ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.
MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
John H. Hagener was adjudicated a bankrupt by the District Court of the United States for the Southern District of Illinois, and a trustee for his estate was qualified. At the time of the adjudication the bankrupt was the owner, by assignment, executed to him on October 28, 1901, of two certificates, each reciting the purchase from the State of Kansas of a particular quarter-section of school lands situated in Rawlins County, Kansas, of the making of a partial payment therefor, and the right to receive from the State a deed of the land upon the payment of the balance due. The certificates were placed on the bankruptcy schedule as real estate. Upon the petition of the trustee the referee ordered the sale at public auction, after ten days' notice by publication in a newspaper of general circulation, published in Cass County, Illinois.
and by distribution of hand bills, of the interest of the bankrupt in certain described real estate, including the certificates in question. The published notice, however, mistakenly stated the lands to be situated in Range 1 instead of in Range 34. The certificates realized only the sum of one dollar each. The sale, on the report of the trustee, was confirmed by the referee. The record does not affirmatively show that any appraisement was made either of the certificates or of the interest of the bankrupt in the land which they embraced.
By virtue of the sale and its confirmation, the trustee executed an assignment to Henry Fraumann, the purchaser at the sale, of each certificate and of "all the right, title and interest" of the bankrupt "of and to the land therein described." Fraumann transferred the certificates and his interest in the land, as well as all his right to rents and profits which had accrued, to Fred. Robertson, one of the plaintiffs in error, and Robertson executed a like assignment of an undivided half of each certificate, with an undivided half of the interest in the real estate and in the rents which had accrued, to W. J. Ratcliff, the other plaintiff in error.
It appears that in September, 1901, just prior to the time when Hagener, the bankrupt, had acquired the certificates, the taxes on the land not having been paid, a sale for delinquent taxes took place, at which the County of Rawlins became the purchaser.The county, on September 28, 1903, issued a certificate to each of the defendants in error reciting the tax sale, the purchase by the county, the payment by the defendants in error of the delinquent taxes and costs, and assigned the interest of the county in the property to the purchasers. Subsequently, evidently treating the certificates which had been previously issued for the land by the State, and which were surrendered in the bankruptcy, under the circumstances we have recited, as being the land itself and therefore
as passing to the purchaser at the sale for delinquent taxes, assignments were drawn by the county officials making recitals of the facts and virtually substituting the two Howards to the ownership of the right, title and interest acquired under the original certificates, with the right on their part to acquire patents for the land from the State on paying the balance due to the State on the terms fixed in the original certificates issued by the State. Thereafter the two Howards, as the owners each of a quarter-section, under these proceedings, went into possession of the land.
Subsequently, as the result of mandamus proceedings, Robertson and Ratcliff, as the owners of the lands by virtue of the original certificates issued by the State, surrendered by the bankrupt, and acquired by the sale in bankruptcy, paid the full amount of principal and interest due to the State upon the certificates, as also a sum sufficient to reimburse each of the Howards for the moneys disbursed by them in acquiring from the County of Rawlins supposed rights under the tax sale to which we have referred, it not being disputed that the tax sales were void. In the year 1899 patents of the State for the land were duly issued to Robertson and Ratcliff.
Prior to the issue of the state patents, as above mentioned, and while the bankruptcy proceedings were undetermined, the bankrupt and his wife executed to Robertson and Ratcliff a quitclaim deed of all their right, title and interest to the land.
Soon after the execution by Hagener and wife of this quitclaim deed Robertson and Ratcliff commenced two actions in ejectment in the District Court of Rawlins County, Kansas, to recover possession of the two quartersections, and damages for detention. The defendant in one action was C. F. Howard and ...