Action by Mary V. Reynolds against J. Wilson Curry. Judgment for defendant, and plaintiff appeals. Affirmed. Morse & Keeler, for appellant. II. T. Phin PER CURIAM. Action to recover dam In that case it was sought to show a prom- Meech v. Lamon, 103 Ind. 515, 3 N. E. 159, the old indebtedness, there must be an express promise. ages for the breach of a marriage contract. charge the jury that a promise of marriage DOTY v. KNOX. (Supreme Court of Kansas. Nov. 6, 1909. Rehearing Denied Dec. 17, 1909.) Although the moral obligation to pay the discharged debt is a sufficient consideration for a promise to pay, the cause of action rests on the new promise, not upon the old debt. This furnishes the distinction between a cause of this kind and one where the defense is the statute of limitations. The new promise to pay a debt which has been discharged in bankruptcy must be a clear, dis- 1. ATTACHMENT (§ 200*)- SALE-CONFIRMAtinct, and unequivocal promise to pay the specific debt without qualification or condition, and cannot be implied from the fact of part payment or from other circumstances. It follows that the cause must be reversed, and judgment ordered for the defendant. All the Justices concurring. TION. Where real estate has been attached in an action for money, and, after judgment has been entered for the plaintiff, the land is sold upon an order of sale to the plaintiff and due return thereof has been made by the sheriff, such sale firmed and a sheriff's deed issued to the purchasmay upon application of the plaintiff be coner at any time thereafter, even after the lapse of 12 years, where no objection by the defendant in the action is or has been made to the sale or confirmation. [Ed. Note. For other cases, see Attachment, Dec. Dig. § 200.*] 2. ATTACHMENT (§ 201*) - SALE OF REAL ESTATE-TITLE CONVEYED. ed, a sheriff's deed has been executed and delivered to the purchaser, it conveys all the title possessed by the defendant when the order of sale was issued or at any time thereafter. Where, under the circumstances above stat [Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 652, 654; Dec. Dig. § 201.*1 3. VENDOR AND PURCILASER (§ 224*) — BONA FIDE PURCHASERS-QUITCLAIM DEED. Where, in such a case, a third party after the sale and before the confirmation takes a For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes quitclaim deed to the land from the defendant in the action, he will be charged with notice of the record in such action, and will acquire no interest in the land by such deed. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 469-473; Dec. Dig. § 224.*] (Syllabus by the Court.) Error from District Court, Finney County; William H. Thompson, Judge. Action by George S. Knox against Dennis D. Doty. Judgment for plaintiff, and defendant brings error. Reversed, with direction to enter judgment for defendant. W. R. Hopkins and Richard J. Hopkins, for plaintiff in error. B. F. Stocks, A. M. Harvey, and Hoskinson & Hoskinson, for defendant in error. 993. A sheriff's deed relates back to the judgment upon which the deed rests and further, if necessary. Marshall v. Shephard, 23 Kan. 325. This rule is well stated in the case last cited, as follows: "A sheriff's deed always relates back to some prior and antecedent time. It relates back, when recorded, to the day of its execution, to the day of the sale, to the time of the levy, to the rendition of the judgment, and, where the judgment is rendered for the enforcement of some pre-existing lien, it relates back to the origin of such lien. But it does not relate back to such pre-existing lien so as to make every person, except the lienholder, a trespasser who uses the property after the creation of such lien. It merely relates back so as to cut off all intervening equities, incumbrances, and conveyances, and so as to give to the purchaser a clear and unincumbered title to the property then in existence, and to which the original lien attached. It never relates back for the purpose of doing wrong or injustice, but only for the purpose of doing right and justice. It is an equitable fiction, adopted for the purpose of preserving and enforcing liens and equities. But it preserves and enforces only such liens and equities as are known, or such as the law requires shall be taken notice of. As to the doctrine of relation as applied to sheriff's deeds, see Freem. Judgm. § 333; Presnel v. Ramsour, 30 N. C. 505. All persons are required to take notice of all re GRAVES, J. George S. Knox commenced this action in the district court of Finney county to quiet his title to the land in controversy. He was in actual possession and claimed title under a quitclaim deed from Thanhouser and Smith, who are conceded to have been the former owners. Thanhouser was indebted to the Cosmo Buttermilk Soap Company, and in 1895 it commenced an action against him to recover the amount due on said debt. Smith, who had an interest in the land, was made a party defendant. An attachment was issued at the commencement of such action, and levied upon the land in controversy. A judgment was obtained by the plaintiff and a sale of the attached prop-corded liens, such as mortgage liens, meerty was made. The plaintiff, the Cosmo Buttermilk Soap Company, was the purchasThe sale was made December 10, 1895. On April 17, 1906, Knox obtained a quitclaim deed from Thanhouser and Smith. April 23, 1907, defendant, Dennis D. Doty, acquired a quitclaim deed for the same land from the Cosmo Buttermilk Soap Company. The sale was confirmed May 21, 1907, and a sheriff's deed was immediately executed to the pur chaser. Knox claims that his grantor lost nothing by the attachment proceedings, and therefore the quitclaim deed conveyed to him all that his grantor owned before the action was commenced. He insists that title does not pass under a sheriff's sale until after the sale has been confirmed; and, he having obtained a conveyance before that time, the full title passed to him unaffected by the sheriff's sale. This, however, seems to overlook the effect of the confirmation which subsequently occurred, and the deed which was issued later. We understand that an order of confirmation finds and adjudicates that all prior steps required by law have been taken. Gen. St. 1901, § 4955; Mills v. Ralston, 10 Kan. 206; Carter v. Hyatt, 76 Kan. 304, 91 Pac. 61; Watson v. Tromble, 33 Neb. 450, 50 N. W. 331, 29 Am. St. Rep. 492; 24 Cyc. 36; 17 A. & E. Encycl. of L. (2d Ed.) chanics' liens, attachment liens, and judgment liens; and they are sometimes required to take notice of the unrecorded equities, from actual facts of which they have had due notice." Knox, having taken a quitclaim deed only, was warned thereby that there was probably a weakness in the title of his grantor, or a deed of general warranty would have been given. This put him upon inquiry, and he was expected to search with diligence for any and all outstanding liens, incumbrances, or other equities. The rule relating to this subject is well stated in the case of Johnson v. Williams, 37 Kan. 179, 182, 183, 14 Pac. 537, 539, 1 Am. St. Rep. 243. It reads: "We would think that in all cases, however, where a purchaser takes a quitclaim deed, he must be presumed to take it with notice of all outstanding equities and interests of which he could by the exercise of any reasonable diligence obtain notice from an examination of all the records affecting the title to the property, and from all inquiries which he might make of persons in the possession of the property, or of persons paying taxes thereon or of any person who might from any record or from any knowledge which the purchaser might have seemingly have some interest in the property. In nearly all cases between individuals where land is sold or conveyed, and where there defendant in error contends, and there would be none if the question of confirmation were here for consideration. The delay could not have injured the rights of Thanhouser, as he had no substantial interest in the land. There does not appear to be any adequate, equitable reason for depriving the Cosmo Buttermilk Soap Company of its purchase and reinvesting it in the man who received a valuable consideration for it; or in his grantee who stands in no better position. There seems to be as great reason for applying the rule of acquiescence or waiver to Thanhouser for permitting so much delay without taking advantage of it by way of objections to the confirmation or moving to set aside the sale or otherwise. 17 A. & E. Encycl. of L. (2d Ed.) 1005. But in our view these questions were settled by the order of confirmation. Upon the whole case we think the sheriff's deed conveyed the land to the Cosmo Buttermilk Soap Company, and its deed conveyed it to Doty, who is entitled to the possession of the property. is no doubt about the title, a general war- | plication of the rule of laches for which the ranty deed is given; and it is only in cases where there is a doubt concerning the title that only a quitclaim deed is given or received. Hence, when a party takes a quitclaim deed, he knows he is taking a doubtful title, and is put upon inquiry as to the title. The very form of the deed indicates to him that the grantor has doubts concerning the title; and the deed itself is notice to him that he is getting only a doubtful title." Page 182. "A person who holds real estate by virtue of a quitclaim deed only from his immediate grantor, whether he is a purchaser or not, is not a bone fide purchaser with respect to outstanding and adverse equities and interests shown by the records or which are discoverable by the exercise of reasonable diligence in making proper examination and inquiries." Page 183. A diligent search would have enabled Knox to ascertain the true condition of the title. The records in the district court would have shown the suit by the Cosmo Buttermilk Soap Company against Thanhouser and Smith. It would have shown the attachment, judgment, order of sale, and the return of the sheriff that a sale was made to the plaintiff. This would have been notice that Thanhouser and Smith were no longer the owners of the land. It would have shown that the Cosmo Buttermilk Soap Company had purchased the property, and was entitled to an order of confirmation and a sheriff's deed which when made would give it the full and complete title to the property. It cannot be said, therefore, that Knox was a purchaser in good faith. He bought with notice, and received only such interest in the land as his grantors held, They held nothing but the bare formal legal title, which might be extinguished at any time by an order of confirmation and the execution of a sheriff's deed. The judgment of the district court is reversed, with direction to enter judgment in favor of Dennis D. Doty for possession of the property upon his cross-petition. All the Justices concurring. PARKS v. BAKER et al.† (Supreme Court of Kansas. Dec. 11, 1909.) 1. EVIDENCE (§ 460*)--PAROL EVIDENCE TO ESTABLISH BOUNDARIES. tion contained in a deed of conveyance is doubtWhere one of the boundaries in the descripful and ambiguous, parol evidence of the actual physical location of the boundary by the parties while the negotiations for the conveyance were in progress is competent to aid in the interpretation of the instrument. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2122; Dec. Dig. § 460.*] 2. BOUNDARIES (§ 35*)-EVIDENCE. The rule giving effect to a parol agreement establishing the boundary line between adjoinHolmes, 68 Kan. 607, 75 Pac. 1019, is followed. ing tracts of land stated in Steinhilber v. [Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 163, 165; Dec. Dig. § 35.*] (Syllabus by the Court.) Appeal from District Court, Washington County; W. T. Dillon, Judge. The fact that the confirmation and execution of the sheriff's deed were made after Knox obtained his quitclaim deed is immaterial. The confirmation, when made, finds and adjudicates that all prior proceedings have been regular and in compliance with law. It is urged here by the defendant in error that the delay of the purchaser in securing a confirmation of the sale amounts to such laches that the confirmation should not have been allowed. If this objection had been urged when the confirmation was applied for, it would have been of more force than now when presented here in a collateral proceeding. Laches on account of mere delay is not at all times serious. It may not have been negligent. It may have been necessary. The presumption is that this and all other prior acts which furnished a reasonable objection to the confirmation were considered at the time by the court and overruled. The order is an adjudication to that effect. We see no occasion here for the apFor other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes Action by Emma A. Parks against Charlotte Baker and Thomas C. Baker. Judgment for plaintiff, and defendants appeal. Reversed and remanded. A. C. Wilson, Fred Powell, and W. F. Sapp, for appellants. Charles Smith, T. P. Roney, and Edgar Bennett, for appellee. BENSON, J. Lots 11, 12, and 13, block 4, in Washington, front north on an east and west street. Lot 11 is bounded on the east by an alley extending north and south, and separating that lot from a tier of lots front- | west boundary of the inclosure, before deing east. On November 23, 1891, all these scribed, and made no claim to any of the lots belonged to W. Calvet and his wife, who premises west of that fence so occupied by then occupied a house on lot 11, which was the defendants until shortly before the comnext east of lot 12. Another dwelling stood mencement of this action, when she demandThe lots were 59.4 feet in width ed a strip of land 162 feet wide from the according to the recorded plat. There was east side of the premises occupied and claimed a well at the southwest corner of the dwell- by the defendants, west of the west end of ing occupied by the Calvets. A fence ex- the house, and the connecting fence above retended from a post on the north line of these ferred to. This action was commenced by lots to the northwest corner of the house, Mrs. Parks to recover this west 16% feet of where it was attached to the house, and from lot 11. On the trial, evidence was offered the center of the well at the southwest cor- tending to show that considerable uncertainner of the house south to an alley extending ty existed as to the true location of the lot east and west along the south end of the lines in that block and other parts of the lots. This fence, with the west end of the city; that the Calvets, owning only lot 11 house, formed the east boundary of an in- at the time they built their dwelling house closure which was supposed to include all, or upon it, were afterwards informed that this nearly all, of lots 12 and 13, and was used house extended a foot upon lot 12; and that as the boundary between the premises occu- they afterward purchased lots 12 and 13, and pied by the tenant on lot 12 and the premises then erected the fence connecting with the occupied by the owners on lot 11; the well be- west end of their dwelling house, before reing used in common. The defendants Mr. ferred to. The evidence tended to prove that and Mrs. Baker examined these premises, the west line of lot 11, designated upon the and were shown the property by Mr. and recorded plat of the town site, was 162 Mrs. Calvet. At that time neither the own- feet west of this north and south fence on the ers nor the defendants knew where the lot east side of the premises occupied by the lines were, but the defendants purchased the Bakers, and the judgment was for the plainpremises described in the conveyance made tiff for its recovery. to Mrs. Baker on November 23, 1891, as follows: "* * * All the following-described real estate, situated in the county of Washington and state of Kansas, to wit: All that part of lots twelve (12) and thirteen (13) in block four (4) in the city of Washington, Kansas, lying west of the west end of the residence now owned and occupied by said grantors and more particularly described as follows, to wit: Commencing at a point on the north line of said lot No. twelve directly north of the west end of said dwelling house and running south to the alley, thence west along the north line of said alley to the south-west corner of said lot No. thirteen (13), thence north along the west line of said lot to the north-west corner thereof, thence east along the north line of said lots to the place of beginning. Said grantors hereby grant the said grantee the free use of the well used in connection with the premises above granted as long as he bear one-half of the expense of cleaning and repairing said well." The defendants took immediate possession of the premises included in the inclosure referred to, and were in the undisturbed open possession thereof when this action was commenced. On September 10, 1903, W. Calvet and wife made a conveyance to Emma A. Parks of premises, thus described: "All the following-described real estate situated in the county of Washington and state of Kansas, to wit: Lot No. eleven (11) in block No. four (4), in the city of Washington, county and state aforesaid; and all that part of lot No. twelve (12) which was not deeded to Charlotte Baker." Mrs. Parks took immediate possession under this deed of all The defendants contend that, in applying the rule that fixed visible monuments control courses and distances in the description of lands, all the land west of the west end of the house and the connecting fence was conveyed to Mrs. Baker; the house being the controlling monument. But, if the description should be considered ambiguous or of doubtful meaning, susceptible of different interpretations, then they contend that parol evidence offered by them to prove that this fence was the boundary actually agreed upon at the time of the conveyance was erroneously rejected. They insist, also, that evidence offered to prove that a parol agreement was afterward made between the parties establishing the boundary line in question, and which evidence was also rejected, should have been admitted. With respect to the first of these claims, the plaintiff contends that, applying the same rule that fixed monuments govern, no part of lot 11 was conveyed by the first deed. She insists that the controling monument is, not the house, but the initial point in the "north line of lot 12" referred to in the deed, and that in starting there an intention was shown to reserve all of lot 11. On the other hand, the defendants insist that this reference to the north line of lot 12 only indicates a mistake, growing out of the prevailing uncertainty as to lot lines. The description of the east boundary in the deed to Mrs. Baker is ambiguous. The evidence shows that a point directly north of the west end of the house would not be in the north line of lot 12, but would be in the north line of lot 11. It is clear that there is a mistake in one of these particulars. It was GIBSON V. REYNOLDS. (Supreme Court of Kansas. Dec. 11, 1909.) TAXATION (8 788*)-TAX DEED-CONSIDERA TION. Where a compromise tax deed has been of record more than five years, and it appears upon the face of the deed that the certificate was assigned by order of the county commissioners July 5, 1897, for the sum of $35.75, and that the deed was executed on the 10th of the following January, and the consideration stated in the deed was $45.69, it will be assumed that the excess of consideration above the amount of the assignment of the certificate was occasioned by the payment of the tax of 1897, which became due and payable after the assigntion of the deed. Pac. 191 (Syl., point 3) that: "Where there is a latent ambiguity in the description of the land conveyed by deed, parol evidence may be received, not to contradict the instrument, but to explain the ambiguity, and to that end testimony as to the situation and condition of the land conveyed, the circumstances under which the conveyance was made, and the practical construction put upon the conveyance by the parties may be admitted." The description in the deed under consideration presents a proper case for the application of this rule, which is supported by numerous decisions in other states and by text-writers. Purkiss v. Benson, 28 Mich. 538; Dodd v. Witt, 139 Mass. 66, 29 N. E. 475, 52 Am. Rep.ment of the certificate, and before the execu700; Jackson v. Britton, 4 Wend. (N. Y.) 507; 1 Greenleaf on Ev. (16th Ed.) p. 431; Wigmore on Ev. §§ 2470-2474; 20 Cent. Dig. tit. Ev. § 2131. The statements of the grantors made while negotiating the sale respecting the location of the boundaries and corners were competent as tending to identify the property they intended to convey, and to aid in the interpretation of the uncertain descrip tion in the deed. Evidence of this character was offered and excluded. This ruling was erroneous. The defendants also offered testimony to prove that after the deed to the plaintiff had been executed, and while both parties were in possession and claiming under their respective deeds, they agreed by parol that the boundary line between their respective properties should be the fence so extending north and south from the west end of the house before referred to. This testimony was also excluded. In Steinhilber v. Holmes, 68 Kan. 607, 75 Pac. 1019, it was held that: (Syl., point 2): "The owners of adjoining tracts of land may, by parol agreement, settle and permanently establish a boundary line between their lands, which, when followed by possession according to the line so agreed upon, will be binding upon the parties and their grantees. Such an agreement, followed by possession, is not obnoxious to the statute of frauds." The evidence shows that at the time referred to in this offer the lot lines in block 4 and other blocks were still uncertain. To use the language of a witness for the plaintiff, it "had always been a wide-open question in that town." The location of this particular boundary according to the plat of the town site was unknown to both of them. Their grantor had been in doubt over the matter, and the deed made by him to Mrs. Baker was susceptible of two interpretations. If in such a situation these parties mutually agreed upon the line, their action was commendable, and proof of such an agreement was erroneously excluded. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1555, 1557, 1559-1569; Dec. Dig. § 788.*] (Syllabus by the Court.) Appeal from District Court, Kiowa County; Gordon L. Finley, Judge. Action by Charles E. Gibson against James M. Reynolds. Judgment for plaintiff, and defendant appeals. Reversed. John W. Davis, for appellant. L. M. Day, for appellee. GRAVES. J. This is an action of ejectment commenced in the district court of Kiowa county to recover the possession of the land in controversy. The plaintiff, Gibson, was the owner of the patent title. The defendant was in possession of the land, claiming under a tax deed only. The sole question presented is whether that tax deed is valid or not. The trial court held that it was void upon its face and awarded the land to the plaintiff. The defendant appeals to this court. The tax deed reads: "Know all men by these presents: That whereas, the following described real property, viz.: The northeast quarter (4) of section thirty-four (34), township thirty (30) south, range sixteen (16) west of the sixth principal meridian, situated in the county of Kiowa, state of Kansas, was subject to taxation for the year A. D. 1892; and whereas, the taxes assessed upon said real property for the year A. D. 1892 aforesaid remained due and unpaid at the date of sale hereinafter named. And whereas, the treasurer of the county did, on the 5th day of September, A. D. 1893, by virtue of the authority in him vested by law, at an adjourned sale of the sale begun and publicly held on the first Tuesday of September, A. D. 1893 expose at public sale, at the county seat of said county in substantial conformity with all the requisitions of the statute in such case made and provided, the real property above described, For the errors referred to which appear for the payment of the taxes, interest and to have been material, the judgment is re- costs then due and remaining unpaid on said versed, and the cause is remanded for fur- property. And whereas, at the time and ther proceedings. All the Justices concurring. place aforesaid, no person bid amount of |