pleaded that Hensel was the owner and entitled to the possession of the northeast quarter of a section named in the petition; that the plaintiff unlawfully kept him out of the possession, and prayed for the recovery thereof. A reply was filed, and the action was tried after the expiration of the threeyear period of limitation named in the statute. On the trial the following colloquy took place: "Defendant's Attorney: I presume you will concede that the patent is on record to Mr. Hensel? Plaintiff's Attorney: No, sir; I do not. In fact, I say that he has not, and never had, any title whatever to this quarter of land. The Court: Well, that, of course, will necessitate a full line of proof. Defendant's Attorney: If the court please, to end the discussion here, I understand now what all of the trouble is. It seems that in my answer I have misdescribed the property, and given it as the northeast instead of the northwest. I ask permission now to amend my answer by making it 'northwest' instead of 'northeast.' Plaintiff's Attorney: We object to any amendment at this time, your honor, for the very good reason that the time within which he might open up the judgment as to any interest he might have expired on the 6th day of October last, and if he has opened up the judgment as to the wrong quarter of land, he cannot now come in and open up judgment as to a different quarter of land. The Court: I will permit the amendment, and proceed to trial as to the interest of the defendant, Hensel, in that suit." Abstract, p. 6. The trial proceeded, and Hensel recovered judgment for the possession of the northwest quarter described in the amendment. The allowance of the The allowance of the amendment is assigned as error. The argument is that the amendment changed the counterclaim, and was in effect a new cause of action in favor of the defendant, and was beyond the power of the court to allow, after the expiration of the three-year period. he had been sued might be determined. If this were an original action to recover a particular tract of land, and an amendment had been proposed substituting a different tract after the period of limitations for such actions had elapsed, a different question would have been presented. Here the defendant's (Hensel's) claim to the very land described in the amendment was the plaintiff's only cause of action against him. The identity of this cause of action, and of the defendant's counterclaim with respect to the same subject of action were both preserved by the amendment. The amendment was in furtherance of justice, and was properly allowed. Gen. St. 1901, § 4573 (Civ. Code, § 139); Code Civ. Proc. 1909, § 140; K. P. Ry. Co. v. Kunkel, 17 Kan. 145; Taylor v. Atchison, T. & S. F. Ry. Co., 64 Kan. 888, 68 Pac. 691; Hucklebridge v. Railway Co., 66 Kan. 443, 71 Pac. 814; Kennett v. Van Tassell, 70 Kan. 811, 79 Pac. 665; Stevenson v. Mudgett, 10 N. H. 338, 34 Am. Dec. 155; Walker v. Fletcher, 74 Me. 142; Mann v. Schroer, 50 Mo. 306. The judgment is affirmed. All the Justices concurring. BANKERS' DEPOSIT GUARANTY & SURETY CO. v. BARNES, Superintendent of Insurance. (Supreme Court of Kansas. Dec. 11, 1909.) 1. INSURANCE (§ 32*)-INDEMNITY INSURANCE -INCORPORATION-GUARANTY COMPANY. The provisions of section 1, c. 159, p. 223, Laws 1905, relating to the incorporation of surety, fidelity, and guaranty companies, are by necessary inference applicable to the incorpothe purpose of guaranteeing the payment of ration of companies organized in this state for deposits in state and national banks. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 37; Dec. Dig. § 32.*] 2. INSURANCE (§ 5*) - GUARANTEEING BANK DEPOSITS. All of the steps to be taken and all the requirements to be met to entitle a company which has been granted a charter by the charter board of the state for such purpose to obtain a certificate of authority to do business in this state are prescribed in section 3 of the above act (Acts 1905, p. 223, c. 159), and in sections 3419, 3421, and 3422, Gen. St. 1901, which by reference in the act of 1905 are applicable in connection therewith. Cent. Dig. § 5; Dec. Dig. § 5.*] [Ed. Note.-For other cases, see Insurance, 3. INSURANCE (§ 5*)-GUARANTY INSURANCE COMPANY-ISSUE OF CERTIFICATE. The defendant was the owner of the northwest quarter, and did not claim any interest in the northeast quarter. It is manifest that he intended to describe the land to which he claimed title, and it must have been this claim that the plaintiff sought to have determined when he made Hensel a defendant. If but one tract had been described in the petition, and but one adverse claimant had been named as defendant, the right to permit the amendment could not have been seriously questioned. The fact that other lands were included, and that other defendants who claimed the other tracts were made defendants, does not change the situation as to this tract and this defendant. This is not a case where an attempt is made by amendment to litigate an entirely different cause of action. On the contrary, the amendment was allowed in order that the very claim against this defendant in respect to which When the corporation organized for such purpose has complied with all the prerequisite statutory requirements, it is the duty of the superintendent of insurance to furnish the company with a certificate of authority for it to commence the business proposed in the charter (Gen. St. 1901, § 3422), and such superintendent has no discretion to impose any other requirement as a condition precedent to the issuance of such certificate. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 5; Dec. Dig. § 5.*] (Syllabus by the Court.) 4. WORDS AND PHRASES-"DUTY." Application by the Bankers' Deposit Guaranty & Surety Company for writ of mandamus to Charles W. Barnes, Superintendent of Insurance of the State of Kansas. Writ allowed. lowed to prescribe, as a condition precedent to the issuance of such writ of authority, such regulation in regard to the rate of interest to be charged by banks accepted as risks. The Attorney General intervenes on behalf of the state and objects to the allowance of a peremptory writ of mandamus on substantially the same grounds as are urged by the superintendent of insurance. John E. Hessinl and J. W. Gleed, for plain- entitled to the charter issued to it, we are To determine whether the plaintiff was tiff. F. S. Jackson, for defendant. referred to chapter 159, p. 223, Laws 1905, SMITH, J. The plaintiff corporation pro- in addition to the purposes for which corporasection 1 of which reads as follows: "That cured from the state charter board a char- tions may be formed under existing laws of ter, which specified, among other purposes of this state, private corporations may also the corporation, the following: "To guarantee the fidelity of persons holding offices of be formed for the purpose of guaranteeing public or private trust, to execute and guar-lic or private trust, to execute and guarantee the fidelity of persons holding offices of pubantee bonds and undertakings in judicial pro-bonds and undertakings in judicial proceedceedings, and to guarantee the faithful per formance of any and all public, official and ings, and to guarantee the faithful performprivate duties. It being the purpose and in-ance of any and all public, official or private tent of said corporation to insure and guarantee payment of deposits in state and national banks to their depositors. * * *" After obtaining such charter, the company applied duties." On reading this section it will be observed that it authorizes the formation of private corporations for three separate and distinct purposes other than the purposes for which corporations may be formed under the then existing laws of the state, namely: First, "for the purpose of guaranteeing the fidelity of persons holding offices of public or private trust." This clause relates exclusively to persons holding offices of public or private trust. Second, "to execute and guarantee bonds and undertakings in judicial proceedings." Under this clause the bond or undertaking in a judicial proceeding of a person, copartnership, or corporation might be guaranteed. Third, "and to guarantee the faithful performance of any and all public, official or private duties." This provision is very broad. It is difficult to conceive of a breach of duty which might result in monetary loss which may not be insured under this provision, whether the duty rested upon individuals or associations. The word "duty" is defined in Words and Phrases Judicially Defined, vol. 3, p. 2284: "One's duty is what one is bound or under obligation to do." Accepting this as a correct definition, and applying it to the third clause, it seems to authorize the formation of a corporation to guarantee the performance by any person, corporation, or association of persons of any and all public, official, or private obligations which are legally assumed or imposed by law upon such person, corporation, or association and the breach of which may result in a monetary loss. One of the principal purposes of a bank, either state or national, is to receive deposits of money from persons, cor to the superintendent of insurance for a certificate of authority to do business in the state. The superintendent refused the application and assigned several reasons therefor. On the filing of the application by the company in this court for a writ of mandamus to compel the issuance of the authority, an alternative writ was allowed, and the superintendent thereafter filed his answer, in which he admits that the objections which he made in refusing to allow the application had been removed, except one, namely, that the laws do not permit the incorporation of a company for the purposes for which the plaintiff was incorporated. In his answer he makes the further objection, in substance: That in the charter there is no limit to the rate of interest which may be charged by the banks the payment of whose deposits are to be guaranteed; that he believes that much harm might result to the persons participating therein, either as insured or insurer, and to the people of the state, unless such business is carefully and strictly regulated, and the risks undertaken by the insurer be carefully selected under reasonable regulations strictly enforced; that he believes he has authority as such superintendent in the exercise of his discretion to provide rules forbidding the company to accept risks and insure the deposits of any bank which accepts deposits bearing a greater rate of interest than 3 per cent. per annum; that he believes it to be his duty to impose such a regulation upon the plaintiff company, or any other com-porations, or associations, and to repay such pany transacting such business within the state. The superintendent further asks that he be not required to furnish the plaintiff with the certificate of authority prayed for if the court shall find that the plaintiff is deposit on demand, or at such time as may be agreed upon. This is unquestionably a private duty of the bank, and we think that the section of the statute in question by necessary inference authorizes the formation of guaranteeing the payment of deposits in state | published in a paper of general circulation and national banks to their depositors. The superintendent of insurance is the head of one of the executive branches of the state government, and as such in many matters pertaining to his department is expressly granted by statute great latitude of discretion, and in certain other matters by reasonable implication he has also great latitude of discretion., The office of superintendent of insurance is created by statute, and the extent of the powers and the limitations thereof is to be determined by the provisions of the statute, construed, of course, liberally for the purpose of enabling this department effectively to discharge the duties assigned To determine intelligently therefore whether the superintendent of insurance has the power to prescribe any requirement as a condition precedent to the issuance of the certificate of authority prayed for by the plaintiff, we must consult the statute applicable thereto. Section 3, c. 159, p. 223, Laws 1905, reads as follows: "Upon being granted a charter by the charter board, such corporation shall not transact any business in the state until it shall have, in addition thereto, complied with the laws of this state governing life insurance companies so far as applicable, and shall obtain from the superintendent of insurance authority to do business in the same manner and upon payment of the same fees required of life insurance companies organized under the laws of this state." The laws of this state governing life insurance companies to which reference is made in the foregoing section are sections 3419, 3420, 3421, and 3422, Gen. St. 1901, which read as follows: "Sec. 3419. Every company or corporation formed or organized pursuant to chapter 23 of the General Statutes of 1868 for the purpose of making insurance on the lives of individuals shall file in the office of superintendent of insurance a copy of its charter, duly certified by the secretary of state, and it shall also file a copy of its by-laws, which shall set forth the number of its directors or trustees, which shall not be less than five nor more than twenty-five, and the manner of electing the same, and their term of office respectively, a majority of whom shall be citizens of this state, the times of holding elections, and the manner of filling vacancies. And every such company shall thereafter have power to make insurance on lives of individuals, and every assurance pertaining thereto or connected therewith, and to grant, purchase and dispose of annuities and endowments of every kind and description what in the county in which the office of the company is to be located, for four weeks successively; they may then proceed to open books for subscription to the capital stock of the company, and keep the same open until the whole amount specified in the charter is subscribed; but it shall not be lawful for such company to issue policies or transact any business of any kind or nature whatsoever until they have fully complied with all the requirements of this act, which fact shall be certified by the superintendent of the insurance department. "Sec. 3421. Upon being notified that the capital stock named in the charter has been subscribed, and one hundred thousand dollars thereof paid in, the superintendent shall make an examination, or cause the same to be made by some disinterested person specially appointed by him for that purpose; and if it shall be found by himself, or if the person so appointed shall certify under oath, that the provisions of this act have been complied with by said company so far as applicable thereto, which certificate, when made shall set forth the particulars of such compliance, then the superintendent shall so certify. The corporators or officers of such company shall be required to certify under oath to the person making such examination that the money, notes, stocks, bonds, mortgages and deeds of trust and obligations exhibited to him are the bona fide property of said company. "Sec. 3422. When the corporators have fully complied with the requirements of the preceding sections, and said corporation has deposited with the treasurer of state ($100,000) the amount of capital required to be deposited by the provisions of this act, it shall be the duty of the superintendent of insurance to furnish the company a certificate of such deposit, and a certificate of authority for it to commence the business proposed in its charter, which, on being filed and recorded in the office of the register of deeds of the county in which the company is to be located, shall be its authority to commence business and issue policies; and such certified copies of the declaration and certificate of deposit may be used in evidence for or against said company with the same effect as the originals." There has been an amendment to section 3421 as to the amount of capital stock necessary to have been subscribed; but that is immaterial in this case, as it is conceded that the corporation has complied with the requirement as amended. Every step necessary to be taken and every requirement to be met "Sec. 3420. Whenever the corporators shall to entitle the corporation to a certificate of file such charter and by-laws with the su- authority to commence business seems to be perintendent of the insurance department, specified in these sections of the statute, and they shall cause notice of their incorpora- the defendant admits that all these provition and the names and residences of their sions have been complied with. Section 3422 ever. We find that the superintendent of insurance in this case is not vested with any authority to impose any requirement beyond those prescribed by the statute as a condition precedent to the issuance of a certificate of authority to the plaintiff to do business in this state. The peremptory writ of mandamus is allowed as prayed for, and judgment against the defendant for costs. All the Justices con porators have fully complied with the require- I STEELE v. DYE et al. (Supreme Court of Kansas. Dec. 11, 1909.) 1. TAXATION (§ 762*)-TAX DEED-RECITALS. A compromise tax deed over five years old is not rendered void by a recital that the taxes subsequent to the assignment of the certificate were paid by the purchaser, no amount being named, when no taxes due at the time of the compromise are shown to have been excepted from its operation, and no new taxes accrued between such assignment and the execution of the deed, and the consideration recited in the nega-granting clause is the amount for which the certificate was issued. We are referred to State v. Insurance Co., 30 Kan. 585, 2 Pac. 840, Insurance Co. v. Wilder, 40 Kan. 561, 20 Pac. 265, and Insurance Co. v. Wilder, 43 Kan. 731, 23 Pac. 1061, as authorities upon the question of discretion of the superintendent of insurance. These cases all related to mutual fire insurance companies, and rested upon statutes quite different from the statutes relating to life insurance companies quoted above. State v. Insurance Co., supra, simply held that the state has the right to say who may engage in the business of insurance and upon what terms. In the case of Insurance Co. v. Wilder, 40 Kan. 561, 20 Pac. 265, the court held that the matter of authorizing fire insurance companies to transact business in the state involved the exercise of official judgment and discretion on the part of the superintendent of insurance, which discretion cannot be controlled or directed by mandamus. In the later case of Insurance Co. v. Wilder, 43 Kan. 731, 23 Pac. 1061, the statute had been materially modified, although it granted a much larger discretion than do the statutes involved in this case, and the court therein held that the determination of the superintendent of insurance in granting, refusing, or revoking the authority of the mutual fire insurance company to do business on account of insolvency or noncompliance with the laws of the state is not final, but his action in that regard is subject to inquiry and control by the court. These authorities recognize that the question of discretion in the superintendent of insurance is to be determined by the statutes granting or omitting to grant the authority, and in this respect only are these decisions relevant to the questions here involved. [Ed. Note.-For other cases, see Taxation, Dec. Dig. § 762.*] 2. TAXATION (8 762*)-TAX DEEDS-RECITALS -"OWNER." The statutory requirement that a tax deed shall recite that the land sold at tax sale has not been redeemed therefrom is sufficiently fulfilled by a recital that the owner has not offered to redeem it; the word "owner" in this connection, as in the statute relating to redemption, including any one who has a substantial interest in the property. [Ed. Note.-For other cases, see Taxation, Dec. Dig. § 762.* For other definitions, see Words and Phrases, vol. 6, pp. 5134-5151; vol. 8, p. 7744.] 3. TAX DEEDS-VALIDITY. Other objections to a tax deed examined, and held not to be fatal. 4. STIPULATIONS (§ 14*) "PREVAIL." CONSTRUCTION - A stipulation that an action shall be submitted upon an agreed statement of facts, and that if the defendant "prevails" a certain judgment shall be rendered, does not prevent the plaintiff from causing a dismissal without prejudice, in which case the defendant will not have "prevailed" within the meaning of the stipulation. [Ed. Note.-For other cases, see Stipulations, Dec. Dig. § 14.* vol. 6, pp. 5543, 5544; vol. 8, p. 7762.] (Syllabus by the Court.) Appeal from District Court, Wallace County; J. C. Ruppenthal, Judge. MASON, J. John T. Steele, having pos- county aforesaid, for and in consideration session of a tract of land under a compro- of the sum of twenty-five dollars and no-100 mise tax deed more than five years old, cents, so paid to the treasurer of said county, brought an action to quiet his title. CharChar- as aforesaid, and in pursuance of the said lotte A. Dye, one of the defendants, answer- resolution of said board, and by virtue of the ed claiming title in herself, alleging the in- statute in such cases made and provided, validity of the tax deed upon various grounds, have granted, bargained and sold, and by and asking that it be set aside, and that she these presents do grant, bargain and sell be given possession of the property. A stipu- unto the said John Steele, his heirs and aslation was filed providing that the case signs, the real property last hereinbefore deshould be submitted upon certain agreed scribed." facts. The plaintiff's cause of action upon his petition was then upon his request dismissed without prejudice. The court upon the agreed facts gave judgment for the defendant as prayed in her answer. The plaintiff seeks to reverse this judgment upon the ground that his tax deed was good upon its face and therefore unassailable. The principal question to be determined is whether the deed was void upon its face. It proceeded as follows, after reciting the offer of the land at tax sale in September, 1894: "And whereas, at the time and place aforesaid, no person bid the amount of tax, penalties, and charges on said land, the said land was bid off by the county treasurer for the county of Wallace for said amount, to wit, the sum of twenty-six dollars and 89 cents, being the whole amount of taxes, interests and costs then due and remaining unpaid on said property, for * which was the least quantity bid for; and where as, said above-described real property has remained unredeemed from said sale, for the period of three years from the date thereof, and no persons have offered to purchase the same for the taxes, penalties, interests and costs due thereon; and whereas, the board of county commissioners of said county of Wallace did, on the 23d day of November, A. D. 1899, by resolution of that date, appearing of record at page 446 of the record of said board, permit and authorize the county treasurer of said county to execute, and the county clerk of said county to assign, a tax sale certificate of and for said described real property to John Steele at and for the sum of twenty-five dollars, which said sum was then and there, on the 20th day of December, A. D. 1899, paid to said treasurer by said John Steele; and whereas, said treasurer did, on the 20th day of December, A. D. 1899, execute a tax sale certificate of and for said described real property, and said county clerk did, on the 20th day of December, A. D. 1899, duly assign the same and all the right, title and interests of the said county in and to said property to said John Steele; and whereas, the subsequent taxes have been paid by the purchaser as provided by law; and whereas, the period of six months has elapsed since such assignment was made, and neither the owner of said property, his agent or attorney, has offered to redeem the same: Now there The defendant maintains that the deed shows the payment of subsequent taxes by the holder of the tax sale certificate without stating the amount, and is therefore void. As appears above, the deed, after reciting the assignment of the certificate to the purchaser, continues: "And whereas, the subsequent taxes have been paid by the purchaser as provided by law." er as provided by law." But the other recitals show, prima facie at least, that there no subsequent taxes, and therefore that nothing further could have been paid on that account. The order of the county commissioners was made November 23, 1899. At that time the taxes of 1899 were a lien on the property. Gen. St. 1901, § 7615. The board had authority to include them in a compromise. Tucker v. Shorb, 80 Kan. 103 Pac. 79. The deed does not show that they were specially excepted, and therefore, by inference at least, does purport to show that they were so included. As no new taxes accrued between the date of the compromise and the time the deed was issued, the statement that the holder of the certificate paid the subsequent taxes as provided by law is necessarily only formal, and, in view of the other statements, does not signify that any further payment was actually made. The situation is much the same as though, after the words, "the subsequent taxes," there had been inserted, "amounting to $0.00." Indeed, the plaintiff suggests that the peculiar phraseology of the deed was occasioned by striking out the blanks left in the form for the insertion of the amount. The conclusion reached is strengthened by the fact that the consideration named in the granting clause is precisely the amount for which the compromise was made. The statutory form prescribed for tax deeds (Gen. St. 1901, § 7676) includes this recital: "And whereas years have elapsed since the date of said sale, and the said property has not been redeemed therefrom as provided by law." The deed in question recites that "the period of six months has elapsed since such assignment was made, and neither the owner of said property, his agent or attorney, has offered to redeem the same." Two objections are made to the formula employed: (1) That it relates only to the period between the assignment of the certificate and execution of the deed, and does not negative a redemption prior to the assignment; and |
