Reitler v. Harris, No. 15,992

No. 15,992 | Kan. | May 8, 1909

The opinion of the court was delivered by

Smith, J.:

Upon these facts the court based two conclusions of law, the second of which we will first consider. It is that' on the facts found the plaintiff “is estopped from complaining of irregularities in the forfeiture proceedings against a purchaser in good faith on the strength of such proceedings, and especially against a person who, like the defendant, has paid a large sum for the assignment of the certificate.” In all this there is no element of estoppel, as has in effect been held in every case of defective service of the notice of forfeiture in the numerous cases in this court, from Knott v. Tade, 58 Kan. 94" court="Kan." date_filed="1897-04-10" href="https://app.midpage.ai/document/knott-v-tade-7890614?utm_source=webapp" opinion_id="7890614">58 Kan. 94, to Hickert v. Van Doren, 76 Kan. 674" court="Kan." date_filed="1907-11-09" href="https://app.midpage.ai/document/hickert-v-van-doren-7897496?utm_source=webapp" opinion_id="7897496">76 Kan. 674, and Spencer v. Smith, 74 Kan. 142" court="Kan." date_filed="1906-06-09" href="https://app.midpage.ai/document/spencer-v-smith-7896526?utm_source=webapp" opinion_id="7896526">74 Kan. 142. In those cases the authorities are reviewed.

Even applying the new rule of evidence to the forfeiture proceedings, there is no evidence that Reitler had any actual knowledge. He was absent from the state and personal service of the notice upon him was not possible, hence there could have been only constructive service by posting the notice. There can be no estoppel except actual knowledge of the facts from which it arises be shown.

On the other hand, the records of the county clerk’s office, through which they were attempting to acquire rights to the land, were open to the defendant and his grantor. It would seem that ordinary care and prudence would have led to an examination thereof, and that in the absence of such care they might be held to have knowledge of whatever the records would have disclosed to them. They are presumed to have known the law, and under the law at that time the sheriff’s return upon the notice conclusively showed that Reitler’s rights to the land had not been legally forfeited.

The case of Burgess v. Hixon, 75 Kan. 201" court="Kan." date_filed="1907-02-09" href="https://app.midpage.ai/document/burgess-v-hixon-7896972?utm_source=webapp" opinion_id="7896972">75 Kan. 201, is the leading one relating to school-land wherein the doctrine of estoppel is applied against the first purchaser or his grantor. In that case Burgess had the land in question included within the fence of his ranch for six years, then leased it and occupied it as a tenant of the state for four and one-half years, thus treating Walton’s right to the land as forfeited by the state for many years after the proceedings to enforce the forfeiture. He then suffered Hixon to buy the land, make a payment on it, take possession and spend money in its improvement, and thereafter procured a quitclaim deed from the original purchaser, Walton, and attempted to set up his claim as the assignee of Walton against Hixon. Burgess, at first by his action in holding the land as public land and afterward by leasing it of the state, and later by remaining silent while Hixon bought the land, took possession of it, and spent his money in improving it, led Hixon to the belief that Walton’s right to the land was canceled, and thereafter sought to take advantage of Hixon’s ignorance of the situation. In short, that case contained every element of estoppel in pais as usually defined, and bears no analogy to the present case.

The court found that Reitler had an agent in the county and knew, or could have known in the exercise of diligence, what Harris and his grantor were doing in the way of improving the land from 1902 to 1906. The court, however, did not find that the agency had anything whatever to do with the land in question; and while a principal may be presumed to know what his agent knows in regard thereto when the agent is conducting the business of the principal, there is no presumption that the principal knows what the agent knows about other matters. The court expressly, found in substance that Reitler had no personal knowledge of these matters in finding that he had been a non-resident of, and absent from, the state for more than ten years.

The first conclusion of law, however, is unassailable. It is practically conceded that, if section 1 of chapter 373 of the Laws of 1907 is constitutional and valid, it determines the controversy in this case. The court found that the county clerk of the county, after the expiration of sixty days from the attempted service of the notice, did enter upon his school-land record this notation: “Land forfeited.” Section 1 of the act in question provides in substance that such an entry “shall be prima facie evidence, in any action or proceeding in any court in this state, that proper notice of the purchaser’s default had been issued and legal service thereof made, and that all things necessary to be done as conditions precedent to the forfeiture of the right and interest of the- purchaser, and all persons claiming under him, in and to such land, had been duly and properly done and performed, and that such forfeiture had been duly declared,” It has just been decided in Jones v. Hickey, ante, p. 109, that “it was competent for the legislature to provide what. shall be prima facie evidence of legal service, and that this provision of the act is not objectionable on the ground that it disturbs vested rights.” (Syllabus.)

The plaintiff contends that, as he had fully paid for the land and obtained his patent from the state, his rights thereto were determined before the commencement of this action, and before the passage of chapter 373 of the Laws of 1907. In the absence of fraud this may be true, as between Reitler and the state, but as between the parties' the issuance of the patent to Reitler is no higher and greater evidence of his right to the land than is the ownership of the school-land sale certificate by Harris of his right thereto. The question that determines their rights is, Was the service of the notice of forfeiture legally made upon Reitler? Before the enactment of this statute the return of the sheriff upon the notice was held to be the exclusive evidence as to whether the service was legally made, and the return in this case was insufficient to prove that fact. The statute provides that the notation made by the county clerk is prima facie evidence of legal service. The trial court found that there was not sufficient evidence to rebut this prima facie evidence, and the plaintiff does not even contend that there is such evidence. ■ It was competent for the legislature to provide the rule of evidence, and where there is conflicting evidence upon a fact at issue the finding of the trial court thereon can not be disturbed here. (Petersilie v. McLachlin, post.)

If the equities of the plaintiff in this case be superior to tho§e of the defendant; if he has, in addition to large amounts of interest and taxes, paid to the state as the price of the land more than twice the amount the defendant is to pay, and at a time when by the law of the state and rule of evidence he had only to pay for the improvements made by the occupying claimant to entitle him to the full possession and title to the land; if instead he stands to lose nearly $1900 and gets nothing in return; even if the defendant, when he acquired his certificate and went into possession, had presumptive notice that the plaintiff’s rights had not been legally forfeited and could still be asserted; even if the situation be such that many similar cases are likely to arise: none of these, considerations is to govern this or any other court of the state. The legislature in enacting the law is presumed to have anticipated such contingencies, and still, for some greater good to the state at large, it has provided the new rule of evidence —that if the county clerk make certain notations (which no statute had made it his duty to make) upon the school-land records of his county, such notations shall be prima facie evidence, in any proceeding in any court of the state', of a number of facts which may or may not have been within the knowledge of the clerk at the time he made the notation. It is not our duty to reform or to criticize the statute, but it is our duty to follow it unless repugnant to a higher law, in which •case it is not law.

The judgment is affirmed.