« ForrigeFortsett »
guaranteeing the payment of deposits in State 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 it. 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 WhatGWOT. “Sec. 3420. Whenever the corporators shall file Such charter and by-laws With the Superintendent of the insurance department, they shall cause notice of their incorporation and the names and residences Of their
published in a paper of general circulation 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 to entitle the corporation to a certificate of authority to commence business seems to be specified in these Sections of the Statute, and the defendant admits that all these provisions have been complied with. Section 3422 porators 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.” Whether the regulation proposed by the Superintendent of inSurance be or be not desirable as a safeguard to the people of the state, we cannot, considering the provisions of these statutes, reasonably infer that the Legislature intended to leave anything to his discretion in the matter. On the other hand, it seems that the Legislature has prescribed every step and requirement to be taken by or demanded of the applicant to entitle it to a certificate of authority to do business, and has provided that upon the taking of these steps it shall be the duty of the superintendent of insurance to issue a certificate of authority. The Statute Seems indeed to be an express negation of any further requirement.
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 in VOlved 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 InVO1Ved.
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 conCUIT.
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 granting clause is the amount for which the certificate was issued. [Ed. Note.—For other cases, see Taxation, Dec. Dig. $ 762.*]
2. TAXATION ($ 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*) – CONSTRUCTION “PREVAIL.’’ 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.* For other definitions, see Words and Phrases, vol. 6, pp. 5543, 5544; vol. 8, p. 7762.]
(Syllabus by the Court.)
Appeal from District Court, Wallace County; J. C. Ruppenthal, Judge. • Action by John T. Steele to quiet title against Charlotte A. Dye and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.
W. S. Roark and W. E. Ward, for appellant. Lee Monroe and George A. Kline, for appellees.
MASON, J. John T. Steele, having posSession of a tract of land under a compromise tax deed more than five years old, brought an action to quiet his title. Charlotte A. Dye, one of the defendants, answered claiming title in herself, alleging the invalidity of the tax deed upon various grounds, and asking that it be set aside, and that she be given possession of the property. A stipulation was filed providing that the case should be submitted upon certain agreed facts. The plaintiff's cause of action upon his petition was then upon his request dismissed without prejudice. The court upon the agreed ficts 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 whereas, 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
County aforesaid, for and in consideration of the sum of twenty-five dollars and no-100 cents, so paid to the treasurer of said county, as aforesaid, and in pursuance of the Said resolution of said board, and by virtue of the statute in such cases made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the Said John Steele, his heirs and asSigns, the real property last hereinbefore deScribed.” 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.” But the other recitals show, prima facie at least, that there Were 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 hamed 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 land, and does not negative a redemption by a mortgagee or other lienholder. We think it fairly implies that, after the property was bid in for the county, no redemption was attempted at any time. The statute (Gen. St. 1901, § 7662) provides that any “owner, his agent or attorney,” may redeem from a tax Sale at any time before a deed issues. An “owner,” in this sense, is “any one who has a substantial interest in the premises.” 2 Cooley on Taxation, 1045; Black on Tax Titles, § 365; 2 Blackwell on Tax Titles, § 705; Dubois V. Hepburn, 35 U. S. 1, 22, 23, 9 L. Ed. 325. Since the Word means this in the Statute, it should be given the Same effect in the deed, which adopts the statutory phrase. A further objection is that the Order authorizing the assignment of a certificate for $25 was made November 23d, and that, as the certificate Was not taken Out until December 20th, the purchaser should have paid interest on the amount. The deed does not show that the order required the payment of interest if it Was not acted upon at Once, and there is no presumption to that effect. Again it is objected that the deed shows the county to have been a competitive bidder at the tax sale within the rule announced in Larkin v. Wilson, 28 Kan. 513. There, however, the recitals were held to show that the county treasurer made the first bid, and the argument was that his offer might have prevented others from bidding. Here the deed departed from the statutory form so far as relates to this matter in only two respects. For the recital, “said property could not be Sold for the amount of tax,” it Substituted, “no person bid the amount of tax,” which amounted to the same thing, and it added to the statement that the land was bid off for the county, the words, “for * * * which was the least quantity bid for,” which were meaningless in that connection and therefore harmless. The final objection to the deed is that, after stating the consideration, it fails to add the words found in the statute, “taxes, cost and interest due on said land for the years .” The omitted matter was not applicable, for the consideration was not the amount of the taxes for the Several years, but the amount agreed upon as a compromise. The defendant makes a further Contention upon another feature of the case. She claims that the judgment Was rendered by consent and therefore is not reviewable. The stipulation already referred to contained a provision that, if the defendant “prevailed,” the plaintiff should be given a lien for the taxes he had paid. The defendant insists that, as he afterwards dismissed his cause of action, he thereby voluntarily permitted her to “prevail,” and authorized the court under the stipulation to render judgment
giving him a lien. We do not consider this a just interpretation of the language used. The force of the stipulation was that the plaintiff Should have a lien for taxes if the defendant prevailed—that is, obtained a decision on the merits in her favor—after a final submission. Although the parties had agreed to Submit the Case upon an agreed statement of facts, the plaintiff Still had the right to have it dismissed without prejudice. Pugsley V. Railway Co., 69 Kan. 599, 77 Pac. 579. The judgment complained of was not founded upon any consent of the plaintiff, but upon the conclusion of the court that the tax deed was void on its face. The plaintiff has not waived his right to review this decision.
The judgment is reversed, and the Cause remanded, with direction to enter judgment denying the defendant relief. All the JusticeS COnCur.
GUNN V. BROWER. (Supreme Court of Kansas. Dec. 11, 1909.)
1. TAXATION ($ 764*)—TAx DEED-DESCRIPTION. Where by reason of the deficient acreage of a congressional township a quarter section thereof is divided by the government survey, in accordance with the usual practice, into an 80-acre tract and two numbered lots, each containing somewhat less than 40 acres, one of such lots is sufficiently described in a tax deed as a quarter of the quarter section. [Ed. Note:—For other cases, see Taxation, Cent. Dig. §§ 1519–1522; Dec. Dig. § 764.”] (Syllabus by the Court.)
2. TAXATION (§ 776*)—TAX DEEDS—DESCRIPTION OF LAND CONVEYED – “SOUTHWEST QUARTER.” The phrase “the southwest quarter” of a named section, used in a tax deed describing the lands conveyed, means the tract indicated on the official plat most nearly responding to that call, notwithstanding it does not contain 160 acres, nor one-fourth of the area of the entire section. [Ed. Note.—For other cases, Dec. Dig. § 776."] 3. DEEDs (§ 113*)—CoNSTRUCTION-DESCRIPTION OF PROPERTY CONVEYED—“HALF.” Where there is nothing to suggest the contrary, the word “half” in connection with the conveyance of a part of a tract of land is interpreted as meaning half in quantity. [Ed. Note.—For other cases, see Deeds, Dec. Dig. § 113.” For other definitions, see Words and Phrases, vol. 4, pp. 3207, 3208; vol. 8, p. 7676.]
Appeal from District Court, Kiowa County; Gordon L. Finley, Judge.
Action by W. C. Gunn against D. M. Brower. Judgment for defendant, and plaintiff appeals. Affirmed.
Keene & Gates and J. W. Davis, for appellant. L. M. Day, for appellee.
MASON, J. A tax deed, not challenged except as to the sufficiency of the description, purported to convey “the south half of the Southwest quarter of section 7” in a designated township and range. The district COurt SuStained the holder’S claim Of title to land properly described under the government survey as “lot 4 and the south half of the east half of the Southwest quarter” of that section. The only question presented is, Was this error? The township in which the land is situated is slightly deficient in acreage. Under the federal statute (Rev. St. U. S. §§ 2395, 2397 [U. S. Comp. St. 1901, pp. 1471–1473]) the deficiency was distributed among the Sections of the northern and West. ern tierS. The northWest and South West quarters of Section 7 therefore were irregular in Shape, Or, as the term is sometimes used, “fractional.” The east 80 acres of each of these quarters formed a tract known as the east half thereof. Each quarter was fur... ther subdivided by a line running east and west equidistant from its northern and southern boundaries, dividing the east half into two equal parts, and the remainder of the quarter section into two parts not necessarily of exactly equal area. The tract corresponding to What Would have been the exact Southwest quarter of the southwest quarter of section 7, if it had been of full size, Was designated on the official plat as lot 4, containing 36.55 acres. The tract north of it, designated as lot 3, contained 36.60 acres. This arrangement Was not arbitrary or accidental, but resulted from the established practice of the government surveyors, under the regulations of the Commissioner of the General Land Office. I Lester's Land Laws, Regulations and Decisions, pp. 706, 722, 723. As already stated, the technically correct deScription of the land claimed by the holder of the tax deed would be “lot 4 and the South half of the east half of the SouthWest quarter” of section 7. The question to be determined is whether the formula actually used—“the South half of the Southwest quarter”—amounts to the same thing. There is no difficulty in saying that the phrase “the Southwest quarter” of section 7 means the tract indicated on the official plat most nearly responding to that call, notwithstanding it does not contain 160 acres, nor One-fourth Of the area. Of the entire Section. Brown v. Hardin, 21 Ark. 324, 327; William K. Lente V. Brente L. Clarke, Adm'x, 22 Fla. 515, 525, 1 South. 149. But the language of the deed. Where it Speaks of “the South half” of this quarter section is open to two posSible constructions. It may refer to the exact south half according to the actual acreage, or it may refer to one of the two substantially equal parts into which the quarter Section is divided by the east and West line of the government survey. If it is impossible to tell which is intended, the deed may be void for indefiniteness. Where there is nothing to suggest the contrary, the word
a part of a tract of land is interpreted as meaning half in quantity. Owen v. Henderson, 16 Wash. 39, 47 Pac. 215, 58 Am. St. Rep. 17; Cogan W. Cook, 22 Minn. 137, 142; Hartford Mining Co. v. Cambria Mining Co., 80 Mich. 491, 45 N. W. 351; Jones v. Pashby, 62 Mich. 614, 29 N. W. 374. But where a tract has previously been in some manner divided into two parts of approximately equal Size, the usual presumption is that One of these parts is referred to. “The words east half” and ‘west half in a deed, while naturally importing an equal division, may lose that effect when it appears that at the time Some fixed line or known boundary or monument divides the premises somewhere near the center, so that the expression more properly refers to one of such parts than to a mathematical division Which never has been made. The expression in the deed is Controlled by the situation existing upon the premises themselves, and the manner of their uSe, and the monuments and boundaries existing.” People v. Hall, 43 Misc. Rep. 117, 122, 88 N. Y. Supp. 276, 279. See, also, Grandy v. Casey, 93 Mo. 595, 6 S.W. 376; Schmitz v. Schmitz, 19 Wis. 207, 88 Am. Dec. 681. This principle is applied where one of the lines of the government survey effects such a division. Prentiss V. Brewer, 17 Wis. 635, 86 Am. Dec. 730. See, also, Edinger v. Woodke, 127 Mich. 41, 86 N. W. 397; Kinsey et al. V. Satterthwaite, 88 Ind. 342; Turner V. Union Pacific Ry. Co., 112 Mo. 542, 545, 20 S. W. 673. It is not carried so far, however, aS to involve an aSSumption that One Who conveys the half of one of the smallest governmental subdivisions—a lot or a “forty”— intendS anything else than a division into equal parts. He is not presumed to have in mind a further partition of this surveyor's unit—the smallest “legal subdivision” (Hooper v. Nation, 78 Kan. 198, 96 Pac. 77)—by an extension of the method by which it was Created (Cogan V. Cook, 22 Minn. 137, 142; Jones v. Pashby, 62 Mich. 614, 29 N. W. 374). Possibly the rule referred to ought not to apply to tracts that are “fractional” in the Sense that they are irregular in shape because of the existence of a body of water or Some other like obstacle, so that they can conform to no general rule. Goltermann V. Schiermeyer, 111 Mo. 404, 416, 19 S. W. 484, 20 S. W. 161. But it is rightly invoked in Such a case as this, where the Only irregularity is that common to practically all tracts along the northern and Western boundaries of a township. Lot 4 of Section 7 is commonly and intelligibly described as “the southwest quarter of the southwest quarter,” just as the “Southwest quarter” itself is designated by that term, notwithstanding its area is leSS than 160 acres. We hold that the deed to “the South half of the SouthWest quarter” passed title to lot 4 and the south half of the east half of the southwest quar