by Ben Holladay which hinders or delays the plaintiff in the enforcement of his judgment against said Holladay. In Buck v. Oolbllth, 3 Wall. 334, this ql\estion is examined by Mr. Justice MILLER, and the conclusion reached that the rule, among courts of concurrent jurisdiction, that the one which first obtains jurisdiction of a case has the exclusive right to decide every question arising therein, is subject to limitations. See, also, Andrews v. Smith, 19 Blatchf. 100; S. C. 5 Fed. Rep. 833. 'l'he object of the suit in the state court between the two Holladays is not stated in the answer. But, in the nature of things, it cannot involve the matters in controversy here, and particularly the question of whether the plaintiff is entitled, as a creditor of Ben Holla. day, to have these conveyances to Joseph Holladay set aside or post. poned in favor of the judgment against the former. If this court should find that these conveyances were made with intent to hinder and delay the plaintiff in the collection of his demand, under such circumstance as makes the grantee therein a participant in the fraud, it would be its duty to decree that they be set aside or postponed in favor of the plaintiff's judgment. So far there would be no interference with the process of the state court or the possession of its receiver. Whether this court will stop there, and remit the plaintiff to his execution out of the same state court on his judgment therein, or provide for the sale of so much of the property by a master as may be sufficient to satisfy the same, together with the costs incurred in this court, will depend on circumstances. The latter course cannot
844
FEDEltAL REPORTER.
be pursued while the receiver is in charge, for that would necessarily interfere with his possession. But so long as the plaintiff's right to enforce the judgment, and for the amOl1nt found due him, depends on a decree of this court, it is proper, and very convenient, that any disposition of the property in question to satisfy the same should be made on its process. And provision may be made in the decree that the sale shall be delayed until the receiver is discharged, or that the plaintiff may apply, all the footing of the decree, for an order of sale as soon as such discharge takes place. The defendant Joseph Holladay also makes the further points against the plaintiff's right to relief: (1) The bill does not allege, and it is not shown, that there was any debt due from Ben Holladay to the plaintiff or his assignor prior to the date of the conveyances sought to be set aside, or any of them; (2) it does not appear that any execution has ever been issued on the decree against Holladay; and (3) there is no evidence that Holladay is insolvent and unable to satisfy the decree, except from the property in question. The bill alleges that on November 5, 1869, and long prior to the date of any of the conveyances to Joseph Holladay, that a suit was commenced by Ben Holladay against Elliott, to dissolve the partnership of Holladay & Co., and for the settlement of its accounts, in which a final judgment was given in the supreme court dissolving said part. nership as of the date of the commencement thereof, and that Elliott recover from said Holladay the sum of $21,919.46, and costs; and the answer of the defendant Holladay admits the allegation, word for word. The allegation might have been more specific, and stated that the sum recovered represented the indebtedness of Ben Holladay to his copartner Elliott at the commencement of the suit. But such is the necessary implication of the allegation as it stands. The indebtedness must have existed on November 5, 1869, from which time the court determined the partnership was dissolved, and the liability of its members to one another ascertained. And the proof to that effect is full and specific. By the decree of the supreme court it is found that the amount for which it is given was a debt, with the interest thereon, due Elliott from Holladay before the' commencement of the suit. Admitting that a mere judgment for money is not evidence of an earlier indebtedness, (Bump, Fraud. Conv. 557,) still it may appear from the findings of the court, or other proceedings in the case anterior to the judgment, how long the indebtedness existed prior thereto. In Hinde v. Longu·orth, 11 Wheat. 211, which was a controversy between lL party claiming under a VOluntary deed of March, 1799, and one claiming under a money judgment of Augnst, the same year, against the grantor therein, the court held that while the mere judgment did not show that the plaintiff therein waE! a creditor prior to the execution of the deed, without which he could not impugn the
845
same for fraud,.(Sexton v. Wheaton, 8 Wheat. 242,) that the accounts on which the judgment was founded, and which were in the record, did show that the cause of action arose before the execution of the deed. See, also, Goodnow v. Smith, 97 Mass. 69. The alleged fraudulent conveyances. are about 20 !n number, and appear to have been made from November, 1875, to April, 1879, while both the allegation and the proof are satisfactory that the indebtedness existed at and prior to November 5, 1869. The issue of an execution, and the return of nulla bona thereon, is considered sufficient evidence of the insolvency of the judgment debtor, and that the judgment creditor is remediless at law. But it is not the only evidence of that fact, nor, in my judgment, always the best. The authorities are in apparent conflict on this question. Wait, Fraud. Conv. § 68; Bump, Fraud. Cony. 518-527. But where the diversity is not the result of local legislation, I think the apparent conflict arises from confounding creditors' bills to subject personal property to the satisfaction of a judgment with an ordinary bill in equity to set aside or postpone a conveyance of real property on which the plaintiff's judgment is, as against his debtor, a lien without an execution. In the latter case the right to maintain the suit is based on the unsatisfied judgment, the fraudulent conveyance, and the insolvency of the debtor; which latter fact may be proved by any competent evidence, as well as a return of nulla bona on an execution. In Hodges v. S. H. Mining Co., 9 Or. 200, it was held, in ,a suit against a stockholder ofa corporation on a corporation debt, that the insolvency of the corporation might be shown as any other fact, without an execution or even a judgment against it. Terry v. Tubman, 92 U. S. 156, was an action against a stock. holder of a bank to recover the amount of certain unredeemed bills of the corporation. The court held that the insolvency of the. bank might be shown otherwise than by a judgment and an unsatisfied execution. Case v. Beauregard, 101 U. S. 688, was a creditors' bill against the members of an insolvent firm. The court said that a judgment and a fruitless execution are not the only evidence that a creditor has exhausted his legal remedy. "They aFe not the only possible means of proof. The necessity of resort to a court of equity may be made otherwise to appear." In McCalmont v. Lawrence, 1 Blatchf. 232, Mr. Justice NELSON held that "chancery has jurisdiction, on a bill filed by a judgment creditor for relief against a conveyance of lands by his debtor, made with intent to defeat the judgment lien, or to hinder or delay satisfaction of the judgment, whether execution has been issued thereon or not." See Bt:lOP, Fraud. Cony. 523. The insolvency of Ben Holladay is confessed. The bill alleges that he has no property in Oregon in his own name, and has not had since the date of Baid decree, out of which the Bame could be
FEDERAL REPORTER.
satisfied by execution or other legal process against him; and that he is insolvent, and unable to pay said decree, except out of the pr0perty in question. This allegation is expressly admitted in the answer, except that the defendant says he "has neither knowledge, information, or remembrance .sufficient to state whether or not the said Ben Holladay is insolvent, or unable in fact to pay the said decree except out of the property described in the bill of complaint." This allegation of want of knowledge is not evidence, and proves nothing. It is also noticeable that the defendant omits to state, as he I3h0uld, whether he has any belief on the subject or not. But in his evidence he says, over and over again, that Ben Holladay was a ruined man financially when he left Oregon in the fall of 1877; that during his stay in Washington the following four years he allowed him five or six thousand dollars a year, out of the profits of the mill property, to keep him from starving. But the admission in the answer that Ben Holladay had no property in Oregon out of which said decree could be made by legal process, is sufficient. That is all a return of nulla bona on an execution would show, and either is sufficient evidence of insolvency for the purpose of this procceeding. It matters not how much property he may have out of this state, or beyond the process of its courts. This disposes of the case, except as to the question of fact, did Ben Holladay make the conveyances and transfers in question with intention, to hinder and delay his creditors, and did Joseph Holladay receive them with notice of such design, or good reason to believe the same? It is impossible for any nnprej udiced mind to give any other than an affirmative answer to this question. It is not necessary to go into the evidence in detail. Suffice it to say that it appears from the defendant's own testimony, and the admitted facts of the case, that in January, 1873, Ben Holladay, being indebted to his brother Joseph in the sum of $100,000, gave him his note therefor; and on November 1, 1876, gave him another note for $163,34-5, in payment of the former note, and interest thereon at 12 per centum per annum, together with a third note for $4,500, given some time before. These not'es have remained in the possession of Joseph Holladay t and no credits have been allowed or indorsed on them, although three valuable parcels of this real property, of not less than $50,000 in value, and 1,050 shares of the Oregon Transfer Company's stock, worth not less than $50,000 more, were conveyed and transferred to him between the giving of the first and last note. 'l'he real property was lots 1, 7, and 8, in block 47, in Portland, on which the Holladay residence is situated, the place called the Seaside House, and other considerable tracts of land in Clatsop county; and lots 6,7, and 8, in block 23, in Couch's addition, together with sundry lettered blocks in said addition that were afterwards determined to belong to the Oregon & California Railway Company. Afterwards, between November 25, 1876, and April, 1879, sundry
847
conveyances and transfers of property belonging to Ben Holladay were made to the defendant, namely: Shares of stock: 1,195 in the Portland Street Railway Company, 5,331 in the Wallamet Realestate Company, 675 in the Wallamct Steam.mills Lumber & Manufacturing Company; furniture and stores at the Holladay residence; furniture, stock, and farming implements at the Seaside House; the undivided half of the furniture in the Clarendon Hotel; Sam Smith's notes for over $11,000, secured by mortgage on lot 2, in block 47; mortgage on the Simpson farm, in Polk county, -afterwards foreclosed and bought in; the undivided t of the S. t of block 23, in Couch's addition, (April, 1877,) on which was built the Clarendon Hotel; blocks 20 and 87, in Wheeler's addition to East Portland; the Cornelius farm, in Washington county; and 9,995 shares of the stock of the Oregon Real-estate Company. The defendant contends that he did not receive this last stock from Ben Holladay, but that he bought it from the Bank of California for $34,000, to whom the former had pledged it as collateral security for a loan of probably not less than $25,000. But the fact is ad· mitted that the payment was made out of ·moneys derived from the property and business transferred to him by his brother, and mainly {lUt of the earnings of the transfer company. The plaintiff that this property, when conveyed to the defendant, was worth $225,000, and was worth at the commencement of this suit $500,000. In lIisanswer the defendant says the property was not worth over $100,000 when he received it. and that it is now not worth over $400,000. My conclusion is that the allegation in the bill on this point is substantially correct. Nothing passed between the brothers at the time these conveyances were made as to their purpose or object. Joseph never asked for any of them, and Ben never told him why he made them. And the only conversation that ever passed between them on the subject, according to the former's testimony, is that, as his brother was about to leave the state in the fall of 1877, he went to his house, when the former said to him, without solicitation or explanation: "All this property belongs to you, and no power on earth can take it away from you." And he insists that he received it silently, but in "good faith," in payment of the debt then due him. The various properties remained in the hands and under the management of the persons in charge before the transfers were made, and the rents and profits of the mill and hotel, so far as they could be spared from the payment of debts, charges, and taxes, were largely transmitted to Ben Holladay, at Washington. The defendant admits that he consented that the manager of the mill, Mr. George Weidler, might send his brother five or six thousand dollars a year to keep him from starving while in Washington prosecuting his Indian spoliation claim; and says that he has since learned that Weidler let him have not less than $75,000 during thistimEl,
848
without his knowledge. And the fact appears to be, as this statement tends to show, that Joseph Holladay was a mere figure-head for this property, and knew very little about its management or condition. Ben Holladay's actual and trusted representative was Weidler, who managed his affairs, using Joseph Holladay's name as ostensible owner whenever necessary. In the spring of 1879 the defendant was in Washington, and, being in need of money, applied to his brother for $1,000, which was refused for want of means. Thereupon he wrote Ben Holladay a letter, which is in evidence. After stating the request and refusal, he writes in substance: "You have just made $15,000 on the sale of O. & C. bonds, and yet refuse me $1,000, when you know I have not a dollar on earth, but have let you have every dollar I had on earth fifteen years ago." When the decree was given in the supreme court in favor of Elliott in 1879, the personal property at the Seaside House, and in the Holladay residence, was immediately transferred to the defendant by the agent of Ben Holladay, to prevent its seizure on execution. When the bills of sale were presented to him he appeared to apprehend the purpose of the transaction, and said it was no use,-the judgment would hold the property; but, on being assured by the agent, on the authority of a prominent lawyer, that nothing but an execution would prevent the transfer of personal property, he acquiesced and took the bills. And lastly, in his answer in Holll/day v. Holladay, which appears from the evidence to be a suit to have these conveyances, which are absolute in form, declared to be mortgages, the defendant swore that these conveyances were delivered to him "secretly and fraudulently" by Ben Holladay, "with the fraudulent intent" on his part "to cover up and conceal from bis creditors" said property, and "in the fraudulent hope and expectation" that the defendant "would support him therefrom, and would fraudulently join and assist him in purchasing from his creditors their said claims and debts for a small percentage of their face value, and force them to compromise the same, and would thereafter reconvey the remainder of the property to him;" and for fear the creditors of Ben Holladay might have the defendant examined on oath concerning said conveyances, "said understanding and expectations were not put in the form of words or in writing," IJUt Ben Holladay "verbally said to the defendant, in November, 1877, and divers other times, that said lands and personal property belonged to and were the property of this defendant." This is a full and frank confession of the fraudulent intent of the grantor in these conveyances, and the knowledge and acquiescence, if not the active participation, of the defendant therein. After a careful consideration of all the facts, in my judgment, the best construction that can be put on these transactions is this: The conveyances and transfers were made by Ben Holladay to Joseph Holladay, not in payment or satisfaction of his debt, but to secure it
849
for the time being, and until there was a change for the bett,er in his which he probably hoped might soon come through the action of congress on his Indian spoliation claim; and, in the mean time, to thereby prevent and delay his other creditors from collecting their debts at what he might consider a sacrifice of a large property, which, in the near future, would greatly enhance in'value. However, the law of the case is clear. The conveyances are void as to existing creditors, both as to the grantor and grantee. Section 51 of chapter 6, (Laws Or. 523,) which is substantially chapter 5 of 13 Eliz., provides, among other things, that every conveyance of any estate in lands, or goods or things in action, "made with intent to hinder, delay, or defraud creditors, or other persons, of their la wful · · · debts or demands, · · · as against the persons so hindered, delayed, or defrauded, shall be void." It is not necessary that the grantee in a deed made to hinder or delay credo itors should have actual knowledge of the debtor's intent to make it void. A knowledge of facts sufficient to excite the suspicions of a prudent man, and put him on inquiry, amounts to notice, and is equiv. alent, in contemplation of law, to actual knowledge, and makes the grantee a party to the wrong. Clements v. Moore, 6 Wall. 312; Bartles v. Gibson, 17 Fed. Rep. 293; Bump, Fraud. Cony. 200. And the grantee in such a conveyance cannot avoid the effect of these criminative circumstances by insisting that he acted in good faith,res ipsa loquitor; for good faith, in such case, cannot co-exist with notice of the wrongful intent of the grantor. The conveyances of real property being void as to the plaintiff, he is entitled to have them so declared and set al::lide, so far as may be necessary to collect thereout the judgment against Ben Holladay; and it is so ordered. The plaintiff is also entitled to costs against the defendants Elliott and Joseph Holladay; but whether they shall be taxed against them in solido or severally, and, if the latter, for what amounts, and whether the decree shall leave the plaintiff to enforce his decree by execution from the state conrt, or by the process and under the direction of this court, will be determined at the settlement of the decree, on which counsel may be heard. NOTE. 1. CHAMPERTY. Champerty is an aggravated species or maintenance. McIntyre v. Thompson. 10 Fed. Rep. 532. A mere for a fee is not champertous. To constitute cham perty there must be an agreement on the part of the champertor to carryon the party's suit at bis own expense, as WE'll as for a share of the thing or money to be received. Jewel v. Neidy, (Iowa,) 16 N. W. Rep. 141. Agreement to prosecute a claim for a stipulated amount of the proceeds, w:th full to compl'?l,uise as shall be best, is not a champertous agreement. Jeff· nes v. Mutual LIfe Ins. Co. ofN. Y., 4 Sup. Ct. Rep. 8. In Vimont v. Chicago & N. W. Ry. Co., (Iowa,) 21 N. W. Rep. 9, J .· who was ;njured by the negligence of defendant railroad company, assigned his claim for damages to V., and V. execnted the following agreement: ,. In consideration of the assignment to me by J. of his claim for damages against the Chicago & Northwestern Railway Com. pany, resulting to him by reason of aD injury received by him on or about the thirtyfirst day of August, 1881,on said railwaY,I hereby agree to disposeoftheentireamouni
v.27F.no.13-54
850
realized on said claim as follows: For mv own compensation in and about the prosecution of-said claim, and for the use of U11y advances of money I may make, I am to retain thereof the sum of fifty dollars i I alll also to retain all sums of money that I may advance in the prosecution of said claim; next, I agree to payout of the proceeds of sai d recovery the reasonable fee of the attorneys and agents employed to prosecute said claim, or such lee thl'l'efor as may be agreed upon, if any agreement for a specific amollnt shall be agreed upon, and the balance of said recovery I agree to pay to the said J." It was held that the cause of action was assignable; that the assignment and agreement did not constitute barratry, champerty, or maintenance; and that V. was entitled to maintain an action for damages agaiust the railway company in his own name. A contract between an attorney and his client that the attorney shall prosecute a claim at his own cost, for a share of the recovery, is champertous and illegal. Martin v. Clarke,. 8 R. I. 389. Where an attorney was employed to bring an action, the client agreeing to give or .allow and pay him tbe first $50 collected by him therein, held not champertous. Scott v. Harmon, 109 Mass. 237. An agreement by which a defendant in attachment assigns to his attorney the propnoty attached, in consideration of his services in the suit, and in prosecuting a contemplated action of damages on account of the attachment, stipulating for his own diligence in the attachment suit, and giving the attorney the entire management and control, is not void for champerty or maintenance. W'are's Adm'r v. Russell, 70 Ala. 174. In Stanton v. Haskin, 1 McArthur, 558, R. & S., attorneys at, law, agreed to conduct a suit in chancery for the recovery of lands claimed by H. and wife, who agreed to give them one-third of whatever land or money might be received. A decree was obtained in favor of H. and wife for the lands, and' also for the rents and profits. In a suit to enforce the agreement for an undivided third of the land so recovered, the court held that the contract was champertous and therefore void. The New York Code contemplates a case in which the action might never have been brought but for the inductlment of a loan or advance offered by the attorney, and where the latter, by officious interference, procures the suit to be brought, and obtained a retainer in it. Fowler v. Callan, (N. Y.) 7 N. E. Rep. 169. For a full disCUssion of the general subject of champerty, see Courtright v. Burnes, 13 Fed. Rep. 317, and note by Judge SEYXOUB D. THOMPSON, 323-329. 2. FRAUDUJ,ENT CONVEYANCE-KNOWLEDGE OF GRANTEE. For an exhaustive discussion of the question of fraudulent conveyance, and therein of the knowledge of the grantee, see ,Platt v. Schreyer, 25 Fed. Rep. !lS, and note, l:l7-94.
FLINT
v.
COUNTY Cml'RB REPUBLIC
CO.
(Oircuit Oourt, D. Kansas. 1886. 1. SALES-ACTION TO RECOVER MONEY PAID-PLEADINGS.
Under Kansas tax laws of 1868, 120, a party seeking to recover from the county money paid at tax sales, the tax title having failed, must show return of tax certificates, or an offer to return them, before suit brought. SAME-LIABILITY OF COUNTIES-RETURN OF CERTIFICATES.
2.
Counties are entitled to the actual return and surrender of certificates issued at illegal tax sales. before being called upon to refund money paid them on such sales.
Action by holder of tax certificates to recover purchase money on failure of tax title, land not having been liable to taxation at time of sale. Defendants demur. F. _7I,I. Clark, for plaintiff. T. M. Noble, for defendants. BREWER, J. The demurrer must be sustained. The defendant is under no obligation to return taxes upon failure of tax titles, except