5. ADVERSE POSSESSION ( 106*)-OPERATION | and incompetent. A demurrer to this amendAND EFFECT-TITLE ACQUIRED.

Such adverse possession and the operation of the statute of limitations created a title which can be used offensively or defensively.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. 88 604-623; Dec. Dig. 8 106.*]

ed reply, except the general denial, was overruled. Upon the trial the court found that the deed was procured by undue means, and that the defendant held the same in trust for the benefit of her father, but that his right to recover on this ground was bar

Appeal from District Court, Mitchell red; after making extended findings of fact. County.

Action by S. F. Freemon, as guardian of the estate of Hiram Moger, insane, against Rhoda Funk. From a judgment for tiff, defendant appeals. Affirmed.

the conclusion was reached that the plaintiff had a right to have his title quieted by reason of undisputed, quiet, peaceable, excluplain-sive, and adverse possession since 1889. The defendant appeals and presses 43 assignments of error; 5 relating to pleadings, 28 to the findings of fact and conclusions of law, and 10 to the reception of evidence. Owing to the trial court's restriction of the case to the issue joined upon the first cause of action, any errors which may have occurred in reference to the various pleadings cannot materially prejudice the defendant.

Park B. Pulsifer and Charles L. Hunt, for appellant. J. E. Tice, Ira N. Tice, and Kagey & Anderson, for appellee.

WEST, J. In 1888 Hiram Moger, a resiIdent of Mitchell county, deeded his homestead to his wife for the purpose of avoiding payment of a note for $175, given for a patent fence machine. During the same year, the property was deeded back to him by his wife, and he deeded it to his daughter, Rhoda Funk; the wife in the meantime having died. Not counting a temporary absence, he continued to live on the land until 1905, when he was adjudged insane and taken to an asylum. In the meantime, he had claimed the land as his own, had put valuable improvements thereon, had rented portions of it, and collected the rents, and had offered it for sale. About 1895, after having erected a house and barn on the place costing upwards of $1,000, he desired the land deeded back to him by Mrs. Funk, but she, being fearful that he contemplated a second marriage, made out on a warranty deed form a life lease, and delivered it to him. His guardian brought this action to settle for him the title to the land. The fourth, or third amended, petition was filed, containing two causes of action, the first to quiet title, and the second for specific performance of an alleged contract to reconvey. To this pleading a demurrer was interposed, on the grounds that the second count did not state a cause of action, that the alleged cause was barred by the statute of limitations, and that several causes of action were improperly joined. This demurrer was overruled, and an answer filed containing a general denial and an admission that the defendant claimed to be the owner of the land, setting up the deed from her father, her life lease to him, a breach by the father of its provisions to pay taxes for the year 1907, and that the second cause of action was barred, and praying that her title be quieted. To this answer the plaintiff filed an amended reply, verified on information and belief, containing a general denial and a claim that the deed was secured through false representations and undue influence when the grantor was mentally weak

[1] We have examined the findings and the evidence, giving careful heed to the challenge made to many items in the abstract of the appellee, and conclude that the decision is well supported, and in view of the fact that the cause was tried by the court without a jury we do not find any evidence wrongfully admitted which could by any fair reasoning be held to have led the court to a wrong determination. There were, as usual, conflicting claims and conflicting testimony, but there is abundant in the record to warrant the finding that from 1888 until his removal to an asylum, in 1905, Hiram Moger manifested symptoms of mental unsoundness which culminated in a mental and physical condition pathetic and repulsive. Many statements testified by various witnesses to have been made by the defendant afford sufficient basis for the finding that she took the deed with the understanding that the land was to be reconveyed upon the request of the father, and that the purpose was merely to hold his title until the patent fence matter should be out of the way. The guardian's attorney testified that shortly before the suit was brought she said to him, among other things: "I haven't any interest in the land; I don't pretend to own it;" and that she was about to sign a statement tr that effect, when her husband interposed and objected. Another witness testified that i a conversation between the Funks and Moger the latter said he had deeded the place to Mrs. Funk until he could get some trouble about the fence machine settled, when they were to deed it back to him, and that both Mr. and Mrs. Funk said it (the statement) was all right. Defendant herself, upon the stand, in answer to the question as to whether there was any talk or promise on her part that she would deed the property back at any time, answered: "No, sir; no specified time." A brother-in-law testified that she

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 117 P.-65

told him she would make the deed back to Moger whenever Moger called for it. Another brother-in-law testified that she said she did not pretend to own the land, but that she would not deed it back to Moger, because she wanted to keep him from disposing of it. She wrote a letter to her sister, in which she stated that her father was mad about the deed to the land; that she had made him what the lawyer called a life lease; that a woman wanted to marry him to get the farm. "Father can use the land as long as he lives, and when he dies it will come to us children, and all of us will get some share. He cannot deed it away." Of course, if she owned the land, it would not descend to her father's heirs, and the only way the others could get a share would be by deed from the owner. The probate judge and others testified to her statement that she did not pretend to own the land, and that the deed was to save the farm from the hands of parties who would take advantage of her father, and she intended to deed it back to him. Considering the relation of the parties, the mental condition of the father, the subsequent conduct and statements of both, the continued unresisted acts and assertion of dominion and ownership for more than 15 years, they fully justify the conclusion that a title by adverse possession had ripened, unless there be some rule of law preventing such conclusion.

til the grantor explicitly renounces the title of the grantee, or positively asserts a claim of title in himself, which is brought to the attention of the grantee. The evidence is abundant that the grantor all along asserted ownership in himself, and, as already suggested, the numerous statements made by the grantee, as testified to by various persons, amounted to repeated concessions that the grantor's claim was rightful, and that the shifting of the paper evidence of title back to the real owner was a mere formality.

[4, 5] Finally it is earnestly insisted that to allow the grantor's title to be quieted on the ground of adverse possession for the statutory period is to change the rightful defensive nature of the statute into that of a wrongful offensive weapon. Under the footnote of 25 Cyc. 983, "Statute no basis of claim for affirmative relief," the Kansas authorities are the only ones cited. Beginning with Corlett v. Insurance Co., 60 Kan. 134, 55 Pac. 844, containing the phrase, "which is a weapon of resistance, not of attack," similar expressions are found in Thompson v. Greer, 62 Kan. 522, 64 Pac. 48: Burditt v. Burditt, 62 Kan. 576, 64 Pac. 77; Johnson v. Wynne, 64 Kan. 138, 67 Pac. 549; Gibson v. Johnson, 73 Kan. 261, 84 Pac. 982; Updegraff v. Lucas, 76 Kan. 456, 93 Pac. 630, 94 Pac. 121; Salter v. Corbett, 80 Kan. 331, 102 Pac. 452; Capell v. Dill, 82 Kan. 652, 109 Pac. 286. But in Morris v. Hulme, [2] It is asserted that the deed was made 71 Kan. 628, 81 Pac. 169, one who had deeded for the purpose of defrauding creditors, and his land as security for another, who had therefore as against the grantor must be signed bonds for the appearance of the granheld good. Whatever the law may have tor's sons, sued for a reconveyance, and albeen thought to be at that time, it is cer- leged that the statute had run against the tainly now settled that the property was the judgment on the bonds. This was held propgrantor's homestead, and therefore no cred-er, as showing the limitation of defendant's itor could be defrauded by its conveyance. liability on the judgments. In other words, Mull v. Jones, 33 Kan. 112, 5 Pac. 388; Cross the statute had created a condition of which v. Benson, 68 Kan. 495, 75 Pac. 558, 64 L. the plaintiff could avail himself in an action R. A. 560; Weaver v. Bank, 76 Kan. 540, 94 for affirmative relief. Pac. 273, 16 L. R. A. (N. S.) 110, 123 Am. St. Rep. 155; Shattuck v. Weaver, 80 Kan. 82, 101 Pac. 649.

In Gibson v. Johnson, 73 Kan. 261, 84 Pac 982, it was held that a mortgagor cannot quiet title against the holder of the mortgage on the naked ground that the mortgage is barred, following Hogaboom v. Flower, 67 Kan. 41, 43, 72 Pac. 547, 548. In the latter case Flower sued to quiet title against his mortgagee, who set up the mortgage in defense, the answer showing that it was barred, and it was held that the plaintiff could quiet his title. It was said that "a right of action thus barred is dead for all purposes while the bar continues. It is as if no such

[3] The defendant also urges that possession by the grantor must be presumed to be in subservience to the title of the grantee. This is no doubt true as a general proposition, when there are no circumstances leading to a contrary conclusion; but when the grantor constantly and persistently, for nearly 17 years, claims ownership, and exercises all the rights incident thereto, and the grantee from time to time concedes the possession of only a paper title, which is to be revested upon request of the gran- In Updegraff v. Lucas, 76 Kan. 456, 93 Pac. tor, the rule does not and cannot apply. 630, 94 Pac. 121, it was held that injunction The authorities cited in favor of the gen- would lie against execution upon a dormant eral rule give support thereto, but none judgment, because the plaintiff sought only of them involve conditions like those now "to hold what the law had already given under consideration. The leading case re- him." In Trust Co. v. Jones, 81 Kan. 753, lied upon is Dotson v. Santa Fé, 81 Kan. 106 Pac. 1052, it was held that a tax deed 816, 106 Pac. 1045, which holds that such good on its face, of record more than five possession will not be considered adverse un-years, the holders being in possession, vests

right had ever existed."

in them an absolute title. It was further nor any reason why he might not set up both held, however, that when the fee-title holder as against the defendants." The closing parsought to foreclose or extinguish the mort- agraph of the opinion (page 323 of 77 Kan., gage lien and made the tax-deed holders (who page 204 of 94 Pac.) is in these words: had an absolute title) defendants, while they "There being proof of adverse possession sufcould set up their tax deed they could not ficient to give title and to sustain the finding properly ask to have their title quieted. The and judgment of the court, it is unnecessary tax-deed holders did in fact ask to have the to consider the claim of right under the tax title quieted, and it was said that they were title." "at least entitled to set up the tax deed by way of defense, and to prove that it was a valid conveyance which defeated the lien of the mortgage, and a judgment to that effect is as far reaching and effective as would be one which quieted their title as against a lienholder."

(Syllabus by the Court.)

John F. Hanson, pro se. Frank O. Johnson, for appellee.

BURCH, J. Ekblad, as administrator of the estate of Hanna Linderholm, deceased, brought suit to recover upon an overdue promissory note, and to enforce a real estate mortgage given the decedent by John F. Hanson. Judgment was rendered for the plaintiff on the note, the mortgage was foreclosed, the property covered by the mortgage was sold pursuant to the judgment, and the sale was confirmed. The defendant

appeals, and attacks the proceedings on various grounds.

[1] It is urged that the plaintiff had no capacity to sue, because his appointment was void.

The act relating to the appointment of executors and administrators (section 3447, Gen. Stat. 1909) provides as follows:

1. EXECUTORS AND ADMINISTRATORS (§§ 29, 431*)-APPOINTMENT-COLLATERAL ATTACK. In an action by an administrator to recover upon a note and to foreclose a mortgage forming a part of the assets of the estate in his hands for administration, the maker of the note and mortgage cannot defeat recovery on any of the following grounds: (a) That the person appointed administrator was not related to or a creditor of the decedent, and was appointed in less than 30 days after the death, without citing eligible next of kin, who took no part in the probate proceeding, to appear and take or renounce administration; (b) that the action was begun without an order from the probate they shall be respectively entitled thereto in court; (c) that the money due on the note and the following order, to wit: mortgage was not needed for the payment of debts, and one of the heirs desired them to be set off to him by an order of distribution.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1679, 1681, 1682; Dec. Dig. §§ 29, 431.*]

2. MORTGAGES (8_526*)-FORECLOSURE-FILING NOTE AND MORTGAGE.

A court rule, requiring the note and mortgage sued on in a foreclosure case to be filed before judgment is entered, is waived by the confirmation of a sale made under a judgment entered before the instruments were filed. [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 526.*]

3. MORTGAGES ($ 564*)-FORECLOSURE-PAYMENT OF TAXES.

It is the duty of the court to require taxes due on land sold at a foreclosure sale to be paid out of the proceeds of the sale, although no provision to that effect was inserted in the judgment.

"Administration of the estate of an intestate shall be granted to some one or more of the persons hereinafter mentioned, and

"First, his widow, or next of kin, or both, as the court may think proper; and if they do not voluntarily either take or renounce the administration within thirty days after the death of the intestate, they shall, if resident within the county, upon application of any one interested, be cited by the court or judge for that purpose.

"Second, if the persons so entitled to administration are incompetent, or evidently unsuitable for the discharge of the trust, or if they neglect, for twenty days after service of said citation, without any sufficient cause, to take administration of the estate, the court shall commit it to one or more of the principal creditors, if there be any competent and willing to undertake the trust. "Third, if there be no such creditors, and

[Ed. Note. For other cases, see Mortgages, the court is satisfied that the estate exceeds Cent. Dig. § 1627; Dec. Dig. § 564.*]

(Additional Syllabus by Editorial Staff.) 4. EXECUTORS AND ADMINISTRATORS (§ 84*)ASSETS-DUTY TO "COLLECT."

The word "collect," as used in Gen. St. 1909, § 3497, requiring an administrator to collect the assets of an estate within one year, does not merely mean to assemble or reduce to possession, but, in the case of assets in the form of enforceable obligations, the word has its ordinary signification, which includes the use of the usual means for accomplishing collection. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 323; Dec. Dig. § 84.*

For other definitions, see Words and Phrases, vol. 2, pp. 1254, 1255.]

the value of one hundred dollars, the court shall commit administration to such other persons as it shall deem proper."

The plaintiff was not a relative or creditor of Hanna Linderholm, and was appointed 11 days after her death. Two of her children neither took nor renounced administration, were not cited by the court for that purpose, and entered no express consent to the plaintiff's appointment. The appointment of the plaintiff, however, has not been questioned by any one having a right, under the statute, to the office, or by any one interested in the estate.

the court was without power to make any It is argued by the defendant that appointment during the 30-day period al

Appeal from District Court, McPherson lowed next of kin to take or. renounce adCounty.

Action by John Ekblad, administrator, against John F. Hanson. Judgment for plaintiff, and defendant appeals. Affirmed.

ministration, and was without power to appoint the plaintiff, or any one else, without first citing eligible next of kin, pursuant to the section of the statute quoted.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes