The Advocate and news., 1899-01-18

July 18Th, 1897, ana on september Z6tn, 1885,
said sale was marked as forfeited on the
books in the offices OF the defendants; on
October 18th, 1887, the plaintin rendered to
the defendant, the County Treasurer, the
sum Of $zSS5, said sum being the amount
Then claimed to be In arrears as annual In
terest, with IL per cent interest thereon TO
the date Of tender, and also rendered to the
defendant, County Clerk, 80 for any ex-
penses made by said pretended forfeiture
all OF which was refused.
This action was brought on October Sth
1881, TO compel the defendants to receive
SAID payment and receipt therefor and can
eel sald pretended forfeiture
The only question requiring our consider
alton Is, was the pretended forfeiture legal
as to dlvest SAID purchasers OF their inter-
estS in SAID land. This Is denied by the
plaintiffs for two reasons. First, that the
n0tIce should have described each forty
acre tract separately; second, that the re-
turn shows that M. A. Wilson was in pos
session OF the land, and does not show any
service upon HIM as required by sec. -,
chapter 10, General Statutes 1887, and also
for the further reason that there was no
default In interest.
In regard to the first objection we need
only to say, that the law makes 1t the duty
OF the County Clerk to include in such mo-
tlce all tracts of land sold TO the same pur-
chaser upon which there shall be a default.
VI
fOrty-acre tract to be referred to separ
ately, when they were all included In one
certificate Of purchase and were included
IN one comprehensive description In the
notice.
Upon the second proposition the return Of
the officer was defective in not showing
service upon M. A: Wilson, the party in
OtnCer shows that he did serve the notice
on NJ A. Wilson and asks to correct his
return to show that fact This will be
allowed.
From all the evidence In the case 1t un-
disputably appears, that there was no in
rerest in default at the time said proceed
lngs were had. The renewal certificate
was dated July nth, 1883; upon this GER
tifcate are indOrsed fourteen receipts for
$19.44 each; these payments are each shown
upon the books of the County Treasurer
and Of the County Clerk, so that there
terest before July nth, 1888. 1t is claimed
by the defendants that this issue was not
raised by the petition, and that the parties
are bound by the issues raised by the plead
lngs, but the facts do all appear the petit
| ton, leaving only the conclusion to be
reached by simple computation.
This is an original proceeding in this
for US to allow the pleadings to be amended
so as to correspond with the facts proven,
but we do not think this Is necessary.
The peremptory writ of mandamus will
be granted as prayed for requiring said
defendants or their successors in office to
cancel said pretended forfeiture and to
proceed the same as IL no forfeiture had
been attempted
McElroy, j., having been of counsel, not
sitting.
Filed December 20, 1888.
A true copy.
Attest: =. j. GOSS,
TSeaLl Clerk.
State of Kansas, IS.
/, p. j. Goss, Clerk of the Kansas Court
of Appeals, in and for the Northern De-
partment, Western Division, do hereby GER
tify the above and foregoing to be a true,
| full and complete copy Of the syllabi in the
| therein entitled cases as the same remain
of record in my office.
Witness my hand and the seal Of said
court, affixed at my office in the city Of
Colby, Kan, this 10th day Of Jan. 1882;
Clerk Kansas Court Of Appeals, Northern
Department, Western Div.
---g~----
Northern Department Eastern Division.
In the Kansas Court of Appeals, Northern
Department, Eastern Division.
No 3A.
| G. W. & s. M. Craven, plaintiffs in error,
VS..
Sneathen Clary and Nancy A. Clary, de-
PENDANTS In error.
Error from Pottawatomie County District
Court.
REVERSED.
Wells, ]. Syllabus.
In an action to recover damages for
breach of the covenant of warranty, where
the warrantee had been adiudged to be
evicted and then purchased the paramount
outstanding title, the plaintiff has made
q case emitting him to judgment when he
has shown said judgment Of eviction and
purchase, the amount of the original pur-
chase price and Of the sum paid for the
paramount title. Unless the defendant
shows matters in defense sufficient to on
set the plaintiffs claim.
A true copy.
AttaQf w II TEJOMDQnN