[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1514-1516; Dec. Dig. § 762.*] (Syllabus by the Court.)

Error from District Court, Finney County; William H. Thompson, Judge.

Action by W. A. Neiswanger against Thomas Ord and others. Judgment for plaintiff, and Ord and another bring error. Reversed and remanded.

Foster, Evans & Dunn, for plaintiffs in error. Wheeler & Switzer, for defendant in

error.

MASON, J. An action to foreclose a real estate mortgage executed to John D. Knox & Co., a partnership composed of John D. and Mary Knox, was brought by W. A. Neiswanger, an assignee of the firm. Thomas Ord and Charles H. Swope defended on the ground that they held under a tax deed which was good upon its face and had been of record for more than five years, and also under a decree quieting title against the mortgagees. The trial court held that the tax deed was invalid upon its face and that the decree was void. This proceeding is brought to review the judgment based upon these rulings.

The objection made to the decree quieting title is that it was based upon publication service directed merely to "John D. Knox & Co.," and throughout the proceedings the mortgagees were described in that way, as they were in the mortgage, without further attempt to designate the members composing the firm. Counsel for the assignee of the mortgage rely largely upon Johnson Machinery Co. v. Watson, 57 Mo. App. 629, 634, which is indeed exactly to the purpose and supports their contention. That decision, however, is entitled to weight only so far as it is supported by sound reason or authority. Its grounds are thus stated in the opinion: "In the absence of a statute authorizing it, a firm can only be sued in the individual names of its members. This rule rests on the principle that a firm has no legal existence apart from its members. It is a mere ideal entity.” In support of this statement nine cases are cited. One of them (Proprietors of Mexican Mill v. Yellow Jacket Silver Mining Company, 4 Nev. 40) is clearly in point. It holds that an attempt to begin an action in a firm name is a nullity; the pleading being incapable of amendment. The five Missouri cases are explicitly to the contrary; all holding that such a defect can be corrected by amendment. One of them (Fowler & Wild v. Williams, 62 Mo. 403) adds that the defect is waived unless a timely objection is made, and another (Conrades & Co. v. Spink, 38 Mo. App. 309) that a

The argument based upon the theory that a partnership has no legal entity apart from the members composing it is opposed to the modern tendency to give formal recognition to the actual fact that in many respects the firm has an independent status of its own. "While it has been stated broadly that a partnership is but a relation and is not a legal being distinct from the members who compose it, still the law does take note on a wide scale of partnership as a legal entity and regards it as a unit both of rights and obligations, and there is a general tendency at this day to complete the recognition of a partnership as a body of itself with its own means appointed to its own debts." 30 Cyc. 422. As early as 1841 the Supreme Court of Iowa noted this tendency, and expressed its approval in these words: "No very weighty argument against allowing suits to be brought in this manner (in a firm name) can be drawn from any other source than that of precedent. The defendant dealt with the plaintiffs in their partnership capacity and under their partnership name. He could not therefore be surprised by the suit being commenced by them under that name. A recovery in the present action would be quite as effectual a bar to a subsequent suit for the same demand as though the names of the partners had been particularly set forth. Formerly the courts were fastidious in requiring the names of the partners to be particularly set forth and proved, and in regarding a failure in this respect as a fatal defect at any stage of the proceedings; but this strict rule has been continually undergoing modifications, in order to encourage and facilitate the operations of mercantile traffic. If this could become a new question in the states of the Union, or even in England, we believe the courts would regard mercantile partnerships as persons in law capable of sustaining or defending suits when brought by or against them in that capacity. We are now in that very situation, and we think it better to lay down such a rule in the commencement as will not require continual alteration. This rule will be to permit the plaintiff to make his legal demand for payment under the very name by which the credit was given." E. A. Johnson & Co. v. Jeremiah Smith, Morris, 105, 106. The following cases affirm the absolute incapacity of a firm as such to participate in litigation: Sheffield & Main v. Barber, 14 R. I. 263; James Reid & Co. v. McLeod, 20 Ala. 576; Frank v. Tatum, 87 Tex. 204, 25 S. W. 409. On the other hand, it was said in Blue Grass Canning Co. v. Wardman, 103 Tenn. 179, 181, 52 S. W. 137, 138, although the statement was not necessary to the decision:

In the present case every practical purpose of a publication summons was subserved by the procedure adopted. The mortgage had been taken by the firm under the designation of "John D. Knox & Co." The published notice addressed in the same manner conveyed the necessary information as well as though the names of the partners had been stated. In this instance it might have been practicable to learn the names of the partners, but in another that might be difficult or impossible. If the service attempted was entirely ineffectual, it must be because the firm as such had no capacity to be sued, not because it had not received constructive notice in the manner prescribed by the statute. We think the use of the firm name alone was only an irregularity and did not render either the service or the judgment void.

Moreover, we conclude also that, in view of the liberal interpretation to which its age entitled it, the tax deed is good upon its face. Two defects are pointed out: That it does not show the amount for which the land was bid in by the county treasurer, nor that the county clerk ever assigned a tax sale certificate to the person to whom the deed was issued. The deed, after reciting that the property was offered at the tax sale for the amount due against it, continues: "And, whereas, at the place aforesaid, said property could not be sold for the sum of nine dollars and forty-two cents, being the whole amount of tax and charges thereon, the same was bid off by the county treasurer for said county." This sufficiently implies that the land was bid off by the county

treasurer for $9.42, the amount for which it had been offered. The situation is very different from that presented in Robidoux v, Munson, 75 Kan. 207, 88 Pac. 1085, where there was nothing to show what amount was chargeable to the land at the time of the sale. The amount due against the delinquent property, the amount for which it is offered,

The deed recites that, after the property had been bid in by the treasurer for the county, one J. R. Myers paid to the treasurer a sum equal to the cost of redemption, but fails to add that the county clerk assigned the certificate of sale to him. That being a formal recital, relating to a proceeding which is the same in all tax sales of the same class, may perhaps be more readily supplied by inference than if it concerned data applicable to this particular transaction, such as the date or amount of a payment. The suggestion is made that, inasmuch as it was the duty of the clerk to execute an assignment whenever the treasurer received the money, it may be presumed, in aid of the tax deed, that the act was performed. It is not necessary, however, to rely merely upon this presumption. There is a further recital that the taxes for the subsequent years were paid by the "purchaser," manifestly referring to Myers, who was the grantee in the deed. One does not become a purchaser by simply paying a sum of money to the county treasurer, but by making such payment and receiving in return an assignment of the tax sale certificate. The recital that the subsequent taxes were paid by the purchaser fairly implies that such an assignment had been made.

The judgment is reversed, and the cause remanded for further proceedings in accordance herewith. All the Justices concur.

CLAFLIN v. WYANDOTTE COUNTY BOARD OF COM'RS. (Supreme Court of Kansas. Nov. 6, 1909.) CONSTITUTIONAL LAW (§ 211*) - STATUTES ($72*)-EQUAL PROTECTION OF THE LAWSWITNESS FEES-UNIFORMITY.

Chapter 183, p. 296, Laws 1907, providing that certain public officers shall not be entitled the officers named of the equal protection of the to witness fees in certain cases, does not deprive laws, and operates uniformly throughout the state.

[Ed. Note.-For other cases, see Constitutional Law, Dec. Dig. § 211;* Statutes, Cent. Dig. § 72; Dec. Dig. § 72.*]

(Syllabus by the Court.)

O. Q. Claflin, Jr., and J. H. Luscomb, for plaintiff in error. Joseph Taggart and Richard J. Higgin (Hale, Dean & Higgins, of

counsel), for defendant in error.

BURCH, J. Certain officers of the city of

Kansas City were witnesses for the state in ⚫ sundry state cases tried in Wyandotte county. They assigned their claims for witness ty. They assigned their claims for witness fees to the plaintiff, who, upon the refusal of the board of county commissioners to pay, brought an action to recover the sums claimed. Judgment was rendered in the district court against the plaintiff, and he appeals.

Section 3038, Gen. St. 1901, reads as follows: "Witnesses shall receive the following fees, for attending before any court or grand jury, or before any judge, referee or commission, per day, one dollar and fifty cents; for attending before any justice of the peace, seventy-five cents.

The claim in suit arose subsequent to the enactment of chapter 183, p. 296, Laws 1907, which reads as follows: "Section 1. "Section 1. No person holding any office or appointment under any county, city, or other municipality shall be paid any witness fees in any case whatsoever, when such person is a witness for the State of Kansas, county, city or other municipality, when such state, county, city or other municipality is a party to said suit, nor shall any sheriff or his under sheriff or deputies or any constable, while attending court as an officer, claim or be paid any witness fees in such cases; provided, that this act shall not apply where such witness is required to attend court at a place other than where he resides or is employed." It is argued that this statute violates the federal Constitution because it deprives the officers referred to of the equal protection of the laws, and violates the state Constitution because it is not of uniform operation throughout the state. The statute should be regarded as one affecting the compensation of public officers rather than as one relating to witness fees. The Legislature may give or withhold compensation to a class of public officers in any measure it sees fit without violating any constitutional principle of equality, and a person accepting an office must take it with all its limitations. In this instance the Legislature merely cut off pay for time consumed by the officers referred to in attending court as witnesses believing that sufficient recompense was already made by way of official salary or fees. By taking one of the designated offices a person assents to this condition and relinquishes all right to fees as a witness for the state, or the municipality of which he is an officer. If the

the discrimination made by the statute between state officers and other public officers as witnesses is not arbitrary or capricious or unreasonable, but is based upon a substantial and practical difference in the situation, duties, and relations of the two classes recognized. It is a well-understood doctrine

of constitutional law that, under such circumstances, classification and consequent difference in regulation are proper. The law operates uniformly upon all officers of the established class throughout the state, and hence it is not obnoxious to the state Consti

tution.

The judgment of the district court is affirmed. All the Justices concurring.

DITLINGER v. MILLER et al. (Supreme Court of Kansas. Nov. 6, 1909.) 1. JUDGMENT (§ 684*) CONCLUSIVENESS

PERSONS CONCLUDED-LANDLORD AND TENANT.

notice of, and does not defend, an action of A landowner who is not a party to, has no ejectment prosecuted against his tenant, is not bound by a judgment in the action adverse to the tenant.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1207; Dec. Dig.' § 684.*1 2. JUDGMENT ($ 682*) - CONCLUSIVENESS PURCHASERS FROM PÁRTY NOT CONCLUDED.

Purchasers from a landowner in the situation described, acquiring his title subsequent to the judgment in ejectment, take such title unprejudiced by the judgment, although they were defeated parties to the ejectment suit.

Cent. Dig. §§ 1203-1205; Dec. Dig. § 682.*] [Ed. Note.-For other cases, see Judgment, 3. TAXATION ($ 814*) - SALES - TAX LIEN — EQUITABLE ASSIGNMENT.

A tenant in possession took out a tax deed of the land and conveyed to another, maintaining, however, his proper relation to the landlord owner. In an action of ejectment to which the landlord was not a party, the tax deed was set aside, and the tax title purchaser was given a lien for taxes which the claimant was required to satisfy before being let into possession. The claimant paid the amount of the lien, but did not gain possession of the land and deeded it to another. The tax title purchaser then procured a conveyance from the owner and brought an action to quiet title against the grantee of the ejectment claimant. Held, that the defendant should be regarded as the equitable assignee of the lien for taxes, and that equitable relief to the plaintiff should be conditioned upon its satis

faction.

[Ed. Note.-For other cases, see Taxation, Dec. Dig. § 814.*]

(Syllabus by the Court.)

Error from District Court, Norton County; W. H. Pratt, Judge.

Action by Agnes Miller and another against Nicholas Ditlinger. Judgment for plaintiffs, and defendant brings error. Modified and affirmed.

BURCH, J. Agnes and Maggie Miller recovered a judgment quieting their title to a tract of land against the claims of Nicholas Ditlinger, who appeals.

In 1888 James, the owner at that time, mortgaged the land to the United States Investment Company. By successive sales, assignments in blank, and deliveries, this mortgage became the property of Lendall Titcomb some time prior to 1890. None of the assignments were recorded. In October, 1890, James conveyed the land to his mortgagee, the United States Investment Company, and the deed was duly recorded. Some time in 1893 the United States Investment Company conveyed to Titcomb; but the deed was lost, and has never been recorded. Titcomb, however, placed George Miller in possession as his tenant, and through Miller kept possession continuously until February 7, 1905, when he deeded to the plaintiffs, Agnes and Maggie Miller. In March, 1900, Geo. Miller took out a tax deed of the land, and later in the same year conveyed it to the plaintiffs; but he continued to occupy the land and to pay rent as Titcomb's tenant. In August, 1903, the United States Investment Company quitclaimed to William Wells. Wells then brought an action of ejectment against the three Millers, and judgment was rendered in his favor on May 6, 1904. Titcomb was not a party to the suit, had no notice of it, and did not participate in the defense. The judgment specifically states that the Millers claimed title under a tax deed, which was declared void and canceled, so that, so far as the record discloses, no right of Titcomb was litigated or adjudicated. The judgment against the Millers was not executed, and they continued in possession. On November 19, 1904, Wells deeded to the defendant, Ditlinger. On February 6, 1905, Ditlinger took judgment quieting his title against the United States Investment Company; but Titcomb and the Millers were not parties to the suit. As stated before, Titcomb deeded to the plaintiffs on February 7, 1905, and in August of the same year they brought the action which terminated in the judgment under review. Findings of these facts were made, which are assailed as unsupported by the evidence. The court has read the evidence, a part of which is in the form of depositions, and not only are the findings sufficiently supported to make them conclusive according to the usual rule, but they seem to be compelled by the evidence. Certain authorities are cited in the defendant's brief relating to the character and extent of proof necessary to establish a lost instrument; but the evidence satisfies them, and no doubt the trial court was guided by them.

evant and material, in that it contained statements by the president of the United States Investment Company denying ownership when, according to Ditlinger's theory of the case, title must have rested in that company. Kitchell v. Hodgen, 78 Kan. 551, 97 Pac. 369. It will be assumed that the immaterial and irrelevant portions of the proof were disregarded; the trial being by the court, and not by jury. But if all the evidence assailed were eliminated, the findings would still be amply supported.

It is argued that because George Miller took a tax deed of the land, and then conveyed by a general warranty deed to the plaintiffs (his daughters), he could not have been a tenant under Titcomb. The conclusion does not of necessity follow; but, admitting that an inference of repudiation might be drawn, it is fully overcome by unequivocal proof that Titcomb was always recognized as landlord, and that Miller paid rent to him, or to his agent for him, up to the time he deeded to the plaintiffs.

It is said that Miller's possession must have been interrupted by Ditlinger, else the court could not have rendered judgment quieting title against the United States Investment Company. Neither the Millers nor Titcomb were parties to that action, and no conclusions against their interests can be drawn from the judgment in that case. The evidence in this case is that Ditlinger has never been in possession.

The defendant seems to claim that the action of Wells against the Millers was one to quiet title, and not one in ejectment, and hence it is concluded that Wells must have been in possession. The evidence is to the contrary and shows that Wells was not in possession, that he was awarded possession by the judgment, and that the issuance of a writ of assistance to obtain possession was made conditional upon the payment of the tax lien awarded the Millers upon the nullification of the tax deed under which they claimed.

The defendant insists that the judgment in favor of his grantor, Wells, and against the Millers, rendered in the ejectment suit, conclusively established title and right of possession in Wells, and hence that the present controversy brought on by the plaintiffs has been adjudicated. The plaintiffs claim under a new title acquired since the rendition of the judgment in favor of Wells and not derived from or in succession to a party to his suit. They now hold, and claim under, Titcomb's title, and Titcomb's rights have not before been considered or determined. The situation of the plaintiffs is much like that of Kelson in the case of Ross v. Kelson, 79 Kan. 105, 98 Pac. 772. Kelson held a tax deed and the legal possession of a tract of land. McDonald