Upon consideration of the authorities and arguments, and also upon a due consideration of the facts and circumstances of these parties, financial and contingent, we are unable to say that there was an abuse of discretion, or a violation of the law in the order made by the district court. The judgment will therefore be affirmed.

MARION & McP. Ry. Co. v. CHAMPLIN, Treasurer, et al.

(Supreme Court of Kansas. December 10, 1887.)

1. TOWNS-TAXATION-EXEMPTION OF NON-RESIDENTS--CONSTITUTIONALITY OF ACT. The provisions of subdivision 8, § 22, c. 110, Comp. Laws 1879, permitting a township trustee, with the advice and concurrence of the board of county commissioners of his county, to levy taxes on the property of the citizens of his township only, thereby exempting from taxation from township or other purposes the property in the township of all non-residents, and of all persons or corporations not citizens of the township, is unconstitutional and void, and in violation of section 1, art. 11, of the constitution of the state, which ordains that "the legislature shall provide for a uniform and equal rate of assessment and taxation."

2. SAME-AMENDMENT OF ACT.

In 1885, subdivision 8, § 22, c. 110, Comp. Laws 1879, was amended so as to omit the word "citizens, " and to permit the taxes therein named to be levied upon all the property in the township subject to taxation.

8. SAME-REPEAL.

Section 38, c. 34, Sess. Laws. 1876, did not repeal the eighth subdivision of section 22, c. 110, Comp. Laws 1881, being section 22, c. 110, Comp. Laws 1879.

(Syllabus by the Court.)

Error from McPherson county; Hon. S. O. HINDS, Judge.

Geo. R. Peck, A. A. Hurd, and W. C. Campbell, for plaintiff in error. G. F. Grattan, for defendant in error.

HORTON, C. J. This was an action brought by the Marion & McPherson Railway Company against the treasurer of McPherson county, the sheriff and board of commissioners of that county, and also against the townships of Canton, Empire, McPherson, Jackson, and Castle, of that county, to enjoin the collection of certain township road taxes levied in 1884, under the authority of the eighth subdivision of section 22, c. 110, Comp. Laws 1879. This subdivision reads: "Eighth. [The township trustee] shall superintend all the pecuniary concerns of his township, and shall, at the July session of the board of county commisioners, annually, with the advice and concurrence of said board, levy a tax on the property of the citizens of said township, for township, road, and other purposes, and report the same to the county clerk, who shall enter the same on the proper tax roll, in a separate column or columns, and the treasurer shall collect the same as other taxes are collected; but, in a failure of such trustee and commissioners to concur, then the board of county commissioners shall levy such township, road, and other taxes.”

The contention is that, as subdivision 8 of section 22 provides for the levying of taxes upon the property of citizens only, the provisions are in conflict with that part of section 1, article 11, of the constitution of the state, which ordains that "The legislature shall provide for a uniform and equal rate of assessment and taxation." Under the provisions of the statute, the property in townships owned by non-residents, and all persons or corporations not citizens, are exempt from the taxes levied for township, road, and others purposes. These taxes cannot be regarded as license, or occupation, or other than property taxes, levied upon property owned by citizens only. City of Leavenworth v. Booth, 15 Kan. 628; Fretwell v. City of Troy, 18 Kan. 271; City of Newton v. Atchison, 31 Kan. 151, 1 Pac. Rep. 288; In re Dassler, 35 Kan. 678, 12 Pac. Rep. 130. If a state tax is levied upon property, it must be uniform over all the state. If a county, town, or city tax is levied upon property, it must be uniform throughout the extent of the territory to which it is applicable. It must also be extended to all property subject to taxation, so

that all the property may be taxed equally. This is taxation by a uniform rule. We do not think that the taxes proxided for in said subdivision 8 can be imposed upon the citizens of a township only. The taxes provided for should be levied upon all the property of a township, to comply with the constitution of the state. We are of the opinion, therefore, that the provisions of said subdivision 8, authorizing a levy of the taxes therein named on the property of citizens only, is unconstitutional, and that the taxes levied cannot be collected. Hines v. City of Leavenworth, 8 Kan. 200; Graham v. Commissioners Chautauqua Co., 31 Kan. 473, 2 Pac. Rep. 549. In 1885, subdivision 8 of said section 22 was amended so as to omit the word "citizen," and to permit the taxes therein named to be levied upon all the property in a township. Sess. Laws 1885, pp. 312, 313.

Our attention is called to section 38, c. 34, Laws 1876, and it is claimed that the taxes complained of were properly levied thereunder. This section makes no provision for the township trustee and board of county commissioners to levy township taxes, but merely provides that, when the county clerk shall have received the return of railroad assessment from the auditor of state, he must certify to the proper officer of the different school-districts, cities, and townships of his county, in or through which any portion of the railroad is located, the amount of assessment that is to be placed on the tax-roll for the benefit of such school-district, city, or township; and must, at the proper time, place such assessment on the tax-roll of his county, subject to the same per cent. of levy for different purposes as on other property. In these provisions there is no warrant for the county clerk to levy any taxes. After taxes are properly levied, the county clerk extends the same upon the tax-rolls. Section 38, c. 34, Sess. Laws 1876, did not amend or repeal § 22, c. 110, Comp. Laws 1879.

The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. (All the justices concurring.)

MANHATTAN A. & B. RY. Co. v. BURGOYNE, Treasurer.
(Supreme Court of Kansas. December 10, 1887.)

Error to district court, Riley county; R. B. SPILMAN, Judge.

Geo. R. Peck, A. A. Hurd, and W. C. Campbell, for plaintiff in error. Green & Hea sin, for defendant in error.

PER CURIAM. The questions of law presented in this case are precisely like those decided in the case of Railway Co. v. Champlin, 37 Kan. -, ante, 222. Therefore, for the reasons given in the opinion filed in that case, the judgment in this case will be reversed, and the cause remanded for further proceedings.

(All the justices concurring.)

SEPULVEDA . BAUGH et al. (No. 12,316.)

(Supreme Court of California. December 31, 1887.) MORTGAGE-FORECLOSURE-DECREE-DESCRIPTION OF PROPERTY.

In a decree of foreclosure of a real-estate mortgage, the description of the land to be sold thereunder was of a tract described by metes and bounds, excepting certain parts, which were described only by reference to certain specified records of certain deeds. Held, that the necessity for such reference to ascertain the description did not render the decree void and open to collateral attack.

THORNTON, J., dissenting.

In bank. Appeal from superior court, Los Angeles county; A. BRUNSON, Judge.

Action to quiet title, by Rafaela Verdugo de Sepulveda, appellant, against George Baugh, Ernest W. Moore, George Eley, Sarah D. Eley, William Lacy, Giacomo Tononi, Valentine Mand, Maria Le Maire, Addie Murray, Dan McFarland, W. B. Stewart, George H. Utley, John Cavalleras, F. P. Holland,

Alice C. Skinner, J. S. Skinner, M. W. Burtt, Thomas R. Curtis, Amanda S. Pollock, Maggie Scott, R. H. Pollock, Kate Shepardson Black, James T. Morgan, Martha F. Morgan, Jesse Hunter, John Murray, Walter Scott, Alexander Marshall, Richard Doe, Honorina Pelanconi, Lorenzo Pelanconi, William Young, Isabel R. de Tononi, and Petra Pelanconi, respondents. Plaintiff mortgaged to Andres Briswalter two tracts of land, one containing 909.40 acres, the other 212.03 acres; the description of both tracts in the mortgage being by metes and bounds, excepting that of certain parts, which were described only by reference to certain recorded deeds, the book and page of the record of each deed being specified in the mortgage. The first mortgage was foreclosed by suit, and both tracts were sold under the decree of foreclosure, in which the description of the land was the same as in the mortgage. Defendants claimed title under the foreclosure decree and sale. Plaintiff claimed that defendants acquired no title, because the description of the land in the decree was uncertain; and, being defeated below, took this appeal.

Anderson,

Henry M. Smith and W. H. Clark, for appellant. Graves & O'Melveny, Chapman & Hendrick, and Bicknell & White, for respondents. Fitzgerald & Anderson and Glassell, Smith & Patton, amici curiæ.

TEMPLE, J. This case seems very plainly to be within the rule laid down in Crosby v. Dowd, 61 Cal. 557. A tract of 909 acres is described by metes and bounds, "excepting, however, those portions of the above-described tract which are described in those certain conveyances executed by the party of the first part hereto, which are recorded, respectively, in book 22 of Deeds, p. 477; book 32 of Deeds, p. 113; book 36 of Deeds, p. 446; and book 48 of Deeds, p. 466, -Records of Los Angeles county; to which deeds and the records thereof reference is hereby made for further description; the remainder of the tract which is hereby conveyed containing about seven hundred and nineteen acres." This description is in the mortgage, complaint on foreclosure, the decree, sheriff's certificate and deed; and nowhere except by the above reference is there any description given of any of the excepted tracts. The record of the foreclosure, therefore, contains no description from which it can be ascertained, without such reference, no matter how familiar one might be with all the descriptive calls given as to any specific portion of the described land, whether or not it was conveyed by the mortgage deed, or whether the decree is operative upon it; nor could he tell whether any portion of the metes and bounds of the 900-acre tract remain as any portion of the metes and bounds of the 700-acre tract.

This case is attempted to be differentiated from Crosby v. Dowd in this: In Crosby v. Dowd the only description of the property in the complaint or decree was a reference to three deeds in the recorder's office. Here the mortgage, complaint, decree, certificate of sale, and sheriff's deed alike described a large tract of land by metes and bounds, excepting therefrom certain sold portions as above stated. That is, in the former case reference is made to the record for a description of the land mortgaged, while in the case at bar reference is made to the records for a description of certain portions of the described tract which are excepted from the effect of the mortgage and decree. A mere statement of this contention would seem to go a long way towards answering it. There is evidently the same indeterminateness in regard to this description as in the other, and the sheriff would be no better able to find the land or to determine what lands he should put a purchaser in possession of. And there is the same possibility that when the deeds were examined, they would be required to be construed by a court to determine what lands were included. Nor can it be construed as to the intent of the mortgagor in the larger tract better than in Crosby v. Dowd, which was described as a portion of the Santa Rita rancho. By express statement, she did not mortgage her interest in the entire tract; and the judgment does not profess to operate upon her interest

in the entire tract. The judgment record, therefore, is not complete, but other documents not in the record must be referred to to ascertain what is the subject-matter upon which the decree operates.

But I am of the opinion that Crosby v. Dowd ought not to be allowed to stand. I think I have examined all the cases cited in support of the decision by counsel or by the court, and I fail to find any authority for holding the judgment void upon a collateral attack. It may be admitted that such a decrée is erroneous, and will be corrected if the attention of the court is called to the defect by demurrer or proper motion, or by appeal. Such an amendment would be in the interests of justice and for the interest of both parties, for the mortgagor, that the property sold with a good description may bring a better price and his debt be paid; for the mortgagee, similarly, that he may collect his money. For these reasons, as well as that the writ may contain specific directions to the officer, who is required at his peril to execute it, the record of the foreclosure should contain a perfect description of the property. If, when a writ is issued, it is found that it fails to describe any property, the sheriff may refuse to execute it, or the court, upon application, may quash it, and restore the party, if he has been dispossessed.

But for what reason is the judgment void? Certainly not for lack of jurisdiction, either as to the subject-matter or the person. What nullity, known and recognized by established rules of law, is found in this judgment? If any, it must be because it is a proceeding to establish a lien, and there is no description of the thing to which the lien attaches. But by established rules of evidence, such a reference is not meaningless, and does furnish a description of the thing. It is admitted that it is sufficient, and does amply describe the thing in the mortgage. But it is said that a deed is evidentiary and may be helped out by other evidence, while a decree is final and determinative. The distinction is illusory; but, admitting the difference, it has no bearing upon this question. The judgment is held void simply because it is meaningless. This distinction admits that it is not meaningless, but declares that it is not sufficiently explicit for the convenience of the court or its officer. Plainly, the judgment is not void for the want of a description which identified the subject upon which the judgment is to operate. But the rule is unsafe, and the distinction illusory.

Here it may be well to call attention to the fact that very few of the cases cited as authority are cases like this, where the objection was that the description contains an express reference to another document, which must be examined to help out the description. Most of them were cases where on its face the description was indefinite or defective, and were actions for the recovery of specific property. The trouble is said to be that the sheriff may not know with certainty what land he is to place the purchaser in possession of. The same uncertainty may, and generally will, exist where metes and bounds are given. The court says, assuming that the records can be found, the descriptive calls may be found indefinite, so as to render it impossible to locate them. So, too, any landmarks called for may, for aught the court can ordinarily know, be impossible of location. The call for a pile of rocks on the bank of a creek may be very uncertain, while the reference to the deed may be definite and clear. But in a very large class of cases where metes and bounds are given it still becomes necessary to refer to deeds and to records to locate the boundaries. What is the practical difference between the case at bar and one in which a description giving metes and bounds describes the boundary as beginning at a stake at the north-east corner of the land conveyed to Smith by Brown, by deed executed so and so, or a line running north to the southern boundary of Brown's land? Or, what is the difference between this and a description as lot 2 in section 2, etc., according to the United States land surveys? The lot could not be found without referring to the plat in the land-office. The same is true of a description of a quarter section of land acv.16p.no.3-15

cording to the system of United States land surveys. We take judicial notice of the system, but not of the actual surveys; and we know that in many places there are wide departures from the general system. The plat must be referred to to find the particular quarter section. Then land is often described by reference to town plats, sometimes where the plat has not become a public record, and the streets and lots only exist on paper. The plat must be found to locate the land. Farms are sold by reference to subdivision maps of large ranches. Now, is this court to hold that all judgments which describe the land by reference to these things are void? Yet in every one of these cases the descriptions show on their face that some other document is referred to and must be examined to make out the description.

I cannot see how a judgment can be pronounced a nullity for uncertainty of description, unless the court can see that nothing is described. But here the description is not even uncertain or doubtful. It simply does not come up to some ideal standard laid down by the courts as more convenient for them and their officers. The true rule would seem to be that the judgment is not void; that the purchaser must, however, rely upon the description, and, if it be found so defective, when tested by rules of evidence ordinarily applied to the subject, that nothing can be found, he will fail; otherwise he should recover. I admit that the case of Crosby v. Dowd was very maturely considered, and that it should not be overruled unless plainly wrong. However, it is one of those decisions under which no rights can have grown up, and I think the rule mistakenly laid down exceedingly mischievous. A sense of justice will, I think, if the case be not overruled, impose upon this court the labor of differentiating case after case from that.

I think the judgment should be affirmed.

We concur: SEARLS, C. J.; PATERSON, J.; MCFARLAND, J.; SHARPSTEIN, J.

I dissent: THORNTON, J.

WALDRIP v. BLACK et al. (No. 12,231.)

(Supreme Court of California. December 29, 1887.)

1. MORTGAGE-FORECLOSURE-Right to FORECLOSE-SURETY WHO HAS PAID THE Debt. Where one has signed a note as surety, and has received from the makers a mortgage to secure him, and pays the note upon their failure so to do, he becomes an equitable assignee of the note, and can enforce its payment, and foreclose the mortgage, to recover the money paid by him, with legal interest.1

2. SAME-PLEADING-WAIVER OF DEFECTS.

In an action to foreclose a mortgage alleged to have been given as security to a surety, the judgment should not be reversed for insufficient allegations of suretyship when no demurrer has been filed pointing out special defects in the complaint. Commissioners' decision. In bank. Appeal from superior court, San Bernardino county; JAMES A. GIBSON, Judge.

James Waldrip, plaintiff, sued Samuel N. Black and Julia A. Black, defendants, to foreclosure a mortgage. Judgment for plaintiff, and Julia A. Black appealed.

Paris, Goodcell & Fox, for appellants.

Hight & Damron, for respondent.

FOOTE, C. This is an action which was instituted for the purpose of foreclosing a mortgage against S. N. Black and Julia A. Black. The court below gave judgment by default against S. N. Black, and the cause having been

A surety on a note stipulating that the title to the property, for the purchase of which it was given by the maker, should remain in the payee until its payment, becomes, upon being required to pay the note, an equitable assignee of the property, and is entitled to its possession. Myres v. Yaple, (Mich.) 27 N. W. Rep. 536.