The opinion of the court was delivered by
Graves, J.:It is claimed that the petition does not state facts sufficient to constitute a cause of action, and objection was made to the introduction of any evidence thereunder for that reason. The petition, taken as a whole, states quite clearly that Mrs. St. Clair went into possession of the land under an agreement with the owner to pay the taxes each year in consideration of the use of the premises; that she enjoyed the rents and profits from the property, neglected to pay the taxes, and then obtained a tax deed founded upon the very taxes which she agreed to pay. A tax deed ob*399tained under such circumstances is void — insufficient to start the statute of limitations. (Carithers v. Weaver, 7 Kan. 110; Krutz and Campbell v. Fisher, 8 Kan. 90; Duffitt v. Tuhan, 28 Kan. 292; Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846.)
It is also claimed that if any cause of action is stated in the petition it is one for relief- on the ground of fraud, which under section 18 of the civil code (Gen. Stat. 1901, § 4446) must be brought within two years after discovery of the fraud; that discovery of the fraud must be conclusively presumed from the record of the tax deed, which imparts constructive notice to all persons of its contents. This rule of constructive discovery, however, does not apply to cases of this kind. (Duffitt v. Tuhan, 28 Kan. 292; Doyle v. Doyle, 33 Kan. 721, 7 Pac. 615; Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846.) The true rule was well stated by Mr. Justice Mason in the case of Donaldson v. Jacobitz, supra, as follows:
“ ‘There is no constructive discovery through the mere record of a tax deed fraudulently taken’ by the agent of the owner.’ The fiduciáry relation between the parties in such case would be sufficient to relieve the owner from any obligation to watch the records for a tax deed to his agent, if the record of such a deed would otherwise be notice to him. Constructive discovery resulting merely from a statute, under such circumstances that the aggrieved person, although-actually diligent, has no reasonable opportunity to learn of the facts constituting the fraud, may not be sufficient to set the statute in operation, but constructive discovery resulting from his failure to be diligent when diligence would have disclosed the fraud practiced upon him will always do so.” (Page 247.)
In the present case, Arthur Craig was not in the state of Kansas. He had no reason to question the good faith and honesty of Mrs. St..Clair, or to think she would not faithfully comply with her contract. Ordinary diligence would not prompt him to suspect her of treachery toward him and watch the public records for confirmation of such suspicion. If, aS in *400the case of Black v. Black, 64 Kan. 689, 68 Pac. 662, or Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846, the party sought to be charged with a discovery of the fraud actually had the record for examination, or sustained such relations thereto that due diligence required an examination thereof, then he might well be held to have discovered that which he had a reasonable opportunity to see. A party cannot shut his eyes to things concerning his own interests which are within the range of ordinary observation and then plead ignorance thereof to the detriment of another. In this case, however, the plaintiff did not, and could not, see the record in question. He had no occasion to suspect that such a record existed, and therefore should not be held to have discovered the fraud of defendant St. Clair merely because she recorded her fraudulent tax deed.
The date when the tax deed was recorded does not appear in the abstract of the evidence nor in the pleadings, and the answer does not contain an affirmative plea of the statute of limitations. That question, therefore, is not properly within the issues presented; but the case seems to have been tried upon the theory that it was a material question, and we therefore thought best to consider it.
Complaint is made of the instructions given by the court to the jury, but we are unable to find material error in. any of them. The objections are mainly predicated upon the insufficiency of the petition, but since no objection was made to the petition except to prevent the introduction of any evidence thereunder its averments must be liberally construed. When thus construed it fully meets all the conditions contained in the instructions, and fairly presents the case to the jury. ’
The judgment of the district court is affirmed.
*401OPINION ON A MOTION TO EE TAX COSTS.
Per Curiam:The motion to retax costs is allowed
with respect to the item of $13.85 for the record copied for the court, which will be remitted. It is disallowed with respect to the item of $2 for the opinion copied for the district court. (Gen. Stat. 1901, §§ 3030, 1904; Harrison v. Benefit Society, 61 Kan. 134.)