ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS.
MR. JUSTICE LAMAR, after making the foregoing statement of the case, delivered the opinion of the court.
A preliminary question of pleading raised by the defendant meets us at the threshold of our investigations. It is urged that, as the answer was verified by the oath of the defendant, and as the reply was not verified by any oath of the plaintiff, therefore the verified answer must be taken as true, under section 108 of the Code of Civil Procedure of Kansas, as amended by sec. 1, c. 61, Kansas Laws of 1886. That section is as follows:
"SEC. 108. In all actions, allegations of the execution of written instructions and endorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, or the correctness of any account, duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney."
We do not think this section has any application to the question at issue. The answer in this case was nothing more than a general denial of the legality of the bonds and coupons sued on, for the reasons therein stated, and it was not incumbent upon the plaintiff to file any reply at all. This section of the code might have applied against the defendant had its answer not been verified. Moreover, suppose all that is claimed by the answer be taken as true, we do not see how it can operate to defeat the right of the plaintiff to recover on the bonds in suit.
At the date the bonds were issued, duly organized counties in the State of Kansas had ample authority to issue bonds for the purpose of internal improvements. Statutes of 1868, c. 52 (now Compiled Laws of 1885, p. 509); act of March 2, 1872, sec. 1; Comanche County v. Lewis, 133 U.S. 198. Indeed, this proposition does not appear to be disputed.
It is also admitted by the plaintiff in error that questions affecting the fraudulent organization of the county in 1873 are no longer open; for, while that organization was confessedly fraudulent, it was recognized and validated by the legislative and executive departments of the State of Kansas in various ways, and was directly passed upon by the Supreme Court of the State in The State ex rel. v. Stevens, 21 Kansas, 210. In that case the proceedings relative to the organization of Harper County in 1873 were reviewed by the Supreme Court of Kansas, and it was held that, although the original organization of the county was fraudulent, yet, as the county had a de facto organization, as the records of such organization appeared regular and valid upon their face, and as the governor recognized and proclaimed such organization, the subsequent recognition of the validity of it by the legislature of the State made the same valid and binding. See also Comanche County v. Lewis, supra.
These bonds having been issued while that organization of the county was in existence, and reciting that they were issued "in pursuance of and in accordance with a vote of a majority of over three-fifths of the qualified electors" of the county "as required by law;" and the auditor of the State having certified that they were "regularly and legally issued, that the signatures thereto are genuine, and that such bond has been duly registered," in accordance with the law of the State. are the valid obligations of the county in the hands of bona fide purchasers, for value, before maturity. Comanche County v. Lewis, supra; Lewis v. Commissioners, 105 U.S. 739, 749.
There is no material distinction, in principle, between this case and the cases just cited. Comanche County v. Lewis involved the validity of bonds similar to these in suit, which had been issued by Comanche County, and Lewis v. Commissioners involved the validity of similar bonds issued by Barbour County, Kansas. The bonds in suit in both of those cases were held valid and binding upon the respective counties; and the reasons for such rulings were very fully and clearly stated in the opinions therein. This case is ruled by those, and the judgment below is