9 Kan. 501 | Kan. | 1872
‘The opinion of the court was delivered by
The facts found by the court seem to be .■sustained by the evidence. It is true that the evidence that •George Fisher was the agent of Statham, is not conclusive, but it is unimpeachcd and uncontradicted; and one cannot iread it without coming to the conclusion that he was such •.agent, when he took the tax certificate. Witnesses do not .always make those nice and refined distinctions in the terms they use, that characterize writers upon mental science, and .seem to be so familiar to counsel. Still they'have made their meaning sufficiently intelligible in this case for a plain man to understand it. An admission by one that he is the agent
A much more important question remains for, decision. The plaintiff in error holds the tax deed as the heir of his father, George Eisher, deceased. George Fisher became the agent of Statham, the holder of the original title, and under whom the defendants in error claim, in the year 1857, and this agency continued till he became the holder of the tax certificate, unless that relation was destroyed by the war of the rebellion. It is clear that in 1863 Fisher thought and talked as though he was still the agent of Statham. When this case was here before, this court decided that an agent, while acting as such, cannot become the owner of the tax title as against his principal. The plaintiff in error now seeks to avoid that conclusion by alleging that the contract of agency was destroyed by the condition of the parties in 1863. It appears from the evidence that Statham in 1861 was in the state of Virginia, and within the confederate lines, and so remained until Fisher had become the holder of the tax-sale certificate; and that during all that time communication between Statham and Fisher was cut off by the war. It is-also asserted that Statham was a rebel, but the evidence is-not sufficient to make that inference certain. Nor do we-consider the fact material in this case. If he was a rebel, the government might have confiscated his land; and as a rebel he could not lawfully exercise acts of ownership over his-land. But his right to do so was not destroyed; it was only suspended. Did this state of facts destroy the agency so as-to absolve Fisher from all legal obligations to Statham? We think not. He had Statham’s money in his hands. The government could have confiscated it. During the war the-agent could not have paid it over, not because he did not owe it, but because he could not have done so without holding intercourse with the enemy within the confederate lines,