tion to avoid injuries to any one who might be upon the track, and that its servants and agents were not aware of the presence of the plaintiff on the track until after the accident occurred. On the other hand, the

plaintiff claimed that the servants and agents of the company did *630 not take the necessary precaution to avoid injuries; that they did know, and should have known, of the plaintiff's presence on the track. Hamilton was the engineer of the defendant who had charge of the engine that moved the train that run over the plaintiff and caused the injuries. Butts had no connection whatever with the Kansas Pacific Railway Company. The conversation between Butts and Hamilton was on the next morning after the accident occurred. Butts testified concerning it among other things as follows: "He (meaning Hamilton) told me that he saw a man going behind the train just before the accident happened, and he took no thought of it at the time; and pretty soon afterwards there were some men halloing to him to stop. He thought they were a-fooling him, and he did not hold up; finally he stopped. The next he saw of the man was between the fire-box and the tank." The train backed on the plaintiff. There is no principle to be found anywhere in the law under which such evidence could be admitted. The only grounds upon which the defendant in error claims it was admissible is (and we use the exact words of his counsel's brief) as follows: "A question will be made on the introduction of the evidence of witness Butts as to the declarations of John Hamilton, the engineer of the defendant below. Hamilton was in the employ of the defendant below, and plaintiff was compelled to call him. We do not claim that it was competent to offer this evidence to impeach him, but we do claim that, it appearing that he was, to some extent, under the control of the defendant below, we had a right to prove that we were surprised in his evidence. It being competent to show that we were so disappointed in his evidence, the court could exercise its discretion as to the time when it could be shown that we were so surprised, and the exercise of such discretion is not error." It is true that plaintiff had previously called Hamilton as a witness, but it does not appear that he " was compelled to call him." There were many other witnesses who saw the transaction, and whom the plain

tiff could have called, and some of whom he did call. It does *631 not appear that Hamilton was *to any extent "under the control

of the defendant below" while he was testifying. And it does not appear that the plaintiff or his counsel ever thought or supposed that they were "surprised" at the testimony of Hamilton until the case was brought to this court. And there is nothing appearing in the record, or elsewhere, that tends to show that they were in fact so surprised. No such claim seems to have been made in the court below, and there is nothing in this court upon which such a claim could be founded. The testimony of Butts concerning said conversation was pure, naked, and simple hearsay testimony. The court erred in admitting it, and for said. error the judgment in this case must be reversed. Luby v. Hudson River R. Co. 17 N. Y. 131; Bellefontaine Ry. Co. v. Hunter, 33 Ind.

8. There are other questions raised in this case, but we do not think it is necessary to decide them. They will probably not arise again. We would, however, refer to the following recent decisions of this court with reference to questions which have been raised in this case, and which may possibly be raised again. First. With reference to exceptions, to instructions to the jury, see City of Wyandotte v. Noble, 8 Kan.*444; Kansas Pac. Ry. Co. v. Nichols, ante, *235; City of Atchison v. King, ante, *550; Sumner v. Blair, ante, *521. Second. With reference to verdicts, their form, etc., see National Bank v. Peck, 8 Kan. *660; Copeland v. Majors, ante, *104; Hazard Powder Co. v. Viergutz, 6 Kan. *471; Arthur v. Wallace, 8 Kan. *267; Kansas Pac. Ry. Co. v. Reynolds, Id. *623.

The judgment of the court below is reversed, and new trial ordered. (All the justices concurring.)

*632

*P. L. HUBBARD v. CHARLES W. JOHNSON.

January Term, 1872.

Tax Deed: Void on its Face: Limitations. A tax deed which does not show that the land it purports to convey was sold for delinquent taxes is void upon its face; and where the holder of such a tax deed has never been in the actual possession of the property which the deed purports to convey, the two-year statute of limitations will not run so as to bar an action brought for the purpose of having the deed declared void.1

Error from Brown district court.

Action by Johnson to annul and cancel a tax deed issued by the county clerk of Brown county, July 10, 1867, purporting to be for taxes assessed for the year 1864. Said deed was recorded July 19, 1867, and the action below was commenced July 17, 1870. The case was tried at the October term, 1870. The land was vacant and unoccupied until shortly before this action was commenced, when Johnson took possession. Johnson had judgment in the district court.

P. L. Hubbard, plaintiff in error, per se.

The action to test the validity of this tax deed is barred by the statute. Gen. St. c. 107, § 116, p. 1057. The land was unoccupied for three years before this suit was commenced, and therefore constructively in possession of plaintiff in error. Knox v. Cleveland, 13 Wis. 245.

The land was taxable. It was entered in 1857, and subject to taxation from that time. It was assessed and taxed in 1863, and the taxes

'A tax deed void on its face will not start the statute of limitations to running in its favor, Entrekin v. Chambers, 11 Kan. 378; Waterson v. Devoe, 18 Kan. 227; Shoat v. Walker, 6 Kan. 44, and note. A tax deed need not follow the exact language of the statute, may omit immaterial statements, but substance and material facts must be stated. Post, 634.

were not paid. It was for these taxes that the tax deed was issued to Stebbins.

*633 *The tax is in substance and effect in the form required by law. The only thing complained of is that it is stated therein that said. land could not be sold for said amount of taxes and charges thereon in any parcel or parcels, (or piece or pieces;) and in failing to sell the same in any parcel or parcels, he sold the land. That is, the whole land was sold to Stebbins for the whole amount of taxes and charges due thereon at the time of the sale. This is the proper construction, and sufficiently shows a sale.

W. W. Guthrie, for defendant in error.

The tax deed under which Hubbard claims is void upon its face, and not the subject of operation of the statute of limitations in any case. The law of stricti juris applies to plaintiff's claim of title. The sale was in

1865, under chapter 197, p. 866, Comp. Laws 1862. See sections 36, 40, 42. Plaintiff's deed shows that no sale could be made under section 40, and that the land was struck off, in spite of the law, to Stebbins without a bid. The deed gives no "description of the property sold" under section 10, nor did Stebbins pay anything.

If the tax deed is void there can be no constructive possession under it. VALENTINE, J. The main question in this case is whether a certain tax deed is valid or not. One of the principal objections urged against the tax deed is that it shows upon its face that the land for which the tax deed was executed was not sold for delinquent taxes. A portion of the deed reads as follows:

"Whereas, at the time and place aforesaid, the said real property above described could not be sold for the amount of said taxes, penalty, and charges thereon, to any person or persons, in any parcel or parcels, at said public sale, or any adjourned sale thereof, the said lands above

described were bid off by H. P. Stebbins, of Brown county, Kan*634 sas, for the sum of twelve dollars and ninety-six cents, being *the whole amount of taxes, interest, and costs then due and remaining unpaid on said real property."

The deed does not anywhere show that said Stebbins, or any person for him, paid the said sum for which said land was bid off. This is required to be shown in the tax deed. Comp. Laws, 878. The date of this supposed sale is May 2, 1865. This land may have been sold for said taxes, but the deed does not show it. The deed is therefore not in substantial conformity with the form of the tax deed given in the statutes. The statute requires that the deed shall show that there was a sale, and that the purchase-money was paid; hence, if the deed does not show the same, it must be presumed that there was no sale, and that the purchase-money was not paid. And if there was no sale the deed would of course be void. From the language of the deed the inference might be drawn that Stebbins bid off the land for the said taxes, etc., but that he did not pay the purchase-money, and therefore that the treasurer chose to treat the bid as canceled, and the supposed sale as no sale at all. Comp. Laws, 867, § 41. But if this inference cannot be drawn from

the language of the deed, then the deed is contradictory in its statements, and we do not know which statement to believe. We cannot say from such contradictory statements whether there was a sale or not. It is true that a tax deed need not follow the exact form prescribed by the statute. It is true that it need not use the exact language of the statute. It is true that there may be immaterial matters prescribed by the statute which may be omitted in the tax deed without invalidating the same. But whether there was a sale or not is a matter of vital importance which cannot be dispensed with, and the tax deed must affirmatively show that there was a sale. This deed does not show affirmatively that there was a sale, and therefore the deed is void upon its face.

This property seems to have been vacant and unoccupied from the time of the recording of the tax deed, which was July 19, 1867, up to June, 1870, when the plaintiff below, Johnson, took possession *635 of the same. It is certainly true *that the holder of the tax deed never had actual possession of the property. Therefore, according to the decisions heretofore rendered by this court, the two-year statute of limitations has not run in favor of said tax deed. Shoat v. Walker, 6 Kan. *65; Sapp v. Morrill, 8 Kan. *677.

We have now decided all there is of substance in this case. Therefore the question whether the demurrer to the second and fourth defenses set up in the defendant's answer was rightfully or wrongfully sustained, does not necessarily require any examination by this court. We would say, however, that the answer of the defendant is defective in the same manner that the said tax deed is defective. It does not anywhere allege that the property was sold for delinquent taxes. The judgment of the court below is affirmed.

(All the justices concurring.)

COMMISSIONERS OF DAVIS Co. v. COMMISSIONERS OF RILEY CO.

January Term, 1872.

Costs: Liability of Counties: Limitation. A criminal action pending in Riley county, for a crime alleged to have been committed there, was taken on a change of venue to Davis county, and there tried by a jury. More than three years thereafter Davis county paid the jury fees, and then presented a claim therefor to Riley county for repayment. Held, that said jury fees were paid in violation of section 47 of the act relating to counties and county officers, and that Davis county cannot recover the amount thereof from Riley county.1

Error from Riley district court.

Mandamus, brought by the board of commissioners of Davis county, to compel the board of commissioners of Riley county to act upon an account or claim of $256.10, alleged to be due to Davis county for fees and

See Shawnee Co. v. Wabaunsee Co. 4 Kan. 312; Shawnee Co. v. Ballinger, 20 Kan.

costs paid in criminal cases, but for which Riley county was ultimately liable. The case was heard in November, 1871, and the district *636 judge held *and decided that the plaintiff was not entitled to the relief demanded, and refused the application for a peremptory writ of mandamus, and gave judgment against the plaintiff for costs. McClure & Humphrey, for plaintiff in error.

The facts in this case are essentially the same as those involved in the case of Shawnee Co. v. Wabaunsee Co. 4 Kan. *312; and if the second and third defenses in the answer in this case present no defense, the rule laid down there will govern this. The second defense is the plea of the statute of limitations. Section 47, p. 264, Gen. St., provides substantially that an account may be allowed by the county board if presented within two years after the same accrues. The account presented in this case is shown to have accrued in favor of Davis county, and against Riley county, in April, 1870, when Davis county paid the debt; and it was presented in July, 1871. Ang. Lim. (4th Ed.) § 42, p. 34. The third plea contained in the answer is a former adjudication of the same matter. It is not claimed nor shown that Davis county ever presented the claim to the commissioners of Riley county previous to July, 1871. It is stated and admitted that a duly-certified fee-bill, containing the items of charges for per diem and mileage of jurors, was before that time presented to the Riley county commissioners by the clerk of the district court of Davis county, and that portion of said fee-bill for per diem and mileage of jurors disallowed. This, however, was an ex parte proceeding. The individual jurors had nothing to do with, nor were they privy to, the presentation of the bill. The fee-bill was audited, certified, and presented by the clerk in accordance with the provisions of sections 324, 325, p. 283, Comp. Laws. Under these sections we suggest that the order of disallowance was evidence only that in the opinion of the county board the claim for compensation of jurors was not a legal charge against Riley county. It could hardly be construed to be a de*637 nial *that the services had been rendered, or that the charges as to amounts were correct; and it could be construed to operate, at most, only in the nature of a nonsuit.

Geo. S. Green, for defendant in error.

The account claimed by Davis county was barred by the statute of limitations. Section 47, p. 264, Gen. St. The jurors' fees were due upon rendering the services, (section 34, p. 485, Gen. St.,) and accrued against the county liable for the costs. It is shown in this case that the jurors were summoned at the March term of court in Davis county, in 1867; that the relator did not pay the account until April, 1870, over three years after the account had accrued. The payment by a third party of a claim once barred by the statute will not revive it. The legislature itself cannot revive demands once barred by the statute. 4 Cooley, Const. Lim. 365. If it had been necessary that the relator should pay the account before it could be recovered from the respondent, the account should have been presented and paid within two years after the account had accrued, and presented for payment to the board of county