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Fontron, J.
Affirmed.
Fromme, J., not participating.
|
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from an order denying a motion to change custody of the parties’ two minor children from the father to the mother. The motion was filed six months after the mother was granted a divorce on grounds of incompatibility and the father awarded custody of the two minor sons.
Deanna and Charles Hardenburger were married on June 10, 1962, just a few months before Charles was discharged from the Navy. For convenience they shall be referred to as plaintiff or Deanna and as defendant or Charles. The parties are in their middle thirties, they are college graduates and neither had been married before. Both husband and wife came from rural Kansas communities. Charles was raised on a farm in Washington County, near Haddam, and Deanna grew up in Valley Falls, where' her parents still reside. Shortly after their marriage the Hardenburgers moved to Haddam where Charles taught school for a year and purchased a substantial portion of the family farm from his father. Two sons were bom to the marriage, Charles in 1963 and Paul in 1966. A short while after the birth of their second child the parties began to grow apart, each claiming the degeneration of the marriage was due to the other’s psychological and sexual irregularities. In 1969 Deanna left the home, but a reconciliation was effected. Illustrative of the serious problems that existed were Deanna’s unsubstantiated claims that Charles had engaged in numerous heterosexual and homosexual affairs. Most serious of Deanna’s allegations were those charging Charles with improper conduct of a sexual nature involving their sons.
In May of 1972 Deanna moved to Valley Falls and filed an action for divorce on the ground of incompatibility in Jefferson County. Charles, who had no warning of Deanna’s intention until summons was served upon him, unsuccessfully sought reconciliation. Trial commenced on September 22, 1972, and after hearing the evidence the trial court suggested the parties submit to a psychiatric evaluation in order to aid the court in determining the issue of child custody. The parties agreed and the matter was taken under advisement by the court until it had received the results of psychiatric examinations of the parties. These examinations, which both Deanna and Charles willingly submitted to, were conducted by Dr. Karl Targownik, a psychiatrist.
After receiving Dr. Targownik’s report, the trial court reconvened the case on November 15, 1972. Both parties testified again and were interrogated in the light of the psychiatric evaluation concerning the question of child custody. Further testimony was also submitted with respect to property division. At the conclusion of the hearing the case was taken under advisement. On December 26, 1972, the trial court filed a comprehensive memorandum decision in which all of the evidence was reviewed. The court found inter alia:
. . allegations made by plaintiff, charging sexual abberations on the part of defendant, are not true . . . the defendant is an entirely normal heterosexual man, of good moral character.”
Concerning child custody the trial court ruled as follows:
“The court finds the best interests of the children will be served by giving their general custody to the defendant, the father. The defendant has arrange ments available for the care of the children; they will grow up in a proper environment; it seems to the court that boys of this age are more in need of a father image presented by this defendant than in need of a mother image of preoccupation with invalid sexual norms. Plaintiff should have temporary custody from time to time.”
On June 25, 1973, Deanna filed a motion for change of custody in which she alleged a change of circumstances entitling her to custody of the children. On July 24, 1973, a hearing was held on this motion. Deanna testified that she had been treated by a psychiatrist since the divorce; that she had overcome her mental problems; and that she had secured a teaching position at Whiting for the next school year. After hearing the testimony of several witnesses the trial court, in a second comprehensive opinion, concluded that no change of circumstances had been shown which warranted changing custody of the children. From this order denying a change of custody Deanna appeals.
Deanna’s appeal is primarily based on two alleged trial court errors. In her first point Deanna argues that the court, in deciding the issue of child custody, erroneously considered the psychiatric report on her prepared by Dr. Targownik because it had not undergone the “credibility procedures of cross-examination and confrontation.” The point is not well-taken for two reasons. First, the contention is directed at a matter which took place during the principal trial which resulted in a judgment from which Deanna did not appeal. Second, it may be noted that in addition to submitting to psychiatric evaluation, the parties, through counsel, stipulated that the doctor’s report could be used as evidence. Plaintiff (Deanna) did reserve the right to call Dr. Targowik as a witness, but she made no attempt to exercise this right. The binding effect of a stipulation freely and intelligently entered into is well-settled in our case law. (Morrison v. Hurst Drilling Co., 212 Kan. 706, 512 P. 2d 438.) The circumstances under which a court is justified in relieving a party are limited and plaintiff has shown no grounds which dictate she should be relieved of her stipulation.
In her second point on appeal plaintiff charges the court erred in not ruling that custody of the children of tender years should have been changed to her. ■ Plaintiff’s arguments in support of her motion are premised on evidence which she contends demonstrates that her mental and emotional problems have been rectified. Plaintiff builds upon this proposition by arguing that having reached the plateau of normalcy she is, by virtue of language found in several Kansas cases, especially St. Clair v. St. Clair, 211 Kan. 468, 507 P. 2d 206, entitled to custody of the children.
In an unbroken line of decisions this court has held that the jurisdiction of the district court over custody of minor children in a divorce action is a continuing jurisdiction. The court may, on proper motion and notice, change any previous order of custody whenever it finds a material change in circumstances since the divorce or the last order of custody which justifies such modification. (Patton v. Patton, 215 Kan. 377, 524 P. 2d 709; Irwin v. Irwin, 211 Kan. 1, 505 P. 2d 634; and Duffy v. Duffy, 176 Kan. 112, 268 P. 2d 931.)
Plaintiff called three witnesses at the change of custody hearing— her minister, a social worker, who knew her, and her psychiatrist, Dr. James Nelson. The minister and the social worker testified that they knew plaintiff, considered her a fit person, and knew of no reason why she should not be given custody of the children. Dr. Nelson testified that he had been treating plaintiff for a period of nearly six months, during which time plaintiff had made great progress in overcoming her mental problems and in achieving a normal perspective on sexual matters. Although Dr. Nelson was of the opinion that plaintiff could function properly were she to be given custody of the children, he did admit that plaintiff was in need of continued psychiatric treatment and that under the stress of holding a job and rearing the two boys there was a possibility that her problems would reappear. There was no evidence introduced at the hearing to indicate that defendant was in any respect an unfit parent or that he had not taken excellent care of the boys since they had been placed in his custody. Inasmuoh as plaintiff, in her argument, places great weight on our decision in St. Clair v. St. Clair, supra., it is appropriate to note that the manner in which the psychiatric test results were considered in this case differs drastically from the manner there employed. In St. Clair it was said the trial court systematically rejected testimony concerning Mrs. St. Clair’s improved mental condition at the time of trial and took at face value the testimony of the same witnesses concerning her conduct during a period of mental illness, more than a year before the trial and prior to the treatment which greatly improved her condition. In the instant case the court, both at trial and at the custody hearing, properly sought to elicit and utilize the most current information available concerning Deanna’s mental health as a basis for its decision. After considering all of the evidence submitted at the custody hearing, the court concluded there was no substantial change in circumstances which would warrant a change of custody.
Plaintiff contends that absent a finding of unfitness on her part the law of this state dictates that she be given custody of the children. Relying again on St. Clair, supra., plaintiff argues that it is an elementary rule governing child support that when the children are of “tender age” they should be entrusted to- their mothers care — plaintiff misconstrued St. Clair.
In the recent case of Dalton v. Dalton, 214 Kan. 805, 522 P. 2d 378, Mr. Justice Fontron discussed the proper interpretation of St. Clair and pointed out that while the circumstance of “tender age”, when it exists, is a factor always recognized and given great weight by this court in custody cases, application thereof is not absolute, but always subject to the exercise of judicial discretion. Our opinion in St. Clair reaffirms the overriding rule that where the issue of custody is between parents, the paramount consideration is the best interest and welfare of the children. “Tender age”, especially in the case of the very young is naturally and of necessity a factor to be given weight, but it like other relevant considerations must be subordinated to the children’s physical, intellectual, and emotional well-being. To blindly award custody to a mother on the strength of the “tender years doctrine” would be to lose sight of the fact that “tender years” is merely one, albeit an important one, of the several vehicles by means of which a decision respecting the children’s custodial well-being may be reached. “Tender years” is not an independent absolute doctrine which runs parallel to our basic “best interest” rule. It is nothing more than an important factor to be considered in determining how a child’s interest and welfare are best served.
The overriding rule heretofore mentioned is cogently stated in Dalton v. Dalton, supra, wherein we held:
“Where the custody of children is in issue between parents the primary question for determination is what best serves the interest and welfare of the children, and all other issues are subordinate thereto.” (Syl. ¶ 1.)
The real touchstone in custody cases was considered again in Patton v. Patton, supra, where we said:
“Thus the real issue is which parent will do a better job of rearing the children and provide the better home environment. . . .” (p. 379.)
The importance of a child’s age and dependency as elements of the best interest test are also indicated in Patton where we said:
“. . . Where the evidence on that issue [or which parent will do a better job of rearing the children] is in balance, tender age of the children wül normally tip the scales in favor of the mother, simply because in most cases she is more available in the home.” (p. 379.)
This court has consistently held that the trial court is in the most advantageous position to judge how the interests of a child may best be served, and that its judgment in such regard will not be overturned in the absence of an abuse of judicial discretion. (Hazelwood v. Hazelwood, 190 Kan. 493, 376 P. 2d 815; Gardner v. Gardner, 192 Kan. 529, 389 P. 2d 746; and Dalton v. Dalton supra.) In light of the facts heretofore enumerated, we must conclude the evidence in the instant case is, as a matter of law, insufficient to warrant a holding that the trial court abused its discretion in not finding a change of circumstances.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal by a respondent employer and his insurance carrier from an award under the Workmen's Compensation Act.
The basic facts out of which this appeal arises are not in dispute, and they are summarized:
The claimant was working for the respondent, Gary Greer, as a cook in the Union Station Cafe. On March 10, 1972, the claimant dropped an egg from the grill on which she was cooking. She reached down to clean up the egg and felt a sudden jolting pain in her hack. She was immediately taken to the hospital and has been >■ unable to work since the accident.
The claimant was a hard worker, sometimes working sixteen horns a day. She was 27 years old when the accident occurred and had been working in a restaurant since she was twelve years old. She weighed approximately 260 pounds and had carried that weight since she was in high school. She never had problems with her back before the accident, and there was no evidence of any preexisting emotional problems. In April, following her accident in March, she was standing in her home when she felt a pain like somebody stabbing her in the back and toning the knife. Her legs went out from under her and the pain has never stopped.
The claimant weighed 285 pounds in April, 1972, when she was readmitted to the hospital for treatment. At the time of her trial— April 11, 1973 — she weighed 300 pounds.
The examiner entered an award in favor of the claimant based on 10 percent permanent partial disability. The award was affirmed by the director. On appeal, the district 'court increased the award to 415 weeks temporary total disability, and found as follows:
“. . . The court finds from the medical testimony that in addition to her physical disabilities resulting from the injury she has a conversion or so-called psehosomatic overlay, which contributes to her weight problem. When last examined by Dr. Lungstrum in March of 1973 her condition was diagnosed as acute and chronic lumbosacral strain, and psychophysiological musculoskeletal reaction overlay. In other words, she begins to get a self-image of not being worth much. All she can do is lie there and complain, and her frustrations have led her to eat more, which aggravates her condition of extreme obesity, and greatly .aggravates her condition. She does not have the bone structure to carry her weight, and her underlying problem is psychological, and her weight is part of that.
“The claimant never had any problem with her back prior to the injury on March 10, 1972. The court finds that she has been temporarily totally disabled and unable to engage in any gainful employment since the date of the accident to the date of hearing before the Examiner; and that her psychological and emotional problems are directly traceable to her physical injury. The claimant’s obesity is of long-standing and has existed since claimant was in high school. This condition was a pre-existing physical weakness of the claimant at the time of her employment by the respondent, which the respondent accepted, as well as any emotional or psychiatric weakness. Her said disability is of a temporary nature as of this time and will be for an indefinite period in the future. . . .”
The respondent and the insurance carrier have appealed.
The appellants first contend there was ho substantial evidence to support the district court’s findings that claimant’s psychological and emotional problems were directly traceable to her physical injury on March 10, 1972.
It will simplify the discussion of this case if we first review the rules which restrict this court’s consideration of evidence on an appeal from a workman’s compensation award.
The supreme court will not weigh the evidence and consider questions of fact. In considering a question of fact, the court’s function is limited to a determination whether there is substantial evidence to support the district court’s findings.
In Vocke v. Eagle-Picher Co., 168 Kan. 708, 215 P. 2d 185, it was held:
“In a workmen’s compensation case, on a review of special findings, this court is concerned only with evidence which supports or tends to support the findings made and does not consider evidence unfavorable thereto.
“The rule stated in the preceding paragraph applies with equal force whether compensation is allowed or denied.»
“It is the right and duty of district courts to consider and weigh every part of a witness’ testimony and to give it such credence and weight as in the court’s judgment it deserves. It is not for an appellate court to say what testimony should be given credence or what evidence should be disbelieved.” (Syl. lif 1,2, 3.)
Again, in Buck v. Beech Aircraft Corporation, 215 Kan. 157, 523 P. 2d 697, it was held:
“The question of whether or not a disabilty of a workman is due to a personal injury by accident arising out of and in the course of the employment is a question of fact.
“In a review of the record on a question of fact this court’s function is limited to a determination of whether or not the record, viewed in a light most favorable to the party prevailing below, contains substantial competent evidence to support the district court’s findings.” (Syl. ¶¶ 2, 3.)
The term “substantial evidence” has been defined on numerous occasions. In Barr v. Builders, Inc., 179 Kan. 617, 296 P. 2d 1106, it was held:
“The jurisdiction of this court in workmen’s compensation cases is specifically limited to questions of law.
“In reviewing a record to determine whether it contains substantial evidence to support the trial court’s finding, this court is required to review all the evidence in the light most favorable to the prevailing party below, and if substantial evidence appears therein, such finding is conclusive and will not be disturbed on review, even though the record discloses some evidence which might warrant the trial court making a finding to the contrary.
“The term ‘substantial evidence,’ when applied by this court in reviewing an award under the Workmen’s Compensation Act, means evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing substantial basis of fact from which issue tendered can be reasonably resolved.” (Syl. ¶| 1, 2, 3.)
See, also, Jibben v. Post & Brown Well Service, 199 Kan. 793, 433 P. 2d 467; Rund v. Cessna Aircraft Co., 213 Kan. 812, 518 P. 2d 518.
With these guidelines before the court, we review the record to determine whether there is any substantial evidence to support the district court’s findings that claimant’s psychological and emotional problems were directly traceable to her physical injury.
The undisputed evidence is that claimant had worked in a restaurant for fifteen years. Her back had not bothered her prior to the accident. She was able to be on her feet, lifting heavy pots and kettles for sixteen hours a day. She had not been affected by psychological or emotional problem previous to the accident. In fact, no question is raised concerning the accident itself or the circumstances attending it. The respondents simply assert that no causal connection has been established between the accident and the claimant’s present problem. The point is not well taken.
Dr. Donald D. Goering, the claimant’s regular physician, testifying as to the relationship between the injury, claimant’s increased weight, and the psychosomatic reaction, stated:
“Q. Just one or two questions on this conversion reaction or so-called psychosomatic overlay that develops in this sort of thing. Do you have any opinion whether that has any effect on her weight, or inability to take it off, or keep putting it on? However, you might want to say it.
“A. Let me get this clear. Does this psychosomatic reaction have an effect on her weight?
“Q. Yes. Cause her to eat or gulp that has caused her to gain weight?
“A. It’s very difficult to separate the thing. I have known this girl, like I say, for roughly two years, and the only time I have seen her is when she had an injury at work .and got a little burn and they said ‘Get there and get it treated’, and she has worked very hard and I know this; but she has worked as a cook, which is a rough place for anybody who has a weight problem. But she never missed a day of work or anything until this incident. Now, since the injury she hasn’t worked a day I don’t believe. And she’s a girl that’s used to working. And she begins to get this self image as far as I’m concerned, that she isn’t worth much. All she can do is lie there and gripe about it. And her frustrations have surely led her to eat more and she has a terrible tendency to be' overweight to begin with. So they’re related sure. But you can’t say cause and effect exactly. You try to separate one from the other you can’t do it.
“Q. That’s what I was getting at.
“A. (Continuing) I’m sure her psychosomatic situation here to eat more and I’m also sure the fact that she is heavy causes her to have more depression problems, so it becomes a vicious circle.”
Dr. Goering also testified that on March 22, 1973, the claimant was readmitted to the hospital because of severe low back pain which was so serious she could not get out of bed. He stated,
“Her admission weight was 300K pounds. She was also complaining about having her legs go out from under her. On examination at the time of admission, she was tender on palpation of the L-3 vertebra, and there was much tenderness in the lumbosacral area bilaterally. She complained of numbness in her entire left leg. There was no demonstrable muscle loss or weakness, and no abnormal reflexes. It was felt by me that the left leg numbness was on a conversion reaction type of basis since there is no anatomical way that the entire left leg from the toe to the hip could be numb. She was placed in bed rest and given analgesics and pelvic traction. Consultation was requested with the orthopedist of her choice, which was Dr. Lungstrum. Dr. Lungstrum recommended that she lose weight and that psychiatric consultation be obtained. This was done with Dr. Jon Holman. I don’t have a copy of his consultation reports here although that is available in the hospital record. ... He felt there was a depressive neurosis related to her disability and to the fact that she couldn’t get back to going . . .”
Dr. Jack Edward Lungstrum, who treated the claimant, testified:
“Q. Doctor, Mr. Linville just asked you about assuming that this did happen on March 10th when she bent over, couldn’t straighten up and they had to take her to the hospital. Now, assuming that to be true and assuming that she had never had back problems before, would we have to assume that this would be the percipitating cause of the chronic condition? We would have to assume that, would we not?
“A. Yes.”
#
“Q. Now, doctor, I want you to assume when she bent over to pick up the egg, her weight was 260 pounds. We would have to assume then that the weight didn’t give her problems until she had this injury? What I mean is, the weight in itself didn’t bring about this chronic condition, it was the weight plus the injury.
“A. I will agree; I will agree the weight plus the injury. I think the weight set the stage to a certain degree. Whether or not it would be the egg or a teaspoon or a sneeze or a sudden twist or .a jolt of stepping wrong off a curbing, this could be the precipitating cause.
“Q. But until we had the precipitating cause injury, she did have this preexisting weight, you would have to agree that the bony structure was supporting her until this happened, wouldn’t that be a fair statement?
“A. Yes, it would.
“Q. Now, Doctor, this psychophysiological musculoskeletal reaction overlay is a psychiatric diagnosis, is that correct?
“A. Yes.
“Q. And if the treating psychiatrist or the examining psychiatrist is of the opinion that consultation would be of help, is that the type of treatment that you are recommending for. her, and by that I mean Dr. Holman more or less?
“A. Well, a qualified psychiatrist, in my opinion, should see and probably treat this patient.
“Q. Now, when we get into this problem of this psychiatric problem, everything adds up in a bundle, doesn’t it, the injury contributes to the psychiatric problem, the psychiatric problem causes her to gain more weight, and we end up in a vicious circle without proper therapy to lose weight; would that be a fair statement?
“A. Yes.”
It would be well to note here that in Berger v. Hahner, Foreman & Cale, Inc., 211 Kan. 541, 506 P. 2d 1175, it was held:
“When a primary injury under the Workmen’s Compensation Act is shown to have arisen out of the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury. (Following Jackson v. Stevens Well Service, 208 Kan. 637, Syl. ¶ 1, 493 P. 2d 264.)
“Traumatic neurosis following physical injury, and shown to be directly traceable to such injury, is compensable under the Workmen’s Compensation Act.” (Syl. ¶ ¶ 1, 2.)
We deem it unnecessary to pursue the appellants’ contention further. The district court’s conclusion that the claimant’s disability was directly related to the accidental injury was supported by substantial evidence.
The appellants further contend there was no substantial evidence to support the district court’s finding that the claimant was temporarily totally disabled for a period of up to 415 weeks. The point is not well taken. We again touch on the evidence.
The claimant testified as to her temporary total disability as follows:
“Q. (Mr. McCullough) Have you ever been able to go back to work?
“A. No, sir.
“Q. Tell the Examiner why not.
“A. Well, I still have terrible pain in my back and my legs go out from under me.
“Q. When did your legs start going out from under you?
“A. Well, I didn’t notice it until in April, but it was happening in March. The thing is, in March I was sitting around more but I would feel the knife pain but I would always be sitting down and then in April, I was up one day—
“Q. That is right after the accident?
“A. Yeah.
“Q. In 1972?
“A. Yes.
“Q. Go ahead.
“A. And in April then I was up one day and I was standing on the floor and just like somebody stabbing a knife in my back and turning it, and my legs went out from under me and after that, it has never stopped.”
Dr. Goering testified that the claimant will need treatment for an indefinite period of time and that she would not be able to return to work for an indefinite period.
“Q. Will this treatment be for an indefinite period of time?
“A. At this point I would say yes.
“Q. And the fact of her inability to return to work, is that indefinite at this time as to when she may be able to, or are you recommending she get out of that altogether, and re-train?
“A. I think the recommendation at rehab, were that she try to return to work for something else. Her problem now is her backache is so bad she couldn’t go to Brown-Mackie. ... It happens to have a flight of stairs of approximately 30 steps and she felt that her backache was so bad that she couldn’t go to school. This is where she is now. I am hopeful that maybe we can get somewhere further, but in the past back exercises and back care haven’t resulted in any improvement, so I don’t know what the long-term outlook is.”
The record contains ample evidence to support the district court’s finding of temporary total disability for a period of 415 weeks.
What has been said renders unnecessary a discussion of the other issues raised by the appellants.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action by Lloyd Wayne Estes (defendant-appellant), from a conviction of aggravated robbery by a jury in violation of K. S. A. 1972 Supp. 21-3427. Trial errors are asserted on appeal for reversal.
On March 27, 1973, at approximately 10:55 p. m., the Frey & Williams Liquor Store, 2324 Louisiana, Lawrence, Kansas, was robbed by two men. Mr. Mike Canella, the clerk working at the liquor store at the time of the robbery, testified that two men entered the store and demanded money from him. The larger of the two men, later identified as Mr. Coffelt, was armed with a gun, and the smaller man whom Mr. Canella identified as the appellant was carrying a can of mace.
After asking for the money the appellant sprayed Mr. Canella in the face twice with the mace, and the two men forced him to lie down in the back room of the liquor store. The men had difficulty in opening the cash register, so they brought Mr. Canella back into the front room to help open it. Mr. Canella testified that the larger man had his tee shirt pulled up over his nose, but the man he identified as the appellant had nothing hiding his face during the robbery. The appellant was no more than fifteen feet from Mr. Canella when the men first entered the store and Mr. Canella had an unimpaired view of the appellant -until he was sprayed with mace.
Mr. Frey, the owner of the liquor store, determined that the two men had escaped with $228.05 in cash and one-half gallon of whiskey. Apparently Mr. Canella was the only one who observed the robbery. When the police arrived the two men had left the scene. Robert Avery, a Lawrence police ofiicer who investigated the robbery on the night of its occurrence, testified that Mr. Canella’s face was red and his eyes were watery when he arrived.
Two or three days after the robbery detective Carroll Cross-field questioned Mr. Canella at his home and showed him three pictures, one of which was of the appellant, for identification purposes. Mr. Canella stated: “I had reason to think it was him [picture of appellant] but I was not going to commit myself to a photograph.” Detective Crossfield then stated the appellant was out on bond for a previous aimed robbery, and that the appellant was the man they were looking for. Several days later Mr. Canella positively identified the appellant in a lineup held in Topeka as one of the men who robbed the liquor store. He testified:
“. . . That as soon as he saw appellant at the line-up he was positive that appellant was one of the men who had robbed him. That he is a professional photographer and makes pictures of people and can remember faces because of it. That he could have identified the appellant without the line-up. That the people in the line-up were similar in size, bodily-frame, complexion, hair and facial features. That he had told Detective Crossfield that he could identify the smaller man of the two that robbed him prior to the line-up.”
Appellant was subsequently charged with aggravated robbery and aggravated kidnapping in connection with the robbery, and was brought to trial before a jury on both charges on June 11, 1973. At the conclusion of the state’s evidence, the appellant’s counsel moved the court to compel election of one charge or the other. Counsel for the appellant argued the evidence did not support both charges, but the court, viewing the evidence in its most favorable light, overruled the appellant’s motion and stated the state was entitled to have both charges submitted to the jury.
The jury was permitted to deliberate on the guilt of the appellant on both counts contained in the amended information. In the course of deliberations the foreman of the jury sent a note to the presiding judge asking the following question:
“According to the law, is it possible to have aggravated armed robbery without kidnapping?”
The trial judge answered:
“The answer to your question is yes.”
The jury was then returned to the jury room and after deliberations submitted a verdict of guilty to the charge of aggravated robbery contained in Count I of the amended information. However, on the charge of aggravated kidnapping in Count II, the jury foreman gave the court a second note reading:
“Jury having difficulty on what Seperates aggravated robbery from kidnapping. According to instructions we understand these to be the Same, Differences isn’t clear.”
After reviewing the second note, the trial judge found that the jury should be directed to acquit the appellant of the charge of aggravated kidnapping, “it having arisen out of the same act of violence as the aggravated robbery.” The jury was so instructed and the appellant was acquitted on the second count. The appellant filed a motion for a new trial claiming the court had erred in allowing the jury to consider both of the counts contained in the amended information, but the motion was summarily overruled.
The appellant’s first two points on appeal'are stated as follows:
“1. The pre-trial photographic identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentifioation, thereby tainting the subsequent physical lineup and the in-court identification because an insufficient number of photographs were shown to the victim, counsel was not present at said photographic lineup, and statements were made to the victim by the law enforcement officer conducting said photographic lineup that the defendant had a prior record of armed robbery.
“2. The physical lineup identification of the defendant by the victim was inadmissible as evidence and tainted the subsequent in-court identification because it was conducted in an illegal and suggestive manner in that the defendant was forced against his will to participate in said lineup, an insufficient number of other persons were placed in said lineup, said physical lineup was conducted after an illegal and suggestive photographic lineup, the defendant was not represented by counsel at said lineup, and the defendant did not knowingly, understandingly, and voluntarily waive his right to the presence of such counsel.”
The record does not disclose that counsel for the appellant during the trial of this case lodged any objections to matters incorporated in the first two points on appeal. During oral argument before this court the appellant’s counsel candidly conceded there was no objection either before trial or during trial to Mr. Canella’s testimony as to the identity of the appellant. The motion for new trial set forth in the record does not finger any of the procedures used in the identificatnon process, or disclose any objection to Mr. Canella’s testimony identifying the appellant as one of the persons participating in the robbery.
The rules of evidence set forth in the Code of Civil Procedure apply to criminal actions as well as to civil actions. K. S. A. 60-404 is a codification of the state’s prior law and provides that a verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as. to make dear the spedfic ground of objection. (State v. Shepherd, 213 Kan. 498, 516 P. 2d 945 and Baker v. State, 204 Kan. 607, 464 P. 2d 212.)
The appellant in his brief asserts constitutional grounds for reversal on the first two points, but nowhere in the record does it appear that an objection was made in the trial court on constitutional grounds. Therefore, constitutional questions are not properly before us. (State v. Garcia & Bell, 210 Kan. 806, 504 P. 2d 172 and authorities cited therein.)
A suspect in a criminal case has no right to have counsel at either a photographic or a physical lineup conducted prior to the filing of formal criminal charges against him. These are not to' be considered critical stages of the proceeding which give rise to a right to counsel. (State v. Anderson, 211 Kan. 148, 505 P. 2d 691; and State v. McCollum, 211 Kan. 631, 507 P. 2d 196.) The Sixth Amend- merit guarantees attach only after the initiation of judicial criminal proceedings against an individual. (Kirby v. Illinois, 406 U. S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877.) At the time of the physical lineup the appellant by his own testimony admits he was not under arrest on charges upon which this appeal was taken.
Further, compelling an accused to participate in a lineup gives rise to no violation of his Fifth Amendment rights. Merely requiring an acoused to exhibit his person for observation by a prosecution witness involves no compulsion of the accused to give testimonial evidence against himself. Only testimonial compulsion is prohibited by the Fifth Amendment. (United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926.) Forcing the appellant to participate in the lineup against his will was permissible.
The appellant claims the photographic identification procedure was conducted in a manner so as to create a substantial likelihood of misidentifiication. The record discloses that the victim refused to commit himself to an identification of any kind on the basis of photographs. He did not feel confident in basing his identification on a photograph; his experience as a photographer had taught him that photographs could be misleading. He stated at the time that he was sure he could identify the appellant at a physical lineup. Detective Crossfield’s comment that the appellant was on bond for armed robbery may have been somewhat suggestive, but Mr. Canella had already indicated his unwillingness to make any identification based on photographs, and had requested to observe a lineup.
The record does not disclose any deficiencies in the subsequent lineup procedure. The appellant was not entitled to have counsel present at the lineup, (State v. McCollum, supra) nor was he privileged to refuse to participate, (United States v. Wade, supra). The lineup consisted of four men who were, according to the victim’s testimony, similar in size, bodily frame, complexion, hair and facial features. Nothing in the record indicates the lineup was unnecéssarily suggestive or coercive.
Even if it be assumed that the pretrial identification procedures were deficient, Mr. Canella’s in-court identification of the appellant is capable of standing on its own. If an in-court identification is based on a witness’ observation at the time of the occurrence, the in-court identification is capable of standing even though the pretrial identification procedures may have been deficient (State v. Hill, 209 Kan. 688, 498 P. 2d 92; State v. Calvert, 211 Kan. 174, 505 P. 2d 1110; State v. McCollum, supra; and State v. Lora, 213 Kan. 184, 515 P. 2d 1086.) In the present case Mr. Canella had an opportunity to view the appellant at close range in a lighted store. No one else was in the store but the two men, and Mr. Canella looked directly at the appellant before he was sprayed with mace. The appellant had nothing covering his face and did most of the talking during the robbery. The appellant’s attention was clearly focused upon the appellant and his companion because the companion, the taller of the two, had a portion of his face concealed by a tee shirt over his nose when they entered the store. Although Mr. Canella would not identify the appellant from a photograph, he stated he could have identified the appellant on sight without the lineup. His observations at the scene were sufficient to give him an independent basis for identifying the appellant in court.
The third and last point asserted by the appellant is that the trial court committed reversible error in overruling the appellant’s motion to compel an election at the close of the state’s case between aggravated robbery and aggravated kidnapping, and thereby caused the jury to unjustifiably consider multiple counts against him, enhancing the possibility of a compromise verdict not justified by the evidence presented.
The essence of the appellant’s argument is that the unlawful conduct attributed to him could not constitute more than a single act of criminal delinquency — the act of aggravated robbery. The appellant contends the element of asportation which is required and necessary to constitute the act of kidnapping was totally absent from the facts within the knowledge of the Douglas County Attorney at the time the amended information was prepared and totally absent from the facts proven at this trial. The argument proceeds on the assumption that regardless of the kidnapping statutes in effect, the line of Kansas cases on the subject of the asportation requirement necessary to constitute the crime of kidnapping are poorly reasoned, do not reflect modem legal thought, and should be overruled. (See, State v. Brown, 181 Kan. 375, 312 P. 2d 832; and State v. Ayers, 198 Kan. 467, 426, P. 2d 21.) Both the Brown and Ayers decisions relied upon a line of California cases, particularly: People v. Wein, 50 Cal. 2d 383, 326 P. 2d 457, cert. den. 358 U. S. 866, 3 L. Ed. 2d 99, 79 S. Ct. 98, reh. den. 358 U. S. 896, 3 L. Ed 2d 122, 79 S Ct. 153; and People v. Chessman, 38 Cal. 2d 166, 238 P. 2d 1001. Counsel for the appellant points out that these opinions of the California Supreme Court are representative of the past, prevailing thought that any asportation, however slight, was sufficient to constitute kidnapping. In 1969 the California Supreme Court expressly overruled the Chessman-Wein line of cases. (People v. Daniels, 71 Cal. 2d 1119, 1139, 80 Cal. Rptr. 897, 910, 459 P. 2d 225, 238, 43 A. L. R. 3rd 677 [1969].) The New York case of People v. Florio, 301 N. Y. 46, 92 N. E. 2d 881 (1950), cited in Brown has been overruled by a subsequent case, People v. Levy, 15 N. Y. 2d 159, 204 N.E. 2d 842, 256 N.Y. S. 2d 793, (1965) cert. den. 381 U. S. 938, 14 L. Ed. 2d 701, 85 S. Ct. 1770.
Counsel for the appellant has presented an excellent brief on this point but we do not consider it necessary or material to our decision herein.
It is apparent from the record the jury did not, in fact, reach a compromised verdict. They returned a verdict of guilty on the charge of aggravated robbery, and the foreman then submitted a question to the trial judge on aggravated kidnapping. Since the jury was unable to reach a verdict on the count of aggravated kidnapping, and the court saw they were having difficulty with this count, the court directed them to acquit the defendant on the charge of kidnapping. This was definitely to the appellant’s advantage. Even if the court erred in failing to compel an election at the close of state’s evidence, the error was harmless. On the record here presented the appellant has not shown that he was prejudiced in any way by the court’s ruling on his motion. Speculation as to the possibility of prejudice is insufficient to reverse a conviotion. (See, State v. Troy, 215 Kan. 369, 373, 524 P. 2d 1121.)
The foregoing is not to suggest that the trial court erred in permitting both counts to go to the jury. K. S. A. 21-3420 [Weeks] defines kidnapping as “the taking or confining of any person, accomplished by force, threat or deception” with the proscribed intent set forth in this section, one of which is “to facilitate flight or the commission of any crime.” Aggravated kidnapping under K. S. A. 21-3421 [Weeks] is kidnapping when bodily harm is inflicted upon the victim. While the appellant contends the absence of asportation under the facts renders the charge inappropriate in this case, the statute speaks in terms of “confinement” to facilitate the commission of crime. Here the victim was forced into the back room of the store where he was held while the robbery proceeded in the front room. It could be said the holding of the victim there while the robbery proceeded in the front room constitutes confinement to facilitate the commission of a crime. The victim suffered bodily harm when he was sprayed with mace during the incident. On the record presented, however, we find it unnecessary to decide this point.
Having carefully reviewed the record presented on appeal and the arguments presented by counsel for the appellant, the appellant has failed to make it affirmatively appear that prejudicial error was committed in the trial of the case.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Foth, C.:
Plaintiffs brought this injunction action challenging the right of the defendant board of education of Unified School District No. 329 to change the use of the high school and grade school buildings in Paxico, Kansas. The trial court upheld the change of use and granted summary judgment for the board. Plaintiffs have appealed.
Plaintiffs are residents of the unified district, and also of the disorganized rural high school and common school districts which owned the buildings prior to unification. It was stipulated that enough of the territory and valuation of each of the disorganized districts is contained in the unified district so that under K. S. A. 72-8213 (a) neither building can be “closed” without the consent of the electors of the old districts.
What the board proposed was not to close either building, but to change the use of each for the 1974-75 school year. The board justified its proposal under K. S. A. 72-8213 (e):
“Nothing in this section, shall be deemed to restrict or limit the authority of any board to change the use of any attendance facility, so long as at least three (3) high-school grades, three (3) junior high-school grades, or six (6) elementary school grades are offered in such attendance facility.”
Prior to this 1974-75 school year the district maintained a four year high school, grades 9-12, in the Paxieo high school building. The elementary school building housed kindergarten and grades six through eight. (Plaintiffs advise us that this use was approved by petition of the electors. Children in grades one through five attended the nearby Newberry elementary school.)
The board’s proposal as finally and formally set out in its resolution of March 7, 1974, called for transporting senior high students (grades 9-12) to Alma, and using the Paxieo high school building for a junior high school to comprise grades six through eight. In the elementary school, the sixth through eighth grades would be replaced by first through fifth graders, so it would then have kindergarten and grades one through five (K-5).
Whether the proposed changes comport with the quoted statute (K. S. A. 72-8213 [e]) depends, as to the high school building, on whether grades six through eight are three “junior high-school” grades. As to the elementary school, the question is whether K-5 comprises “six (6) elementary school grades.” When the case was submitted to the court below the parties further distilled the issues as follows:
“1) May the 6th grade be considered a ‘junior high school grade’ within the meaning of K. S. A. 72-8213 (e)?
“2) May kindergarten be considered an ‘elementary school grade’ within the meaning of K. S. A. 72-8213 (e)?”
Two hearings were held on plaintiff’s application for a temporary injunction. At the first plaintiffs introduced the testimony of an experienced educator. He testified that in traditional thinking a junior high school consisted of grades seven through nine, not six through eight. The traditional “configuration” of a school system having a junior high was “6-3-3,” meaning six elementary grades, three junior high grades, and three senior high grades. Kindergarten was traditionally considered a special preschool class or program, not a grade. He also testified that to his knowledge six Kansas school districts presently operate under the “5-3-4” plan proposed by the defendant district. All Kansas districts offer kindergarten.
At the conclusion of the second hearing the trial court granted defendants’ motion for summary judgment, and subsequently filed a memorandum decision in which, after setting out the history of the proceedings and the issues, those issues were resolved as follows:
“On the junior high-school question, at first blush, we think of a junior high-school as consisting of grades 7, 8, and 9. However, evidence adduced by plaintiffs shows this is not universally the case in Kansas.
“The court notes Regulations of the State Superintendent of Public Instruction of Kansas, filed with the Revisor of Statutes October 1, 1967, being Regulation 91-3-1 (B) provides:
“ ‘An accredited junior high school shall be organized to include at least two consecutive grades and may include grades six through nine. (Auth. K. S. A. 72-115, eff. Jan. 1, 1968).’
“The Court notes Rules and Regulations of the State Board of Education, filed with the Revisor of Statutes September 22, 1972, now in effect, being Regulation 91-3-1 (b) provides:
“ ‘An accredited Junior high school shall be organized to include at least two consecutive grades and may include grades six through nine’.
“The State Board of Education was created by K. S. A. 72-7501, et seq; K. S. A. 72-7513 having to do with powers of the Board; K. S. A. 72-7514 having to do with rules and regulations of the Board.
“The only legislative enactment called to the court’s attention, or known to the court in the time available for research independently, on this precise point is K. S. A. 72-40a02, which was repealed in 1969. This statute stated that a junior high school is two or more years of the first three years immediately following the six years of school instruction. The interpretation of that statute would depend on the interpretation of the status of kindergarten. This statute is not helpful to plaintiffs, and in any case, is now repealed.
“Thus, it is seen that a junior high school may be any combination of at least two consecutive grades 6 through 9. It may contain 2 grades, 3 grades, or 4 grades. But, for the purpose of K. S. A. 72-8213 (e), a junior high school must have at least three (3) grades. These grades may be 6, 7, and 8. There is nothing in the law that requires a junior high school to consist of grades 7, 8 and 9.
“Turning next to the question of kindergarten.
“Kindergarten is not required, but it may be established. K. S. A. 72-8212. Evidence adduced by Plaintiffs shows that all unified school districts in Kansas have now established Kindergartens. The question then is, when a kindergarten is established, as in the instant case, is it a grade of elementary school?
“K. S. A. 72-7002 (c) states a ‘pupil’ is any person who is regularly enrolled in any of grades kindergarten through twelve (12) of a district. Further K. S. A. 72-7002 (/) (1) provides that ‘certified employees’ must be employed in grades kindergarten through twelve (12). In the foundation act here, a kindergarten pupil is counted as Y pupil. But, as will be seen later in the Regulations of the State Board of Education, a kindergarten is not necessarily limited to half-days. However, counting a kindergarten pupil as % pupil for the foundation act purposes does not make the kindergarten pupil less than a pupil.
“K. S. A. 72-8302, having to do with transportation provides ‘. . . Every school district shall provide or furnish transportation for every pupil who resides in the school district and who attends any of grades kindergarten through twelve at a school of the school district. . . .’
“(The word ‘grade’ or ‘grades’ appearing in these statutes are underlined by the court for emphasis — they are of course not emphasized in the statute itself).
“K. S. A. 72-1107 regulates the age of attendance of pupils in the public schools, provides a child must be five years of age on oertain dates of any year in order to enter kindergarten, and provides completion of kindergarten entitles the pupil to enter grade one.
“K. S. A. 72-67,115, provides a school district may offer and teach courses and conduct programs for children under the age provided by law for enrollment in kindergarten, to be known as pre-school programs. Hence, kindergarten is school, pre-kindergarten is pre-school.
“The court notes in the Regulations of the State Superintendent of Public Instruction of Kansas, filed October 1, 1967, noted above, Regulation 91-4-1 (B) (6) recites:
“ ‘The kindergarten program in an accredited elementary school must be organized as separate kindergarten classes and meet the following requirements:
(a) The teacher must hold a certificate valid on the elementary level.
(b) The class must be organized on a basis of not less than 2% clock hours nor more than three clock hours each day.’
“The court notes the Regulations of the State Board of Education, filed September 22, 1972, noted above, Regulation 91-4-1 (B) (1) provides:
“ ‘An accredited elementary school shall be organized to include any combination of grades K through 8, such grades 1 through 3, 4 through 6, etc. (The middle school concept of organization will be recognized as a consecutive combination of any grades 5-9).’
“And further, Regulation 91-4-1 (B) (6):
“ ‘The kindergarten program in an accredited elementary school must be organized as separate kindergarten classes and meet the following requirements:
(a) The teacher must hold a certificate valid on the elementary level.
(b) The class must be organized on a basis of not less than 2)i clock hours each day when in session.’
“Plaintiffs cite Welch vs Board of Education 212 Kan. 697 as authority for their position. Plaintiffs point to the language in page 705 in support of their position. A careful reading of that case shows that kindergarten was not considered at all. It was contended by appellants that grades 7 through 9 would constitute a junior high school, and grades ten through 12 would constitute a school within the meaning of 72-8213 (e), and that the trial court exceeded its authority in requiring four grades of high school. The Court agreed with appellant’s position, and correctly so. However, again, the questions in the instant case were not considered in the Welch case and Welch is not authority for plaintiffs’ position.
“Plaintiffs cite K. S. A. 72-6101 (1) and K. S. A. 72-5801 (1) as authority that elementary schools means grades one to eight. Both of these statutes were repealed in 1965, and have no bearing on the instant case.
“It seems to the court that the usage of words are strained by plaintiffs. In days gone by, we didn’t have kindergarten. We had elementary schools consisting of grades 1 through 8, and they were called by their respective number. We had high schools, consisting of freshmen, sophomore, junior, and senior (now called grades 9,10, 11, and 12).
“When kindergarten became the ordinary course of events, it went by the name kindergarten. The name of grades 1 through 8 were not changed. Yet, kindergarten is a grade of elementary school now, and the grade which we call ‘grade 1’ is the second year of elementary school instruction, but called ‘grade 1’. If we denoted grades by name instead of number, or redesignated the name of “kindergarten’ it would avoid the misleading suggestion as to what is a grade of elementary school.
“It is quite clear that kindergarten is a grade ... in the public schools of Kansas, a grade of some level of instruction. It is not a grade of high school, nor a grade of junior high school. The rhetorical question then answers itself, and we are compelled to the conclusion that kindergarten is a grade of elementary school.
“This being the case, the change of use of the Paxico High School and Paxico Elementary School facilities contemplated by the defendant Board of Education of USD No. 329, as contained in its resolution designated Joint Exhibit No. 2, is within the lawful authority of such board under the provisions of K. S. A. 72-8213 (a).”
To us the trial court’s reasoning is cogent, compelling and convincing. There is little we can add except to note briefly plaintiffs’ four arguments made on appeal.
First, they say the trial court failed to' give to the statutory phrases “junior high grades” and “elementary grades” their common and ordinary meaning. As we see it those terms do not, even in ordinary usage, have any such rigid and fixed meaning as plaintiffs would ascribe to them. The varying meanings employed by both the legislature and the state board of education, in the statutes and rules noted by the trial court, attest to that. We think the use of these relatively broad generic terms in the statute implies a legist lative leaning toward flexibility rather than rigidity. Had specific grades been intended it would have been a simple matter for tihe legislature to have named them.
Second, plaintiffs point to two of our statutes which previously defined an “elementary school” for levy and finance purposes as one offering grades one through eight (K. S. A. 72-5801 [1] and 72-6101 [1]), and one which previously defined a “junior high school” which a common school district could operate as one offering at least two of the first three years “immediately following the first six years of school instruction” (K. S. A. 72-40a02). The first definition, we note, would seem to make grades 7 and 8 “elementary” grades, as well as grade 6. But even plaintiffs do not contend that 7 and 8 may not be part of a junior high. The second definition, they say, necessarily excludes kindergarten from the “first six years.” If kindergarten is one of the first six grades, they say, a junior high could only have lawfully been drawn from the immediately following three grades 6-8, while everyone knows that 7-9 were the commonly accepted junior high grades. Whatever force the argument might have had at the time when common school districts were first venturing into the junior high area, we think it has been supplanted by the changes wrought by unification. With the broad discretion now vested in boards of education it is no longer necessary to specifically authorize a local board to operate a junior high — nor to define it. Neither is it necessary to limit such authority to prevent common school districts from encroaching on the domain of rural high school districts, which was one of the apparent purposes of 72-40a02. (See K. S. A. 72-40a03, which contained a corresponding restriction on rural high school districts to prevent them from dipping below grade 7 for their junior high schools.)
It is suggested that these statutes formed the institutional and historical background against which 72-8213 (e) was drawn. We, however, attribute more significance to the fact that they have since been repealed. The repeal illustrates once again a trend toward the elimination of rigid definitions from the statutory scheme. The current statutes, as the trial court noted, refer to kindergarten as an integral part of a school system and often lump it with other “grades” as in the phrase “grades K-12” found in the Foundation Finance Act.
As a third point plaintiffs assert that regulations promulgated by the state board of education after 72-8213 (e) was enacted should mot have been considered by the trial court in interpreting the statutory language. Yet we only recently said “This court has long given great weight under the doctrine of operative construction to the interpretation of a statute by the administrative body charged with enforcing the statute.” (State v. Helgerson, 212 Kan. 412, 413, 511 P. 2d 221.) To the same effect, in Tillotson v. Abbott, 205 Kan. 706, 472 P. 2d 240, we said, “The interpretation placed upon a statute by an administrative agency whose duties are to carry the legislative policy into effect should be given consideration and weight when the statute is ambiguous and the intent of the legislature is not clear.” (P. 713.) In any instance where there is an administrative interpretation of a statute, such interpretation must necessarily come after the statute is enacted. Administrative agencies are presumed to have expertise in their respective fields — that is the reason they are chosen by the legislature to carry out their delegated tasks. It is for this same reason that courts give weight to their interpretations of statutes falling within their area of expertise. It was proper for the trial court to do so here.
Finally, plaintiffs maintained that case law from this and other jurisdictions support their position that kindergarten is not an elementary grade. We find none of the cases cited from other jurisdictions is sufficiently analogous to be persuasive. Two California cases are sufficient to illustrate the difficulty in seeking guidance from decisions made in entirely different contexts. In Sinnott v. Colombet, 107 Cal. 187, 40 Pac. 329 (1895), the issue was whether a kindergarten teacher’s salary could properly be paid from tax money levied for the support of the “primary schools.” The court held that it could, that a kindergarten system when adopted was to be regarded “as part of the public primary schools,” and that when the kindergartens were organized the court would regard them as “classes in the primary schools of the district.” (107 Cal. at 192, 40 Pac. at 331.) It is but a short semantic jump from a “class” in a primary school to a “grade” in an elementary school.
On the other hand, only ten years later the same court held that kindergartens, being optional by district, were not part of California’s constitutional “uniform and mandatory system of common schools” so as to count toward a district’s share in the state school fund. Los Angeles County v. Kirk, 148 Cal. 385, 83 Pac. 250 (1905). Hence characterization for one purpose does not necessarily mandate the same characterization for another. As precedent, all the foreign cases cited suffer from this same infirmity.
In this jurisdiction we have decided just three cases under the “school closing” section of the unification act. The first, Hand v. Board of Education, 198 Kan. 460, 426 P. 2d 124 (1967), was essentially superseded by the enactment of K. S. A. 72-8213 (e), a fact recognized by our second case, Hensley v. Board of Education of Unified School District, 210 Kan. 858, 504 P. 2d 184 (1972). Hensley held that subsection (e) clearly authorized a change of building use from grades 10, 11 and 12 to grades 7, 8 and 9. Such a change of use was authorized even though the board had previously been enjoined from “closing” the school. Neither Hand nor Hensley bears on the issues presented here.
The third case, Welch v. Board of Education, 212 Kan. 697, 512 P. 2d 358 (1973), is the one upon which plaintiffs chiefly rely. The building there in controversy was a dually owned and dually used facility, similar to that considered in Hand. Prior to unification it had housed grades 1-8 in one wing, 9-12 in the other. It was proposed to eliminate the high school grades (9-12) and use both wings for grades 1-8. We held, following the rationale of Hand, that this would amount to a “closing” of the high school “attendance facility,” which could not be done without consent of the electors. To this extent we upheld the judgment of the district court. But the district court had ordered the board to continue operating a full four-year high school in the building. We modified this portion of the judgment, observing (p. 705):
“Finally, as an alternative if other specifications of error are not upheld, appellant [board of education] urges that the trial court’s order mandating continuance of four grades of high school (nine through twelve) in the building at Pawnee Rock was overbroad and beyond the protection afforded by 72-8213 (e). It asserts that even if the building is treated as containing two separate attendance facilities, appellant may lawfully ‘change the use’ of the wing constituting the disorganized high school attendance facility by conducting therein, at its option, either three junior high school grades (seven through nine) or three high school grades (ten through twelve). Appellant indicates that as a matter of economy its choice would be to conduct three junior high grades therein, leaving six elementary grades (one through six) in the wing constituting the common school facility.
“We must agree with appellant’s contention. Subsection (e) does permit the board of a unified district to ‘change the use’ of any attendance facility so long as at least three high school grades, three junior high school grades or six elementary school grades are offered in such facility.”
Plaintiffs seize on this language as representing a definition by this court of what constitutes a junior high school. They read too much into it. It was the appellant board that there proposed a junior high consisting of grades seven through nine; we merely held that such a proposal was within the board’s statutory authority —no more. Such a holding was preordained by Hensley. Had the board in Welch proposed a 6-8 junior high, it would have raised the issue now presented for the first time. As it is, we are writing on a clean slate.
In the final analysis, the question is whether the board’s proposed change of use is consistent with the letter and spirit of the statute. As stated above, we have concluded that it complies with the letter of the law for the reasons set out by the trial court. As to the spirit: the underlying purpose of subsection (e), as we see it, was to give the greatest possible latitude to the local boards in utilizing their school buildings, while ensuring to the electors of the disorganized districts that, unless they consent, their buildings would continue to receive substantial and not token use for school purposes. Had the board here proposed to use the Paxico grade school building for K-6 and the high school building for 7-9, plaintiffs would have no arguable grounds for complaint. The actual proposed uses, K-5 and 6-8, are real and substantial uses for school purposes, embodying a recognized structure for a school system. In our opinion the proposal comports with the spirit of the law as well as its letter.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fromme, J.:
This action was commenced by the receiver of an insolvent credit union to recover a judgment for money loaned by the credit union to a shareholder. The primary question on appeal is whether the shareholder of an insolvent credit union may set off the cost of her shares in the credit union against an indebtedness she owed to the credit union at the time it was declared insolvent. The trial court permitted the cost of shares to be set off. The receiver of the insolvent credit union appeals.
By way of background, the appellee Ruby M. Redmond had borrowed money from the First Credit Union of Parsons. Her husband, an employee of the credit union, did not join his wife in borrowing the money or in signing the credit agreements. In the winter of 1969-1970, Mrs. Redmond attended hearings by the State Depart ment of Credit Unions relative to receivership proceedings involving the First Credit Union of Parsons. Her indebtedness with the union in December, 1969, was $11,000.00 and her credit agreement at that time was co-signed by one Ruby Van Hoose. The $11,000.00 credit agreement was credited with a $5,000.00 principal payment and a new credit agreement was executed as of December 22, 1969, in the amount of $6,200.00. This latter credit agreement was cosigned by Ruby M. Redmond and Wiley May Robinson, the aunt of Mrs. Redmond. Mrs. Robinson had a share balance on the books of the company of $6,735.36. Mrs. Redmond held a share balance on the books of the company of $5.00. The actual value of the shares is much less than book value and could be of no value.
Under the terms of the credit agreement the co-signers, Ruby M. Redmond and Wiley M. Robinson, pledged all the paid shares which they held in the First Credit Union of Parsons as security for the loan. The credit agreement provided that said pledge was given to secure the payment of all money loaned to the co-signers. The co-signers authorized the credit union to apply the pledged shares to the payment of said loans and interest. This credit agreement and pledge was dated December 22, 1969. On January 5, 1970, the Kansas Credit Union League qualified as receiver of the insolvent First Credit Union of Parsons and was granted letters of receivership.
Redmond and Robinson thereafter refused to make payments on their indebtedness and on April 11, 1973, Wiley May Robinson formally requested that her cost of shares be set off against any amount remaining due on the loan. The receiver refused to allow the requested setoff on the ground that it would constitute an unlawful preference. The receiver brought this action to recover the entire balance due on the loan. The defendant Redmond answered saying the share balance of Wiley M. Robinson should be set off against the indebtedness and this would wipe out the indebtedness.
A motion for summary judgment by plaintiff was denied. The case was tried to the court and judgment was entered in favor of defendant, Ruby M. Redmond, decreeing that the shares owned by Wiley M. Robinson be set off against the indebtedness of Ruby M. Redmond, and any excess over and above the indebtedness be turned over to the plaintiff receiver. We assume from the wording of the journal entry that the amount in dollars considered available for setoff was the original share balance of $6,735.36 as oarried on the books of the insolvent credit union. The record does not disclose what actual value, if any, might remain of the original share balance after the expenses of receivership and outstanding liabilities are paid. The trial court specifically held that the allowance of the setoff would not constitute a preference but no further explanation was given.
Neither party to this appeal cites a case in which the right of setoff has been decided with regard to an insolvent credit union. The appellee Redmond relies on cases involving insolvent banks. The appellant receiver relies on cases involving insolvent savings and loan associations.
In Bodley v. Bowman, 131 Kan. 741, 293 Pac. 740, this court holds:
“A customer of a bank which becomes insolvent and which holds his note, and in which the customer has .a deposit, may, when sued upon the note, set off his deposit against the note or against any bona fide indebtedness of his own to the bank.” (Syl. f 5.)
(See also Johnson v. Farm & Home Savings & Loan Ass’n, 131 Kan. 238, 242, 289 Pac. 396, 71 A. L. R. 779.)
These Kansas cases appear to recognize and apply the general rule followed by a majority of jurisdictions to the effect that a depositor in an insolvent bank may set off his deposit therein against an indebtedness to the bank. (Farish v. Hawk, 241 Ala. 352, 2 So. 2d 407; Fox v. Dept. of Financial Institutions et al, 212 Ind. 85, 7 N. E. 2d 39; Hammond Pure Ice & Coal Co. v. Heitman, 221 Ind. 352, 47 N. E. 2d 309, 145 A. L. R. 997; Fischer, Aplnt., v. Commercial Nat. Bank., 321 Pa. 200, 184 A. 57; 9 C. J. S., Banks and Banking, § 437, p. 868.)
One of the accepted reasons for allowing setoffs against insolvent banks arises by reason of the limitation on the rights, title and powers imposed on the receivers of insolvent banks. It is said a receiver takes only such title to the bank’s assets as the bank itself had and subject to all equities which existed against the assets in the hands of the bank. The receiver takes charge of the banking affairs where the bank left them, and he takes over its assets with its concomitant burdens. He can set up no right against claims which the bank could not have maintained. The receiver of an insolvent bank is merely an assignee, so that choses in action pass to him subject to any right of setoff existing at the time of his appointment. (3 Michie, Banks and Banking, 1974, § 96, pp. 246-249, and § 119, p. 284.)
The allowance of the setoff of a bank deposit against an indebtedness to the bank has been justified and declared nonpreferential following the rationale expressed in Scott v. Armstrong, 146 U. S. 499, 36 L. Ed. 1059, 13 S. Ct. 148, as follows:
“. . . Where a set-off is otherwise valid, it is not perceived how its allowance can be considered a preference, and it is clear that it is only the balance, if any, after the set-off is deducted which can justly be held to form part of the assets of the insolvent. The requirement as to ratable dividends, is to make them from what belongs to the bank, and that which at the time of the insolvency belongs of right to the debtor does not belong to the bank.” (146 U. S. p. 510.)
(Further discussion of setoffs against insolvent banks appears in the following annotations: Anno. — Deposit in Insolvent Bank— Set-off, 25 A. L. R. 938; Anno. — Deposit in Insolvent Bank — Set off, 82 A. L. R. 665.)
A different rule applies in Kansas with reference to savings and loan associations. A depositor as a shareholder may not set off shares held in an insolvent savings and loan association against debts the depositor owes to the association. In Scaife v. Savings Association., 71 Kan. 402, 80 Pac. 957, this court holds:
“A borrowing stockholder in a building and loan association that has become insolvent is not entitled to receive credit on his indebtedness to the association for the amounts paid in the purchase of stock, called dues.” (Syl. f 3.)
As a general rule, although there is authority to the contrary, when a savings and loan association is insolvent a borrower who holds shares in the association may not set off deposits or shares against the amount of his loan. Bank Commissioner v. Loan Association, 126 Me. 59, 136 A. 284, 50 A. L. R. 526; Saunders v. State Savings & Loan Ass’n., 121 Neb. 473, 237 N. W. 572; Wetmore Case, 347 Pa. 398, 32 A. 2d 221, 12 C. J. S., Building and Loan Associations, § 85, p. 504.)
The theory which supports the foregoing rule is that the borrowing stockholder occupies a dual relationship to the association. As a stockholder he is a member of the association, entitled to share in the profits and liable for his share of the losses and expenses in the same manner as a nonborrowing member. Under this view credits and debits relating solely to the borrower’s rights and liabilities as a stockholder, such as dividends and withdrawal value of stock, are not set off against the amount of indebtedness owed but are left until final settlement with all members — borrowers as well as nonborrowers. The rule is based on the principle that borrowing and nonborrowing members should be treated equally and that the fund remaining in the association after payment of prior liabilities should be distributed to all stockholders on a pro rata basis. (12 C. J. S., Building and Loan Associations, supra; Anno. — Building and Loan Associations — Settlement, 98 A. L. R. 6, § III, p. 10.)
(Further discussion of the relationship' between shareholders and insolvent savings and loan associations is found in the annotation, Anno. — Building and Loan Associations' — Insolvency, 50 A. L. R. 533.)
It is argued by the appellant receiver that credit unions are similar in nature and purpose to building and loan associations and because of the similarities in ownership of shares, shareholders in credit unions and in savings and loan associations should be treated the same. The receiver contends that borrowing shareholders should not be allowed to set off the book value of their shares against indebtedness owed the insolvent institution. It is argued that by disallowing setoffs borrowing and nonborrowing credit union members will be treated equally and any assets remaining in the insolvent credit union will be distributed to all members of the credit union on a pro rata basis after the payment of other liabilities. It is further pointed out that if a borrowing member is granted the right to set off the cost of his shares against indebtedness owed the insolvent credit union the members would not share equally in losses. The borrowing member would receive full book value for his shares as against his indebtedness and the nonborrowing member would share only in the assets remaining after payment of liabilities. A preference in such case would be enjoyed by the borrowing members of a credit union at the expense of nonborrowing members. There is much to be said in favor of this argument.
However, we are of the opinion that the answer to our question is found in our Kansas statutes regulating credit unions. K. S. A. 17-2201 et seq., (Weeks 1974) sets forth a comprehensive legislative plan governing the organization, operation and liquidation of credit unions. The legislature has outlined in these statutes a procedure for the liquidation of credit unions which sets forth the order in which the assets of an insolvent credit union are to be marshalled.
K. S. A. 17-2230 (c) (Weeks 1974) provides:
“The board of directors, or the receiver shall use the assets of the credit union to pay: First, expenses incidental to liquidation including any surety bond that may be required; second, remaining liabilities other than shareholdings; and third, the assets then remaining, if any, shall be distributed to the savings held by each member as of the date dissolution was voted.”
The legislature has spoken quite clearly on this subject. In liquidating an insolvent credit union the expenses incidental to liquidation are to be paid first. The remaining liabilities other than shareholdings are to be paid second. Then the assets remaining, if any, are to be distributed on the basis of the savings held by each member as of the date dissolution was voted. Such a plan of distribution does not permit shareholdings to be offset against indebtedness. There can be no' offsets under the plain terms of the foregoing statute.
Other provisions of the statute indicate an intention by the legislature to delay distribution to shareholders of an insolvent credit union until final distribution. In case of insolvency K. S. A. 17-2230 (b) (Weeks 1974) requires that all claims of shareholders and creditors be filed with the receiver within one year of the date of appointment. Any claim of a shareholder based on shares held in the credit union not so filed shall be barred from participating in the assets of the credit union upon final distribution. This would seem to prevent offsetting the cost of shares held against the amount of shareholder loans.
Accordingly a shareholder of an insolvent credit union may not offset the cost of the shares held in the credit union against indebtedness the shareholder owes to the credit union at the time it is declared insolvent.
The appellee Redmond further contends that the statute which authorizes withdrawal from membership requires that shares in the credit union be set off in payment of any loan when a shareholder withdraws from membership. K. S. A. 17-2219 (Weeks 1974) provides:
“. . . All amounts paid on shares of an expelled or withdrawing member, with any dividends credited to his shares to the date of expulsion, or withdrawal, shall be paid to said member, but only as funds therefor become available, and after deducting any amounts due to the credit union by said member. All shares of an expelled or withdrawing member, with any interest accrued, shall be paid to such member, subject to sixty days’ notice, and after deducting any amounts due to the credit union by said member. . . .”
Appellee Redmond argues that since written notice of assignment of shares and withdrawal from membership was executed on April 11, 1973, the credit union was obligated to apply all amounts paid on shares to reduce the amount due the credit union on indebtedness as contemplated by the foregoing statute.
In the present case insolvency was declared and the receiver was qualified on January 5, 1970. The present action was filed by the receiver on March 7, 1973. The attempt to withdraw from membership was not made until April 11, 1973. The statute relied on by appellee relates to expulsion from membership on vote of the members and to voluntary withdrawal from membership. The provisions of this statute contemplate a viable organization and the continued existence of the credit union.
In Bank Commissioner v. Loan Association, supra, a similar statute was considered by the Maine court. The Maine statute authorized a borrower in a building and loan association to repay his loan at any time, and upon repayment he was entitled to credit for the withdrawal value of shares pledged and transferred as seourity for the loan. The Maine court said:
“This section is applicable only when the association is a going, solvent concern, for it is thoroughly settled by the authorities that when insolvency ensues the contract between the borrower and the association is abrogated. People’s Building and Loan Asso. v. McPhilamy, 81 Miss 61; 32 South, 1001; 95 Am. St. Rep. 454; 4 R. C. L. 387, 9 C. J. 991, and cases there cited.
“Statutes and rules conferring the right of withdrawals are not applicable after the association becomes insolvent, and a member then has no right to withdraw or perfect an incompleted withdrawal. In New Jersey Bldg. Loan & Inv. Co. v. McNulty, 71 At., 493, the court says that ‘these provisions .as to the right to withdraw, and the terms upon which such withdrawals are to take place, are dependent upon the association being a going concern. They cannot apply during insolvency. Insolvency at once abrogates such provisions of the contract between the association and the shareholders.’ See also Groover v. Pac. Coast Sav. Soc. 164 Cal. 67; 127 P. 495; Ann. Cas. 1914 B. 1261; Chapman v. Young, 65 Ill. A, 131, where this rule is fully discussed.” (126 Me. p. 63.)
This reasoning has received general acceptance. We are of the opinion the same reasoning applies to the similar statutory provision in Kansas relating to credit unions. The provisions of K. S. A. 17-2219 (Weeks 1974), conferring rights and imposing requirements on a member of a credit union who desires to withdraw from membership in the union, are not effective or applicable after the credit union becomes insolvent.
The judgment of the trial court in favor of Ruby M. Redmond is reversed and the case is remanded to trial court with directions to proceed in accordance with the views expressed in this opinion.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover on a bond given in connection with a replevin action hereafter mentioned.
J. S. Resinger brought an action in the district court to dissolve a partnership between himself and Ketter, the appellee here. It resulted in 'a judgment rendered March 17, 1932, that the assets did not warrant appointment of a receiver; that Resinger had an interest amounting to $132.59; that there were accounts receivable and accounts payable, and that the parties should collect the accounts receivable and pay the accounts payable and divide the balance according to their interests. Plaintiff was'given judgment for his costs of $13.40.
In August, 1933, the Commercial Credit Company brought a replevin action against Ketter to recover a certain truck, the bond being executed by the United States Fidelity and Guaranty Company as surety. The truck was taken, no .redelivery bond was given, and later the credit company disposed of it. Ketter claimed a mechanic’s lien on the truck, and on trial of the action was given judgment for its possession, or in lieu, its value of $150.
In September, 1933, Resinger filed an action in the court of Topeka against Ketter to recover. $159.10 on the theory that amount was awarded him as a judgment in the partnership dissolution suit, and he caused garnishment to issue against the credit company. On November 13, 1933, defendants’ demurrer to plaintiff’s petition was overruled and plaintiff was given judgment. On November 17,1933, the credit company was directed to pay $150 into court, but that was not then done, as later appears. A motion of defendants to set aside the garnishment was denied, and on November 22 defendants appealed to the district court. In the district court defendants’ demurrer was sustained on April 18, 1934, and a journal entry to that effect was prepared, approved by the court and filed. On the same, day, defendants’ motion to set aside the garnishment was called for hearing, but the demurrer having been sustained the trial court suggested the motion be withdrawn, and a journal entry to that effect was prepared, approved and filed.
It may be noted that Resinger, the credit company and the surety company were represented by one and the same attorney. On April 19,1934, notwithstanding the facts, the action of Resinger v. Ketter had been appealed, and in the district court had been decided in Ketter’s favor, the attorney presented to the clerk of the court of Topeka a copy of the order of the district court on the withdrawal of the motion to discharge the garnishment. He then, as attorney for the credit company, paid to the clerk of that court the sum of $150, and thereafter on the same day, as attorney for Resinger, withdrew the amount of $140.90 on the judgment rendered in that court, and from which appeal had been taken.
On April 27, 1934, Ketter filed this action in the court of Topeka, alleging the facts with reference to the replevin action, and that the truck or its value had not been returned to him. Both defendants, the appellants here, filed answers, alleging the money had been paid to the clerk of the court of Topeka pursuant to court order, and that by reason thereof defendant owed plaintiff nothing. An appeal was taken from a judgment of that court to the district court, which rendered judgment in favor of Ketter. The defendants appeal.
Appellants have not complied with rule 5 of this court requiring the abstract contain a specification of errors, and the appeal might well be dismissed for that reason. In their brief, three complaints are made, which will be noticed:
1. During the trial it developed that Ketter had made an assignment of his judgment against the credit company for $150 to.one B. F. Messick. Upon that disclosure being made, counsel for plaintiff sought leave to substitute Messick as plaintiff and to proceed, which the court granted. The abstract does not contain any copy of the assignment, nor does the evidence as abstracted disclose for what purpose it was given. While the code of civil procedure (R. S. 60-401) does require every action must be prosecuted in the name of the real party in interest, the code itself makes certain exceptions to the general rule. It has likewise been held the designated payee of a note can maintain an action to enforce payment although in strict law he may not be the real party in interest. (See Lower v. Shorthill, 103 Kan. 534, 176 Pac. 107; Bank v. Kinnett, 113 Kan. 360, 214 Pac. 776; Goebel v. Anderson, 123 Kan. 211, 255 Pac. 77; Farmers Cooperative Union v. Reynolds, 127 Kan. 16, 272 Pac. 776.)
It is further provided by the code (R. S. 60-402) that an assignment, such as we have here, is without prejudice to any defense. Under the substitution of party plaintiff as made, the defendants cannot be compelled to pay twice, and the somewhat belated substitution or the failure in the first instance to bring the action in the name of the real party in interest will not prejudice the defendants. (Greene v. McAuley, 70 Kan. 601, 79 Pac. 133; Rice v. Kilworth, 132 Kan. 418, 421, 295 Pac. 700.) The trial court did not err in permitting the substitution of party plaintiff.
2. It is urged the action was prematurely brought for the reason the appellee had made no effort to collect its judgment, presumably by execution or otherwise. There is nothing in the record to indicate this defense was made in the trial court. The defense alleged was the defendants had paid the money into court and were discharged. Ketter had been wrongfully dispossessed of the truck by the replevin proceedings, and he had a right to recover his damages under the provisions of the bond given in this action. The present action was not prematurely brought.
3. And finally, it is urged the money was paid into court pur suant to a court order and the payment discharged the defendants. The contention is without real foundation. The payment was made in an action in which it had been determined the plaintiff's bill of particulars stated no cause of action. If the plaintiff had no cause of action, he had no right to garnishment process. When the action failed, so did the garnishment. Further than that, the action had been appealed from the court of Topeka to the district court. When the money was paid to the clerk of the court of Topeka, that court had no jurisdiction of the subject matter of the action nor any right to make any order pertaining thereto. The result is the payment, though made, did not discharge the obligation of the credit company to Ketter, and Ketter, not having been paid the amount found due him as a result of the wrongful replevin of the truck, had the right to look to the credit company and the surety on its replevin bond for the amount due him.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to cancel a deed conveying a royalty interest in Sumner county land to the United Royalty Company, a common-law trust domiciled in Oklahoma.
The pertinent facts were these: In August, 1922, three men, Rochel, Burnham and Landon, organized a common-law trust for accumulating and pooling oil-and-gas royalty interests in lands. The organizers gave it the name of The United Royalty Company, assumed its management as trustees, and filed a declaration of trust specifying its nature and purposes in a public record office-in Kay county, Oklahoma. To pay for the royalty interests it desired to acquire the trustees created 2,000,000 unit interests in the trust estate, which were to be apportioned and assigned to owners of lands having oil-and-gas possibilities in exchange for deeds conveying royalty interests to this common-law trust.
Pursuant to its avowed purposes, this defendant trust, The United Royalty Company, acquired royalty interests in some 50,000 acres, for which it gave in exchange reciprocal and proportionate unit interests in the trust estate.
One of these transactions is the matter of present concern. On January 27, 1928, plaintiff executed a deed conveying to the United Royalty Company an undivided one-eighth interest in the potential gas-and-oil royalties on a tract of Sumner county land owned by him. This conveyance was to endure for twenty-one years and “as long thereafter as oil and gas, or either of them, is produced in paying quantities on any of the acreages in the block belonging to the United Royalty Company.” In consideration of this conveyance defendant assigned and delivered to plaintiff 1337 units of the trust estate.
In the years that followed plaintiff from time to time received his proportionate share of the profits of the trust estate, the amounts and number of which the record does not disclose. About eighteen months after the transaction above mentioned, plaintiff executed his written consent to an amendment to the defendant’s declaration of trust. During the interval since plaintiff executed to defendant his royalty deed the personnel of the defendant trust has changed. Pochel, Burnham and Landon have retired. The present trastees are the defendants, Watts, Woodward and Stewart.
On September -8, 1932, plaintiff commenced this action to cancel the deed he had executed to the United Royalty Company in 1928, and to quiet his title to the land affected thereby. His petition alleged some of the foregoing facts, set out the declaration of trust at length, and alleged that at the time he conveyed the royalty interest in his land to defendant (and received in exchange therefor certain unit interests in the trust estate) the principal defendant had not received a certificate from the state of Kansas authorizing it to sell or issue its speculative securities, in consequence of which the transaction between plaintiff and the principal defendant, United Royalty Company—
“Was made in violation and defiance of that portion of the laws of the state of Kansas generally known as the blue-sky laws, and that such sale was fraudulent and void.”
Some less consequential allegations of plaintiff’s petition will need no present attention. Plaintiff concluded with a prayer for the cancellation of the royalty deed and that his title to the land described in that royalty deed be quieted.
Attached to plaintiff’s petition, in addition to the declaration of trust, was a copy of the instrument executed by defendant to plaintiff reciting his ownership of 1,337 units of the trust estate. There was also attached to the petition a copy of the royalty conveyance which plaintiff had issued to the United Royalty Company, which plaintiff sought to have canceled in this action.
The United Royalty Company’s answer, among other matters, raised a legal question touching the sufficiency of the petition to state a cause of action, pleaded various matters of fact of no present concern, and alleged further:
“Said royalty deed was executed and delivered to defendants in consideration of the issuance and delivery by defendant of its certificate to said plaintiff for 1,337 units of said trust and trust estate. Plaintiff accepted said certificate and units on the date of the delivery of said royalty conveyance and accepted said certificate and units in consideration for said conveyance. . . . During the period from the date of said certificate [January 27, 1928] until the institution of this suit [September 8, 1932] said plaintiff has retained and held said certificate and has received and accepted from defendants the share of income proceeds and other benefits to which all certificate holders, unit holders and beneficiaries of said trust have been entitled. Plaintiff during said period has been and now is one of the unit holders and beneficiaries of said trust and has accepted and retained substantial sums of money as his share of income of said trust estate.
“Said plaintiff, John R. Fitch, commenced and filed this cause of action subsequent to and after the statutes of limitations within which plaintiff’s cause of action must be brought had expired. Plaintiff is now estopped and barred from instituting and maintaining this cause of action, because said cause of action was not commenced and filed within the period of limitations.
“Sixth. Plaintiff delayed the filing of this suit for an unreasonable length of time, and during said period plaintiff stood by and permitted numerous parties to purchase for valuable consideration and substantial sums of money large numbers of units in said trust and trust estate, including the royalty rights described in plaintiff’s petition, and permitted and suffered said innocent purchasers to acquire beneficial and equitable interest in the aforesaid royalty conveyance without any notice of any claim of plaintiff. Said sales and purchases of units were made by numerous innocent parties for valuable consideration, and if plaintiff should be permitted to maintain this action it would cause irreparable and irredeemable loss, damage, injury and harm to a large number of persons who innocently and in good faith purchased said units for valuable consideration during the period that said plaintiff unreasonably delaj^ed the commencement of this suit. By reason thereof plaintiff is guilty of laches in the commencement of his action, and therefore should be estopped and barred from asserting and maintaining this canse of action.”
Defendant also alleged that during the long interval following the execution of the royalty conveyance plaintiff gave no intimation of any intention to question the validity of his deed of conveyance, and during that period and in reliance on that deed and similar deeds defendants had sold and exchanged other unit interests to a multitude of third parties, which interests were necessarily predicated on the royalty deed executed by plaintiff and other similar royalty deeds, and —
“Said plaintiff, by his acts and omissions, for remaining silent for a long and unreasonable length of time and during said time accepting all of the rights and benefits to which he was entitled under said trust, and failing during said period of time to assert any right, if any he had, to declare his conveyance to said trust void, was and is guilty of laches, and plaintiff is now estopped to assert any claim against the validity of said royalty conveyance made by him to said trust; . . . and plaintiff is estopped from asserting any claim or right to cancel said royalty conveyance made by plaintiff to said trust, and is estopped from maintaining any action to enforce any such claim or demand, and plaintiff has further failed, neglected and refused to tender back any of the dividends, units or any other benefits received by reason of his original pooling agreement or the amendment of contract, and has failed to make or offer to make this defendant whole, by reason of all of which the plaintiff is estopped, as aforesaid, from maintaining any action to enforce any claim or demand of cancellation.”
Various parties interested in the outcome of this action were permitted to intervene and set up their several interests, particularly their acquisition and ownership of units of the trust estate. One of these, the Liberty Royalties Corporation, had acquired 913,903 units, or nearly half the entire issue, for which it had conveyed to the defendant trust estate a large number of gas, oil and mineral royalty conveyances, which it had acquired at a cost of $217,568.70. As against plaintiff this intervener pleaded the statute of limitations and all the usual equitable defenses — his long-continued silence after notice, acquiescence, ratification, laches and estoppel.
Other unit holders were permitted to intervene and set up their interest in the subject matter of the litigation.
Plaintiff filed demurrers against the pleadings of the principal defendants and the interveners. These were sustained on the following specific grounds, as shown in the journal entry of judgment:
“1. That the United Royalty Company, to whom conveyance was attempted to be made of the royalty interests in question, is to be treated as a corporation, but has never been organized under the laws of this state as a corporation and admitted to do business in this state, and had no legal entity or existence, and the attempted conveyance was a nullity, for the reason that there was no grantee in existence to take said conveyance, and therefore the defenses of estoppel, ratification, statute of limitation and others pleaded are without avail.
“2. That the United Royalty Company never obtained a blue-sky permit authorizing the sale or transfer of such units to the plaintiff, was unlawful, and the conveyance of the royalty interest was without consideration and void, and, being void, the defenses of ratification, estoppel, statute of limitation and others presented by the various answers are without avail.”
Defendants appeal, urging various matters of law in an effort to demonstrate that the trial court’s judgment is erroneous.
The constitution (art. 12, § 6) does say that the term “corporations” shall include all associations having powers not possessed by individuals or partnerships; and so, on occasion, this court has said that a common-law trust, in so far as it has powers not possessed by individuals, is to be regarded as a corporation. In Lumber Co. v. State Charter Board, 107 Kan. 153, 190 Pac. 601, 10 A. L. R. 879, the nature of a common-law trust was under consideration, and in the syllabus it was said:
“The trust, although an unincorporated company, is deemed- to be a corporation within the meaning of section 6 of article 12 of the state constitution, since the agreement under which the company is organized gives it powers and privileges not possessed by individuals or partnerships. . . .” (Syl. 112.)
But just what powers a common-law trust does enjoy in Kansas which are not possessed by individuals or partnerships this court has not had occasion to decide. In Linn v. Houston, 123 Kan. 409, 255 Pac. 1105, it was said:
“A common-law trust is or may be a very convenient device for the accumulation of sufficient assets to give commercial prestige in the conduct of business, and may be more elastic and adaptable to the business undertakings and projects of its creators than a limited partnership or ordinary corporation would be. So, too, it is less handicapped with ultra vires problems and the necessity of conforming to discordant state laws governing corporations and the payment of burdensome corporation taxes. But a common-law trust certainly has none of the attributes of limited liability or freedom from personal liability which attach to limited partnerships and ordinary corporate organizations. Freedom from personal responsibility for breach of their business contracts is not a matter which a group of men can confer upon themselves by the creation of a trust, without the sanction of a statute to that effect, or without the intelligent contractual consent of the parties with whom they deal. (Weber Engine Co. v. Alter, supra, 46 A. L. R. 158, 171, et seq.)” (p. 412.)
Where men undertake to form a corporation, but fail to perfect it in conformity to the statute, the result is that any liabilities incurred on behalf of such abortive organization fall upon them as individuals. (Lithographing Co. v. Crist, 98 Kan. 723, 160 Pac. 198; Bolinger v. Giles, 125 Kan. 53, 55, 56, 262 Pac. 1022.) Conversely, the persons subject to individual liability on behalf of an abortive corporation or other organization akin thereto (which under the constitution would include a common-law trust unregulated by some pertinent statute) are entitled to the assets which have been acquired in its behalf. There are no forfeitures or confiscations recognized in Kansas law except in deference to some specific statute. In the notable ouster suits against brewing corporations a generation ago, of which State, ex rel., v. Brewing Association, 76 Kan. 184, 90 Pac. 777, was typical, receivers were appointed to take charge of their properties and to supervise their conveyance and transfer to legitimate grantees and to legitimate enterprises. The defendant corporations were legitimate organizations in the states of their domicile, but they had no corporate rights and could obtain none to transact their corporate business in Kansas. This court declined to countenance the idea that the properties standing in the names of the defendant corporations should be seized as the public property of the state of Kansas or that the deeds under which they had taken title were defeasible. The court said:
“Receivers for the defendant’s property were not appointed for the ultimate purpose of confiscation or other appropriation, except to such an extent as might be necessary to prevent the defendant from rendering ineffectual a judgment for costs. There is no law of the state transferring to itself the title to property of a corporation which has unlawfully usurped franchises, and without such a law the court cannot enter a judgment of forfeiture. ‘The court has no power to create a forfeiture, and no power to declare a forfeiture where none exists.’ (The State, ex rel., v. Wilson, 30 Kan. 661, 2 Pac. 828.)
“Even if the defendant were ousted from certain franchises wrongfully exercised it would continue to be a corporation, and its property would still belong to it for the prosecution of all enterprises in which it might lawfully engage elsewhere. If all its franchises were seized and the corporation dissolved the further conduct of business would necessarily cease, but the claims of creditors upon the corporate assets could not be annihilated, and the residue upon the winding up of the concern would belong to its stockholders. All this is elementary (State Bank v. The State, 1 Blackf. [Ind.] 267; State v. West Wisconsin Railway Company, 34 Wis. 197, 215; People v. O’Brien et al., 111 N. Y. 1, 18 N. E. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684). . . .” (p. 190.)
The court’s final order was as follows:
“All real estate belonging to the defendant shall be sold. The defendant is allowed a reasonable time in which to make sales, and upon application to the court, accompanied by proof of an actual sale in good faith, any parcel of real estate will be discharged from the custody of the receivers. If after reasonable opportunity to dispose of it without undue sacrifice, any real estate remains unsold, the receivers shall sell it as upon execution and pay the proceeds, after deducting expenses, to the defendant.” (p. 196.)
In 4 Thompson on Real Property, § 2956, it is said:
“A deed to a corporation which is forbidden by its charter to purchase and hold real estate is void. In such case the corporation being prohibited to take and hold real estate for any purpose, it would seem to .be wholly wanting in the capacity to take title under a deed. But probably the better view is, that even in such case the deed is not absolutely void, but only voidable at the instance of the state. It is valid until assailed by the sovereign power. Thus, where a New York corporation took a deed to real estate in Pennsylvania, where by statute a foreign corporation is forbidden to acquire and hold real estate, it was held that the deed to the corporation was not void, but conveyed title to it under which it could maintain ejectment, and that the state of Pennsylvania alone could object to the legal capacity of the corporation to hold the land.”
In the same treatise (§ 2968) it is said:
“The question whether a foreign corporation can acquire and hold land is a question which can be determined only by the state in a proceeding instituted for that purpose. The rule is the same as that which prevails as to domestic corporations, when the question is raised whether they have exceeded their corporate powers. It is not presumed to be a matter of concern to a private individual whether or not a corporation has complied with the law. Even in case a foreign corporation is prohibited from acquiring and holding real estate, the state alone can object to the legal capacity of the corporation to take and hold real estate. Whether the right of a foreign corporation to hold land arises under the terms of its charter, or of the laws of the state under which it is organized, or whether it arises with reference to its authority under the laws of the state in which the lands are situated, the right can be questioned only by the state itself in which the land is situated.”
And so here. If the United Royalty Company has acquired any real estate or interests in real estate which Kansas law does not tolerate a common-law trust to hold (and on that point we make no present decision), that matter will be the concern of the state’s properly constituted public officials. Certainly this plaintiff cannot take ujo the cudgels on behalf of the public for the mere purpose of causing a defeasance of defendant’s title.
Whatever was lacking in the United Royalty Company’s right as a common-law trust to transact business in Kansas at the time plaintiff executed to it a royalty interest in his Sumner county land, the grantee did have a legal entity in the state of its domicile, Oklahoma. As such, the conveyance by plaintiff was not void because of any lack of legal capacity to be the grantee of a conveyance of an interest in Kansas land. A common-law trust does have that capacity, although it may not have any peculiar privileges not possessed by individuals or general partnerships. (Lumber Co. v. State Charter Board, 107 Kan. 153, 156-159, 161-163, 190 Pac. 601, and citations; Harris v. Oil Co., 110 Kan. 532, 204 Pac. 754; Hamilton v. Young, 116 Kan. 128, 225 Pac. 1045; Weber Engine Co. v. Alter, 120 Kan. 557, 245 Pac. 143; 65 C. J. 1086 et seq.)
Coming now to the legal consequences arising from the fact that the United Royalty Company had not procured a permit authorizing it to issue speculative securities before it issued to plaintiff 1,337 units of the trust estate in exchange for his royalty deed, the trial court held that the transaction was void. That ruling was incorrect. It was voidable only. (Westhusin v. Landowners’ Oil Ass’n, ante, p. 404, this day decided.) Plaintiff could have rescinded the contract of sale and exchange if he had been so inclined and if he had acted with reasonable diligence. (Wigington v. Mid-Continent Royalty Co., 130 Kan. 785, 288 Pac. 749; Ward v. Home Royalty Ass’n, 142 Kan. 546, 50 P. 2d 992.) If he had merely promised to convey to defendant a royalty interest in his land for 1,337 units of the trust estate he could have defeated an action by defendant for specific performance or for breach of contract. If he had bought the 1,337 units and had given his promissory note to pay for them, a plea of illegality would have been a good defense to any such action. (Merriam v. West, 114 Kan. 131, 216 Pac. 1102; Reilly v. Clyne, 27 Ariz. 432, 234 Pac. 35, 40 A. L. R. 1005.) If plaintiff had bought these 1,337 units and had paid the cash for them he could have maintained an action, timely begun, against the original trustee with whom he dealt, for the recovery of the purchase price. (Daniels v. Craiglow, 131 Kan. 500, 292 Pac. 771.) Instances to the same effect could be indefinitely multiplied, and it is on such precedents that counsel for the appellee seek to uphold the trial court’s decision.
But the case before us arises out of a transaction which was consummated in 1928 and not questioned for nearly five years thereafter. Meantime the plaintiff had received his proportionate share of the dividends or profits arising from the defendant’s pooling venture, which had only been made possible by his long acquiescence. Not to this day has he indicated that he was under any legal or moral obligation to return the quid pro quo he has received for the conveyance whose cancellation he now demands. Even the textbook law his counsel quote for our instruction does not countenance such an attitude. They quote 5 Fletcher, Cyclopedia Corporations, § 3486, as follows:
“Stock issued without authority and in violation of law is void, and confers no rights on the person to whom it is issued, and subjects him to no liabilities. A contract to issue stock in violation of the provisions of the constitution or of the statute will not be enforced by the courts, nor can damages be recovered for its breach. A person may rescind his contract to subscribe for or purchase such stock and recover back what he has paid for it, upon a tender back or surrender of the certificate., and of any dividends which he has received.” [Italics ours.]
To the same effect were Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932; Springer v. Keller, 124 Kan. 369, 259 Pac. 1068. See, also, 51 C. J. 228.
In appellee’s brief a common-law trust is discussed as if it were an iniquitous thing. That, of course, is a matter of opinion; but it may be remarked that if it had asked for a blue-sky permit and had paid the prescribed statutory fees, there is no reason to assume that such permit would have been withheld on account of any supposed iniquity in its character. Other common-law trusts have been granted permits by our blue-sky department. (See 12th Biennial Report of State Corporation Commission, pp. 23-28.) So we must regard defendant’s omission to provide itself with a blue-sky permit as a mere breach of statute, malum prohibitum, not malum in se. It is therefore apparent that the rule of law which declares that a contract tainted with illegality because of some inherent vice which brings it under the ban of an express statute is incapable of ratification does not apply. Neither does the related rule barring defenses of estoppel or latches apply. (Wichita Duntile Co. v. Wright, 130 Kan. 139, 285 Pac. 635; Moos v. Landowners Oil Ass’n, 136 Kan. 424, 15 P. 2d 1073; Beltz v. Griggs, 137 Kan. 429, 20 P. 2d 510.) See, also, Frazier v. Jeakins, 64 Kan. 615, 626, 68 Pac. 24; Good v. Starker, 216 Wis. 253, 257 N. W. 299.)
The foregoing does not exhaust the reasons which may be given to show that the net result in the trial court below was erroneous. Even granting that the transaction between plaintiff and the United Royalty Company in 1928 was fraudulent because of the mere want of a blue-sky permit, plaintiff’s action for relief on the ground of fraud could not be commenced after two years measured from the time the plaintiff learned, or readily could have learned, that the 1337 units he had gotten for his royalty interest had been issued without the sanction of the blue-sky department. (Hege v. Suderman, 142 Kan. 495, 51 P. 2d 23, and citations.)
Touching the right of the interveners to have their rights protected in this lawsuit, it is fundamental that once an intervener is let in to participate in litigation, his rights are just as much entitled to judicial protection as those of the original parties, provided a full adjudication of his rights does not alter the essential character of the litigation. (Hoxie State Bank v. Vaughn, 137 Kan. 648, 651, 21 P. 2d 356; 47 C. J. 93, 115-116.) It needs no argument to show that if plaintiff should prevail in this action the rights of the interveners would be appreciably diminished. They put their royalty rights in defendant’s pool on the faith of plaintiff’s conveyance, and they suffered plaintiff from time to time to receive his prorata share of the profits of the pool — whatever they were — which were derived from the pool.
The judgment of the district court is reversed, with instructions to enter judgment for defendants.
Harvey, J., dissenting.
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the plaintiff from a judgment rendered by the trial court in favor of the defendant in an action brought by plaintiff as administrator de bonis non of the estate of Charles Wauch, deceased, against his predecessor, Claude L. Peterson, and his bondsman, the Fidelity and Casualty Company of New York, for the sum of $4,033.57 with interest thereon, together with the sum of $1,500 cost and expense to the administrator de bonis non in collecting the same.
The petition in this case is the third amended petition, and it alleges the appointment of Claude L. Peterson as administrator of said estate on August 1, 1928, on which date he furnished and filed a bond as administrator, signed by the Fidelity and Casualty Company of New York, in the sum of $500. Two days later after filing an inventory he filed another bond signed by the same company for $9,500, thus making a total bonded security of $10,000.
The petition alleges the filing of a final account on which an order was made by the probate court. That later complaint was made to the probate court that the administrator had failed to pay the creditors and others entitled to the sums stated in the account and order of the court, and after due notice and opportunity for hearing the said Claude L. Peterson was removed and a copy of the order of removal was sent to the Fidelity and Casualty Company, his surety, and the plaintiff was appointed as his successor.
The petition further alleges that during the administration of Peterson a nuncupative or oral will of the deceased was admitted to probate, and the probate court did order and direct said Peterson be not discharged, but continue to act as administrator. That he did distribute to one party according to the terms of the order the sum of $2,000. That by reason of the admission of said will to probate and the order that the said Peterson should continue as the administrator of said estate with the will annexed, he was thereafter. referred to as administrator with the will annexed, but he never filed any pleadings, report or document in said court or cause except as “administrator,” and that he held the assets of the estate by virtue of his trust as an administrator. The petition further alleges that no additional responsibility was thrust upon him, that he continued to administer the same assets and to pay the premiums on said bonds to the casualty company. The petition further alleges that the plaintiff has demanded of both Peterson and his bondsmen the assets of the estate and has failed to receive them and that plaintiff has no plain, adequate and complete remedy in the probate court. Attached to the petition are the copies of the two bonds and other documents mentioned in the petition.
Separate answers, which are substantially the same, were filed by Peterson and the casualty company. The answers first admit and call attention to the language of certain exhibits attached to the third amended petition where Peterson is mentioned in different documents and proceedings as administrator with the will annexed, and particularly refer to the following language in the order of the probate court when the oral will was admitted to probate: “and that Claude L. Peterson continue as administrator of said estate with the will annexed,” and defendants admit that said Peterson did continue after such order to act as administrator of said estate with the will annexed under the trust conferred upon him by such order and did pay to Jennie Stempski the sum of $2,000.
The answers contain general denials and a number of special denials and allegations, among which are that the assets of the estate of which Peterson was the administrator were all paid out by him under orders of the probate court or turned over to his successor in office, Claude L. Peterson, administrator with the will annexed, immediately after the appointment of said administrator with the will annexed. That plaintiff’s cause of action is barred by the five-, three- and two-year statutes of limitations. That the residuary legatees under the will of the deceased prepared and filed two actions in the probate court and one in the district court against Peterson and his bondsmen to recover the amount they claimed to be due them under the order of the probate court, and that said actions are still pending and undetermined. That in said actions and in a number of other papers and documents in connection with said estate the administrator is referred to as the administrator with the will annexed. That in the written demand served on Peterson by the plaintiff before bringing this action he is referred to as formerly administrator with the will annexed. The prayer is that this action be abated as to the amounts due the residuary legatees because of their former actions, that the action be barred by the statutes of limitations and the plaintiff be estopped from claiming Peterson was not administrator with the will annexed, and frqm claiming the assets were in the hands of anyone other than Peterson as administrator with the will annexed, that the residuary legatees be adjudged to have made an election that the amounts due them were from Peterson as administrator with the will annexed and that the plaintiff has no legal or equitable interest in any of the money ordered to be paid to them, and that defendants recover their costs herein. Both answers were verified by an attorney.
A separate reply was filed to each answer, consisting of a general denial and special denials as to the correctness of the statements made in the answers concerning the pleadings and proceedings had in the estate matters and as to any request, demand or order remov ing Peterson as administrator and appointing him as administrator with the will annexed when the will was admitted to probate, that defendant Peterson and his bondsmen are estopped from so claiming without such an order, and that if Peterson did pay all the assets over to himself as administrator with the will annexed it was fraudulently concealed from the probate court and in violation of the terms of his bonds.
The case was tried to the court without a jury. No findings of fact or conclusions of law were made. The following is the finding in the journal entry of judgment:
“. . . and now on this 29th day of May, 1935, the court having heard the evidence and arguments of counsel, and being fully advised in the premises, finds for the defendants and against the plaintiff.”
The evidence was all documentary except the oral testimony of three witnesses. The plaintiff testified as to the making of an oral and written demand upon Peterson, and while there was an objection to it there was no oral evidence contradicting or modifying it. The plaintiff also testified as to having received after his appointment four and one half shares of building and loan stock from Brown, an attorney for some of the residuary legatees. This was not contradicted. Plaintiff also testified as to the amount in his judgment of a reasonable attorney fee for plaintiff’s attorney and the approximate expense of the suit. Hugh E. Brownfield, an attorney, testified as to tire amount of a reasonable attorney fee for plaintiff’s attorney in this case. This was all the testimony as to a reasonable attorney fee. Gates testified that he, as attorney for Peterson, delivered the four and one half shares of building and loan stock to Brown and identified a receipt as to the same. This is all the oral testimony in the case. Serious objections were made to most of it, but there is nothing conflicting in the parts admitted. The abstract and counter abstract contain a total of 115 printed pages.
The controversy, it will readily be observed from' the above statement of the pleadings, centers around what occurred in probate court when the nuncupative or oral will was admitted to probate, and the frequent references to Peterson in subsequent proceedings as administrator with the will annexed.
R. S. 22-325 provides that—
“If, after granting letters of administration as of an intestate estate, a-will of the person deceased shall be duly proved and allowed, the first administration shall be revoked and the executor or administrator with the will an nexed shall be admitted to prosecute or defend any suit, proceeding or matter commenced by or against the original administrator.” •
R. S. 22-309 provides that—
“Every person who is appointed administrator with the will annexed shall, before entering on the execution of his trust, give bond in like manner and with like condition as is required of an executor.”
The order of the probate court admitting to probate the nuncupative will, after doing so and finding the person named by the deceased as his executor, was not a proper person to act as executor, continued as follows:
“. . . . that the administrator heretofore, to wit, Claude L. Peterson, appointed in said cause, should continue as such administrator, with the will annexed and carry out the wishes of said deceased, according to law and as expressed in said will.
“It is, therefore, by the court considered, ordered, adjudged and decreed: That the nuncupative will of Charles Wauch, alias Charles Wach, as found herein, be and it is hereby admitted to probate, and that Claude L. Peterson continue as administrator of said estate with the will annexed.”
There is nothing in the order of the probate judge about revoking the former administration or requiring the giving of a new bond, and no new bond was given.
Two preliminary matters are presented for our consideration. First, a motion to dismiss the appeal for want of jurisdiction, referring to R. S. 60-3306, which requires that a notice of appeal be filed with the clerk of the trial court stating that the party filing the same appeals from the judgment, order or decision complained of to the supreme court, and a copy of such notice must be personally served on adverse parties or their attorneys of record, and that “proof of such service shall be made by affidavit.” The defect of which complaint is here made is that the proof of such service was not made by affidavit. It was only made by acknowledgment of the attorneys and their waiver of proof by affidavit. Appellees cite Armour v. Howe, 62 Kan. 587, 64 Pac. 42; Toof v. Cragun, 53 Kan. 139, 35 Pac. 1103; Johnson v. Lander, 140 Kan. 329, 36 P. 2d 1006, and other cases in support of their motion. The first case cited originated in a court not having jurisdiction of questions involving titles to real estate, and any appeal therefrom through the district court to this court was without jurisdiction of the subject matter. The second case cited was where the case made itself was lost. The last case above cited was not concerning the proof of notice, but the notice itself was not filed within the time prescribed by statute. The affidavit is merely proof of service of the notice; and how much stronger can it be than the acknowledgment of service by an attorney of record and a waiver by such attorney of proof by affidavit? There is no question of this court having jurisdiction of the subject matter. The only question is as to the kind of proof of service of notice of appeal. In consideration of this same statute it was held in the closing paragraph of the case of Thisler v. Little, 86 Kan. 787, 121 Pac. 1123:
“We hold that when service can be made upon the appellee or his attorney of record within the state it must be made in the same manner as the service of a summons, unless service be waived or acknowledged.” (p. 792.)
The motion to dismiss the appeal should be overruled.
The other preliminary point raised by appellees is that “inferences made by the court trying a case from facts proved are themselves findings of fact. A general finding in favor of the defendant is a finding of all inferences that may be drawn from proved facts, in the defendant’s favor.” Appellees claim that many of the particular facts offered in evidence were undisputed, but from them it was necessary to draw inferences of fact and that the general finding in favor of the defendants is a finding of all such inferences of fact in favor of the defendants, enumerating nine such probable inferences and citing the case of Horn v. Elm Branch Coal Co., 141 Kan. 518, 41 P. 2d 751, quoting a paragraph therefrom on page 520 which closed as follows: “and this court is not authorized to interfere.” This, however, was a compensation case where this court has limited jurisdiction as to facts, such limitation being expressed in R. S. 1933 Supp. 44-556. The jurisdiction of this court is not limited by statute as to the case at bar as it is in the compensation case cited. The term “inference” is defined in 31 C. J. 1181 as “a conclusion drawn by reason from premises established by proof.”
In the case of Mathewson v. Campbell, 91 Kan. 625, 138 Pac. 637, it was said in the opinion on page 627:
“The decision of that court is, of course, entitled to consideration, but, as has been frequently decided, where the case comes before this court on written or documentary evidence practically as it was presented in the district court, this court must decide for itself what the facts establish, substantially as it would if the case was original in this court.”
In the case of Palmer v. Johnson, 132 Kan. 161, 294 Pac. 874, which was an action to establish a claim against the receiver of a bank it was held:
“When the ruling of a trial court turns on documentary evidence this court can examine the documents and determine their meaning and effect, and is not bound by the interpretation given them by the trial court.” (Syl. IT 1.)
In an action to quiet title (Hollenbeck v. Lyon, 142 Kan. 352, 47 P. 2d 63) the Palmer case, last above cited, was approved at the conclusion of the following sentence:
“Since the case comes to this court on the pleading and written stipulation of the facts, this court may examine the record and determine the legal questions presented with the same freedom the district court could do so.” (p. 354. See, also, Durham v. C. C. & M. Co., 22 Kan. 232, and Snuffer v. Westbrook, 134 Kan. 793, 795, 8 p. 2d 950.)
There is no question but that both the facts and the law of this case are subject to review upon appeal.
Appellant insists that the trial court erred in not finding and concluding, under the documentary facts presented, that Peterson and his bondsmen were liable under his bonds as administrator notwithstanding the order made when the nuncupative will was admitted to probate and the filing of the several actions against him as administrator with the will annexed because it was substantially the same office and the same duties to be performed without any increased liability thereunder.
The exhibits attached to the pleadings and the documents introduced in evidence show the following facts: Charles Wauch, a resident of Wyandotte county, died July 28, 1928. On August 1, 1928, Claud L. Peterson, then public administrator, upon his own application was appointed by the probate court as administrator of the estate of Charles Wauch, supposed at that time to be an intestate estate, and he on that day gave a bond in the sum of $500 signed by the Fidelity and Casualty Company of New York. Two days later Peterson, as administrator, filed in the probate court an inventory of personal property in the sum of $8,354.45 and that day gave an additional bond, without being ordered to do so, in the sum of $9,500, signed by the same casualty company, thus making a total bond of $10,000. In October, 1928, there was filed in the probate court a petition for the probate of a nuncupative will of said Charles Wauch. On February 13, 1929, the probate court admitted to probate this nuncupative will and at that time made the order as heretofore quoted in this opinion concerning the continuance of Peterson as administrator with the will annexed, without revoking his former appointment or requiring any addi tional bond to be furnished, and no new bond was ever given. There was later, in 1929, a contest filed in the probate court as to the nuncupative will, but it was dismissed before the commencement of this action.
The record shows Peterson was notified to file his final account and that on December 5, 1929, he did pay the court costs accruing from August 1, 1928, to December 5, 1929. On February 9, 1932, he filed a petition asking the court to permit him to amend the inventory he had filed on August 3, 1928, by omitting the reference to the real estate, and the same day filed his final account as administrator. On March 12, 1932, the residuary heirs filed objections to the final account. On May 4, 1932, Peterson filed an amendment to his final account which shows the distributive shares to be slightly different than they were in the former final account. On December 8,1932, after publication, the court approved the amended final account and concluded the order as follows: “That upon his filing final receipts showing final distribution as aforesaid . . . and the payment of costs herein that the said Claude L. Peterson as administrator with the will annexed be discharged.” Later actions were brought by the residuary legatees against Peterson and his bondsmen for their respective, shares. Two such actions were brought in the probate court and one in the district court which were pending when this action was commenced. No hearing was ever had in any of them and they were dismissed either prior to or during the trial of this action.
On the 21st of September, 1933, the residuary heirs applied to the probate court for an order removing Peterson as administrator with the will annexed. On October 4, 1933, after due hearing, the court ordered that Peterson be removed, and directed and ordered him to turn over to his successor all property and moneys in his hands belonging to the estate, and further ordered that the sureties and bondsmen of Peterson be notified of said removal, and it was further ordered that N. J. Wollard be appointed as administrator de bonis non.
On November 27,1933, the present action was filed in the District court. On March 7, 1935, the third amended petition in this action was filed.
The bonds were in the usual form and ran to the state of Kansas, and each had the following concluding sentence:
“. . . shall pay any balance remaining in his hands upon the settlement of his accounts, to such persons as said probate court or the law shall direct, and shall deliver the letter of administration into the court, in case any will of said deceased shall be hereafter proved and allowed, then this obligation to be void, otherwise in full force and effect.”
In all of the reports and inventories and documents filed by-Peterson he designates himself as administrator. However, his attorneys sometimes signed documents for him as administrator and sometimes as administrator with the will annexed. Many of the documents filed by the probate judge after the nuncupative will was probated refer to Peterson as administrator with the will annexed. The third amended petition refers to him simply as administrator, and the plaintiff as administrator de bonis non.
There is no question but that, strictly speaking, according to the provisions of the statutes heretofore quoted herein, Peterson should have been removed as administrator, and he or someone else should have been regularly appointed as administrator with the will annexed and required to give a new bond, not for a different amount or with any different duties imposed except that the distribution be according to the provisions of the will. Neither Peterson nor his bondsmen point out any additional duty, burden or responsibility by reason of making the distribution under the will rather than under the intestate statute. Who, if any one, is confused or burdened by the use of the different terms in describing this office? It is the duty of the probate court to name the parties to whom the residuary assets are to be paid, and the only duty of the administrator or the administrator with the will annexed is to. safely keep the funds until so directed by the probate court to pay them out, and then upon the filing of receipts to be released himself and have his bondsmen released.
The record shows that the only one that Peterson has paid was the only one who did not belong in both lists of beneficiaries. No danger is pointed out of his having to pay the assets of the estate a second time if he pays them to the plaintiff, since the actions by the residuary legatees are all dismissed.
We think the documentary evidence supports the plaintiff’s contention and did not support the finding and judgment in favor of the defendant. Even if the administrator should have turned over the assets of the intestate estate held by him, as administrator, to himself as administrator with the will annexed — and we find no record of his doing so, being ordered to do so, or even asked to do so — the duties and responsibilities of office would not be in any way increased nor the burden upon his bondsmen in any way changed.
In the case of Centerville State Bank v. National Surety Co., 134 Kan. 858, 8 P. 2d 361, it was held:
“Where a bank, obtaining a fidelity bond for its president, sets forth in the application his authority, duties and responsibilities, and afterward the bonded is elected cashier and his authority, duties and responsibilities are in no way augmented, the surety is liable for breach of the.condition of the bond while he is acting as such cashier.” (Syl. 111.)
In the opinion it was further held:
“This is a fair construction of the contract and carries out the purpose for which it was written. We hold, under the circumstances of this case, that the change in the title of the bonded did not, standing alone, vitiate the bond unless such change materially augmented the duties and responsibilities of the bonded and thereby increased its risk.” (p. 862.)
Of course if there were added duties, the bond would not cover them even under the same official capacity. (State, ex rel., v. American Surety Co., 142 Kan. 246, 46 P. 2d 611.) Or if an officer assumes outside duties, the bondsman is not liable. (State, ex rel., v. Moore, 137 Kan. 396, 20 P. 2d 518.)
It was held in the case of Community High School v. Muller, 119 Kan. 216, 237 Pac. 650:
“The duties of a trustee of a community high school include his acting as treasurer, in the event he is so named, and his bond as trustee covers his duties as treasurer.” (Syl. If 1.)
Appellees cite the case of Hudson v. Barratt, 62 Kan. 137, 61 Pac. 737, where one had been appointed executor under a will which later in a contest was set aside and another party was named as administrator de bonis non. The former executor then presented to the probate court what was termed a final settlement of his executor-ship and asked to have the same considered and approved by the probate court. He also tendered into court and to his successor the balance of moneys that might be found due and any property in his possession belonging to the estate. Under these conditions the court held the action of the administrator de bonis non on the bond should not be allowed to interfere with the settlement pending in the probate court.
Appellees also cite in this connection Kager v. Vickery, 61 Kan. 342, 59 Pac. 628, and Jonsson v. Erickson, 108 Kan. 580, 196 Pac. 435, but in both of them one of the parties interested in the property had died during the proceedings and the principles involved are not exactly applicable in the case at bar. They also concern collateral attack.
In 2 Woerner on American Law of Administration (3d ed.), 846, it is said:
“But the efficacy of bonds cannot be permitted to be endangered or destroyed by applying this doctrine to the transfer of the mere indebtedness of a fiduciary from himself in one, to himself in another capacity, so as to exonerate his sureties in the former capacity, and either throw the burden on another set of sureties, or entail the loss on the beneficiaries, without some overt act manifesting the transfer of actually existing assets.”
In Throop on Public Officers, section 236, it is said:
“And, generally, where two offices are so far united that the person holding one, ex officio holds the other, and but one bond is given by him, the sureties in that bond are liable for his acts and omissions in discharging the duties of either, although the office, with respect to which the default occurred, is not named in the bond.”.
In 40 L. R. A., n. s., 1136, it is said in the notes:
“The general rule is that ‘where property has been received in one capacity, the change, in order to shift the responsibility of the sureties, must be evidenced by some overt act or express election to hold' the property in the other capacity.’ ”
Appellees contend this action is a collateral attack upon the proceedings in the probate court, citing, in addition to some of those cases above mentioned, a number of others, among which is Cox, Adm’r, v. Kansas City, 86 Kan. 298, 120 Pac. 553, which was an action by the public administrator against the city of Kansas City for damages on account of the death of a resident of Missouri caused by a defective condition of the street. The principal controversy was over the capacity of the plaintiff to maintain the action. The defendant claimed that the appointment of the administrator was wholly void because his application did not show all the conditions necessary to confer jurisdiction upon the probate court even if they in fact existed. The court said:
“We think the better rule is that the appointment of an administrator will not be held void upon a collateral attack merely because some jurisdictional fact is not affirmatively shown by the record, although the authorities are in conflict on the subject.” (p. 300.)
Appellees refer to the probating of the nuncupative will in this case as necessarily making a revocation of the earlier appointment of administrator. The probate court, perhaps in technical disregard of the statute, did not regard the former appointment as revoked but continued with a modification as to beneficiaries.
We have difficulty in concluding that this action by the newly appointed administrator de bonis non against the former administrator on his bond, after his removal from office by the probate court, is in any way calling in question any of the proceedings of the probate court or in any way interfering with them. The matter here is the exact opposite of the situation in the Hudson case, where the defendant was urging a settlement in the probate court and had tendered the assets in his hands to his successor or the court when the action on the bond was commenced. We can readily see how that action on the bond was interfering with the jurisdiction of the probate court.
The appellees contend that the probating of the will was in effect the revocation of the appointment of the administrator, and consider the order that might have been made by the probate court in that connection as having been made, and that this action is a collateral attack on such an order which was not in fact made.
The case of Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369, makes jurisdiction of the action of the probate court the basis before there can be any collateral attack. The first paragraph of the syllabus is as follows:
“The action of a probate court in appointing an administrator and issuing letters of administration is judicial in its nature, and is not open to collateral attack, unless the court acted without jurisdiction.”
The case of Houston v. Clark, 36 Kan. 412, 13 Pac. 739, cited in this connection, was based upon a journal entry dismissing an action and rendering judgment for costs against plaintiff, and that was held to be such as could not be called in question in a subsequent suit.
The principal defendant in the suit at bar never regarded the action of the probate court as revoking his appointment as administrator, as shown by all the documents he signed before being removed from office. Collateral attacks have to have a judgment of a court before they can be held as such. See definitions in 34 C. J. 511 and 15 R. C. L. 838.
A number of cases are cited as bearing on this subject generally as to bondsmen not being liable for acts of the officer before giving the bond or for acts committed during a succeeding term of office, which need no comment whatever as being the rule universally accepted. The case of Sparks v. Cherokee County, 76 Kan. 280, 91 Pac. 89, is slightly different where the legislature did away with the annual elections and directed that some officers should succeed themselves until the next election a year later, and it was held that a bond given for the conduct of the officer during his regular term would not be liable for the extra year, although the constitution provided that county officers should hold their offices for the term of two years and until their successors shall be qualified.
The following language from the syllabus in the case of Toffler v. Kesinger, 80 Kan. 549, 102 Pac. 1097, is urged by the appellees as particularly appropriate to the case at bar. It may be appropriate in more ways than one. It is as follows:
“An administrator with the will annexed died in office without having accounted for money which he had collected belonging to the testator’s estate. His successor obtained judgment in the district court against his administrator foi the sum found to be due. The judgment was presented, allowed and classified in the probate court as a claim against his estate, but no order was issued upon his administrator for its payment, and it was not paid. Held, such an order is not a condition precedent to recovery against the sureties on his bond.” (Syl.)
We think the contention of the appellees, that the plaintiff is estopped to pursue this claim against Peterson and his bondsmen by the actions of some of the residuary legatees brought against Peterson as administrator with the will annexed, is not good. The authority cited is the Ewing case, where the lack of jurisdiction was involved by trying to maintain probate proceedings in the proper county, after having attempted to start them in another county, and it was the same party in both cases, which is very different from the facts in this case. And besides, all of these other cases were dismissed and there exists no double liability on that account.
Appellees claim that this action is barred by the two-year statute of limitations, counting the two years from December 8, 1932, the day final account was approved and order of distribution was made, to March 7, 1935, the date this third amended petition was filed. Appellees insist that this is really an action in tort, and the two-year statute must control. They refer to an expression in the reply as to a certain alleged action of the defendant Peterson being fraudulent concealment from the court. This is an action upon a contract and not one in tort. Appellees cite the case of Ryus v. Gruble, 31 Kan. 767, 3 Pac. 518, which was an action against a sheriff and his bondsmen to recover for a wrongful levy upon personal property, and it was there held that the two-year provision controlled.
The allegations in the petition in the case at bar unmistakably attempt to state a cause of action on a contract, and besides a tort can be waived and the action be pursued on the contract only. There is considerable said about demurrers being filed and sustained to petitions filed earlier in this case and no appeals being taken from adverse rulings thereon. The first petition was filed November 27, 1933. We hold that the two-year statute does not apply in this case.
Appellees think there are two conflicting orders as to residuary legatees, and defendants are not in default while such condition exists. A study of the documents introduced shows a correction as to residuary legatees, and this defendant Peterson, as administrator, participated in the correction of allotment before the order of distribution was made.
The twelfth subdivision of the brief refers to the confusion as to title of administrator and the danger of having more than one because of such confusion. Appellees insist that R. S. 22-1002, 22-1003 and 22-1004 especially provide for the duties of administrators under circumstances similar to what are alleged in the pleadings in this case, and that the three sections do not mention an administrator de bonis non to sue on the bond when the circumstances are such that the legatees or creditors themselves may sue. R. S. 22-730 provides for the appointment of an administrator de bonis non, and in the recent opinion in the case of Price v. Carmean, 136 Kan. 744, 18 P. 2d 197, it was held that the legatees, or heirs in that case, were not the proper parties to recover but the administrator de bonis non was such proper party. The second paragraph of the syllabus in the case is as follows:
“Where an estate of a decedent' is not fully administered by an administratrix, and it is claimed that she is withholding assets of the estate, the proper course of the heirs is to obtain the appointment of an administratrix de bonis non to collect any remaining assets and complete the' administration of the estate, and the fact that the original administratrix had made a final settlement which had been approved and had secured her discharge does not preclude such an appointment.”
The next two items in the appellees’ brief, mainly concerning abatement of this action and failure of proof of appointment of administrator de bonis non, have both been considered and heretofore discussed. Plaintiff’s exhibit 17 shows the appointment of the plaintiff as administrator de bonis non. From the authorities above cited it is evident that under the circumstances established by the evidence there was no other plain and adequate remedy for the plaintiff to acquire the remaining assets of the estate, and the method pursued was, under the authorities above cited, the usual and approved way.
All the errors assigned by both defendants in their cross-appeal concern rulings of the trial court in the admission of evidence, and upon consideration such rulings are held not to have been erroneous.
The facts shown by the documentary evidence introduced and the law of the case are in favor of a judgment for the plaintiff against both defendants, and require a reversal of the judgment rendered for the defendants. The cause is therefore remanded with instructions to reverse the judgment heretofore rendered for defendants and render judgment for the plaintiff against both defendants for the balance of the assets of the estate, or $4,033.57, with interest and costs, and the trial court is directed to hear evidence as to the amount of a reasonable attorney fee for plaintiff’s attorney in this case beginning with the filing of the third amended petition, and add such amount, together with the costs of this action, to the judgment in favor of plaintiff and against defendants. It is so ordered.
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Per Curiam:
The state brings quo warranto to forfeit the charter of the defendant association, which was organized in 1921 under the cooperative marketing act (R. S. 17-1601 et seq.), which authorized the formation of such corporations by any group of twenty persons engaged in agriculture and related activities.
The principal matters alleged in the state’s petition as the basis of this action pertain to a series of frauds practiced by some of the members of the corporation against other members in the matter of certain agreements entered into between them prior to the organization of the corporation but which the latter has unconscionably enforced and still seeks to enforce as beneficiary thereof. The fraud alleged was to this effect:
Certain persons planned to organize a great association of wheat growers under the provisions of the cooperative marketing act. They were to form a pool of 50,000,000 bushels of their wheat production and to market it cooperatively, and they agreed to submit to a penalty of 25 cents per bushel for all the wheat they marketed otherwise. The proposed pool could not be formed, so it was cut down to 5,000,000 bushels, but the general plan was preserved and supposedly achieved in good faith by some of the members, but never actually accomplished. There was a preorganization committee to attend to. the preliminaries and to secure a charter whenever enough wheat farmers having a sufficient acreage of wheat at an average yield of 13 bushels per acre to make a pool of 5,000,000 bushels should sign the marketing agreement, otherwise the project should be abandoned and the subscribers should not be bound. Various questions concerning the preliminary organization of defendant and its marketing agreements have had the attention of this court. (Wheat Growers Ass’n v. Schulte, 113 Kan. 672, 216 Pac. 311; Wheat Growers Ass’n v. Oden, 124 Kan. 179, 257 Pac. 975; Wheat Growers Ass’n v. Bridges, 124 Kan. 601, 261 Pac. 570; Wheat Growers Ass’n v. Rowan, 125 Kan. 657, 266 Pac. 104; Wheat Growers Ass’n v. Rowan, 125 Kan. 710, 266 Pac. 101.) Other phases of defendant’s corporate conduct have been considered in Everts v. Wheat Growers Ass’n, 119 Kan. 276, 237 Pac. 1030, and Wheat Growers Ass’n v. Massey, 123 Kan. 183, 253 Pac. 1093.
It is now alleged that not more than half enough growers ever were secured to make the 5,000,000-bushel pool, and that the preorganization committee fraudulently altered and increased the acreages of many subscribers so as to bring the proposed pool up to the stipulated requirement. For some years the defendant functioned according to its charter, but since 1925 its principal corporate activity has been to enforce the marketing agreements made in its behalf prior to its incorporation with such of its members as have marketed their wheat through other channels. Many of such controversies are chronicled in our reports. Some of these are: Wheat Growers Association v. Floyd, 116 Kan. 522, 227 Pac. 336; Wheat Growers Ass’n v. Rowan, 123 Kan. 169, 254 Pac. 326; Wheat Growers Ass’n v. Oden, 124 Kan. 179, 257 Pac. 975; Kansas Wheat Growers Ass’n v. Leslie, 126 Kan. 694, 271 Pac. 284; Kansas Wheat Growers Ass’n v. Farmers Elevator Co., 127 Kan. 27, 272 Pac. 181; Kansas Wheat Growers Ass’n v. Smith, 127 Kan. 267, 273 Pac. 437.
By this proceeding in quo warranto counsel for the state avowedly propose that the further prosecution of such actions shall be stayed, that the management of the corporation shall be taken out of the hands of its officials and placed in charge of a receiver of this court, presumably to abate all such actions and to forego all further exaction of penalties for breaches of these marketing agreements against those who signed such contracts before the 5,000,000-bushel pool was attained.
Other matters alleged in the state’s petition are relatively of little moment. There is no substantial breach of corporate duty towards the state itself alleged in the petition. (14a C. J. 1094.) The outstanding question presented is whether the state’s prerogative power to challenge a corporation’s right to live should be invoked in an action of this sort. The real grievance alleged is not any delinquency of the corporation against the state of Kansas, but this series of grievances between it and its members because of the alleged series of frauds practiced upon them by the preorganization committee and those in collusion with them. But the state has no particular concern in those preliminary negotiations. The state imposed no such conditions as a prerequisite to the granting of a charter to this corporation. Any twenty wheat growers having any small acreage of wheat were entitled to a charter for the asking. The original jurisdiction of this court in quo warranto is discretion ary. The writ in quo warranto is not in every case demandable as of strict right. The court must not overlook broad and obvious questions of public policy involved in its issue. (14a C. J. 1093.) It would be a very disturbing situation if every internal controversy between members of a corporation based on alleged fraudulent practices on the part of some towards others of their number should be permitted to drag the state itself into litigation and cast upon it the burden of maintaining or defending causes of that sort. In such cases the state does its whole duty when it furnishes courts where such private grievances can be aired and redressed at the instance of the individuals concerned. Under more persuasive circumstances than those here presented this court in its discretion has repeatedly declined to permit its jurisdiction in quo warranto to be so used. In State v. Bowden, 80 Kan. 49, 101 Pac. 654, it was said:
“The court has some discretion in granting and refusing relief in actions of quo warranto, which it may exercise according to the peculiar facts of individual cases.” (Syl., fl 5.)
This rule was applied in State, ex rel., v. MounDay, 90 Kan. 449, 133 Pac. 864; State, ex rel., v. Casualty & Surety Co., 111 Kan. 139, 206 Pac. 331; State, ex rel., v. Wyandotte County, 111 Kan. 151, 159, 230 Pac. 531; State, ex rel., v. Hutchinson Gas Co., 125 Kan. 337, 264 Pac. 441.
This action is dismissed.
Hopkins, J., dissenting.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action to recover damages for conversion of certain printing machinery.
The petition alleges that plaintiff, H. H. Taylor, on and prior to the 17th of November, 1932, was the owner and in possession of such machinery, that it was situated in a building occupied by the Taylor and Skinner Publishing Company, a corporation, in Cushing, Okla., that on or prior to November 17,1932, the defendants, a corporation and an individual of Wichita, Kan., entered upon said premises and removed said machinery from the possession of the plaintiff and have converted and disposed of the same to the damage of the plaintiff in the sum of $10,000.
The answer of both defendants is a general denial and a special denial in substance and effect, that on and prior to September 10, 1932, the said machinery belonged not to the plaintiff, but to the Taylor and Skinner Publishing Company, which company had possession thereof in its printing plant in Cushing, Okla., that the plaintiff was the president and general manager of said company, that on September 16, 1932, the company went into the hands of a receiver, one W. P. Ballew being appointed as such, that said receiver took possession of all the printing machinery in the plant, including that described in the petition, and remained continuously in possession thereof until October 27, 1932, when he, by order of the court, delivered possession thereof to the defendants with a bill of sale for the consideration of $9,000' paid to said receiver, that the plaintiff failed and neglected to file any pleadings in the receivership case, but he had full knowledge of all the proceedings therein and acquiesced therein and consented thereto and that the defendant company has, since October 27,1932, claimed and exercised exclusive right of title, ownership and possession of said personal property adversely to all parties, and that the claim or right of the plaintiff in and to said property or any cause arising therefrom has become null and void and barred by the laches of plaintiff and by the statute of limitations. A reply in the form of a general denial was filed.
The case was tried by a jury. At the close of the plaintiff’s testimony the defendants demurred thereto, which demurrer was overruled. After the introduction of evidence by the defendants the court sustained the motion of the plaintiff for an instructed verdict in favor of the plaintiff and against the defendants for conversion, but submitted to the jury the question of the market value of the property converted, and the jury returned a verdict for $7,950. The motion of the defendants for a new trial and motions of the plaintiff for interest on the amount of the verdict were overruled.
The defendants appeal, alleging error in overruling their demurrer to the plaintiff’s evidence because of the action for conversion being barred by the two-year statute of limitations, and also error in directing the verdict because the case involved questions of fact for the triers thereof, also the question of estoppel, and receiving and retaining the proceeds of the sale of the property in question.
The plaintiff has a cross-appeal on the ground of the court’s refusal to allow interest on the verdict either from the date of the conversion or from the date of the verdict of the jury, but allowed interest only from the date of the judgment.
The following are dates and other undisputed facts that are of special importance in the consideration of the legal questions here submitted: In the spring of 1932 the plaintiff and J. M. Skinner organized the Taylor & Skinner Publishing Company at Cushing, Okla., Taylor having fifty percent of the stock, his wife one percent and Skinner forty-nine percent, and these three were the directors. The printing machinery involved in this action was moved to Cushing with other printing equipment that went into the new corporation and was stored in the Cushing printing plant. On July 28, 1932, Skinner sold his interest in the company to the plaintiff Taylor and took a chattel mortgage from Taylor on the particular machinery here involved for $3,800, and placed the mortgage of record, as shown by one of the exhibits. Plaintiff was ill and visited the plant only two or three times before it was sold by the receiver. He was consulted about the appointment of a receiver and had some communication with the receiver after his appointment, and also some conversation with Mr. York, an officer of the company.
The receiver was appointed on September 16, 1932, and filed an inventory on September 23, 1932, of all the property, including this machinery claimed by the plaintiff personally. On October 14,1932, the receiver sold all the property, including the items here involved, to the defendants and gave a bill of sale which was approved by the court on October 21, 1932. The defendants removed the prop erty from the printing plant in Cushing to Wichita on November 17,1932. The receiver was told by Skinner three or four days after his appointment that certain machinery in the building belonged to the plaintiff personally and not to the corporation, describing it in particular, and told him of it many times during his receivership.
This action was commenced in the district court of Sedgwick county on October 12, 1934, or lacking two days of being two years after the sale of the property by the receiver to the defendants, so the statute of limitations had not run by two days as applied to the conversion or adverse possession of the defendants. The appellants, however, maintain that the receiver was a trespasser, as far as this machinery of plaintiff was concerned, from September 23, 1932, and plaintiff could from that date have maintained an action against him for damages or to recover possession of this property detained by him. That such possession by him was adverse to the plaintiff and that it was open, notorious and exclusive under a claim of right, and that “tacking” applies to personal property as well as to real estate, and so, adding or tacking this adverse possession of the receiver to that of the defendants, the total time of adverse possession exceeds the statutory limit of two years, and the action was barred by the statute of limitations, and the demurrer of the defendants to the evidence of the plaintiff should on that account have been sustained.
The finding of the trial court in favor of the plaintiff on issues of the pleadings is a finding of conversion by the defendants which includes adverse possession after they admit it was taken by them. This might be either October 14 when they purchased it or November 17 when they removed it from the building, although there was evidence by the plaintiff of their having taken some of the property out of the building long before November 17.
The acts and conduct of the receiver -prior to the sale and delivery of the goods to the defendants were unquestionably adverse to the personal interests of the plaintiff with reference to this particular machinery, especially when informed as he was by the others of the ownership of the plaintiff as recounted above.
In 26 R. C. L. 1113 it is said:
“Any distinct act of dominion wrongfully exerted over the property of another, in denial of his right, or inconsistent therewith, may be treated as a conversion, and it is not necessary that the wrongdoer apply the property to his own use. Thus, taking or retaining possession of personal property under a wrongful assertion of ownership may amount to a conversion. The unlawful taking of goods out of the possession of the owner with intent to convert them to the use of the taker is clearly a conversion, though an actual, forcible dispossession or manual taking need not be shown, any intermeddling or exercise of dominion over the property of another in denial of such owner’s rights being sufficient to constitute conversion.”
The liability of a receiver in exceeding his authority is in his individual capacity and not in his official capacity. (Johnson v. Farm & Home Savings & Loan Ass’n, 131 Kan. 238, 289 Pac. 396.)
In the case at bar the receiver was only appointed as such to handle and dispose of the corporate property, yet he pretended to act as the receiver in including the personal property of the plaintiff in his official inventory and retaining an exclusive possession of it and later selling and delivering it to the defendants, after often being told that such property did not belong to the corporation. Undoubtedly an action of the same kind as this, viz., of conversion, could have been brought against W. P. Ballew, while acting as receiver, to recover from him personally the specific property, or damages if he had converted or disposed of it.
Several authorities are cited to show that a receiver is only a ministerial agent of the court, and that he can acquire no other or greater interest than the debtor, and that where several contribute to the transfer of the property they are all joint tort-feasors and all are liable. But these and similar authorities will not relieve the good-faith purchaser nor his vendor if they persist in holding possession of the property as against or inconsistent with the rights of the real owner.
There seems to be no question that if the statute of limitations is a bar to this action it is the third subdivision of R. S. 60-306, or the two-year limit. This is from every aspect an action in conversion or in tort, and is necessarily limited by the two-year provision. (Jameson v. Beeler & Campbell Supply Co., 118 Kan. 760, 236 Pac. 647, and Carter v. Pratt, 23 Kan. 613.)
There is no question in this state about tacking the periods of adverse possession of real property to complete the bar of the fifteen-year statute of limitation where there exists a relationship and unbroken continuity of such adverse possession. (Yeamans v. James, 27 Kan. 195; Hughes v. Ridgeway, 86 Kan. 852, 122 Pac. 871; and Manufacturing Co. v. Crawford, 84 Kan. 203, 114 Pac. 240.) In the case last cited above it was said in the opinion:
“In order that the several possessions can be regarded as continuous and referred to the original entry, there must be privity of estate or title. This privity of estate may be shown by deed or by parol. The rule is thus stated in 1 A. & E. Encycl. of L. 844:
“ ‘The privity required to constitute continuous adverse possession may be effected by any conveyance, agreement, or understanding which has for its object a transfer of the rights of the original entry.’ ” (p. 206.)
Under the heading of Adverse Possession in 2 C. J. 285 it is said:
“The law relating to adverse possession of chattels, while differing in some respects from that which relates to adverse possession of lands, bears a close analogy thereto. Under the statutes governing the subject title to chattels may be lost or acquired by adverse possession.”
On page 287 of the same volume it is said:
“As is the case of adverse possession of realty, adverse possession of chattels for the statutory period operates not merely to bar the remedy but vests absolute title in the possessor, which is equally available for attack or defense. The adoption of a contrary doctrine, it has been said, would result in dangerous consequences to society and in violence and the prostration of good order.”
In 65 C. J. 11 "conversion” is defined as follows:
“Conversion is ‘an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner’s rights.’ ”
In 2 C. J. 82 the doctrine of “tacking,” as applied to real property, is described as follows:
“It does not follow from anything heretofore said that continuous possession in any one person is necessary for the acquisition of title by adverse possession. On the contrary it is a rule of almost universal application that, if there is privity between successive occupants holding adversely to the true title continuously, the successive periods of occupation may be united or tacked to each other to make up the time pf adverse holding prescribed by the statute as against such title.”
In the consideration of the demurrer to plaintiff’s evidence, and the question of tacking different periods of adverse possession, we are accepting completely the theory of the plaintiff as to the acts of the defendants constituting adverse possession and conversion as held by the trial court.
The case of Farmers Grain Co. v. Atchison, T. & S. F. Rly. Co., 120 Kan. 21, 245 Pac. 734, and the same case on rehearing, reported in 121 Kan. 10, 245 Pac. 734, cited by the appellee, supports strongly his theory as to the defendant being liable for conversion, and for the purpose of the demurrer we must so consider them, and that case includes all who contribute to the transfer or disposition as liable in conversion whether they are jointly or severally sued.
We thoroughly agree with plaintiff that he is not required to complain of any acts of the receiver committed prior to October 14, 1932, but if the evidence shows such acts to be inconsistent with the rights of the plaintiff and adverse thereto in the exercise of his possession of the plaintiff’s individual property, the failure of the plaintiff to allege such conduct will not prevent a conclusion that his possession was adverse to the plaintiff. Plaintiff insists that the possession of the receiver cannot meet the necessary requirements of being adverse, as outlined in 2 C. J. 285, especially the requirements of being “continuous and uninterrupted.” No statement or fact is called to our attention which interrupted or broke the continuity of the receiver’s possession of all the property in the building until he sold it, nor to any statement or fact that separated or broke the continuity between the receiver’s possession and that of the defendants.
Appellee cites 2 Wood on Limitations (4th ed.), 859, which, after discussing this subject at some length, states:
“But, in order to defeat the title of the true owner to the property, the possession must be adverse, the same rule obtaining in this respect as obtains relative to lands; but the possession must be continuous in the person seeking to avail himself thereof, and he cannot tack it to the possession of another, and thus acquire title under the statute.”
In Angelí on Limitations (6th ed.), 324, it is said:
“But where goods are tortiously taken, the statute will run from the taking, for that, in such a case, is the time of the conversion. Thus, where goods were taken on an execution, which was afterwards set aside for irregularity, an action of trover was brought, and the defendant pleaded the statute of limitations; it was held, that the execution being irregular, was a nullity, and that the time when the statute began to operate was from the first taking of the goods, and not from the time when the execution was set aside. S'o an unlawful disposition of property, rightfully in possession, being a conversion, the statute will run from such unlawful act. And the statute is also a bar to an action of trover commenced more than six years after the conversion, although the plaintiff did not know of the conversion, until within that period.”
In Buswell on Limitations and Adverse Possession it is said on page 305:
“. . . in an action of trover, the possession of one who claimed adversely to the true owner and sold to the defendant, cannot be tacked to the possession of the defendant so as to make up the time of the statutory limitations.”
This seems to be based on trover or the finding of goods of another, as it is said on page 302:
“For any man may take the goods of another into possession if he find them; but no finder may acquire a property in them, unless the owner be forever unknown.”
And on page 303 the distinction is made as to the unlawful taking of the goods of another in the following language:
“. . . where goods are tortiously taken, the statute will run from the taking, for that, in such a case, is the time of the conversion, and the conversion, and not a subsequent tortious sale of the goods, is the time from which the limitation begins to run.”
Even if it should be argued that the holding by the receiver was official or judicial, there is, notwithstanding, an adequate remedy during that time, as it was held in the two cases, Fleeger v. Swift and Fleeger v. Inge, 122 Kan. 6, 251 Pac. 187:
“The possession of property by a receiver duly appointed by a court of competent jurisdiction is to be regarded as the possession of the court, a possession which is exclusive in character, and the property so held is not subject to seizure by attachment issued from another court.
“A creditor claiming a lien or preference as to the property is not without remedy, as the court having the custody and control of the property has jurisdiction to give all necessary and proper relief upon application of any party claiming any interest in it.” (Syl. ¶[([ 1,2.)
In the Restatement, Torts, section 222 is as follows:
“One who intentionally dispossesses another of a chattel without his consent or other privilege to do so is liable to the other either as a trespasser for the damage done or as a converter for the value of the chattel except as stated in §§ 247 and 249.”
Section 247 deals with mitigation of damages by an offer to return the chattel, and section 249 deals with circumstances which bar a recovery, as ratification, settlement, release or satisfaction.
In Ames Lectures on Legal History it is said:
“The bar of the statute operating as a perpetual injunction against the enforcement of the right of action virtually destroys that right; and the policy of the law will not permit the dispossessed owner’s right to recover by his own act to survive the extinguishment of his right to recover by legal process. . . .
“The decisions in the case of chattels are few. As a matter of principle, it is submitted this rule of tacking is as applicable to chattels as to land. A denial of the right to tack would, furthermore, lead to this result. If a converter were to sell the chattel, five years after its conversion, to one ignorant of the seller’s tort, the dispossessed owner’s right to recover the chattel from the purchaser would continue five years longer than his right to recover from the converter would have lasted, if there had been no sale. In other words, an innocent purchaser from a wrongdoer would be in a worse position than the wrongdoer himself — a conclusion as shocking in point of justice as it would be anomalous in law. . . .
“This tacking is allowed in England, Canada, and in several of our states. There are, however, some decisions and a widespread opinion to the contrary in this country. . . . The laches of the original owner, who remains continuously dispossessed throughout the statutory period, is the same, and should be attended with the same consequences to him, whether the adverse possession be held continuously by one or several persons . . .” (pp. 201, 204-206.)
As stated in the above authorities, decisions are found oh both sides of this proposition of tacking under open, public and notorious adverse possession of personal property, and such different holdings are cited in the notes to the texts above quoted. The only comment on the different conclusions reached in these many decisions that may be appropriate here is the fact that most of those cited as opposed to tacking are very much earlier than those in favor of tacking, which is in harmony with the history of the same subject in England, where tacking of two or more adverse possessions of personal property was not recognized until comparatively recently. Another distinction is worthy of notice, that the statutes of some states deal only with the remedy for recovery of the property and make no provision as to the title or legal ownership thereof by reason of delayed action.
We feel satisfied and justified in following most of the texts above quoted and joining those courts which hold tacking is proper in effecting a bar under the statute where there is a privity between the parties that have exercised continuous and uninterrupted adverse possession of personal property. And since such adverse possession was shown by the evidence of the plaintiff and the exhibits to have exceeded the limit of two years before bringing this action, the demurrer of the defendants to the evidence of the plaintiff should have been sustained. This holding makes it unnecessary to consider the other points raised in this appeal or in the cross-appeal.
The judgment is reversed, and the cause is remanded with instructions to sustain the demurrer to plaintiff’s evidence.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff is prosecuting this action to cancel an oil-and-gas lease on certain real property in Butler county, together with all the assignments and conveyances of the lease, to recover damages for the conversion of oil taken from the land described in the lease, and to obtain an injunction enjoining the defendant from drilling and operating on the lease for the purpose of taking therefrom oil or gas, and from removing the oil and gas therefrom, and asks that the amount in value of the oil and gas taken from the lease be ascertained and that judgment be rendered in favor of the plaintiff for the market value thereof. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The controversy is between rival holders of gas leases executed by the owner of the real property at different times. The opinion in Brinkman v. Empire Gas & Fuel Co., 120 Kan. 602, 245 Pac. 107, was rendered in this action on a former appeal to this court on a judgment sustaining a demurrer to the petition on which the action has been prosecuted. The judgment was reversed; the cause was remanded to the district court with directions to overrule the demurrer; that was done; the action has been tried; judgment has been rendered in favor of the defendant; and another appeal has been taken.
The action was tried by the court without a jury, and extensive findings of fact were made, among which were the following:
“First. On and prior to May 26, 1908, Joshua Shriver was the owner of the following-described land, to wit: Northwest quarter of section fourteen, township twenty-six, south of range four east, in Butler county, Kansas; and continued to own and occupy said land uiitil his death, which occurred September 15, 1916. . . .
“Third. On the 26th day of May, 1908, Joshua Shriver and wife and S. R. Walker entered into their certain contract, denominated oil and gas lease, a copy of which is attached to plaintiff’s amended petition, under mark of ‘Exhibit A,’ and in the following findings this instrument will be denominated the Walker lease. This instrument was filed for record in the office of the register of deeds of Butler county, Kansas, March 4, 1909. No holder of this lease has ever commenced a test well in Butler county, Kansas, or drilled a well upon the land in question, or paid any annual rental for delay in drilling. . . .
“Fifth. February 18, 1910, S. R. Walker, in writing, assigned this and other leases to the Mid-Continent Development Company, a corporation, and copy of which instrument is attached to- plaintiff’s amended petition and marked ‘Exhibit B.’ This instrument of assignment was filed for record July 9, 1917, then duly recorded, and afterwards delivered by the register of deeds to William G. Holt, one of the attorneys for the plaintiff.
“Sixth. In addition to above lease the said S. R. Walker obtained from other persons similar leases upon some forty-three other tracts of land in Butler county and also a large number in Morris and Chase counties. The Mid-Continent Development Company had employed said S. R. Walker to obtain such leases for it and he did so as the agent of said company, but taking them in his own name. Said company was, at all times, the real owner of said leases. Such employment of S. R. Walker by the Mid-Continent Development terminated January 1, 1910, when he was paid in full for services rendered. ...
“Eleventh. On the 7th day of August, 1914, the said Joshua Shriver and wife executed and delivered to one W. M. McKnab an oil and gas lease covering said real estate which said W. M.- McKnab on the 8th day of August, 1914, in writing on said lease, duly assigned to Alfred J. Diescher, which lease and assignment was on the 21st day of December, 1914, filed for record in the office of the register of deeds of Butler county, Kansas, and copy of which is attached to plaintiff’s amended petition as exhibits E and F, and the lease is designated herein as the McKnab lease. . . .
“Fifteenth. After May 26, 1908, when Joshua Shriver and wife executed and delivered the lease to S. R. Walker, neither said Joshua Shriver nor his wife ever saw, met or had any conversation with said S. R. Walker relative to said lease, and they and neither of them ever wrote to, or had any correspondence with the said S. R. Walker, and neither of them ever in writing themselves, or through any agent or person representing them, in writing or otherwise, requested said S. R. Walker, or his assignee of said lease, to either pay rental thereon or to cancel and release the same of record; except as the execution and recording of the McKnab lease may be construed to have been such request or notice.
“Sixteenth. Prior to the execution of the McKnab lease, and on August 4, 1914, S. R. Walker executed and delivered to W. M. McKnab a release of the Walker lease in the following language:
“‘Mr. McKnab, This is to certify that Joshua Shriver’s lease given to S. R. Walker in 1908 covering the NW% of see. 14, twp. 26, R. 4, Butler county, Kansas, is null & void & of no effect. The rental not being paid killed this lease & I hereby release same. S. R. Walker.’
•“This release was sworn to by S. R. Walker before Robert Elliott, a notary public in Cowley county, Kansas, but the certificate was not in form as proj vided by the statutes of Kansas relating to acknowledgments. [The certificate was as follows: ‘Subscribed and sworn to before me this 4th day of August, 1914. Robert Elliott, Notary Public, (seal) My Commission expires Apr. 14, 1917.’] This release was filed for record in the office of the register of deeds of Butler county, August 13, 1914, and recorded in miscellaneous record ‘K’ at page 477, in that office.
“Sixteenth-A. A short time before, and on August 4, 1914, said W. M. Mc-Knab became and was interested in procuring for himself an oil and gas lease on the above-described real estate from said Shriver and wife. At that time and for nearly three years thereafter the record title to said ‘Walker lease’ stood in the name of S. R. Walker, and said McKnab did not know or have any information that anyone else had or claimed any right or title or interest under the said ‘Walker lease,’, or that said Walker had made any assignment or transfer thereof. Mr. Shriver did not care to deal with McKnab for a lease until the ‘Walker lease’ had been released. Thereupon McKnab procured from Walker the release of the ‘Walker lease’ dated August 4, 1914, and relying upon the record and having no information or knowledge that anyone claimed any right, title or interest in or under the ‘Walker lease,’ and for a valuable consideration paid to said Shriver, McKnab obtained from said Shriver and wife an oil and gas lease denominated ‘the McKnab lease.’
“Sixteenth-B. In his amended petition the plaintiff, in effect, admits that the. said S. R. Walker executed and delivered a purported release of the ‘Walker lease’ and in his original reply he did not deny that Walker executed the release dated August 4, 1914, but on the other hand pleaded that it was invalid as a release, because it had not been acknowledged. As a part of its defense the defendant offered this release in evidence, and in rebuttal the plaintiff recalled P. P. Trueheart for further testimony, and upon direct examination he testified that Walker had written him a letter stating that he had released the ‘Walker lease,’ and we find from the evidence that said Walker did in fact execute and deliver this release. Immediately following this plaintiff placed said S. R. Walker upon the stand as a witness, but no inquiry was made of him as to whether or not he has signed the Walker release; whether or not at the time of signing and delivering the same to McKnab, he told McKnab. that said lease was owned by the Mid-Continent Development Company and that he has assigned same to said company; nor as to anything he may have said to McKnab which would have conveyed to him notice of the fact that he, Walker, did not have a right to release said lease, and the inference from this is that if he had been asked about these matters by the plaintiff who produced him upon the witness stand his answers would have been adverse to the plaintiff, and we find as a fact that Walker did sign the said release; that he did not, as alleged in said plaintiff’s amended petition, notify said McKnab- that he had assigned said lease to the Mid-Continent Development Company; and that he did not give to said McKnab any information which would lead him to suspect that said lease was not owned by the said Walker, and that he, said Walker, did not have a legal right to release the same.
“Seventeenth. At the time of the execution of the aforesaid release, and at the time of the execution of the McKnab lease, and of the assignments thereof from McKnab to Diescher, and from Diescher to the Wichita Natural Gas Company, and from the Wichita Natural Gas Company to the Continental Oil & Gas Company, none of said parties, or corporations, nor any of their officers, had any knowledge of any assignment made by S. R. Walker of the Walker lease to the Mid-Continent Development Company, or of the claim that the Mid-Continent Development Company or anyone else made to the ownership of any interest therein.
“Eighteenth. When McKnab received from Joshua Shriver ‘the McKnab lease’ he was1 not an agent of Alfred J. Diescher, or of Wichita Natural Gas Company, or of Continental Oil & Gas Company, or of the defendant herein, and was not in the employ of said Diescher or any of said companies at any of said times. ...
“Twenty-fifth. After the leases were taken for the Mid-Continent Development Company by Walker in his own name, and before assignment was recorded, July 9, 1917, Walker, with the knowledge and consent of the officers of the Mid-Continent Development Company, executed in his own name releases of many of the leases in Butler county, including the Walker lease involved in this action. During this time he released in his own name many of the leases taken in Morris and Chase counties. In many of these transactions Walker corresponded in relation thereto upon the letterheads of Mid-Continent Development Company and acknowledged the releases before one Charles F. Smythe, a notary public of Jackson county, Missouri, who was a stockholder in the Mid-Continent Development Company, and during a portion of the time was in the employ of that company and occupied a desk in its office. At all such times of making such releases, he was also a shareholder in said company.
“Conclusions of Law.
“First. The release of ‘the Walker lease’ made by S. R. Walker, recorded August 13, 1914, in miscellaneous records ‘K’ at page 477, Butler county, was entitled to be admitted and considered in evidence in the trial of this case and the same is hereby ordered admitted and received in evidence.
“Second. Under the facts in this case the Mid-Continent Development Company, P. P. Trueheart, trustee, and J. George Brinkman, the assignees of said Walker lease, were not grantees, assignees or encumbrancers within the meaning of section 67-237 R.S.
“Third. The. plaintiff is estopped from asserting or claiming any right, title or interest under said ‘Walker lease’ to the real estate or the oil and gas rights therein as against the defendant.
“Fourth. The plaintiff has no interest in the land in question under the ‘Walker lease’ or in any of the oil produced on said land by the defendant herein.
“Fifth. ‘The McKnab lease’ is valid and the defendant is rightfully in possession of the land under said lease, and is not required to account to the plaintiff for any oil produced thereunder by the defendant.
“Sixth. Plaintiff should recover nothing from the defendant herein and the defendant should have judgment against the plaintiff for costs.”
The Walker lease provided that:
“In case no well is drilled on said premises within one year of date hereof, all rights and obligations secured under this contract shall upon notice in writing by the first party cease, unless the second party shall elect from year to year, thereafter to continue this lease in force as to all or any portion of said premises by paying an annual rental of twenty-five cents per acre for all said premises, or such portion as second party may designate until well is drilled on said premises. Said rentals to be paid by deposit to credit of first party to Towanda State Bank at Towanda, Kansas.” ®
Among other things, the amended petition alleged:
“May 26, a. d. 1908, said J. Shriver and Nannie E. Shriver, his wife, for a valuable consideration made, executed, acknowledged and delivered to one S. R. Walker, their certain oil and gas lease, in writing, whereby they granted unto said S. R. Walker and to his assigns the exclusive right for ten years from said May 26, A. d. 1908, to enter upon, operate for, produce upon and remove, oil and gas from said real estate. . . .
“August 6, a. d. 1914, while said above-mentioned oil and gas lease was in full force and effect and owned by said the Mid-Continent Development Company, said J. Shriver and Nannie E. Shriver, his wife, executed, and on the 7th day of August, 1914, delivered to one W. M. McKnab and his assigns, a written instrument purporting to be an oil and gas lease covering said real estate. . . .
[‘That prior to the time said J. Shriver executed said lease marked ‘Exhibit E,’ he informed said W. M. McKnab that he, the said J. Shriver, had made the oil and gas lease to said S. R. Walker as hereinafter alleged, and would not give said W. M. McKnab an oil and gas lease on the land hereinbefore described until the said S. R. Walker lease mentioned in paragraph numbered ‘4’ of this petition was released of record; that at the time of the execution of said lease to W. M. McKnab, said W. M. McKnab informed said J. Shriver that the said S. R. Walker lease was released of record, although the said W. M. McKnab then and there well knew that the said S. R. Walker did not own said lease mentioned in paragraph ‘4’ of this petition, but had assigned the same to the Mid-Continent Development Company, a corporation, as in this petition alleged, and that the same had not been released of record, or otherwise canceled, but was in full force and effect; that, on said 6th day of August, 1914, said J. Shriver was in feeble health, and his eyesight had so far failed that he was practically blind and unable to read or to sign his name, although theretofore he had been able so to do, and believed that W. M. McKnab had secured a valid release of said S. R. Walker lease, and, resting in that belief, executed said lease to said W. M. McKnab, marked ‘Exhibit E,’ which he would not have done if he had known that said S. R. Walker lease had not been legally released of record. . . .”
The original reply which was introduced in evidence over objection, but of which the court could have taken and of which this court does take judicial notice, read as follows:
“That he [the plaintiff] denies generally and specifically each and every allegation of new matter set forth in said answer and denies generally and specifically each and every allegation therein contained, not admitted and set forth in plaintiff’s amended petition therein.
“Further replying to said answer said plaintiff states that the pretended release, the copy of which is set forth on page 4 of said answer in the 7th paragraph thereof, was not acknowledged as required by the laws of the state of Kansas and was not eligible to be filed and registered in the office of the register of deeds of Butler county, Kansas, and was not such an instrument as would impart notice, and that at the time it was made the said S. R. Walker was not the owner of the oil and gas lease therein mentioned, he having prior to that time sold and assigned the same to the Mid-Continent Development Company, and said pretended instrument was wholly null and void.”
The amended reply was in part as follows:
“That he denies that the said defendant became and is the owner of the so-called ‘McKnab lease’ as alleged in subdivision ‘(d)’ of paragraph ‘3’ of said amended answer. . . .
“That he denies each and every allegation and averment contained in the paragraph marked ‘8’ of said defendant’s amended answer, and specifically denies that if any instrument in form or substance of the alleged copy of an instrument alleged by said defendant 'in paragraph marked ‘8’ of its said amended answer to have been signed by S. R. Walker, as set forth on page ‘6’ of said amended answer was executed by S. R. Walker (which such execution this plaintiff denies) the same did not constitute a release of the S. R. Walker lease mentioned in plaintiff’s amended petition, a copy of which is attached thereto, and if such an instrument was executed by S. R. Walker, the same was not duly acknowledged as alleged by defendant in its said amended answer, and was not acknowledged as required by the statutes of the state of Kansas to entitle the same to be recorded in the office of the register of deeds of Butler county, Kansas, and if the same was so written upon the records of the register of deeds of Butler county, Kansas, in book Misc. K, at page 477, or elsewhere on or of said records, the same was so written thereon without authority of law and in violation of the laws of the state of Kansas and the same did not and would not and does not impart or constitute any notice to anyone of the contents thereof, and this plaintiff denies that said alleged and purported instrument so alleged to have been signed by S. R. Walker was ever delivered to said Joshua Shriver, and plaintiff denies that said Joshua Shriver caused said instrument to be filed for record in the office of the register of deeds of Butler county, Kansas, on the 13th day of August, 1914, or at any other time, and denies that the same was duly filed and duly recorded at page 477 of volume K Misc. of the records of said office of the register of deeds, and denies that on August 4, 1914, or at any time thereafter, the said S. R. Walker was the owner of said Walker lease, and said plaintiff further denies each and every other allegation and averment contained in said paragraph marked ‘8’ of said defendant’s amended answer.”
According to the findings of the court hereinbefore set out, the following allegations of the petition were not true:
“That at the time of the execution of said lease to W. M. McKnab . . . McKnab then and there well knew that the said S. R. Walker did not own said lease mentioned in paragraph ‘4’ of this petition, but had assigned the same to the Mid-Continent Development Company, a corporation, as in this petition alleged . . .
“That on and prior to said 6th and 7th days of August, 1914, said W. M. McKnab . . . had actual knowledge and notice that said S. R. Walker had assigned the same to said the Mid-Continent Development Company . . .
“That said W. M. McKnab, in pursuance of said direction and authority, made inquiries as to said lease mentioned in paragraph ‘4’ of this petition, and as to the ownership thereof, and before taking said lease mentioned in paragraph ‘8’ of this petition ascertained that the lease mentioned in paragraph ‘4’ of this petition had been assigned by said S. R. Walker to said the Mid-Continent Development Company. . . .”
On January 15, 1912, P. P. Trueheart, president of the Mid-Continent Development Company, in a communication to the stockholders of that company, in part, said:
“As practically no business has been transacted by your board of directors since the present secretary was conducted into office, and as it has little, if anything to report, I feel that it is incumbent upon me to report to you a few happenings since the special stockholders’ meeting in August . . .
“The enemies of the Mid-Continent Development Company maliciously state that $40,000 or more of the company’s money has been wasted. In reply to that statement, I will say that the original idea of the organizers of the company was to secure an immense acreage of leases in Chase and Morris counties, Kansas, develop them, and sell to a large corporation. To carry out that idea, while Mr. P. G. Walker, Jr., was president and Mr. J. R. Cunningham was secretary, about 100,000 acres of leases were secured in Morris, Chase and Butler counties, Kansas, upon which five wells were drilled, only one being a gasser. Then after a thorough discussion, the project was declared a failure, after an expenditure of about $7,390, and the field abandoned. The Mall-Millen investment [in Oklahoma] was made at an expenditure of $13,542 while Mr. P. G. Walker, Jr., was president, and Mr. R. P. McGeehan was secretary, and while this investment has not been as remunerative as we had hoped, still I do not consider it a failure as we are selling nearly $400 worth of oil a month. However, for argument’s sake, we will call it a failure, and added to the Morris and Chase counties failure, gives us a total of $20,932 instead of $40,000. . . .
“At the time the receiver was appointed, we were selling about $100 worth ■of gas a day [from wells in Wyandotte county]. Any stockholder with ordinary intelligence ought to know that under such favorable conditions there were no grounds for the appointment of a receiver, and it was done to promote the selfish interest of those who conspired to bring it about. . . .”
P. P. Trueheart testified in part as follows:
“Q. Did you ever know of S. R. Walker having executed any so-called releases of oil and gas leases covering any lands in Butler county, Kansas? A. I only knew of one up ’til yesterday.
“Q. What one was that? A. The Joshua Shriver lease.
“Q. When did you ascertain that there had been any attempted release of the oil and gas lease covering that land? A. I can’t give you the date.
“Q. Who was it tpld you about it first? A. My impression is that I got a letter from Mr. Walker so stating.
“Q. Do you remember when you got that letter? A. No, sir; I do not.
“Q. Have you that letter? A. No. I looked for it the other day and I couldn’t find it. One thing I want to correct: I knew of two leases that Mr. Walker had released.
“Q. Before Walker wrote you that letter didn’t you ascertain that Walker— that there was a so-called release of the oil and gas lease on the Shriver land on file in Butler county, Kansas, from me? . . . A. Yes, I am sure I did. . . .
“Q. After I informed you of the .fact that I had discovered the so-called Walker release on file here did you write a letter to Walker concerning that matter? A. I did.
“Q. And did he reply to that letter? A. Yes, sir.
“Q. And is that the letter that you say you got. from Walker concerning this lease, or this release? A. Well, that’s one letter I got from him. Whether it’s that specific letter or not I couldn’t say.”
The register of deeds of Butler county, Edna Lucas Smith, testified that after the release had been recorded she delivered -it to W. F. McGinnis. W. F. McGinnis testified that he probably received the release from the register of deeds, that he was then working for his father in an office in Wichita. Part of his testimony was as follows:
“Q. Do you know what was done with that release after you got it, if you did get it? A. No, I don’t know. My father and Mr. McKnab were good friends in those times and doing a good deal of business, and I ran errands out of the office there for anyone that came in the office and I might have given it to my father and I might have given it to Mr. McKnab. I don’t know who I gave it to. . . .
“Q. Have you made a search of your office and of your father’s office for the purpose of finding that original release? A. Yes, sir.
“Q. You may state whether or not you have looked everywhere that such ■documents are kept in your office and in your father’s office. A. I have.
“Q. Have you been able to find it? A. No, sir.
“Q. Do you have any knowledge now of where that release is or whether it is in actual existence? A. I have no idea.
“Q. If it remained in your office at that time you may state whether or not, in your 'judgment, it has been destroyed there with other waste paper. ... A. Well, I should say that it had been destroyed, because most of the legal documents and everything else we had in there were destroyed by a janitor about six or seven years ago. They were all — I was cleaning'up the •office and they were all put in one big pasteboard box and the janitor took these along with the waste paper and burned everything up, and we lost ■everything in the office at that time.”
1. The plaintiff complains of the introduction in evidence of the ■certified copy of the record of the release of the Walker lease as shown in the office of the register of deeds, and says:
“If section 67-237 authorizes the introduction in evidence of exhibit ‘2’ [the release of the Walker lease], then the plaintiff has no right or title to the Walker lease.”
Was it error for the court to receive in evidence the certified copy of the record of that release. Attention is directed to the allegations of the petition, to the findings of the court, and to the evidence of P. P. Trueheart concerning the letter he received from S. R. Walker, telling Trueheart about the release of the Walker lease. The pleadings and the evidence disclosed that the plaiptiff had actual notice and knowledge of the release.
Section 67-237 of the Revised Statutes reads:
“When any instrument of writing shall have been on record in the office of the register of deeds in the proper county for the period of ten years, and there is a defect in such instrument because it has not been signed by the proper officer of any corporation, or because the corporate seal of the corporation has not been impressed on such instrument, or because the record does not show such seal, or because such instrument is not acknowledged, or because of any defect in the execution, acknowledgment, recording or certificate of recording the same, such instrument shall, from and after the expiration of ten years from the filing thereof for record be valid as though such instrument had, in the first instance, been in all respects duly executed, acknowledged, and certified, and such instrument shall, after the expiration of ten years from the filing of the same for record, impart to subsequent purchasers, encumbrancers and all other persons whomsoever, notice of such instrument of writing so far as and to the same extent that the same may then be recorded, copied or noted in such books of record, notwithstanding such defect. Such instrument or the record thereof, or a duly authenticated copy thereof, shall be competent evidence without requiring the original to be produced or accounted for to the same extent that written instruments, duly executed and acknowledged, or the record thereof, are competent: Provided, That nothing herein contained shall be construed to affect any rights acquired by grantees, assignees or encumbrancers subsequent to the filing of such instrument for record and prior to the expiration of ten years from the filing of such instrument for record.”
’ What is the effect of the statute? It provides that instruments which have been recorded in the office of the register of deeds for a period of ten years may be received in evidence although they have not been acknowledged or may not have been properly acknowledged. It also provides that, if admitted in evidence, they shall not affect any rights acquired by grantees, assignees, or encumbrancers prior to the expiration of ten years from the time of filing such instrument for record. When ten years have expired, the record of the defective' instrument may be received in evidence, but when received in evi dence it shall not affect those whose rights have been acquired prior to the expiration of the ten years. The language of the statute is equivalent to saying that the defective instrument may be received in evidence after the expiration of ten years but it has effect from and after that time to the same extent as if it had been properly executed, acknowledged, and recorded on the day of the expiration of ten years after it was recorded so far as rights acquired before the ten years had expired.
The existence of the release and that it was signed by S. R. Walker was recognized by the plaintiff in his pleadings. The objection was to the introduction of the certified copy of the record of that release as it was found in the office of the register of deeds in Butler county. It had been recorded in that office for more than ten years at the time of the trial. The release was recorded on August 13, 1914. The trial occurred on February 7, 1928. The statute (R. S. 67-237) provided for the introduction in evidence of the certified copy of the. release. Evidence was introduced which tended to prove that the original document had been destroyed. The record in the office of the register of de.eds was the best available secondary evidence of the contents of the release. It was not error to receive in evidence the certified copy of the record of the release.
2. The plaintiff is seeking to cancel the McKnab lease and to recover under the Walker lease for oil taken from the land. To cancel the McKnab lease or to recover for oil taken from the land, the plaintiff must allege' and prove facts to show that the McKnab lease should be canceled. The McKnab lease was pleaded by the plaintiff and the existence of the release of the Walker lease signed by S. R. Walker was recognized by the plaintiff in his petition. He attempted to regard that release as a nullity because it was not properly acknowledged and for that reason was not entitled to be recorded. It was not a nullity; even if it had never been recorded, it was binding on the parties' to it the same as any other written contract. An unacknowledged deed will convey land. (Gray v. Ulrich, 8 Kan. 112; Mo. Pac. Rly. Co. v. Houseman, 41 Kan. 300, 21 Pac. 284; Mathewson, Administrator, v. Richards, 114 Kan. 500, 503, 220 Pac. 185.) As to all who were privy to the McKnab lease, it was not necessary for the release of the Walker lease to have been recorded. The plaintiff in his petition sought to avoid the effect of the Walker release and of the McKnab lease by pleading that when they were executed Walker did not own the Shriver lease and that McKnab had notice and knowledge that the Shriver lease was owned and held by the Mid-Continent Development Company. After pleading the McKnab lease and recognizing the Walker release, it was necessary for the plaintiff to plead facts to avoid them. That he did by pleading that McKnab had notice and knowledge of the rights of the Mid-Continent Development Company, but he failed to prove that fact. When the plaintiff failed to prove notice or knowledge of the rights of the Mid-Continent Development Company on the part of McKnab, he should have proved other facts to defeat the McKnab lease. That he could have done by proving that the Walker lease had not been released. That he did not attempt to do. He then relied on the record of the defectively acknowledged Walker release. His case then depended on there being no release of the Shriver lease by Walker. If the plaintiff had not sought to cancel the McKnab lease, and had simply pleaded the Walker lease, alleged trespass by the defendant, and asked damages without pleading the McKnab lease and without recognizing that there had been an attempt to release the Walker lease, and the defendant had then set up the McKnab lease and the release by Walker, it would have been incumbent on the defendant to have established the execution of the release. That was not the action prosecuted by the plaintiff and was not the case presented by the pleadings. The action was to cancel the McKnab lease. The petition recognized the release and attempted to avoid it. The plaintiff failed to show that the McKnab lease should be canceled and failed to prove the facts by which he sought to avoid the release.
3. Does estoppel bar the plaintiff from recovery in this action? Briefly stated, the findings of the court show that S. R. Walker obtained the lease from the Shrivers on May 26, 1908; that it was filed for record March 4, 1909; that it was assigned to the Mid-Continent Development Company February 8, 1910, but the assignment was not recorded until July 9, 1917; that neither S. R. Walker nor any of his successors paid the rental provided for in the Shriver lease; that neither S. R. Walker nor any of his successors made any effort to drill any oil or gas well in Butler county; that the release by Walker of the lease to him was signed by Walker on August 4, 1914; that the lease to McKnab was dated August 6, 1914; that the defendant entered upon the land to drill June 6, 1917, and began drilling June 22, 1917; that P. P. Trueheart, presi dent of the Mid-Continent Development Company, one of the successors in interest of S. R. Walker, notified the stockholders of his company that the project of drilling on the large acreage of leases in Morris, Chase and Butler counties was abandoned; that S. R. Walker had executed releases for a large number of the leases that had been obtained by him for the Mid-Continent Development Company; that P. P. Trueheart knew that S. R. Walker had released the Shriver lease; that neither the plaintiff nor any of his predecessors in interest paid any attention to that lease until the defendant under the McKnab lease was preparing to drill for oil on the premises covered by the lease. The plaintiff and his predecessors, for more than seven years, permitted the lease under which he claims to stand in the name of S. R. Walker, thereby permitting the records to show that he had authority to execute a release. The lease was probably subject to cancellation. The Mid-Continent Company after the assignment to it of the Walker lease, by recording the assignment to it, could have prevented any question concerning the right or power of S. R. Walker to release it. That the Mid-Continent Development Company did not do. Those facts showed an abandonment of all rights under the Walker lease and estop the plaintiff from maintaining this action.
When McKnab procured the release from Walker he did not have any notice or knowledge of the claims of the plaintiff or of any of his predecessors. The plaintiff and his predecessors had done nothing to show that they were interested in the property. Their conduct tended to show that they had abandoned the lease. They did not make any effort to'develop the lease. They did not invest any substantial amount in it. The defendant did. It has expended large sums of money and produced great quantities of oil which the plaintiff is now claiming to have owned. The evidence showed that his claim was not equitable, and that it was stale and unjust.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action by the Kansas Wheat Growers Association against J. E. Smith, one of its members, originally to enjoin the defendant from selling any of the wheat grown by him to any other dealer during the life of the contract, to recover from him 25 cents per bushel for all wheat sold by him to other dealers, and for costs and attorney fee. The answer admitted the execution of the contract attached to the petition, but denied all other allegations of the petition.
This is the third trial of the case, and the matter of injunction has ceased to be an issue, the contract having been for five years from its date, September 14, 1921. The plaintiff claims 25 cents a bushel for 4,437 bushels of wheat grown by the defendant in the years 1924 and 1925 and sold by him to other dealers in violation- of the terms of the contract, or $1,109.25, and a reasonable attorney fee.
The case was tried to a jury, which rendered a verdict in favor of the plaintiff for $512.50, on which judgment was rendered against the defendant, and from which judgment the plaintiff appeals. Plaintiff had moved the court for a directed verdict, later for a judgment for the whole amount claimed and attorney fee notwithstanding the verdict, and for a new trial, all of which motions were overruled. The only question now involved is, Was the plaintiff entitled under the evidence to a verdict and judgment for the whole amount, or $1,109.25, instead of $512.50, and for attorney fee?
Among the provisions of the contract signed by the defendant were the following:
“The association agrees to buy and the grower agrees to sell and deliver to the association all of the wheat produced by or for him or acquired by or for him as landlord or lessor during the years 1921, 1922, 1923, 1924 and 1925.
“The grower shall have the right to stop growing wheat and to grow anything else at any time at his free discretion; but if he produces any wheat during the term hereof it shall all be included under the terms of this agreement and must be sold only to the association.
“Nothing in this agreement shall be interpreted as compelling the grower to deliver any specified quantity of wheat per year; but he shall deliver all the grain produced or acquired by or for him as landlord or lessor.
“This agreement shall be binding upon the grower as long as he produces wheat directly or indirectly, or has the legal right to exercise control of any commercial wheat or any interest therein during the terms of this contract.
“The grower hereby agrees to pay to the association for all wheat delivered, sold, consigned, withheld or marketed by or for him, other than in accordance with the terms hereof, the sum of twenty-five cents per bushel, as liquidated damages for the breach of this contract.
“If the association brings any action whatsoever, by reason of a breach or threatened breach hereof, the grower agrees to pay to the association all costs of court, costs for bonds and otherwise, expenses of travel, and all expenses arising out of or caused by the litigation and any reasonable attorney’s fees expended or incurred by it in such proceedings.”
The evidence shows that defendant fully complied with the terms of the contract for the first three years thereof, but failed to deliver any wheat to the association during the years 1924 and 1925. Plaintiff introduced evidence showing defendant delivered or di~ rected the delivery to other grain dealers during those two years of 4,437 bushels of wheat, and received payment therefor either in his own name or that of his brother-in-law. The defendant was the only witness in his behalf. He did not attempt to dispute the accuracy of the amount of wheat delivered to the two dealers, who had testified concerning the same, but stated that in 1923 he decided he wasn’t going to farm wheat any more under the Kansas Wheat Growers contract; that he made a contract with his brother-in-law, who had an interest in and represented the owners of the land he was farming, whereby the brother-in-law was to pay him a lump sum of $1,100 for putting in the wheat, and if it was a paying proposition he was to get pay for his work in harvesting it, if not he was to harvest it for nothing; that he got some pay for harvesting it, but did not remember how much; that he used the same farming and harvesting machinery he had previously used in the growing of the wheat. During the year 1924 he purchased a farm from an executor where one-third of the growing wheat crop went to the purchaser. He declined to take it that way until he told his brother-in-law he would not take the wheat, and the brother-in-law apparently agreed to take it, but never paid anything for it. Nothing was said about price. Defendant says positively he had no interest in any wheat grown or delivered in 1924 and 1925. There was introduced in evidence by the plaintiff a bill of sale made by defendant May 2, 1925, selling to the brother-in-law one-third interest in 120 acres of growing wheat and a two-thirds interest in 140 acres on the home farm, which is in the usual form for a bill of sale, declaring him to be the lawful owner of the wheat so sold. This was filed with the register of deeds July 2,1925..
As stated above, there is no conflict in this case as to the number of bushels involved. The only evidence by the defendant in that respect was that he did not know. So the evidence as to the number of bushels of wheat involved herein is absolutely undisputed. The only controversy in the case is whether the defendant was interested in any of the wheat grown on these two places during those two years. He says he was not interested in any wheat, grown those two years. He treated it as a whole and made no exception to any part of it. He is liable for all of it or none of it. That was the question that went to the jury, but it saw fit to split the verdict and make the result about fifty-fifty. That is not the province of a jury. The litigants herein were entitled to an answer from the jury on the whole controversy involved. If the jury accepted the theory of the defendant it should have rendered a verdict in his favor. He was either right or wrong in his position. The jury said he was wrong, but proceeded, as in common parlance, to let him down easily. In this it mistook its function, as was said in the case of Bressler v. McVey, 82 Kan. 341, 108 Pac. 97, the syllabus of which is as follows:
“Where the sole question submitted to a jury is'whether the plaintiff is entitled to recover upon a contract, and there is no dispute concerning the amount nor any basis for a finding that' the defendant owes a less sum than that claimed, a verdict for half the amount should not be received, and if received should be set aside as contrary to the evidence at the instance of either party.”
“In an action for the recovery of money only, where the evidence for the plaintiff tends to prove that a definite amount is due, and the evidence for the defendants tends to prove that nothing whatever is due, a verdict in favor of the plaintiff for a less amount than that shown by the evidence must be set aside and a new trial be granted.” (Dutton v. Brown, 122 Kan. 277, syl., 252 Pac. 207.)
“A defendant is entitled to a reversal where the court sets aside a general verdict in plaintiff’s favor and renders judgment against the defendant for a sum which is not sustained by the evidence or findings, and which is contrary to any theory contended for although less than the plaintiff claimed and less than he was entitled to recover, if his theory of the case was correct.” (Hart v. Gerretson Co., 91 Kan. 569, syl., 138 Pac. 595. See, also, Miller v. Miller, 81 Kan. 397, 105 Pac. 544.)
These cases indicate that the verdict cannot stand and must be set aside, but R. S. 60-3317 and 60-3330 provide that the appellate court “shall render such final judgment as it deems that justice requires,” and in Gartner v. Oil & Gas Co., 115 Kan. 88, 222 Pac. 72, it was held:
“The directory provision of the code that in actions for the recovery of money the jury shall assess the amount of recovery, does not require the setting aside of the verdict nor prevent the rendition of judgment for the amount shown by the verdict t'o be due where the verdict definitely shows by a mere computation the amount for which judgment should be given.” (Syl. If 2.)
The situation in Manufacturing Co. v. Porter, 103 Kan. 84, 172 Pac. 1018, w.as quite similar to that in the case at bar, where it was said that the record showed no way for the defendant to rightly prevail, and that it was no favor to prolong the litigation over a liability which he could not escape. The paragraphs quoted above show a positive liability under such contract for wheat grown directly or indirectly unless he desires to discontinue the business. The verdict of the jury is that he did not discontinue.
“Where all the controlling facts to determine a liability are established, and after two trials and two appeals no defense to the liability is disclosed and where a new trial would serve no purpose, final judgment may be ordered by the supreme court under R. S. 60:3317 — following Manufacturing Co. v. Porter, 103 Kan. 84, 172 Pac. 1018.” (Bolinger v. Giles, 125 Kan. 53, syl. ¶ 4, 262 Pac. 1022. See, also, Mitchell v. Derby Oil Co., 117 Kan. 520, 232 Pac. 2249
The 'judgment is reversed and the cause remanded, with instructions to. render judgment for plaintiff for $1,109.25, and for costs, and to render a further judgment for plaintiff for an attorney fee in an amount that will to the court appear to be reasonable under the evidence that has already been introduced.
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The opinion of the court was delivered by
Burci-i, C. J.:
The action is an original action of mandamus in this court, by the city of Pittsburg, to require George Robb, the state auditor, to register revenue bonds of the city voted pursuant to chapter 32 of the Laws of 1933, Special Session. The cause is submitted on the pleadings. The answer of the auditor questions original validity and present effectiveness of the statute.
To cope with consequences of economic depression then existing, congress passed the national industrial recovery act, which was approved on June 16, 1933. The act consisted of three titles: Title I related to industrial recovery; Title II related to public works and construction projects; Title III contained amendments of laws and miscellaneous provisions. Section 303 of the act reads:
“If any provision of this act, or the application thereof to any person or circumstances, is held invalid, the remainder of the act, and the application of such provision to other persons or circumstances, shall not be affected thereby.”
Title II authorized the president to create -a federal emergency administration of public works which, among other things, might finance or aid in financing public works, consisting of publicly owned facilities and instrumentalities. .Contemplated methods of financing were outright grants of money, and purchase of obligations of municipalities, issued for construction or improvement of public works. Three billion three hundred million dollars was appropriated to carry out the provisions of the act. The president was authorized, in his discretion and under such terms as he might prescribe, to extend the benefits of the act to any state, county or municipality, notwithstanding constitutional or legal restriction or limitation on the right or power of the state, county or municipality to borrow money or incur indebtedness. (National Industrial Recovery Act, § 203, subdiv. [d].)
In this state municipalities are creatures of state legislation, and their power to borrow money and to create indebtedness cannot be enlarged either by congress or by the president. The regular session of the 1933 legislature had given considerable attention to the subject of municipal indebtedness. One act was the cash-basis law, requiring municipalities to compile a complete, detailed financial statement by a named date, to pay or to refinance their indebtedness in a way prescribed by the act, and to conduct their financial affairs in the future on a cash basis. (Laws 1933, ch.' 319, effective March 31, 1933.) In view of the penalties prescribed for violation of the act, it was not likely municipalities would.embark on what, under the law of this state, would be lawless creation of indebtedness. If they did, they would not get very far. Therefore, in order that municipalities might take advantage of the act of congress, and so cooperate with the federal government in achieving the purpose of the national industrial recovery act, a special session of the legislature "was called by the governor. One of the measures adopted was chapter 32 of the Laws of 1933, Special Session, effective December 5, 1933, authorizing municipalities to issue and sell a special type of bond called "revenue bond,” to pay the cost of constructing, reconstructing, repairing, improving and extending publicly owned utilities. Section 5 reads:
“Bonds issued under this act shall not be sold for less than the principal amount thereof and accrued interest at the rate of four percent, and shall not be'offered for sale to nor purchased by the state school-fund commission. Such bonds may be sold to the government of the United States, or any of its agencies, under the provisions of the national industrial recovery act, or other federal law, and regulations made in pursuance thereof, on such terms and conditions, not inconsistent with the provisions of law, as in the judgment of the governing body or other proper officers of any such municipality will be in the best interest of such municipality.”
Desiring to extend and improve the waterworks system which it owned, the city of Pittsburg voted bonds for the purpose in the sum of $125,000. The proceedings were regular in all respects, but, as indicated, the auditor declined to register the bonds, a condition precedent to sale of the bonds.
It is contended the act is unconstitutional and void as delegating legislative power. The contention is based on the following section:
“This act shall become ineffective with the expiration of the national industrial recovery act and amendments thereto.” (Laws 1933, Special Session, ch. 32, § 11.)
Title II of the national industrial recovery act begins with section 201. Subdivision (d) of that section reads:
“After the expiration of two years after the date of the enactment of this act, or sooner if the president shall by proclamation or the congress shall by joint resolution declare that the emergency recognized by section 1 has ended, the president shall not make any further loans or grants or enter upon any new construction under this title, and any agencies established hereunder shall cease to .exist and any of their remaining functions shall be transferred to such departments of the government as the president shall designate: Provided, That he may issue funds to a borrower under this title prior to January 23, 1939, under the terms of any agreement, or any commitment to bid upon or purchase bonds, entered into with such borrower prior to the date of termination, under this section, of the power of the president to make loans.”
The argument is, existence of a law of this state depends not on action of the legislature, but on action of congress or action of the president, and consequently the legislature delegated to congress and to the president legislative power of this state.
The doctrine that the legislature may not delegate its power of lawmaking originated with John Locke. (Second Treatise on Civil Government, ch. 11.) The constitution of this state was framed in accordance with the doctrine. What follows will not be a treatise on the subject. Unctuous repetition or sonorous rephrasing of the dogma leads us nowhere. The question in a given-case is, Was what the legislature did a delegation of its lawmaking power?
Effectiveness of a statute may be made to depend on occurrence of some fact, event or contingency. In such cases the act must be complete" in itself as an expression of the legislative will, and must itself determine propriety and expediency of the measure. These requirements being satisfied, a statute may provide that its operation shall be conditional.
That the legislature must determine expedience is illustrated by the recent decisions of this court relating to extension of the moratorium law. The legislature created a moratorium of six months. The legislature then left it to the judgment of the governor whether the moratorium ought to be extended six months more. If what the legislature did with respect to the first six months was legislative, what the governor was authorized to do with respect to the second six months was equally legislative. (Oakland State Bank v. Bolin, 141 Kan. 126, 40 P. 2d 437; Langworthy v. Kadel, 141 Kan. 250, 39 P. 2d 443.)
The principle that effectiveness of an act may be made to depend on the coming into existence of some specified future fact, event, or condition capable of identification or ascertainment, has been ap-r plied numerous times by this court. An early case illustrating the principle is that of Phoenix Ins. Co. v. Welch, 29 Kan. 672 (1883).
The legislature passed an act relating to insurance. A reciprocity provision was, that if the existing' or future laws of any other state should impose on Kansas insurance companies seeking to do business there heavier burdens than those imposed by this state, this state should impose equal burdens on companies coming here from other states. The proper amount of fees, charges, etc., was to be paid to the superintendent of insurance, the licensing officer. The statute was held to be constitutional. Pertinent paragraphs of the syllabus read:
“While the legislative power of the state is by the constitution vested in the legislature, yet that body has authority to pass a law whose operation is by its terms made to depend on a contingency, even though that contingency be some action on the part of the legislature of another state.
“Section 17 of the act relating to insurance (ch. 50a, Comp. Laws 1879), so far as it provides that, when the laws of any other state impose upon the corporations of this state applying to transact business within its limits other and more onerous burdens and conditions than those prescribed by the general provisions of said chapter for corporations seeking to transact business in this state, the same burdens and conditions shall be imposed upon corporations from that state applying to enter this, is a complete and absolute expression of the legislative will, and though its operation depends on the contingency of legislative action in other states, it is not thereby rendered unconstitutional.” (1, 2.)
In the opinion by Brewer, J., it was said:
“Now in this section is absolutely and finally prescribed the rule and measure of license. It is not left to the state superintendent to determine what the rule shall be. His duty is simply to ascertain the facts, and apply the rule. He may not arbitrarily determine upon what conditions the plaintiff may enter this state; he can only enforce the condition which-the legislature has imposed. It is true the extent of those conditions may vary in different cases, but the rule to determine the variance is not left to his judgment, but is prescribed by the legislature. Our laws abound in cases in which a statute is made dependent upon the action of some tribunal or body, or upon some other contingency, and is therefore practically dormant until such action takes place or contingency happens. (Enumeration of laws.) . . .
“But it is said that the contingency is the action of the legislature of a foreign state — that in effect the section attempts to transfer the law of such foreign state to our own, and make it operative within our territorial limits. Not so: the section is the law of Kansas, enforced solely within our limits, and in enforcing it the superintendent is only obeying the mandate of our legislature. True, the contingency is created by the action of a foreign state, and the section refers the superintendent to the legislation of that state to determine whether the contingency has arrived. But this is not the only instance in which our legislation refers to that of other states, . . . (Citations) ....
“In all these cases it is the law of the home government which is enforced, and the action of the foreign government only makes the contingency upon which the law becomes operative. There is no difference in principle between such contingency and any. other which may be provided for in the statute. In all such cases it is the duty of the officer charged with the execution of the law to inquire as to the facts, and ascertain whether the contingency named has arrived, and if so, to enforce the mandate of his superior, the legislature.” (pp. 676-678.)
It will be observed that under this decision effect of a statute may be quite contingent, according to existing law of another state, according to future law of another state, and according to change in the law of another state.
A different view of the constitutional question involved was presented in the opinion by Somerville, J., in the case of Clark & Murrell v. Port of Mobile, 67 Ala. 217 (1880), a reciprocal insurance case arising under a law quite similar to that considered in the Kansas case:
“This section of the Code authorizes, in effect, the legislature of Mississippi, speaking through its statutes, which are the subjects of extrinsic proof and not of judicial knowledge in our courts, to fix by law the amount which the treasurer of Alabama shall demand of appellants as a license tax to do an insurance business in this state. If the lawmaking power of that state should, in a day, modify, amend or repeal their revenue laws, ipso facto, such legislative action would modify, amend or repeal the legal operation of our laws, provided the principle contended for by appellant’s counsel is a sound and prevailing one. This cannot be, for it would be confiding to a foreign jurisdiction that legislative discretion which the general assembly of Alabama are constitutionally bound to exercise themselves, and which they cannot delegate or commit to another. They are not permitted to ‘substitute the judgment, wisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.’ — Cooley’s Const. Lim. 117. [Other citations.] If a law should be passed entitled 'an act to authorize the legislature of Mississippi to fix the amount of the license tax to be required of insurance companies, organized under the laws of that state and doing business in Alabama,’ the objection would be obvious on first impression. Yet this is the necessary and practical effect of the statute as it now stands.” (p. 220.)
In all the discussions of delegation of legislative power which have followed, nothing of consequence has been added to the opinions of Brewer and Somerville.
The defect in the reasoning of the Alabama court consisted in faulty analysis. The legislature of Alabama exercised its own judgment, determined the policy of that state, and made the law. The legislature of Mississippi might create conditions affecting application of the law. Whatever the conditions, the act of the legislature of Mississippi did nothing to the law of Alabama. The conditions were ascertainable with perfect certainty by the state administrative officer of Alabama, the state treasurer. When the conditions were ascertained the law of Alabama governed the officer’s conduct.
It is now settled beyond dispute by both state and federal decisions that the legislature may prescribe a rule to be applied according to existence or nonexistence of some fact which some officer or board is required to ascertain. (Schaake v. Dolley, 85 Kan. 598, 610, 613 (1911), 118 Pac. 80.) In the case of State, ex rel., v. Smith, 130 Kan. 228 (1930), 285 Pac. 542, the case of Phoenix Ins. Co. v. Welch, 29 Kan. 672, was cited and approved, and numerous subsequent decisions of this court, applying the doctrine of the Welch case, were collated.
A typical case involving delegation of legislative power is that of State v. Crawford, 104 Kan. 141, 177 Pac. 360. A statute provided that all electric wiring should be in accordance with the national electric code. It was represented to the court that the national electric code consisted of rules promulgated by some voluntary, unofficial associations, which were revised from time to time at meetings held now here and now there, and which covered the whole art of installing electric switchboards, poles, lines, inside and outside wiring of theaters and other buildings, and which specified suitable designs and material for electrical appliances. The statute made violation of the rules punishable as a misdemeanor. After citing cases holding it to be within the power of the legislature to punish violation of rules promulgated by some official body created by the legislature, the court, in the opinion by Dawson, J., said:
“But none of the cases cited has ventured so far afield as to intimate that the legislature might delegate to some unofficial organization of private persons, like the National Fire Protective Association, the power to promulgate rules for the government of the people of this state or for the management of their property, or that the legislature might prescribe punishment for breaches of these rules. We feel certain that no such judicial doctrine has ever been announced. If assent to such a doctrine could be given, a situation would arise where owners of propeity with considerable persistence might learn what these code rules were and incur the expense of making their property conform thereto, only to find that the National Fire Protective Association had reconvened in Chicago, New York, or New Orleans, and had revised the code, and that the work and expense had to be undertaken anew. And there would be no end of such a state of affairs." (p. 143.)
The court permitted briefs amici curiae to be filed in this case. In one of them the following from the opinion by Doster, C. J., in the case of In re Hendricks, 60 Kan. 796, 57 Pac. 965, is quoted as a clear and distinct statement of the law:
“Law is a rule of action, and it comes into being and goes out of being in obedience only to the legislative will, and during the time of its existence it is not the subject of experiment, of trying on and putting off. It is not a thing to be suspended, to be hung up for a day, the while something else is tried. It can be got rid of only by unconditional repeal.” (p. 805.)
This statement was pertinent to the decision. It so happens, however, the statement did not occur in any discussion of the subject of delegation of legislative power, and the court disclaimed consideration of that subject as a basis of decision. The opinion reads:
“The writer, speaking for himself alone, is firmly of the opinion that the principle of direct legislation is the wiser and more democratic principle, and would like to see it incorporated into the political system of the country. He nevertheless joins with his associates in holding that the above-quoted act is inoperative and void. Our view, however, is not affected by the consideration that the enactment may be regarded as an application of the referendum principle, or as a delegation of legislative power, but by the fact that its principal provisions are so irreconcilable and absolutely contradictory of one another as to prevent the act from having any meaning or effect whatever.” (p. 800.)
In this case the statute under consideration is a rule of action for municipalities desiring to issue revenue bonds. It came into being and it ceases to be effective only by the legislative will. During the entire time of its existence all of its provisions are, and will continue to be, just what they were the day the law was published in the official state paper. If the learned chief justice meant to say operation of a statute may not be suspended, and a law may not become wholly inoperative on the occurrence of some future event, except by unconditional repeal, he was in error. On the subject of suspension of operation of a general law see Cunningham v. Reno County Comm’rs-, post, p. 267.
As indicated, the statute under consideration authorized bonds of a special kind. They were to be issued for a limited purpose— construction and improvement of revenue-producing utilities. The revenues were to be kept in a separate fund. The fund was to be devoted to payment of cost of operation and maintenance, to creation of a depreciation fund, and to payment of interest and principal of the bonds. The bonds were made a lien on revenues,, but were not general obligations of the municipality, could not be paid from any other fund than revenue, and could not be paid from funds raised by taxation. They were bonds of an emergency type, just as the act of congress, with which the act of the legislature coordinated, was an emergency measure. But when the emergency ceased to exist, no more bonds of that type were to be issued. Power of a municipality to issue such bonds was to cease when the national industrial recovery act expired. That was an event of which the courts would take judicial notice (Helm v. Railway Co., 109 Kan. 48, 196 Pac. 426; 109 Kan. 57, 198 Pac. 190), and an event so notoriously affecting the economic and social interests of the state that all well-informed persons, including the governing bodies of municipalities, would know about it; and the contention that the legislature delegated to congress, or to the president, power to legislate for this state because they have power to create the condition on which the law shall cease to be effective, is tainted with the same fallacy which vitiated the Alabama decision, which was exposed in the opinion in the Welch case, and which has failed to prevail in all the decisions reviewed in the Smith case.
All the arguments with respect to delegating legislative power with respect to bringing an act into effective operation are marshalled in support of the proposition that the law delegated to congress and to the president power to repeal the act, repeal being admittedly as much a legislative function as enactment. The simple answer is, the legislature left nothing to the will or wisdom or patriotism of congress or the president with respect to how long revenue bonds might be issued by municipalities. It was the will and wisdom of the state legislature and of nobody else that when the federal law expired issuance of revenue bonds should cease.
In principle there is not the slightest difference between becoming effective and becoming ineffective on the happening of a contingency. In the opinion in the Welch case the decision in the case of Home Ins. Co. v. Swigert, 104 Ill. 653 (1882), was cited, with approval. A portion of the opinion in the Illinois case was quoted, and a portion of the first paragraph of the syllabus is pertinent here:
“While a law cannot have a mere fragmentary or inchoate existence, yet it is well settled that the operation and even remedial character of a perfect and complete law may, by virtue of limitations in the law itself, based upon contingent extrinsic matters, be enlarged, diminished, or wholly defeated.”
The proceedings resulting in execution of the revenue bonds and their presentation for registration were instituted subsequent to June 16, 1935. It is contended the legislature must have contemplated the revenue bond act would become ineffective at least by June 16, 1935, and possibly sooner, and so limited duration of the act to not later than June 16, 1935. It would have been easy for the legislature to say that, but it did not do so.
The revenue bond act and a number of other acts of the special session of 1933 (chs. 8, 12, 43, 110, 125) were framed in cooperation with title II of the national industrial recovery act, relating to public works and construction projects. The legislature was concerned with title II only. The provision of that title relating to prospective duration has been quoted.
The legislature of this state was not so sanguine as congress about finality of the national industrial recovery act as a means of ending economic depression, either as to content or duration. Section 11 of the statute under consideration took into account possible amendment of the federal statute. Chapter 95 of the Laws of 1933, Special Session, reads in part:
“Section 1. The limitation of the amount of high-type pavement which may be constructed in any one 'year by the state highway commission, as provided in chapter 241 of the Session Laws of 1933, shall not apply to pavement constructed from funds received from the federal government under the provisions of the national industrial recovery act or any additions or amendment thereto. . . .”
Chapter 33 of the same laws, relating to construction, repair and extension of public improvements by municipalities, begins as follows:
“Section 1. In order to cooperate with the federal government under the national industrial recovery act and during the time said act is in effect, the governing body or the proper officers of any municipality. . .
Reading section 11 with these cognate statutes, it is plain the legislature did not contemplate the coming to an end of the national industrial recovery act on any definite date, and intended to extend the benefit of chapter 32 to expiration of the federal act, whenever that might occur.
The matter of amendment of the national industrial recovery act was alluded to in section 11 only as affecting expiration of the federal law, and an argument that this somehow constituted delegation of power to legislate is answered by what has been said on that subject.
It is contended title II of the national industrial recovery act did expire on June 16, 1935. Neither congress nor the president so understands, and this court has reason to know the title is still operative in fact in this state. Methods of legislation by congress are not so limited as methods of legislation by the legislature of this state, and the meticulous arguments in favor of the contention will not be detailed. The question here is whether, within the meaning of section 11 of the state law, title II of the congressional act has expired. For present purposes it will be assumed the title is still operative, by virtue of section 12 of the emergency relief appropriation act of congress of April 8, 1935, which reads in part:
“Sec. 12. The Federal Emergency Administration of Public Works established under title II of the National Industrial Recovery Act is hereby continued until June 30, 1937, and is authorized to perform such of its functions under said act and such functions under this joint resolution as may be authorized by the president. All sums appropriated to carry out the purposes of said act shall be available until June 30, 1937.”
In discussing the subject of extension of time for expiration of title II of the federal act, the contentions relating to delegation by the legislature of this state of its lawmaking power to congress and to the president of the United States are renewed with great vigor.
A writ of mandamus, requiring the auditor to register the Pittsburg bonds, was allowed on December 14, 1935. The foregoing gives the court’s views respecting the auditor’s objections to registering the bonds.
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The opinion, of the court was delivered by
Johnston, C. J.:
The principal purpose of this action was to secure an intrepretation of statutes under which an administratrix of the estate of a deceased person and the receiver of an insolvent bank should take action and for a determination of the duties and rights of these officers in the control and disposition of property.
The Rossville State Bank was a going concern up to August 18, 1927, in which I. B. Alter was a stockholder and officer. He held stock of the bank to the extent of 188 shares. Alter died intestate on August 18, 1927, and on the morning of that day the bank was closed and placed in the hands of the banking department. Two days later Charles W. Johnson was appointed receiver of the bank and is still holding that position. On September 1 Mrs. O. H. Alter was appointed administratrix of the estate of I. B. Alter, deceased. The assets of the bank were found to be insufficient to pay the depositors of the bank, and on September 13, 1927, the receiver made a demand upon the administratrix to pay the double liability upon the 188 shares of stock held by Alter at the time of his death. This was not paid, and on January 17, 1928, suit was brought by the receiver against the administratrix upon the double liability on the Alter stock, and on May 4, 1928, judgment was rendered against the administratrix for $18,800 upon that liability. Before the judgment was rendered this action was brought. The estate of I. B. Alter is insolvent and it is conceded that the total assets, including personal and real property, is much less than the indebtedness of the estate. The administratrix is contending that, under the statutes relating to executors and administrators, it is her duty and she is authorized to sell the property of the estate and pay claims according to the classifications prescribed in the statute, while the receiver is contending that under section R. S. 9-156 he has a preferred and prior claim on the real estate and that the administratrix had no right to sell it and dispose of the proceeds until the claim for double liability is paid. The statute provides:
“At any time after the closing of any incorporated bank, if it shall appear to the receiver thereof that the assets of such bank are insufficient to pay its liabilities, it shall be the duty of such receiver to immediately institute proper proceedings, in the name of the bank, for the collection of the liability of the stockholders of such bank; all sums so collected to become a part of the assets of such bank and to be distributed pro rata to the creditors thereof in the same manner as other funds: Provided, That all transfers of property by a stockholder after the closing of any such bank and before the payment of the double liability as provided by this act, shall be absolutely void as against said double liability. No action by any creditor against any stockholder of such bank for the recovery of such liability shall be maintained unless it shall appear to the satisfaction of the court that the receiver has failed to commence action as herein provided.”
The trial court found that there was an actual controversy between the parties and that they were entitled to an interpretation of R. S. 9-156. The interpretation, placed on the statute as applied to the facts in the case was:
“1. That the defendant by virtue of his office as receiver of the Rossville State Bank, and the judgment above referred to, has a preferred claim upon all of the real property of I. B. Alter, deceased, prior and superior to all demands against the estate of the said decedent, except liens upon real estate existing before his death and claims of the first and second class, and it is the duty of the probate court to allow said claim as prior in right to all of the other classes of claims except such preexisting liens and taxes as to said real property.
“2. That said plaintiff has no legal right to transfer any property free of said preferred claim and can convey no unencumbered title thereto.”
Judgment was rendered in accordance with this finding.
The principal question upon which, the parties divide is, Does the liability of a stockholder in an insolvent bank constitute a lien or preferred claim upon property in the estate of a deceased stockholder which must be paid out of the property prior to all claims of creditors not otherwise secured? A negative answer to the question must be given. It is conceded that if a lien or preference is authorized the authority must be found in the language of the statute quoted. (R. S. 9-156.) It is well settled that liens can only be created by agreement or by some fixed rule of law. (Frost v. Atwood, 73 Mich. 67.)
We are of the opinion that the legislature in the enactment of the statute did not in terms create a lien or preference, and that there is nothing in the purpose or necessity of its enactment indicating that to have been the intention of the legislature. No ambiguity is .found in the act and nothing is seen in the necessities for the act or in the mischief sought to be remedied by it to warrant the court in extending the meaning beyond the plain terms of the act. A primary rule of construction is that the intention of the legislature is to be derived from its language, and when it is not obscure or uncertain there is no reason for a court to look beyond, the words used in search of what the legislature intended to enact when the language employed clearly shows what it did enact. The statute explicitly provides that if a bank is closed and a receiver finds that its assets are insufficient to pay its liabilities he shall institute proceedings to collect the double liability, which when collected shall become part of the assets of the bank and be distributed pro rata to the creditors thereof in the same manner as other funds. Then there is a restriction added by a proviso that “all transfers of property by a stockholder after the closing of any such bank and before the payment of the double liability . . . shall be absolutely void as against said double liability.” Nothing is contained in the proviso relating to liens, preferences, classifications or order of payment. There is nothing in it purporting to change or amend the laws relating to decedent’s estates nor as to the priorities on which demands against such estates shall be paid. No words in the proviso imply that the legislature intended to create a lien or declare a preference among creditors. The words employed go no further than to place a restriction upon a stockholder of a closed bank to prevent him from covering up his property to avoid payment of the double liability. The purpose of the statute and the evil to be remedied are obvious and have been considered in Glenn v. Callahan, 125 Kan. 44, 262 Pac. 573, where it was said:
“It is a fact, of which, the court may well take judicial notice, that men who become sureties for others or incur liabilities which they do not expect to pay will often resort to every possible means; to avoid payment of the liability. Stockholders in banks do not expect to pay the double liability. When they see a possibility of being obliged to pay that liability they frequently dispose of their stock, if they can do so, and thereby escape payment. They will sometimes dispose of their property for the purpose of defeating payment. The purpose of the statute is to meet that situation and compel payment when the liability arises.” (p. 51.)
In that case it was found that a transfer of stock was made for the purpose of evading the statute under consideration. The restriction against transfer of property is specifically placed on the stockholder but of necessity applies to the administratrix of his estate who became the title holder of stock after the death of the stockholder. (Farmers State Bank v. Callahan, 123 Kan. 638, 256 Pac. 961.) Instead of creating a lien or declaring a preference, which could have been done in a few words if that had been the purpose of the legislature, it stopped with the prohibition of the transfer of property after a bank becomes insolvent. It went that far towards frustrating a recognized evil of a sham transfer to an accomplice from whom no recovery could be had and left the appropriation of the property to existing laws. Many restrictions are imposed by the legislature in other statutes which go no further than the language of the act implies. A few of these are set out in Glenn v. Callahan, supra, but since the legislature in plain and unambiguous language declared a policy of restraint of transfer, one appropriate to the evil to be remedied, there is no authority in the court to revise the law by adding a provision creating a lien or in requiring that a liability shall be preferred to all other unsecured liabilities. Such an interpretation in this case would operate to make a new classification of demands-against an estate and one in conflict with the existing law without anything in the title or body of the act indicating an intention of modifying or repealing statutes providing for the order in which claims shall be paid or liabilities discharged. In interpreting a statute the safer rule for us to follow is to ascertain the true intent of the legislature. That intent is to be derived in the first place from the words used, and when that intent is apparent and is appropriate to the obvious purpose of the act we should give that intent effect rather than to search for another meaning, although we might think some other policy would be more effectual. That rule precludes the view that the legislature had in mind the creation of a lien or the making of a preference when it enacted R. S. 9-156. We are referred to the case of Wheeler v. Johnson, 26 F. (2d) 455, as supporting a contrary view. That case involved the question whether a conveyance of real estate by a stockholder of a closed bank in discharge of a double liability under the state statute constituted a preference under the federal bankruptcy law, and it was held that it was not, a preference under that law. It was the view of that court that the provision of R. S. 9-156' did not create a lien but that under the bankruptcy act the double liability was entitled to priority over general creditors, and that the provision of the bankruptcy act that “debts owing to any person who by the laws of the states or the United States is entitled to priority” (11 U. S. C. A. § 104) justified that priority. When that decision was made the state statute had not been interpreted by this court, but whatever may be the rule in the application of the statute to a bankruptcy proceeding, we conclude that the statute in its ordinary meaning and application does not give a lien or preference for the double liability of stockholders. The administratrix should proceed with the sale of the land of the estate and the probate court should classify the demand arising upon the double liability in accordance with the statute of descents and distribution. It follows that the judgment decreeing that the claim of the receiver is prior in right to all unsecured claims, and that the administratrix has no legal right to transfer the property free from the preferred claim for the double liability, must be reversed and that judgment should be entered in accordance with the views herein expressed. It is so ordered.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Dawson, J.;
This was an action to recover on a policy of fire and theft insurance on a secondhand automobile.
Plaintiff claimed title to the car by virtue of an exchange of property with one Lockard, a railway employee, its former owner. The trade occurred when the statute, R. S. 8-116, 8-117, was in force which made it unlawful to buy an automobile from anybody but a regular dealer without getting a bill of sale with identifying witnesses thereto and without notifying the sheriff and nearest police officer. Plaintiff wholly ignored the provisions of this statute.
At the conclusion of plaintiff’s evidence a demurrer thereto was sustained, and he appeals.
It is first argued that the statute violates that provision of the state constitution which declares that no bill shall contain more than one subject, which shall be clearly expressed in its title. The title reads:
“An act relating to the registration of automobiles and other motor vehicles; defining the same; requiring the registration and licensing of motor vehicles, and providing a license fee for such registration; providing penalties for the violation of this act, . . .” (Laws 1921, ch. 69.)
Under such a title, a statute could properly include everything which the legislature might reasonably consider to be germane to the matter of keeping tab on the ownership of automobiles, and to hinder the facility with which stolen automobiles were theretofore transferred into pretended innocent ownership. The constitutional objection to the act cannot be sustained. (City of Wichita v. Wichita Gas Co., 126 Kan. 764, 271 Pac. 403, and citations.)
It is argued that the statute is not applicable to defeat a claim based on a loss by fire. Appellant says:
“Conceding that the above-mentioned statutes were passed for the purpose of making it difficult to traffic in stolen automobiles, we submit that there is no logical reason why this statute should be applied to a claim upon an insurance policy on an automobile against fire.”
We have repeatedly held that where the act is violated in the sale or exchange of automobiles, no insurable interest is acquired by the recipient (Morris v. Firemen’s Ins. Co., 121 Kan. 482, 247 Pac. 852; Cory v. International Indemnity Co., 124 Kan. 677, 261 Pac. 573), and we are not inclined to graft an exception to the rule laid down in these cases — an exception which would largely destroy the police regulations intended by the act, for certainly an automobile could be as effectively turned to a thief’s advantage by stealing and insuring and then burning it as by stealing and selling it. In this case the car was insured and then stolen and burned.
It is next argued that the insurance company waived the defense of no insurable interest by various acts and conduct inconsistent therewith. It was shown that after receiving notice of the loss, defendant’s state agent reprimanded its local agent for insuring the car for so large a sum as $600. Defendant also referred plaintiff’s claim for insurance to a firm of insurance adjusters. Plaintiff was put to the trouble of taking defendant’s agent on a. journey of seven miles to look at the charred remains of the burned car, and the agent asked and received from plaintiff information concerning his ownership of the car and that he did not have a bill of sale, and at the agent’s suggestion plaintiff obtained an offer of $25 for as much of the car as the fire did not destroy. Another agent of defendant told plaintiff the car was overinsured, but that he would settle plaintiff’s claim of $600 for $350. It is argued that such attitude and conduct on defendant’s part constituted an estoppel and waiver of possible defenses to plaintiff’s claim. But the defense to this action is not based on technical considerations which may be waived or which by conduct defendant may be estopped to plead. This is not a case where the policy would be valid and enforceable if certain stipulations were complied with, or similarly enforceable if such provisions were waived. Here the contract of insurance was void from its inception because its terms were breached by plaintiff as soon as made. The terms of the policy which were altogether fatal to a recovery, in part, read:
“Name of Assured: M. A. Barton. . . .
“Title and Ownership. This entire policy shall be void unless otherwise provided by agreement in writing added hereto: (a) If the interest of the assured in the subject of this insurance be other than unconditional and sole ownership.”
The consensus of judicial opinion is that the doctrine of waiver or estoppel is not applicable to a case where the defense is based on the claimant’s want of insurable interest. (Agricultural Ins. Co. v. Montague, 38 Mich. 548; Wisecup v. Insurance Co., 186 Mo. App. 310; La Font v. Home Ins. Co., 193 Mo. App. 543, 548; Bassett v. Farmers & Merchants Ins. Co., 85 Neb. 85.) The case of Bremen Farmers Mutual Ins. Co. v. Ingman, 122 Kan. 736, 253 Pac. 433, takes cognizance of this rule although it was properly held inapplicable to that case.
A final argument is made on the point that after the car had been stolen and destroyed by fire, plaintiff did obtain a properly executed and witnessed bill of sale, and that he did advise the sheriff and chief of police of the fact that he had become its owner. He invokes the rule announced in Draper v. Miller, 92 Kan. 275, 140 Pac. 890, and Minter v. Shearer, 117 Kan. 511, 232 Pac. 249, where it was held that a plaintiff who had obtained a pardon for a petty offense against a city ordinance could maintain an action for services performed by him in breach of such ordinance. The instant case is quite different. Plaintiff has not received a pardon for his offense against the state law; and in Draper v. Miller, supra, this court said that the rule should be limited as much as possible to cases falling within the scope of our own precedents. (Simmons v. Oatman, 110 Kan. 44, 48, 202 Pac. 977.) There is sound logic as well as good authority underlying the rule that a subsequently acquired interest will not support the contract of an insured who had no insurable interest when the policy was taken. (Howard v. Lancashire Ins. Co., 11 Can. S. C. 92, 94, 6 Can. L. T. 26.)
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by the buyer of lumber to recover from the manufacturing seller damages occasioned by defective performance by the seller. The district court stated findings of fact and conclusions of law, on which judgment was rendered for defendant. Plaintiff appeals.
The findings of fact and conclusions of law follow:
“Findings of Fact.
“1. The plaintiff is a resident of Ottawa, Kan., where he has a plant or factory and is engaged in the business of manufacturing and setting up road signs.
“2. The defendant has its principal office in Topeka, Kan., is engaged in the lumber business, and at all times hereinafter mentioned operated a branch lumber yard in Ottawa, Kan., which was in charge of a local manager.
“3. Sometime in December, 1925, the plaintiff ordered from the defendant, through its local manager at Ottawa, a carload of lumber. The lumber in question was to be manufactured into given widths and lengths, and the defendant knew at the time the order was given and received the purpose for which the lumber was to be used, and that exactitude in dimension was essential. In order that the lumber could be used to the best advantage, it was necessary that it should be manufactured with exactness. The order above referred to was for 40,009 pieces, divided into the number and sizes as shown by the first four items on exhibit No. 2. About March 13, 1926, the lumber was delivered at the plaintiff’s warehouse and factory in Ottawa, in bundles, tied with twine or wire, and was corded up by him in his factory. He made some examination of the outside pieces on some of the bundles, but did not discover any inaccuracy in the manner in which the lumber was manufactured. So far as the lumber itself is concerned, outside of its manu facture, it is admitted to be first class, and the plaintiff makes no complaint in regard thereto. At the time the lumber was delivered the plaintiff appears to have had a fair stock of material on hand proper for the purpose of manufacturing frames similar to the ones which he would make out of the lumber he purchased from the defendant. Some time between April and the latter part of October, 1926, some 4,500 frames were made up from the lumber purchased from the defendant. Some time in late October, 1926, the plaintiff got in touch with the defendant’s manager at Ottawa, who went to the plaintiff’s factory, where he was advised by the plaintiff that his production in the manufacture of his frames had been considerably slowed down because of the inaccuracies in the manufacture of the lumber delivered to him by the defendant. The defendant’s manager listened to the plaintiff’s complaint, watched a workman assemble a few of the frames, and advised the plaintiff that he would take the matter of the complaint 'up with his superiors, with a view to a possible adjustment. No further interview appears to have been had between the parties. After this conversation the plaintiff continued to use lumber which he had bought from the defendant. No adjustment was ever arrived at between the parties, and this action was begun on August 10, 1927. Before the action was begun probably between 6,500 and 7,000 frames had been cgnstrueted from the lumber supplied by the defendant. In January, 1928, after this action was begun, plaintiff used the balance of the lumber on hand, and made about 1,000 frames.
“4. A mechanic in the employ of the plaintiff, who appears to have been a reasonably efficient workman, put together from 145 to 165 frames a day from the lumber which was manufactured accurately. The same workman put together only about 90 of the frames with the lumber supplied by the defendant, until a simple contrivance costing about $3 was put into use, and after that the same workman put together about 125 per day. The frames thus made were not all of the exact size desired by the plaintiff, but were reasonably adapted for and used in his business, although many of them were of inferior quality because of inaccuracy in the manufacture of the lumber used. The employee was what might be called an all-round workman, worked at various jobs around the plant, and received $25 per week.
“5. The plaintiff did not receive at any time any direction from the defendant or its manager to proceed to use the lumber in question to best advantage, and there was no promise at any time made to the plaintiff on behalf of the defendant that it would pay for or adjust any damage which might be sustained by the plaintiff.
“6. Knowledge of the inaccuracy in the manufacture of the lumber in question came to the attention of the plaintiff's manager and workman at least two months before any complaint was made to the defendant thereof. While the testimony in regard to the matter is somewhat hazy, it is safe to say that the inaccuracy in manufacture was discovered after comparatively little of the lumber had been used. So far as the testimony shows, the defendant was not hindered or impeded in any way in properly preparing his defense to the plaintiff’s claim by reason of the time at which the plaintiff made his complaint of the inaccuracy in the manufacture of the lumber.
“Conclusions op Law.
“1. Tbe continued use of the lumber under the facts in this case after discovery of the inaccuracy in manufacture, constitutes an acceptance thereof in the condition in which it was received, and forecloses the right to recover damages sustained because of such inaccuracy in manufacture.
“2. The plaintiff has failed to establish the proper measure of damage, and is not entitled to recover.
“3. If the plaintiff has a right to recover under the facts in this case and his damages have been correctly ascertained, then the plaintiff should recover from the defendant $147.92 and costs.”
It will be observed the court did not find as a fact, from continued use of the lumber after discovery of inaccurate manufacture, and the circumstances, that plaintiff assented to take the lumber as it was in satisfaction of the seller’s obligation to manufacture with exactitude. The first conclusion of law forbade recovery because of application of a rule of law to stated facts, and not because of a finding that the buyer did in fact assent to release the seller from liability. For purpose of review the findings of fact embrace all the facts established by the evidence. (Shuler v. Lashhorn, 67 Kan. 694, 74 Pac. 264; Snodgrass v. Carlson, 117 Kan. 353, 354, 232 Pac. 241.)
The word “acceptance” properly relates to the subject of passing of title.
“The proper meaning of ‘acceptance’ in the law of sales is an assent to become owner of specified goods offered by the seller.” (2 Williston on Sales, § 482.)
In this instance the lumber was ordered, was manufactured, and was delivered to the buyer, who took possession of it, stored it in his warehouse, and paid the price. Of course the buyer accepted the lumber, whether or not it fulfilled the implied warranty of precision in dimensions. Title passed to the buyer, and if, before he commenced to use the lumber, or discovered its defective quality, it had been destroyed by fire, he would have been the loser. Acceptance by the buyer did not, however, indicate assent in fact to defective performance instead of full performance, and did not in law release the seller from liability for defective performance.
After the buyer accepted the lumber, what- could he do about the seller’s defective performance?
The buyer might consider the situation, and conclude he would rather make the best of it than make trouble about it, or he might otherwise so conduct himself with reference to it as to manifest assent to receive the defective performance as satisfying the seller’s obligation. Whether a buyer does this in a given case is a question of fact, and in an action by the buyer against the seller for defective performance the burden rests on the seller to establish the fact. Substantially that kind of a question was presented in the case of Johnston v. Lanter, 87 Kan. 32, 123 Pac. 719. In that case the buyer was sued for the unpaid portion of the price, and defended on the ground of breach of warranty of quality. The buyer’s assent to receive defective performance and relinquish dependence on the seller’s liability was discussed as “waiver,” and the subject of delay in complaining to the seller was considered as a factor in determining the question of waiver. A statement contained in the opinion will be referred to later.
Under conditions with which we are not now concerned, the buyer might have rescinded the sale, but he was not obliged to rescind. A buyer who has accepted delivered goods which do not fulfill the seller’s obligation may keep the goods and recover or recoup damages resulting from the seller’s defective performance. This has been the law in this state ever since the decision in the case of Field v. Kinnear, 4 Kan. 476, and the rule is the same whether the buyer knew at the time of acceptance that the performance was defective, or discovered the fact after acceptance. Privilege of the buyer to keep the goods necessarily includes privilege to devote them as best he can to the use for which they were designed. The court’s ruling was based on continued use after discovery of defect, not on delay in discovering the defect. There was no finding of fact that inspection was unreasonably delayed, and we are not concerned with that subject.
The court found the facts relating to complaint to the seller. It did not find as a fact that notice to the seller was unreasonably delayed, or state as a conclusion of law that notice was unreasonably delayed. The opinion in the case of Johnston v. Lanter, supra, contains the following statement:
“The usual rule is that on delivery the buyer must- promptly inspect the goods and determine whether they meet the requirements of the contract, and if defects are found he must promptly notify the seller.” (p. 36.)
Inspection and notice within a reasonable time are essential when the buyer refuses to accept, and are essential to rescission for breach of warranty in an executed sale when the goods must be restored to the seller as a condition of relief. In other situations, failure to inspect and give notice within a reasonable time are evidential facts bearing on the question whether the buyer assented to defective performance in satisfaction of the seller’s obligation, and may be very persuasive. Beyond this the opinion in the JohnstonLanter case speaks too positively.
The uniform sales act contains a section which reads as follows:
“Section 49. [Acceptance Does Not Bar Action for Damages.] In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fail to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor.” (2 Williston on Sales, § 484, and Appendix.)
Previous to adoption of the sales act it was held in New York and a few other states that with some exceptions acceptance imported waiver of claim for defective quality of goods furnished. The New York rule was a minority rule. In 2 Williston on Sales, § 488, it is said:
“The view here advocated, that acceptance of title does not as a matter of law indicate a waiver of claims for inferior quality of the goods, is supported by a large number of decisions in the United States, and is the unquestioned law of England.
“While merely taking title to the goods does not warrant the conclusion that the buyer has agreed to take the goods in full satisfaction of all of the seller’s obligations, the retention and use of the goods for a considerable period without any complaint warrants a strong inference either that the goods are what the contract called for, or that the buyer has agreed to accept them instead of such goods, especially if payment of the price is made without objection. Accordingly in many of the decisions to which reference has been made, stress is rightly laid on the importance of accepting under protest or giving prompt notice of defects. But in other jurisdictions this seems less insisted upon.” (pp. 1269, 1270.)
It thus appears that the statement in the opinion in the JohnstonLanter case is in accord with section 49 of the sales act, in that it makes “prompt,” that is, reasonable, notice a legal requirement, and leaves open the one question of fact, What, under the circumstances, is a reasonable time? In view of the confused state of the common law, the statement in the Johnston-Lanter opinion was in advance of the common law. This court has based no decision definitely on the proposition that when title has passed and the seller is under no risk respecting the goods, notice to the seller of defective performance within a reasonable time after the buyer knows or should know of the breach, is in law a condition precedent to recovery or recoupment of damages. No declaration can now be made either approving or disapproving such a rule. In this instance the findings of fact show that while notice was delayed the notice given was specific, was recognized and fully acted on by the seller, every purpose of notice was fulfilled, the seller suffered no detriment from the delay, and he is in no position to complain of it.
It is not conceivable that the court regarded the findings of fact as so persuasive that no inference of fact could be drawn from them except the inference that the buyer tacitly agreed to take the defective performance as full performance, and for that reason held as a matter of law that right to damages was foreclosed. In view of what has been said the findings of fact warranted judgment for plaintiff for damages properly proved. The result is the first conclusion of law is unsound.
Plaintiff’s damages consisted in the difference in value between the performance promised and the defective performance. In case of breach of implied warranty this difference is ordinarily the difference in value between the article promised and the article furnished; but consequential damages may also be recovered, such as the value of time and labor expended in reasonable effort to make use of the article furnished. (2 Williston on Sales, § 614; Isaacs v. Motor Co., 108 Kan. 17, 193 Pac. 1081.) In this instance plaintiff utilized the defective material in making frames of inferior quality, which apparently he sold without loss. By this means he minimized his damages to such an extent he was out nothing but the increased expense of making frames. That item of damage was recoverable, and the second conclusion of law is unsound.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for plaintiff on the findings of fact and the third conclusion of law.
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The opinion of the court was delivered by
Hutchison, J.:
The defendant in this case, a mutual fire insurance company, appeals from a judgment rendered against it in favor of a merchant on a fire insurance policy covering a stock of merchandise and fixtures. The defense was that the company was not liable because the application contained statements and warranties which were false and because of the failure of the plaintiff to make proof of loss. The reply alleged knowledge of the company, both as to the actual facts furnished for the application and as to the extent of the loss.
The case was tried to a jury, and at the close of the testimony the court reformed the answers to three questions contained in the application, and then submitted the remaining issues involved to the jury, with instructions covering such issues in the light of the application and policy as reformed. The jury found for the plaintiff ánd answered several special questions, and judgment was rendered for plaintiff for the face value of the policy and interest, together with costs, including an attorney fee of $750.
The policy contained what is called the “iron safe” clause, which requires the making of an inventory and keeping books showing purchases and sales, and the keeping of such inventory and books in an iron safe. In this case it was admitted they were not in the safe at the time of the fire and the inventory had not been completed. The application had been taken by one spoken of as a soliciting agent, although it is shown that he collected and remitted premiums and delivered policies for the company. He sent his applications to and transacted his insurance business with the general agent of the company at McPherson, Kan. He procured this application from the plaintiff on January 16 and sent it and the premium at once to the general agent, who acknowledged receipt of it and sent the policy, dated January 19. He remailed it to the plaintiff, who received it January 22. The fire occurred between 10 and 11 o’clock p. m. on January 21. The loss was total, including the books and incomplete inventory.
The three answers in the application which the court reformed were to questions numbered 5, 6 and 7: No. 5, that the application shows that his last inventory was dated January 1, 1926, and that he agreed to keep it and the books in an iron safe; No. 6, that none of the stock was incumbered; and No. 7, that there was no other insurance on the stock.
The court, after .hearing all'the evidence, reformed these three answers as follows:
“That it was agreed between the parties to the insurance policy that plaintiff should have one week in which to finish the inventory being taken and place .the same, together with the books kept by plaintiff, in the iron safe.
“That the application and policy should read, ‘Taken on said stock of goods, including a cash register, bought on installment plan, all of said installment not having been paid.’
“The application should read, ‘Taken subject to a one thousand dollar (11,000) policy on said goods, held by the Northwestern and Marine Fire Insurance Company.’ ”
The evidence supporting such reformation was given by the plaintiff and the local agent who wrote the application, both to the same effect — that the agent had written the answers; that plaintiff signed the application without reading it; that plaintiff showed the agent the incomplete inventory covering $3,300 of goods, besides the fixtures; that same could be completed within one week, and then it and the books would be put in the iron safe, to which the local agent agreed as being satisfactory; that the cash’ register had been purchased on the installment plan, on which the last few payments had not been made; that he had a $1,000 policy on the goods written by another company assigned to him, which he showed to the agent, but the agent thought the assignment was not good, so disregarded it; that the agent used his own judgment in omitting these details in the answers. The agent further testified he sent a letter to the general agent with the application and premium, stating fully all these particular matters.
Appellant alleges error in the admission of the evidence of the local agent, because he was not such an agent as could bind the company; and as to his sending a letter to the general agent with the application and premium fully stating such matters, appellant directs attention to the testimony of such general agent, in which he says he did not receive such letter. We cannot solve the apparent conflict as to sending and receiving such letter. The trial court saw and heard the two witnesses, and may have had strong reasons for thinking and believing one of them had a poor memory or was mistaken. Assuming that one who is only a soliciting agent may not be able to make general concessions that will bind the company, yet if he informs the general agent fully of such matters before the policy is written and the general agent, with the full knowledge of such modification of the answers and requirements in the application, writes the policy and returns it to the applicant through the local agent, the company is undoubtedly bound thereby.
“The power of insurance agents to bind their principals is to be determined by the power they are held out by the companies to the public as possessing, and not by written instruments of appointment, of which the public could have no knowledge. It is accordingly held that an insurance agent, furnished by his principal with blank applications and with policies, duly signed by the company’s officers, and who has been authorized to take risks, to issue policies by simply signing his name, to collect premiums, and to cancel policies, without consulting his principal, is empowered to waive conditions of forfeiture in such policies, and his knowledge is the knowledge of the insurer, notwithstanding any excess of his actual authority.” (14 R. C. L. 1158.)
The trial courts may in .the progress -of the trial reform an application and policy to conform to the facts stated and agreements made in connection with the writing of the application, when it is shown by a preponderance of the evidence that the general agent was fully informed of such matters before issuing the policy. (Palin v. Insurance Co., 92 Kan. 401, 140 Pac. 886; Mercantile Co. v. Insurance Co., 101 Kan. 522, 168 Pac. 323.)
Further objection was made to the introduction of evidence as to value of the stock of goods and fixtures, because some of the witnesses so testifying failed and were unable to give exact quantity and quality of the different kinds of goods at the time of the loss. It is true none were able to give either quantity or quality accurately. The plaintiff had quite an accurate knowledge by reason of having recently worked on the inventory. The banker examined the stock and fixtures carefully immediately before the fire for the purpose of making a loan on the same. The depot agent had a record of all the recent consignments of goods by name and weight. The local insurance agent had examined the incomplete inventory five days before the fire. If an inventory and book of purchases and sales had been extant, of course some of this evidence received might have been-incompetent, but from anything shown in the record it was the best evidence available.
Appellant alleges error because there was no proof of loss and because the court instructed the jury that the defendant company had in effect waived it by sending, or rather promising to send, an adjuster. In the first place, it is somewhat uncertain as to whether or not the policy on a stock of merchandise containing the iron safe clause literally requires the usual and ordinary proof of loss. It requires notice, and in addition thereto, “shall produce such books and last inventory” and certificate and other information “if required.” The evident purpose of the policy is to substitute the books and inventory for the ordinary enumeration of quantity and quality of articles lost. Suppose the books and inventory had been in the safe as intended and they should have been burned just the same without the fault of any of the parties interested; what would then have been required as proof of loss?
“The object' of the proofs is to furnish the company with the particulars of the loss and all data necessary to determine its liability and the amount thereof. Unless required by the policy, no particular form of proofs is necessary so long as they are ample to enable the company to consider its rights and liabilities. . . . The requirements of the policy as to the contents of the proofs are given a liberal and reasonable construction, and a substantial compliance therewith is all that is necessary. ... A stipulation in the policy requiring proofs of loss does not require that there shall be strict legal proof of a loss, but only that there shall be the best evidence of the facts that insured or the claimant has at that time.” (33 C. J. 17, 18.)
It is required that they be put in the safe so as to furnish the exact and perfect proof of loss. The notice of total loss and the knowledge and investigation of the company of five days earlier certainly, under these circumstances, meet the requirement in at least a general way. If the notice was not in itself sufficient, such defect can be supplied later, especially when, as in this case, the company recognized the notice and acted on it by agreeing to send its adjuster. (14 R. C. L. 1351.)
Was the act of the defendant company in promising to send its adjuster such as would excuse the plaintiff from furnishing anything further as to the loss? Appellant is insisting upon plaintiff complying literally with all of his promises, but nothing is said in its brief in exoneration of the defendant company in failing to fulfill its promise to send the adjuster. With such a definite promise what was the duty of the plaintiff — to respect it and patiently wait for his arrival, or on general principles to disregard it and send further information directly to the company? We think the court was justified in giving the instruction that the defendant after such promise cannot now complain about the proof of loss being insufficient.
Appellant insists that the court erred in overruling its demurrer to the evidence of the plaintiff, but it was argued upon the theory that the evidence as to value was incompetent and that there was no proof of loss. These points having been held against such contention, there was, in our judgment, sufficient evidence to submit the case to the jury. In the same manner, the errors assigned in the giving and refusing to give instructions have been covered and considered above in connection with the matters of reforming the application and the authority of the general agent to bind the company, and need no further comment. Likewise with the reformation of the application being upheld, the argument in favor of judgment for defendant on the special findings cannot be sustained.
Appellant complains of the order of court in the allowance of attorney fee under the statute, which allows in such case “a reasonable sum as an attorney fee” (R. S. 40-228, 40-416), whereas the court heard evidence as to traveling expenses of attorneys, and for attorneys’ fees and expenses of attorneys the court fixed and allowed the sum of $750. This is in effect the allowance of but one sum in gross as attorney fee, but intended to cover and include expenses. The statute does not contémplate the allowance of expenses as separate and distinct from the fee, but we see no objection to the witnesses and court considering the time spent and distances traveled in determining the amount of a fee that will be reasonable under such circumstances.
“The circumstances to be considered in determining the compensation to be recovered are the amount and character of the services rendered; the labor, time and trouble involved; the nature and importance of the litigation or business in which the services were rendered.” (6 C. J. 750. See Cooper v. Harvey, 77 Kan. 854, 94 Pac. 213.)
We find no reversible error in the several assignments of error argued, including the overruling of the motion for new trial.
The judgment is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This action was commenced as one in replevin by the Commercial Credit Company, assignee of a note and chattel mortgage, to recover possession of a certain truck from the defendant, Brown, appellee here. It has expanded into an action for damages on the ground of fraud between Brown, the purchaser, and Imes, the retailer of the truck. Brown recovered the value of his old truck, which he had exchanged for the truck in controversy, and the costs of certain repairs on the truck he obtained from Imes in the deal. From that judgment Imes appealed.
The necessary facts will be treated under respective specifications of error.
Appellant first contends the trial court erred in making Imes a party defendant in response to the motion of appellee Brown. The substance of-the motion was that the note and chattel mortgage attached as exhibits to plaintiff’s petition show that the truck was bought from one W. H. Imes; that the note and chattel mortgage were pretended to have been transferred to the plaintiff; that defendant Brown has a defense to the whole of said note on account of misrepresentation and fraud practiced on him by Imes, and in order that all matters involved in the transaction be adjudicated and settled Imes is a necessary party to the action.
In view of this motion Imes at least appeared to be a proper and necessary party. R. S. 60-411 reads:
“Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.”
It is not error to bring in an additional party defendant who appears to be a proper and necessary party to a complete determination of the questions involved. (Madden v. Glathart, 115 Kan. 796, 224 Pac. 910.) In fact, it is the duty of the trial court to have all appearing to be interested made parties. (Kimball et al. v. Connor et al., 3 Kan. 414, 430.)
Brown, appellee, fiied an answer and cross petition. The pertinent portions thereof are, in substance: A specific denial that plaintiff is the owner and holder in due course of the note and mortgage, and a denial of Brown’s indebtedness thereon to plaintiff in any sum; the note and mortgage were void because no consideration was given therefor; Imes is in fact and in truth the owner of each of them; defendant believes that plaintiff and Imes planned and engaged in a fraudulent scheme to cheat and defraud him (Brown) and that plaintiff attempts to escape such fraud and deception under the claim of being an innocent purchaser for value; plaintiff had knowledge the note and mortgage were obtained by fraud, and by the exercise of ordinary care could have ascertained all the facts concerning the fraud. The answer of appellee then narrated the alleged fraudulent misrepresentations concerning the truck, made by Imes, his agents and representatives.
Imes filed an answer to Brown’s cross petition alleging the execution and delivery of a contract in writing (no copy of a written contract, however, appears in the record), denied all representations other than those contained in the written agreement, denied entering into any agreement with plaintiff to cheat, wrong or defraud the defendant, Brown, alleged that Brown purchased the truck after a full and exhaustive examination of the truck, and after he had driven the same for the purpose of satisfying himself concerning the truck, and that Brown expressed himself as fully satisfied with the condition and performance thereof before he entered into the purchase agreement. Imes denied all matters not specifically admitted. Plaintiff filed its reply to the answer and its answer to the cross petition of defendant, Brown, denying generally the allegations of new matter contained therein.
Under the issues thus joined Imes no longer only appeared to be, but clearly was, a necessary party defendant for a complete determination or settlement of the questions involved. It was not only proper but necessary that he be made a party defendant. (R. S. 60-411.) In the case of Kimball et al. v. Connor et al., 3 Kan. 414, 430, it was said in substance: The spirit of the code requires that so far as possible all controversies concerning a particular subject matter shall be concluded in one proceeding, and it is made the duty of the court to have all appearing to be interested therein made parties, to the end that their rights may be adjudicated. All parties in interest being present, the power of the court to render such judgment as the facts may require, under the pleading, is plenary. The old systems of practice are by the code abolished; it furnishes facilities in the “civil action” for all that could be accomplished by the former system. A decree or a judgment or a compound of both may be rendered therein. (See, also, Madden v. Glathhart, 115 Kan. 796, 800, 224 Pac. 910; Wohlfort v. Wohlfort, 123 Kan. 142, 148, 254 Pac. 334; Thiessen v. Weber, 128 Kan. 556, 560, 278 Pac. 770; Braden v. Neal, 132 Kan. 387, 390, 295 Pac. 678.)
The evidence of plaintiff disclosed the note had been .repurchased by Imes after the commencement of the suit. Imes was therefore the real party in interest. Brown demurred to the evidence and moved the action be dismissed as to plaintiff. The demurrer was sustained and the motion to dismiss was overruled. Appellant Imes moved to be substituted for the original plaintiff insofar as the possession of the note and mortgage was concerned. Imes was a proper and necessary party defendant. Had there been any question concerning this subject, it was waived by appellant’s motion for substitution. Imes was permitted to file a- bond as required by law from plaintiff in a replevin action. The trial proceeded upon the issues joined by Imes, as the owner and holder of the note and mortgage, and the answer of the defendant, Brown, which charged fraud in the procurement of the note and mortgage and Brown’s old truck.
The gist of appellant’s complaint relating to making Imes a party defendant is that Brown was thereby enabled to plead -and prove fraud as a defense. Appellant insists the note was negotiable and the trial court erred in holding it nonnegotiable. In the view we take of the case it is immaterial whether the note was or was not negotiable. Whether the assignment to the original plaintiff was genuine or not, the fact remains the note and mortgage were returned to Imes after plaintiff commenced the action. At the time of trial Imes was the owner and legal holder thereof and the real party in interest.
Appellant next contends in a replevin suit the rights of plaintiff are fixed at" the time of commencement of the action. (Ketcham v. Commission Co., 57 Kan. 771, 48 Pac. 29; Bohart v. Buckingham, 62 Kan. 658, 64 Pac. 627; Bartlett v. Bank, 70 Kan. 126, 78 Pac. 414; Bank v. Hicklin, 100 Kan. 301, 164 Pac. 257.) True, in a replevin suit the right to bring the action is the only issue in the first instance. (Bartlett v. Bank, supra.)
“It is axiomatic that a plaintiff in a court of law, in order to maintain his suit, must have the legal title to the chose in action at the time he institutes his suit.” (47 C. J. 23.)
In the Bartlett case cited by appellant this .court said:
“We are not now deciding that the defendants’ counterclaim set out no cause of action against the plaintiff, but we do decide that it contained no defense to plaintiff’s right of recovery in this action of replevin.” (p. 131.)
In the instant case Brown’s averments of fraud, if true, vitiated the contract ab initio and therefore constituted an absolute defense to the note and mortgage in the hands of Imes, the original payee. Assuming Imes assigned the note and mortgage to plaintiff in good faith, that fact would not rob Brown of his defense of fraud against Imes when the note and mortgage at the time of trial were in the hands of Imes, as owner.
The pertinent portion of R. S. 60-401 provides:
“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 27, ...”
Section 27 of the code referred to in R. S. 60-401 is not applicable here.
In support of appellant’s contention that Imes was not a necessary party defendant, pur attention is called to the following provision contained in R. S. 60-415:
“In case of any other transfer of interest, the action may be continued in the name of the original party, or the court or judge may allow the person to whom the transfer is made to be substituted in the action.”
Assuming the above statute applies, appellant is in no position to complain. The trial court did not permit the action to abate. It sustained the demurrer to plaintiff’s evidence, overruled Brown’s motion to dismiss plaintiff’s action, and substituted Imes as the real party in interest. Furthermore, appellant himself requested the substitution. He then proceeded to file the necessary bond required by law of plaintiff in a replevin action.
Appellant cites 5 C. J. 1006 in support of-the contention that an assignment pendente lite does not render the assignee a necessary party. There are situations where that is true, but in the instant case Imes was a necessary party in order to enable the court to do justice by all parties concerned and in order to avoid multiplicity of suits.
In the early case of Campbell v. Quinton, 4 Kan. App. 317, 45 Pac. 914, the principle of adjusting in a replevin action the rights of all parties was clearly stated thus:
“In actions of replevin, where the property and the parties are before the court,'the court should as far as possible adjust all equities which arise between the parties respecting the disposition of the property, determine all matters between them in relation to or growing out of the property, and should hear all testimony respecting the ownership or right of possession thereto, so as to render such judgment as shall do justice between the parties, not only as to the ownership or right of possession at the commencement of the action, but that the property may be disposed of by the judgment of the court so as to do no injustice to either party. (City of Bath v. Miller, 53 Me. 316.)” (p. 322.) (Italics inserted.)
In the case of Bartlett v. Bank, supra, this court distinguished between the facts in that case and those in the case of Deford v. Hutchison, 45 Kan. 318, 25 Pac. 641, and said:
“We are also cited to the case of Deford v. Hutchison, 45 Kan. 318, 25 Pac. 641, 11 L. R. A. 257, as holding the doctrine that a counterclaim in the nature of the one here pleaded may be availed of by a defendant. This claim is not borne out by the facts of that case. It was there sought by the defendant in possession to defeat plaintiff’s right of recovery by showing that subsequently to the execution of the mortgage the plaintiff had agreed to purchase the mortgaged- property, and thus extinguish the debt. Of course, this claim went directly to the plaintiff’s right of recovery, for if there was no debt there was no such right.” (p. 131.)
In the instant case Brown’s claim went directly to plaintiff’s right of recovery. Brown owed plaintiff no debt, hence plaintiff had no right of recovery. Imes owned the note and mortgage. In his attempt to enforce his rights thereunder, Brown had whatever defenses the law afforded him, one of which was alleged fraud in the procurement of the note and mortgage and his old truck.
To have permitted plaintiff to continue the prosecution of this action in replevin because it appeared to be the real party in interest at the commencement of the suit, when in fact Imes was the real party in interest at the time of the trial, would clearly defeat the purpose of the code. At the time of trial Imes was the real plaintiff. In the case of Burdett v. Surdez, 94 Kan. 494, 146 Pac. 1025, this court said:
“It is not a case of a party having a cause of action entering into an illegal contract as to the manner in which it shall be instituted or maintained, but it is one where the plaintiff has no right of action and is wrongfully allowing another to use his name in order to accomplish a fraud as against the defendant. No one should be permitted to use the machinery of the law to ac complish a fraud or defeat the spirit and purpose of the code. As said in McConnell v. Hicks, 64 Kan. 828, 68 Pac. 651: ‘It is also the policy of the law to discountenance fictitious litigation and compel the prosecution of every action by the real party in interest.’ ” (p. 498.)
See, also, Brown v. International Indemnity Co., 121 Kan. 406, 407, 247 Pac. 432.
Appellant also contends it was error to dismiss the case as to plaintiff, the Commercial Credit Company. The record before us fails to disclose such dismissal. The action was not permitted to abate. The record indicates the court sustained the demurrer of defendant, Brown, to plaintiff’s evidence, overruled the motion to dismiss the action as to plaintiff, substituted defendant Imes for the original plaintiff, and that such substitution was requested by appellant.
Appellant next urges the dismissal of the action as to plaintiff and the making of Imes a party defendant placed him in an unfavorable light before the jury and was highly prejudicial. As previously stated, the action was not dismissed as to plaintiff, and Imes was properly made a party defendant. If any prejudice resulted from this procedure it did not emanate from improper rulings of the trial court, but inhered in the issues joined by the pleadings.
It is finally earnestly contended the jury was not justified under the facts in finding fraud in the sale of the truck, and that the verdict is the result of prejudice.
Nothing is called to our attention which would justify reversal on the ground of prejudice of the jury. The jury determined the weight of the evidence and the credibility of the witnesses. No useful purpose can be served by a review of the evidence. It has been carefully examined. There is competent substantial evidence to support the verdict and we are not permitted to disturb it. The judgment must therefore be affirmed. It is so ordered.
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover money. Judgment was for plaintiff. Defendant appeals.
The action was brought against the state highway commission by the board of county commissioners of Geary county. State highway No. 57 runs through Geary county. Prior to August 6, 1929, it was a part of the state highway system. In April, 1929, the state highway commission took over the state highway system under the terms of chapter 225 of the Laws of 1929.
On August 6, 1929, the board of county commissioners entered into a contract with the state highway commission whereby the county agreed to construct 2.178 miles of grading and culverts on highway 57 in Geary county. The county agreed to construct this project at a cost of not to exceed $17,000. This contract consisted of an agreement, a proposal and a schedule of unit prices. The contract was attached to the petition. It referred to the proposal which will be discussed presently. It further referred to 2.178 miles of grading and culverts, known as Project No. 57-1-K851. It then provided that the board of county commissioners would at its own expense do all the work and furnish all materials and labor necessary in accordance with the plans and specifications.
The proposal contained some provisions not important to us now and in addition the following paragraphs:
“5. The undersigned further understands and agrees that he is to furnish and provide all the necessary material, machinery, implements, tools, labor, etc. (except such materials and equipment as will be furnished by the commission), and to do and perform all the work necessary under the aforesaid conditions to complete the improvement of the aforementioned highway, in accordance with all incidental work necessary therefor, which plans and specifications it is agreed are part of this proposal; and to accept, in full compensation for the work enumerated or covered by the plans and specifications, the unit price submitted for each item of work.
“6. The undersigned further agrees that should any discrepancy occur between the unit, prices and the gross sum bid, the unit prices shall apply, unless the bid is rejected as unbalanced and irregular.
“7. The undersigned further agrees that the quantities enumerated are not guaranteed by the commission, and with such understanding he accepts the quantities as tentative and agrees to receive payment at the unit prices for work performed.”
The schedule of prices referred to was attached. It is as follows:
State Highway Commission op Kansas
Edition, 1929 County: Geary
Project No. 57 — 1—K851
SCHEDULE OF PRICES
Approximate quantity . Item with unit price written in words Amount Dollars Cts.
15,493.6 Cu. yds. earth excavation.......................................
7,047.6 Cu. yds. rock excavation........................................
6,596.9 Cu. yds. borrow.................................................
1,900 Lin. ft. cable guard fence.......................................
111.09 Cu. yds. class A concrete........................................
1.8 Cu. yds. class E concrete........................................
9,185.2 Lbs. reinf. steel.................................................
20 Lin. ft. 18" RCP pipe...........................................
20 Lin. ft. 24" RCP pipe...........................................
Cost not to exceed.................................... $17,000.00
Grand total ....................................... $17,000.00
Note: The bidder should extend all items and total the bid.
It should be noted that the number of cubic yards of earth, rock and similar items was listed but no unit prices were included. At the bottom of the schedule was the notation, “Cost not to exceed $17,000.”
It will be seen that the original contract entered into by the highway commission and the board of county commissioners was for the county to build 2.178 miles of road at a cost of not to exceed $17,000 to the highway commission.
In October, 1929, work was started under the contract. In January, 1930, the county submitted to the highway commission estimate number 1, covering work begun in October, 1929, and asking for payment up to February 1, 1930, in the amount of $11,976.82. This was in accordance with standard specifications which are a part of every highway contract. This estimate was allowed by the highway commission and 85 percent of it was paid.
On April 14, 1930, while the county was still engaged in the construction of the road under its original contract the board of county commissioners and the state highway commission entered into a supplemental contract on this project. This contract is the reason for this action and will be set out here. It is as follows:
“Contract and Agreement
“It is hereby understood and agreed by and between the State Highway Commission of Kansas, party of the first part, and Geary county, contractor, party of the second part, in the. contract, entered into on the 6th day of August, 1929, for the construction of grading and culverts on Project No. 57-1-K851, section-, shall be changed in the following particulars:
“The beginning of the project to be a point on K57 near the center of sec. 9, T. 12 S., R. 6 E. and continuing along K57 as routed in a S. E. direction to the S. W. cor. sec. 23, T. 13 S-, R. 7 E.
“The work to include grading, culverts and right of way as needed and when needed, being approximately 12.7 miles.
“And that after the said changes shall have been made which additions and changes are hereby directed to be a part of the original contract; the agreement as shown by the original contract together with the above-named additions and changes shall constitute the agreement and contract of the parties hereto, and it is further agreed that upon obtaining the consent of the surety thereon that the terms of the bond heretofore entered into between these parties shall include the additions and changes herein made, the same as though such additions and changes were in the original contract.
“This agreement made and entered into this 14th day of April, 1930.”
It will be noted that the only place where prices are mentioned in the original contract is in the schedule of unit prices and that there are no prices mentioned in the supplemental contract. The only thing the supplemental contract did was to make the project 12.7 miles long instead of 2.178 miles. The only contract price mentioned anywhere in the contract is the $17,000 mentioned in the schedule of unit prices attached to the original contract.
In December, 1930, a final estimate, which we will call estimate number 2, was submitted to the highway commission. This estimate was for an amount equal to the difference between $17,000 and the amount which had been paid on the former estimate. It was paid by the highway commission.
On March 30,1931, the board of county commissioners submitted to the highway commission an estimate on Project 57-1-K851. This was the project covered by the estimates of which we have already spoken. This estimate was as follows:
State High-way Commission of Kansas
contractor's PAYMENT ESTIMATES
Project 57 — 1—K851; section............; county, Geary.
Type of construction, grading culverts and bridges. Estimate No. 3, final. Work started October, 1929. Payment to September 1, 1930. To Geary county,.................................................................................
(Name) (Address where payment is to be mailed)
COMPLETED QUANTITIES OP ITEMS IN ORIGINAL CONTRACT
Completed quantities Item of work (enter in same order as items in original contract) Unit price Value of completed work
15,493.6 Cu. yds. earth excavation.................................j.
7,047.6 Cu. yds. rock excavation____•......................
6,596.9 Cu. yds: borrow..............•....................: ..........
111.09 Cu. yds. class A concrete.......................... ..........
1.8 Cu. yds. class E concrete....................................
9,185.2- Lbs. of reinforcing steel........................... ..........
20 Lin. ft. 18" RCP............................................
20 Lin. ft. 24" RCP.........................................
1,900 Lin. ft. cable guard..........;.................... ..........
Total ......................................... $17,000.00
APPROVED OVERRUNS COMPLETED
Force account, labor, repairs, supplies and materials............... $17,260.39
Grand total completed work...................................... 34,260.39
Due contractor (grand total 100%)............................... 34,260.39
Total previous payments to contractor............................ 17,000.00
Amount of this payment to contractor............................ 17,260.39
It should be noted that this estimate contained an item described as “Approved Overruns Completed.” Under this-head appeared an item of “Force account, labor, repairs, supplies and materials, $17,260.39.” Below this item appeared items showing the $17,000 of completed work, making a total of $34,260.39 of completed work. After the payment of $17,000 to the county was deducted an item of $17,260.39 was claimed to be due the county. Payment in accordance with this estimate was refused by the highway commission. This action followed. It will be noted that nowhere in the contract, the supple mental contract, the proposal, or the schedule of unit prices does any reference appear to a payment of anything for “force account, labor, repairs, supplies and materials.”
The petition of the county alleged the making of the original contract as has been set out here; the completion of it and payment made in accordance therewith. The petition then alleged the making of the supplemental contract, by the terms of which the work designated in the contract was extended for 12.7 miles; the completion of the work by the county and its approval by the highway commission. The petition then alleged that the county actually and necessarily expended in carrying on the work and completing the supplemental contract the sum of $17,360.38 for labor and material, for which sum it claimed to be entitled to reimbursement from the highway commission. The petition then alleged that the services performed in accordance with the supplemental contract had been ratified by the highway commission and that the commission had received and retained the benefits of the work done by the county.
The highway commission filed an answer in which it alleged the execution of the documents, the doing of the work and the making of the payments about as they have been detailed heretofore. There was a statement in the answer that under the terms of the supplemental agreement there was no further consideration passing from defendant to plaintiff but that under the terms of the contract and supplemental agreement the 12.7 miles of road was to be built by Geary county for a sum not to exceed $17,000. All of the various documents that evidenced the transaction between the parties were attached to the answer.
To this answer the plaintiff filed a general denial. A jury was waived and the issues were submitted to the court. The trial court did not make any findings of fact and conclusions of law but gave judgment to the county for the amount prayed for with interest from the date of judgment. The trial court made a written memorandum opinion in which it stated the facts about as they have been given here. The court took the view that the situation was the same as though the county had undertaken to construct the 10.5 miles of road covered in the supplemental contract for no consideration at all. The trial court held that such a contract was illegal on the part of the county and a shift and device to enable the county to do something that all parties knew it could not do — hence the high way commission could not keep the avails of the illegal act of the board of county commissioners.
The plaintiff in its brief in this court does not follow the reasoning of the trial court. Its contention here is that it could make a contract with the state highway commission for the improvement of a state road under the provisions of sections 8 and 11 of chapter 225 and section 1 of chapter 229 of the Laws of 1929, and that the above sections give authority to make a contract, but do not authorize the county to make a contract for profit and loss. The argument therefore is that such a contract must contemplate the reimbursement to the county for its actual expenses.
The contention of the defendant is that under the terms of R. S. 1933 Supp. 68-407, which is section 8 of chapter 225 of the Laws of 1929, the highway commission could enter into a contract to improve a road; that such a contract is like any other contract and should be enforced as such.
It has already been noted in this opinion that there was no consideration named in either the contract or the supplemental contract aside from the $17,000 which had been paid the county before this action was brought. Neither was the matter of the county doing the work for just what it cost mentioned in any contract. To arrive at the conclusion reached by the trial court, and contended for here by plaintiff, would require a process of reasoning somewhat similar to that used by the trial court.
The argument of plaintiff is based upon the supposition that when the state highway commission took over the state highway system, as much of the state system as lay within any one county ceased to be a highway of that county as much as though it lay beyond its borders. It is much the same contention as was made by the plaintiff in the case of State, ex rel., v. State Highway Comm., 139 Kan. 858, 33 P. 2d 324. In that case it was. contended that the use of money raised by the county by a levy on the property in the county to assist in the construction of a part of the state highway system in a county was an unconstitutional diversion of money raised by taxation and on that account the money contributed by the county and used in building a part of the state highway system should be paid back to the county by the highway commission. This court held contrary to this view and said:
“In considering this question we must remember that the roads constructed were located wholly in Barton county, and, even though they were a part of what had been designated as the state highway system, still the people of the county had more of an interest in them and received more benefit from them than those people who lived outside the county. It is worth while noting that when a road became a part of the state highway system the state then became responsible for its maintenance. This has the result of making more money available from the county levy- for the construction and maintenance of the county roads. It cannot be said, therefore, that the money expended on the state roads was not of special benefit to the taxpayers of that county.”
Once we have reached this conclusion the argument of plaintiff fails. It is idle to say that the contract as written bound the board of county commissioners to build a road for no consideration at all. The taxpayers of the county did receive a benefit from the building of this project different from that received by the state at large. Every mile of permanent road built in the state helps somewhat in the movement of the products of the farms in that vicinity to a market. The availability of federal funds for the construction of transcontinental highways has focused the attention of the public generally on roads of that type. The fact remains, however, that the real function of a road in Kansas is to enable the produce of the farms to more readily start on its journey to market. Such a purpose would be served by the construction of a road such as we have in this case. There is nothing unlawful about the board of county commissioners taking money raised by taxation and using it for such purposes.
R. S. 1938 Supp. 68-407 was enacted as a part of the chapter' which provided for the taking over of the system of highways that had already been designated as state highways. The highway commission had to be given the authority to contract generally. This was done by this section. The section went further, however, and provided as follows:
"Provided further, That the State Highway Commission may enter into contracts with any of the counties of the state to do any work in the repair, construction or maintenance of the state highway system.”
There ,is no language here from which it may be said that the county should be paid for all the “labor and material” it should expend in operating under the above provision. We have already demonstrated that the county has an interest in the construction of a highway aside from the interest the state as a whole has in it. What that provision means is that where the board of county commissioners has a project on the state system which it is anxious to improve without waiting for it to be put bn the program of the high way commission, the highway commission could make a contract With the board so that the board would have authority to go upon the state highway system and proceed to construct a-project that might be agreed upon.
This view is supported by an examination of part of the language used in R. S. 1933 Supp. 68-406. This is the section that provides for the taking over of the system of state highways by the state highway commission. Attention is called to the following provision:
“Highways designated under this act shall be state highways, and all other highways shall be either county roads or township roads as provided for elsewhere in the Kansas statutes. The state highway system thus designated shall be constructed, improved, reconstructed and maintained by the state highway commission from funds hereinafter and otherwise by law provided!’
It will be noted that the highway commission was to construct the highway from funds “hereinafter provided,” that is, money raised by a tax on gasoline and the license tax on automobiles and from funds “otherwise by law provided,” which includes money raised by counties and available for use in constructing part of the state highway system. The words “funds” otherwise by law provided includes funds raised in the various counties and deemed available by the board of county commissioners for such a purpose.
We have concluded that the contract and supplemental contract entered into between the board of county commissioners and the state highway commission was one contemplated by the statute. The highway commission paid approximately half the cost of a project and the county bore the expense of the other half. It follows that the judgment of the trial court was erroneous.
The judgment of the trial court is reversed with directions to enter judgment for the defendant.
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The opinion of the court was delivered by
Johnston, C. J.:
This is the second coming of this controversy to this court. The case was first brought in the name of C. W. Talbot, by his next friend, Mrs. C. W. Talbot, to recover shares of stock which defendant purchased from another who had procured them by fraud. A demurrer to the petition by the defendant was overruled, and from the ruling an appeal was taken. A trial which followed resulted in a verdict for plaintiff, but the court granted a new trial, and from this decision, the plaintiff having died, his executrix appealed.
These appeals were consolidated and heard together, with the result that the rulings of the district court were affirmed. (Talbot v. Wulf, 122 Kan. 1, 251 Pac. 438.) After the case was remanded to the district court, Maude B. Ash, who had been appointed executrix of the estate of C. W. Talbot, deceased, filed an amended petition to which the defendant demurred upon the grounds — first, that a cause of action was not stated therein; second, that the action was barred by the provisions of R. S. 60-306 and also by R. S. 60-307. The demurrer was sustained and the action was dismissed. Plaintiff again appeals and contends that the amended petition discloses a meritorious cause of action which was not barred by any statute of limitations.
In the original petition of an action brought by a next friend of C. W. Talbot, the case was framed in a double aspect of replevin for stolen property and rescission of a trade induced by‘fraud. She asked for the recovery of the shares of stock, or in the alternative the value of the shares which H. F. G. Wulf purchased from one who, it is alleged, procured them from Talbot by fraud on or about September 29, 1922. While it was alleged that the transaction occurred when Talbot was incompetent, it appears that he had not then been adjudged to be of unsound mind and no guardian for him had been appointed. It was held that the petition did not state a cause of action upon the theory of larceny, that the pleading was an attempt to state a cause of action for rescission and that a mere next friend had no authority to rescind an exchange of property made by one of unsound mind. (Talbot v. Wulf, supra, to which reference is made for a fuller statement of the facts pleaded.) It .appears that Talbot died on May 31, 1925, and Maude B. Ash was appointed executrix of his estate. She procured an order of revivor of the case on June 20, 1925, and on December 24, 1927, filed the amended petition asking for a rescission of the exchange of shares of stock in the Monarch Cement Company, which had been held by Talbot for a certain unit or share in the American Royalties Company, alleged to have been effected by misrepresentation and fraud. The false representations as to the value of the stock were alleged to have been made by W. V. Mills and T. W. Timms to Mrs. Talbot in the presence of C. W. Talbot, when the latter was of unsound mind and incompetent to transact any business. That Mills then took the certificate of the shares of stock from her hands and placed it before Mr. Talbot, directing him to sign the certificate, and that the latter did so without understanding what was being done, and then Mills took the certificate from Talbot and put it in his pocket over the objection of Mrs. Talbot. This averment differed from that stated in the original petition. In the former appeal it was decided that the original petition did not state a cause of action upon a theory of larceny of the stock, but that in it the plaintiff had pleaded all the elements of an executed contract, including offer, acceptance and delivery. It was further held that replevin for a recovery of the stock did not lie and that the allegations properly interpreted made it an action for a rescission, and that the next friend was without authority to rescind an exchange of property and hence no cause of action was stated.
In the amended petition the executrix pleaded for a rescission on the ground that Talbot was of unsound mind when the contract of exchange was made and that it was accomplished by fraud. As the contract was made by one who had not been adjudged incompetent and no guardian for him had been appointed, the contract at the most was only voidable. It is well settled that an executed contract made by an insane person who has not been adjudged insane and is not under guardianship, is only voidable and not void. Ætna Life Ins. Co. v. Sellers, 154 Ind. 370, 372.) In that case the rule stated was announced, and it was said:
“Until disaffirmed, the voidable executed contract in respect to the property or benefits conveyed passes the right or title as fully as an unimpeachable contract. By ratification, it becomes impervious; by disaffirmance, a nullity. And as such a contract may be ratified, whether the beneficiary was ignorant of the grantor’s infirmity or obtained the benefit by means of his knowledge of the disability, so, in either case, disaffirmance is necessary in order to reduce the contract to nothingness.”
The plaintiff did not plead a disaffirmance of the contract, and the next friend not having authority to rescind there was no one who had that authority until the executrix was appointed, and she has failed to exercise that right. Disaffirmance is a condition precedent to the right of action, and the failure to allege it in the petition renders the pleading insufficient to state a cause of action.
Apart from that consideration, the action brought by the plaintiff was barred by the statute of limitations. It must be held that the executrix knew of the fraud, if any was committed, when she procured a revivor of the action in her name on January 20,1925. The petition was not filed until December 24, 1927, more than two years after her appointment and her action in securing a revivor. When she was appointed she had the right to disaffirm and institute an action for rescission. It may be said that she was disabled to bring the action until that time, but she was required to institute it within a limited time. The statute provides that such an action must be brought within one year after the disability is removed, and as we have seen this was not done. (R. S. 60-307.) There is another limitation providing that an action for relief on the ground of fraud must be brought within two years after the discovery of the fraud. (R. S. 60-306.) The executrix is chargeable with knowledge of the fraud at least from the time she procured a revivor of the action in her name, and she did not undertake to state a cause of action until more than two years after that time and more than five years after the contract was made. In any view the action was effectually barred.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal by the state upon a question reserved, as authorized by R. S. 62-1703. The errors thus assigned by the state were the refusal of the trial court to permit the county attorney to indorse on the information the names of three witnesses of whom the state had recently acquired knowledge subsequent to the filing of the information, whose testimony was claimed to be material, and the sustaining of an objection to their testimony as outlined in the following offer:
“The state offers to show by the testimony of the three witnesses, whose names were furnished the defendant, other offenses alleged to have been committed by the defendant which are in no way connected with the offense for which the defendant is now being tried, except that the alleged offenses are similar in character and are used and offered by the state for the purpose of showing the intent of the defendant by such proof of other and similar offenses.”
A preliminary question is submitted to this court by the defendant, who moves to dismiss the appeal because the defendant has been once in jeopardy and the question reserved is moot.
The defendant with another was charged jointly in the district court of Cherokee county with the offense of blackmailing under R. S. 21-2412 and in a second count with robbery in the third degree. This is the separate trial of the defendant Hendren before a jury on his plea of not guilty.
The first count of the information charged the defendant with sending a threatening letter by mailing it at the post office at Parsons, Kan., and through the mail regularly delivering it to one Paul Goodeagle at Baxter Springs, Kan. The statute makes it an' offense where such a letter is “sent or delivered” by the defendant to another. The court will take judicial knowledge that Baxter Springs is in Cherokee county and that Parsons is in Labette county. The evidence shows that the letter was mailed by the defendants in the post office at Parsons, addressed to Paul Goodeagle at Baxter Springs, with postage prepaid, and went from Parsons by mail to the post office at Baxter Springs, and thence by rural route across the state line into Oklahoma, where Goodeagle was temp'orarily staying with his mother-in-law, and delivered to him there.
It is only a reasonable construction of the statute to hold that either the sending or the delivery of the letter will constitute an offense thereunder and that both are not necessary to be proved. It was the very evident purpose of the county attorney by alleging the letter was mailed at Parsons in Labette county, and that it was delivered at Baxter Springs in Cherokee county, to rely upon the delivery to constitute the offense, for by alleging the sending of it from Parsons in another county he is precluded from establishing an offense for sending it. It is now argued that the evidence shows it was written by the defendants at Baxter Springs and carried by them to Parsons, where they parted with it by depositing it in the post office, and that because it started on its journey at Baxter Springs it can now be considered as having been “sent” from Baxter Springs; but we think not, because, as stated above, the state is precluded from now saying it was sent from a different place from that stated in the information, viz., Parsons.
The defendant very naturally at the close of the testimony by the state, with no proof of the letter being either sent from or delivered in Cherokee county, moved the court to discharge the defendant and also discharge the jury as to the first count. There was certainly merit in the motion, for the trial court was shown by the evidence to be without jurisdiction. The charge was, under this proof, brought in the wrong county or state. The court offered to send it to Labette county under the provisions of R. S. 62-1442, but the state would not consent. The motion of the defendant was then sustained and'the defendant discharged and jury also discharged as to the first count. The state announced its intention to appeal, and reserved the questions, and later dismissed with prejudice the second count.
‘ The defendant urges that the motion to discharge defendant and jury was not for want of jurisdiction but was in effect a demurrer to the sufficiency of the evidence generally to constitute an offense. Our attention is not directed to any other substantial defect or omission, and we are constrained to believe the trial court was so impressed, especially when the court suggested that it might order the venue changed and the case transferred to Labette county. From all we can gather from the record we think it was purely a question of jurisdiction and that the trial court was right in concluding that the district court of Cherokee county was without jurisdiction.
Now we reach the preliminary question of jeopardy. Has the defendant been once in jeopardy by reason of the proceedings had in Cherokee county? He entered a plea of not guilty. The jury was sworn to try the cause. It heard the evidence of the state in support of the charge alleged in-the information. The court sustained the defendant’s motion and discharged him and the jury on the first-count. If the district court lacked jurisdiction of the offense he has not been in jeopardy. Our own statute recognizes this when it provides for a transfer of such a case any time in the trial before verdict.
“When it appears at any time before verdict or judgment that the defendant is prosecuted in a county not having jurisdiction, the court may order the venue of the indictment or information to be corrected, and direct that all the papers and proceedings be certified to the proper court of the proper county, and recognize the defendant and witnesses to appear at such court on the first day of the next term thereof, and the prosecution shall proceed in the latter court in the same manner as if it had been there commenced.” CR. S. 62-1442.)
It requires jurisdiction in order to constitute jeopardy.
“Since jurisdiction is essential to the validity of all judicial proceedings a defendant cannot be considered as put in jeopardy by a proceeding in a court that has no jurisdiction in the premises, because any judgment that might be rendered against him would be void.” (8 R. C. L. 139.)
“Thus an acquittal or a conviction by a justice of the peace, a police magistrate, or other court not having jurisdiction, of the offense is not former jeopardy, and is no bar to a subsequent trial in a court which has jurisdiction. ... An acquittal to bar another prosecution must be in the county in which the offense was committed. . . . Therefore the trial and acquittal in one county, of one charged with a criminal offense, is no bar to an indictment for the same offense in a'different county unless it appears that the offense was committed in the county in which the acquittal was had. And the same is true of an acquittal in one state of a crime against the sovereignty of another.” (16 C. J. 239-240.)
We have examined the cases cited by appellee in this connection, viz., State v. Rook, 61 Kan. 382, 59 Pac. 653; State v. Aurell, 112 Kan. 821, 212 Pac. 899; and State v. Stiff, 118 Kan. 208, 234 Pac. 700, and want of jurisdiction was not the question involved in any of them; and besides, none of them were such as would come under the provisions of our statute authorizing a transfer to the proper court. The motion of the appellee to dismiss the appeal will be overruled.
As to the questions reserved, the matter of permitting the county attorney to indorse the names of witnesses on the information during the progress of the trial is in the discretion of the court and therefore will not be held error unless there appears to be an abuse of discretion. However, as said in the opinion in the case of State v. Cook, 30 Kan. 82, 85, 1 Pac. 32, “as a general rule the court should allow the names of the witnesses of the state to be indorsed upon the information after the commencement of the trial, if it be important so to do.” It may be that the recox*d does not sufficiently set out the exact language of the testimony the court excluded to propei’ly present the question of error in the exclusion of it by the trial court, but inasmuch as we are holding that the defendant has not been in jeopardy we will venture to consider the offer from the statement of its substance and note the growing tendency of the courts to recognize as competent evidence the commission of other separate and distinct offenses of a similar kind and character for the purpose of showing the inclination, tendency and attitude of the defendant, which may tend to explain the offense charged, as was said in the rape case of State v. Stitz, 111 Kan. 275, 276, 206 Pac. 910. The same rule has been followed as to larceny, robbery, and many other offenses in this state when the jury is properly instructed as to the limited purpose of such evidence.
On general principles and on the very brief general statement before us as to the nature and character of the evidence offered, we are inclined to think this evidence might very properly have been admitted for a limited purpose under proper instructions.
The appeal of the state is sustained and the trial court is directed to order the venue changed and transfer the cause to the district court of Labette county under the provisions of R. S. 62-1442.
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal by the defendant from a judgment in a workmen’s compensation case, assigning error in overruling defendant’s demurrer to the evidence of the plaintiff, in giving certain instructions, and in overruling the motion for a new trial. The defendant stood on the demurrer and did not introduce any evidence. After the jury had been instructed it rendered a verdict for plaintiffs in the sum of $3,084.
The appellant, states the grounds of this appeal in two questions: Is the employer liable under the compensation law for injury due to lightning stroke? and, Was the deceased engaged in any employment in the course of the employer’s trade on, in or about a railway, factory, mine, or quarry at the time of the injury?
A brief statement of the facts will be necessary for the consideration of both these questions. The defendant was a cement company with its cement plant immediately north of Chanute. It owned and operated two quarries — No. 1, a short distance north of the cement plant, called the north quarry; the other located about three-quarters of a mile west, being No. 2, and called the west quarry. Jesse Mathis had worked for the defendant company for two or three years prior to his death on May 30,1926. • His wife, and daughter by her mother as her next friend, are the plaintiffs in this action.'
The company owned and operated a narrow-gauge railroad with steel rails between the west quarry and the plant and up to the north quarry, on which it used engines and cars to transport the rock from the quarries to the cement plant. There was a third steel rail, making a standard-gauge road for the moving of the steam shovels. This railroad line ran for some distance along Plummer avenue and on west to the west quarry. From Plummer avenue west to the west quarry there was no other method of travel provided. It was the direct route between the two quarries. There was a road a quarter of a mile south, but it was out of the way and never used for travel between the quarries. When the dinkey engines and trains were running the workmen frequently rode on the engine or cars.
The deceased was a shovel-crane man at one of the quarries. His regular work included, every alternate Sunday, that of boiler watchman in both quarries, which was to keep a bank of fire under the boilers and steam and plenty of water in the boilers over Sunday. This necessitated his going back and forth between the two quarries all day Sunday. He had been seen at the west quarry on Sunday, May 30, 1926. His body was found at 3:10 p. m. about a quarter of a mile east of the west quarry, lying on the ground north of the railroad track, his head toward the east. This place was about 300 feet west of Plummer avenue. His body was found by two workmen in the west quarry, who had been using drills propelled by electricity and had suddenly discontinued such work about 3 p. m. because of a very severe bolt of lightning, and had gone east on the railroad track. There were evidences of the lightning striking the deceased on the right side of the head and right shoulder, leaving marks of its course to the left heel.
The electric high line from Parsons ran along Plummer avenue, and there was a telephone line on the other side. The defendant company had a high-power line running a quarter of a mile south of the point where the body was found, and the power used in the quarries ran from that line to the quarries in a cable on the ground. The railroad ran under the high-tension electric line for quite a distance on Plummer avenué. One of these two workmen, before reaching the body, saw the lightning strike the high line on Plummer avenue about 450 feet away. It burned the insulation on the bracket. The same witness knew of the company’s high line being struck twice within about a year and a half or two years, burning out the transformers. There was testimony that electric current was frequently felt during thunderstorms by those riding on the dinkey engines on this railroad. One witness testified as follows:
“It seemed like it was a little bit more severe there than at about any other place that I ever was.”
The first question here involved has never been decided in this state. In the opinion in the case of Monson v. Battelle, 102 Kan. 208, 170 Pac. 801, it was briefly stated, by way of distinction between the facts in that case and others:
“The case is not similar to those in which a workman while engaged in his employment is injured by some unexpected extraneous agency, such, for instance, as a stroke of lightning, or the sportive act of a fellow employee, when there is no causal connection between the injury and the condition under which he was required to work.” (p. 213.)
It there refers to a stroke of lightning as an unexpected extraneous agency, but in the same sentence limits it to times when there is no causal connection between the injury and the condition under which the injured one is required to work. There is no contention in this case about the injury being an accident as required to bring the case under the provisions of the compensation law, but, as suggested above, the main feature necessary to be shown is the causal connection between the injury and the conditions under which the injured is required to work. The circumstances in the case just cited were “having to wade through foul and impure flood water which had overflowed the yards of the defendant’s car works, where he was employed; that at the time an old injury to his foot had not healed; and that infection followed, as a result of which amputation became necessary.” (p. 211.) The court held this to be an accident within the meaning of the term employed in the compensation statute, that it was one arising out of and in the course of the employment, and approved- the definition of an accident as “an unlooked-for and untoward event which is not expected or designed.”
In the case of White v. Stock Yards Co., 104 Kan. 90, 177 Pac. 522, it was held:
“An employer is liable under the workmen’s compensation act for injuries sustained by an employee from an electric shock caused by a mischievous prank of his fellow workmen, when it is shown that the perpetration of such pranks had become a custom on the employer’s premises, and consequently had become an incident to the employment.” (Syl. IT 1.)
In Thomas v. Manufacturing Co., 104 Kan. 432, 179 Pac. 372, a seventeen-year-old girl, paid by the hour, ate her noon lunch in the factory and remained there during the noon hour and was injured while riding on a truck, a custom known to the employers. It was held that the accident occurred in the course of her employment.
In Stark v. Wilson, Receiver, 114 Kan. 459, 219 Pac. 507, the-street-car conductor, without any fault of his, was stabbed while operating his car, and it was held to be an accident arising out of and in the course of his employment.
A workman in a mine, after he quit work for the day, descending the shaft for the purpose of ascending to the top, accidentally came in contact with a piece of slate. It was held to be an accident arising out of and in the course of his employment. (Sedlock v. Mining Co., 98 Kan. 680, 159 Pac. 9.)
“A workman engaged in mining coal in a strip pit quit his ordinary work at the end of the day and with other employees rode upon an engine towards the other end of the pit with a view of ascending to the surface, as was the custom in the mine, and while on his way the engine on which he was riding collided with cars which had been insecurely placed upon a switch line, and he suffered an injury. Held, that the accident arose out of and in the course of his employment and that he is entitled to compensation for the injury under the provisions of the workmen’s compensation act.” (Chance v. Coal & Mining Co., 108 Kan. 121, syl. ¶ 1, 193 Pac. 889.)
“In a case under the workmen’s compensation act it was shown that the factory where the plaintiff was employed was located sixty feet distant from another factory; that between them was maintained a runway across which the employees of both factories took material from one to the other; and that plaintiff while so engaged was accidentally thrown from the runway and injured. Held, that he was injured by an accident arising out of and in the course of his employment on, in or about the factory of the defendant.” (Gadberry v. Egg Case Filler Co., 104 Kan. 72, syl. ¶ 1, 177 Pac. 834.)
The distinction is very forcibly shown in the recent case of Sellers v. Reice Construction Co., 124 Kan. 550, 262 Pac. 19, where a workman went to remove the foreman’s automobile out of the way of an approaching truckload of heavy timbers, which might injure the automobile. The load of timbers had no relation to the construction work being done by the defendant company, in which the injured one was a laborer or helper, and of course there was no causal connection between his regular employment and the injury received in taking the automobile across a railroad track. The same distinction is drawn in Bevard v. Coal Co., 101 Kan. 207, 165 Pac. 657, where a-workman was sent from one mine to another on an errand and was injured by a train in crossing a railroad track. It was held there was no causal connection. See, also, Peavy v. Contracting Co., 112 Kan. 637, 211 Pac. 1113.
From the above cases it is quite plain that accidents similar in effect to lightning and such as are the direct result of unexpected extraneous agencies are within the rule of liability or not, depending upon the causal connection between the injury and the conditions and circumstances of the required work.
The decisions of other courts in lightning cases are by no means uniform, but there appears to be running through all of them a more or less distinct line of demarcation in the application of this causal connection, with the general result that lightning may be an accident arising out of an industrial -employment if the employment is such that lightning is a risk peculiarly incident thereto. If, in this case, the lightning had struck one of the two witnesses who were drilling in the west quarry with electric drills when a sharp stroke of lightning occurred that afternoon (probably the one that caused the fatality) there would have been left no room for discussion as to lightning being a risk peculiarly incident to their work. The instant case requires the consideration of the further matters of surroundings and peculiar conditions, and if they show a risk peculiarly incident thereto and different from other surroundings and the exposure of people generally in the same community, then it will apply to this injury as well as to those arising from use of the electric drills.
In the case of Alzina Construct. Co. v. Industrial Com., 309 Ill. 395, it was held that one wheeling cement from a car to a house twenty feet high was not thereby exposed to a risk from lightning peculiarly incident to the employment.
In Hoenig v. Industrial Commission, 159 Wis. 646, it was held that plaintiff’s husband, who was struck by lightning and killed while employed by the defendant company at work on a dam, was not killed in consequence of any hazard peculiar to his employment and differing from the hazard incident to other outdoor work during a thunderstorm.
In Griffith v. Cole Bros., 183 Ia. 415, it was held a workman on the construction of a bridge, who was struck by lightning after the work of the day was ended and while sitting in the boarding tent of the company, was not entitled to recovery.
In the case of Klawinski v. Lake Shore, etc., R. Co., 185 Mich. 643, it was held:
“A section laborer upon a railroad who had taken refuge in a barn during a storm was not entitled to compensation under the employer’s liability law for his death caused by a stroke of lightning which struck the barn; the injury or accident did not arise out of or in the course of his employment, nor was death by lightning peculiar to the industry or occupation in which he was engaged.” (Syl.)
It was held in Thier v. Widdifield, 210 Mich. 355, that there was no liability where one was killed while standing near an electric light wire in the barn when the house was struck and the light wire connected the house and barn. Likewise, in Wiggins v. Industrial Accident Board, 54 Mont. 335, there was no liability where one was working on the public highway with a steel grader, because he was not exposed to more than the normal risk to which the people of the community were generally exposed.
On the other hand, it was' held in the following cases that the injured person was subjected to a greater hazard from the act of God than ordinarily applies to the general public: Where he was excavating a pipe line with a steel shovel (United States Fidelity & Guaranty Co. v. Rochester, [Tex. Civ. App.] 281 S. W. 306); where he was working as a carpenter on a shed which had a twisted wire cable looped about its rafters near the peak and passing therefrom within a short distance of where the carpenter was working (Emmick v. Hanrahan Brick & Ice Co., 201 N. Y. Supp. 637); a number of cases where drivers of ice wagons and other trucks or teams took shelter under trees during storms (Matter of Madura v. City of New York, 238 N. Y. 214; State, ex rel. Peoples Coal & I. Co., v. District Court, 129 Minn. 502; De Luca v. Park Commissioners, 94 Conn. 7).
What,- if any, were the conditions and circumstances in this case which might show that the employment was such that lightning was a risk peculiarly incident thereto? Among others, the only way to go from one quarry to the other was on or along the railroad track. The railroad track ran from one quarry to the other, both of which quarries were connected with electric lines for drilling purposes, and the railroad ran for some distance under the high line on Plummer avenue. The workman was killed close to the railroad track at a point 300 feet from the Parsons high line on Plummer avenue and the telephone lines on the same avenue. The high line of the defendant company was a quarter of a mile south of where the deceased's body was found, and the two cables from this high line to the quarries were lying on the ground, one a quarter of a mile west of him and the other a half mile east of him. Another stroke that afternoon struck the Parsons high line less than 450 feet from where he was found. The company line had been struck at different times. During thunderstorms the shocks were felt by those riding on the dinkey engine on the railroad. One witness thought the lightning was a little bit more severe there than any other place he had ever-seen. These conditions and circumstances on a demurrer to the evidence must be taken as true, and they meet the requirements as outlined and defined in the cases above cited; and when there was no evidence to the contrary they were sufficient to sustain the verdict in favor of the plaintiffs.
The matters involved in the second question propounded by the ■appellant for consideration in this case were necessarily interwoven with the study of the first except as to the deceased being engaged in the course of his employer’s trade or business on, in, or about the quarries at the time of the injury. Pie was going from one quarry to the other. It is not shown how often it was necéssary for him to bank the fires and look after the water and steam in the boilers, but he was going from one to the other for that purpose and in the only way provided for him to go. He was not going off or away from his employer’s property; as in some of the cases cited above. His going from one quarry to the other was strictly within the rulings in the strip-mine case, above cited, and the case of the elevated runway between two factories, above cited. It is also within the holding of the case of Tierney v. Telephone Co., 114 Kan. 706, 220 Pac. 190. The evidence plainly shows the deceased was engaged in the course of his employer’s business on, in or about the 'quarries at the time of his injury. We think there was no reversible error in the trial.
The judgment is affirmed.
Buech, J., dissenting.
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The opinion of the court was delivered by
Harvey, J.:
This is an arbitration proceeding. Appellants complain of the order of the court setting aside the award on account of misbehavior of the arbitrators, and the appellee has a cross appeal from the order of the court referring the matter back to the same arbitrators for rehearing.
A fuller statement will better disclose the questions here presented. The Kansas Flour Mills Corporation operates a flour mill at Enterprise, where it has a dam across the Smoky Hill river to impound a body of water used for power purposes. Owners of farm land in the river bottom above the dam complained that the dam caused the river to overflow and flood their lands to the damage of their crops. In 1918 a written agreement was entered into between the owners of such farm lands, spoken of in such agreement as grantors, and the Kansas Flour Mills Corporation, spoken of as grantee, which written agreement, so far as here pertinent, recited in substance that it had been shown that in certain cases of high water the dam had caused the water to overflow the lands of the grantors to their damage; that the grantors believed that the dam, if maintained in its then condition, would in the future cause them damage; that the parties were desirous of arranging an amicable settlement of controversies then existing and to make such arrangement as would obviate litigation concerning the operation of the dam in the future. By this agreement the grantors released the grantee from all claims then existing and granted to the grantee the right of maintaining and operating the dam at its then height as an easement appurtenant to the lands of the grantors respectively, upon the condition that until the grantee made certain alterations in the dam it would pay promptly to the grantors all damages to crops which may be caused by reason of the operation or maintenance of the dam. The agreement provided that if any of the grantors thought he had suffered damage by reason of the maintenance and operation of the dam he should notify the grantee of his claim and its nature and the items thereof, in writing, and that the grantee, if it did not pay the claim, should, within thirty days, notify the grantor that it disputed such claim and desired to arbitrate the question of liability thereon. The agreement further provided that the controversy should be submitted to arbitrators, each of the parties selecting one and those two a third, and that the same should constitute the submission and bond of arbitration as provided by the laws of the state, and the submission to be made a rule of court. (R. S. 6-101.)
In 1927 the respective landowners claimed damages to their crops by reason of high water caused by the dam. The Kansas Flour Mills Corporation, in writing, disputed the claims and selected an arbitrator, the claimants selected an arbitrator, and the two so chosen selected a third, and hearings were had before the arbitrators in December, 1927. Thereafter the arbitrators found in favor of the respective claimants for damages and filed their award in the district court. The claimants filed a motion for judgment on the findings of the arbitrators, and the Kansas Flour Mills Corporation filed a motion to set aside the award because of misbehavior of the arbitrators. (R. S. 6-111.) These motions were heard by the court, evidence was taken, the court denied the motion of the claimants for judgment on the findings of the arbitrators and sustained the motion of the Kansas Flour Mills Corporation to set aside the award, and in doing so found that there had been misbehavior of the arbitrators. These rulings are complained of by the claimants, who are appellants here. . Thereafter the court made an order re ferring the matter to the same arbitrators for further hearing. The Kansas Flour Mills Corporation objected to this order, and moved the court to set it aside and to refer it to other arbitrators, which objections and motion were by the court overruled, and from these rulings the Kansas Flour Mills Corporation has filed a cross appeal.
Appellants contend that the court was not justified in finding misbehavior of the arbitrators and setting aside the award. There was evidence before the court on the hearing of those matters. The ruling of the court was on questions of fact, as disclosed by the evidence, and is binding on this court if there was evidence to support it. It appears that there was a formal hearing before the arbitrators in which both parties were represented by counsel, there was a stenographer to take the testimony, and witnesses were called and examined as in a court. After these hearings were concluded, and without the knowledge of the Kansas Flour Mills Corporation or its counsel, one of the claimants took before the arbitrators a certain map which differed from any map which had been offered in evidence, which he explained to them, and which it develops was used and relied upon materially by the arbitrators in reaching their award. It was further disclosed that the arbitrators, or some of them, consulted an engineer at Manhattan and another at Kansas City without the knowledge of the Kansas Flour Mills Corporation or its counsel, who had no opportunity to cross-examine such engineers or the person producing the additional map, or to furnish any evidence in rebuttal thereto, if such were needed. We think these matters constituted sufficient evidence to sustain the finding of the trial court of misbehavior. (5 C. J. 186, 189, 190; 2 R. C. L. 393; 2 A. & E. Enc. of L. 2d ed. 646; Berizzi Co. v. Krausz, 239 N. Y. 315; Rand, Johnson & Co. v. Peel, 74 Miss. 305; Jackson v. Roane, 90 Ga. 669; Jessup & Moore Paper Co. v. A. S. Reed & Bro. Co., 87 Atl. 1011 [Del.]. As bearing on the question see, also, Thompson v. Barber, 87 Kan. 692, 696, 125 Pac. 33; Contracting Co. v. Railway Co., 102 Kan. 799, 172 Pac. 527.)
Appellants contend that counsel for appellee had consented at the •close of the formal hearing that the arbitrators might receive additional evidence, but the court found there was no consent applying to matters above referred to, and that finding is sustained by the •evidence. The result is that the order of the court in setting aside the award of the arbitrators must stand.
Turning now to the matter raised by the cross appeal, we think it was error for'the court to refer the matter to the same arbitrators for a rehearing. The arbitrators, or a majority of them, having found for claimants, the Kansas Flour Mills Corporation, and its counsel having raised the question of their misbehavior in connection with the hearing, on which question testimony had been taken, arguments made and briefs filed, it could hardly be expected that the rehearing could be undertaken and conducted before the same arbitrators without some feeling or prejudice which would prevent, or tend to prevent, a fair and impartial consideration of the matter.
The order of the court setting aside the report of the arbitrators is affirmed, and the order of the court rereferring the matter to the same arbitrators for rehearing is set aside for such further proceedings as may be proper.
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The opinion of the court was delivered by
Clark, J. :
This action wras brought by the plaintiff in error as plaintiff below to recover damages from the defendant in error for the breach of a certain contract alleged to have been entered into between them. The court sustained a demurrer to the plaintiff’s evidence, and the only question necessary to consider in this case is as to whether the court erred in such ruling.
The defendant in error was a corporation duly organized under the laws of Minnesota, with its principal office or place of business in the city of Minneapolis, in said state, and was duly authorized to and did collect funds from its members, in stated installments, in proportion to the amount of stock held by them respectively, which funds were in turn loaned by it on first-mortgage real-estate security to members of the association applying therefor. Under its rules, such loans were not usually made except to applicants who had been members of the association for a period of at least two years. Its business was necessarily carried on through agents, and L. A. Starbird and F. A. Bryan were general agents for the state of Kansas, and had authority to appoint sub-agents to solicit applications for membership and subscriptions to its stock. The plaintiff in error introduced evidence tending to show that he was importuned by Starbird and one of his sub-agents to become a member of the association, and to subscribe for .shares of stock therein, which he emphatically declined to do, stating that he had no desire to make an investment of that character ; that at that time he was desirous of borrowing some money with which to improve certain real estate which he owned in the city of Topeka, and that Starbird represented to him that the defendant would make him such a loan, upon application therefor,* should the security offered be deemed adequate, and would waive the requirements of its rules with reference to the loaning of its funds only to such applicants as had been members for a period of at least two years, but that it would be necessary for him to make application for membership, subscribe for 200 shares of stock and pay a membership fee of $200 before the association could consider his application for a loan, this being necessary to be done “in order that they might have a basis of action, and also as evidence of good faith on his part”; that if he would comply with these requirements, the association would promptly advise him that the agreement entered into between the plaintiff and the agent with reference to the making of the loan would be carried out on the part of the association, or it would as promptly return the amount of the membership fee so paid him, and no certificate of stock would be issued on his subscription; that, acting upon such representations and being induced solely thereby, the plaintiff signed a written application for membership and subscribed for 200 shares of stock therein, and delivered the same, together with the 'membership fee of $200, to such agent, who was duly authorized to receive them for the defendant, to be forwarded to the association; that upon the receipt by the defendant of said application and subscription, the defendant proceeded to issue a certificate for 200 shares of -stock in the association, which it forwarded to Mr. Hagan, without advising him as to whether or not it was prepared to make him a loan upon application therefor, upon adequate security; that this certificate was immediately returned by the plaintiff to the association, and a demand made for a return of the $200 paid by him, and that the defendant had failed to comply with such demand. The evidence tended to show that it was mutually understood by Starbird and the plaintiff that no formal application for a loan would be necessary until after the defendant should notify Hagan that it would waive the requirements of its rules above mentioned in his case, such notice to be given immediately upon the receipt of the application for membership, or the membership fee should be promptly returned to him. No such notice was in fact given to plaintiff, nor was the money returned in compliance with this agreement. Hagan parted with his money under certain conditions, which,-if not complied with by the defendant, entitled him to recover it back.
While plaintiff’s cause of action, as disclosed by the evidence, is not very artistically stated in his pleading, still it must be remembered that the action was commenced before a justice of the peace, and, under the very liberal construction given by our supreme court to pleadings in justices’ courts, we think the evidence in this case would warrant a verdict in favor of the plaintiff under the allegations of his bill of particulars, and for this reason the court erred in sustaining the demurrer to the evidence. (Steelsmith v. U. P. Rly. Co., 1 Kan. App. 10.)
The judgment will therefore be reversed, and the cause remanded with directions to sustain the motion for a new trial.
All the Judges concurring.
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The opinion of the court was delivered by
Oole, J. :
In July, 1889, G. F. Hubner was a resident of Stafford county, Kansas, and the owner of certain personal property, to wit: 1 bay mare, 1 sorrel horse, 1 farm wagon, 1 set of double harness. Said Hubner was a married man, and all of the property above described was exempt to. him as the head of the family. On the 9th of July, 1889, the wife of said Hubner was declared insane by proper proceedings in the probate court of Stafford county, Kansas. On the 12th day of July, 1889, Hubner and wife executed a note and chattel mortgage to the State Bank of St. John for $90, said mortgage being given upon the property above described, and being duly filed for record July 15,1889. After the above dates, and prior to December 14, 1889, Hubner sold all of said property to the defendants in error, who paid him the full consideration and fair value therefor. On December 14,1889, B. F. Harmon, a constable of Stafford county, received from the State Bank of St. John a certified copy of the chattel mortgage above referred to, and on said day demanded the property therein described and above set forth from defendants in error, said demand being made in Rice county, where said property had been taken by Hubner and sold to defendants in error. On the same day defendants in error brought this action in replevin to recover said property, which was returned to plaintiffs in error within 24 hours, they having executed a redelivery bond. At the time B. F. Harmon obtained possession of the property, the conditions of the mortgage to the State Bank of St. John had been broken, and said bank and the officer representing it would have been entitled to the possession of said property, if the mortgage was a valid lien thereon. This cause was tried by the court upon an agreed statement of facts, which was, in substance, like the one given above, and a judgment was rendered in favor of the defendants in error, plaintiffs below, from which judgment the bank and Harmon bring the case here for review.
The first specification of error is that the petition does not state facts sufficient to constitute a cause of action against plaintiffs in error, and this question is raised in this court for the first time. No objection, either by demurrer or otherwise, was taken in the court below. We do not consider that, under the pleadings in this case, and the fact that the case was tried by the court upon an agreed statement of facts, plaintiffs in error are now in a position to raise this question. The objection now raised is to the fprm of the petition alone, and all the subsequent pleadings and the action of the parties in the trial of the cause were upon the theory that the petition was sufficient. Undoubtedly, after the submission of the case to the court upon the agreed statement of facts, an amendment would have been permitted if the attention of the trial court had been directed to the alleged defect, and it cannot be claimed that the defendant would have been in any manner prejudiced by such amendment. Such being the case, we feel that this court should treat the record as if such amendment was in fact made, and that the judgment ought not to be disturbed for this alleged error. (Mo. Valley Rld. Co. v. Caldwell, 8 Kan. 244; Pape v. Capitol Bank, 20 id, 440.)
The next specification of error is the overruling of the demurrer filed by the State Bank of St. John to the second count of the reply filed by the defendants in error. It appears from the record that the State Bank of St. John filed its separate answer, alleging the execution and delivery to it of a note and chattel mortgage by Hubner and wife, which mortgage covered the property in dispute. The reply of defendants in error consisted, first, of a general denial, and, second, of an allegation that Hubner’s wife had not given, and was not capable of giving, consent to the execution and delivery of the mortgage in question, for the reason that, at the time of such execution and delivery, she had been adjudged, and was, insane, and that the same was executed and delivered without her knowledge or consent, and that the property described in said mortgage was, by law, exempt, and not subject to alienation except by joint consent of husband and wife. The objection raised to the second count of the reply was, that as this virtually admitted the execution and delivery of the note and mortgage, the facts stated did not constitute any defense. This position is not well taken. It is true our statute provides that the allegation of the execution of a written instrument, unless the same is denied under oath, is taken as true, and it also is true that our supreme court has held in a number of cases that a failure to verify such denial not only admits the execution but the legal effect of such instrument; but it does not follow from this, nor has any case been cited which so holds, that a failure to verify a denial of the execution of a written instrument admits everything necessary to constitute a valid execution, nor is there a presumption of sanity, of power and right to execute, where the pleading which admits the execution of the instrument sets forth a specific reason why the execution was invalid. The defense, as stated in the reply, was in the nature of a confession and avoidance, and the demurrer thereto was properly overruled, and evidence admitted thereunder.
This brings us to the main proposition in this case, which is: Was the mortgage to the State Bank of St. John valid under the agreed statement of facts in this case? If it was, then the bank was entitled to the possession of the property in question. Paragraph 3914, General Statutes of 1889, provides :
“It shall be unlawful for either husband or wife (where that relation exists) to create any lien, by chattel mortgage or otherwise, upon any personal property owned by either or both of them and now exempt by law to resident heads of families from seizure and sale upon any attachment, execution or other process issued from any court in this state, without the joint consent of both husband and wife ; and from and after the time when this act shall take effect, no such mortgage of personal property shall be valid unless executed by both husband and wife.”
This statute took effect May 25, 1889. The consent referred to in the statute is not a physical consent, but such intelligent, intellectual consent as would constitute a legal consent thereto. It has been held that where money is paid to one by mistake, and the person who receives the same, knowing that he has received that to which he is not entitled, converts the same to his own use with intent to defraud the owner, he is guilty of larceny; there not being, in such a case, the courts say, the intelligent consent exercised in the payment of the money necessary to constitute a legal consent. If such is the rifle where one is sane ■and presumed to act intelligently, how much more ought it to apply where the person performing an act has been adjudged insane. Now, in this case, the statute plainly says that a chattel mortgage upon property, such as is in dispute in this case, shall not be valid unless given by the joint consent of both husband and wife. The wife of Iiubner had been declared insane by the probate court three days prior to the execution of the mortgage in question, of which action the bank must be presumed to have had knowledge, it having been rendered by the proper tribunal. This brings the case within the principle laid down in Loan Co. v. Spitler, 54 Kan. 560. In that case, Allen, J., in delivering the opinion of the court, says:
“ The facts of this case are essentially different from those in either of the cases heretofore decided by this court cited in the brief of counsel for plaintiff in error. In this case, it appears not only that the plaintiff was insane at the time of making the deeds to McNaughton, but that he had been duly adjudged insane by the proper court, and a guardian of his person and estate appointed. These facts appear of record in the office of the probate judge. Benjamin Spitler had been confined in the insane asylum, but was then out on a temporary leave of absence. There is nothing in the findings indicating that McNaughton acted in good faith, or in ignorance of Spitler’s mental condition. Under these circumstances, the court rightly held that the deeds to McNaughton we-re void.”
See, also, 1 Pars. on Contr. 383; Gribben v. Maxwell, 34 Kan. 8. It is true this case presents the anomaly of a person being able to convey full title to the property in question but being unable to create a valid lien thereon ; but that is a proposition addressed to the legislature, and not to the judicial branch of our state government. It is urged by counsel for plaintiffs in error that this mortgage should be upheld for the reason that a portion of the proceeds of the loan which the mortgage was given to secure were used to purchase necessaries for Hubner’s wife, and our attention is directed to a number of cases where contracts entered into by an insane person for the necessaries of life have been upheld; but the difficulty is that this was not a contract of that character, and it is impossible to tell from the agreed statement of facts how much, or how little, was used for that purpose. This was a loan made by the bank to G. F. Hubner only, and was not made for the purpose of procuring necessaries for an insane person.
The next specification of error is that no' demand was made in this case prior to the bringing of this action. Under the pleadings and the agreed state ment of facts no demand was necessary! The plaintiffs in error did not base their defense in the trial court on the theory that they would have surrendered the property on demand. Their defense was based upon a claim wholly inconsistent with the rights and ownership of defendants in error, namely, a specific ownership in the bank. Plaving based their defense on title in themselves and not on the alleged consent of defendants in error, they cannot now insist upon a want of demand. (Raper v. Harrison, 37 Kan. 243; Farmers’ Bank v. Bank of Glen Elder, 46 id. 376.)
It is further contended that the defendants in error are in no position to attack the mortgage of the bank. This position is not correct. Whenever a contest arises between two persons as to which has a prior lien upon property of a third person, either party may show any fact that will defeat the other’s lien. (German Ins. Co. v. Nichols, 41 Kan. 133.)
The judgment of the district court will be affirmed.
All the Judges concurring.
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T he opinion of the court was delivered by
Johnson, P. J. :
J. C. Briggs commenced this action in. the district court of Ford county, Kansas, against Tlie Atchison, Topeka & Santa Fe Railroad Company, to recover damages on account of a fire set out by the railroad company in the operation of its line of railroad through Ford county, on the 5th day of April, 1888, in which he alleges that the railroad company, through its agents and employees, carelessly and negligently set fire to and burned on his land stubble and growing grass, and thereby damaged his land and grass in the sum of $300, and alleges that the fire was set out from the defective smoke-stack in a defective engine, the property of the railroad company. The case was tried before the court and a jury, and resulted in a verdict and judgment against the railroad company. It filed a motion for a new trial, which was overruled, and it brings the case here for review.
The first error complained of is, that the court erred in permitting the introduction of certain testimony over the objections and exceptions of the defendant below. The plaintiff had one Elliott sworn and examined as a witness on his behalf. This witness was examined at great length in the direct and cross-examination, and re-examined several .times, and recross-examined several times; and in the course of his examination, cross-examination, redirect and recross-examination it appears that he had had some trouble with the defendant below, railroad company, growing out of damages on account of fires burning over his premises. For the purpose of affecting his credibility as a witness and showing his prejudice and hostility to the railroad company, he was asked on the cross-examination the following question : “You ate not friendly to the railroad company ? ’ ’ And the witness, in a kind of evasive manner, said: “Well, I don’t expect to upset any trains for them.” And then, on redirect examination, the plaintiff below was permitted, over the objection of defendant below, to examine 'the witness as follows, and the witness to answer the following questions :
“Ques. State why you were dissatisfied with the settlement with the railroad company.” (This question was objected to ; objection overruled by the court, and witness answered) —Witness : “ I would like to ask your honor a question ; I do n’t wish before this audience to be placed in a false light, and for my own individual reputation at least I would like to make an answer to the question as to the claim I made, which I believe to be strictly honest.”
This statement was objected to and asked to be stricken out. The objection was overruled, and the ruling of the court excepted to. By the witness: “ My hostility toward the railroad company is simply for the reason that they have paid me very little over half of an honest claim that I put in ; that is the reason of my hostility.” Motion of defendant below to strike out this statement was overruled, and the ruling excepted to ; and the court further permitted the plaintiff below to put the following questions to the witness, and the witness to answer the same, as follows :
“Ques. About how many times has the Santa Fe railroad company failed to pay you anything for fires that have been on your place?” (Objected to; incompetent, irrelevant, and immaterial, and not in issue in this case; overruled; excepted to.) “Ans. They have paid me once, probably, without litigation ; may be twice ; I do n’t recollect of more than twice ; I do n’t recollect more than that; may have been possibly more than once ; may be twice.”
“ Q. You always got damage when you did sue them?” (Objected to; incompetent, irrelevant, and immaterial; overruled; excepted to.) “A. I have, and I have compromised after suit was commenced. Well, I clo n’t know that I have ever got — that suit has not been carried clear through ; and I think compromise has been had after suit was commenced.”
“ Q,. They never came up and offered to pay you for damages they did to you?” (Objected to; incompetent, irrelevant, and immaterial, aiid not in issue in this case. Objection was overruled, and ruling excepted to.) “A. They have come ; .they have at sometimes come to see me before suit was commenced, but we did n’t agree; I did not take what they offered me.”
The whole of the foregoing evidence was incompetent and not relevant to the matters at issue. The court should have excluded all evidence of collateral facts, or those which were incapable of affording any reasonable presumption or inference as to the principal facts or matters of dispute. This evidence was calculated to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them. The issue in the case on trial had no relation to the matters in dispute between the witness Elliott and the railroad company, and a detail of his grievances before the jury was prejudicial to the defendant below, and tended to present a collateral issue as between the witness and the railroad company, which the jury should not have heard.
The plaintiff below called one Stubbs as a witness on his behalf, and examined him,in relation to the duties of the master mechanic and other employees of the defendant below at the shops and roundhouse at Dodge City in 1886, and his knowledge of the manner in which inspections of engines were made by employees in the yards and roundhouses in 1886. This evidence was all given over the objections of the defendant below. We think this evidence was too remote, and was not competent to prove the condition of the engine that is claimed to have set out the fire in April, 1888, and should have been excluded, as it did not prove any fact in dispute in this case, nor tend to prove any fact from which the jury could infer or presume negligence of the railroad company in caring for its engines and machinery in 1888.
The plaintiff in error complains of the instructions of the court to the jury. We do not deem it necessary to go over and consider all the instructions complained of by the plaintiff, as the judgment will have to be reversed for errors already pointed out, and it is not probable that the same instructions will again be given to the jury. The court gave the following instruction to the jury:
“You are instructed that the measure of damages in this case is to be determined by finding : First, What was the quantity in value of the crop of hay grown on the burned land in the year 1888, at the nearest market, at the time the same was harvested and ready for sale; second, what the quantity and value of said crop would have been if the fire had not occurred; third, how much of such difference, if any there be, was the direct result of the fire. Any deterioration of said crop occasioned by any other circumstance or condition cannot be considered.”
We do not think that this instruction contains the correct rule for the measurement of damages in a case like this. The instructions of the court to the jury should be framed so as to present clearly to the jury the issues stated by the pleadings, and correspond with the evidence given under the issues. The plaintiff below, after the preliminary allegation, states :
“ Said defendant, in April, 1888, through its agents and employees, carelessly and negligently set out fire to and burned on the land of the plaintiff growing grass, and thereby damaged plaintiff’s land and grass in the sum of $300.”
And then alleges that the fire was set out by reason of a defective smoke-stack in a defective engine. The plaintiff below, in stating his cause of action in his petition, seems to base his damages on the theory that the injury was to the land itself, and this is the theory upon which he seemed to offer his evidence. Plaintiff below called one James Crawford as a witness on his behalf, for the sole purpose of proving his damages¿ and, after showing his occupation as a farmer and laying the foundation for introducing the evidence, put the following questions to the witness :
“State, if you know, from experience or observation or any other source, the damage which is caused to the productive qualities of land with growing hay crop by fire late in the fall or early spring.”
After the witness answered that he did, counsel for plaintiff propounded the following question to the witness :
“You may state, Mr. Crawford, to the jury, if you know what the damage would be to the producing elements of the soil if the land is burned over, say in April of any given year for that year ; I mean by that, how much would the crop be diminished per acre by burning the grass during the month of April.”
The witness answered that it would be from 30 to 50 per cent. Plaintiff below also called Mr. Giles as a witness to prove the damages, and after showing that the witness was a farmer and had experience in the way of fire burning over the land, propounded to him the following question : “Do you know what the damage is to the yield, the 'producing elements of the soil, to have a fire-pass over it in the early spring?” The witness answered that he did, and, in answer to questions gave the jury his judgment as to the damage to the producing qualities of the soil. Other witnesses for plaintiff below were examined also as to the injury of the producing qualities of the soil after it had been burned over in the early spring.
We think that, if the plaintiff below had based his action on the damages to the stubble and grass alone, the damages should have been confined to the injury done at the time of the fire. The rule laid down by the court in the instructions was dependent upon too many contingencies, and was too uncertain and remote. The value of personal property destroyed by fire should be determined as of the time and place of the destruction. Where- the injury done by setting out fire in the operation of a railroad consists in an injury to the land, itself, the measure of damages is the difference in the market value of the land just before and just after the fire. The instruction of the court does not state the correct rule for the determination of damages to either personal or real estate.
The judgment of the district court is reversed.
. All the Judges concurring.
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The opinion of the court was delivered by
Gilkeson, P. J. :
The record in this case discloses that "no general verdict was rendered by the jury; that upon the filing of their special findings of fact they were discharged. Nor were all the issues in the case submitted to them by the special findings, nor in the instructions of the court. The special questions were submitted to the jury by the court upon its own motion, and are as follows :
“ (1) Has the defendant Lewis A. Bell paid the indebtedness to the plaintiff, represented by the $2,500 note, executed May 20, 1890, in full? A. No.
“(2) If you answer the above question in the affirmative, state when and in what manner the same was paid. (Not answered.)
“(3) If you answer the first question in the negative, how much, if anything, was paid? A. $1,500.
“ (4) Was the note sued on in this action given in renewal and a part of the debt represented by the $2,500 note? A. Yes.
“ (5) Was the note sued on given for a balance due from Bell to the plaintiff after the payment of the $2,500? A. No, it was given for a balance of $2,500 and overdraft.
"(6) Was the deed in suit given to. secure the payment of a then-existing debt? If yes, what was the amount of the debt which it was given to secure? A. Amount of $2,400.
"(7) At the time’ the note in suit was executed, was it agreed by the defendant Bell and the bank that the deed before executed should stand to secure the debt represented by the note in suit? A. Yes.”
Section 266 of the civil code of procedure provides :
"Issues of law musí be tried by the court, unless referred. Issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a- jury trial is waived or a reference be ordered, as hereinafter provided.”
Section 286 provides :
" In all cases, the jury shall render a general verdict, and the court shall in any case, at the request of the parties thereto, or either of them, in addition to-the general verdict, direct the jury to find upon particular questions of fact,” etc.
In the trial of this case, as we have said, neither a jury nor a general verdict was waived. No general verdict was submitted by the court to or returned by the jury. They found only upon particular questions of fact, submitted by the court upon its own motion, evidently upon the theory that by these special findings the general verdict was dispensed with. We think the language of the code is too imperative to admit of this. . The rule is laid down by our supreme court in Henrie v. Buck, 39 Kan. 382, where, passing upon the identical question and construing the section of the code we have given, Mr. Justice Johnston says:
"Another matter only needs attention, and that is the refusal of the court to permit the return of a gen eral verdict by the jury. We see no reason to except this case from the statutory rule, which provides that in any case which may be and is tried by a jury a general verdict shall be rendered.”
The litigant is unquestionably entitled to the benefit the law confers when it grants him the right to a trial by jury. The court has no power to.deprive him of it, and when this court did virtually deprive him of; a general verdict it substantially deprived him of that right which the statute expressly gave. And this court has followed the rule laid down by the supreme court in Henrie v. Buck, supra, and in Taft v. Baker, (42 Pac. Rep. 502). It is the duty of the court to submit special questions upon request of either party, but it cannot properly dispense with a general verdict.
It is admitted that the deed executed by the plaintiff's in error was intended as a mortgage, and given to secure the note dated on the-day of May, A. D. 18 — , for $2,500, and the jury found that the note sued upon, of date August 18, 1890, for the sum of $1,157.34, was made up of a balance due on the original note of $2,500 and of certain overdrafts, and that it was agreed between the bank and Bell, when this last note was given, that this deed should stand to secure the debt represented by said note. Upon these findings, the trial court rendered judgment in favor of the plaintiff bank for the amount it claimed to be due thereon, and decreed that the judgment was a lien upon the real estate therein described for the full amount thereof. In this the court erred. The attempted extension of the deed as a security for the new debt was not in writing. Land cannot be conveyed by parol, nor can any person divest himself of any title thereto, or interest therein, by the mere use of oral declarations. Section 8 of the act concerning conveyances, sections 5 and 6 of the act relating to frauds and perjuries (Gen. Stat. 1889, ¶" ¶ 3165, 3166) and section 1 of the act concerning trusts and powers (Gen. Stat. 1889, ¶7159) make void every parol agreement which attempts to create an interest in lands, with some exceptions, and this extension does not fall within the excepted clauses. The agreement in this respect, therefore, had no validity, and the deed never became a security for any of the subsequent indebtedness, and could only be a lien upon the land for the balance due (if any) upon the note of $2,500.
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 Judges concurring.
Not yet reported.
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The opinion of the court was delivered by
Gar ver, J. :
Under date of September 1,1887, Mary Ashlock, for herself and as guardian of certain heirs of D. C. Ashlock, deceased, executed a negotiable note and mortgage in favor of the Guaranty Investment Company for the sum of $300, due in five years thereafter, with interest at the rate of 7 per cent, per annum, to be paid semiannually, both principal and interest being made payable at the Exchange National Bank, Atchison, Kan. On December 20, 1887, the note and mortgage were transferred to Austin H. Bronson, who commenced this action, on November 21, 1892, in the district court of Graham county, against the makers of the note and others for the recovery of the principal and unpaid interest of the note and for the foreclosure of the mortgage. The makers of the note and mortgage were served by publication, and made default. W. R. Hill, one of the defendants, appeared, and answered the plaintiff’s petition by alleging that he was the owner in fee simple of the land upon which the mortgage was sought to be foreclosed, having derived his title thereto by conveyance executed by Mary Ash-lock in February, 1889 ; that about February 4, 1889, “ said defendant Mary Ashlock, widow of D; C. Ash-lock, deceased, and guardian of the said minor heirs of the said D. C. Ashlock, deceased, paid to the Guaranty Investment Company the amount in full of said note, and the interest due thereon ; and said Guaranty Investment- Company was duly authorized in fact and in law to receive the same, and said payment was then and there received in full settlement of said note and mortgage.” The plaintiff filed a reply to the answer of Hill, consisting of a general denial, unverified. ■ The trial was had by a court and a jury, resulting in a verdict in favor of Hill, upon the issues joined between him and the plaintiff, on which judgment was rendered against the plaintiff for costs.
The evidence tends to show that early in 1889 Hill purchased the land mortgaged from Mrs. Ashlock, and received from her a deed of conveyance purporting to convey to him the fee-simple title to the premises, free and clear from all incumbrances ; that Mrs. Ash-lock provided for the discharge of the mortgage by having Hill remit $300 of the purchase-money for the payment thereof ; that Hill obtained a draft for $300 from a bank in Hill City and sent the same to one of the officers of the Guaranty Investment Company at Atchison, where said company had its main offices. There is no evidence tending to show what became of this draft, or that the plaintiff, who was then the holder and owner of the note and mortgage, received any benefit therefrom.
The case was tried, and is now presented, upon the theory that the Guaranty Investment Company, at the time of the payment to it of the $300, was the agent of the plaintiff, Bronson, duly authorized to receive payment of the principal and interest of this note, and, consequently, that a payment to said company would bind the plaintiff. Evidence was introduced to prove the alleged agency of the Guaranty Investment Company, and that question was treated all through the trial as a material controverted fact to be determined, and was so submitted by the court to the jury. Counsel for Hill claim, in this court, that the fact of agency was admitted by the pleadings ; that the failure of the plaintiff to deny under oath the allegation contained in Hill’s answer, that “ said Guaranty Investment Company was duly authorized in fact and in law to receive the same,” left that fact admitted. Whether this was such an allegation of authority,' within the meaning of the code, as should be denied under oath, in order to put it in issue, is not necessary to decide; for, the trial having proceeded as if that fact was in issue, the necessity for any such denial under oath will be deemed to have been waived, and it is too late now to raise the objection for the first time. (Ciesielski v. Nowacki, 39 Kan. 340.)
The only evidence of agency offered was that payments of the interest coupons, due, March 1, 1888, September 1, 1888, March 1, 1889, and September 1, 1889, respectively, were maclé by remittances to the Guaranty Investment Company, at Atchison, and the several interest coupons were, by said company, returned to Mary Ashlock soon after the respective payments were made, marked paid. The court, upon this question, instructed the jury as follows : '
‘ ‘ The evidence in this case shows that it [the 'alleged payment] was not made to the plaintiff, Bronson, personally, and that if any payment was made at all, it was' made to the Guaranty Investment Company, or their representatives, the original .payees of the note and mortgagees in the mortgage. So that, the evidence showing that Mr. Bronson was the owner of the paper and the owner of the' mortgage at the time the payment was made,.to permit Mr. Hill to receive the benefit of that payment, it is necessary that he should show that these parties had authority to receive such payment in the first instance, or that such payment was ratified by the holder of the paper, or that such a state of the evidence is disclosed’ here as would estop the plaintiff from claiming that the Guaranty Investment Company had no right or authority to receive payment for this mortgage. But if you should find in this case that the Guaranty Investment Company had been collecting the interest on this indebtedness, this mortgage, and paying it over to the 'plaintiff here, and that the plaintiff had been permitting them to collect interest for him, and the payment of this note and mortgage was made to the Guaranty Investment Company, and this thing occurred both before and after the transfer of the note and mortgage to the plaintiff, then that would constitute the Guaranty Investment Company the agent of the plaintiff for the collection of the paper, and any payments made, by any one liable on the paper, to the Guaranty Investment Company, under these circumstances, would be a payment to the plaintiff; at least, the plaintiff having treated the Guaranty Investment Company as his agent for the collection of the interest — j>ermitted it to collect the interest — would be estopped from claiming that they had no authority to do so.”
In so instructing the jury we think that the court erred. The mere collection of past-due interest coupon? on a note long before the time of i'ts maturity is not of itself sufficient to show authority in such person to receive payment of the principal before it is due. We have been cited to no decision going'to that length, in holding the owner of a negotiable nóte responsible for a payment to a third person under' such circumstances, long before payment acccording to the terms of the contract can be demanded, and where the evidence fails to show that the person to whom payment was made had possession or control of the note. The case of Shane v. Palmer, 43 Kan. 483, cited by counsel for Hill, does not support such a proposition, as in that case there was evidence of express authority' to receive.the payment made. In this case there is nothing to show that the Guaranty Investment Company had possession, or claimed possession or control, of the note and mortgage after their transfer to Bronson in 1887. The payment under such circumstances was made wholly at the risk of the payer. In these views we find support in the following cases: Best v. Crall, 23 Kan. 482; Cowles v. Burns, 28 id. 38; Smith v. Kidd, 68 N. Y. 130; Crane v. Greenwald, 120 id. 274; Lumber Co. v. Littlejohn, 31 Neb. 606; Keohane v. Smith, 97 Ill. 156; Biggerstaff v. Marston, 161 Mass. 101; Watson v. Wyman, 161 id. 96; Mulcahy v. Fenwick, 161 id. 164; Williams v. Walker, 2 Sandf. Ch. 325; Lee v. Clark, 89 Mo. 553.
It is objected by the plaintiff that there is á variance between the evidence offered, as to payment and the allegation of payment in the answer; that the answer alleges payment by Mrs. Ashlo'ck, while the evidence tends to show that, if payment was made, it was made by Hill. We think, however, that there was no substantial variance; that under the agreement between Mrs. Ashlock and Hill it might be considered as a payment made by her through him. '
For the errors mentioned in this opinion, the judgment rendered upon the issues joined between Bronson and Hill will be reversed and a new trial ordered. The decision of the district court upon the issues joined between the other parties to this suit is not disturbed.
All the Judges concurring.
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The opinion of the court was delivered by
Dennison, J :
This is an action in replevin brought by Carrie Williams, as plaintiff, against The La Crosse Milling Company, as defendant, to recover the possession of a quantity of wheat, of which she claimed to be the owner and entitled to the immediate possession, and which she alleges was wrongfully detained from her possession by the defendant below. The case was tried with a jury, and they rendered a verdict in favor of the plaintiff below. Judgment was rendered thereon against the defendant below, and it brings the case here for review.
The first assignment of error is upon the overruling of the demurrer to plaintiff’s petition. The petition alleges that the plaintiff below is .the owner of and entitled to the immediate possession of the wheat, and that the defendant below wrongfully detains the same from her. The petition also alleges the facts and,circumstances which have caused her to be damaged by reason of such detention. The grounds for the de murrer are that several causes of action are improperly joined, to wit, an action of replevin and an action for damages and trespass. We may say in the outset that the attorn ev for the plaintiff in error in his argument stated that many of his assignments of error were technical, and that he relied more particularly upon want of demand. However, the errors are discussed in the briefs of both parties, and, so far as material, we will briefly notice them.
The allegations of ownership, right to the immediate possession, the wrongful detention and the damages for such wrongful detention are not different causes of action improperly joined. On the contrary, they are the proper allegations for the recovery of the possession of personal property and the damages for the wrongful detention, if any damages are claimed. There was no error in overruling the demurrer or the motion to make the petition more definite and certain. There were no objections to the instructions given, and no exceptions taken to the giving thereof; hence they cannot be reviewed by us.
The fourth assignment of error is in the admission of the deposition of Carrie Williams, and in overruling the objection to some of the questions therein. The deposition as a whole seems to be regular, and the plaintiff in error only urges its objection to the testimony of the witness as to her evidence touching the substance of the written contract between her and Mr. Thornell, the owner of the land upon which the wheat was raised. The testimony objected to is as follows :
“ Q,ues. State how you got charge of that land during the years 1890 and 1891. Ans. By lease from Mr. Thornell.
“Q. What kind of a lease had you? ” (The defendant objects to the question,'for the reasons that it is incompetent, irrelevant, and immaterial, and not the best evidence, which objection was by the court overruled, and the defendant at the time duly excepted to the ruling of the court.) “A. A written lease.”
1 ‘ Q,. Have you the lease to this quarter-section of land which you got from Mr. Thornell? A. I have.
“Q,. Will you attach the lease to this deposition, and make it a part of and mark it ' Exhibit A’ ? A. I will.”
“The witness produces the le.ase, which is marked by me 'Exhibit A’, and attached hereto and made a part hereof.
Wm. Johnstone, Notary Public.”
There is not one word in the deposition touching the substance of the lease.
The plaintiff in error also contends that the court erred in admitting a letter written by Mr. Thornell to Mrs. Williams, for the reason that the genuineness of the instrument is not proven. It was abundantly proven by Mr. Jeffries who testified that he was acquainted with the handwriting of Mr. Thornell, and the letter was in his handwriting.
The fifth assignment of error is in the overruling of the demurrer to the evidence of the plaintiff below. The plaintiff below introduced evidence tending to show that she rented the land upon which the wheat was raised, furnished seed wheat, and had it put in, doing part of the work herself, and hired Jeffries to cut and thrash it, and that she was still the owner of it, and was entitled to the immediate possession thereof, and that the defendant below failed and refused to deliver it to her, and still detained it after due demand had been made upon it by an agent of the plaintiff below. There was abundant evidence to sustain the plaintiff’s petition, and the court committed no error in overruling the demurrer to the evidence.
The plaintiff in error contends that fraud was committed by the defendant in error and Horace Williams and Mr. Jeffries, in attempting -to cover up the property of Horace Williams so as to place it beyond the reach of his creditors. This question was properly submitted to the jury, upon conflicting evidence, and they found for the defendant in error, and their verdict was approved by the trial court. It is not our province to disturb their finding. We do not weigh evidence. If we did, we might find the facts to be different from what this jury did. The evidence is not entirely free from a taint of fraud, but the jury have found that the transaction was all right, and we, as well as the plaintiff in error, must submit to their finding.
This brings us to the last assignment of error which we deem material, and the real contention of the plaintiff in error, i. e., that there was no demand made upon the plaintiff in error for a return of the property, as required by law. The petition alleges wrongful detention, and also a demand. Mr. Jeffries testified that he, as agent for the defendant in error, made a demand for the wheat prior to the commencement of the action, and that he made his demand in writing, and delivered it to William Work. A copy of the demand is as follows :
“La Crosse, Kan., July 14, 1891.
• “To the La Crosse Milling Company: I hereby demand the wheat belonging to Mrs. Carrie^Williams, now in your possession, on the northeast quarter of section 6, in township 17, range 18 west of the sixth principal meridian, in Rush county, Kansas.
R. C. Jbebris, Agent for Ctwrie Williams.”
The plaintiff in error contends that Mr. Work had no interest in the controversy, and was not a member of the firm of “The La Crosse Milling Company,” and was only an employee or hired hand. The plaintiff in error attempted to prove this by Mr. Work, but it was not permitted to do so. The petition alleges that “The La Crosse Milling Company is composed of Joseph Namin', P. H. Davis, and William Work,” and the denial of this allegation was not verified by the'affidavit of the plaintiff in error, its agent or attorney, as is required by paragraph 4191 of the General Statutes of 1889. Therefore the demand was made upon a member of the firm and is sufficient.
No material error prejudicial to the substantial rights of the plaintiff in error has been committed by the trial court.
The judgment of the district court is affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gar ver, J. :
Upon the trial of this case, the sufficiency of the petition was challenged by an objection to the introduction of any evidence under it. So far as matei’ial for consideration at this time, the petition reads:
‘ ‘ The plaintiff states that the defendant is indebted to him in the sum of $251.50 for services performed by said plaintiff for and at the request of said defend ant, and as attorney for said defendant; that said sum of $251.50 is due and unpaid; that the plaintiff is entitled to interest thereon from May 29, 1891, at 6 per cent. ; that an itemized account of the same is in the following words and figures and is made a part of this petition, to wit.”
An itemized statement follows, setting out the services and the respective charges made therefor. In his brief, counsel for plaintiff in error states, as the ground of his objection, that
‘' The petition does not allege a contract expressed for the services of the plaintiff below, as attorney for the company; and does not allege that the services performed were of any value to the company or that it received any benefit from the services.”
We do not think the petition is open to this objection. A petition in this form is not unknown, nor is it without recognition in the courts of this state. (Marley v. Smith, 4 Kan. 183; Parker v. Hays, 7 id. 412.) A very liberal construction will in every case be given to a pleading when the sufficiency of its allegations is challenged for the first time by an objection to the introduction of any evidence. under it. (Barkley v. The State, 15 Kan. 99.)
Complaint is also made of various rulings of the court in the admission and in .the refusal of testimony. As counsel has not seen fit, in his brief, to point' out the objectionable testimony by a specific and definite reference to the record, as required by j;he rules of this court, we will not institute a general Search for their discovery for the purpose of giving them particular consideration. We have, however, examined all the evidence, and are clearly of the opinion that, under it, the court was warranted in the decision and judgment rendered.
There being no other errors assigned, the judgment will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Giltceson, P. J. :
Two questions are presented for our consideration in this case : First. Had the probate court jurisdiction to cite the defendant below to make settlement of the accounts of his testator as guardian ? Second. Is the action barred by the statute of limitations? The first we must answer in the negative, and the second in the affirmative.
The constitutional and statutory provisions in reference to the jurisdiction and power of probate courts and the statutes of Kansas governing guardians and wards are unlike those of most of the other states. Hence, we have received very little assistance from the briefs of counsel, except upon general propositions. There is no provision in the statutes of this state requiring guardians to make final settlements. The only provision found therein is in paragraph 3236, General Statutes of 1889, and this refers only to accounting. We cannot, as suggested by counsel, take anything by implication or analogy by referring .to the act governing executors and administrators;for the status of each is entirely different, and the capacity in which they act totally unlike. The former ’have the interest .of a single person, or class of persons to look after, and are only responsible to them — their trust is of a private, personal nature — while the latter have in charge the interests not only of those who are to receive the estate upon distribution, but also the interests of the creditors of the deceased, and act as the agents of both (even -though their interests conflict), and their trust is of a public character ; a limit can be set upon the time in which they may be required to do all acts pertaining to their office, and the statutes provide for a final settlement, viz., by notice to the world, and this is eminently proper, for the public, so to speak (that is, parties other than the distributees, who might be termed privies), are interested therein. But none of these conditions or reasons exist as to a guardian. As we have said, he deals only with his ward or wards; to them alone he is accountable. None but they are interested in his accounts, and if they are satisfactory to them no one can complain, not even the probate court, -and their settlement or accounting can be made without the intervention of it. (Tate v. Stevenson, 55 Mich. 320.) While it is true the statute provides for and makes it the duty of guardians to account annually, and oftener if the probate court requires, it clearly has reference to accounts to be rendered during the lifetime of the guardian and the minority of. the wards ; for it would not for a moment be claimed that the guardian.could continue in office after the ward became of age, and include in his account, year after year, transactions had between him and his ward after the latter became of age ; for when that event happens the ward is sui juris, and any liability that would attach to either of them would arise out of the contractual relations, and would not be enforceable in the probate court, but in an action at law. We can readily see, from reasons stated, why there is no provision made for a final settlement by a guardian, or, when the settlement becomes final, why public notice is not required. It is unnecessary.
Another reason exists in this.state: The probate court has not exclusive jurisdiction over these matters, and the ward is not remediless. But suppose the guardian would, in making a settlement, mark it “Final” and publish a notice : Would it have any more weight or sanctity merely from the fact that notice was given, and the paper marked “Final” ? We think not. And, should it receive the approval of the probate court, the guardian receive his discharge, the probate court be shorn of all its jurisdiction and control over both guardian and ward, this would not make it final, if there had been any fraud practiced.. The district court would still have jurisdiction to examine into it. But if the theory advanced by the defendant in error is correct, it would be valid and binding without regard to how obtained, and the statute of limitations would at once begin to run in favor of the guardian without regard to the condition of' the ward. In many states,, and particularly those from which decisions have been cited by defendant in. error, the statute provides, or the condition of .the bond is such, that guardians are required to make final settlements “ when the ward arrives at age,” and under such condition some (but not all) of these courts of last resort have held, “until the guardian does make this settlement the probate court has power to compel him so to do,” on the theory that this is a condition precedent to his discharge ; 1 ‘ and the trust continues until this requirement is complied with.” We think this construction is correct under such statutes. We think that if the guardian should made a settlement with and to the entire satisfaction of the ward, while the court might not be empowered to change the settlement, yet it would undoubtedly have the power to compel the guardian to comply with the law, or fulfil the condition of his bond. It is also noticeable that in all states in which the rule contended for by the defendant in error obtains, the trust of guardianship is not a personal one, but goes to the executor. This is not so in this state. (Gen. Stat. 1889, ¶ 7168; Collier v. Blake, 14 Kan. 250.) And in those states where the rule obtains that probate courts- have authority to cite the personal representatives of a guardian to make a final settlement, it is limited to cases where the guardian dies during his term of office. (9 Am. & Eng. Encyc. of Law, 148, and cases there cited.) And we have failed to find any authority that holds that such power exists in the probate court when the office terminated before the guardian’s death; and in those states where the statute provides that he shall make a final settlement, to obtain it, when the office has terminated prior to his death, recourse has been had to the chancery courts.
The final account of a guardian is properly addressed to- the court that has jurisdiction of the estate of the ward, when presented by the guardian ; but when the guardian dies before making a settlement, and long after Ms ward’s majority, his executors have no authority to present his account to a court of probate, nor has such court jurisdiction over the matter. The settlement of the account can only be had in a court of equity by a proceeding against the executors and other necessary parties. (In re Allgier, 65 Cal. 228.) We concur with this view, yet under the statutes of California (§1754, Code Civ. Proc.) the guardian is required, and it is one of the conditions of his bond, “when his ward becomes of age, to exhibit to the probate court a final settlement.” As we have stated, when the ward becomes of age the ward is sui juris, and any legal liability which arises between him and his former guardian after that does not arise out of their former relations, but out of the contractual relation established between them, not enforceable within the jurisdiction of the probate court, but the remedy or right is enforceable in an action at law. The presentation of such a settlement is no part of the duties involved in the administration of the estate of the testator. If the property which was under the control of the testator, as guardian, come into the hands of the executor, the guardianship, being a personal trust, did not pass to him on the death of the testator, and the property held by the guardian did not become assets in the hands of the executor or administrator to be administered. He merely holds it for its preservation until'the person whose estate it is, and for whose benefit it is held, can establish a right thereto, obtain a settlement of the trust terminated by the death of the trustee, in the proper forum, where the rights of all parties to the trust may be definitely determined. These settlements must be presented to the probate court by a guardian, but upon his death he is no longer in office, or, if the ward has become of' age, the office has terminated, so the remedy is in the courts which retain jurisdiction' after these things have happened, and must be sought in the proper forum.
This, then, brings us to the question, “When does the guardian’s term of office expire? ” This may occur in various ways. We will only notice two that are applicable to the case, viz. : (1) The death of the guardian. (2) The ward becoming of age. (9. Am. & Eng. Encyc. of Law, 95; 2 Kent’s Com. 221-227; Stroup v. The State, 70 Ind. 495; Overton v. Beavers, 19 Ark. 625; Tate v. Stevenson, 55 Mich. 320; The People v. Brooks, 22 Ill. App. 594; Glass v. Woolf, Adm’r, 82 Ala. 281; Rose v. Gill, 4 Cal. 250; In re Allgier, 65 Cal. 228; Klemp v. Winter, 23 Kan. 699.)
In Taie v. Stevenson, supra, it is held :
“ Guardianship . . . ends when tlie ward becomes of age. . . . The guardian then can do no farther act as such, but is dischargéd of his office, and his ward may settle with him if he chooses without the intervention of the probate court; . . . termination of the guardianship is equivalent to the discharge of the guardian.”
We .think this is the rule in Kansas, and is very strongly indicated in Klemp v. Winter, supra. For these reasons and upon authority, we think that the probate court has no power to cite, the executor of a guardian to make final or any other, kind of settlement, particularly after the guardianship has terminated. The remedy of the ward is by. an action on the bond, or to compel an accounting, in a court having jurisdiction of such matters. Is his remedy affected by the statutes of limitation? The rule is well established in this state, that, actions upon the bond of a guardian are barred within five years after the cause of action shall have accrued, and within two years after the disability (if any exists) is removed. (Code, § 18, subdiv. 5, and § 19 ; Fletcher v. Wormington, 24 Kan. 262; Ryus v. Gruble, 31 id. 767; Scantlin v. Allison, 32 id. 376.)
Actions occasioned by default or misconduct of the guardian are by suit upon his bond, and accrue as soon as it occurs. (Bonham v. The People, 102 Ill. 434; State v. Salvin, 95 Mo. 253.)
“Actions against sureties on the guardian’s bond are barred in four years from, the guardian’s discharge, and this means four years after he ceases from any cause to be guardian,'and the statute begins to run within two years after the ward arrives at age. That the ward has the right to compel an-accounting will not be disputed, and this action is barred, and the statute begins to run within the same limit as to actions upon bond.” (Jones v. Jones, 91 Ind. 378; Tate v. Stevenson, 55 Mich. 320; 9 Am. & Eng. Encyc. of Law, 148; In re Van Derzee, 80 N. Y. Sup. 532; Glass v. Woolf, Adm’r, 82 Ala. 281; Bone’s Appeal, 27 Pa. St. 492; Adam v. Reviers, 59 Ga. 793.)
And in Lenox v. Harrison, 88 Mo. 491, while the court does not apply the statute of limitations, it holds :
“ The subject of the favorable presumptions, which are indulged in behalf of' persons acting in an official capacity, especially after a long lapse of time has intervened, has been quite extensively discussed in Long v. J. M. & S. Co., 68 Mo. 422, ... by this court. And equity views with disfavor suits that are brought after the death of the party whose estate is sought to be charged, where the fraud alleged is known before, and suit might have been brought during the lifetime of the party acquainted with the whole business, but without reason or excuse such suit is delayed until after his death. . . . ‘ Under such circumstances the laches must of itself be held fatal, for.it would be to assert a doctrine to the last degree hazardous to say that a complainant -with full knowledge of all the facts on which he relies can lie quietly by until death comes to his assistance and puts the seal of perpetual silence on the lips of his adversary.' ”
And this very properly applies to the case at bar. With full knowledge of all the facts, years have elapsed in which the defendant in error has remained silent, never claiming what he now seeks to obtain ; not even intimating to his guardian (who, from the testimony, has been more than a father to him) that he intended making a charge against him for services; without reason or excuse for his inactivity and silence (except his cupidity and avarice) asks a court of justice to aid him in taking from those who from his infancy have been as sisters to him the small pittance they have remaining after sharing even this with him. There is nothing in the demand that commends itself to the equity side of a court.
But it is contended that the guardian is a trustee of an express trust, and the statute of limitations does not run against such trustee. We cannot concur with the counsel in this.
‘ 'An express trust assumes an intention of the parties to create that relation or position, and a direct act of the parties by which it is created in accordance with such intention, outside of the mere operation of the law.”
In an express trust the parties intend such a relation between themselves, carry out their intention by suitable words, and the law confirms and accomplishes the object they had in view. An express trust primarily assumes three parties — the one who by proper language creates or declares the trust; the second, who is the recipient of the authority thus conferred ; and the third, for whose benefit the authority is received, and held. Trusts, in their strict and technical sense, are only known to equity, and, falling as they do in such a sense within the peculiar and exclusive jurisdiction of a court of equity, the doctrine has been long established, that so long as they subsist they cannot be reached, as between trustee and cestui que trust, by statute of limitations. But to exempt a trust from the bar of the statute it must be : (1) A direct trust; (2) it must be of the kind that belongs exclusively to the jurisdiction of a court of equity; and (3) the question must arise between the trustee and cestui que trust. (Angelí, Dim. 166.) And we think the rule is, and has been from the earliest decisions, that trusts intended by courts of equity not to be reached or affected by the statute of limitations are those technically and continuing trusts which are not cognizable at law, but fall within the proper, peculiar and exclusive jurisdiction of this court. And this rule was laid down by Chancellor Kent in Kane v. Bloodgood, 7 Johns. Ch. 109, and has been ever since followed, and in commenting on this principle, the chancellor says :
‘£ I cannot assent to the proposition that all cases of direct and express trust and arising between trustee and cestui que trust are to be withdrawn from the operation of the statute of limitations, notwithstanding a clear and certain remedy exists at law. The word trust is often used in a very broad and comprehensive sense. Every deposit is a direct trust. Every person who receives money to be paid to another, or to be applied to a particular purpose to which he does not apply it, is a trustee, and may be sued, either at law for money had and received, or in equity as a trustee for a breach of trust. The reciprocal rights and duties founded upon the various species of bailment and growing out of those relations, as between ‘hirer and letter to hire, borrower and lender, depos itary and person depositing, a commissioner, and an employer, a receiver and giver of a pledge, are all cases of express and direct trust’ ; and these contracts, as Sir William Jones observes (Jones on Bailments, 2), are ‘ among the principal springs and wheels of civil society.’ Are all such cases to be taken out of the statute of limitations under the notion of a trust, when one of the parties solicits his remedy in this court ?’ ’
The chancellor then proceeds to examine clearly, but fairly, all the authorities from the earliest that he could find (Harrison v. Lucas, 1 Ch. Rep. 67, 15 Car. 1) down to the case then before him, and shows that the distinction laid down by him could be traced through the whole of them, but that it was not so distinctly and clearly laid down until the opinion of Lord Macclesfield, in Lockey v. Lockey, (Finch’s Prec. in Ch. 518,) in which he says that
“To remove a trust from operation of the statute, it must be such a trust, technically, as is created by the mutual confidence of the parties, such as equity alone can take cognizance of, and,afford redress. If it is a trust that the law courts can give relief, the statute will run, although the party may have sought his remedy by a suit in chancery. In such cases, the fact of the suit being brought in a court of chancery will not defeat the statute. It can be avoided only by a technical trust, of which the courts of law could afford no relief. When it is laid down that, so long as a trust is continuing and subsisting, the statute does not commence to run between the cestui que tmst or his assigns, and the trustee, the doctrine applies to such cases only as are strictly and technically trusts, created and sustained by the principles of equitable jurisprudence, exclusive of, and in contradistinction to trusts of common-law cognizance ; and even in such cases the statute would commence to run from the time the trustee disavowed the trust, or did any act conclusively showing that he did not hold as trustee. If the legal title is in one, in trust for another, the trust could not be enforced but by a resort to equitable jurisprudence. This would be a case where the trust would be a continued equitable trust. The statute would not run until he had clearly avowed that he did not hold as a trustee, but in adverse right to the trust claim. If one recovers into his possession the moneys or chattels of another it would create a trust; but suppose he goes further and write to the other that he had received his money : here would be a declaration of a direct trust, but not such a trust as ■would be unaffected by the statute of limitations, because suit could be brought in a court governed by the rules of common law. So every bailee is, in some sense, a trustee, but it does not follow that every kind of trust forms an exception to the operation of the statute of limitations. If so, half of the business transactions of men would be removed from its influence. It is important, therefore, in all cases of trust, in inquiring whether the statute can be pleaded, to bear this distinction in mind. If there is a remedy at law — that is, on the principles of common law in contradistinction to equity jurisprudence — the fact of there being such a remedy brings the trust within the statute.” (Wingate v. Wingate, 11 Tex. 430.)
The judgment in this case will be reversed, and the cause remanded with instructions to render judgment herein for the defendant below, John P. Harris.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J. :
This action was brought in August, 1891, by James Dezell, as plaintiff, to recover from Hiram Thayer the amount alleged to be due and unpaid upon a certain promissory note, a copy of which is set out in the petition, executed by the defendant to Shannon, Piatt & Oo., and by them indorsed and delivered to the plaintiff. By the ternas of the note, it matured on August 4, 1877. It bears an indorsement as follows : “$2.00 paid on within note Decemember 20, 1889.” The plaintiff alleged that
“within five years before the filing of this petition, defendant acknowledged an existing liability, debt or claim on said note, and promised to pay the same. Said acknowledgment and promise were in writing, and signed by the defendant, and are contained in the following correspondence concerning the note sued on in this case.”
Then follows the correspondence referred to between the defendant and plaintiff’s attorney. The defendant answered, first, by a general denial; second, by pleading the bar of the statute of limitations ; and, third, by verified denial of the payment indorsed on the note, or authority to make such indorsement. The cause was tried by the court, a jury being waived. After the plaintiff had introduced his testimony and rested, the court sustained a demurrer to the evidence, and afterward overruled a motion for a new trial, and judgment was rendered in favor of the defendant. Exceptions were duly saved to the rulings of the court, and the plaintiff has brought the case here for review.
Section 18 of the code provides that an action upon any agreement, contract or promise in writing can only be brought within five years after the cause of action shall have accrued.
Section 24 of the code reads :
“In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt, or claim, or any promise to pay the same, shall have been made, an action may be brought in such case witliin tlie period prescribed for the same after such payment, acknowledgment, or promise ; b.ut such acknowledgment or promise must be in writing, signed by the party to be charged thereby.”
The court, by its ruling on the demurrer to the evidence, in effect found that no part of the principal or interest had been paid within five years prior to the commencement of this action. The evidence upon this point consisted wholly of oral testimony, and was conflicting, and the finding of the court settled that question in favor of the defendant. The court found, as a matter of law, that the statements set out in the correspondence referred to in the petition constituted neither “an acknowledgment of an existing liability, debt, or claim,” or a “promise to pay the same,” and in this we see no error. That portion of the correspondence relating to the matter in controversy which has any bearing on the question at issue consists of a letter written by plaintiff’s attorney to the defendant, as follows : “I have in my hand a note for |687.44, given by you to Shannon, Piatt & Co. This note has been due for some time, and we would like to have it settled up. What can you do for us on it? Please drop me a line very soon, and oblige,” etc.; and the following extracts from letters written by the defendant to plaintiff’s attorney : “I can never do anything for the note you hold, nor for Shannon nor Piatt, but when I get able I will do something for Dezell, and I think Jim will let me get able. That note you hold has been partly paid, which I can prove. I will help Dezell as soon as I feel able.” “I will see my boys in regard to what has been paid on the note, and for an account outside of the note I know nothing about. About setting any time for paying anything on the note, it would be impossible.” “Now in regard to meaning business concerning that note of Mr. Dezell’s, as I said before, I will when I get able ; if I ever do, I will do something for Dezell that he will be satisfied with. But I cannot do anything for him at present, and I don’t know when I can. ... 1 have not seen my boys in regard to the note.” These statements cannot be construed into an absolute promise to pay the note. They are at most conditional promises depending on defendant’s ability to pay at some time in the future, and no attempt was made to show upon the trial that the defendant has at any time been able to pay the note or any part of it since these letters were written. The defendant first claims that the note had been partly paid; that he would see his boys and ascertain the amount of such payment, and in his last letter he says, “I have not seen my boys in regard to the note.” We do not think these several statements can be construed into such an acknowledgment of an existing liability as is contemplated by the statute. They are more in the nature of an admission by the defendant of a former indebtedness with an assertion that at least a portion thereof had been paid, the amount of which he was unable to determine without first consulting his boys. In this state statutes of limitation are held to be statutes of repose, and a written acknowledgment of an existing liability, in order to remove the bar of the statute, must be an unqualified and direct admission of a present subsisting debt on which the party is liable. (Hanson v Towle, 19 Kan. 273; Gragg v. Barnes, 32 id. 301, 310.) See, also, Wilcox v. Williams, 5 Nev. 206, and chses there cited; McClellan’s Executors v. West, 59 Pa. St. 487; Barlow v. Barner, 1 Dill. 418.
No error appearing in the record, the judgment will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Carver, J. :
The principal question to be determined in this case is this : After a railway corporation has acquired the title in fee simple, by purchase from the owner, of a strip of land for the right of way of its road through a larger tract which is subject to a mortgage, can it, by condemnation proceedings, wipe out the mortgage lien on the right of way? The plaintiff in error contends that it can, and by this action sought to enjoin the sale of the right of way, which was threatened under a judgment of foreclosure of the mortgage. The injunction was denied.
In purchasing the right of way from the owner, and accepting the absolute title thereof, the railway company acted in a mere private capacity, and acquired only such title as would have vested in an individual under a similar conveyance ; as grantee, it took subject to the lien of the mortgage, with the equitable right — no part of the mortgage debt being assumed — to have the land not conveyed first exhausted under a foreclosure of the mortgage. In accordance with this rule, in an an action brought after the conveyance to the railroad company to foreclose the mortgage upon the quarter-section of land from which the right of way had been taken, the court sustained the mortgage lien upon the entire tract, but directed that the right of way should be sold only in case the remaining land did not sell for sufficient to satisfy the judgment. The railroad company, being a party to the foreclosure suit, was bound by the judgment therein. Subsequently the railroad company instituted proceedings under the statute for the condemnation of this right of way, which was then, and had been for two or more years, occupied by the company in the operation of its road. The application for the-appointment of the commissioners and the report filed by them were in the form common to condemnation proceedings. The report purported to be an appraisement and condemnation of about 13 acres of land, the damages being assessed at $1.
The right of eminent domain grows out of the necessities of the public, and is enforced only for public or g"itasi-public uses. This right may be, and generally is, delegated to railroad corporations to enable them, without interference or delay, to construct their roads through the lands of private owners. When the necessity for the exercise of such right does not exist, recourse cannot be had to it. It certainly was not the intention of the legislature that the right of eminent domain should be vested in any such cor poration for the purpose of acquiring an interest in lands inferior to that already possessed. In such a case the corporation asks for an appraisement of the damages which• it proposes to inflict upon itself by a voluntary appropriation of its own property for uses which are entirely proper and legitimate for it, as owner, to make. The ultimate object of the proceeding is to enable ,it to deposit with the county treasurer the amount of damages so ascertained, in order that it may receive the same for its own indemnity. After such superfluity of action, it is somewhat difficult to comprehend just what has been accomplished. If the company were not the absolute owner of the fee, and there were interests held by other parties which were subject to appropriation under the right of eminent domain, the mere fact that the company already had an interest would probably not prevent it from appropriating outstanding interests by the same proceedings, and to the same extent as would be proper in case it had no previously-acquired interest. For example, a leasehold estate in the right of way, already possessed by the railroad company, would not prevent-it from thus subjecting and appropriating all other interests, legal or equitable, in the land. (N. Y. & H. Rld. Co. v. Kip, 46 N. Y. 546.) Under condemnation proceedings, only an easement or right of' occupancy for railroad purposes is acquired — an interest inferior to the fee. As a general rule, an inferior interest or title is merged in the greater interest or superior title which is vested in the same person, and an owner’s rights are measured by the latter. It is a contradiction of terms to say that one who is the absolute owner of real estate can acquire an easement in his own lands. We are of the opinion, therefore, that the condemnation proceedings under considera tion were unauthorized in law and wholly nugatory, so far as they were instituted for the ¡purpose of affecting the railroad company as owner, and that they could, have no incidental effect upon the mortgage.
Did the condemnation proceedings affect the mortgage lien, even' if they were specially instituted for that purpose? Under the decisions of the supreme court of this state, a mortgagee is not an owner "with an interest in the land mortgaged so as to make him a proper party to such proceedings. In this state, a mortgage vests no title and conveys no interest in the land ; it creates a mere lien. (Chick v. Willetts, 2 Kan. 384; Vanderslice v. Knapp, 20 id. 647.) While the word “owner,” as used in our statutes with reference to real estate, has a very broad meaning, it cannot be construed to apply to persons who have no interest whatever. In most of the cases, where this question has been raised and considered, railroad companies have contended that a mortgagee was not a party to condemnation xoroeeedings ; that he had no interest in the land; no right to appeal from any award that might be made ; and that his lien was wholly subject to the result of the proceedings against the landowner. In this contention they have been sustained by the supreme court. (Goodrich v. Comm’rs of Atchison Co., 47 Kan. 355; Rand v. Ft. S. W. & W. Rly. Co., 50 id. 114; C. K. & W. Rld. Co., v. Sheldon, 53 id. 169; W. & W. Rld. Co. v. Thayer, 54 id. 259.)
In C. K. & W. Rld. Co. v. Sheldon, supra, it was held:
“The mortgagee, however, had only a lien upon the land out of which the right of way was taken. He was not the owner of the same nor the owner of an estate therein.' Not being an owner within the meaning of our statutes, it was not necessary to name the mortgagee in the proceedings, nor to make any award to him. ”
It is a necessary deduction that if the mortgagee had no interest, nor any right to be considered in making the award, he had no right to appeal. (C. K. & W. Rld. Co. v. Grovier, 41 Kan. 685.) The only right or interest, under such condemnation proceedings, which the supreme court has recognized in the mortgagee, is his right, where equity warrants, to resort to the fund awarded and have it applied on his mortgage. (C. K. & W. Rld. Co. v. Sheldon, 53 Kan. 169.) The force of these decisions is not lessened by the fact that they were in harmony with the views then urged upon the court by the same company that appears as .plaintiff in error in the case before us. Under these circumstances, the conclusion is inevitable that there was no outstanding interest to be condemned, and that the rights of the mortgagee were not affected by the condemnation attempted in this instance.
The case of Kennedy v. M. & St. P. Rly. Co., 22 Wis. 582, to which we are cited by counsel for plaintiff in error, involved some questions similar to those in this case. An examination of that case shows, however, that what is said in the opinion of the court concerning the condemnation of a mortgagee’s lien is based upon the statutes of Wisconsin, which make special provisions for such cases. As we have no similar statute in this state, that decision is not applicable.
Of course, it is not just that the railroad company, having in good faith constructed its road through these lands, should be made to suffer unreasonable loss by reason thereof. The mortgagee has no equitable claims upon the road-bed and railroad tracks. We think it is within the power of a court of equity,' by appropriate proceedings, to preserve and protect the rights of all parties in such a case, but it cannot be done as here attempted.
Judgment affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Owsley, J.:
This appeal arises from an order of the trial court denying petitioner’s second successive motion for post-conviction relief filed pursuant to K. S. A. 60-1507. As a basis for this motion petitioner argues that his conviction was obtained through the use of a constitutionally invalid search warrant, in that the warrant was not definite and certain as to the premises to be searched.
In June of 1967 a jury found petitioner guilty of the crime of second degree burglary and upon denial of his motion for a new trial he was sentenced under the habitual criminal act to' a term of fifteen years to life. A timely appeal was filed to this com! alleging various trial errors, including the question of whether the search warrant was overly broad as to the premises to be searched. In affirming the decision of the trial court (State v. Walker, 202 Kan. 475, 449 P. 2d 515), we refused to consider the search warrant issue as its determination depended on facts which did not appear in the record. Specifically, petitioner failed to present evidence establishing that the premises searched was a four-family apartment building. Without proof that the premises was a multi-family dwelling we could not consider the issue of whether the search warrant was overly broad for failing to designate the particular apartment to be searched. At the trial level the search warrant was not challenged in any way, and as a result the record contained very little pertaining to its issuance and execution. As the search warrant was regular on its face we were left with the presumption of its validity.
After failing on his direct appeal to this court, petitioner filed his first motion for post-conviction relief, pursuant to K. S. A. 60-1507, on the sole ground that his sentence was obtained in violation of the due process clause of the Fourteenth Amendment in that he was denied effective assistance of counsel at his trial. The trial court denied the motion and no appeal was taken by petitioner.
Approximately three years later petitioner filed his second 1507 motion for post-conviction relief requesting the trial court to vacate and set aside his conviction and sentence for the reason that his conviction was obtained by virtue of an invalid search warrant. After a hearing at which petitioner was represented by counsel, the trial court denied the relief prayed for. The court found no unusual circumstances existed which would excuse the failure of petitioner to raise the issue of the allegedly deficient search warrant on his direct appeal to the Supreme Court or on his first 1507 motion. Furthermore, after reviewing the evidence produced at the hearing the trial court concluded the search warrant in question was not overly broad in light of the circumstances surrounding its issuance.
Petitioner contends there were exceptional circumstances in this case which would provide ample justification for this court to consider the merits of his constitutional claim. After a thorough examination of the record, however, we are unable to find any evidence to support petitioner’s naked allegation of unusual or exceptional circumstances which would excuse his failure to raise the issue prior to his second 1507 motion.
The procedure in this state for post-conviction challenges to criminal convictions is set forth in K. S. A. 60-1507. This provision is intended to afford a remedy exactly commensurate with that which has previously been available by habeas corpus. (Cox v. State, 200 Kan. 198, 434 P. 2d 843.) A prisoner in custody under the sentence of a court of general jurisdiction claiming the right to be released on the ground that the sentence was imposed in violation of the constitution or laws of the United States or of the State of Kansas, that the sentencing court lacked jurisdiction, that the sentence was in excess of that allowed by law, or that the sentence is otherwise subject to collateral attack, may move the court at any time to vacate, set aside or correct the sentence. (K. S. A. 60-1507 [a].)
Matters which may properly be raised by a 1507 motion are not unlimited, and it has been repeatedly stated that proceedings pursuant to K. S. A. 60-1507 cannot ordinarily be used for the purpose of reviewing trial errors which might have been reviewed in the original appeal. (Cantrell v. State, 206 Kan. 323, 478 P. 2d 192.) Only when such errors impinge on constitutional rights may they be considered and then only in exceptional circumstances. (Zimmer v. State, 206 Kan. 304, 477 P. 2d 971; Tuscano v. State, 206 Kan. 260, 478 P. 2d 213.) These principles are now embodied in Supreme Court Rule 121 (c) (3). (214 Kan. xxxix.)
In addition, K. S. A. 60-1507 (c) and Rule 121 (d) provide that a sentencing court is not required to entertain a second or successive motion for relief on behalf of the same prisoner. When a petitioner, in answer to question No. 10 of the prescribed form of the motion, sets out a ground or grounds for relief, he is presumed to have listed all the grounds upon which he is relying, and a second motion in which additional grounds for relief are alleged may properly be denied. (Lee v. State, 207 Kan. 185, 483 P. 2d 482.) In the absence of a showing of unusual circumstances or intervening changes in the law justifying the original failure to list a ground, the trial court may properly refuse to hear a second or successive 1507 motion. (Brizendine v. State, 215 Kan. 433, 524 P. 2d 718.)
The underlying rationale for these limitations on the availability of post-conviction relief pursuant to 60-1507 is the necessity for some degree of finality in the criminal appeal process in order to prevent the endless piecemeal litigation in both the state and federal courts. Accordingly, only under rare conditions will a trial court be required to entertain arguments on a matter which ordinarily could have been raised on direct appeal or on a prior 1507 motion.
In the instant case we have a situation wherein the petitioner had the opportunity to raise the matter of the allegedly defective search warrant both on his direct appeal to this court and on his first 1507 motion. As has already been pointed out, we refused to consider this issue on direct appeal due to the absence of proof of the essential facts of the allegation. Petitioner’s only excuse for failing to raise the question of the search warrant on his first 1507 motion was that “he does not know anything about law.” This statement must be considered in light of the fact that one of the grounds listed in his first 1507 motion was the incompetency of counsel for refusing to challenge a faulty search warrant. Petitioner cannot now claim he had no knowledge of the faulty search warrant issue when in fact he argued that his counsel was incompetent for failing to object tO' it. In addition, petitioner was undoubtedly aware of the fact that the issue had been raised on his direct appeal and not dealt with by this court.
Rased on this evidence we concur with the finding of the trial court that there can be no question as to petitioner’s knowledge of the allegedly faulty search warrant when he filed his first 1507 motion. We find no exceptional or unusual circumstances existing in the instant case which would justify further extension of our post-conviction relief process. Accordingly, petitioner’s further use of K. S. A. 60-1507 to obtain a hearing constituted an abuse of remedy, and the motion was properly dismissed by the sentencing court.
In view of this conclusion we deem it both unnecessary and inappropriate to consider the merits of petitioner’s motion for collateral relief.
The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Curtis James, was found guilty of three criminal charges: (1) assault (K. S. A. 21-3408), (2) battery (K. S. A. 21-3412) and (3) rape, which is defined in K. S. A. 21-3502 (1) (a) as “the act of sexual intercourse committed by a man with a woman not his wife, and without her consent when . . . [her] resistance is overcome by force or fear.”
The train of events leading to the criminal charges began on what we reasonably may assume was a quiet Sunday evening in Hoxie. Sharon Mong and her twin sisters, Marlette and Marlene, were returning to their fathers home after a weekend visit with their mother at Goodland. The date was September 23, 1973, the hour approximately 10 p. m. Sharon was sixteen at the time; the twins a year younger. As the trio drove down the main stem of Hoxie with Sharon at the wheel, they passed two vehicles which were stopped in the middle of the street permitting their occupants to visit. One car was a Ranchero driven by the defendant, Curtis James. Rick Farber drove the second car, which was blue in color, and Robert Meier and Don Moss were passengers in one or the other of the two vehicles.
As the girls’ car passed the vehicles, James drove his Ranchero in front of it while Farber pulled his car behind the Mong vehicle, hemming it in. Sharon attempted to pass around the James vehicle ahead of her but James swung the Ranchero back and forth across the street preventing her from passing.
Some distance from town, and apparently beyond the railroad tracks, the four young gallants succeeded in stopping the Mong car on the highway. At this point Marlette was able to crawl out of the car. She ran back to town where she reached the home of a friend and proceeded to spread the alarm. In the meantime, the boys forced Sharon to drive her car into Reuben Rasek’s driveway and James drove in behind her, blocking the exit.
A fair summary of what took place in the driveway is that James opened the door of the Mong car, grabbed Sharon by the arms and dragged her, protesting, from the vehicle. Sharon managed to break away, and began running toward Hoxie. James and Meier took after her in the Ranchero, catching up with her near the railroad tracks where they forced her into the truck.
What transpired thereafter, as Sharon relates it, for neither James nor Meier testified, need not be told in detail. It is sufficient to say the two men drove Sharon to the country and into a field where James had intercourse with her in the back of the pickup while Meier held her by the arm. Sharon testified that she was scared, that she screamed and fought, and at one time managed to break free but was recaptured down the road.
A doctor who examined Sharon the same night testified that she had recently had intercourse, that she was upset, that she was crying and that her hair was in disarray. The following morning the doctor examined her wrists and found evidence of bruises encircling them, as though force had been applied to the skin.
Sheriff Kratzer testified that he and Chief of Police Johnson met Mr. Mong at the telephone booth near the E & G Motel about 10:30 or 10:45 p. m.; that James and Meier drove by; that the chief pursued and brought them back; that he, the sheriff, attempted to get James into his car but James resisted, and kept talking and yelling; that finally he had to use his mace to quiet James, at which point James took off, with the sheriff in hot pursuit; that James was brought to bay about a block away and firmly escorted to the sheriff’s office.
On January 29, 1974, Mr. James was brought to trial for rape. That trial ended with a hung jury, and a mistrial was declared. On February 15,1974, the state filed a separate information charging James with two additional offenses, assault and battery. An affidavit by Sharon accompanied the information, setting out the incident which occurred in the Rasek driveway. The court ordered these charges consolidated for trial with the rape charge, and all three charges were tried together in March, 1974. James was convicted on all counts.
Two of the defendant’s points relate to the assault and battery charges. James argues (1) the trial court should have instructed that assault and battery are lesser included offenses of forcible rape and that the jury could convict on either the lesser offense or the greater offense, but not both, and (2) conviction on charges of assault and of battery operates as an acquittal of forcible rape. In our judgment neither of these contentions is valid.
We recognize the rationale of Jarrell v. State, 212 Kan. 171, 510 P. 2d 127, which defendant cites, but believe it may readily be distinguished. Jarrell was charged in three counts with (1) forcible rape, (2) assault with felonious intent and (3) taking a woman for defilement (under a statute now repealed). The facts alleged in each count were the same. Under those circumstances we said it was clear that Jarrell had been convicted of three crimes arising out of a single incident and that convictions under the last two counts were “barred by former jeopardy.” (p. 175.) In the Jarrell opinion we cited State v. Pierce, et al., 205 Kan. 433, 469 P. 2d 308, where it was held:
“Generally, a single wrongful act should not furnish the foundation of more than one criminal prosecution.” (Syl. f 2.)
“The test to be applied in determining the question of identity of offenses laid in two or more counts of an information is whether each requires proof of a fact which is not required by the others.” (Syl. ¶ 3.)
Jarrell is not a controlling precedent, however, for here there was more than a single wrongful act; there were two. The assault and battery charges are plainly based on what occurred in the Rasek driveway, not on what subsequently took place in the pickup parked in the pasture. Although the violence in the Rasek driveway may have been one of a series of incidents occurring that night, it was nonetheless separate and distinct, both as to time and place, from the rape that later materialized.
But defendant argues the assault and battery were committed to overcome Sharons resistance in the course of events eventually leading to the rape and thus were elements of the sexual assault itself. We believe the argument faulty. The attack on Sharon was fully completed at the time it occurred, and might well have been made the basis for assault and battery charges had nothing further happened that night.
Did the trial court err in failing to instruct that simple assault and simple battery were lesser included offenses of rape? We think not. In State v. Kelley, 125 Kan. 805, 265 Pac. 1109, the defendant was convicted of attempt to rape. We held:
“Simple assault is not a lesser degree of the offense of rape, or of attempt to rape, as defined by R. S. 21-101, 21-424.” (Syl. ¶ 3.)
In the course of its opinion, this court stated, on page 807:
“. . . This is not a prosecution under R. S. 21-434 [assault with intent to commit a felony]. It is under R. S. 21-101 [attempts] and 21-424 [rape]. Simple assault is not a degree of that offense; the only offenses under these sections are rape and attempt to rape. . . .”
But even were assault and battery, as defined in current statutes, included within the crime of rape, we believe the attending circumstances of this case were such that no included offense instruction was required.
The trial fudge in ruling on post trial motions said that evidence of defendant’s guilt was “overwhelming” and was “proved beyond anything remotely close to a reasonable doubt.” From our examination of the record we are bound to agree with the court in its assessment of the evidence. In State v. Mason, 208 Kan. 39, 42, 490 P. 2d 418, we said the duty of a trial court to instruct on included offenses “arises only where the omitted instructions are ‘clearly required by the evidence’ and ‘the jury might naturally and probably have convicted of a lesser degree or offense’ if they had been given. State v. Winters, 81 Kan. 414, 421, 105 Pac. 516.” See, also, State v. Masqua, 210 Kan. 419, 424, 502 P. 2d 728; State v. Warbritton, 211 Kan. 506, 508, 506 P. 2d 1152.
Our rule accords with other authorities. In State v. Wilson, 162 S. C. 413, 161 S. E. 104, it was held that where evidence showed assault with intent to ravish if any crime at all had been committed, failure to instruct on simple assault and battery was not error. In Burnam v. Commonwealth, 289 Ky. 312, 158 S. W. 2d 131, it was said if uncontradicted testimony showed rape was committed and the defense was alibi, the evidence did not justify an instruction on assault and battery.
Defendant next argues that since he was convicted of assault and battery he stands acquitted as a matter of law of the greater offense of rape. The defendant misconceives the import of the statutes he cites. K. S. A. 21-3107 (2) provides in part as follows:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. . . .” (Emphasis supplied. )
while K. S. A. 21-3108 reads in part:
“A conviction of an included offense is an acquittal of the offense charged.” (Emphasis supplied.)
Neither provision is relevant here, for they relate to convictions of included crimes, not to separate offenses. The authorities cited apply only where the accused was found guilty of an offense included in the greater crime for which he was tried. For example, in State v. Gunzelman, 210 Kan. 481, 489-490, 502 P. 2d 705, defendant was charged with aggravated battery against a law enforcement officer, a felony, under K. S. A. 21-3415, but was convicted of battery of a law enforcement officer, a misdemeanor, under 21-3413. Conviction of the included misdemeanor charge, we said, would bar subsequent trial for the felony.
The final point raised by defendant concerns a challenge for cause against one of the jurors, a Mr. Moreland. On voir dire examination the juror said he had heard talk about the case around the TV store where he worked, but no expression of opinion as to guilt or innocence, or of the purported facts, and he thought his frame of mind was such that he could evaluate the evidence.
When the motion for new trial was heard, the defendant produced a witness, Darrell Allen, who was a third or fourth cousin of the accused and the employer of defendant’s brother-in-law. Allen testified he was in the TV shop when word was received that the first trial ended in a hung jury; that Moreland said he didn’t see how a jury could come to that decision on a case of that sort; that Moreland kept talking and said he was picked for jury duty next term and “subsequent conversation didn’t leave any doubt in my (Allen’s) mind that he (Moreland) thought Curtis James should have been guilty” although Moreland did not say he could not be an impartial juror. Neither did Allen remember Moreland saying anything about what he would do if he were on the next jury, but Allen thought he was serious.
In overruling the motion for new trial, Judge Birney made a specific finding that counsel for James “did an extremely able job in his Voir Dire (sic) examination” and that he had “kept particularly alert because of the possibility of this case having been pretty thoroughly discussed.”
Our rule is that the decision of the trial court as to a juror’s qualification to sit in a case will not be disturbed on appeal unless his disqualification appears as a matter of law or there has been an abuse of discretion. (State v. Coleman, 206 Kan. 587, 596, 481 P. 2d 1008; State v. Dearman, 203 Kan. 94, 98, 453 P. 2d 7, cert. den., 396 U. S. 895, 24 L. Ed. 2d 173, 90 S. Ct. 194; State v. Williams, 182 Kan. 468, 471, 322 P. 2d 726.)
We are unable to say the trial court abused its discretion in refusing to grant a new trial on the basis of Moreland’s alleged disqualification. In assessing the worth of Allen’s testimony and the weight it should be accorded, the trial judge occupied an advantageous position. He was able to observe Moreland’s demeanor on the stand, the manner in which he testified, his tone of voice, his facial expression and his appearance in general. (Collins v. Merrick, 202 Kan. 276, 280, 448 P. 2d 1.) The trial judge was entitled, also, to take into consideration in determining credibility, Mr. Allen’s relationship to the defendant and his connection with members of defendant’s family. In Morton v. State, 1 Kan. 468, 472, this court said:
“. . . It is the mind of the court which must be satisfied that the challenged juror is free from bias and prejudice, and not that of the juror himself.
It may be noted that Moreland was not reported as having said what he would do were he on the jury, or that he could not reach an impartial verdict or could not be an impartial juror. The record does not indicate why Mr. Moreland was not produced at the motion for new trial or \vhy the trial court did not call him in for further questioning. We can only assume that the trial judge placed little if any credence in Allens testimony, but believed Moreland had spoken truthfully at the time of his voir dire examination. In the case of In re Estate of Curtis, 193 Kan. 431, 436, 394 P. 2d 59, we said that while a court, as the trier of facts, may not arbitrarily or capriciously refuse to consider the testimony of any witness, it is not obligated to believe or accept as true the testimony of any witness which it honestly believes to be unreliable, even though it may be uncontradicted. Disbelief of testimony given by a witness may have resulted from his appearance and demeanor, which an appellate court never has an opportunity to observe. (Kallail v. Solomon, 146 Kan. 599, 602, 72 P. 2d 966; In re Estate of Johnson, 155 Kan. 437, 439, 125 P. 2d 352.)
Judgment affirmed.
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Per Curiam:
Affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Foth, C.:
The defendant Chester R. Ridge was convicted by a jury of felony theft for stealing $105 from the cash drawer of a Wichita lamp shop. On appeal he contends (1) that the state’s evidence was insufficient; and (2) that certain money taken from his person and that of an alleged accomplice should not have been admitted into evidence.
Defendant’s first point is based on his own testimony and that of his companion, Sonya Loggins. By their testimony they went to the store together. There, Sonya took the money without defendant’s knowledge, and only told him about it after they had driven away from the shopping center where the victimized shop was located. At the time of defendant’s trial Sonya had already pleaded guilty to the theft.
The jury, of course, was not bound to accept their version of the incident; it having convicted the defendant it is presumed to have believed the state’s evidence and to have drawn from it all inferences favorable to the state. State v. Satterfield, 202 Kan. 391, 449 P. 2d 564; State v. Childs, 198 Kan. 4, 422 P. 2d 898.
If the jury gave credence to the testimony of the shop’s manager and sales clerk it would find: Defendant and Sonya entered the shop together and engaged Mrs. Cynthia Clinton, the manager, in conversation at the front of the store; defendant made his way to the rear o£ the store where the cash box was kept in a desk drawer; when Mrs. Clinton left Sonya and approached him Sonya immediately re-engaged her in conversation at the front of the store; Sonya was never in the back of the store or anywhere near the cash box; as Sonya was talking to the manager defendant suddenly came hurrying up from the back, took Sonya’s arm and rapidly escorted her from the store; alarmed by the sudden departure the store personnel quickly checked the cash box and discovered it empty except for change; Mrs. Clinton ran out of the store and observed defendant and Sonya, ignoring her shouts, run across the shopping mall and parking lot, get into a car, and speed away. A quick inventory showed about $105 was missing from the cash box.
A young man who observed the flight across the parking lot testified to taking the tag number of the getaway car and giving it to police. The police tracked the car to a dealer and went there to wait. Defendant soon approached, but turned down on alley near the dealer’s lot. The police gave chase with red light and siren on, while defendant hit speeds over 50 m. p. h. through downtown Wichita, ignoring stop signs and red lights. After a bit defendant and Sonya abandoned the car and fled afoot. The chase continued on foot, and led back to the previously abandoned car. There both the fugitives surrendered at gun point. Between them they had on their persons $182.60.
Assuming as we must that the jury believed all this testimony, it had ample basis for inferring that defendant himself stole the money. At the very least his flight permitted the inference that he was a conscious and willing participant in the theft. State v. Townsend, 201 Kan. 122, 439 P. 2d 70, and cases cited. The state’s evidence was sufficient to support the verdict.
The money defendant now complains of formed two exhibits. No. 3 contained three twenties and three ones ($63 in all) taken from defendant, and one twenty, a one and 60 cents in change ($21.60) taken from Sonya’s brassiere and pocket. No. 5 was $98 taken from Sonya’s purse. No objection to the admission of these exhibits appears in the record, and even if there had been one they would have been admissible. While there was no way to identify any of this money as the identical money taken from the shop, it did exceed the missing $105. Being on the suspects’ persons immediately after the theft, its presence was consistent with its being the stolen loot. The lack of positive identification went to its weight, not its admissibility. Cf. State v. Fagan, 213 Kan. 587, 518 P. 2d 552; State v. Jones, 202 Kan. 31, 446 P. 2d 851; State v. Gauger, 200 Kan. 563, 438 P. 2d 463.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Betty Giddings, was convicted of forging and uttering a check in violation of K. S. A. 21-3710 (1) (a) and (b). She was sentenced to the Director of Penal Institutions for a period of not less than one (1) year nor more than ten (10) years on each count, the sentences to run concurrently. She has appealed.
The evidence shows that about 2:00 p. m., December 1,1972, Mrs. Giddings went into Dillons north store in Great Bend. She approached Dorothy Sooby, one of the checkers, and asked if she could cash a check. On receiving an affirmative answer she made out a $20 check in Mrs. Sooby’s presence and signed it in the name of Rosie Long. Mrs. Sooby gave her a twenty dollar bill but after some discussion with Mrs. Giddings “about her needing some money for her kid for school,” Mrs. Sooby changed the bill into smaller denominations. As Mrs. Giddings left the store, Mrs. Sooby became suspicious when she noticed some numerals near the bottom of the check. She called her supervisor, Mr. Fabin, who looked at the check and shared her suspicions. Fabin then walked to the store parking lot where he observed Mrs. Giddings backing out of a parking stall, and he took down her license number. He testified he observed Mrs. Giddings turn her head and he believed she saw him standing in the parking lot with a check in his hand.
Mr. Fabin called the bank on which the check was drawn and was advised there was no account in the name of Rosie Long. He then took the check to the bank where it was marked “no account.” Mrs. Sooby thereafter took the check to the county attorney’s office where she filled out a questionnaire and talked to Jack Atteberry, of the Barton County sheriff’s office. He showed her a number of pictures from which she identified Mrs. Giddings as the lady who gave her the check. After the identification was made Atteberry had a complaint and warrant prepared in the county attorney’s office and took them to the magistrate, before whom he signed the complaint. A warrant was then issued and placed in his hands.
Mrs. Giddings testified she needed the money to go after her son, Duane, who was attending an auto mechanics’ school in Plain-ville; that he had called her, saying he was homesick and wanted to come home to visit his mother. Her defense was built around the proposition that she had no intent to defraud when she wrote and gave the check to Dillon’s; that she told Mrs. Sooby she would be back to pick up the check at 5:30 (which Mrs. Sooby denied); that after she got Duane, who the day before had received his stipend from the school, the two drove back to Great Bend and went to the Dillon store to pick up the check; on learning the check had been turned to the county attorney they went to Ins office to pay off the check; they then started to the sheriff’s office, where the check had finally come to rest, intending to pay it there; that Duane ran on ahead and, as she was crossing the court house square she was met by Officer Atteberry who took her into custody and clapped her into jail. The testimony of Mrs. Giddings with respect to her efforts to pay off the check was corroborated by her son, by Dillon employees and by the county attorney’s secretary.
Numerous errors are alleged on appeal. Mrs. Giddings first contends her arrest was illegal because no testimony was taken by the magistrate before issuing the warrant. The contention lacks merit for several reasons. The complaint was signed before the magistrate and bears his jurat. The applicable statute K. S. A. 22-2302, provides that a warrant shall issue if the magistrate finds probable cause either from a complaint, or from affidavits filed with the complaint or from other evidence. In State v. Woods, 214 Kan. 739, 741, 522 P. 2d 967, we said that a properly verified complaint is sufficient authority for a finding of probable cause and the issuance of a warrant. See, also, State v. Addington, 205 Kan. 640, 644, 472 P. 2d 225.
The defendant suggests the magistrate did not read the complaint, but there is not a shred of evidence to support such a claim. It is presumed that a public officer will have done his duty until the contrary has been established. (Call v. State, 195 Kan. 688, 408 P. 2d 668; Wright v. State, 199 Kan. 136, 427 P. 2d 611.) That presumption is valid under the circumstances of this case.
Even if the warrant had been improperly issued, the defendant’s cause would not be aided. An illegal arrest does not, standing alone, invalidate a subsequent conviction. (Kinnell v. State, 205 Kan. 445, 469, P. 2d 348; State v. Addington, supra, p. 644; State v. Larkin, 209 Kan. 660, 661, 498 P. 2d 37; State v. Woods, supra, p. 741.) Moreover, we believe the arrest was lawfully made on the basis of probable cause. K. S. A. 22-2401 (c) provides that a law enforcement officer may arrest a person when he has probable cause to believe he has committed a felony. In our opinion Officer Atteberry had reasonable cause to believe Mrs. Giddings had committed a forgery; he had seen the check, he had been informed as to the license tag on the car, he knew the car was frequently used by defendant, and he knew of Mrs. Sooby’s positive identification of the defendant.
Defendant next argues there was unreasonable delay in taking her before the magistrate. She was arrested about 5:30 p. m. Friday and taken before the magistrate early in the afternoon on the following Monday. In answer to defendant’s complaint concerning the elapsed time the state calls attention to the following facts: the amount of bond was endorsed on the warrant, Mrs. Giddings was allowed to call her attorney and the court house was closed on Saturday and Sunday.
This court strongly disapproves of unwarranted delay in taking any prisoner before a magistrate after he or she has been arrested. However, we have said that delay is not in and of itself a denial of due process unless it has in some way prejudiced the accused’s right to a fair trial. (Cooper v. State, 196 Kan. 421, 411 P. 2d 652; Underwood v. State, 214 Kan. 633, 522 P. 2d 457.) The defendant has not shown she was prejudiced by the three-day delay which occurred here. She had access to her attorney; the amount of bond required had been set and was endorsed on the warrant; and no incriminating statements are shown to have been procured during the incarceration. In Cooper we held a thirteen-day delay between arrest and appearance before a magistrate was not shown to have been prejudicial; in Undertoood the delay was for six days.
Mrs. Giddings further contends the state failed to make out a prima fade case of guilt, in that proof of intent to defraud was lacking. The forgery statute, K. S. A. 21-3710, makes intent to defraud a necessary element of the offenses defined therein. Normally, intent is not susceptible of direct or concrete proof; most often it must be inferred from the surrounding facts and circumstances. K. S. A. 21-3110 (9) defines the term in these words:
“ ‘Intent to defraud’ means an intention to deceive another person, and to induce such other person, in reliance upon such deception to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.”
The most incriminating circumstances in the case at hand was that Mrs. Giddings used a fictitious name in signing the check. This was a circumstance from which, in our opinion, the jury was entitled to infer a fraudulent intent on her part. The provisions of K. S. A. 21-3702 (1) throw some light on proof of intent:
“(1) In any prosecution under this article, the giving of a false identification or fictitious name, address or place of employment at the time of obtaining control over property shall be deemed prima facie evidence of intent to permanently deprive the owner of said property of the possession, use or benefit thereof.”
True, the defendant stated she intended to return and pay the check. She also testified she told Mrs. Sooby she would pick up the check about five that evening, although Mrs. Sooby remembered no such conversation. There was further evidence that Mrs. Giddings did return the same evening, ostensibly to pay the check. However, the impact of that evidence may have been tempered somewhat by Fabin’s testimony that defendant looked in his direction as she drove from the parking lot, and the jury may well have inferred a guilty conscience was inspired by the sight of that gentleman standing in the parking area holding the check and noting the tag number. At any rate it was for the jury to determine whether or not an intent to defraud was present when the fictitious check was passed and we think the evidence sufficient to support its finding in that regard.
The court overruled a motion made by Mrs. Giddings to strike count two of the information which alleged the issuance of the fictitious check, and this is assigned as error. We believe there is merit in this contention because the charge in count two does not allege intent to defraud, an essential element of forgery. Parenthetically we might add that intent to defraud was included in count one.
Count two alleged that the defendant did:
“[U]nlawfully, feloniously, and wilfully, issue a written instrument; to wit: a check written on the American State Bank, Great Bend, Kansas, in the amount of $20.00, dated November 25, 1972, knowing it to have been made or altered in such a manner that it purported to have been made by another person; to wit: ROSIE LONG, in violation of Section 21-3710 (b) of the Kansas Statutes Annotated.”
K. S. A. 21-3710 defines the crime of forgery. In pertinent part it reads:
“(1) Forgery is knowingly and with intent to defraud:
“(a) Making, altering or endorsing any written instrument in such manner that it purports to have been made, altered or endorsed by another person, either real or fictitious, and if a real person without the authority of such real person; . . .
“(b) Issuing or delivering such written instrument knowing it to have been thus made, altered or endorsed . . .” (Emphasis supplied.)
In attempting to support the trial court’s ruling the state contends (1) count two is framed substantially in the language of the statute, a method which is generally held to be sufficient in alleging an offense (State v. Chuning, 199 Kan. 215, 428 P. 2d 843), and (2) criminal intent is implied by the words “unlawfully, feloniously and wilfully.” We think neither argument is sound.
It is clear that intent to defraud has been made a specific component of the offenses denounced in 21-3710 as forgeries and we believe it manifest that no charge can be said to follow the language of that statute which entirely omits the required intent.
Our cases hold, in general, that in charging a criminal offense the essential elements composing it must be set forth. In State v. Minor, 197 Kan. 296, 416 P. 2d 724, the state failed to allege an essential ingredient of first degree manslaughter, i. e., that the killing would be murder at common law. We held that a conviction of first degree manslaughter could not be sustained.
Similarly, in State v. Baker, 197 Kan. 660, 421 P. 2d 16, the information charged Baker with second degree burglary but omitted an essential element of that offense, namely, “in the nighttime.” The conviction obtained in that case was held void for lack of jurisdiction.
Although we have not dealt specifically with the failure to allege a specific intent which is made part of a criminal statute, the general rule is found in 42 C. J. S., Indictments and Informations, § 134, pp. 1025, 1026:
. . A specific intent which is made part of the offense by the statute creating it must be charged, as where the intent with which an act- is done brings it within a statute punishing as a felony that which at common law was but a misdemeanor, or where an act is criminal only if done with a particular intent . . .”
In State v. Bills, 118 Ark. 44, 176 S. W. 114, the Arkansas statute made it a crime for a person to receive or buy stolen goods knowing them to be stolen, with intent to deprive the true owner thereof. The indictment failed to allege the property was received with the specified intent, but the state contended that use of the word “feloniously” supplied the omission. In answer to this argument, the Arkansas court stated:
“. . . But while the use of the word ‘feloniously’ does impute an unlawful intent to commit a crime, its use can not supply the omission of the allegations essential to constitute a charge of the commission of the particular offense.” (p. 46.)
In People v. Faber, 29 C. A. 2d 751, 77 P. 2d 921, the charge was criminal slander. The penal code made intent to' injure another a specific component of the offense. The complaint contained no allegation of an intent to injure, and the charge was held insufficient. Speaking on the subject of intent the court said that “wilfully” simply implies willingness to commit unlawful acts and not necessarily any specific intent to violate law or to injure another. The court went on to say:
. . Where specific intent enters into the definition of the crime . . . mere intentional commission of the act denounced is not enough, and therefore it is not enough to charge that it was ‘wilfully’ done. . . .” (p. 755.)
In our opinion count two was deficient and should have been dismissed.
Are charges of forging and uttering duplicitous, as the defendant contends? This court gave a negative response to this question as far back as State v. Murphy, 145 Kan. 242, 65 P. 2d 342, where it was said:
“. . . By statute in this state, although both forgery of a check and uttering of a check are classified as forgery in the second degree, yet each constitutes a separate and distinct offense. . . .” (p. 243.)
Murphy was followed in the recent case of State v. White, 207 Kan. 800, 486 P. 2d 1381, wherein we stated:
“. . . The crimes of forgery and attempting to utter a forged instrument are separate and distinct offenses; conviction of one is not dependent upon conviction of the other. . . .” (p. 803.)
See, also, 22 C. J. S., Criminal Law, § 289, pp. 758, 759.
Mrs. Giddings next complains that the state was permitted, over objection, to question her on cross-examination with respect to a former conviction in Saline County for writing bad checks. Whether the checks were “insufficient” or “no account” is not disclosed. The state seriously contends the evidence was admissible for purposes of impeachment after Mrs. Giddings had opened up the subject on her direct examination.
So far as material here, K. S. A. 60-421 provides in substance that where the accused is a witness, no evidence of his conviction of crime shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence solely for the purpose of supporting his credibility. Mrs. Giddings had testified on direct that she had never “pulled a check operation of this type before”; she thought she could do it because Zane, one of her former husbands, had done it several times. On cross-examination she was asked the following question and gave the following response:
“Q. Are you saying, did you state you never done anything like that before?
“A: I have never, no. I have never done anything like that before.”
It appears to us that Mrs. Giddings opened up the question of her good character when she testified she had never pulled a check operation like this before, and that the state was thus entitled to rebut her testimony to such effect.
But the defendant argues that because she was not represented by counsel in the former case the conviction cannot be used for impeachment purposes under the rationale of Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792. Gideon announced the rule that in the absence of waiver a felony conviction is invalid if it was obtained in a court which denied the accused the help of a lawyer. That concept has since been applied to convictions for misdemeanor offenses resulting in imprisonment. (Argersinger v. Hamlin, 407 U. S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006.)
Where a conviction is constitutionally infirm under the Gideon rule it has been held that it may not be employed against an accused for several purposes. In Burgett v. Texas, 389 U. S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258, it was said:
“. . . To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U. S. 269) is to erode the principle of that case. . . .” (p. 115.)
In a more recent case, Loper v. Beto, 405 U. S. 473, 31 L. Ed. 2d 374, 92 S. Ct. 1014, the federal Supreme Court ruled that a constitutionally unsound conviction could not be used for purposes of impeaching the credibility of an accused. The essence of the court’s holding is expressed in the following language:
“Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant’s credibility deprives him of due process of law. We can put the matter no better than in the words of the Court of Appeals for the First Circuit:
“ ‘We conclude that the Burgett rule against use of uncounseled convictions “to prove guilt” was intended to prohibit their use “to impeach credibility,” for the obvious purpose and likely effect of impeaching the defendant’s credibility is to imply, if not prove, guilt. Even if such prohibition was not originally contemplated, we fail to discern any distinction which would allow such invalid convictions to be used to impeach credibility. The absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt.’ Gilday v. Scafati, 428 F. 2d 1027, 1029.” (p. 483.)
Despite the Loper decision, we believe the trial court did not err in permitting cross-examination of Mrs. Giddings as to her prior conviction inasmuch as the factual situation here was significantly different from that in Loper. In the present case Mrs. Giddings, on direct examination, denied any prior misconduct similar to the offense for which she was being tried. That was not the situation in Loper, as footnote 11 (p. 482) makes clear. The footnote reads:
“This is not a case where the record of a prior conviction was used for the purpose of directly rebutting a specific false statement made from the witness stand. Cf. Walker v. Follette, 443 F. 2d 167, and see Harris v. New York, 401 U. S. 222; Walder v. United States, 347 U. S. 62. The previous convictions were used, rather, simply in an effort to convict Loper by blackening his character and thus damaging his general credibility in the eyes of the jury.”
In our judgment the Loper decision was never intended to hamstring the state in countering or rebutting untruthful statements made by the defendant as a witness on his direct examination.
The case of United States ex rel. Walker v. Follette, 443 F. 2d 167, appears factually in point. In that habeas action the petitioner attacked his conviction on tire ground that his Fourteenth Amendment right to a fair trial was violated when he was cross-examined concerning convictions in two prior cases in which he was not represented by counsel. Prior to his cross-examination the petitioner had testified on direct that he had never been convicted of a crime. In rejecting petitioners claim of prejudice, the court said:
“. . . If a defendant testifies, he puts his credibility in issue. If he lies in the course of his testimony, he lays himself open to attack by means of illegal evidence which otherwise the prosecution could not use against him. It follows that the district court correctly decided that petitioner’s rights to a fair trial had not been infringed.” (p. 170.)
In its opinion the court quoted from Walder v. United States, 347 U. S. 62, 98 L. Ed. 503, 74 S. Ct. 354, a narcotics case, where the defendant testified on direct that he had never possessed narcotics, and the government was allowed to show he had previously been found in possession of heroin. Walder claimed the government’s evidence was inadmissible since the heroin was obtained from him without a valid search warrant. The court rejected this contention by saying:
“ ‘It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.’ ” (p. 169.)
In large part, the decision in United States ex rel. Walker v. Follette, supra, was bottomed on Harris v. New York, 401 U. S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643. Harris was charged with making two separate sales of heroin, two-days apart, to police undercover agents. He took the stand and flatly denied one sale but admitted selling, on the other date, two glassine bags containing what appeared to be heroin but which he said actually contained baking powder intended to deceive the purchaser. On cross-examination defendant was queried as to statements made to the police immediately following his arrest. The statements partially contradicted defendant’s direct testimony, were made without benefit of a Miranda warning, and were claimed by Hands to be inadmissible. In sustaining the Harris conviction, the Supreme Court spoke in this vein:
“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U. S. 77 (1969); cf. Dennis v. United States, 384 U. S. 855 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.
“The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.” (pp. 225,226.)
So in this case, we hold that cross-examination of Mrs. Giddings as to a former conviction was proper to rebut her testimony given on direct examination.
A point is made concerning instructions. It is said the court erred in not instructing the jury with respect to the offense of temporary deprivation of property (K. S. A. 21-3705), which the defendant argues is a lesser included offense of forgery. It is true that trial courts are enjoined by K. S. A. 21-3107 (3) to instruct not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information and on the evidence adduced, “even though such instructions have not been requested or have been objected to.” Even so, we believe the court did not err in failing to give a lesser included offense instruction here, because we cannot agree that the temporary deprivation of property is a lesser offense of forgery.
For an offense to be considered a lesser included offense of another, all the elements necessary to establish the lesser offense must be present and be required to prove the elements of the greater offense. (State v. Woods, 214 Kan. 739, 744, 522 P. 2d 967; State v. Carpenter, 215 Kan. 573, 579, 527 P. 2d 1333; State v. Hreno, 162 Ohio St. 193, 122 N. E. 2d 681; State v. Waldenburg, 9 Wash. App. 529, 533, 513 P. 2d 577.)
We have previously set out those sections of the forgery statute pertinent to this case (K. S. A. 21-3710 [1] [a] and [b]) and shall not repeat them at this time. A common component of the making and the passing of a fictitious written instrument, both denominated as forgery under the statute, is the intent to defraud.
Unlawful deprivation of property, a misdemeanor, is defined in K. S. A. 21-3705:
“Unlawful deprivation of property is obtaining or exerting unauthorized control over property, with intent to deprive the owner of the temporary use thereof, without the owner’s consent but not with the intent of depriving the owner permanently of the possession, use or benefit of his property.”
It will be noted that while forgery requires an intent to defraud, unlawful deprivation of property does not. On the other hand, before there can be an unlawful deprivation of property, there must be an intent to deprive the owner of its temporary use, and this element is not found in forgery.
K. S.A. 21-3107 (2) has to do with included crimes or offenses and provides in material part:
“. . . An included crime may be any of the following: (a) A lesser degree of the same crime;
“(b) An attempt to commit the crime charged;
“(c) An attempt to commit a lesser degree of the crime charged; or
“(d) A crime necessarily proved if the crime charged were proved.”
Obviously, the temporary deprivation of property will not fit categories (a), (b) or (c). Nor do we think it comes within the aura of (d), since it cannot be said 'that all of its elements are necessary elements of 'the greater charge of forgery.
Historically 'the offense defined in 21-3705 succeeded a prior misdemeanor statute (former K. S. A. 21-544) defining an offense popularly known as “joyriding.” Judicial Council notes, 1968, recite:
“The section represents an expansion of the former ‘joyriding’ statute, former K. S. A. 21-544, to include all classes of property.”
We find nothing in our oase law to suggest 'that the taking of personal property for temporary use under the “joyriding” statute was ever considered to be a lesser included offense of forgery, nor do we consider obtaining unauthorized control over property for temporary use, under K. S. A. 21-3705, to be an included offense of forgery. We are constrained to hold the trial court 'did not err in failing to instruct as to a lesser included offense.
After the jury had deliberated for some time, it requested a definition of the meaning of intent to defraud. The court responded by submitting the definition found in K. S. A. 21-3110 (9) which we have heretofore quoted.
The defendant now complains of the additional instruction, de scribing it as “inadequate” and “unresponsive.” Her attack comes with singular lack of grace inasmuch as her own ‘counsel suggested giving the statutory 'definition in response to the jury’s request. A trial court is not to be mouse-trapped in such a cavalier fashion. Moreover, an instruction to which no objection was interposed at the trial will not be reviewed on appeal (State v. Carter, 148 Kan. 472, 83 P. 2d 689; State v. Potts, 205 Kan. 47, 468 P. 2d 78) unless the instruction is clearly erroneous. (State v. Severns, 158 Kan. 453, 148 P. 2d 488; State v. Ragland, 173 Kan. 265, 246 P. 2d 276.) We do not view the additional instruction setting forth the statutory definition of' intent to defraud as being inadequate, unresponsive or clearly erroneous.
Other points raised by defendant have been considered, but are found ‘to be without merit. No good purpose would be served by encumbering this opinion with further comment concerning them.
The judgment is affirmed as to count one. As to count two the judgment is reversed and the cause is remanded with directions to set 'aside the conviction on that count.
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The opinion of the court was delivered by
Harman, C.:
This is an appeal by the state from an order dismissing an information and discharging the defendant Robert Conley, who was charged by an information in the general language of K. S. A. 21-3503 (1) (b), with committing the offense of indecent liberties with a child. The issue on appeal, one of first impression, is whether that statute is unconstitutionally vague and indefinite as ruled by the trial court.
The constitutional provisions asserted to be violated by the enactment in question are section 10 of the Kansas Bill of Rights which states:
“In all prosecutions, the accused shall be allowed ... to demand the nature and cause of the accusation against him . . .,”
and the due process clause of the fourteenth amendment to the federal constitution.
The test whether a state statute is so vague and indefinite and therefore fails to inform the accused of the nature and cause of the charge against him as required by our Bill of Rights is the same as that applicable in determining whether a statute violates the ..due process clause of the fourteenth amendment to the federal constitution. (State, ex rel., v. Fairmont Foods Co., 196 Kan. 73, 410 P. 2d 308). In State v. Hill, 189 Kan. 403, 369 P. 2d 365, 91 ALR 2d 750, we discussed that test thus:
“It is well recognized that in order to satisfy the constitutional requirements of due process, a state statute must be sufficiently explicit in its description of the acts, conduct or conditions required or forbidden, to prescribe the elements of the offense with reasonable certainty. The standards of certainty in a statute punishing for criminal offenses is higher than in those depending primarily upon civil sanction for enforcement. The offenses must be defined with appropriate definiteness. There must be ascertainable standards of guilt, but impossible standards of specificity are not required. Men of common intelligence cannot be required to guess at the meaning of the statute. The vagueness may be for uncertainty with respect to persons within the scope of the statute or in regard to applicable tests to ascertain guilt. The test is whether the language conveys a sufficient definite warning as to the proscribed conduct when measured by common understanding and practice.” (pp. 410-411.)
If a statute conveys such a warning it is not void for vagueness (State v. Gunzelman, 210 Kan. 481, 502 P. 2d 705). Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process (Connolly v. General Const. Co., 269 U. S. 385, 70 L. ed. 322, 46 S. Ct. 126). In Giaccio v. Pennsylvania, 382 U. S. 399, 15 L. ed 2d 447, 86 S. Ct. 518, the matter was discussed in this fashion:
“It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.” (pp. 402-403.)
K. S. A. 21-3503(1) (b), under which defendant-appellee here was prosecuted, became effective July 1, 1970, as part of our new criminal code. In its entirety the statute provides:
"Indecent liberties with a child. (1) Indecent liberties with a child in engaging in either of the following acts with a child under the age of sixteen (16) years who is not the spouse of the offender:
“(a) The act of sexual intercourse;
“(b) Any fondling or touching of the person of either the child or the offender done or submitted to with the intent to arouse or satisfy the sexual desires of either the child or the offender or both.
“(2) Indecent liberties with a child is a class C felony.”
As initially promulgated by the Judicial Council Advisory Committee on Criminal Law Revision (see April, 1968 KJC Bull. Special Report, p. 56) and as introduced in the 1969 legislative session (SB No. 9, 1969 session, § 21-3503) this proposed new act in pertinent part provided:
“(1) Indecent liberties with a child is engaging in either of the following acts with a child under the age of 16 years who is not the spouse of the offender:
“(a) The act of sexual intercourse;
“(b) Any lewd fondling or touching of the sex organs of either the child or the offender done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both. . . .” (Our emphasis.)
The Advisory Committee’s Comment was in part as follows:
“This section is in lieu of the former provision relating to statutory rape. The name of the crime has been changed. The prohibited conduct includes not only sexual intercourse, but other indecent sexual conduct. . . .
“The proposal adopts part of the Illinois Criminal Code, 11-4.” (p. 56.)
As will already have been noted from comparison of the recommended act with the final product, two changes in the language of the proposed statute were made by the legislature in the course of its enactment: The adjective “lewd” as a modifier of the words “fondling or touching” was eliminated; and in lieu of the words “sex organs”, the term “person” was substituted.
The state argues that taken as a whole the statute gives sufficient notice of that which is prohibited conduct; that the term “indecent” when coupled with the term “liberties” is so well known as to be self-defining and understandable to the ordinary person of common intelligence; perfect standards of specificity in criminal statutes are neither required nor always possible, and finally, that appellate courts of Illinois and other states having similar statutes have found them to be constitutionally definite.
Appellee contends that the term “person” as referring to the body of a human being is impermissibly vague and indefinite; it may include anything from instep to ear lobe and from fingertip to fingertip; the words “fondling or touching” are indefinite and may mean anything from a handshake to sexual intercourse. Appellee also argues the term “sexual desires” is indefinite and vague because there may be different levels of this emotion. Granted, as to this latter contention, but we are not much troubled with it as with the two preceding contentions, because the term “sexual desires” does have a well recognized meaning.
In 10 Vernon’s K. S. A. Criminal Code, 21-3503, the authors make the following comment:
“‘Any fondling or touching’ of part (b) is general language which is intended to cover various types of lewd physical contacts which do not necessarily culminate in sexual intercoure or ‘unlawful sex act’ defined at section 21-3501. The entire context of the physical contact should determine whether or not it is within the scope of this section.
“Part (b) requires the contact be with ‘the intent to arouse or to satisfy the sexual desires of either the child or the offender’ so that an inadvertent touching of the intimate parts of another person does not constitute an offense.
“As a statutory standard of criminal conduct, part (b) is exceedingly vague. . . . Consequently, the validity of the section may be questioned.” (pp. 388-389.)
In eliminating the term “lewd” and in substituting the word “person” for the words “sexual organs”, as contained in the proposed draft by the advisory committee and the initial bill introduced by the senate judiciary committee, the legislature obviously broadened the scope of the offense denominated “indecent liberties with a child”. In fact the only limitations remaining are that the offense be committed upon a child under sixteen years of age who is not the spouse of the offender and that the touching or fondling be done or submitted to with a specific intent — to arouse or satisfy the sexual desires either of the child or the offender or both. The question is whether the language used is so broad and indefinite that it fails to warn as to the conduct sought to be proscribed. The state argues that the term “indecent liberties” conveys such warning to persons of common intelligence. The difficulty with this argument is that “indecent liberties with a child” is simply the name or the label given by the statute to the conduct sought to be prohibited and no more. Virtually all our newly enacted criminal statutes are couched in the same grammatical posture, e. g., “Murder in the first degree is . . .” (K. S. A. 21-3401), “Robbery is . . .” (K. S. A. 21-3426), “Theft is . . .” (K. S. A. 21-3701), and the like, followed by a definitional statement containing the elements of the particular crime. Elements constituting a crime were not in every instance so specified under our old criminal code; the statute simply designated the offense and resort to other authority was required. This is not the case in our present criminal code. The elements constituting each crime are spelled out after mention of the particular name or label. The term “lewd” was deleted and terms “indecent” or “indecent liberties” are not mentioned in the definition of the offense under scrutiny here. Accordingly the Advisory Committee on Criminal Jury Instructions has not seen fit to prescribe either of these terms as elements of the offense (see PIK Criminal 57.05). (Interestingly, the information under which this appellee was charged makes no mention of either of the foregoing terms). The point is, the particular name or label of an offense cannot logically be used to bootstrap a statutory definition otherwise lacking in specificity. It seems doubtful the legislature meant to proscribe eveiy form of touching of the person even though some degree of sexuality be present as in youthful kissing or embracing, yet that can be argued from the language employed. Where this is the case the statute can scarcely be said to contain ascertainable standards of guilt declaring just what conduct is forbidden. It cannot be denied the required intent stated in the statute supplies a measure of specificity but this is not sufficient to cancel the combined indefiniteness as to the type of contact and the part of the body involved as set out in the statute.
It is true some appellate courts have upheld the constitutionality of child molestation statutes against charges of vagueness. But these statutes have taken many forms and none is sufficiently similar to ours as to render those decisions persuasive here. For example, in People v. Polk, 10 Ill. App. 3d 408, 294 N. E. 2d 113, the court summarily rejected a contention that the Illinois statute on indecent liberties with a child was unconstitutionally vague and indefinite. However, the statute in question (Smith-Hurd 111. A. S.,yChap. 38, § 11-4) provided:
“Any person of the age of 17 years and upwards who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child:
“(3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both.” (p. 378.)
And in State v. Minns, 80 N. M. 269, 454 P. 2d, 355, the court likewise turned down a similar challenge. The New Mexico statute stated:
“. . . Sexual assault consists of either:
“A. any indecent handling or touching of any person under the age of sixteen [16] years or . . .” (N. M. S.A. 1953, § 40A-9-9).
Noteworthy in these two cases is the fact the Illinois act in its definitional part contains the adjective “lewd” as a modifier of “fondling or touching” while the New Mexico act similarly uses the term “indecent” with respect to “handling or touching”. Child molestation statutes in other states which have 'been upheld also have more confined meaning than ours by the use of terms such as “lascivious”, “sexually molest” or others with well -understood significance.
Our conclusion is that K. S. A. 21-3503 (1) (b) is not sufficiently definite in its description of the acts or conduct forbidden when measured by common understanding and practice as to satisfy constitutional requirements of due process. The trial court’s judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Owsley, J.:
Plaintiffs, N. Bus Farha, Ray R. Farha, Florence Farha Vandervort, and Josephine Farha Razook, brought an action in the district court of Sedgwick County, Kansas, to recover the reasonable value of defendants’ use and occupancy of a twenty-five acre tract of land in Texas. Defendants, Signal Companies, Inc., and Signal Properties, Inc., answered by challenging the in personam and subject matter jurisdiction of the Kansas court and asserting their ownership of the land by adverse possession. The trial court overruled defendants’ motions to dismiss for lack of jurisdiction, and submitted to the jury the issues relating to the ownership of the property and the value of its use and occupancy. Defendants appeal from a judgment in favor of plaintiffs, awarding them $2,400 for the use and occupancy of plaintiffs’ land.
Plaintiffs are all residents of the State of Kansas. Defendant Signal Companies, originally formed in 1928 under the name of Signal Oil & Gas Company, changed to its present name in 1968. Defendant Signal Properties, formed in December, 1969, is a wholly owned subsidiary of Signal Companies. Both Signal Companies and Signal Properties are Delaware corporations with their nrmcipal offices located in California. Personal jurisdiction over Signal Companies was based on the admitted transaction of business within this state, but there was no showing that Signal Properties was ever engaged in business within the state or that it did any act within the state which would bring it within the scope of the Kansas long arm statute, K. S. A. 60-308 (now K. S. A. 1974 Supp. 60-308). Apparently, the trial court permitted the exercise of personal jurisdiction over Signal Properties on the theory that it had jurisdiction over the parent corporation.
Plaintiffs assert their ownership of the land by virtue of the passage of title by a number of mesne conveyances. The record indicates that in 1932, plaintiffs’ family purchased one-half the minerals under this tract, and obtained an abstract of title. On July 11, 1936, Albert E. Hugg, the holder of a deed in the regular chain of title, gave a deed covering the remaining fee interest in the land to Rose A. Farha, plaintiffs’ mother. In 1937, the land was conveyed to N. Bus Farha, who deeded said property in 1946 to plaintiffs’ father, N. S. Farha. Upon N. S. Farha’s death in October, 1964, a life estate interest passed to Rose A. Farha. She died on January 23, 1971, and the entire fee interest in the property passed to the plaintiffs.
The property in question is a twenty-five acre tract of unimproved land located near Houston, Texas. The Farhas originally purchased the land as a long term investment and for possible oil and gas returns. The record reveals that the Farhas’ tract was located in the middle of more than five hundred acres of range land owned by Milby Butler. Over the years, Butler had succeeded in fencing in all his land to contain cattle. The Farhas’ tract was never separately fenced and several witnesses testified the cattle would also use that land for grazing from time to time.
In 1955 the Farhas leased the tract to Sohio Petroleum Company for a period of several years at substantial compensation. In addition, the Farhas paid all the taxes assessed on the property from the date of the original purchase in 1936.
Defendants offered evidence tending to show the Farhas had rarely visited the property after they bought it. The first time any of the family was on the property was in late 1939, at which time N. Bus Farha spent approximately one hour on the land. After that visit only four or five trips were made by members of the Farha family to the Texas property. Plaintiffs testified that when they did visit the property they talked with Milby Butler and he voiced no objection to their being on the land. In January, 1965, N. Bus Farha and his brother, Ray Farha, made a trip to the Texas land. At that time Butler indicated he thought he owned the twenty-five acre tract and he attempted to offer the Farhas one-half the minerals if they would give up their interest in the property. The Farhas testified they made it clear to Butler that they would not accept such a deal.
In late 1923, Milby Butler entered onto part of a tract of land known as the Chinaberry Pasture. The Chinaberry Pasture included the tract owned by the Farhas, as well as other lots in areas referred to as the Jensen Colony and John Dickinson Survey. Although there were some fences in existence which fenced out other pastures, Butler created an enclosure around his land by fencing the unenclosed sides soon after he purchased the land. Although Butler had no record title or color of title to the twenty-five acre tract, there was substantial evidence that the entire tract, including the land in question, was used as part of Butlers cattle ranching operations at various times over the years. There was also evidence that on different occasions through 1935 or 1936 Butler planted crops on five to ten acres of the Farhas’ land. In 1947 a canal was put through the property and for a few years Butler leased his land, along with the Farhas’ acreage to' a rice farmer. Whether any rice was harvested from the twenty-five acres does not appear in the record.
When the Farhas learned their land had been planted to rice, they wrote Butler and offered to let him use the land for the usual crop rental. Receiving no response from their letter, the Farhas commenced a trespass action in the Texas district court in 1948. Butler defended the action by asserting he was the true owner of the property, having acquired title by adverse possession. This action was later nonsuited by the Farhas and dismissed without prejudice, ostensibly for the reason no further rice was planted and they wanted to avoid further legal costs. Another such action was filed by the Farhas in 1950, but it, too, was later dismissed for lack of prosecution.
When the Farhas attempted to pay the taxes on the property in 1968, they learned that Signal Oil & Gas Company had already paid the taxes. Almost three years later, they obtained a supplemental abstract of title and learned for the first time that on December 31, 1964, Milby Butler had deeded a tract of more than five hundred acres to Signal Oil & Gas Company, which deed purported to include the Farhas’ property. At the same time the Farhas discovered that Signal Oil & Gas Company had changed its name to Signal Companies, and that Signal Companies had conveyed the same five hundred acre tract to a newly formed subsidiary, Signal Properties. Signal Companies had originally acquired the land for purposes of residential or commercial development, but, pending development, Signal Companies leased the land in 1965 to a farmer who grew rice and grazed cattle on parts of the whole tract.
On December 2, 1971, plaintiffs filed suit in Sedgwick County, Kansas, to recover the reasonable value of Signal Properties’ and Signal Companies’ use of the land. Defendants thereafter moved to dismiss the action, or for a stay. Their original answers denied liability, denied that plaintiffs were owners, and claimed ownership in Signal Properties.
On February 11, 1972, Signal Properties filed a trespass action in the district court of Galveston County, Texas, (subsequently removed by the Farhas to federal district court) claiming it had title by adverse possession. Signal Properties then moved in the federal district court for an injunction against the plaintiffs’ Kansas action. Upon issuance of the injunction, plaintiffs herein appealed to the Circuit Court of Appeals, which reversed and vacated the lower federal court’s injunction, thus clearing the way for the Kansas action to proceed. (Signal Properties, Inc. v. Farha, 482 F. 2d 1136 [5th Cir. 1973].)
After the trial, the jury entered a general verdict for plaintiffs, awarding them $2,400 for the value of defendants’ use of the Farha land. Defendants raise nineteen points on appeal, which we have consolidated for the sake of clarity.
Initially, we must determine whether a Kansas court has subject matter jurisdiction over Texas land in a suit brought by a Kansas resident to recover for the use and occupancy of land when the defendant claims ownership' by adverse possession. The answer depends on whether the action is local or transitory in nature, for it is generally recognized that local actions must be brought in the state where the land is situated; whereas, transitory actions may be instituted wherever the defendants may be found, even though lands lying outside the jurisdiction of that court may be affected by the decree. (Massie v. Watts, 6 Cranch 148, 3 L. Ed. 181 [1810].) In this state we have declared that whether a cause of action is deemed to be local or transitory depends on the pleadings and relief sought. Where the decree sought would act upon the person of the defendant, rather than upon the real property, the location of the land indirectly affected is immaterial and the action is considered to be transitory. (Raynolds v. Row, 184 Kan. 791, 339 P. 2d 358.)
Defendants argue that although the form of action brought by plaintiffs was superficially pled as one to recover for the use and occupancy of land, in actuality the controlling issue was whether title passed to defendants by adverse possession. They contend plaintiffs brought the issue of title into the Kansas court when they alleged in their petition that they were owners of the land. .When defendants answered by claiming title to the property by virtue of a conveyance by one who had acquired title by adverse possession, the controlling issue became one of title. If the suit were in the nature of an action to try title, there would be little doubt that it was a local action which would have to be brought in the state and county where the property is located. Defendants attempt to support their theory by citing numerous Texas cases which hold that actions to try title are local in nature and must be brought in the county where the land is located.
The fallacy in defendants’ argument arises from their conclusion that plaintiffs’ suit was in the nature of a title action and not one to recover for the use and occupancy of land. In this state it is well established that the right to recover for use and occupancy of land is permitted by statute (K. S. A. 58-2520).
Defendants’ brief overlooks the recent pronouncement of the Circuit Court of Appeals in the case of Signal Properties, Inc. v. Farha, supra. That decision vacated a federal district court injunction against the Farhas’ prosecuting the instant action, based on the ruling that such an injunction was not in aid of the federal court’s jurisdiction and was thus barred by the anti-injunction statute, 28 U. S. C. A. § 2283. Although the majority opinion stated that no question was raised as to the Kansas court’s personal or subject matter jurisdiction, the court recognized the well-settled rule that a decree in personam is binding upon the person of a defendant, and may result in a determination of the rights of that person in property located in another state or within the custody of another court:
“A court may properly adjudicate rights in property in the possession of .another court and may render any judgment ‘not in conflict with that court’s authority to decide questions within its jurisdiction and to make effective such decisions by its control of the property.’ . . .” (p. 1137.)
The court reasoned that the Texas courts had in rem jurisdiction over the land at issue, whereas the Kansas action was in personam. As such, the Kansas suit could not result in any judgment or decree which would interfere with the constructive possession of the federal court:
“While such tide issues as are first determined by the Kansas court may become binding on the parties to the Texas District Court action under the doctrines of res judicata or collateral estoppel if properly set up by plea in the latter court, the mere act of resolving those disputed issues which are common to both proceedings in Kansas will not disturb the Texas District Court’s constructive possession or control of the land. An irreconcilable conflict between the state and federal judiciaries would only arise if both sought to exercise authority to dispose of the same res. . . .” (p. 1137.)
The majority opinion refused to accept the ruling of the lower federal court that the Kansas suit was brought to try title to the property.
This court has also recognized the same principles in similar circumstances. In Bankers Mortgage Co. v. Robson, 123 Kan. 746, 256 Pac. 997, the defendants challenged the jurisdiction of the district court of Ellsworth County, claiming an interest in real estate was involved and that the action could only be brought in Jewell County, where the property was situated. The court said an action to recover money as rent for the use of real property is a transitory one, and the fact that an inquiry may incidentally arise as to the ownership of the property does not change the nature of the action or give it the character of a local action:
“. . . It was not one to try the title to real property or to quiet title or to determine an interest therein, nor could any judgment affecting the real estate be rendered in the action. All that could be determined was the liability of the defendants for the rentals that had accrued, and the court rightly overruled the challenge of its jurisdiction.” (p. 749.)
Likewise, in Raynolds v. Row, supra, and in Roberts v. Cooter, 184 Kan. 805, 339 P. 2d 362, this court recognized that not every action growing out of transactions concerning real property is local. In Roberts an action on a contract was held to be transitory in nature, despite the fact the subject of the contraot was realty which was indirectly affected.
A similar statement of this priciple can be found in 56 Am. Jur., Venue, § 11, p. 14, wherein the editor states:
“. . . [I]n order to give a court jurisdiction under such a statute, on the ground that title to real estate is involved, it must appear as a general rule that the title will be directly affected by the judgment of the court; and it will not suffice for it to be incidentally, collaterally, or even necessarily inquired into if the judgment can be satisfied by the payment of money.
An early expression of tbds same principle was made by the United States Supreme Court in Massie v. Watts, supra, where Mr. Chief Justice Marshall stated:
“. . . [W]here the defendant in the original action is liable to the plaintiff, either in consequence of contract, or as trastee, or as the holder of a legal title acquired by any species of mala fides practised [sic] on the plaintiff, the principles of equity give a court jurisdiction wherever the person may be found, and the circumstance, that a question of title may he involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction.” (p. 158.) (Emphasis added.)
In Sheppard v. Coeur D’Alene Lumber Co., 62 Wash. 12, 112 Pac. 932, the court held under similar facts that an action for use and occupancy is transitory and may be maintained in a county or state other than where the land is located, despite the defendant’s claim to ownership of the land by adverse possession. The action for the value of the use and occupancy was brought in Washington by the record owners of land located in Idaho. The defendant claimed title by adverse possession. The court upheld the jurisdiction of the Washington court, saying:
“. . . We do not think the action affects the title to the property within the meaning of the statute. The purpose of the action is to recover a money judgment for a reasonable value of the property. In other words, the action is for the breach of an implied contract. Under the averments of the complaint, the respondents are tenants by sufferance and liable for the reasonable rental value. The fact that the answer sets up title in the respondent, and brings the title incidentally into issue, does not make the action a local one. . . .” (p. 14.)
In a more recent case, Silver Surprize v. Sunshine Min. Co., 74 Wash. 2d 519, 445 P. 2d 334, the plaintiff commenced an action in a Washington court for damages from the breach of a contract relating to certain mining lands in Idaho. The defendant answered by alleging his ownership of the premises through adverse possession. The Washington Supreme Court, in reversing the dismissal of the lower court for lack of jurisdiction, said:
“Jurisdiction is not a light bulb which can be turned off or on during the course of the trial. Once a court acquires jurisdiction over an action it retains jurisdiction over that action throughout the proceeding. . . . Neither can the defendant by his answer destroy the jurisdiction of the court once attained. ... If the converse of this were true, it would be within the power of the defendant to preserve or destroy jurisdiction of the court at his own whim.” (p. 523.)
Applying these standards to the instant case, we conclude the Kansas court had subject matter jurisdiction of the transitory cause of action brought by plaintiffs to recover for defendants’ use and occupancy of the Texas land.
Having determined the court had subject matter jurisdiction, the question arises as to whether the Kansas district court had jurisdiction over the person of Signal Properties. Plaintiffs rely upon the Kansas long arm statute, K. S. A. 60-308 (h) (1), for the exercise of jurisdiction over Signal Properties, based on the alleged transaction of business within the state. Due process requires that in order to subject a defendant to a judgment in personam if he be not present within the forum state, he have certain minimum contacts with it such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. (Internat. Shoe Co. v. Washington, 326 U. S. 310, 90 L. Ed. 95, 66 S. Ct. 154, 161 A. L. R. 1057; Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, 528 P. 2d 1248.)
In the case before us defendant Signal Companies does not challenge the finding of the trial court that it was transacting business within the state. The sole issue is whether Signal Properties, a wholly owned subsidiary, was also within the ambit of the long arm statute by virtue of its relationship with Signal Companies. The plaintiffs were unable to show any evidence of business being transacted in Kansas by Signal Properties. There was no showing that Signal Properties ever entered into a contract to be performed within the state or owned land within the state. Yet, plaintiffs contend the Kansas court can obtain jurisdiction over Signal Properties by “piercing the corporate veil,” and ruling that Signal Properties was a mere instrumentality of its parent corporation without any separate corporate existence.
The law is clear that mere ownership of all the stock of a subsidiary will not, in and of itself, subject the parent corporation to the jurisdiction of the state where the subsidiary is doing business. The test is whether the local corporation’s identity as a distinct corporate entity is observed. (Cannon Mfg. Co. v. Cudahy Co., 267 U. S. 333, 69 L. Ed. 634, 45 S. Ct. 250.) Numerous cases have extended jurisdiction over a foreign parent corporation based on the contacts of the domestic subsidiary with the forum state. (ACS Industries, Inc. v. Keller Industries, Inc., 296 F. Supp. 1160 [D. Conn. 1969]; State v. MacPherson, 62 N. M. 308, 309 P. 2d 981; Volkswagen Interamericana, S. A. v. Rohlsen, 360 F. 2d 437 [1st Cir. 1966]; Boryk v. de Havilland Aircraft Co., 341 F. 2d 666 [2d Cir. 1965]; Dam v. General Electric Co., 111 F. Supp. 342 [E. D. Wash. N. D. 1953]; Taca Int. Airlines v. Rolls-Royce, Eng., 21 App. Div. 2d 73, 248 N. Y. S. 2d 273, resettled 252 N. Y. S. 2d 395; See, 104 Pa. Law Rev. [1955], Jurisdiction Over Foreign Corporations — An Analysis of Due Process, p. 381; See also, 18 A. L. R. 2d Anno., § 6, p. 198, and Later Case Service.)
The reasoning of the coruts which have extended jurisdiction over the foreign parent corporation on the basis of the domestic subsidiary’s “presence” within the state, is that when a corporation exercises such control and domination over its subsidiary that it no longer has a will, mind, or existence of its own, and operates merely as a department of the parent corporation, both corporations should be treated as a single economic entity. Thus, service of process on the subsidiary operates to extend jurisdiction over the parent. Most of these cases recognize the basic injustice of allowing the parent to escape jurisdiction solely because of the utilization of a separate corporation to carry on and further its business activities in the forum state. We are faced with the alternate situation where the exercise of jurisdiction over the subsidiary is based on the “presence” of the parent corporation within the forum state.
Defendants claim the trial court erred in ruling Signal Properties was a mere “instrumentality” of Signal Companies and not a separate and distinct entity. Defendants point out that Signal Properties has its own officers and its own board of directors which meet regularly. They rely on the case of Henry v. Offshore Drilling (W. A.) Pty., Ltd., 331 F. Supp. 340 (E. D. La. 1971), to support their contention. In Henry the injured employee of the parent corporation sought to sue the foreign subsidiary based on the jurisdictional contacts of the parent. Although the corporate identities had not been kept separate the court held the subsidiary was not subject to jurisdiction in the forum state. The court recognized the general rule that a parent corporation may be subject to domestic jurisdiction through the contacts of its subsidiary, but refused to rule that the converse was true; i. e., that a foreign subsidiary may be subject to the jurisdiction of a state with which it has no connection other than the contacts of its parent. Accord ing to the reasoning of the court, a foreign subsidiary is subject to jurisdiction only in a case in which the subsidiary exercises a certain degree of control over the parent corporation, and where the parent can be said to have acted as an agent of the subsidiary. The holding of the court was limited to the following:
“. . . [A] foreign subsidiary is not amenable to local jurisdiction in the capacity of a principal unless it ‘purposefully avails itself of the privilege of conducting activities within the forum State’ through direction of its local parent. Hanson v. Denckla, 357 U. S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958).” (p. 343.)
The facts in Henry are similar to the instant case. Although plaintiffs emphasize the fact the parent corporation was not a party defendant, we attach no significance to that fact. Despite the similarity of the cases we disagree with the holding expressed in Henry. Specifically, we find no justification for requiring the subsidiary to exercise control over the parent before jurisdiction over the foreign subsidiary is obtainable.
We agree with Restatement, Second, Conflict of Laws, § 52, (Comment b), pp. 180, 181, wherein the following is stated:
“. . . [Jludicial jurisdiction over the parent corporation will give the state judicial jurisdiction over the subsidiary corporation if the parent so controls and dominates the subsidiary as in effect to disregard the latter’s independent corporate existence.”
In accord with this rule is the case of Gonzales v. Ametek, Inc., 50 Misc. 2d 62, 269 N. Y. S. 2d 616. The question in this case was whether the foreign subsidiary was doing business in the State of New York through its sole customer, the parent corporation. The New York Supreme Court answered the question in the affirmative, in spite of the fact it was the parent corporation which was transacting business within the state and not the subsidiary. In the opinion of the New York court, the underlying rationale for the “alter ego” principle should “cut both ways.” Accordingly, the court held there was jurisdiction over the foreign subsidiary by virtue of the parent corporations contacts with the state.
Similarly, the court held in Frazier, III v. Alabama Motor Club, Inc., 349 F. 2d 456, (5th Cir. 1965), that although defendant subsidiary corporations were incorporated elsewhere, they were not separate corporate entities and the appearance of corporate autonomy was superficial. Based on this finding, the court held the subsidiaries were doing business in the state where the parent corporation was incorporated.
The decision in Public Admin. v. Royal Bk. of Canada, 19 N. Y. 2d 127, 224 N. E. 2d 877, is in line with those cases extending jurisdiction over the foreign subsidiary when the entire corporate enterprise acts as a single economic entity. A French subsidiary corporation was held to be doing business in New York by virtue of its activities for the parent corporation. The court reasoned there was virtually no attempt to treat the French corporation as a separate entity and the sole reason for its separate incorporation was to avoid the French tax on the entire capitalization of foreign banks which operated in that country.
There is no sound reason for not applying the “alter ego” doctrine where the foreign corporation is the subsidiary and the forum court has jurisdiction over the parent corporation. In either case each corporation is part of the whole and both serve the same economic entity. As pointed out by the court in State v. MacPherson, supra, when jurisdiction is exercised over the subsidiary through the parent there is no longer the danger that a corporation may be drawn into litigation in a strange forum by the acts of someone relatively unfamiliar with its major policies and unimportant in its corporate hierarchy.
Measured by these principles the instant case clearly justifies treating the Signal enterprise as a single economic entity. Prior to the formation of Signal Properties, Signal Oil & Gas Company engaged in the purchase and sale of real estate as part of its business enterprise. It continued to deal in real estate after its name was changed to Signal Companies in 1968. When Signal Properties was formed in 1969, the new subsidiary ostensibly took over operation of the real estate portion of the enterprise from the same headquarters. Effective December 31, 1969, lands described in the Rutler deed to Signal Companies, as well as other land, were conveyed by an indenture to Signal Properties as a contribution to capital.
After the transfer of the real estate to Signal Properties, the parent company continued to supply the funds for further real estate acquisitions. From the depositions of various Signal officials it was established that notes which Signal Properties gave to its parent corporation would not have a due date, and that the subsidiary was limited by the parent as to the amount for which it could encumber its assets. Roth corporations operated from the same headquarters and filed under the same tax return. The financial aspects of both corporations were reported together and the parent was liable for the debts of the subsidiary. It was demonstrated that Signal Properties was staffed by several former employees of Signal Companies. Despite the separate incorporation, defendants admitted the financial matters of the subsidiary had to be cleared with and approved by the parent.
These facts clearly disclose the Signal business enterprise continued to operate as a single economic entity after the incorporation of Signal Properties. Signal Companies exercised complete and ultimate control over the business policies of its subsidiary. Under such conditions we must conclude Signal Properties was operated as a mere instrumentality of the parent corporation. We agree with the finding of the trial court that there was in personam jurisdiction over defendant Signal Properties.
Since there can be no question the Signal enterprise had sufficient contacts with this state, the extension of jurisdiction over a mere instrumentality of the single economic unit would not offend the due process standards as expressed in Internat. Shoe Co. v. Washington, supra.
Defendants next claim the trial court erred in overruling their motions to dismiss under the doctrine of forum non conveniens. They cite Gonzales, Administrator v. Atchison, T. & S. F. Rly. Co., 189 Kan. 689, 371 P. 2d 193; Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 91 L. Ed. 1055, 67 S. Ct. 839; and Hayes v. Chicago, R. I. & P. R. Co., 79 F. Supp. 821 (D. Minn. 1948), in support of their motions. Although defendants have not emphasized this point we have carefully reviewed each of these cases. They support the rule that in order to justify a reversal of a trial court’s decision it must be found there has been an abuse of discretion. It has been recognized that the doctrine is not applicable where one of the parties is a resident of the state. It has also been held that the doctrine is usually applied to tort actions between nonresidents concerning a tort in another state, and is not usually applied to contract actions. (20 Am. Jur. 2d, Courts, § 172, 177, 178.) Since this is a contract action in which the several plaintiffs are residents of the State of Kansas we cannot say the trial court abused its discretion.
Defendants claim the court erred in instructing the jury (No. 4) that occupancy of premises by one person, in the absence of an agreement or circumstances indicating a contrary intent, implies an agreement to pay the reasonable value for use and occupancy of the premises. Defendants argue that at common law a tenant at sufferance was not liable to the owner for the use and occupancy of property. Since the right to recover for use and occupancy in Texas is limited to a Texas procedure known as an action for trespass to try title (Tex. Rev. Civ. Stat. Anno., Art. 7389), and such procedure is local (Art. 1995, Sec. 14), the action can only be maintained where the land is located. This argument fails to recognize there is no provision in the Texas statutes limiting the right to recover for the use and occupancy to an action for trespass to try title. In Lazarus v. Phelps, 152 U. S. 81, 38 L. Ed. 363, 14 S. Ct. 477, in an independent action to recover for the use and occupancy of Texas lands, it was said that where the facts show an intent by defendant to avail himself of the pasturage of plaintiff’s lands, the law raises an implied promise to pay for such use and occupancy of the lands by him. Since Lazarus permits an independent action for use and occupancy, it follows that the common law rule that a tenant at sufferance is not liable for use and occupancy, has been abrogated in Texas. We need only add that an action to recover for the use and occupancy is transitory as previously concluded herein.
Defendants also claim error in the trial court’s instructions relating to the issue of adverse possession. They favor us with a reproduction of several of the involved Texas statutes. We have examined these statutes, along with the Texas cases cited by both parties, and have tested them against the instructions given by the trial court. We conclude the adverse possession instructions given are in accord with the law of Texas except as to the one matter next discussed.
While we agree the trial court misconstrued the Texas law when it instructed the defendants had the burden to prove “[t]hat Butler cultivated and used for agricultural purposes at least 1/10 of the 25 acres in question continuously for ten consecutive years,” we do not believe the error was prejudicial. Under Texas law it was not incumbent upon defendants to prove the foregoing, but it was their burden to establish the essential elements of adverse possession. (Smith v. Bradshaw, 93 S. W. 2d 468 [1936].) Since the jury specifically found defendants failed to establish adverse possession (answers to special interrogatories Nos. 2 and 3), the erroneous instruction became immaterial.
Defendants also contend the jury was guilty of misconduct in using a quotient method in arriving at their verdict. Conflicting affidavits were filed by the parties on the issue of whether there was an advance agreement among the jurors to accept the quotient figure. Where there is supporting evidence, although conflicting, we are not warranted in disturbing the finding of the trial court. (Blevins v. Weingart Truck & Tractor Service, 186 Kan. 258, 349 P. 2d 896.)
Defendants question whether N. Bus Farha’s testimony that the plaintiffs wanted $100.00 per month for the use of the land can be a basis for establishing the reasonable value of the use. Even if we agreed with defendants that this testimony was objectionable to establish value, we are satisfied there is sufficient evidence in the record to support the jury's verdict.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
Defendant appeals from a judgment awarded against it and in favor of plaintiff on a claim for personal services.
Prior to March, 1933, Guy T. Helvering was appointed director of highways by the state highway commission and was subject to removal by a majority vote of the commission as provided by section 5 of chapter 225 of the Laws of 1929. In 1933 the above section was amended by section 1 of chapter 277 of the Laws of 1933 (R. S. 1933 Supp. 74-2004), approved February 16, 1933, effective April 1, 1933, the only change that we need notice being that the director held office at the pleasure of the governor. On March 13, 1933, a written document, entitled “Articles of Agreement,” was executed by Industrial Traffic Association by Wylie McNeal, manager, and highway commission of the state of Kansas by Guy T. Helvering, director, whereby the association was to render certain personal services to the commission in connection with traffic service and freight rates for a period of one year from March 13, 1933. Helvering was superseded as director of highways on April 1, 1933. On August 7, 1933, McNeal was notified that his services were no longer needed, and thereafter he was not employed by the highway commission.
On December 10, 1934, the appellee brought his action against the appellant. Omitting formal parts, his first cause of action alleged that defendant, since August 1, 1933, had refused to perform its part of the above-mentioned contract, and was indebted to plaintiff in the sum of $1,106.08. A second cause of action alleged the rendering of services and sought recovery of the same amount as on quantum meruit. Defendant’s answer admitted execution of the alleged contract but denied authority of Helvering to make the contract, or that it was a valid contract, that the execution of the contract by Helvering eighteen days prior to the expiration of his administration was contrary to public policy, void and of no effect, and that plaintiff performed no service to the defendant after August 1, 1933.
A trial was had at which evidence was offered as to services, etc., and developing the facts from which the foregoing statement is made. The trial court concluded that the contract was valid and binding, that plaintiff had fully performed, was entitled to recover the amount sued for, and rendered judgment accordingly. Defendant’s motion for a new trial was denied and it appeals, assigning as error the overruling of its demurrer to plaintiff’s evidence, the entry of judgment in favor of plaintiff and against it, and the denial of its motion for a new trial.
At all times with which this action is concerned, provision for the employment and removal of employees of the state highway commission was made by statute (R. S. 1933 Supp. 74-2006), which reads as follows:
“The director of highways, subject to the approval of the state highway commission, shall have full authority to appoint a state highway engineer and such other employees as shall be necessary to carry on the work of the commission, and shall have full authority to employ, remove, define the duties, and fix the salaries of engineers, clerks, stenographers, and such other employees as may be necessary to carry on the work of the commission,” etc. (Italics ours.)
It appears the director, and not the commission, names the employees. Assuming this contract to be that of the director, made with the approval of the commission, the act does not confer on the director any power to enter into any contract of employment, the effect of which is to deprive him of his power to remove an employee. His power to employ is no greater than his power to remove. At the time Helvering was appointed he was subject to removal by a majority of the commission at any time, and as has been noted, his successor, appointed under an amended act, holds his office only at the pleasure of the governor. Under such circumstances, before it should be held the director, even with the approval of the highway commission, could contract with employees for fixed terms, there should be a clear, definite and certain grant of that power by specific enactment. Here there is not only an utter lack of such legislative declaration; on the contrary the statute expressly provides the director, and that means the then acting director, has the absolute power to remove employees. If plaintiff is correct in his contention the contract was good, what was there to prevent a contract being made with every employee? The year’s term was only an incident; it might have been two years. ’ What would have been the situation had the director made a contract of employment with each employee for such a term? The answer is obvious — the director would have been more powerful than the body which appointed him. The contract involved in this action must be stricken down for the reason the director had no power to make it. It must also be denounced because it was an attempt by the director to contract against his statutory powers, duties and obligations and those of any successor to his office during the term of the purported contract.
Assuming the contract to be one made by the commission and not by the director, it may be stated the above-mentioned statute does not confer such power on the commission. Appellee attempts to justify the contract under R. S. 1933 Supp. 68-407, which authorizes the commission to enter into contracts “incident to the construction, improvement, reconstruction and maintenance of the state highway system and operation of the state highway department.” This general grant of power, if it be assumed it applies to contracts with employees, must give way to the specific provisions of R. S. 1933 Supp. 74-2006, under well recognized canons of statutory construction. In our view, however, the remaining portions of the statute relied on show the type of contracts referred to are construction and maintenance contracts, and have no reference to office employees, such as was the plaintiff here.
Our conclusion is -the trial court erred in finding the alleged contract to be valid and binding and in rendering judgment thereon. Its finding in effect- denied plaintiff recovery on his claim as -on quantum meruit. In any event, the undisputed evidence prevented a recovery on the second cause of action.
The judgment of the trial court is reversed and the cause remanded with instructions to render judgment in favor of appellant.
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The opinion of the court was delivered by
Dawson, J.:
Harry Pyle was convicted of murder in the first de gree for alleged participation in the killing of August Reiter on the night of December 23,1934.
The murdered man was one of two bachelor brothers who resided on a farm in Stafford county about a mile and a half southwest of a placed called Willinger filling station and about five and a half miles northeast of the city of Hudson. August and his brother Otto were wealthy farmers. They had $24,000 in government bonds buried near their home. The fact that the brothers possessed bonds was one of common knowledge in that locality, owing to the failure of a bank in which they had formerly kept their bonds.
John Schriner was an elderly tenant farmer, also a bachelor, who resided alone on a farm about half a mile south of the Reiter farm.
Harry Pyle and his son “Babe” Pyle had their habitation in a garage in the west part of Hutchinson. It had a dirt floor and was papered with cardboard. They were on intimate terms with one Lacy Cunningham, of Dodge City, who professed to be able to dispose of stolen bonds. In July, 1934, defendant and Cunningham discussed the subject of a large amount of bonds “that could have been got” a short time before. In their conversation mention was made of a Willinger filling station, and of bachelors.
On December 17,1934, defendant sent a telegram to Cunningham at Dodge City, which read, “When can you come? Prospects good.” Cunningham replied by wire, “Tomorrow morning.” Accordingly next morning Cunningham arrived at Pyle’s place in Hutchinson and stayed there two or three days. During part of that time, defendant’s son, “Babe” Pyle was in jail on a charge of passing “hot” checks. In the course of conversations between defendant and Cunningham mention was again made of the Willinger filling station and of bachelors, and that any farmer who was getting “allotment” money would probably have some money.
During Cunningham’s stay at Pyle’s place in December, 1934, defendant’s son Alan Pyle, otherwise called “Babe” Pyle, got out of jail and was present at further conversations between defendant and Cunningham, and on occasion participated in them. The transcript of Cunningham’s testimony, in part, reads:
“Q. At any time that morning was anything said about bachelors?
“A. Well, they [Harry and Babe Pyle] said something about that they lived a mile west and a mile south of the Willinger filling station.
“Q. Who lived there? A. Bachelors.
“Q. The bonds conversation was the only conversation you had about bonds — the one you had in July or August. A. Along in July or during that time.
“Q. And at that time what was said about it? Was there anything said about how many bonds? A. That seventy thousand dollars’ worth is about the part of the amount that I ever heard.
“Q. You knew one of the Reiter’s personally, didn’t you, Mr. Cunningham? A. Yes, sir.
“Q. Before you had these conversations with the Pyles that you have told about, did you know or had you heard a rumor that these Reiters had some bonds?
“A. I think most everybody has knowed that.
[Counsel for Defendant] : “Wait a minute. I move to have it stricken out.
“The Court: Yes, sustained.
“Q. Do you know whether or not Harry Pyle knew anything about it at the time you were down there in December? A. I think so, yes.
“Q. Now did Harry Pyle ever say anything to you about your going in on a hijacking deal? A. Yes.
“Q. About when was that, Mr. Cunningham? A. About the second day I was down.
“Q. Now, tell the jury as near as you can what he said about hijacking or what you said. A. Well, he said we was a couple of chumps — that there was a fellow lived in Hutchinson been hijackin’ fifteen years and never got in a crack.
“Q. What did you say to that? A. Well, I told him I was not — I was too old a man to go into that kind of business, and I was not going to have anything — any hand in any holdup.
“Q. Was there anything said about bachelors? And where they lived? A. Only what I have stated.
“Q. Only what you have stated? A. Yes, sir, as near as I remember.
“Q. Was ans'thing said about a quick payoff? A. Yes. Alan spoke about if I could get a quick payoff.
“Q. Was anything said about disposing of bonds by you? A. Yes.
“Q. What was said about that? A. Well, I said I could get a contact.
“Q. Who did you say that to? A. I think to Harry.
“The Court: Harry Pyle, the defendant, you mean? A. Yes, sir.”
During Cunningham’s stay at the Pyle garage, Babe Pyle said he intended to get a “hot car to pull a job.”
On Friday, December 21, Cunningham took defendant to Garden City to get defendant’s automobile which his son, Babe, had left there. En route they halted at the farm home of one Roy Riley, some miles south of Lewis, with whom one “Bud” Richardson, sometimes called “Monk,” occasionally stayed. Before leaving the Pyle garage, Babe said to defendant that he had no gun, and defendant replied that his was in a grip by the bed. As defendant and Cunningham journeyed on their way they had a conversation:
“Q. Anything said about ‘Babe’ Pyle on the road? A. Yes.
“Q. Tell the jury. A. We’d gotten out of town about fifteen miles and I told Harry that I was scared to death of ‘Babe’ — he was so crazy and wild, and he said, ‘Maybe you’d better turn around and go back,’ I says, ‘I’ll sure do it, if you want to go back,’ and he says, ‘No, I’ve got to get my car,’ and so we went on.
“Q. Was there anything said at that time about whether you and Harry Pyle should be out at night if a job was pulled?
“A. I think yes.
“Q. What? A. We was foolish to be out- that time of night if something happened.
“Q. Happened where? A. Any place.
“Q. You testified in the preliminary hearing in this case, didn’t you, Mr. Cunningham? A. Yes, sir; I testified in two hearings.
“Q. Yes. Now, to refresh you recollection, didn’t I ask you this question, to which you gave the following answer—
“Q. Didn’t I ask you this question ‘Didn’t you tell him — say to him that if Alan was going to pull this job down by Hudson that we were damn fools for being out that night where we couldn’t account for ourselves? Did you tell him something of that kind? A. Yes, sir; as near as I remember.
“Q. And is that the truth? A. That’s about the conversation.”
Bud Richardson was not at home, so the two men drove on to Kinsley where defendant met Bud Richardson, and he and defendant had several private conversations until a late hour that night. After midnight Cunningham and defendant drove to Dodge City, finished the night there, and on Saturday they proceeded to Garden City where defendant obtained his own car. Cunningham then returned to his home. That same night defendant returned to Dodge City and slept in Cunningham’s bed, and left for Roy Riley’s place shortly before noon next day, Sunday, December 23,1934. Cunningham’s testimony continues, in part, thus:
“Q. At any of these conversations you had with Harry Pyle before the Sunday of the murder, did Harry Pyle say anything about that he needed money to keep ‘Babe’ out of jail? A. Yes, he told me that.
“Q. What did he say about that? A. Well, he said that ‘Babe’ had cost him lots of money and was still costing him, and he guessed he’d go to the penitentiary now on account of the hot checks.
“Q. Do you remember where you were when he told you that? A. I believe in his house.
“Q. That was while you were down there on this trip that you told about? A. At Hutchinson, yes, sir.
“Q. Mr. Cunningham, I’ll ask you whether at any of the conversations that you had with Harry Pyle there was anything said as to whether he would notify you if anything was pulled in Stafford county? ... A. Yes.
“Q. What did he say about that? A. Well, as near as I can remember it was said something about Dox Witt and bachelor brothers or something to that effect, and I said, ‘Well, don’t figure me in on anything in Stafford county.’
“Q. Did you tell him why? A. On account of the trouble that I had had.
“Q. What did he say? A. Well, I believe he said he’d let me get in the clear — something like that.
“Q. Do you remember where that conversation , occurred — when he told you that, Mr. Cunningham? A. No, I really couldn’t recall just when that was.
“Q. Well, was it during this week preceding the murder? A. Yes.”
The foregoing may serve to portray the general background of the tragic violence which occurred the next Sunday evening in the homes of three peaceful farmers in the vicinity of the Willinger filling station. On that Sunday night, December 23, 1934, John Schriner finished his farm chores after dark, lit a fire, cooked and ate his supper, washed the supper dishes, then sat down and commenced to read a newspaper. Through his north window he saw the lights of an automobile coming; it drove into his yard and someone knocked at his door. He responded, “Come in.” A man entered with a gun and struck Schriner over the head and knocked him down. The ruffian called to another man to come in. The two asked where his brother was. He replied he had no brother. They asked if he had money. He replied that he had a little and would get it. They said, “Is that all you got?” At first he said it was, but one of the bandits began to strike him with the gun and kick him, and eventually he said, “Well, I got a little more,” and he dug up a few dollars he had buried in the cellar. Then the ruffians beat him over the head, and choked him, and tore off his clothes. They threatened to burn him and called to a third man whom they repeatedly called “Monk.” “Monk” came. All three had their faces covered with handker chiefs, the bandit with the gun had a blue handkerchief with some white dots on it. Another of the bandits spoke of bachelors and wondered why so many bachelors lived thereabout. They also inquired who lived north of him, and he told them the Reiters did. Then they blindfolded him with a flour sack and led him to their car, thrust him, bleeding, into the back seat and proceeded to the Reiter farm. There they took off his blind, and ordered him to go to the door and call to his neighbors. He obeyed, called out, “Hello, August.” The latter replied, “Hello, John, come on in,” and met him at the door with a flash light. As Schriner entered the porch of the house, one of the bandits did likewise and stuck a gun in August’s face and told him to “put them up.” August apparently did not realize the situation, and failed to comply. The bandit told him a second time to “put them up,” and grabbed August around the body and tried to put him down, but August Reiter was too strong for the ruffian, so the latter shot him through the body and he fell. His brother, Otto Reiter, heard the shot and the sound of scuffling and came to the door. One of the bandits felled him with his gun. The Reiter dog commenced to bark. The bandits silenced it with three shots. They began to search the house. Two of them dragged the wounded brothers into the kitchen, and asked where their money was. August told them it was in the cupboard. They obtained a small amount of money there. Then they began to beat August, asking where his bonds were. Apparently August lapsed into unconsciousness, so they turned on Otto, who was nearly unconscious. They threw water on him and he revived. They seized a butcher knife and threatened to cut his throat, to cut out his tonsils. They demanded to know where his bonds were. At first Otto told them that the bonds were in the Hudson bank, but the bandits apparently knew better and began to kick him, repeating their inquiry about the bonds. Otto courageously replied, “That is my business.” Then they rammed the handle of the butcher knife down his throat and twisted it around, and then put fire behind him; they had already pulled down his trousers, but didn’t burn him very much. They also stuck the blade of the knife into his mouth and threatened to gouge his eyes out. Then they turned their attention to Schriner, who had been kept blindfolded part of the time and began to torture him, until he appealed to Otto to give the ruffians the bonds. Otto agreed, and accompanied by two of the bandits he dug up the bonds from the place of their concealment ($24,000 worth), and also some money, and handed them over to the bandits. During this orgy of violence the bandits kept their faces concealed, but one of the trio was repeatedly called “Monk” by his fellow-ruffians. When the bonds were obtained, one of the trio took the car and was gone for a time. It was the state’s theory that he went to the Willinger filling station, but the keeper of that station was either lacking in perspicacity or frankness for he would testify no further than that a stranger “resembling Richardson a little bit” called at his filling station that fatal night between 9:30 and 10 o’clock p. m. Another witness who was at the filling station that night playing cards in an adjacent room picked out Richardson in the courtroom. Her testimony reads:
“Q. Did you notice a stranger there that evening? A. Yes, he came in while I was there.
“Q. Did you get a look at him? A. I got a glimpse at him.
“Q. Would you recognize that person now? A. I think I would.
“Q. Do you see that person in the courtroom? A. Someone that might resemble him a little bit.
“Q. Where is that person? A. Over there (indicating Richardson).
“Q. This gentleman sitting right here? A. Yes.
“Q. Well, was there anything peculiar about his actions that attracted your attention? A. Oh, he seemed a little nervous.”
On this third bandit’s return with the car, the three left, pretending they were going back to Schriner’s to look for his bonds. They said perhaps they would be back in fifteen minutes, and warned their victims not to phone or do anything during that interval. After that time they might call a doctor for August Reiter, whom they had shot.
About 3 o’clock of the following morning, December 24, “Babe” Pyle called at an all-night restaurant and said to the proprietor, his wife and son being present, “In case anything turns up I stayed at your place all night.”
Defendant and Bud Richardson turned up at Roy Riley’s place on the morning following the crime. There were present several persons among whom, it was agreed that if inquiry were made they would all declare that defendant and Richardson had spent the entire night there.
During the same forenoon following the night of the shooting and robberies, telegrams were sent to Lacy Cunningham at Dodge City, one by Babe Pyle, the other by defendant. One of them read: “Merry Xmas to you. Hope you are well — Babe.” The other read: “Come up for Christmas. Have a nice turkey and trimmings. Ans. by W. U. — Harry.”
On December 26 defendant and his son were arrested by a sergeant of police and placed in the city jail in Hutchinson without a specific charge against them. They made no inquiry as to the cause of their arrest and were both very nervous. In their garage home were blood-stained handkerchiefs — one white, but dirty, also bloodstained neckties and clothing.
A week later Bud Richardson was arrested. Other arrests followed — that of Roy Riley, Lacy Cunningham, perhaps others. Babe Pyle and Cunningham were put in j ail in Wichita. When that happened, Cunningham said to Babe, “For God’s sake, Alan, what all has happened?” Babe replied, “Oh, Dad had to go out to that no good Bud.”
August Reiter died of his wounds four days after he was shot. Otto Reiter lived to give testimony at defendant’s preliminary examination and then committed suicide, apparently because of the after effects of the torture he had undergone that tragic Sunday night. Schriner survived his cruel ordeal to give testimony at defendant’s trial, but died after that event.
Among various evidential facts at the trial was the discovery of dried blood on an inner tube which lay on the floor of Bud Richardson’s car. Schriner had been thrust into that car bleeding from his wounds, and taken from his home to the farm of the Reiter brothers. Richardson’s explanation of the blood was that he had helped to butcher a hog and had been given the liver and had carried it in his car. But there was testimony that the liver had been wrapped in paper; and an expert chemist who analyzed the dried blood testified touching scientific methods of determining whether blood is human or animal, and that on such test the dried blood found on the rubber tube in Richardson’s car was human blood.
Touching the errors urged against the judgment and sentence which followed defendant’s conviction, it is first contended that no conspiracy was proved to commit the robbery which culminated in the death of August Reiter. The purpose of this court in setting out at such length so many of the probative facts which led to this homicide has been that such errors as the one just suggested would scarcely need to be answered. Certainly the conspiracy was proved ■ — the conspiracy to go hijacking, to rob certain bachelor farmers who owned a lot of bonds and who resided near the Willinger filling station, and that Cunningham’s part would be to find a market for the bonds, but who was not to be directly involved in any such crime within Stafford county because he had already had trouble there; and that Bud Richardson, otherwise known as “Monk,” could be gotten into the conspiracy in his stead; that this conspiracy did not merely include the crime of robbery of the Reiters, but inferentially was to continue until the bonds were marketed and the proceeds distributed — until the “Merry Christmas, with turkey and trimmings” had been enjoyed by the robbers and murderers of August Reiter.
What is said or done by any of a group of coconspirators is admissible in evidence not only before their crime is committed, but afterwards, when it tends to show the further prosecution of its related incidents, division of its spoils, or avoidance of its consequences. (State v. Mullins, 95 Kan. 280, 291-295, 147 Pac. 828; State v. Emory, 116 Kan. 381, 225 Pac. 754; State v. Harding, 142 Kan. 347, syl. ¶ 2, 46 P. 2d 617.) Under this well-established rule the testimony concerning the conversation between Babe and Cunningham in the Wichita jail was competent; and under the same rule the testimony of the Hutchinson all-night restaurant keeper, Wilson, and that of-his wife and son touching Babe Pyle’s suggestion that they should swear that he had passed the entire night of December 23 at their home was admissible.
It is next contended that defendant’s demurrer to the state’s evidence was erroneously overruled. That point calls for a careful examination of the evidence, which we have sufficiently summarized above; and in our view it was abundant to support the verdict of the jury. Any homicide committed in the course of perpetrating the crime of robbery or other felony is murder in the first degree under our statute. (R. S. 21-401; State v. Roselli, 109 Kan. 33, 198 Pac. 195; State v. Jella, 132 Kan. 509, 296 Pac. 350; State v. Bigler, 138 Kan. 13, 16, 23 P. 2d 598.)
See, also, State v. Hauptmann, 115 N. J. L. 412, 180 Atl. 809.
The only other complaint worthy of attention pertains to an irregularity committed by the trial court in respect to the giving of' an instruction, numbered 49, after the jury had deliberated on their verdict from Saturday evening until Monday forenoon. The court called the jury, and it reported that it had failed to agree, following which the court proceeded to give an instruction touching the mode provided by law for deciding lawsuits, the want of absolute certainty in a large proportion of cases, the necessity that the verdict should be one to which every juror must assent as the result of his own conclusions, and therefore that the jurors should give due deference to the opinions of his fellows. The instruction reminded the jurors that they had been selected in the same manner and from the same source as any future jury would be chosen, and that there was no reason to suppose that this case would ever be submitted to twelve men “more intelligent, more impartial, more competent to decide it,” that they should pay proper respect to each other’s opinions, and “if much the larger number of your panel are for one side or the other, a dissenting juror should consider whether doubts in his mind as to the correctness of his conclusions are reasonable in view of the fact that doubts which he has made no impression upon the minds” of his fellow jurors. After many more words in the same strain the instruction concluded thus:
“Now I do not want you to understand by what I say that you are going to be made to agree, or that you are going to be kept out until you do agree, that is not the idea. But I do want you to understand that it is your duty, and you must make an honest and sincere effort to arrive at a verdict. Every man has a right to his opinion, but he has the right to consider that he might be mistaken one way or the other, and therefore a jury should be open-minded, they should listen to the arguments of others and talk matters over fully and freely and fairly, and make an honest effort as fair-minded jurors to come to a conclusion.”
At 5 o’clock p. m. the jury returned into court and reported that they had not reached a verdict. The presiding judge repeated in substance instruction No. 49, and told the jury that if they could not agree on count one, they should take a ballot on count two, adding “you might disagree on one count and agree on the other.” Four hours later the jury returned their verdict.
This court has frequently had to consider the matter of judicial pressure on the deliberations of the jury. Our reports are laden with cases bearing on this subject. An exhaustive review of them by Mr. Justice Thiele appears in one of our current decisions, Eikmeier v. Bennett, post, p. 888, 57 P. 2d 87. The general tenor of our decisions over a long period of years is one of disapproval, although we have seldom held that such instructions, belatedly given, were so prejudicially erroneous as to compel a reversal of the judgment. In each of them this court has endeavored to get a comprehensive view of the situation, the circumstances and the entire record and to rule accordingly. In the instant case the alert and .skillful counsel for defendant who so assiduously guarded every right of this defendant from the moment the case was called until judgment was pronounced interposed no objection to the belated instruction, and indeed, a painstaking perusal of the record leaves this court under the impression that defendant’s counsel did not regard the instruction as unfavorable to his client at the time it was given. Be that as it may, there is an elementary rule of appellate practice which is that counsel cannot sit quietly by and permit the trial court to commit error prejudicial to his client without the interposition of a timely and appropriate objection thereto.
The approved practice of dealing with trial errors is to make timely objection to them as they arise. This procedure is substantially the same in criminal as in civil cases. (R. S. 62-1412 et seq.) Of course the former annoying prerequisite to an appellate review — that of excepting to adverse rulings as they arose and having such exceptions noted — has been abolished; but in Bowen v. Timmer, 87 Kan. 162, 123 Pac. 742, which took note of its abolition, it was said:
“Fairness to the court should prompt counsel to call attention to such errors seasonably, and they may be held to waive their right to relief where their conduct, expressions or silence show acquiescence in an erroneous decía.-tion of law or evince a purpose to take advantage of unguarded expressions that would have been promptly corrected if pointed out.” (p. 163.)
In Emery v. Bennett, 97 Kan. 490, 155 Pac. 1075, it was said:
“The duty of an attorney as an officer of the court is to assist the court in arriving at a just and lawful conclusion and judgment in every cause; and when he has a proper objection to the pleadings or proceedings, he should point out clearly and specifically the grounds for his objection; and when he fails to make it with such clearness and precision that the court can understand it, he will ordinarily be held to have waived his objection.” (Syl. ¶ 2.)
State v. Bell, 121 Kan. 866, 869-870, 250 Pac. 281, was a felony case where the state had overlooked the matter of proving the venue; but counsel for defendant interposed no objection, or none sufficiently clear for the trial court to discern his point. This court said:
“. . . The rule has frequently been announced by this court and should be applied here, that whenever a litigant has a meritorious proposition of law which he is seriously pressing upon the attention of the trial court, he must raise that point in such clear and simple language that the trial court can understand it, and if his point is so obscurely hinted at that the trial court quite excusably may fail to grasp it, it will avail naught to disturb the judg ment on appeal. (State v. Everett, 62 Kan. 275, 62 Pac. 757; State v. Balliet, 63 Kan. 707, 66 Pac. 989; Riverside v. Bailey, 82 Kan. 429, 108 Pac. 796; Emery v. Bennett, 97 Kan. 490, 155 Pac. 1075; Livingston v. Lewis, 109 Kan. 298, 301, 198 Pac. 952; Brick v. Fire Insurance Co., 117 Kan. 44, 230 Pac. 309; Collis v. Kraft, 118 Kan. 531, 532, 235 Pac. 862.)” (p. 869.)
(See, also, Clark v. Linley Motor Co., 126 Kan. 419, 268 Pac. 860; and State v. Woodman, 127 Kan. 166, 168, 272 Pac. 132.)
The authorities just cited similarly dispose of certain minor procedural irregularities of which counsel complain here but did not object to at the trial.
A painstaking examination of this record reveals nothing approaching the gravity of prejudicial error nor any misgiving as to the justice of the result. The judgment is therefore affirmed.
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The opinion of the court was delivered by
Burch, C. J.:
Defendant was prosecuted for embezzlement. The jury returned a verdict of guilty. The district court granted a new trial. The state appealed, and defendant gave notice of a cross-appeal.
Defendant was cashier of the department of public works of the city of Wellington, and had charge of the collection of accounts of customers of the city water, light and power plants. Audits of the department indicated funds were missing. On January 11, 1933, a complaint was filed, charging defendant with embezzlement. A warrant was issued, a preliminary examination was held, and de fendant was bound over to the district court. In due time an information was filed, on which defendant was tried, with the result stated.
The state had been unable to trace any money, check, or other thing of value belonging to the city to defendant. The result was, a perfectly blind information in one count was filed, charging that at an unknown time, but within two years, defendant embezzled an unknown something — money, bank bills, treasury notes, checks, other effects, of unknown value, but worth more than $20. At the proper time, in the course of the trial, defendant moved that the state elect on what' transaction it would rely for conviction. The motion was denied. The jury returned the very enlightening verdict, “guilty as charged.” So, neither defendant nor the court knew at the beginning of the trial what defendant was charged with, or knew at the end of the trial of what she had been found guilty.
At the close of the state’s case, defendant moved that she be discharged. At that time, the court thought the evidence was sufficient to raise a question of fact, and the motion was denied. At the conclusion of all the testimony, defendant moved that she be discharged. That motion was denied. After verdict, defendant filed a motion for a new trial. At the conclusion of the hearing on the motion for new trial, the court made the following finding:
“The court finds that the verdict in this case is contrary to the evidence, and not supported by the evidence.”
The state reserved privilege to appeal, and assigns as error the granting of a new trial. In support of the assignment of error, the state says a reading of the abstract will convince this court the verdict was amply supported by evidence. If, from a reading of the abstract, this court should conclude there was evidence which would warrant an inference of guilt, this court would not reinstate a verdict of guilty of felony, so severely condemned by the court which tried the case, except in case of clear abuse of discretion, which does not appear.
In the course of the trial, the district court ruled that evidence of what the state calls “other transactions,” occurring previous to January 11, 1931, that is, occurring more than two years previous to institution of the prosecution, should not be admitted. The state reserved the question of propriety of the ruling.
As indicated, there was no charge of a definite transaction concerning a sum of money in count 1, of another transaction concern ing another sum of money in count 2, and so on. Under the information, the search was for a transaction of some kind, on which guilt could be predicated. Defendant had been employed by the city since 1918, and had been cashier in the department of public works at least previous to 1925. The state found transactions which it desired to present, occurring in 1928, 1929 and 1930. The court may have concluded, as the trial progressed, the inquest under the roving accusation ought not to be extended indefinitely. Whether the view was sound need not be discussed, since the ruling may not be reviewed.
The statute reads:
“Appeals to the supreme court may be taken by the state in the following cases, and no other: First, upon a judgment for the defendant on quashing or setting aside an indictment or information; second, upon an order of the court arresting the judgment; third, upon a question reserved by the state.” (R. S. 62-1703.)
In this instance the question reserved is, whether on the trial of defendant for embezzlement, the court erred in rejecting offers of proof of what were asserted to be other embezzlements by the same employee from the same employer, occurring in the course of the same employment, more than two years before the prosecution was commenced. There is no categorical answer to such a question. There are distinct limitations on admissibility of evidence of other offenses, and this court cannot know whether rejection of offered evidence of another offense was wrong without knowing two things: First, that there was evidence of another offense, and second, the nature of that evidence. These facts must be ascertained from the record.
Generally, a question reserved by the state comes up in the normal way — whether a motion to quash was properly sustained; whether an instruction to the jury was properly given; whether admitted evidence should have been excluded. In such cases the question reserved may be determined from the face of the record. As indicated, this is not true when a simple offer of proof is rejected.
In the case of State v. Marek, 129 Kan. 830, 284 Pac. 424, an offer of proof by the state was rejected, the question was reserved by the state, and this court said the evidence should be received. A robbery was committed and a man fled from the scene of the crime. Tracks in soft ground leading from the scene of the crime were observed, and were covered, so they might not be obliterated. A month later defendant was arrested, and the sheriff took defendant’s shoes to the place where the tracks were. The sheriff told the story in detail thus far. In a long colloquy between the court and counsel it was assumed the sheriff made a test to determine whether defendant’s shoes fitted the tracks. The sheriff was not permitted to give the result of the test, for reasons which this court deemed insufficient. The question whether the record was sufficient to authorize this court to say the sheriff should have been permitted to give the result of the test was not discussed or decided. This is the only case cited to the court in which the court has had before it review of excluded evidence, on appeal by the state on a question reserved.
In an appeal by the state on a question reserved, two things are necessary: First, proper reservation of the question in the district court, to afford ground of appeal; second, a record in the district court which will afford ground for review by this court of the question properly reserved. In the Marek case the first essential was discussed. The court said:
“All that is necessary for the state to do to reserve a question for presentation on appeal to the supreme court is to make proper objection or exception at the time the order complained of is made or the action objected to is taken. The state can lay the foundation for its appeal in the same manner that the defendant can lay the foundation for his appeal.” (p. 834.)
Following the analogy, the state, having properly reserved a question in the district court, should lay the same foundation in the district court for review of a ruling rejecting evidence that is required of a defendant. A defendant is required to bring on the record, in some way, the evidence to which his rejected offer purported to relate, before this court will consider its admissibility. (R. S. 60-3004; State v. Vandruff, 125 Kan. 496, 502, 264 Pac. 1060.) The reasons for the statute are of the same potency when the state appeals, and the district court will always permit the state to make a record in any instance worthy of record.
R. S. 62-1711 reads:
“In case of an appeal from a question reserved on the part of the state, it shall not be necessary for the clerk of the court below to certify to or transmit to the supreme court any part of the proceedings and record except a certified copy of the notice of appeal and of the judgment of acquittal. When the question reserved is defectively stayed, the supreme court may direct any other part of the proceedings and record to be certified to it.”
This statute relates to what the clerk of the district court certifies and sends up. It has been said, by way of comment and not by way of elucidation, that the statute authorizes an abridged record. (City of Kinsley v. Sire, 51 Kan. 529, 33 Pac. 368.) In the present case, none of the questions reserved by the state could be reviewed on the notice of appeal and journal entry of judgment.
The word “stayed,” appearing in the statute, is a misprint for “stated.” The entire section is a survival of an obsolete practice in a modem code which provides that appellate procedure shall be the same in civil and criminal cases. (R. S. 62-1702; rule 5 of this court; R. S. 62-1713.) Without expounding the meaning of the quoted section, if any, it is of no aid to the state in this case.
The state reserved a question, on denial by the district court of privilege of the state to cross-examine defendant. The only instance referred to in the brief is cross-examination with respect to a transaction occurring in 1929. Up to the point of cross-examination of defendant, the state had not established with any certainty that defendant had been guilty of any embezzlement embraced in the information. The effect of the cross-examination would have been to open the way for the jury to find defendant was guilty of something charged, because it might look as though she might have been guilty of something else long before. In view of the entire record, this court declines to hold the district court abused its discretion.
The foregoing disposes of the state’s appeal. Defendant’s cross-•appeal is based on refusal of the district court to discharge the defendant.
As indicated, when the court reviewed the proceeding at the hearing on the motion for a new trial, it found the verdict was not sustained by evidence and was contrary to the evidence. The evidence will not be discussed in detail. Two auditors who had thoroughly investigated the affairs of the office which defendant held, gave testimony concerning transactions, indicating money had been misappropriated in described ways, but the auditors had been unable to trace any funds belonging to the city to defendant. Opportunity for defendant to appropriate money was proved, but the proof distinctly fell short of furnishing substantial basis for inference of appropriation in fact, and the district court’s finding is approved. The result is, defendant’s motion for discharge at the close of the evidence should have been allowed.
The state’s appeal is not sustained. Defendant’s appeal is sustained, and the cause is remanded to the district court, with direction to set aside the order granting a new trial, and to allow defendant’s motion that she be discharged.
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The opinion of the court was delivered by
Wedell, J.:
This was an action in ejectment and for partition of real estate.
Plaintiff has appealed from an order sustaining demurrers to his original and amended and supplemental petitions. The demurrers were sustained on the ground each of the petitions contained several causes of action improperly joined, and that neither of the petitions stated a cause of action.
Plaintiff had filed five actions against certain heirs who were the record title owners of separate portions of 120 acres of land. There are-five appeals to this court, but by stipulation all the cases are submitted on the record in this one case. The five separate suits grew out of conveyances of 120 acres of land by Helen M. Steele to six children by a second marriage. Each of the six children were conveyed separate tracts of twenty acres. Helen M. Steele had two children by her first marriage, and plaintiff is the sole heir of one of those children. One of the children by the second marriage deeded a twenty-acre tract to one of the other children of the second marriage, thereby giving the last grantee forty acres. That conveyance accounts for five suits instead of what would otherwise have required six suits. Helen M. Steele, the original grantor, died intestate. It is plaintiff’s contention that upon the death of his grandmother be became vested with a one-eighth interest in this land.
The original petition, to which a demurrer was also sustained, was filed in 1931. That petition alleged fraud and conspiracy by the six children under the second marriage whereby they inveigled and tricked their mother into signing the deeds conveying the property to them. It was alleged this was accomplished through false and fraudulent representations, threats and deceptions.
From the view we take of this action, it is necessary to consider only the'demurrer to the amended and supplemental petition. One of appellees’ contentions is the demurrer was properly sustained, for the reason the statute of limitations had run against any cause of action alleged to have been pleaded. If that is true it disposes of the lawsuit.
In addition to the facts previously stated, the following pertinent allegations appear in the amended petition:
“That on the 7th day of June, 1929, Helen M. Steele, the grandmother of this-plaintiff and the mother of plaintiff’s father, George Keys, died intestate, being at said time the owner of and in possession of one hundred and twenty acres of land in Johnson county, Kansas. . . .
“That in the year 1914, someone, the plaintiff does not know who and therefore cannot state, prepared and created two certain instruments in writing purporting to be deeds of gifts conveying the south half of said forty acres to Daniel M. Steele and the north half thereof to Dennis L. Steele, and forged the signature of Helen M. Steele thereon, as one of the grantors, and fraudulently dated said instruments back about eight years to April 5, 1906, and also forged the signature of E. B. Gill, as notary public, on each said written instrument, which said written instruments were recorded in the office of the register of deeds of Johnson county, Kansas, on March 9, 1914. . . .
“. . . that the defendant Dennis L. Steele wrongftdly claims title to the entire forty acres and wrongfully withholds possession of plaintiff’s undivided one-eighth interest therein, and wrongfully excludes the plaintiff therefrom, and has done so since April 7, 1931. . . .
“That said alleged deeds, above referred to, one to Dennis L. Steele and the other to Daniel M. Steele, purporting to be from P. P Steele and Helen M. Steele, are null and void, and do not pass any title to said real property therein described, for the reason that they are forgeries as to Helen M. Steele, and for the further reason that each contains a provision that it is not to be effective until after the death of the grantors, and they are therefore testamentary in character and not properly executed as such as required by the statutes of Kansas.”
The amended petition further alleges defendant Phoenix Joint Stock Land Bank claims a mortgage on the tract of land in question, but that the mortgage is not a lien for the reason Dennis Steele had no title upon which to base a lien. It appears this allegation constitutes the supplemental portion of the amended petition.
The amended petition alleges the deeds from Helen Steele were recorded on March 9, 1914. Helen Steele, the grantor, lived until June 7, 1929, or a period of over fifteen years after the recording of the alleged forged deeds. The original petition was filed June 15, 1931, over seventeen years after recording of the deeds, and two years and eight days after the death of Helen Steele. The amended petition was filed March 23, 1934, over two years and eight months after the filing of the original petition. From the amended petition it appears the defendant, Dennis Steele, is in. possession of the land. The land was mortgaged by Dennis Steele and the mortgage was placed of record.
If it be not true that Helen Steele in fact signed the deeds, as plaintiff in the original petition alleged, and if it be actually true that they were forgeries as now alleged in the amended petition, it still remains a fact that the procurement of those forgeries constituted a fraud against the owner, Helen Steele, and against plaintiff who, except for the conveyances, would have inherited a one-eighth interest in the land. Again the recording of such forged deeds resulted in a fraud as to both Helen Steele and plaintiff. The recording placed the record title in the name of Daniel and Dennis Steele. The conveyance from Daniel to Dennis of one twenty-acre tract placed the entire record title to the forty acres in the name of Dennis Steele. This fact enabled him to mortgage the land to an innocent third party. The constructive notice resulting from the recording of the deeds was, of course, sufficient to start the running of the statute of limitations as against plaintiff. He filed no action for relief until two years and eight days after the death of Helen Steele. This was too late. (Black v. Black, 64 Kan. 689, 68 Pac. 662; Foy v. Greenwade, 111 Kan. 111, 206 Pac. 332; Hinderliter v. Bell, 114 Kan. 857, 221 Pac. 252; In re Estate of McFarland, 118 Kan. 534, 235 Pac. 832; Pinkerton v. Pinkerton, 122 Kan. 131, 251 Pac. 416; Kittel v. Smith, 136 Kan. 522, 16 P. 2d 538.) In the Foy case it was held:
“Where one has been fraudulently induced to give a quit-claim conveyance to his interest in real estate, and he brings an action to set aside the conveyance and for a recovery of his interest in the land, the first phase of such action is for relief on the ground of fraud, and such action must be begun in two years, and this rule governs, although, if the relief on the ground of fraud is timely asked and obtained, the second phase of the action — -to recover his interest in the property — may be commenced at any time within fifteen years.” (Syl. ¶ 2.)
Appellant insists a forged deed is void and recording gives it no validity. That is not the issue now. Statutes of limitation are statutes of repose. If plaintiff desired relief from the fraud which had been perpetrated against him he was obliged to do something about it. He was compelled to act within the period prescribed by the statute. Our statute of limitations makes no exception with regard to fraud perpetrated by means of the procurement of forged deed. We are not permitted to read an exception into the statute. The pertinent portion of R. S. 60-306 reads:
“Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have ac.crued, and not afterwards: . . . Third. Within two years: An action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.”
The amended petition makes no pretense of denying notice or actual knowledge of the fraud for less than two years before the filing of either petition, or that by the exercise of due diligence such fraud could not have been discovered within that time. This is not the only reason the demurrer was properly sustained, but it is a sufficient reason. The order sustaining the demurrer is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action for a divorce, and from a judgment in favor of plaintiff the defendant appeals.
The propositions advanced in argument require a somewhat detailed statement of facts. The parties were married in 1918 and lived until 1926 at various towns in Kansas. The husband was a physicist and had been teaching in Friends University at Wichita. In 1926 he obtained a federal appointment in the Bureau of Standards at Washington, D. C., to which city the family moved. There were two children, who on April 12, 1934; were about thirteen and fifteen years of age, respectively. On that date the wife commenced an action in the supreme court of the District of Columbia (hereafter called the D. C. court), for a divorce a mensa et thoro by filing a verified bill of complaint which alleged that both she and her husband were residents of the District of Columbia. Omitting certain allegations not here material, it was further alleged that during the entire period of their married life defendant had pursued a course of cruel treatment toward the plaintiff, threatening her with bodily harm, and on January 1, 1934, he had beat her, that his conduct toward the children was such as to have a tendency to lower their morals. At the time-the petition was filed, a motion for alimony pendente lite was filed. On April 30, 1934, the husband answered the bill of complaint and motion, admitting the marriage and residence in the district and denying, the acts of cruelty charged against him as well as that his conduct tended to debase the morals of the children. He pleaded fully with respect to his earnings and property. On the same day the court made its order allowing her alimony pendente lite and awarded her the custody of the children until further order of the court. On June 15, 1934, plaintiff filed a petition for permission to take the children to Kansas until September. The husband filed an answer in opposition, and on June 29 the court made its order denying the petition; • Notwithstanding the denial of her petition, the plaintiff took the children and came to Kansas. The husband shortly discovered her disobedience to the court’s order and on July 14 filed his petition calling attention of the court thereto, and asking that a rule to show cause in contempt issue, that the custody of the children be awarded him and that he be relieved from further payments of alimony pendente lite. On July 18 an order was made amending the order of April 30, so as to relieve him from further payments of the alimony. On August 28 the husband filed a petition reviewing some of the previous proceedings and charged that his wife had taken the children to the home of plaintiff’s foster mother who was a -Christian Scientist, and if the occasion arose they would be denied medical treatment. Attention was again directed to the violation of the court’s previous order, and an application was made for a rule to show cause why the custody of the children should not be changed and awarded to the defendant. The court considered the petition and made its order that the plaintiff on September 11, 1934, show cause, if any she had, why the custody should not be changed. This rule was served upon the plaintiff in Kinsley, by the sheriff of Edwards county.
On the day set the petition was heard and the prayer granted, and Mrs. Kirby was directed to turn over the children to the custody of her husband. After this order was made the husband came to Kansas and ultimately to Edwards county where, under the terms of the order, he demanded the children from the plaintiff. She refused, and on September 25, 1934, he filed an action in habeas corpus to recover their possession. This matter was set for hearing on September 26. On September 25 the instant action was filed, service being had on the defendant on September 26. At the time the petition was filed an order allowing the plaintiff temporary alimony, support for the minor children, and restraining defendant from interfering with the plaintiff’s custody of the children was made. Defendant appeared specially and moved to quash service of summons on the ground that he was exempt from service. This motion was overruled, and the overruling thereof is one of the errors complained of.
Thereafter, on February 18,1935, defendant filed an answer in the Kansas action setting out facts with reference to his residence, denying that he was a resident of the state of Kansas and raising again the question of his exemption from service of summons. He also alleged that the plaintiff at the time of the filing of the action had not been an actual resident in good faith of the state of Kansas, as required by the statute. On March 8, 1935, upon plaintiff’s motion, this answer .was stricken from the files, for the reason defendant had not complied with the order with reference to alimony, etc. At the risk of confusion, but in order that a chronological statement may be made, the following is noted. On February 21, 1935, in the action pending in the D. C. court, the defendant filed his amended answer and cross bill for affirmative relief, in which'he asked for a decree of divorce a mensa et thoro on the ground of desertion. Thereafter in that court on March 14, 1935, Mrs. Kirby filed her motion to dismiss her bill of complaint. On April 6, 1935, in the Kansas court, defendant filed his motion for permission to defend the action under the answer originally filed by him. On April 16, 1935, he served a notice to take the deposition of himself and other witnesses. Thereafter on April 18, 1935, the plaintiff in the Kansas action filed a long motion reciting the history of previous proceedings, and asked that the defendant be compelled to comply with the previous orders of the court with respect to allowances and to pay the additional sum of $100 for expense' in taking depositions, failing payment of which the defendant be restrained from taking any deposition, and on April 19, 1935, the court made an order to that effect. Meanwhile, on April 18,1935, the action pending in the D. C. court was tried, that court finding that when Mrs. Kirby filed her action on April 12,1934, she was a resident of the District of Columbia, as was the defendant, Samuel S. Kirby; that the matrimonial domicile of the parties was and had been since July 15,1926, in the District of Columbia; that the plaintiff had deserted the defendant, that her original bill of complaint should be dismissed, and that the defendant should be awarded a decree of limited divorce from the plaintiff upon the ground of desertion, that the custody of the minor children should be awarded to the defendant subject to the further order of the court, and that the defendant, Samuel S. Kirby, did not treat the defendant, Odessa F. Kirby, with cruelty during the married life of the parties, but demeaned himself properly and was in all respects a fit and proper person to have the custody and control of the minor children, and entered its decree dismissing plaintiff’s original bill of complaint, awarding the defendant a divorce a mensa et thoro from his wife upon the ground of desertion, and awarding him the custody of the children until further order of the court, the plaintiff to be permitted to see and visit the children at all reasonable times. Thereafter, on May 4,1935, in the Kansas action the defendant filed a supplemental answer alleging the bringing of the. action in the D. C. court and the subsequent rendition of the decree above referred to. There were also requisite allegations as to the general jurisdiction of that court, that the court had full and complete jurisdiction of the parties to the action and of the subject matter of the action, that the decree remained unreversed and in full force and effect and was entitled to full faith and credit by virtue of the provisions of the constitution of the United States and the laws of the state of Kansas, and that under said decree the plaintiff was barred and estopped from further prosecuting the action in Kansas and from obtaining any relief thereunder, and duly authenticated copies of the pleadings, service, motions, orders, findings and decree were attached to and made a part of the answer. On June 5, 1935, the case in Kansas came on for trial. Objections to its being heard were made by the defendant on jurisdictional grounds and on the further ground that all issues had been previously adjudicated in the D. C. court. These objections were overruled, and the case proceeded to trial. At the trial, the plaintiff’s evidence went no further than to prove acts of cruelty during the married life of the parties, the last act complained of being on January 1, 1934. We need not notice other proceedings at the trial as a result of which the court found that the plaintiff and defendant were at the commencement of the action and for many years prior thereto legally domiciled in the state of Kansas; that the children were at the institution of the action and ever since had been within the jurisdiction of the court, that plaintiff was a proper person to have their care and custody, and:
“The court further finds that on April 12, 1934, plaintiff herein instituted an action in the supreme court of the District of Columbia, against the defendant, for legal separation, alimony and custody of minor children, in which action the defendant filed an answer and cross petition for the same relief; that thereafter and on April 17, 1935, the defendant, upon his answer and cross petition, procured a decree, in said action, for legal separation and custody of the minor children of said parties, but that said plaintiff was not present at said hearing, either in person or by authorized counsel, and was in no manner represented therein, and at the time of granting said decree to said defendant, plaintiff and said minor children had returned to their domicile in Kansas, and were residing at Kinsley, Edwards county, Kansas, and that this action was instituted by plaintiff in this court on September 25, 1934, and said defendant was personally served with summons herein.”
And upon such findings the court granted to the plaintiff a divorce from the defendant, making an allowance to her for permanent alimony, for attorney’s fees, and an order for the future support of the minor children. The defendant appeals, his specifications of error covering three main propositions: (1) That the court erred in overruling his motion to quash the service of summons; (2) that the court erred in striking from the files his answer to the petition and in restraining him from taking depositions; and (3) that the court erred in refusing to give full faith and credit to the decree of the D. C. court.
1. On the hearing of defendant’s motion to quash the service of process on him, he offered his affidavit setting out his claim as to being a resident of the District of Columbia, and that he came to Edwards county solely for the purpose of obtaining possession of the children by habeas corpus action if necessary, and actually instituted that action which was pending and to be heard on the day he was served. The plaintiff was called as a witness in opposition and her testimony raised an issue as to whether .the parties had ever abandoned their permanent residence in Kansas. It was the duty of the court to determine relinquishment or retention of an admitted previous residence in Kansas, and its denial of the motion to quash implies a finding -against the defendant. (Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 850, 22 P. 2d 965.) It is not the province of this court to retry the issue. The trial court having so found, and it appearing the plaintiff resided in Edwards county, under R. S. 1933 Supp. 60-1502, the suit was rightly brought in that county and the defendant could be served with summons there. Whatever may be the general rule with reference to exemption from service of summons in a county upon one who as a litigant is necessarily present within the county — and as to the rule we do not comment — it cannot be applied against the plain terms of a statute permitting the service of process to be made. It has not been made to appear the trial court erred in ruling on the motion to quash.
2. Owing to our final conclusion, we do not find it necessary to discuss fully the claim that the trial court erred in striking the answer from the files and in refusing to permit the defendant to take depositions, or in the exclusion of evidence further than to remark that the statutes with reference to temporary allowances for the wife and the children, and for expenses of the wife that she may make an efficient preparation of her case, are not subject to the will and caprice of the husband. The orders complained of were regularly made, and the attitude of the husband, who seems to have avoided coming into Edwards county after he was served on September 26, 1934, was such the trial court was warranted in adopting stern measures. Whether those measures were too stern is beside the point, for ultimately the record of the divorce action in the D. C. court was admitted. In this connection, defendant complains that he was prevented from offering certain evidence. It was not offered in the form of affidavits or otherwise as provided by R. S. 60-3004, and error cannot be predicated thereon. It has not been made to appear the trial court erred in striking pleadings from the files, in preventing the taking of depositions or in the exclusion of evidence.
3. Did the trial court err in refusing to give full faith and credit to the decree of the supreme court of the District of Columbia? It appears that whether properly or not, the wife commenced an action in that court, alleged that she and her husband were residents of the District of Columbia, and under the action sought affirmative relief. She obtained custody of the children, and inferentially she received alimony pendente lite until she disobeyed an order of that court and brought her children to Kansas. Although shortly before that action was tried on its merits she filed a petition to dismiss her bill; prior thereto her husband had filed a cross bill. When that court on final hearing dismissed her bill of complaint it did not deprive itself of jurisdiction to try the cause on the defendant’s cross bill. Its final decree has been mentioned. The trial court in Kansas found that plaintiff was not present, either in .person or by counsel, when the D. C. court heard that case and rendered its decree, and that she and her children had returned to Kansas, where she instituted the present action in which personal service was had on the defendant. In effect, the trial court held that Mrs. Kirby could start an action for divorce in a court of competent jurisdiction ,in the District of Columbia, obtain some relief from it, then abandon that action and come to Kansas to start another action, and because she got personal service on her husband she was not bound by what the D. C. court did. Such a holding is not proper. Whether the plaintiff was honestly mistaken or not as to where her true residence was when she filed the first action, actually she and her husband were within the jurisdiction of that court. In her petition to that court she solemnly stated she was a resident of the District of Columbia'. On that petition, she asked for and received an order for custody of tbe children, and she asked for alimony pendente lite. A somewhat analogous situation was involved in Bledsoe v. Seaman, 77 Kan. 679, 95 Pac. 576, where plaintiff sought to avoid the force and effect of a decree of divorce rendered in South Dakota. She and her husband were residents of Kansas. Her husband went to South Dakota and brought suit for divorce. She followed him there and filed a cross petition alleging she was a resident of that state, and on her cross petition a decree was rendered in her favor, as well as á judgment for alimony and the custody of her minor child. In denying her contention that she was not bound by the South Dakota decree, this court said:
“She has retained the exclusive possession and control of the child during that time. The judgment for alimony still stands in her favor. A party cannot invoke the jurisdiction and power of a court for the purpose of securing important rights from his adversary through its judgment and, after having obtained the relief desired, repudiate the action of the court on the ground that it was without jurisdiction. The question whether the court had jurisdiction, either of the subject matter of the action or of the parties, is not important in such cases. Parties are barred from such conduct, not because the judgment obtained is conclusive as an adjudication, but for the reason that such a practice cannot be tolerated. People who invoke the action of a court, and, through negligence or falsehood, mislead the court as to the existence of the facts upon which its jurisdiction depends, and obtain a judgment for relief, will not afterward be heard to deny the validity of such judgment. (16 Cyc. 795-800; Ogden v. Stokes, 25 Kan. 517.)” (p. 684.)
It must be held that plaintiff, by reason of the institution of the action in the District of Columbia, and the allegations of her petition, could not be heard to say, on the trial in Edwards county, that the supreme court of the District of Columbia was without jurisdiction of the parties to the action and of the subject matter of the action.
In many cases where there has been controversy over the binding force of a decree of divorce, the crux of the controversy has been over the question of whether the service on the defendant was constructive or personal. Here we are not confronted with that difficulty. Mrs. Kirby invoked the jurisdiction of the supreme court of the District of Columbia. Even though she were a resident of Kansas, even though our statute did not recognize the binding force of a decree rendered on publication service, she could not collaterally attack the decree rendered. If it is to be set aside, it must be in a direct action in that court. It is not claimed there was any fraud on the part of the defendant in obtaining the decree in his favor on his cross bill. Were that true, still Mrs. Kirby’s relief would have to be obtained in a direct attack. As bearing on this feature of the case, as well as on the general question of the binding force and effect of the decree, see McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546. (See, also, Phillips v. Phillips, 69 Kan. 324, 76 Pac. 842.) Even though the decree had been obtained as a result of constructive service upon Mrs. Kirby, in an action brought by her husband, it would not have been subject to collateral attack. (See Miller v. Miller, 89 Kan. 151, 155, 130 Pac. 681.)
Neither is it of consequence that before the action in the supreme court of the District of Columbia was finally determined, an action in Kansas was filed for the same relief, in which personal service was obtained. The pendency of the first action was not a bar nor a cause for stay of the proceedings in this state, and had its judgment been rendered before judgment was rendered in the D. C. court, it would have been good. (Omer v. Omer, 108 Kan. 95, 193 Pac. 1064.) But the fact that an action was pending in Kansas at the time the judgment was rendered in the D. C. court did not prevent that judgment from being pleaded as res judicata in Kansas. (U. P. Rly. Co. v. Baker, 5 K. A. 253, 47 Pac. 563.) And the weight of authority in other jurisdictions is to the same effect. In 9 R. C. L. 374 (Divorce and Separation, §T64), it is said:
“A valid decree of divorce rendered in another jurisdiction than that in which the subsequent decree is sought is a bar to the subsequent proceedings. And the general rule applies also where the decree of divorce was rendered in proceedings instituted after the proceedings were commenced in which it is sought to be availed of as a defense. Such a case is simply one of concurrent jurisdiction in the courts of two states, and the judgment or decree first rendered dissolving the marriage relation concludes the question in the court of the other jurisdiction. The foreign decree of divorce must, however, have been a valid decree of divorce, entitled to full faith and credit in the jurisdiction in which the subsequent decree is sought.”
And in Keezer on Marriage and Divorce (2d ed.), p. 372, § 536, is the following:
“It is the rule that a decree by a court having jurisdiction of the parties and the subject matter is a complete bar to a subsequent suit between the same parties for the same relief. In other words, the courts will refuse to reexamine the same facts on the same charge in a subsequent case between the same parties. A former adjudication in another case between the parties, as to who was at fault for the separation, concludes the parties on this issue.”
It is true that our statutes do not in terms provide for a decree a mensa et thoro, although in many respects similar relief may be granted under R. S. 60-1506. The fact the decree is for a limited instead of an absolute divorce does not, however, mean the decree is not entitled to full faith and credit to the extent to which it grants relief. In 3 Freeman on Judgments (5th ed.), p. 2972, § 1442, it is stated:
“A limited divorce a mensa is as much entitled to full faith and credit under' the constitution or principles of international comity as an absolute one. A wife’s decree of separate maintenance in another state is conclusive as to every matter adjudicated by it, in harmony with the general rules as to what is adjudicated by such a decree and its effect in a subsequent suit for divorce. If it adjudicates that she was not guilty of cruelty, or that he was guilty of cruelty, it is res judicata of this issue. So if the decree was on the ground of abandonment by the husband, it is conclusive of this fact. If he consented to a decree on a stipulation that she was living separate from him for legal cause, this is conclusive against him in his subsequent suit for divorce in another state. A decree of divorce a mensa in favor of the husband is likewise entitled to the same effect elsewhere as it has where rendered. A decree denying relief in a suit for divorce a mensa is conclusive in a subsequent divorce suit of all the issues adjudicated. Thus a finding against a claim of cruelty is res judicata in the husband’s suit for desertion.”
And see Harding v. Harding, 198 U. S. 317, 25 S. Ct. 679, 49 L. Ed. 1066.
It thus appears that the decree of the supreme court of the District'of Columbia was entitled to full faith and credit and the failure to so recognize it was error. Giving it such recognition, it must be held that at the date of its rendition it settled all matters between the parties up to its date. Being a limited divorce, it would not bar an action for an absolute divorce on grounds arising after its rendition, although in some states, because of statutory provisions as to the kinds of divorce which may be granted, even that result would not necessarily follow. See the annotation on extraterritorial recognition and effect of a divorce a mensa et thoro, 4 A. L. R. 858.
We need not elaborate on the question of 'whether plaintiff was entitled to an absolute divorce for matters arising after the filing of her petition in the supreme court of the District of Columbia, for, from a careful examination of the record, which has been procured for that purpose, we find the last act of alleged cruelty testified to occurred on January 1, 1934, or some months prior to the filing of the first petition. While not couched in identical language, in the petition in each case plaintiff charged her husband with ex treme cruelty in that he beat her and was guilty of conduct that had a tendency .to debase the morals of th.eir children. With that testimony before the trial court in the action -in Kansas, and with the authenticated copy of the proceedings and decree in the supreme court of the District of Columbia admitted in the record and urged as a final determination of all matters in dispute, it was error for the trial court to ignore the prior adjudication, and to render-a judgment in favor of plaintiff contrary to such prior adjudication.
- The judgment of the trial court is reversed, and the cause remanded'with instructions to render judgment for the defendant.
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The opinion of the court was delivered by
Wedell, J.:
This appeal is from an order sustaining separate, demurrers of appellees to appellant’s petition, and from judgment in favor of appellees.
The action was instituted in the district court. It sought to impress a judgment lien on the net part of an heir’s distributive share of an estate, prior to final order of distribution by the probate court.
Staker, plaintiff below, appellant here, sued Nick Gillen, against whom he then had a judgment, Mike Gillen, as administrator of the estate of Mary Gillen, deceased, and Mary Devore. Nick Gillen was the former husband of Mary Gillen, deceased. Mary Devore was the purchaser at a probate sale of certain real estate owned by Mary Gillen, deceased, during her lifetime.
The pertinent allegations of the petition in substance were appointment of Mike Gillen, as administrator of the estate of Mary Gillen, deceased, by the probate court of Kingman county; plaintiff secured judgment against Nick Gillen in justice court on September 29, 1934, for $181.26, and transferred the judgment by abstract to district court on October 1, 1934; execution issued November 28, 1934, and was levied on real estate; the sheriff of Kingman county offered the real estate for sale, which was struck off to plaintiff on February 20, 1935, for the sum of $205.61, being the amount of judgment, interest and costs to date of sale, but the sale was set aside for irregularity and failure of the sheriff to keep execution alive by alias; Mary Gillen died on or about October 6, 1933; her estate was probated in the probate court of Kingman county; inventory, reports and proceedings on file disclosed the only property of Mary Gillen, deceased, to be the real estate sold on execution; the only indebtedness of Mary Gillen, deceased, was that of an undertaker’s bill, amounting to approximately $230, together with the costs of probate proceedings; on January 26, 1935, an order of sale was issued by the probate court of Kingman county, ordering the administrator to sell the real estate mentioned; the administrator, on February 16, 1935, brought suit in the district court wherein Mike Gillen, as administrator of the estate of Mary Gillen, deceased, was plaintiff, and the sheriff of Kingman county and others were defendants, to enjoin the plaintiff, Fred M. Staker, from selling this real estate; the application of plaintiff for a restraining order was denied; on February 20, 1935, and prior to the time the sale was fixed to be held and was held in the case pending in the district court, the administrator reported a sale for $1,700 of said real estate, and caused a deed to be recorded in the office of the register of deeds in and for Kingman county, in favor of the defendant, Mary Devore; Mary Devore has not paid the full purchase price for said property; that Mary Devore at the time of purchasing the property knew of plaintiff’s lien and execution thereon; Mary Devore and each and all of the defendants conspired and confederated and agreed among themselves to cheat, wrong and defraud the plaintiff, to endeavor to make a fictitious sale of such real estate, prior to and in advance of the sale in case number 744 (which was the execution sale on plaintiff’s judgment); if the sale to Mary Devore is a genuine sale that then and in that event the lien and claim of plaintiff for the sum of $205.61, together with costs of this action, and all accruing costs in this case and in case .number 744, should be impressed upon the proceeds of said sale (probate sale), which by law would otherwise be due to Nick Gillen; that Nick Gillen, at the time of the death of Mary Gillen, was her husband, and as such inherited an undivided one-half interest in and to her property, subject to her debts.
Plaintiff further stated that he could not with greater certainty set forth the facts with reference to the sale or purported sale (probate sale) to said Mary Devore, and asked discovery of the facts by each and all of the defendants.
The prayer of the petition asked that defendants be required to disclose their right, title and claim to the real estate in question and to the proceeds of the sale, and further asked that plaintiff be decreed to have a lien and that such lien be impressed upon such real estate and the proceeds thereof.
Appellees lodged separate demurrers to the petition, the grounds of which were: (1) The' district court has no jurisdiction of the subject of this action. (2) Plaintiff has no legal capacity to sue. (3) The petition does not state facts sufficient to constitute a cause of action in favor of plaintiff. (4) The causes of action are improperly joined. The separate demurrers were sustained generally. Judgment was rendered for defendants on their respective motions. From this order and judgment plaintiff appeals.
It will be noted the judgment debtor, Nick Gillen, was the former husband of Mary Gillen, who died intestate. The judgment of appellant was obtained against Nick Gillen in justice court, after the death of Mary Gillen, deceased. When this judgment was abstracted to the district court it became a lien on any real estate owned by Nick Gillen in that county. (R. S. 61-907, 60-3126.) (Treptow v. Buse, 10 Kan. 170; Rahm v. Soper, 28 Kan. 529; Honce v. Schram, 73 Kan. 368, 371, 85 Pac. 535.) The estate of Mary Gillen, deceased, was then in the process of administration. No final order of distribution had been made. There was a debt to be paid out of the Mary Gillen estate. Charges of administration remained to be paid. The petition specifically alleged this one piece of real estate was the only property of Mary Gillen, deceased. It was therefore subject to sale by the probate court for the payment of debts and charges of administration. (R. S. 22-801.) Appellant’s judgment lien on this real estate was subject to the claim of any creditor of Mary Gillen, deceased, or any proper claim against her estate, and the charges of administration. The real estate was sold. No irregularities or defects in the probate procedure for the sale of the real estate is alleged. The deed to the purchaser, Mary Devore, was placed of record. We must therefore assume, in the absence of allegations to the contrary, the sale was in all respects regular, and the purchaser acquired title free from any lien of appellant. The pertinent portion of R. S. 22-819 reads:
“The deed shall refer to the order of sale by its date, and the court by which it was made, and shall convey to the purchaser all the right, title and interest the deceased had in the premises sold, discharged from liability for his debts.”
R. S. 22-821 reads:
“The deed of the executor or administrator made in pursuance to either of the two foregoing sections shall be received in all courts as presumptive evidence that the executor or administrator in all respects observed the directions and complied with the requisites of the law, and shall vest the title in the purchaser in like manner as if conveyed by the deceased in his lifetime.”
An administrator’s deed is prima facie evidence of the regularity of all the proceedings on which it is based. (Rust v. Rutherford, 101 Kan. 495, 167 Pac. 1056.) See, also, Uhl v. Groner, 140 Kan. 653, 655, 38 P. 2d 130. Appellant had no judgment lien on property, of the deceased. He had a judgment lien.only on the real estate inherited by his judgment debtor. The title to that interest vested in the judgment debtor subject to appropriation for payment of decedent’s debts, claims against the estate of the deceased, and charges of administration. The sale of the real estate in the case was necessary to pay such claims and charges. The proceeds of the sale were not real estate but personalty, subject to payment of debts, claims, charges of administration and to final order of distribution by the probate court. The judgment-lien statute gave appellant no lien on personal property of his judgment debtor. With the sale of the real estate appellant’s judgment lien vanished. Thereafter he had only a judgment against the distributee.
Appellant further earnestly contends the district court alone has jurisdiction to determine questions of ownership or title to property. The difficulty with that contention is the petition does not allege appellant’s ownership of or title to the heir’s net distributive share.
Appellant seeks to invoke the aid of a court of equity. He asks the district court in its equity power, first, to create a lien, and second, to impress such lien on the heir’s net distributive share. This the district court or any other court is without authority to do. The petition does not allege appellant had no adequate remedy at law. Aid of equity cannot be invoked if the claimant has an adequate remedy at law. In the early case of Kothman v. Markson, 34 Kan. 542, 9 Pac. 218, it was said:
“From his petition, it appears that the estate is in course of administration; that there is considerable money in the hands of the administrator subject to the payment of debts, and that no final settlement has yet been made. Why then should he go into the district court? It is true, as held in Shoemaker v. Brown, 10 Kan. 383, that the district court has jurisdiction over certain matters relating to the estates of deceased persons, but it is an equitable jurisdiction, and in its exercise the district court will be governed by the rules of equity, one of which is that a court of equity as a general rule will not exercise its jurisdiction where the plaintiff has a plain and adequate remedy by an ordinary legal proceeding in a tribunal especially provided by statute.’’ (p. 550.) (Italics ours.)
The main appeal in this case is from the order sustaining a demurrer to the petition. As stated, appellant did not plead he had no adequate remedy at law. True, appellant cannot reach this fund by attachment or execution, prior to final order of distribution (Uhl v. Groner, 140 Kan. 653, 656, 38 P. 2d 130; O’Loughlin v. Overton, 68 Kan. 92, 74 Pac. 604), nor by garnishment. (McCarthy Hardware Co. v. Foust, 118 Kan. 431, 235 Pac. 867; Citizens State Bank v. Moore, 121 Kan. 628, 249 Pac. 587.) See, also, 18 C. J. 965, 967, descents and distribution, and 23 C. J. 357, custodia legis.
It does not follow appellant is without other adequate remedy at law. While the remedy of proceedings in aid of execution is not before us, we now conceive of nothing which prevented appellant from invoking such proceedings directly in the district court. (R. S. 60-3485.) Although the district court may not lay its strong hand on the administrator who must act under order of the probate court, the district court may coerce a judgment debtor, the distributee. Nothing is called to our attention which would have prevented appellant from obtaining an order from the district court directing the judgment debtor to deliver to appellant the net distributive share of his interest in decedent’s estate, upon final order of distribution by the probate court.
We have carefully noted the allegations of the petition relative to alleged fraud in connection with the probate sale. A sale of the real estate was imperative. The purchase price was $1,700. There is no allegation this was less than its actual value. We are obliged to assume the probate court would not have confirmed the sale, had the consideration been inadequate. The petition further alleged the purchaser had not paid the full purchase price. The probate court may not have required full cash payment and it was not obliged to do so. (R. S. 22-807.)
Finally, we are therefore confronted with a petition in which appellant does not allege ownership of or title to the fund in question. Appellant asks for equitable relief without an averment of no adequate remedy at law. Under these circumstances, the administrator had personalty in his possession subject to payment of debts, charges of administration and final distribution, subject to order of the probate court. In this situation the probate court had exclusive original jurisdiction.
The law defines the jurisdiction of probate courts and provides they shall have original jurisdiction as courts of record. The pertinent portion of R. S. 20-1101 reads:
“Third, to direct and control the official acts of executors and administrators, settle their accounts and order the distribution of estates.” (See, also, 24 C. J. 510.)
In the early case of Keith v. Guthrie, 59 Kan. 200, 52 Pac. 435, it was held:
“In matters pertaining to the distribution of a decedent’s estate the probate court has exclusive jurisdiction subject to appeal to the district court.” (Syl. ¶ 1.)
In that case this court said:
“The probate court is a court of exclusive jurisdiction over the distribution of the estates of deceased persons, subject to appeal to the district court. Its orders made in the exercise of its jurisdiction cannot be collaterally attacked and their effect frustrated by proceedings in other courts.” (p. 201.)
The rule announced in the Guthrie case has been followed by this court in Holden v. Spier, 65 Kan. 412, 70 Pac. 348; Correll v. Vance, 127 Kan. 840, 842, 275 Pac. 174; Parsons v. McCabe, 127 Kan. 847, 849, 275 Pac. 173; Holmes v. Conway, 128 Kan. 430, 432, 278 Pac. 8; Myers v. Noble, 141 Kan. 432, 438, 41 P. 2d 1021.
For careful review of cases involving jurisdiction of district and probate courts as to various subjects and for suggested procedure when dispute exists as to proper distribution by a probate court, see Lindholm v. Nelson, 125 Kan. 223, 230, 264 Pac. 50.
Other questions ably presented and cases cited from this and various other states have received our studious consideration, but they are not considered determinative of the main issues here involved.
The district court was without jurisdiction to grant the relief sought, the petition stated no cause of action as to any appellee, the demurrers were properly sustained, and the judgment in favor of appellees must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Harvey, J.:
This action was brought in the district court of Haskell county to set aside an order of the probate court of that county admitting to probate a copy of a will dated March 12, 1931, of Clara Johnson, deceased, on the grounds: (1) That the probate court of Haskell county had no jurisdiction to probate such will, for the reason that the testatrix was a resident of Ford county at the time of her death, April 12,1933, and (2) that the will of March 12, 1931, had been specifically revoked by a subsequent will made by the testatrix August 18, 1932, which will had been duly admitted to probate in the probate court of Ford county, Kansas, and that the will of March 12, 1931, had been further revoked in that the testatrix had, with her own hands, destroyed and mutilated it for the purpose and with the intent of rendering it null and void and ineffective. The answer admitted formal matters, contained a general denial, and alleged: (1) That the testatrix was mentally incompetent to make a will on August 18, 1932, or to revoke her former will; (2) that the execution by the testatrix of a will on August 18, 1932, was the result of undue influence, fraud, conspiracy and misrepresentation of the plaintiff, members of his family and other named persons, and (3) that the probate judge of Ford county had no jurisdiction to probate the will of August 18,1932, for the reason that the testatrix was a resident of Haskell county at the time of her death. All affirmative allegations of the answer were put in issue by an appropriate reply.
Defendants asked the court to call a jury in an advisory capacity, whereupon plaintiff asked a change of venue because of the prejudice of the inhabitants of Haskell county. Both motions were granted. The case was transferred to Seward county, where it was tried to the court with an advisory jury. Answering special questions the jury found Mrs. Johnson was a resident of Haskell county at the time of her death; that on August 18, 1932, she was competent to make the will she executed on that date; that she knew what property she owned, knew her relatives, neighbors and acquaintances and the nature of her acts, and that she knew and understood what disposition she made of her property by the will. The jury further found that the will of August 18, 1932, was procured through undue influence, and detailed specific acts beginning August 12, 1932, and ending August 18, 1932, constituting the influence it found to be undue and which the jury found “under normal conditions would not be classed as undue influence.” Plaintiff moved for judgment on the answers returned by the jury, correctly contending the acts detailed did not constitute undue influence as that term is used in the law. Defendants moved to set aside the answers by which the jury found the testatrix was competent to make the will. ■ The trial court overruled each of these motions, and in lieu of the findings of the jury made findings of fact and conclusions of law. Plaintiff objected to some of the findings of fact made by the court and its conclusions of law and moved that they be modified in certain respects, or set aside, and for additional findings, and for judgment, and also moved for a new trial. All these motions were overruled, judgment was rendered for defendants, and plaintiff has appealed.
Appellees make the point that appellant is not entitled to be heard for the reason that the notice of appeal does not specifically state that the appeal is from the motion for a new trial. The journal entry shows that the findings of fact and conclusions of law were filed and judgment rendered for defendants June 29, 1935, and that on July 13 thereafter plaintiff’s motion to modify the findings and set aside the conclusions of law, and for judgment on the record, and his motion for a new trial, all of which had been filed in time, were by the court considered and overruled. On September 12, 1935, plaintiff served the notice of appeal and filed the same with the clerk of the court September 18. The notice of appeal is “from all adverse rulings, findings, conclusions and the judgment of the district court ... in the above-entitled cause.” We think this notice sufficient to include the ruling of the court on the motion for a new trial. On this point appellees cite Hardman Lumber Co. v. Spitznaugle, 130 Kan. 346, 286 Pac. 235, and Dolan Mercantile Co. v. Wholesale Grocery Subscribers, 131 Kan. 374, 291 Pac. 935. In the first of these cases the notice of appeal was from the “judgment” of the trial court, and in the second from the “decision” of the court. Those notices are substantially different from the one before us.
The facts disclosed by the record, including the transcript, court files and exhibits, may be summarized as follows: About 1898 Henry Johnson and his wife Clara moved to Haskell county, then sparsely settled and without a railroad, and when the principal business was raising livestock. They bought a quarter section of land, on which they made their home for many years, and engaged in the livestock business and fanning. In the meantime farming, particularly wheat growing, had become the important industry, a railroad had been built through the county and a new town, Sublette, had become the county seat. The population of the county had increased substantially, but it remained a typical wheat-growing, livestock country. The Johnsons, by their industry and business judgment, had prospered until they owned eleven quarter sections of land and their home in Sublette. They became and were one of the leading, prosperous, substantial families of the county. Mr. Johnson was elected a member of the board of county commissioners, and by reelection filled that position for sixteen years. The Johnsons moved into their home in Sublette, but continued to operate their farms.
On at least one occasion Mr. and Mrs. Johnson, and others from Sublette, spent a winter, or several months, in California. The John-sons had no children. Mr. Johnson died in 1925, intestate, and Mrs. Johnson became vested with the title to all of their property, said to be worth more than $60,000 at the then prevailing values — none of which was encumbered. During his last illness Mr. Johnson was a patient in the St. Anthony Hospital at Dodge City, an institution owned by a corporation known as the Sisters of St. Joseph, a Catholic order, and operated by the Sisters of that order. Mrs. Johnson became acquainted with the Sisters then in charge of the hospital. Afterwards, on two or more occasions when she was in Dodge City, she called upon the Sisters at the hospital and visited with them. During Mr. Johnson’s last illness his attending physician was Doctor Thompson of Dodge City (since deceased), for years a leader in his profession. Associated with him was a younger man, Dr. Foster L. Dennis. Mrs. Johnson became acquainted with these doctors. Afterwards, on a. few occasions, she went to Dodge City to consult Doctor Dennis professionally, and on one or two occasions had him come to Sublette to see her. Dr. L. V. Miner, of Sublette, who had practiced medicine in Haskell county since 1903, was the physician ordinarily called to the Johnson home when one was needed. He had treated Mrs. Johnson both before and after the death of her husband.
Mrs. Johnson greatly grieved over the loss of her husband — not only the loss of his companionship, but in the management of their property. She continued to live in their home at Sublette. Sometimes she had school teachers rooming, or rooming and boarding, with her. Aside from that she lived alone, until sometime in 1931, when Lawrence Brennan, the plaintiff in this action, began staying with her, under circumstances which will be mentioned later. Mr. Johnson was buried in the Haskell county cemetery. Mrs. Johnson had the lot improved by someone who made a business of that work. A large tombstone, with appropriate inscription, was erected, and a cement slab, ornamented with shells, was placed over her husband’s grave. A similar one was placed near by, where she planned her grave to be, shrubbery was set out and grass sown. She visited the grave often and watered and cared for it.
Mrs. Johnson' was of a friendly disposition and visited a great deal with the women in her immediate neighborhood, and to some extent with her old friends in the country and near-by towns, and those people visited her. She had a garden and flowers in her yard, where she spent quite a little time. She took an interest in young people, especially those trying 'to get an education, and sometimes helped them financially. While religiously inclined, she was not a member of any church prior to 1930, but aided church work without showing much preference as to denominations or creeds. She was apparently open-minded as to creeds and made no effort to influence her friends with respect to their beliefs.
After Mr. Johnson’s death she looked after her business, which consisted chiefly in leasing her lands, collecting the rents, and making a few loans. Up until 1930 she talked with the leading banker at Sublette, a Mr. Elliott,'about these matters, or some of them. He advised her from time to time and assisted her in collecting rents and other sums due her. This appears to have been the character of advice and assistance which a reputable country banker normally gives to his patrons. Occasionally, it seems, she asked other of her acquaintances about specific things. For example, in the spring of 1931, for some reason she wanted a new tenant for some of her land. She spoke to one of her friends, a Mr. Watkins, about it. He recommended a Mr. Turner, who had been farming some of the Watkins’ land. As a result she rented Turner several quarter sections, including the home place. She made it one of the conditions of the lease that Turner live upon the premises and care for the improvements. Turner did not do that. She did not like to have her improvements vacant. Early in 1932 she heard of a Roe Bailey, who was wanting to rent land. He had been farming in Stafford county, but his father-in-law, Clarence Haddon, lived near the east line of Haskell county. Through him she sent word for Bailey to come to see her. Bailey and Haddon did so. She told them the legal description of the land — five quarter sections — how to go to it, what rent she wanted, and particularly that she wanted the buildings on the land occupied. She asked Bailey for references, which he gave her. She told him to see the land, and if he wanted to rent it on the terms she named she would look up his references. Bailey looked at the land and told her he would like to rent it if he could. She told him to come back in a week or ten days. He did so and she told him that she had looked up his references and thought he would be satisfactory, and for him to go to the office of Clarence E. Dennis, an attorney at Sublette, who would' draw the lease. Bailey went there, the lease was drawn, including the terms they had discussed; Mrs. Johnson went there, and they both signed it. Bailey was still occupying the land under this lease at the time of the trial.
Another instance may be noted. Mrs. Johnson had a note for $5,000, secured by a mortgage on some land. It is spoken of as the Haney mortgage. Just when that loan had been made, or under whose advice, is not shown. At sometime in 1931, or early in 1932, it became in default. It seemed the Haneys wanted to sell this land to Mrs. Johnson, have the mortgage applied on the price, and for Mrs. Johnson to pay them some additional money. She talked with two or three persons about that, to Mr. Means, the probate judge, and Ed Johnson (not related to her in any way), who formerly had been sheriff of the county, and had them go to her house and look at her papers. She asked their advice about taking this land, but told them she had all the land she wanted and would rather not buy it. They then advised her not to buy the land if she did not want it. She had a similar talk with another one of her friends. There had been some inquiry about the abstract to the land. She had been asked about it and said she did not have it, but someone looked through her papers with her and found the abstract, which, it appears, she did not know she had. In looking through the papers either she did not know what the abstract looked like, or had overlooked it. Dennis, the attorney, consulted with her about this Haney mortgage, perhaps represented her in connection with it. The Haneys were still urging her to buy the land, pay them something more than the mortgage and take it, and she was declining to do it. It had not been settled at the time she left Sublette. Some of her friends, looking through her papers with her, found she had not kept them in an orderly manner, but she appeared to have all of them. In the main, the evidence showed her business affairs were conducted about as well as the average person would conduct them.
Late in 1928, her brother, a Mr. Robinson, who lived in Harrison county, Iowa, became seriously ill and died. On learning of his illness she went there. While there, and in November, she. had a stroke of some kind. She was treated and cared for there and improved so that she came home in February. Her brother’s son, Earl Robinson, brought her to her home. Earl Robinson was a tenant farmer in Iowa. She talked to him about coming to Haskell county and farming a part of her land. He liked the outlook and wanted to do so. At her request he moved to Sublette in June, 1929. He was married and had four children, two boys and two girls. He had no property. For two or three months his family lived with Mrs. Johnson at Sublette. She wanted him to go out on the farm and live, but he did not want to do so, or perhaps, more accurately, his wife did not want to do so. Mrs. Johnson assisted him to buy a home several blocks from her in Sublette, into which he moved and has continued to live. She also assisted in furnishing the home, including a piano for the little girls, and she paid for their music lessons. She also helped him buy implements with which he could farm the land, which he began doing in July, 1929. For a time he farmed three quarter sections and later two additional quarter sections. She let him have additional money from time to time, dp to March, 1932. There is no evidence that he repaid any of the money she advanced to him.
In the spring of 1930, Paul Steinberger came to Sublette. It seems that his wife was a cousin of Mrs. Johnson’s. He appears to have been getting oil royalty deeds on land, and succeeded in getting one from Mrs. Johnson for a part of her land. Later she consulted an attorney, Mr. Hoskinson, at Sublette, who prepared for her an affidavit to the effect the deed had been procured by false representation. Later Steinberger heard of that, went to see Mrs. Johnson, and succeeded in getting her to make an affidavit to the contrary. Later, however, she employed attorneys and had an action brought, as a result of which the oil royalty deed was set aside. Steinberger appeared to be officious, in trying to handle some of Mrs. Johnson’s business, with what authority, if any, is not disclosed. Perhaps he had none. About that time, however, she opened an account at a bank in Garden City. Perhaps Steinberger induced her to do that, although the facts concerning it are not clearly brought out in the evidence. Such account as she had in the Sublette bank was gradually drawn upon until it was exhausted. About the time this account was opened at Garden City Earl Robinson called at the bank at Sublette and got the box containing her papers and took it away. By whose authority, or what he did with it, is not disclosed by the evidence — perhaps he gave it to Mrs. Johnson. At the time Steinberger came there Mrs. Johnson had a Lincoln automobile. When that had been purchased, or how long she had it, is not disclosed by the evidence. It seems that Steinberger represented to her that it needed repairs and needed painting, and pursuaded her to give him several hundred dollars to be used for that purpose. It appears he took the automobile and the money and went away. A witness in this case quoted Mrs. Johnson as having said later that all she had for it was “a piece of paper,” and she didn’t know whether that was worth anything. It does not appear that plaintiff, or anyone whom defendants charge with fraud, conspiracy and undue influence in this case, was connected in any way with Steinberger or his activities.
In the fall of 1930 the Brennan family, consisting of Mr. and Mrs. Brennan and five children, moved from New Mexico to Sublette. Plaintiff is the third child of that family and was then nearly ten years old. Brennan had an automobile garage and an agency for the sale of Chevrolet automobiles. At first this was a subagency under the Nolan Motor Company of Garden City. Mrs. Brennan is a sister to Mr. Nolan of that company. Later the Brennan agency was independent. Early in 1931 Richwine, a salesman for Brennan, sold Mrs. Johnson a Chevrolet automobile. She did not drive a car, but wanted one to use when she wished to go places. She arranged with Jack Brennan, plaintiffs’ brother, then about seventeen years of age, to drive her car for her when she wanted to use it. He worked at the Brennan garage. She kept the car in the garage at her home and kept the key for it on a nail in her kitchen. When she wanted to go any place in her car she sent for Jack Brennan, gave him the key, or had him get it and get the car out and service it, if that were needed, and drive the car where she wanted to go, then to her home when she was ready to go, when the car would be put in the garage and the key where it belonged. The trips were mostly to her farms, to the cemetery, or to near-by towns or places in the country. Some trips were made to Garden City, where she went to the bank, a few of them to Dodge City, and at least one to Larned, where she visited the family of a minister who formerly lived at Sublette. Perhaps there were others. Jack Brennan continued to act as a chauffeur, of the sort above stated, for Mrs. Johnson for perhaps a year and as long as she lived at Sublette. It does not appear that she paid him for this service; the record indicates he made no charge and expected no pay.
On March 12, 1931, Mrs. Johnson executed a will, the probate of the copy of which was sought to be set aside in this action. The will was executed at Garden City and was'prepared in the law office of C. E. Vance, formerly judge of the district court in that district. She was taken to Garden City on that occasion by Clarence E. Dennis, the attorney at Sublette, and was accompanied by Dr. L. V. Miner, who was one of the witnesses to the will. This will nominated Clarence E. Dennis and Earl Robinson as her executors and directed them to cause her remains to be interred in the Haskell county cemetery beside her deceased husband and to place a marker at her grave similar to that for her husband. It bequeathed to William Robinson, the son of her nephew John Robinson, $1,000, and further, if he should attend college after completing high school, directed her trustees to pay to him $100 per month while he was attending college, not to exceed thirty-six months. By the will she gave to Earl Robinson $7,500, with the provision that if prior to her death she should convey to him a quarter section of land such conveyance should take the place of the legacy. She made a similar bequest to Kermit Clark, of Mondamin, Iowa, a nephew of her deceased husband. She gave all of the remainder of her property in trust to Clarence E. Dennis and two other resident taxpayers of Haskell county, to be designated by the judge of the district court, with authority to appoint successors to such trustees. She directed the trustees to hold, care for and manage, and to lease for any proper purposes, including oil, the real property conveyed to them and from the annual income to pay: (1) The necessary taxes and repairs; (2) to the trustees of the Methodist church at Sublette the net income from one quarter section of land, to the trustees of the First Christian church of Sublette the net income from one quarter section of land, and to the trustees of the Church of the Nazarine of Sublette the net income from one quarter section of land, the quarter sections to be designated by the trustees; (3) to pay the sum of $20 per year to maintain proper care of the lot in the cemetery where she and her husband were buried; (4) the balance of the annual income from her property, or so much thereof as the trustees deemed proper, to be loaned to worthy boys and girls, residents of Haskell county, graduates of high school, and desiring to attend college, the loans to be made on such terms, with or without interest, as the trustees should deem proper; such part of the income which was not so used to be loaned on first mortgages upon real or personal property, or invested in government or municipal bonds. It provided the trust should continue for twenty years from the date of the death of the testatrix and thereafter until it could be disposed of as provided. It authorized the trustees at the end of such twenty years to dispose of all her property, and if within that time the commissioners of Haskell county, or the governing authority of the city of Sublette, had provided to build a hospital costing as much as $60,000 at Sublette, the proceeds of the trust was to be turned over to the authorities constructing the hospital, with the request that it be designated “the Henry and Clara Johnson Memorial Hospital.” If in that time neither the county nor the city had erected or planned to erect such a hospital the trustees were directed to use the trust fund in such manner as they deemed best to bring about the erection, equipment and maintenance of such a hospital. The trustees were to serve without pay, but were to be reimbursed for actual expenses.
Within the next few weeks Mrs. Johnson told some of her neighbors that she had made a will, and some outline of its provisions, and expressed satisfaction and her mental relief that she had done so. The fact she had made this will appears not to have been a secret.
After they had lived in Sublette several months the Brennan family moved into a house situated diagonally across the street from Mrs. Johnson’s home. It does not appear whether Mrs. Johnson and Mrs. Brennan were acquainted prior to that time.- Soon thereafter Mrs. Johnson called upon Mrs. Brennan at her home; later Mrs. Brennan returned the call; the visits became more frequent, and Mrs. Brennan became one of Mrs. Johnson’s several neighbors and friends who felt free to run into her home at almost any time, and she into theirs. Among these -near neighbors was Doctor Miner, who lived just across the street north from Mrs. Johnson; Mrs. M. A. Cave who lived across the street; Mrs. Linde man, who lived directly across the street west; Mrs. Miller, who lived on the lot adjoining her on the south; and some others visited frequently, though they did not live so near her. Because Mrs. Johnson lived alone and found it difficult to cook some things for herself, at times her near neighbors would take her something they had cooked. Mrs. Miner, Mrs. Lindeman, Mrs. Brennan, and perhaps others, did that on occasions.
The relations of the plaintiff, Lawrence Brennan, and Mrs. Johnson are important in this action. He first met her when he and another boy were playing on the street. Mrs. Johnson came along and asked them to carry a bundle to a laundress and gave them a dime, which pleased them. Sometime thereafter Mrs. Brennan was visiting Mrs. Johnson late one afternoon. Lawrence, playing with other boys, got hurt in some way and ran to tell his mother about it. Mrs. Johnson petted and consoled him. A few minutes later, when Mrs. Brennan started to go home, Mrs. Johnson asked Lawrence to stay and eat supper with her. He wanted to stay and his mother permitted it. Through the meal and after Mrs. Johnson and Lawrence talked. She told him of her experiences — living on the farm, -raising cattle, and farming, and how the country had developed and changed. It was all exceedingly interesting to Lawrence. Bedtime came; his mother sent for him to come home; Mrs. Johnson asked him to stay all night; said she had a bedroom which was not used, and she would be glad to have him stay so she would not be alone at night. He ran home to ask and plead for his mother’s permission, which was ultimately granted. This was the beginning of what grew into a warm personal friendship between them. He was an active, good-looking boy; bright, intelligent, industrious and well-mannered. She enjoyed having him there; he ran her errands, did her chores about the house, and read to her a great deal, all of which she appreciated or enjoyed, and it kept her from being so lonely. He liked to visit with her, was glad to run her errands and do her chores, and to read to her, which he did a great deal. After the first time Lawrence — at Mrs. Johnson’s request, which he was glad to accede to — continued to stay with her at nights, with but few exceptions, as long as she lived' at Sublette. He was there, also, as much as he could be in the daytime and of evenings; in fact, he practically lived with Mrs. Johnson except that he took most of his meals at home: All of this time Mrs. Johnson was becoming more and more attached to him, and he to her. To one of her friends, Mrs. Davis, who visited her several times in the spring and summer of 1932, Mrs. Johnson showed nice bedspreads and nice handwork she had done, and some pillow slips and other things in a cedar chest, and said they were for Lawrence, that she was saving them for him. At several times she talked about who would get her nice things and her home when she was gone. From another witness, Phil Beaubien, we learn that early in 1932, perhaps in May, Mrs. Johnson was considering adopting Lawrence as her son, but had not fully decided whether it was the right thing to do. He quotes Mrs. Johnson as having said Mrs. Brennan wanted Mrs. Johnson to adopt Lawrence.
After Lawrence began running errands and doing chores for Mrs. Johnson, Earl Robinson’s boys, who had previously performed those tasks, or some of them, found there were none for them to do. As one of them testified, the reason was the Brennan boys “were shoving us out.” They still went to see their “Aunt Clara,” but not as frequently as before. At the time of her “stroke,” August 3, they had not been to see her for more than a month. The Robinson girls went to see her less frequently, and Mrs. Robinson very seldom. Earl Robinson occasionally stopped to see her on his way home from work — sometimes to talk about some business matter, at other times simply to visit. To several of her friends she had expressed dissatisfaction of Earl, in that he was not attending to specific things as she thought they should be attended to. To one of her friends Mrs. Johnson told a story, sometime.in the winter of 1930 and 1931, concerning which she grieved seriously, to this effect, that she had the Robinson boys and the Brennan boys clean up her yard; that later one of the Brennan boys told her a Robinson boy had asked him if she had paid him for the work and was told that she had, whereupon the Robinson boy had referred to Mrs: Johnson with a vile epithet, and said, in effect, it didn’t make any difference, that she was not going to live very long and that Paul Steinberger “had it all fixed up and they are going fifty-fifty on it when she died.” This was interpreted to mean that Paul had it fixed so he and Earl Robinson would get her estate in equal shares.
By August, 1932, there appears to have grown up a feeling between some of Mrs. Johnson’s other friends and Mrs. Brennan; particularly Mrs. Miner and Mrs. Brennan had become unfriendly with each other, though both were friendly with Mrs. Johnson and she with them. The evidence does not explore this field very fully, but indicates that two reasons were rather prominent: (1) The personal relations which had grown up between Mrs. Johnson and Lawrence, and her talk about leaving property to him, or adopting him; and (2) Mrs. Brennan and her family were devout Catholics; Mrs. Johnson’s other friends were Protestants. It does not appear that Mrs. Brennan was aware of any general opposition among Mrs. Johnson’s other friends to her, or to her family, for either of these reasons.
The story as told so far leads up to Wednesday, August 3, 1932. The morning of that day Mrs. Johnson was in her garden, when she suffered a stroke of some kind and fell. Neighbors and passersby saw her and took her into her home. Doctor Miner was called. He found her in a coma, which lasted about thirty minutes. The word soon spread, and a number of her neighbors and friends came in. The women seemed to vie with each other in their efforts to aid. The doctor prescribed for her and gave directions which those present endeavored to carry out. Earl Robinson, who was working in the field, was notified. He quit work and came in to render such aid as he could. He and Mrs. Brennan sat up with her that night, and got along harmoniously. Mrs. Brennan thought Mrs. Johnson could be better cared for at .a hospital. She asked Earl Robinson if he didn’t think so. He was rather noncommittal on the subject, but inclined to oppose the idea. She talked to others about it.. Some of them thought she could be cared for all right where she was; some thought the matter should be left up to her. The question whether she should go to the hospital became a town topic. On Friday Mrs. Brennan went to Earl Robinson’s home to talk with him about Mrs. Johnson going to a hospital and asked him to consent for her to go. He said he would not consent to it unless she wanted to go. His reason, as he testified, was that he was following the advice of Doctor Miner and that he had not been to see her since the previous morning and did not know what conditions were. The next day he was at Mrs. Johnson’s home when Mrs. Brennan came, and he said to her that she would have to give up the notion of taking Mrs. Johnson to the hospital. She replied she had not come over to argue that with him again.
There is testimony tending to show that Mrs. Brennan was not satisfied with the treatment Mrs. Johnson was getting from Doctor Miner, thought the medicine he was having her take was injurious or poisonous to her; that she went to the office of E. E. English, an osteopath, who was the county health officer, and asked him to take some steps to prevent Mrs. Johnson from taking that medicine. He said that was not within the scope of his work. She then asked him to have Doctor Dennis come to see her, but he thought he should not do that; that late Friday night one of the Brennan boys came to tell him Doctor Dennis was there and would like to see him; that he found Doctor Dennis at his car near the Brennan home; that he stated Mrs. Brennan had sent for him; that after talking about the case for awhile the two doctors went to Mrs. Johnson’s home; that Earl Robinson, who was there, hesitated about letting Doctor Dennis examine Mrs. Johnson, but permitted it; that Doctor Dennis examined her and said she had an “auricular fluster,” and possibly a stroke; that she appeared to be getting along all right; that the medicine seemed to be all right; that he might change it a little if he were on the case. He told her -he did not think it necessary for her to go to a hospital, but if she wanted him to take care of her and would come to Dodge City he would do so.
It appears, also, that a Doctor Ungle, of Satanta, came to see Mrs. Johnson. Who called him, or what he did or said, is not shown.
After about the first day it appears some arrangement was made for Mrs. Dye, an old friend and neighbor of Mrs. Johnson’s, to stay with her and look after her through the day, although others came for short periods. It appeared to be the plan to have some other neighbor, first one, then another, come in at night, but this was not always well planned. One, who went to stay a short time one evening about nine o’clock, found all the others were leaving and she was left to stay all night, which she had not planned or come prepared to do. Another, who had been asked to come and stay one night, and who was given her instructions by Doctor Miner, hesitated to carry them out because of her unfamiliarity with the case and what each should do.
The record also discloses that on Saturday, August 6, Earl Robinson talked with some of the county officers about taking steps to keep Lawrence and Mrs. Brennan away from Mrs. Johnson. That evening the sheriff came to Mrs. Johnson’s and asked Lawrence to go with him to see his mother. Lawrence went to his home with the sheriff and told his mother the sheriff wanted to see her. The sheriff then told both of them not to go back to Mrs. Johnson’s any more, to stay away from there. He explained this command was not his idea, that he had been instructed by the county attorney to do it, and was simply carrying out instructions. The county attorney at that time was Clarence E. Dennis. Neither Earl Robinson nor Dennis, in their testimony, gave any reason, or any authority, for this action. Lawrence and Mrs. Brennan obeyed the command until the next Monday, when Lawrence, anxious to see Mrs. Johnson, went back. She was glad to see him, and thereafter each night until she went away had him make his bed down on the floor near the door of her room. Mrs. Brennan also went back and helped with the work, as she had before.
Notwithstanding this lack of systematic plan in caring for her, and the cross-currents among her friends, Mrs. Johnson improved rather rapidly. She was dressed and up about the house in a few days, though at first there was a lack of coordination, which affected her walking and her speech. August 8 or 9 she walked down town. A witness, who saw her in the bank and talked with her, noticed she had difficulty in saying just what she wanted to say. The talk about her going to the hospital continued. One witness quoted her as saying Doctor Miner suggested that she go to the hospital at Garden City, if she cared to go to one.
The evening of August 10 she had Jack Brennan drive her car and take her to the cemetery. Mrs. John Schnellenbacher, Mrs. Dye and Mrs. Brennan went with her. While there she pointed out to them the place she planned to be buried, named several persons she wanted for pallbearers, and whom she wanted to conduct her funeral. On August 11 Earl Robinson stopped on his way home from work in the evening and told Mrs. Johnson he would go home, eat supper, clean up and come back. There is conflict in the evidence as to what he told her was his purpose in coming back. His testimony was he told her he was coming to stay with her that night; there is other testimony that he said there would be some men with him, with papers for her to sign so that she could be cared for and her business, looked after; that then she would have nothing to worry about. Directly after Mrs. Johnson had her supper she sent for Jack Brennan and had him drive her to the cemetery and from there to Satanta, where she visited until nine o’clock, or later, with Mrs. Jacquart, a friend, then returned to Sublette and stopped at Mrs. Brennan’s house, where she visited an hour or more, when she and Lawrence went to her own home for the night. In the meantime, while Earl Robinson was eating his supper, a neighbor woman came and told him the Brennans had taken Mrs. Johnson away. He got ready and went to Mrs. Johnson’s home and found no one there. He then went across the street to the Doctor Miner home and sat on the porch and talked with Mrs. Miner, and perhaps others, until possibly eleven o’clock. “Mrs. Miner said that she was pretty sure they had taken her to New Mexico; they was going to go to New Mexico, and it was all over town.”
There is testimony to the effect that Mrs. Johnson told Reverend Hull, who visited her that afternoon, and Mrs. Jacquart, whom she visited that evening, that she was going to the hospital the next day for a few days’ rest; that she also told the Brennans and asked Jack to take her.
On Friday, August 12, Earl Robinson went on with his work and made- no effort to find out where Mrs. Johnson was until Sunday, the 14th. About ten o’clock in the morning of the 12th Jack Brennan, in compliance with the request made of him the evening before, went to Mrs. Johnson’s home. She was ready to go to the hospital, but asked him to drive by the two grain elevators where wheat from her farms was being delivered. He drove her car; Mrs. Brennan and -one of her younger children went with them. They went first to the elevators, where Mrs. Johnson inquired about her wheat. At one of them all the wheat had not been brought in; at the other one the wheat had been delivered, but the amount due her had not been computed. There is testimony that she told Sylvia Rathe, employed at one -of the elevators, that she was going to the hospital for a few days. They then went directly to the St. Anthony hospital at Dodge City, where she took a room and asked for Doctor Dennis. Mrs. Johnson knew the Sisters in charge of the hospital, they being the same -ones in charge when Mr. Johnson was a patient there, and with whom she had kept up an acquaintance. Doctor Dennis told them it was possible she would need to be at the hospital only a few days, and perhaps she would be ready to go home the next Monday. The Brennans returned to Sublette. There is no evidence that they in any way attempted to conceal the fact that Mrs. Johnson had gone to the hospital.
On Sunday evening, August 14, Earl Robinson took three men with him — Ed Watkins, Mr. Phillips and W. O. Kelman — and went to the Brennan home. Mrs. Brennan came to the door. Earl Robinson asked her where she had taken Aunt Clara; she said she had taken her to the hospital at Dodge City. He said: “What did you sneak off with her for?” She replied that she didn’t sneak off with her, and closed the door.
On Monday, August 15, Mrs. Brennan, Jack, and one of the younger children, went to Dodge City for the purpose of bringing Mrs. Johnson home, if she was ready to come.- They were told she was not ready to leave the hospital and would not be ready for several days. The Brennans returned to Sublette. On Tuesday morning, August 16, Mrs. Brennan, Jack and one of the other children, driving their own car, went to New Mexico and did not return until late Saturday evening, August 20.
Tuesday morning, August 16, Earl Robinson, with four men whom he asked to go with him — Frank McCoy, W. O. Kelman, Mr. Phillips and Phil Beaubien — went to the hospital, talked to the sisters in charge and to Doctor Dennis, and wanted to take Mrs. Johnson home. Doctor Dennis did not think she was in such condition that she should go. Earl Robinson and the men with him were so insistent on taking Mrs. Johnson home that Doctor Dennis finally called an attorney, Walter L. Bullock, of Dodge City, to the hospital and asked him what his rights were, as Mrs. Johnson’s physician. Bullock finally told him to use his own judgment in the matter. Earl Robinson made no effort to see Mrs. Johnson on that occasion. He could have seen her, had he desired, but did request that Phil Beaubien talk with her. The request was granted. Phil Beaubien had come to Sublette in 1930. He was in the oil business; was away part of the time, including the time of Mrs. Johnson’s illness in 1932; he had met her a few times; he had met Earl Robinson often, and they had become especially good friends. His talk with Mrs. Johnson that morning was not of much consequence ; he was in her room but a few minutes; she was sitting up in bed; he asked her when she was coming home; she said she thought she would be able to come home right away, that she was feeling good that day. The men went away without her.
After Bullock had talked with Doctor Dennis, and as he was starting to leave the hospital, one of the Sisters told him a Mrs. Johnson who was there wanted to see an attorney. He went to her room. She was a stranger to him; he knew nothing about her affairs; neither did he know the Brennans, or anything about their business. A nurse introduced him to Mrs. Johnson and left the room. Mrs. Johnson began to talk about her business affairs. First she told him about the Haney mortgage, the amount of it, what land it covered, about its being in default, the efforts of the Haneys to get her to buy the land; mentioned the attorney, Dennis, as having something to do with it, complained that it had been dragging along and nothing done, and asked him to look after it for her, which he promised to do. She next told him she wanted to adopt a boy; that there was a boy who had been kind to her for a year or more and she loved him like her own son; that the boy’s name was Lawrence Brennan, and she wanted to know about adopting him, what the procedure would be. He asked if the boy was an orphan; she said no. He asked if she could get the'consent of his parents, and she said no. He told her she would have to get the consent of the parents before she could adopt the boy. She then wanted to know how she could take care of him; she wanted to do something for him. He suggested she could deed him some property and reserve to herself the use and income of the property during her lifetime. They talked it over and she said she would do it that way. She discussed her property and told him she wanted to deed Lawrence Brennan four quarter sections of land, and gave him the legal descriptions of the land to be put into the deed. She also told him Jack Brennan had been kind to her and she wanted to make a similar deed to him for two quarter sections of land, and gave the legal description of the land for that deed. She also said she wanted to make a similar deed to St. Anthony hospital for two quarter sections of land, and gave the legal description of the land for that deed. Bullock told her he would have the deeds prepared. He went to his office, checked the land descriptions she had given him with a plat of Haskell county, and found she had correctly described land she owned in that county. He prepared the three deeds in accordance with Mrs. Johnson’s directions, placing in each of them a clause by which she reserved to herself the use and income of the lands as long as she lived. The next day, August 17, he had H. F. Millikan go to take the acknowledgment. Millikan is a man of high standing, and is well known in southwest Kansas. He had lived in Dodge City many years, but formerly lived in Haskell county, still owns land there, and had known Mrs. Johnson and her husband for many years. Mrs. Johnson was glad to see him. They talked some of old times; she. told him what she was doing. He talked with her and asked questions and wás confident she fully understood what she was doing, and that she was doing it volun tarilyv She executed the deeds and he took her acknowledgments. Bullock left the deeds at the hospital office, one for the hospital, the other two to be forwarded to the grantees named therein.
Some news respecting these deeds appears to have reached Sublette, for the next morning, August 18, Earl Robinson went to Dodge City with several persons whom he requested to go with him, including Clarence E. Dennis, Kelman, Phillips and Watkins; perhaps Claude Cave joined them at Dodge City. They first talked to Millikan, and he told them he had taken the acknowledgment of the deeds. They then went to the hospital, where they talked to Sister Winifred, one of the Sisters in charge of the hospital. Sister Gertrude, the superintendent, was ill that morning. Kelman told her they understood the deeds had been made, one to the hospital. She happened not to know about it and went to find out. She returned shortly with the deed and stated in substance if.the people there were objecting they did not want the deed. Without saying anything to Mrs. Johnson or Bullock about it she gave the deed to Earl Robinson, who handed it to Clarence Dennis. It. was received in evidence on the trial of this case. No one claims title to land under this deed. It does not appear that either Earl Robinson, or any of the men with him, saw Mrs. Johnson, or attempted to see her on that occasion.
After executing the deeds, August 17, Mrs. Johnson talked with Bullock about making a will, and said she wanted this boy, Lawrence Brennan, to have the remainder of her property except what she might deed away to others; she was still talking about adopting him. She spoke of Earl Robinson, said she had him come from Iowa and he had farmed her land; that she had spent some $10,000 with him and he had not shown himself capable either of taking care of this money or doing anything with the property; that he was her nephew and when she had him come there she thought she had some relative who would look after her, but she found out that he would not do it. She gave Bullock full instructions for making the will, and spoke of her other relatives and what she wanted to give each of them, how her property should go. She told him she had eleven quarter sections of land in Haskell county, a residence and another house in Sublette, the $5,000 Haney note and mortgage, and several notes, and notes and chattel mortgages, she had gotten through Mr. Elliott at the bank. No one else was present. Bullock did not know any of the beneficiaries she named; no one other than Mrs. Johnson ever talked with him about the preparation of her will. He had the stenographer from his office come to the room; Mrs. Johnson gave them the data for the preparation of the will; he prepared the will at his office and took it to her August 18, 1932; she took the will and read it and said it was entirely satisfactory. The will was duly executed by her and witnessed. In it she stated her place of residence as Sublette, in Haskell county. By its terms she revoked all former wills made by her; directed her executors to pay her debts and funeral expenses; specifically forgave, released and canceled to Earl Robinson all sums he should owe her at her death, and directed her executors to execute and deliver to him the necessary receipts and releases therefor; she gave $10 each to her nephews and nieces, Earl Robinson, John Robinson, Irene Robinson and Mary Gammet; she gave all the remainder of her property, both real and personal, to Lawrence Brennan. She expressed the desire Lawrence Brennan attend Creighton University at Omaha, Neb., or Notre Dame University of South Bend, Ind., and finish whatever course he might desire; also, that he make arrangements “to take care of my grave, wherever I may be buried.” The next paragraph reads:
“It is my desire and intention to legally adopt Lawrence Brennan, as he has lived with me for the last year. I have already disposed by deed of a greater portion of my real property and it is my desire that Lawrence Brennan take the remainder of my property wherever it may be.”
She nominated the First National Bank of Dodge City as her executor, and Walter L. Bullock as attorney for the executor.
The record tends to show that soon after executing the will of August 18, 1932, Mrs. Johnson sent for her will of March 12, 1931. She had left it at the bank with which she transacted business at Garden City; that it was sent to her through the First National Bank of Dodge City; that she received it and mutilated it, with the intention of revoking it, by tearing her name off of it, and also by tearing off her initials on each of the several pages of the will. There is not much in the evidence about this. That she did so appears to have been conceded by defendants. Their position throughout was that Mrs. Johnson was incompetent to make a will in the latter part of August, 1932, or to revoke her former will, and that everything she did with respect to those matters was the result of conspiracy, fraud and undue influence of the persons named by them in their answer.
Earl Robinson testified he was at the hospital on Friday or Saturday, and that he saw Mrs. Johnson one of those days, but the testimony does not make it clear who was with him, or just what took place. He also testified to being in Dodge City, with some men from Sublette, on Wednesday, and talking with Doctor Dennis, but not going to the hospital, and that Doctor Dennis told him there would be no business transacted by Mrs. Johnson at the hospital.
Sunday, August 21, Earl Robinson and Mrs. Ida Watkins went to the hospital at Dodge City, reaching there shortly before noon. He asked and was given permission to see Mrs. Johnson alone. What took place between them is not disclosed. Mrs. Watkins asked permission of one of the Sisters to see Mrs. Johnson, and was told she was not having company. Mrs. Watkins found where her room was and went in to see her anyway. Mrs. Johnson told her she had been deeding some of her land. Mrs. Watkins said: “Why did you do that, Mrs. Johnson? That is the wrong thing to do. You need your property. Why deed it to anybody?” Mrs. Johnson replied: “The Brennans and the Sisters make me.” She also spoke of wanting to go home. Mrs. Watkins said she and Earl would get some lunch and be back later. Mrs. Watkins testified she and Earl Robinson went to Doctor Dennis’ office. Mrs. Brennan was in the doctor’s private office, talking loud; one of her boys, “the priest boy,” was with her. The door from the waiting room was partly open. While in the waiting room Mrs. Watkins overheard Mrs. Brennan say to Doctor Dennis: “That old Doctor Miner, I’m' not going to give Mrs. Johnson up at all, and that old Doctor Miner, he can’t have her.” She also saw a man there at the office whom she understood was Walter L. Bullock; that after Mrs. Brennan left she and Earl Robins'on talked with Doctor Dennis; he said he didn’t see any reason why Mrs. Johnson couldn’t go home; that he would be over to the hospital at four o’clock to look her over, and if she could go, to check her out. They went back to the hospital at four o’clock; Doctor Dennis did not come until about five. While waiting both of them saw Mrs. Johnson. With Mrs. Watkins there was further talk of the same import about the deeds. Mrs. Watkins asked her about going home; she said she felt so weak, possibly she could go home Tuesday. ' When Doctor Dennis came he said she was not in condition to go. Earl Robinson and Mrs. Watkins returned to Sublette.
On Monday morning, August 22, the two deeds executed August 17 by Mrs. Johnson to the two Brennan boys, reached the office of the register of deeds at Sublette to be recorded. Earl Robinson and W. O. Kelman learned of it, went to the register of deed’s office, got hold of the deeds before they had been recorded and tore them up and threw the pieces away. Word of that action reached Bullock at Dodge City. He took some blank deeds with him to the hospital and told Mrs. Johnson about it. She asked what she could do now. He told her she could make new deeds, duplicates of the ones which had been destroyed. Pie thought they could be recorded. She said she wanted to do it. Bullock wrote up new deeds there at the hospital, duplicates in every respect of the two which had been destroyed. He called L. S. Myers, who had been in the real estate business at Dodge City more than ten years, to the hospital to acknowledge them. Before that he had done some business in Haskell county and had met Mr. and Mrs. Johnson a few times. When he went to her room at the hospital Mrs. Johnson recognized him and called his name before he recognized her. After some talk of their former acquaintance she told him what she was doing. Bullock handed her the deeds and she read each of them and said they were as she wanted them. She then signed them and acknowledged them before Myers. These two deeds were duly recorded in the register of deed’s office at Sublette August 29, 1932, and remained unchallenged until after the death of Mrs. Johnson.
The evening of August 22, at Earl Robinson’s request, a large number of people from Sublette, estimated at from thirty to forty-five, went in a body to the hospital at Dodge City to get Mrs. Johnson and bring her home. Among the crowd was the undertaker, Phillips, with his ambulance, and E. E. English, the osteopathic physician, for such professional services as might be required. The reason for taking such a large number, as testified to by Earl Robinson, “was to impress upon the authorities that the people of Sublette thought she was being taken advantage of and to bring her home with us if she wanted to come and was able.” By impressing the authorities he meant the authorities at the hospital and the police authorities, “we just figured they would take a hand if anything got bad.” This crowd reached the hospital about eight o’clock in the evening and made its mission known, and stayed there until about ten o’clock. Earl Robinson saw Mrs. Johnson that evening. Doctor Dennis did not think she was able to go home. The crowd was not especially disorderly, but appeared to be determined. The men crowded into the reception room and corridors of the hospital. When nine o’clock, the -regular closing time, had passed, Sister Gertrude called their attention to it and asked them to go away. They stayed; some of them went back and forth to Mrs. Johnson’s room; they seemed to think they were not ready; they didn’t care to leave without her. Their confusion was disturbing other patients. Finally she asked a policeman to disperse the crowd, and he did so. The crowd went back to Sublette. Later that night, about the same number of men, or more — perhaps the same individuals — went in a body to the Brennan home in Sublette and told the Brennans, in no uncertain terms, that they had to move away from Sublette, that the people there would not permit them to live in town. The Brennans moved in a few days. They went to Garden City for a week or so, then rented and moved into a house at Dodge City.
On August 23, 1932, there was filed in the office of the probate judge at Sublette an affidavit charging Mrs. Johnson with being an insane or an incompetent person. The record does not show who filed that affidavit. Bullock learned of this and told Mrs. Johnson about it. She asked him to see Clarence Dennis and Earl Robinson and to tell them that she would deed Earl Robinson a quarter section of land if he would let things stand and quit interfering with her and her property. Bullock sent for Dennis and Robinson. They came to Dodge City August 24. The sheriff of Haskell county, with a lunacy warrant for Mrs. Johnson from the probate court of that county, came with them, but he made no effort to serve the warrant. Bullock submitted Mrs. Johnson’s proposition. It was not accepted. Bullock and Dennis discussed the lunacy complaint —the jurisdiction of the Haskell county court to hear it. Bullock contended the jurisdiction was in the Ford county court, since Mrs. Johnson was in that county, and told Dennis if he thought Mrs. Johnson was insane or incompetent he would be glad to have him file a complaint in the Ford county probate court and have the matter determined. Bullock testified that Dennis said, before he did that he would want to be assured the court or commission hearing the case would find her to be insane or incompetent, and that he replied they did not try cases that way in that county. Dennis, in his testimony, denied that he made such a condition to the filing of the complaint. They talked most of the day and accomplished nothing. No complaint charging Mrs. Johnson with insanity or incompetency was ever filed in Ford county, and no hearing was ever had upon the complaint filed in Haskell county. A little later, early in Sep tember, when Roe Bailey called upon Mrs. Johnson, she asked him to see Earl Robinson and tell him she would deed him a quarter section of land if he would let things stand and cease bothering her about the disposition of her property. Bailey testified he conveyed that message to Earl Robinson and he said: “You can tell her to go to hell.” Earl Robinson, in his testimony, denied he made that reply.
Also, on August 24, two doctors, each of high standing and long experience, for the purpose of a consultation with Doctor Dennis, separately made an examination of Mrs. Johnson, with special reference to her mental condition. Doctor McCarty found her mind was alert, much more so than the average person of her age, and that there was no evidence of insanity or incompetency which would affect her ability to transact business. He found no evidence of nervousness. She had an irregular heart, her circulation was not good, and he recommended rest and quiet. Doctor Hooper found her as mentally alert as any woman of her age; that she was a bright, active woman of seventy-two years of age; that her eye reflex was normal; her superficial reflex- normal; that she had no tic, no tremors, no delusions, no hallucinations, no illusions; that her sense of time, place and sequence of events was good. He recommended quiet and rest. She carried on an intelligent conversation; there was no hesitancy or impediment in her speech; she had no mental disorder; no nervousness. He had asked some questions about her life. Among other things she told him she had deeded some land to two boys, and had been criticized for it; that she had helped other boys, now she had no money to give and she thought she would give them this land and they could use it. That was the first he had heard anything about deeds she had made.
Mrs. Johnson was greatly disturbed at the recent happenings at Sublette, the fact that persons there, with no semblance of authority to do so, had torn up deeds she had executed and which had been sent there for record; but more especially the fact that a lunacy complaint had been filed against her there. She feared if she went back there she would be tried and found to be insane and sent to an asylum. She had not planned her finances for an extended stay at the hospital and had paid the hospital charge for the first week. On August 27, as a result of negotiations between her attorney and the head officers of the hospital corporation at Wichita, she entered into a contract with the hospital corporation by which the hospital agreed to furnish her a room at the hospital, and all hospital care and medical attention, medicines and hospital facilities, but not including services of a physician, as long as she should live, in consideration for which she agreed to convey to the hospital a certain half section of land, reserving the use thereof for her life. This contract was in writing and stated Mrs. Johnson’s place of residence to be Dodge City, Kan. She executed the deed mentioned in the contract. She continued to live at the hospital, and the hospital authorities cared for her, as the contract provided, until her death, April 12, 1933.
After the making of this contract the turbulent element of Sublette seemed to quiet down. Earl Robinson, and those whom he got to assist him in his efforts to take Mrs. Johnson back to Sublette, irrespective of whether it was best for her to return there in her physical condition, did not go to see her any more. Several other persons, however, did go to see her and talked with her about her home or some business matter. To each of those persons she said that her home was in Dodge City, that she did not intend to return to Sublette to live. To many of those she said she was afraid to go back to Sublette; “they say I am crazy; they will send me to the asylum,” or words to that effect. She made such statements to Roe Bailey on each of the several occasions he saw her from early in September, 1932, to March, 1933; to Mrs. Roe Bailey each of the three or more times she talked with her within that period; to Clarence Haddon, who saw her once after she had bought property in Dodge City; to Mr. and Mrs. Geo. H. Graham, old Sublette neighbors of Mrs. Johnson’s, who had moved to Winfield and who visited with her on January 17, 1933, in the home she had purchased at Dodge City; to Will Zurbucken, sheriff of Ford county, who had occasion to talk with her in March, 1933; and to W. W. Dwyer, president of the Dodge City chamber of commerce, and Claude M. Cave, who called to see her in December, 1932.
Mrs. Johnson, accompanied by Mr. Bullock, went to the office of the city clerk of Dodge City September 20, 1932, and registered as a voter, giving her age as seventy-three years and her address as 1800 Central avenue. This is the location of St. Anthony hospital. She voted at Dodge City at the general election in November, 1932. In September or October, 1932, Mrs. Johnson purchased, or traded a mortgage, for a residence property, house No. 1405 First avenue, in Dodge City, and had her household goods and her automobile moved there from Sublette. She thereafter made some arrangement, the nature of which is not shown, for Mrs. Brennan, Lawrence, and the younger children, to live there. Mrs. Johnson usually stayed there each day, returning to the hospital at night.
When Mrs. Johnson went to the hospital it seems Doctor Dennis prescribed rest and quiet and that she should not have visitors, except relatives. The Sisters told persons who called that she was not to have visitors. The record discloses that the members of the Brennan family observed those instructions until the latter part of September, with possibly two exceptions. Mrs. Ida Watkins testified that late in the afternoon of August 21, when she was at the hospital, she saw' Mrs. Brennan in the corridor which led to Mrs. Johnson’s rooifi, and Phil Beaubien testified that the second time he was at the hospital and saw Mrs. Johnson, Mrs. Brennan was in the room while he was there. He did not fix the date of that visit definitely, perhaps it was at the time the crowd was there the evening of August 22. Lawrence Brennan had remembered Mrs. Johnson’s birthday was September 8 and on that day he took a small box of candy to the hospital and left it at the office to be given her. On September 14 Mrs. Johnson wrote Mrs. Brennan a letter, as follows:
“My Dear Friend and Children: “Hospital, September 14, 1932.
“I have been very lonely without seeing any of you for so long. Hope it will be so you may come to see me. I want to see Lawrence; tell him thanks for my candy; it was very nice that he even remember when my birthday was.
“I am happy and getting along fine. Am so glad, I got here, and Doctor Dennis and the dear Sisters were able to take care of me so faithfully. It is something terrible, and I am.to stay here with the Sisters for some time. They are dear friends to me. I got a card from Mrs. Nolen. I appreciate their cheering; to think they even thought of me. I will see them some time. I would like to see Jack; I want him to get my car and pay some bills for me; my blanket is at the postofiice, and if he goes to Sublette maybe they can get it for me.
“Love to all of you, I am so anxious about James school again this fall. I think of it at night when I am all alone. I can help him some, but I can't go out to see what I can do. Well, I want to see you so bad, but they tell me here that I can’t do anything for a while. Love to all of you folks. From your friend, Claka Johnson.”
The above letter was written on both sides of a sheet of paper and at the top of the second side was the notation, “Mrs. Johnson to Mrs. Brennan.” Thereafter Mrs. Johnson improved so she could leave the hospital in the daytime. Just when she first did this is not disclosed; perhaps the latter part of September. Thereafter it was her practice every day to go from the hospital to the residence she had purchased in Dodge City and where Mrs. Brennan, Lawrence, and her younger children were living, and spend the day there. Fre quently they would go up town and about the stores. On one occasion she climbed the stairs to Mr. Millikan’s office. This kept up until a week or so before she died. In the meantime she had made arangements for her funeral and burial at Dodge City, and also to have the body of her husband brought to Dodge City and buried with her. She wanted Lawrence Brennan with her as much as she could have him. He was attending school. At her request he was permitted to go to her room of evenings, where he would read to her and visit with her. At the last, when she was confined to the hospital, she kept asking for him more often; was more content when he was there. She was so insistent to have him present that during the last five days of her life he remained out of school and stayed with her. A part of the time she was in a semicoma. She wanted him to hold her hand, and finally died holding his hand on April 12, 1933. The hospital authorities immediately notified Earl Robinson of her death. He went to Dodge City for the purpose of taking her body to Sublette for burial, but learned she had made other arrangements. Her funeral was conducted in the Catholic church. She was buried at Dodge City, and the record indicates her husband’s body was brought there and placed beside her.
On April 17, 1933, her will of August 18, 1932, was admitted to probate by the probate court of Ford county. The First National Bank declined to act as executor, and Bullock declined to act as attorney for the executor. An administrator with the will annexed was appointed and a partial inventory of her estate filed, and other proceedings had.
On April 18, 1933, Earl Robinson filed in the probate court of Haskell county a petition for the probate of a copy of Mrs. Johnson’s will of March 12, 1931, and alleged that the same was her last will and testament, and—
“That said will has been lost or destroyed and an attempt may have been made to revoke it since the 3d day of August, 1932; that at all times from said last-mentioned date until the time of her death, the said Clara Johnson’s health was impaired and her mentality seriously affected; that she was not capable of connected thought or of transacting business, was of unsound mind and easily influenced by anyone with whom she might converse, and if' said will was destroyed or attempted to be revoked by said Clara Johnson, such destruction or revocation was the result of her mental incapacity and by influences and persuasions unduly exercised on her by other persons which had the effect of substituting their will for hers.”
The copy of the will was admitted to probate. The executors nominated therein were appointed and qualified. This action was brought to set aside the order of the probate court of Haskell county admitting the copy of that will to probate.
In the lengthy answer filed by defendants, Dr. Foster L. Dennis, Walter L. Bullock, the Brennan family, particularly Mrs. Brennan and the two boys, Jack and Lawrence, and the authorities of the hospital, were charged with conspiracy to prevent defendants and other persons from Sublette from seeing her and in having her execute the deeds and the will executed at the hospital, and in revoking her former will; and also charged that Mrs. Johnson was mentally incompetent to execute such instruments, or to revoke her will, and that she was induced to do so by the fraud, false representations and undue influence exercised over her by the persons named. It further alleged that the probate court of Ford county had no authority to probate the will of Mrs. Johnson for the reason that she was a resident of Haskell county at the time of her death.
The trial court made numerous findings of fact. Plaintiff objected to some of them, moved for their modification, and for additional findings in many particulars. We find it unnecessary to examine seriatim these findings and plaintiff’s objections to them, for the case is necessarily determined upon the consideration of a few of them.
With respect to Mrs. Johnson’s place of residence at the time of her death the court found:
“During her stay in Dodge City, beginning soon after she. arrived there, Mrs. Johnson told numerous persons that she expected to go home to Sublette, but also said that she thought the people of Sublette were mad at her; that she didn’t have any friends there any more, and was afraid that they would do her harm if they could. She also told others that she did not expect to go back to Sublette.”
And in a later finding:
“It is my opinion from the record that Mrs. Johnson never, of her own free will, changed her residence from Haskell county.”
Appellant complains of the earlier of these findings, and contends the court should have found, as requested, that during the first two weeks she was in the hospital, to those who called upon her, she spoke of her home at Sublette and of her intention to return to it; that she gave Sublette as her residence in her will executed August 18; but that after the destruction of her deeds and the action of the mob, August 22, and the filing of a lunacy complaint against her at Sublette, August 23, she became afraid to re turn to Sublette, and that beginning with August 27, when she executed the contract with' the hospital, in which her place of residence was given as Dodge City, Ford county, and which provided for her maintenance there as long as she lived, she claimed Dodge City as her home. Details have heretofore been mentioned of her acts and her statements that her home was in Dodge City and that she did not intend to return to Haskell county. The point is well taken. When a court, in a case such as this, undertakes to make findings of evidentiary facts, such findings should accord with the evidence. The court should have made the evidentiary findings requested. (See Wisner v. Chandler, 95 Kan. 36, 37, 38, 147 Pac. 849; also, Fuller v. Williams, 125 Kan. 154, 162-163, 264 Pac 77, where other authorities are collected.) In the latter statement the court expressed the opinion that she had not changed her residence “of her own free will.” This appears to be an expression of the court’s opinion rather than a finding of fact, and indicates the court thought she had changed her residence, but had been influenced against her will to do so by someone, whom the court did not name. In this connection, although it was testified to by one of the defendants, Dennis, the court refused plaintiff’s request to find a lunacy complaint had been filed against Mrs. Johnson in the probate court of Haskell county, August 23. This was error. From this record there is no difficulty in determining what caused Mrs. Johnson to change her residence from Haskell county. The lawless act of Earl Robinson and W. O. Kelman in tearing up deeds she had executed; the fact a lunacy complaint had been filed against her there, and the mob psychology which had developed there and which would prevent her from having a fair trial on such a complaint, obviously influenced her to change her place of residence. In explaining why she had changed her residence she frequently said, in substance, “They say I’m crazy; they will send me to the asylum.” She perhaps knew, or thought, what everyone else did, that if she were tried on that complaint in Haskell county she would be found insane. Even on the trial of this case, much later, when a jury was requested, on plaintiff’s motion the court, without requiring a showing, transferred the trial to another county because of the prejudice of the people of Haskell county. Her refusal to go back to Sublette and be tried on that complaint should be regarded as an exhibition of sound judgment.
Dennis refused Bullock’s suggestion that he initiate proceedings to try Mrs. Johnson, for her sanity in the probate court of Ford county, if he thought her to be insane. We pass the controversy between them as to whether Dennis wanted to know before the trial that the judgment would be as he wanted it, and for the purpose of this point will take Dennis’s version of it, since that is more favorable to appellees. The fact remains, Dennis did not initiate such proceedings in the Ford county court, which the parties knew and the record discloses was presided over by an experienced lawyer, while the Haskell county court was not. Aside from that, those attorneys needed to have no doubt, and perhaps had none, as to which of those courts had jurisdiction to try Mrs. Johnson on a charge of insanity. Such jurisdiction is in the probate court of the county in which the person charged is found. (Babb v. Carson et al., 116 Kan. 690, 691, 229 Pac. 76; Beeler v. Beezley, 126 Kan. 268, 267 Pac. 1112.) Plaintiff offered evidence tending to show that as late as March, 1933, the sheriff of Ford county placed a guard over Mrs. Johnson for several days because of information that had come to him to the effect that Earl Robinson had planned to take her by force to Haskell county. The trial court refused to permit much of this proffered evidence because it did not go far enough to connect any of the defendants up with it. Plaintiff produced an affidavit of the sheriff on the hearing of the motion for a new trial which contained his rejected testimony, but it still lacks the necessary connection with defendants, and we disregard it so far as they are concerned. No doubt there was a plot to return her to Haskell county, but the sheriff’s testimony as to who originated it, or its real purpose, was based upon hearsay, and was properly excluded.
The trial court held, as a conclusion of law, that Mrs. Johnson was a resident of Haskell county at the time of her death, April 12, 1933. This conclusion is not supported by any substantial, competent evidence and must be set aside. The evidence of her contract with the hospital, her registration and voting as a resident of Dodge City, her purchasing and furnishing a residence, and her numerous declarations that she had changed her residence to Dodge City and never intended to return to Haskell county, supply all that the law requires to effect a change of place of residence. (Ford, Adm’x, v. Peck, 116 Kan. 74, 225 Pac. 1054. See, also, 19 C. J. 440; 9 R. C. L. 542, and cases there cited.) The fact that she sometimes stated the reason she had changed her place of residence does not overcome the fact that the change was made. Most people when they change their residence have a reason for doing so. Mrs. Johnson appears to have had a good reason, but whether she did or not was her concern, and not the concern of this court or the trial court, or of the parties to this action.
With respect to the conspiracy charged by defendants the court found:
“There is nothing in the record to show a conspiracy between the Brennans, Doctor Dennis, the Hospital and Walter L. Bullock, but I am convinced from the record in this case that both Doctor Dennis and Mr. Bullock were interested in the disposition of Mrs. Johnson’s property, and were exerting their efforts to prevent Mrs. Johnson from doing anything that would mitigate [militate] against their interests, . . .”
The court was correct in finding there was no evidence of the conspiracy charged. We are unable to find anything in the record to justify the court’s statement that he was convinced that Dennis and Bullock were interested in the disposition of Mrs. Johnson’s property and were exerting their efforts to prevent her from doing anything which would militate against their interests. So far as this statement applies to Doctor Dennis it appears to be void of any support. It does not appear that at any time he had any interest in her property, or in her disposition of it other than the fact that he may have charged fees and was paid for his services as a physician. Even evidence of that is lacking. There is testimony that on the evening of August 22, when the large crowd was at the hospital to take Mrs. Johnson home, that Doctor Dennis .and one of the Sisters in charge of the hospital gave Earl Robinson, or someone who was with him on that occasion, a written statement, spoken of as “Exhibit 6,” but we do not find it in the transcript or among the files or exhibits sent to us. The testimony indicates it was to the effect that Mrs. Johnson would not execute any more instruments respecting her property while she was at the hospital. There is no intimation in the testimony that Doctor Dennis, or the Sisters, had any authority to act for Mrs. Johnson in respect to that matter, or that Mrs. Johnson or her attorney, Mr. Bullock, ever made any such statement. More than that, the deeds to the Brennan boys and her will had been executed prior to that time. With respect to Bullock, the record also is barren of evidence to sustain the finding. It discloses that he was called by one of the Sisters and told Mrs. Johnson wanted to see an attorney, and he went to her room. She was a stranger to him; he knew nothing about her affairs, did not know Earl Robinson, or any of the Brennans. None of them had ever talked to him about her or her business. He talked with her, advised her, and transacted business for her very much as any other attorney would do under like circumstances. True, the-will he prepared nominated him as attorney for the executor. There was no showing that he suggested that; in fact, the evidence is that she told him what she wanted in the will. He declined to take the appointment as soon as the will was offered for probate. While he was a witness on cross-examination he was asked about a deed of Mrs. Johnson’s to him for a quarter section of land. He testified he never drew such a deed, that he knew nothing about it, and claimed no title to the land if such a deed existed. He finally did say if there was a deed out that gave him some land he would not refuse to take it. His testimony was that he was paid his fees for his services as an attorney. The amount of them was not stated; there is no contention they were unreasonable. It is suggested by appellees that Bullock was responsible for Mrs. Johnson, registering as a voter in Dodge City. He did accompany her to the city clerk’s office the day she registered. While there is no evidence on the point it is quite possible that he told her that would be one way in which she could make a public record of her declaration that she was a resident of Dodge City, but she is the one who registered and voted.
The trial court also made the following material findings:
“15. Mrs. Johnson had formed a considerable attachment to Lawrence Brennan and John [Jack] Brennan, and their mother. Due to this attachment Mrs. Brennan was able, by misrepresentations, to turn Mrs. Johnson against her friends and relatives, without just cause, and at the time of the making of the will on August 18, 1932, Mrs. Johnson believed that her friends had turned against her and was thereby induced to dispose of all of her property in a way that she would not otherwise have done. Mrs. Johnson never discovered this deception up to the time of her death.
“16. At the time she executed the will in Dodge City on August 18, 1932, Mrs. Johnson was competent to make a will, if left to her own resources, but. was easily influenced as above shown, and the will she executed showed an unnatural abandonment of all her former associates and friends and even the grave of her deceased husband, and the court believes and finds that the execution of such will was the result of the situation in which she was placed by being removed to Dodge City and of the acts and wishes of Mrs. Brennan and Jack, and not the result of the free and unrestrained exercise of her own mind and wishes.”
The court correctly found that Mrs. Johnson had formed an attachment for Lawrence Brennan. As early as May, 1932, she was considering adopting him. Thereafter, and before her illness, shé talked several times to one of her friends, a witness called by defendants, about Lawrence Brennan and how much she thought of him, showed bedspreads and other nice pieces of work she had made and was saving in a cedar chest for him, also spoke of her home as though she would like for him to have it. She told her attorney the first day she met him about Lawrence and that she loved him as her own son; that she wanted to adopt him; that his mother would not consent; nevertheless that she wanted to provide for him. To a number of persons thereafter she stated she wanted to adopt him; that she had given him some land by deed, and that she was going to give him more property; that he was her ideal of what her own son would have been if she had had one. To Mr. Cave and Mr. Dwyer, who saw her in December, she told that she was studying the doctrines of the Catholic church; that it was a good deal like going to school; that her reason for doing it was that she wanted to adopt Lawrence Brennan as her own son. He appears to have been the only child she ever took sincerely to her heart, although she was friendly to other children. With that feeling toward him there is nothing unnatural in the provisions of her will made at Dodge City by which she gave to him the bulk of her property. Jack Brennan also had been kind to her and had acted as her chauffeur, as previously stated. She also had him help her, to a small degree, in some of her business matters, to the extent, at least, that he sometimes wrote her checks, when she went to' pay her taxes and at other times, but he never signed one; she always signed them. No doubt she was somewhat attached to him, but not to the degree or extent she was to Lawrence. We are unable to find support in the evidence for the statement that due to this attachment Mrs. Brennan was able, by misrepresentation, to turn Mrs. Johnson against her friends and relatives without just cause. The court does not find what such misrepresentations were, and we discover none in the evidence, unless it was this: Mrs. Brennan and Mrs. Miner had become unfriendly; for what reason is not disclosed. One day during Mrs. Johnson’s illness in August, 1932, Mrs. Brennan and another woman were in the room with Mrs. Johnson. Mrs. Miner and someone else were in the kitchen. It seems Mrs. Miner is hard of hearing and talks a little loud. Mrs. Brennan made what might be characterized as a “catty” remark about Mrs. Miner and her voice. Mrs. Johnson reproved her for it, said she wished she wouldn’t talk that way, as she regarded Mrs. Miner and Doctor Miner as her good friends. Mrs. Brennan replied: “They are just trying to pull the wool over your eyes.” It is not shown that this had any effect on Mrs. Johnson’s friendship for Mrs. Miner; rather, that it tended to make her think less of Mrs. Brennan. No other instance is disclosed by the record wherein Mrs. Brennan was disrespectful in any way to any of Mrs. Johnson’s friends, or said a word against them. So far as misrepresentation about her relatives is concerned, the record discloses but one instance of Mrs. Brennan saying anything to Mrs. Johnson about Earl Robinson or his family. That was one evening during her illness in August, 1932. A neighbor had come to spend a short time in the- evening. About nine o’clock she found the other folks there (Mrs. Brennan was not among them) had left. She was alone with Mrs. Johnson. About half an hour later Mrs. Brennan came in and began to rub Mrs. Johnson’s arm and side. While doing so she talked to both of the other women and spoke of Earl Robinson and said Mrs. Johnson had done enough for him and his family; had helped them get a home and furnish it, and they did not act as if they appreciated it, and that Mrs. Johnson’s reply indicated she agreed with her. Mrs. Brennan testified to a different version of this incident, but we pass that, for it is the trial court’s function to determine what the facts were on the conflicting evidence. In the first place this could hardly be called a misrepresentation. Previous to that time Mrs. Johnson had made similar complaints to her other neighbors about Earl Robinson, and later made them more specifically to her attorney. -There is nothing to indicate that what Mrs. Brennan did on either of those occasions was done for the purpose of having Mrs. Johnson believe her friends had turned against her, or of having any effect upon the disposition of her property. In short, the court’s finding No. 15 is largely taken from generalities, rather than from evidence shown by the record.
The court correctly found that Mrs. Johnson was competent to make a will on August 18, 1932. The evidence overwhelmingly supports that finding. But the court added, “if left to her own resources.” The evidence does not show that the making of this will emanated from any source other than Mrs. Johnson herself. The record does not disclose that anyone knew she contemplated making a will until she talked with Bullock about it, or had talked or made any suggestions to her about it. Obviously the moving force which caused her to make this will was the love she had for Lawrence Brennan; childless herself she had grown to love him as her own son; to think of him as her ideal of what she would have liked in a son of her own; and she wanted to provide for him as a mother would for her sole child to whom she was warmly attached. There was nothing unnatural about it. The court further adds, “but (she) was easily influenced as above shown.” This refers to the fact that Paul Steinberger had taken advantage of her early in 1930 and had succeeded in getting an oil royalty deed and her Lincoln automobile by false representations. So far as the oil royalty deed is concerned, the record discloses it was not unusual for such deeds to be obtained in Haskell and nearby counties from competent people by such misrepresentations as later justified a court in setting them aside in an action brought by the grantor for that purpose. In that respect Mrs. Johnson was among the persons with whom that was done. With regard to the Lincoln automobile, the record indicates that was a type of planned theft which varied only in detail from many others. It should be noted when she had time to reflect on those matters her judgment was sound. There is other evidence that she had a mind of her own and used it intelligently; for example, when Mr. Watkins recommended Turner as a tenant and she leased to him and he proved unsatisfactory she made her next lease herself; when Mrs. Brennan made an unkind remark about Mrs. Miner she rebuked her for it; when Earl Robinson stopped and told her he would be back to her house after supper obviously she did not want to see him and deliberately planned to be away until late. The court further found the will “showed an unnatural abandonment of all her former associates and friends.” She owed them no duty to give them her property; it really shows the love she bore to Lawrence Brennan. “Even the grave of her deceased husband.” This is an inaccurate statement. At the time she made this will she had not planned to move her husband’s body, nor in any sense had she given up his grave. The will gave her place of residence as Sublette. Her notion of changing her residence from Haskell county had not then developed. The finding that the will “was not the result of the free and unrestrained exercise of her own mind and wishes” finds no substantial support in the evidence.
In this state what constitutes undue influence sufficient to set aside a will is quite well settled. The decision of this court in Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, has been repeatedly cited with approval not only by this court but by the courts of other states, and by the authors of encyclopedias and textbooks on wills. It was there laid down that to destroy á will undue influence must amount to coercion or constraint which destroys the testator’s free agency, and by overcoming his power of resistance obliges him to adopt the will of another instead of his own. It must be brought to bear upon the testamentary act, and particular parties must be benefited or disfavored as a result of the purpose and pressure of a dominating mind. “Fraud” in connection with undue influence indicates something sinister is involved which prevénts the testator’s will, by overcoming his power, truly to express his real desires. He who alleges such undue influence and fraud has the burden of proof. The proof must be substantial, so that judges of the facts, who know what undue influence is, may see by whom and in what manner it has been exercised. In making such proof he is not limited to bare facts, but is entitled to legitimate inferences drawn from established facts. Nothing approaching this standard is shown by the evidence in this case. Suspicion, or conjecture that fraud or undue influence has been exercised, are insufficient. Power, motive and opportunity to exercise undue influence alone do not authorize a finding it has been exercised. These are as far as the defendants got in their proof in this case. The natural effects of friendship, kind deeds and love, are never regarded as undue influence, although they may have prompted the disposition made by the testator of his property. That appears to have been what prompted Mrs. Johnson to make the disposition of her property she did make by her will of August 18, 1932.
Appellees do not refer to the Ginter case, supra, or the long line of authorities in accord with it. They argue that undue influence and fraud need not be shown by direct evidence, but may be shown by circumstantial evidence, citing Colvin v. Colvin, 128 Kan. 691, 280 Pac. 763, and other authorities of like import. That is a well-established rule of law and was recognized in the Ginter case, but it does not dispense with proof of the type required by that case. It does not authorize the substitution of such proof by a showing of opportunity, and by suspicion, speculation and conjecture. Appellees in their brief point out a number of bits of testimony which they argue are sufficient to sustain the judgment of the trial court. We think we have mentioned all of these in our recital of the evidence; possibly one or more have been overlooked, for it is impossible to incorporate in the opinion all the evidence in the record. One of the strongest bits of testimony on which they rely is that of Mrs. Ida Watkins, to the effect that on Sunday, August 21, 1932, when Mrs. Johnson told her of having deeded some of her land, and Mrs. Watkins had criticized her for it, she replied she had to do it — “The Brennans and the Sisters make me,” and other statements later that day to the same effect. This testimony is evidence of the fact that Mrs. Johnson made those statements, but is not evidence that the Brennans of the Sisters made her do anything. See authorities collected in the annotation on this point in 79 A. L. R. 1447, 1449. The trial court correctly understood this rule of law and embodied it in an instruction to the jury.
From what has been said the judgment of the court must be reversed and the case remanded with instructions to render judgment for plaintiff. It is so ordered.
Hutchison, J., dissenting.
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The opinion of the court was delivered by
Thiele, J.:
This appeal involves the right to the proceeds of a life insurance policy. As the question was determined by a ruling on demurrer to an answer, the pleadings will be reviewed.
Mary L. Tromp brought her action against the insurance company alleging that the company on November 27, 1925, issued its policy of insurance upon the life of Harry Clifford Tromp, and payable at his death to her, that the policy was in full force on April 9, 1934, when he died; that she had made proofs of death and complied with the terms and conditions of the policy and there was due her the sum of $5,000, which the company had failed to pay and for which she prayed judgment. The company answered admitting the issuance of the policy and that there was due the principal sum, and that plaintiff had made demand. It further alleged that after the issuance of the policy plaintiff and the insured were divorced, and the insured had married one Beatrice V. Tromp, who had notified the company she claimed the proceeds of said policy as the widow of the insured and the administratrix of his estate. It disclosed a willingness to pay the proceeds of the policy into court provided an order was made requiring Beatrice V. Tromp to appear personally as widow of the insured and as administratrix of his estate, and maintain or relinquish her claim. The trial court made an appropriate order, and Beatrice V. Tromp individually, and as administratrix of the estate of Harry Clifford Tromp, filed an answer admitting the issuance of the policy sued on and the death of the insured. She alleged her appointment and qualification as administratrix, also that Harry Clifford Tromp filed suit in Sedgwick county, Kansas, for divorce from Mary L. Tromp; that by arrangement he withdrew his petition, she filed a cross petition and on June 12, 1933, a decree of divorce was rendered; that said decree was not appealed from and is now final; that in the decree of divorce Mary L. Tromp was not given any right, title or interest of any kind in the policy of insurance sued on; that at the time of the decree she had no vested right or interest in said policy of insurance, and at the time no insurable interest in the life of the insured. It was alleged also that after six months from the date of the above decree Harry Clifford Tromp was married to Beatrice V. Tromp, who was his lawful wife at the time of his death. It was also alleged that Mary L. Tromp never paid any premiums on the policy and repeated allegations that she had no vested interest in it. There was further allegation that on April 1, 1930, an involuntary petition in bankruptcy was filed against Harry Clifford Tromp; that in the schedules of his assets and liabilities he did not list said insurance because he then believed and continued to believe up to the time of his death that it had lapsed. A further allegation was that in the divorce proceedings Harry Clifford Tromp alleged he had given certain real and personal property to Mary L. Tromp “which at said time was all of the property, both personal and real, owned by the plaintiff and defendant.” A list of debts totaling $1,239.50, left by Harry Clifford Tromp, was set out, and it was alleged he left no property to pay the same except the proceeds of the insurance. This list does not include any part of the alimony judgment. It was also alleged:
“These defendants further say that the policy of insurance sued upon herein was taken out by the plaintiff herein and the said Harry Clifford Tromp at the urgent solicitation of the plaintiff; and, the said Harry Clifford Tromp intended at that time that his indebtedness owing by him at the time of his death, including the cost and expenses of his last sickness and funeral expense, should be paid out of said policy of insurance.”
Certain clauses of the policy of insurance with reference to premium reductions, accumulation of benefits, options for a paid-up policy, for options on surrender and lapse and for automatic extension of insurance are set out, together with a clause reserving right to change the beneficiary, the right to declare the designation of a beneficiary irrevocable, and the methods for so doing. It was alleged that no irrevocable designation was ever made. There was also an allegation that no premiums were paid after the divorce action, and that the policy remained in force under provision made for automatic extended insurance. Attached to the answer as an exhibit was a copy of the divorce decree, dated June 12,1933, showing alimony allowed in the sum of $1,500 payable at the rate of $5 per week for two years from June 19, 1933, and thereafter at the rate of $7.50 per week, until the amount is fully paid. This decree is silent respecting any property rights of Harry Clifford Tromp. The prayer of the answer was that Beatrice V. Tromp, individually and as administratrix, recover the proceeds of the policy.
Plaintiff demurred to this answer as not stating facts sufficient to constitute a defense, and the demurrer being sustained, Beatrice V. Tromp, in both capacities, appeals, urging that Mary L. Tromp had no vested interest in the policy of insurance at any time; that she had no insurable interest in the life of the insured after the decree of divorce, and that the decree of divorce destroyed any insurable interest she may have had in her divorced husband’s life and settled all property rights between them. Although what is said in discussing one proposition may be applicable to another, these propositions will be discussed in the order presented by appellant.
The insured having reserved a right to change his beneficiary, the named beneficiary, prior to the death of the insured, had no vested interest in the benefits under the policy. (See Antrim v. Inter national Life Ins. Co., 128 Kan. 65, 275 Pac. 1084; 14 R. C. L. 1387; 37 C. J. 579.) In the last-cited authority it is said that some cases take the view the beneficiary has a conditional, contingent, qualified, defeasible or vested defeasible interest, and that a reserved right to change the beneficiary does not change the nature of his rights as beneficiary so long as they last. The holding in Filley v. Insurance Co., 91 Kan. 220, 137 Pac. 793; 93 Kan. 193, 144 Pac. 257; 93 Kan. 197, 144 Pac. 257, that the interest of the beneficiary was vested, is not here controlling, for in that case no right was reserved to change the beneficiary. In the case now before-us, notwithstanding the reserved right to change the beneficiary, no effort to do so was made, and we proceed to examine the remaining propositions urged by appellant why the named beneficiary should not recover.
It is said that plaintiff had no insurable interest in the life of Harry Clifford Tromp after the divorce. When Harry Clifford Tromp procured the policy of insurance it was on his own life, in which he had an insurable interest, and there being no statutory or other reason urged why he could not do so, he was at liberty to name as his beneficiary anyone whom he chose. (Hoffman v. Federal Reserve Life Ins. Co., 123 Kan. 554, 255 Pac. 980.) Further than that, at the time the policy was issued, plaintiff was the wife of the insured and had an insurable interest in his life.. (14 R. C. L. 923, 37 C. J. 394.) Appellant, in support of her contention plaintiff has no insurable interest in the insured’s life after the decree of divorce, cites Life Ins. Co. v. Sturges, 18 Kan. 93; Insurance Co. v. Elison, 72 Kan. 199, 83 Pac. 410; and Thomas v. Connecticut Mutual Life Ins. Co., 124 Kan. 159, 257 Pac. 727, decisions from other jurisdictions and other authorities to the effect that a person who has no interest in another’s life cannot purchase or take by assignment an insurance policy on the insured’s life, it being unauthorized by law and contrary to public policy. In the Kansas cases cited, at the time of designation the beneficiary had no insurable interest in the insured’s life, and the cases are not in point here. Compare Sinclair Refining Co. v. Long, 139 Kan. 632, 32 P. 2d 464.
Attention has been directed to the terms of the divorce decree with reference to alimony. In the answer there is no allegation the insured ever paid to his' first wife the full amount of alimony allowed in a lump sum rather than in installments as provided in the decree. If it were to be paid as ordered, the final payment of $7.50 would not have been due until October, 1937. The insured died April 9, 1934, and about forty-four weeks after the decree was rendered. Had the insured been paying according to the decree, he would in that period of time have paid $215, leaving unpaid at the time of his death the sum of $1,285. It thus appears the first wife had a substantial financial interest in her former husband’s life, and that it was created and not destroyed by the divorce decree. The general rule is that a creditor has an insurable interest in the life of his debtor. (14 R. C. L. 924.)
In Johnson v. United Workmen, 91 Kan. 314, 137 Pac. 1190, 50 L. R. A., n. s., 461, where a policy issued by a fraternal benefit society was involved, it was held an alimony judgment did not make a divorced wife a dependent and entitled to the proceeds of a matured policy, unless it were shown that by the death of her former husband she was deprived of all means to enforce collection of the judgment. In that class of insurance, where the beneficiaries are limited to dependents as classified in the statute, a stricter rule obtains than in the case of so-called old-line insurance. In the case before us it is alleged in the answer that at the time of the divorce the husband turned over to his first wife all of his property, and it is also alleged that at his death he left no property to pay his debts. Passing for the moment the insured’s right to have a policy issued on his own life, the benefits to be payable to any person whom he designated, it appears that when the policy was issued plaintiff had an insurable interest in her husband’s life, and when the divorce decree was rendered, by its terms a financial relation was created between them under which she had a further insurable interest in his life. It is not necessary to discuss the proposition that if the named beneficiary has an insurable interest at the time the policy is issued, such interest must thereafter continue until death of the insured. It is here sufficient to say the plaintiff is not precluded from recovery on the ground she had no insurable interest in the life of her divorced husband after the decree of divorce.
The final proposition is that the decree of divorce operated to cut off plaintiff’s rights under the policy of insurance. What has been said has some bearing on this proposition and need not be repeated. There are many decisions dealing with the above proposition, and it has been generally held that a decree of divorce does not terminate the rights of the wife in a policy on the life of her divorced deceased husband, although authority to the contrary may be found (37 C. J. 397; 14 R. C. L. 1380, and other authorities here after cited). The question has been before this court in at least two cases, in both of which are certain elements differing from the case at bar. In Filley v. Insurance Co., 91 Kan. 220, 137 Pac. 793, L. R. A. 1915D 130, there was contention as to who was the beneficiary under the designation in the policy, and as to whether the rights of the first wife were vested, and it was said:
“The provisions of this policy are more like the provisions of old-line life insurance policies than fraternal certificates. In this class of insurance policies we believe it is generally held that when a married woman is named as a beneficiary in a policy of insurance on the life of her husband, she is entitled to the proceeds of the policy notwithstanding a divorce has been obtained by her before his death. (Overhiser v. Overhiser, 14 Colo. App. 1, 59 Pac. 75; Prudential Ins. Co. v. Morris, [N. J. Eq.] 70 Atl. 924; Overhiser’s Adm'x v. Overhiser, 63 Ohio St. 77, 57 N. E. 965; Overbeck v. Overbeck, 155 Pa. St. 5, 25 Atl. 646; White v. Brotherhood of American Yeomen, 124 Ia. 293, 99 N. W. 1071; Brown v. Grand Lodge, 208 Pa. St. 101, 57 Atl. 176; Courtois v. Grand Lodge, 135 Cal. 552, 67 Pac. 970; Wallace v. Mutual Ben. Life Ins. Co., 97 Minn. 27, 106 N. W. 84, 3 L. R. A., n. s., 478.)" (p. 225.)
A rehearing was allowed, and from the opinion (93 Kan. 193, 144 Pac. 257) it is readily discernible that the reason for the rehearing was to examine whether or not the policy in question was in a fraternal benefit association or an old-line life insurance company. Later an opinion was rendered (93 Kan. 197, 144 Pac. 257) in which the entire record was reexamined, and the original conclusion that the first, but divorced, wife was entitled to the proceeds of the policy was adhered to. The principal difference between that case and the one before us is that there the insured had no right to change the beneficiary, while here he had such a right and privilege. It would seem on principle that a less rigid rule would be invoked against the divorced wife, where right to change beneficiary was reserved, than against one where there was no such reservation, as in the Filley case.
In Johnson v. United Workmen, 91 Kan. 314, 137 Pac. 1190, the question was again presented. The holding has been mentioned heretofore.
Although the effect of divorce proceedings was not mentioned in Hoffman v. Federal Reserve Life Ins. Co., 123 Kan. 554, 255 Pac. 980, a somewhat similar situation was presented. The parties were married in 1922, insurance was procured on the wife’s life in 1923, the husband being designated as beneficiary. In 1925 the husband procured annulment of the marriage on the ground that at the time of the marriage the wife had a living undivorced husband. Thereafter the insured went to live with her parents. She took her own life, leaving a note which it was contended amounted to a change of beneficiary. The legal question Involved was whether the husband had an insurable interest in the life of the insured. It was held the insured had an insurable interest in her own life and, there being no statutory or other reason to the contrary, could designate whom she chose as beneficiary, and recovery was allowed to the former husband and denied to the administratrix of the insured’s estate.
In Bussey v. Praetorians Life Ins. Co., 138 Kan. 575, 27 P. 2d 275, recovery was denied to a divorced wife who was designated as beneficiary, a subsequent attempt to designate another being ineffective, but the decision turned largely on the fact the policy was in a fraternal benefit society.
In support of her contention appellant relies largely on Sea, Admr., v. Conrad, 155 Ky. 51, 159 S. W. 622, 47 L. R. A., n. s., 1074, Ann. Cas. 1915C 318, where it was held that a decree of divorce cut off the divorced wife’s right in a paid-up policy on her husband’s life. In 52 A. L. R. 386 will be found an annotation on divorce of insured and beneficiary as affecting the latter’s right in life insurance, from which it appears that in Kentucky the matter is governed by statute, it being said:
“In the absence of terms in the policy indicating that the rights of the beneficiary thereunder are conditioned upon continuance of the marriage relation then existing between beneficiary and insured (citing authority) or regulation of the matter by statute (referring to Kentucky cases) the general rule prevailing in those jurisdictions (other than Texas and Quebec) where the question has been passed upon is that the rights of the beneficiary in an ordinary life insurance policy, including the right to receive the proceeds thereof upon the maturity of the policy, are in no way affected by the mere fact that the parties are divorced subsequent to issuance of the policy.” (p. 389.)
Many cases are cited in support.
In 2 Couch on Insurance, page 1268, § 440h, is a discussion of the effect of divorce on regular life insurance, in which it is said:
“The usual question, however, is whether or not a subsequent divorce terminates the rights of the wife as beneficiary in a policy of insurance previously issued upon the life of her husband. As to this, there is some conflict of authority. In Kentucky, proceeding in view of a statute requiring restoration, upon divorce of the parties, of any property obtained by one from the other during the marriage, in consideration or by reason thereof, and upon the ground that the wife no longer has an insurable interest in the life of her husband, it is held that a wife who is named as beneficiary in a policy of insurance on the life of her husband cannot, after termination of the marriage relationship, keep the policy alive by paying the annual premiums -thereon; but this statute has been held inapplicable to a case in which the wife herself takes out the policy and pays all the premiums. (Citing 'Kentucky cases.) Again, under the rule prevailing in some jurisdictions, that any interest in a life insurance policy terminates upon cessation of an insurable interest-, it has been held that a wife’s interest in a policy on her husband’s life ceases upon the rendering of a decree of divorce, and this though the divorce was obtained for the fault of the husband (citing Texas and Quebec cases), and except only to the extent of the premiums paid by her. But the general rule is that the right of the wife, as beneficiary, to the proceeds of a policy upon the life of her husband, issued prior to divorce of the parties, is not subject to the objection -that the divorce terminated her insurable interest, under the rule prevailing in most jurisdictions that a life policy, originally valid, does not cease to be so by the cessation of the assured’s interest in the life insured; in other words, that a subsequent divorce does not devest a wife’s insurable interest so far as prior insurance is concerned, even though she remarries, unless such be the necessary effect of the provisions of the policy itself.” (p. 1269.)
In 7 Cooley’s Briefs on Insurance, 2d ed., 6358, it is stated:
“In the absence of statute or regulation of the insurer to the contrary, a decree of divorce in itself in no way affects the rights of the divorced wife in a policy of insurance on her husband’s life or her authority to demand and receive the amount payable in virtue of its terms.”
And see, also, the notes in L. R. A., n. s., where the following cases are reported: Wallace v. Mutual Benefit Life Insurance Co., 97 Minn. 27, 106 N. W. 84, 3 L. R. A., n. s., 478, and Green v. Green, 147 Ky. 608, 144 S. W. 1073, 39 L. R. A., n. s., 370.
Appellant also urges our statute with reference to property settlements when a divorce is granted (R. S. 60-1511), and the finality of a judgment in a divorce action. We have no quarrel therewith. But the cases cited deal with no situation such as we have here. It has been observed the plaintiff had no vested right in the policy. There was no occasion for the court, when determining the divorce matter, to make any order connected with the policy of insurance. It was nothing that had to be set off to the wife, it belonged to the husband and he had power under the policy to make such disposition of it, as, under its terms, he saw fit. He had reserved a right to change his beneficiary, and that he could have done either before or after the divorce action.
Neither are we concerned with the insured’s reasons for obtaining the insurance or for not changing the beneficiary. It is true the answer alleges he procured the insurance to provide funds to pay his debts, but another allegation contradicts this, for it is alleged he made his first wife, and not his executors or administrators, his beneficiary. (And see the statute hereafter mentioned.) What motives prompted the insured to procure the policy, why after the divorce proceedings he did not designate either his second wife or his executors or administrators as beneficiary, or whether he felt the proceeds, in event of his death, should justly go to his first wife, are of no consequence. With full power to change his beneficiary, he let the policy stand as originally written. All that we may assume is that he left the policy as he wanted it. We are not warranted in making another and different disposition. Our conclusion is that the rights of the first wife as the designated beneficiary were not'affeeted by the decree in the divorce action.
Appellee directs our attention to R. S. 1933 Supp. 40-414 as being decisive of who is entitled to the proceeds of the policy. It may be open to argument whether that statute was intended to do more than to preserve to the beneficiary the reserves and benefits payable under the policy, freed from the claims of creditors of the beneficiary and the insured, and it not being necessary to a decision of the instant case, we express no opinion thereon.
The trial court ruled correctly on the demurrer to appellant’s answer, and its' judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This case involves an application of the bulk-sales law (R. S. 58-101). The proceeding is an action by a creditor of the seller against him, and garnishment of the purchasers. The garnishees answered, denying liability. Plaintiff joined issues on this answer. These issues were tried-by the court, with the aid of the jury, which answered special questions. Judgment was for defendants. Plaintiff has appealed.
The pertinent facts disclosed by the record and found by the jury may be stated as follows: L. W. Leffringhouse was conducting a retail hardware store at Colby. He had many creditors, including the plaintiff. About November 14, 1925, he sold the stock of hardware, in bulk, and all the fixtures, to J. Y. Pratt and F. E. Golden. On that date the purchaser had August Lauterbach, president of the Farmers and Merchants State Bank of Colby, write to many, not all, of the creditors of Leffringhouse, requesting the creditor to mail a statement to the bank “covering L. W. Leffringhouse’s entire indebtedness to you. This concern is changing hands.” The stock of goods was invoiced November 15 and 16. On the evening of November 16 the plaintiff, who was a traveling salesman, was in Colby and called at the store and there met Golden, whom he had known for several years, and Pratt, to whom he was then introduced. The three visited a few minutes. Plaintiff asked if they had bought Leffringhouse out; they replied that they had. Plaintiff wished them success and expressed the hope that they could give him some of their business. That was about the extent of the conversation concerning the sale of the business. Plaintiff’s judgment was that the stock of hardware and fixtures was of the reasonable value of $7,000. At that time Leffringhouse and his wife were indebted to plaintiff on a note given in 1919 for $750, for the purchase price of an automobile, on which payments had been made irregularly from time to time. Plaintiff did not mention this indebtedness to Pratt or Golden during the conversation just mentioned, nor did he take any steps at that time, or soon thereafter, to subject the stock of goods and fixtures to the payment of this debt. A year or more previous to the sale of this stock, plaintiff, in a conversation with Golden, told him of Leffringhouse’s indebtedness to plaintiff; but at the time of the conversation of November 16, 1925, Golden did not know that any of that indebtedness still existed. The jury made a specific finding that Golden did not on that date know of any indebtedness of Leffringhouse to plaintiff. On November 23, 1925, Leffringhouse made an affidavit before August Lauterbach in which he says “that he owes to wholesale houses and taxes this date $3,690.83, as per invoices and statements hereto attached.” It does not appear that any “invoices and statements” were attached to this affidavit; perhaps that statement in the affidavit refers to invoices and statements which had been received by the president of the bank in answer to letters he had written November 14. There was attached to, or accompanied, this affidavit a list of names and addresses of persons and firms to whom ‘Leffringhouse was indebted. It was not a complete list of the creditors of Leffringhouse and did not purport to be. And it will be noted that the affidavit did not purport to refer to all of Leffringhouse’s creditors. Perhaps it is fair to say that the sum stated in the affidavit was less than half of Leffringhouse’s indebtedness and the list omitted many of his creditors. Plaintiff’s name was not on the list.
On November 23 the buyers, Pratt and Golden, executed their check to Leffringhouse for $5,467.50 in full payment of the stock of goods and fixtures, as per their contract of purchase and invoice. This check was paid November 24, and out of this money many of the creditors of Leffringhouse were paid — presumably those whose names appeared on the list, and in the aggregate amount stated in the affidavit above mentioned. The balance was paid to the bank to apply on the indebtedness of Leffringhouse to the bank.
On May 13, 1927, this action was brought, with the results as above stated.
Appellant’s principal contention is that under the facts as disclosed by the record and found by the jury plaintiff was entitled to judgment in his favor as a matter of law. This contention must be sustained. The statute reads:
“The sale or disposal of any part or the whole of a stock of merchandise or the fixtures pertaining thereto, otherwise than in the ordinary course of his trade or business, shall be void as against the creditors of the seller, unless the purchaser receives from the seller a list of names and addresses of the creditors of the seller certified by the seller under oath to be a complete and accurate list of his creditors and unless the purchaser shall, at least seven days before taking possession of the property, or before paying therefor, notify in person or by registered mail, every creditor whose name and address is stated in said list, or of whom he has knowledge of the proposed sale.” (R. S. 58-101.)
There was no serious effort made to comply with this statute. The purchasers never obtained from the seller a complete list of his creditors, or a list that even purported to be complete, and the list that was obtained was furnished November 23, the day the parties were closing their deal and the check in payment was signed, instead of at least seven days prior thereto. The purchasers had been in possession of the stock since the completion of the invoice, November 16.
In support of the judgment it is argued that the purchasers gave notice to plaintiff in their conversation with him on the evening of November 16, which was in fact seven days before the stock was paid for. But it is clear that the purchasers did not at that time know that the plaintiff was a creditor. The conversation there did not amount to a notice required by the statute, and was not intended to be such.
Appellees lay much stress on the last ten words of the statute above quoted: “or of whom he [the purchaser] has knowledge of the proposed sale.” In this respect we understand the argument of appellees to be that since the purchasers had no knowledge of the fact that plaintiff was a creditor of the seller, and the jury specifically found that to be true, that the purchasers were not bound, under the statute, to give him notice. But this language cannot be so interpreted as applied to the facts here, nor should it be interpreted as standing separate and apart from the other provisions of the section. Under this section the creditors to whom notice should be given are all those named in the verified list furnished by the seller, which should, under the statute, be a full and complete list of all of the seller’s creditors; and in addition to those named in the list, to those of whom the purchaser has knowledge. In other words, if the purchasers in this case had in fact undertaken to comply with this law in good faith, and had, when they made their contract with the seller on November 14, required him to furnish them a complete list of all of his creditors, duly verified, and if they had given notice to the persons named in that list in the manner the statute provides, then if, in fact, the purchasers knew of a creditor of the seller whose name was not on that list, they were, by the last ten words of this section, required to give notice to such person. But the purchasers in this case were not in that situation. They, in effect, ignored the statute entirely in purchasing this stock of goods, and they are not in position to rely upon the provisions of a statute which they themselves ignored.
The statute says that the sale of a stock of merchandise in bulk shall be void as to the creditors of the seller if the statute is not complied with. In this ease the statute was not complied with. The plaintiff is a creditor of the seller, and the necessary result is that the sale was void as to him.
Appellees further argue that under the facts of this case the plaintiff was estopped from maintaining this action. In Coleman, Trustee, v. Costello, 115 Kan. 463, 223 Pac. 289, there was much more upon which to predicate an estoppel than there is in this case, and it was held that any or all of the facts there relied upon did not amount to an estoppel.
The judgment of the court below will be reversed, with directions to enter judgment for the plaintiff.
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The opinion of the court was delivered by
Smith, J.:
This was an action for money. Judgment was obtained by plaintiff. The trial court stayed further proceedings when plaintiff attempted to force the sale of defendant’s homestead to satisfy the judgment. Plaintiff appeals.
On November 19, 1932, Christ Leibrand, defendant, filed his petition in bankruptcy. Among his assets he listed the land which is here in controversy. He claimed this land to be exempt as a homestead. Plaintiff filed its claim in the bankruptcy proceeding, and it was allowed. Thereafter the order allowing the claim was set aside on motion of plaintiff and the claim was allowed to be withdrawn to permit plaintiff to pursue its rights in the state courts. Proceedings on defendant’s petition for discharge in bankruptcy were stayed by the referee.
On June 5,1933, plaintiff commenced this action for $1,500. Judgment for that amount was entered. The judgment recites that defendant, Christ Leibrand, and Zenna Leibrand are husband and wife, and that Christ Leibrand is the record owner of the real estate in question here and lives on it as a homestead, and—
“That the sum for which judgment is entered herein, to wit, fifteen hundred (1,500) dollars, is the agreed balance due for moneys furnished by the plaintiff to the defendant, Christ Leibrand, for the erection and equipping of green houses and other improvements upon the above-described property, and that said money was actually used in the erection and equipment of greenhouses and other improvements thereon.”
After rendition of the judgment defendant filed a motion calling attention to the bankruptcy proceedings and asking that, pursuant to R. S. 60-3601, further proceedings be stayed. At the hearing it was shown that in the bankruptcy proceeding creditors of defendant listed claims totaling $2,220.23, including the claim of plaintiff, which amounted to $1,600. The court allowed the motion and stayed all further proceedings. The effect of this order was to prevent plaintiff from selling the real estate in question to satisfy the judgment. Plaintiff appeals from this order.
R. S. 60-3601 reads, in part, as follows:
“That in any action in which any judgment has been or may hereafter be rendered against any person or persons in any of the courts of this state, and such person or persons shall have applied to the proper court for his or their discharge under the act of congress approved July 1, 1898, entitled ‘An act to establish a uniform system of bankruptcy throughout the United States,’ and shall file his or their affidavit or affidavits of such fact, with the certificate of any referee in bankruptcy or the clerk of the.district court of the United States, it shall be the duty of the court to make an order in such case that no execution, order of arrest or other process shall issue on the same, and no sale of lands or personal property shall be confirmed, but the same shall be set aside and held for naught.”
Plaintiff argues that the facts' of this case do not come within the provisions of this statute. It points out section 9 of article 15 of the constitution of the state. That section is as follows:
“A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from, forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the, erection of improvements thereon: Provided, The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife.” (Italics ours.)
See, also, R. S. 60-3501, to the same effect.
The terms of the judgment have already been referred to here. The court found that the money for which judgment was given had been furnished by plaintiff to defendant for the erection of improvements on the land in question and had been actually used for that purpose. Plaintiff points this out and then calls attention to that portion of the homestead exemption which reads:
“But no property shall be exempt from sale . . . for the payment of obligations contracted . . . for the erection of improvements thereon.”
The argument of plaintiff is that the real estate sought to be sold under execution is not exempt to defendant because the money for which the judgment was rendered was furnished for the erection of improvements on the land in question; that since this is true, the action of the bankruptcy court had no effect on it whatever and R. S. 60-3601 has no application. The argument is that plaintiff is in just as favorable a position as though it had a lien on the property. We shall examine that question.
In Andrews v. Alcorn, 13 Kan. 351, this court held that a homestead might be sold to satisfy a judgment for the unpaid purchase price. In that case, however, the action was brought by the person who had actually furnished the money, that is, the money went directly from the plaintiff to the purchaser of the land. In Greeno v. Barnard, 18 Kan. 518, this court said:
“As to purchase-money, the homestead is just like any other real estate, and governed by the same rule as other real estate.” (p. 521.)
In that case, however, the notes sued on had been given to plaintiff as part of the purchase price of the land sought to be sold.
In Tyler v. Johnson, 47 Kan. 410, 28 Pac. 198, this court held that where a lumber company had obtained judgment for the purchase price of lumber and building material used to make improvements on land occupied as a homestead, the land could be sold to satisfy the judgment. In that case it will be noted that the action was brought by the firm which had actually furnished the building material.
In Manufacturing Co. v. Haughton, 97 Kan. 528, 155 Pac. 1078, the action was brought by a company to recover the purchase price of a lighting plant. The plant was to have been installed on property held as a homestead. This court denied plaintiff the right to sell the land to satisfy the judgment on the ground that the plant had never actually been installed and become part of the real estate. Language was used indicating that this court was of the opinion that a homestead might be sold to satisfy a judgment for materials furnished for its improvement where the materials were actually used for that purpose. In that case, however, the action was brought by the company that had actually furnished the material.
In Bank v. Pickering, 111 Kan. 132, 205 Pac. 1110, the plaintiff bank had furnished the defendant'the money with which a farm was purchased. The action was to recover this money. Judgment was obtained. The plaintiff sought to collect the judgment by selling the land under an execution even though it was claimed as a homestead. This court held that the homestead could be sold. In that case the action was brought by the bank which had furnished the money and the money had gone directly from the bank to defendant.
We have reviewed the decisions of this court on the point in question because it does not appear that the exact situation has ever been passed on. The question is, Is this an obligation contracted for the erection of improvements on this real estate? Were the plaintiff the company which actually furnished the material the question would be in the affirmative. That is not the case. The plaintiff furnished the money and defendant paid it to the material-man. We have said that an exception to the homestead exemption statute should be strictly construed in favor of the one claiming the exemption. (See Manufacturing Co. v. Haughton, supra.) In the case of Lewton et al. v. Hower, 18 Fla. 872, the court considered a similar provision, and said:
“An indebtedness for money borrowed to purchase materials, or to pay for labor bestowed in improving lands, or money expended in the purchase of such materials, or in payment for such labor, is not an obligation contracted ‘for the erection of improvements,’ nor an obligation contracted for such labor, and is not within the exceptions of the constitutional provisions. The contract in such case is to repay money loaned or expended, and not a contract to pay for the erection of improvements, or for labor on the premises.” (p. 882.)
In the case of Steger v. Traveling Men’s Bldg. Assn., 208 Ill. 236, 70 N. E. 236, the same question was considered. The court said:
“Part of the loan was advanced for other purposes and the building association held the balance until the building was practically completed, when, for its own protection, it required releases of mechanics’ liens, and at a meeting of all the parties interested distributed the money to the contractor and subcontractors. The debt was not a debt for making any improvement. As between the contractor and Strozewski the debt was for the improvement of the homestead, but as between Strozewski and the building association he was a borrower and it was a lender.” (p. 245.)
To the same effect see Gayland v. Loughridge, 50 Tex. 573; Ellerman v. Wurz, (Tex.) 14 S. W. 333.
The authorities generally hold that the qualifying words to the exemption in the constitution are for the benefit of those who furnish material and labor to improve a homestead, not for the benefit of one who loans money to pay therefor. Since this is true, the land in question was protected by the provisions of R. S. 60-3601.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by an administrator, formerly guardian of a feeble-minded person, to recover from a former guardian of the same feeble-minded person for neglect in the administration of his duties as such guardian. The defendant prevailed and plaintiff appeals. The facts are substantially as follows:
On March 12, 1924, Thomas H. McBerty was adjudged feeble-minded and Ed Hogue was appointed as his guardian. Hogue qualified and gave bond. On January 4, 1926, J. R. Hyland was appointed guardian to succeed Hogue, who had resigned. Hyland qualified and gave bond. On January 8, 1926, Hogue filed his final report as guardian. On January 13, following, the probate court made an order accepting Hogue’s resignation, directing him to turn over to his successor all assets belonging to the estate, but declined to approve his final report. McBerty died November 5, 1926, and on November 20, following, Hyland was appointed administrator of his estate. On July 9, 1927, Hyland filed objections and exceptions to Hogue’s final report, and on the hearing held September 1, 1927, the probate court disapproved it and authorized and directed Hyland as administrator to file suit against Hogue for the recovery of certain amounts found due. Hogue appealed to the district court, which on March 22, 1928, reversed the judgment of the probate court and approved Hogue’s final account as guardian.
The administrator contends that Hogue is liable because of his failure or neglect to collect certain notes aggregating $5,150 purchased from and guaranteed by the Barnes State Banlv, and being part of the assets of the estate at the time Hogue accepted his trust as such guardian; because of the purchase by Hogue, as guardian, of a note of James Pifer for $1,000, past due when so purchased, unsecured and without order of the probate court; and because of the purchase or renewal of another note for $7,000, taking a second mortgage as security therefor and releasing the bank as surety, without order of the probate court. The administrator argues that while a guardian or trustee is not ah insurer of the assets of his estate, he must act in good faith, use sound discretion and reasonable diligence, and where appointed by a court must follow the instructions of such court.
Hogue contends that there was no evidence that he could have collected the notes; no evidence that anyone could have foreseen the failure of the bank; no evidence showing that the makers of the notes in question were not good for the face amount of the notes, or that any attempt had been made to collect them or a failure in such attempt; no evidence that the administrator could not have collected judgments procured against the makers. The probate court found such misconduct, negligence, breach of trust and mismanagement on the part of Hogue as to entitle the administrator to judgment for some $16,000. When appealed to, the district court the case was tried on the same pleadings, but was tried de novo. The district court after hearing the evidence made a general finding in favor of Hogue, in effect that there was no misconduct, negligence, breach of trust or mismanagement and no liability on the part of Hogue. The defendant contends that the burden was upon the administrator to prove the allegations of his petition, which he failed to do.
While all of the evidence introduced in the probate court upon which the findings were made against Hogue appears not to have been before the district court, it was shown that the bank guar anteed payment of certain of the notes in question; that the bank continued a going concern long after the notes matured, which was at least prima jade evidence that the guardian should' have collected them. Furthermore, it was shown that the guardian released the bank and took a second mortgage as security for another note without the order or approval of the probate court; also, that the guardian without approval or order of the probate court used the assets of the estate to purchase another note of doubtful value. These were all matters tending to make a prima jade case for the administrator and placed upon Hogue the burden of showing why he should have been relieved of responsibility. When Hogue took over the assets of his ward he found five notes amounting to $5,150 belonging to the estate which had been sold by the Barnes State Bank and under its guarantee. Certainly it was the duty of the guardian to collect these notes if possible unless given authority by the probate court to renew or extend them. The bank having failed, his successor, the administrator, reduced the note to judgment and has collected dividends aggregating 45 per cent from the receiver in charge of the failed bank. It is presumed that a guardian or administrator would perform his duty and collect such judgments. It is therefore reasonable to assume that collection cannot be made from the makers. If the present administrator has been negligent or if Hogue had done his full duty as guardian in attempting to collect the notes, he could' have shown such facts.
“It shall be the duty of every such guardian to prosecute and defend all actions instituted in behalf of or against his ward; to collect all debts due or becoming due to his ward,” etc. (R. S. 39-209.)
“[The] probate court . . . may make an order ... for the management of his estate,” etc. (R. S. 39-210.)
“The probate court shall have full power to control the guardian ... in the management of the person and estate,” etc. (R. S. 39-230.)
“Guardians . . . must also, in other respects, manage their interests [the ward’s] under the direction of the court. They may thus lease their lands or loan their money during their minority, and may do all other acts which the court may deem for the benefit of the wards.” (R. S. 38-210.)
See, also, Charles v. Witt, 88 Kan. 484, 129 Pac. 140. In Sowers v. Pollock, 112 Kan. 599, 212 Pac. 103, it was held that the loan of a ward’s funds to the guardian, even with the order of the probate court, is void and affords no protection to the guardian. And so it would seem that the unauthorized purchase of an unsecured note, past due when purchased, or perhaps worthless, not shown to have increased in value, in the absence of any evidence showing negligence of the administrator in failing to collect, is a violation of the duty of a guardian.
“It is a breach of the guardian’s duty to loan the money of his ward without security, and it is very generally held that if he does so he is answerable to the ward for any resulting loss, regardless of the credit of the borrower, and notwithstanding the guardian acted in good faith, and was diligent in endeavoring to prevent a loss.” (28 C. J. 1143, § 241.)
“In the absence of statute, the committee or guardian has no authority or power to loan his ward’s money. If he has authority to do so, the loan should be made upon adequate security. It has been held that where a guardian makes a loan on the sole credit of the borrower it devolves on him to show that he acted in good faith and with due prudence, and in the absence of such evidence, the presumption is otherwise. If he makes an unauthorized loan he is liable for a resulting loss, and he is not relieved from such liability on the ground of the borrower’s subsequent bankruptcy.” (32 C. J. 694, § 387.)
“In making investments the guardian must act in absolute good faith, and with reasonable diligence to insure the safety of the investment. The modern motto, ‘safety first’ applies nowhere more strongly than in the investment of trust funds. The standard often applied in other relations, that one must act with such care as a reasonably prudent man would use in his own concerns, is hardly sufficient here. Even a prudent man may sometimes take a. chance of loss for the sake of an unusual profit, or may loan money on insufficient security to oblige a friend. But in investing trust funds the element of speculation and that of favoritism are alike forbidden.” (12 R. C. L. 1131.)
We are of the opinion that the administrator should have been permitted to file suit against the former guardian- as directed by the probate court.
The defendant has presented a motion to dismiss the appeal, contending that the alleged errors committed by the trial court were not pointed out to the court on the hearing of the motion for a new trial. It appears that the case was tried very largely upon an agreed statement of facts; that it was fully argued to the court and judgment rendered March 22, 1928; that the motion for a new trial was immediately filed by the plaintiff and came on for hearing the succeeding day. The grounds of the motion were:
“1. Because of erroneous rulings of said court.
“2. Because the said judgment is wholly contrary to the evidence.
“3. Because the said judgment is wholly contrary to the law.”
It appears that no error is based upon the admission or rejection of evidence. The case was tried by the court so there is no question of erroneous instructions. Practically there was and is but a question of law upon undisputed facts. Therefore the motion for a new trial was simply that the decision of the court was incorrect and contrary to the law and evidence. Counsel for the administrator directed attention of the trial court to the argument and authorities cited on the previous day and stated that he had nothing further to offer. We think under the circumstances the trial court was sufficiently informed of the errors claimed by plaintiff.
The judgment is reversed and the cause remanded with instructions to affirm the order of the probate court.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action where the plaintiff replevined an automobile claimed to have belonged to her which had been levied upon and taken by the sheriff on executions against her brother. The jury found against the plaintiff, and she appeals. The errors assigned are the substitution of the judgment creditors for the sheriff, the refusal of the court to strike from the files the answers of the judgment creditors, and overruling the motion for new trial.
The case was brought against “F. A. Cook, as sheriff of Scott county, Kansas.” In the body of the petition no mention was made of his official character. It was alleged in the petition that he wrongfully took an automobile from the possession of the plaintiff and still wrongfully and unjustly detains the same. The defendant answered by asserting his official character and qualification as sheriff, and set out his action in taking such automobile under the two executions issued to him as sheriff out of the district court of Scott county, and alleged that the automobile was taken by him as the property of Carl M. Starr, the judgment debtor. After a reply had been filed to this answer the attorney for the sheriff, as attorney for the two judgment creditors, filed a request for them to be substituted as defendants. The record is silent as to any ruling on this application, but ón the same day separate answers were filed by the two judgment creditors, alleging the official character of F. A. Cook and that he, as sheriff, had taken the automobile as the property of Carl M. Starr under executions issued against him as judgment debtor. The plaintiff then moved to strike these answers from the files. This was overruled and replies were filed to them. The' case was tried to a jury, which resulted in a verdict for the defendants and answers to special questions asked by plaintiff to the effect that she was not the owner of the automobile and did not furnish the money to purchase it or to pay for the dealer’s license, but that she had paid the 1923 taxes on it with other taxes of Carl M. Starr.
As a preliminary objection to the question of substitution it is urged that no proof was offered to show the official character of F. A. Cook. No proof was required. The petition in the caption referred to him as sheriff and all these answers alleged it or, rather, admitted it. In this manner all the pleadings and parties recognized him as sheriff. Even if we disregard the caption of the petition and consider the references in the three answers to F. A. Cook as being the duly elected and qualified sheriff of the county as new and original allegations, then the truth of such allegations is admitted by there being no verified denial, under the authority of R. S. 60-729. See Mikesell v. Wilson County, 82 Kan. 502, 108 Pac. 829; Hornick v. U. P. Railroad Co., 85 Kan. 568, 118 Pac. 60; Abel v. Hounsom, 107 Kan. 741, 192 Pac. 384; Moore v. Insurance Co., 111 Kan. 420, 207 Pac. 760; Davison v. Maryland Casualty Co., 126 Kan. 365, 267 Pac. 1001.
Appellant insists that the requirements of R. S. 60-420, with reference to substitution, were not followed, wherein it requires the application for substitution to be made by the sheriff and the execution creditors, whereas the application here was made by the latter only. The attorney for the sheriff made the application for the defendants after having filed an answer for the sheriff. The fact that the same attorney represented the sheriff as well as the creditors gave the assent of the sheriff to the request. Besides, the matter of substitution is largely in the discretion of the court, as is stated in the case of Wafer v. Harvey County Bank, 36 Kan. 292, 13 Pac. 209, in the opinion of which it was stated:
“Where the rights of a plaintiff will not be injured, the court, however, should permit such substitution within the terms of the statute.” (p. 294.)
The sheriff can make the same defenses and all the defenses the judgment creditor can make, so no injustice was done the plaintiff by such substitution. (National Bank v. Barkalow, 53 Kan. 68, 73, 35 Pac. 796.) The trial court had the right to conclude that such application for substitution had the approval of the sheriff when made by his own attorney, and while there is no journal entry granting his request, the appellees in their brief give a copy of the minutes of the judge on the trial docket to the effect that the substitution was allowed.
The motion to strike the answers from the files was based upon the irregularity of the application without the concurrence of the sheriff and the failure of the record to show the order. We think, for the reasons above given, that the motion to strike the answers from the files was properly overruled.
Appellant insists that defendants completely failed in making a case to go to the jury or to entitle defendants to judgment, particularly as to proof of official character of the sheriff and the validity of the judgments on which executions were issued. The abstract does not seem to set out all the evidence as to the proof of the judgments. The appellees’ brief quotes from the transcript as to the offering and receiving as evidence all the files in both cases wherein the judgments were rendered, including the execution issued thereon and the returns of the sheriff. It is suggested that the judgments may be barred by the statute of limitation and that what is printed in the abstract as to one of them would so indicate. It shows the issuance of no executions at all; but elsewhere it is shown the court permitted the executions and returns to be introduced and read to the jury. We cannot conclude under these circumstances that there was a lack of evidence on this subject. The trial court approved the verdict and overruled the motion for new trial, and we think correctly.
The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action to rescind the sale of certain municipal bonds and warrants and to recover the purchase price on account of false representations. The action involved nine transactions. As to some of the transactions, the jury found for plaintiff. On the others the jury found for defendant. Judgment was rendered in accordance with the verdict of the jury. Both parties appeal.
The transactions involved were the sale of the following bonds: Royal Oak drain district, Oakland county, Michigan, $5,000; general fund refunding warrants, Hidalgo, county, Texas, $3,000; road bonds, road district No. 1, Hidálgo county,' Texas, $22,000; city of Ocoee, paving bonds, Florida, |13',000; drainage subdistrict No. 4, of Grassy Lake and Tyronza drainage district No. 9, Mississippi county, Arkansas, $5,000; water plant revenue bonds, Series B, Corpus Christi, Texas, $8,000; and drainage district No. 7, Poinsett county, Arkansas, $6,000.
These sales took place at different times, as will be hereinafter noticed. There were three separate sales of the Ocoee bonds. Each sale was treated by itself in the petition.
The plaintiff was a farmer living in Butler county. The defendant makes a business of dealing in municipal bonds and mortgages. The case was submitted to a jury. The jury found in favor of plaintiff on the causes of action based on the sale of the Royal Oak drain-district bonds, the Hidalgo county refunding warrants, the seven $1,000 bond items of the city of Ocoee, Florida, the one $1,000 bond item of the city of Ocoee, Florida, the five $1,000 bond items of the city of Ocoee, Florida, the Corpus Christi, Texas, water revenue bonds.
The jury found for the defendant on the causes of action based on the sale of the Hidalgo county road district bonds, the Mississippi county drainage district, Arkansas, item and the Poinsett county, Arkansas, drainage district bonds.
We will dispose first of the appeal of the defendant from the judgment against it.
The defendant argues first that it was entitled to judgment on the special questions notwithstanding the general verdict as to the sale of the Royal Oak bonds and the Corpus Christi bonds. Defendant points out in this connection the answer to special question number 4. In that question the jury was asked what the false representation was that induced plaintiff to buy the bonds. As to these two issues, the answer was “legal and valid.” Defendant argues that no such a representation was alleged in the petition to have been made and that such a finding acquits the defendant of any false representation. We will discuss the latter question first. We must notice the answer of the jury to question number 7 in order to understand this argument. In that question the jury was asked what, in substance, the agent of defendant represented to plaintiff at the time the several sales were made. The answer as to the sale of the Royal Oak and the Corpus Christi bonds was “That this issue is legal and valid and a high-class security as good as any Kansas bond.” It will be noted that this question asked for all representations while question number 4 asked for all false representations. The several answers to special questions should be construed together so as to harmonize with the general verdict where possible. (See Greiner v. Greiner, 129 Kan. 435, 283 Pac. 651.) In this case the jury found in answer to one question that the false representation that was made was that these two issues were “legal and valid.” In answer to another question it found that a representation that was made was that these two issues were legal and valid and a high-class security as good as any Kansas bond.
The jury would not have found that the representation as to these two being a high-class security and as good as any Kansas bond was not false if it believed that the statement that they were legal and valid was false. If the jury believed that the bonds were not legal and valid then it could not have believed that they were a high-class security. This conclusion makes it unnecessary to consider the argument of defendant that there was no allegation that defendant represented these two issues were legal and valid and no proof of the allegations had ever been made.
Defendant next argues that the false representations alleged were not actionable. The allegation's of false representations as to each sale were substantially the same. They were as follows:
“That said bonds were as safe and sound for investment purposes as any Kansas municipal bonds; that they were gilt-edge securities; that the defendant had experts in its employ investigate said bonds thoroughly and carefully, and that defendant had been in close contact with and made a special study of all matters pertaining to the origination, issuance and distribution of municipal bonds, warrants and securities and was competent and qualified to determine and pass on the validity and legality of all municipal bonds, warrants and securities and that said bonds were legal, valid and subsisting obligations-of the city of Ocoee, county of Orange and state of Florida, and that they constituted as safe an investment as plaintiff could make. . . .
“In order to induce plaintiff to believe and rely thereon and to continue a customer of defendant and to purchase said bonds and to prevent .any independent inquiry or investigation by plaintiff and with the fraudulent intent of breaking its promises and agreement, if called on to make the same good, orally again promised and agreed that with respect to said bonds as well as with respect to any securities theretofore purchased' by plaintiff from the defendant, -the defendant would repurchase the same on plaintiff’s demand for an amount equal to the original purchase price with accrued interest.to date of such repurchase. ...”
The argument of defendant is that the statements that the bonds were “gilt-edge" and were “safe and sound” and “as good for an investment as any Kansas municipal bond” were not statements of an ascertainable fact, but rather were matters of opinion and as such were not actionable. It should be stated here that the jury found for the defendant on the allegation that the agreement to repurchase was made with the intention of breaking it. We have here at' this time only the question of whether the statements alleged, which have already been referred to, were actionable.
The petition in this case and the evidence discloses a course of dealing extending over several years and covering several transactions. Under such circumstances we must consider all the representations with the idea that the determining factor is the combined effect of all the statements on the plaintiff’s mind.
“ ‘Fraud is one of the broadest issues known to the law, for it can seldom be proved by direct evidence, but is dependent upon circumstances which, separately considered, may be quite immaterial, but when combined are not only material, but have great persuasive force.’ ” (First Nat. Bank v. Miller, 163 N. Y. 163, 167; 57 N. E. 308.)
This was quoted and approved in Churchill v. St. George Development Co., 160 N. Y. S. 357. To the same effect is the holding of the court in Crook v. Ford, 249 Mich. 500, 229 N. W. 587. There the court said:
“As a rule there are many factors which induce one to enter into a contract. A fraud results from a fraudulent statement, if the erroneous belief caused by the statement is a material contributing factor in deciding the other party to enter into the contract.” (p. 505.)
See, also, Stewart v. Wyoming Ranche Co., 128 U. S. 383, 9 S. Ct. 101, 32 L. Ed. 439.
We will not dwell at length upon the evidence offered by both parties as to the meaning of the phrase “gilt-edge” when used in speaking of bonds. The question with which we are concerned is, What was the effect produced upon the mind of plaintiff by its use under the circumstances we have here? When- that test is applied we conclude that the effect thus produced was to cause plaintiff to believe that the bonds in question were much better bonds than they really were. We hold that the representations charged to have been made were actionable.
The next argument of defendant is that the findings of the jury were in favor of defendant on all charges of fraud pleaded in the petition. The argument is based on the fact.that the trial court submitted the case to the jury on an instruction that the false representations charged in the petition were that bonds were gilt-edge securities, that they were as safe and sound for investment purposes as any Kansas municipal bond, together with the allegation about the repurchase agreement, as to which the jury acquitted defendant. Defendant points out that the jury found the false representation made was that the bonds were high class and as good as any Kansas bond. The argument is that the allegation “as good as any Kansas municipal bond” was not actionable, and since the jury did not find that the defendant represented that the bonds were “gilt-edge” the finding amounted to an acquittal of the fraud pleaded. Such a rule would impose too great a burden on the jury. A jury is not composed of men skilled in the discernment of the fine distinctions between the meaning of words. The words “high class” and “gilt-edge” are so nearly synonymous that the jury might well .have used them interchangeably. The special findings must be construed together with the general verdict so as to uphold the general verdict wherever possible. When this is done we have no trouble in holding that the answers to the special questions indicate the jury in answering them believed the facts existed sufficient to support the general verdict. It is not necessary for the plaintiff to prove nor for the jury to find that the exact language used in the pleadings was in fact used by the defendant. (See Maidment and Maidment v. Frazier, 90 Vt. 520, 98 Atl. 987.) There the court said:
“It is not necessary that the exact language of the representations as set out in the declaration, should be proved. There is no material variance if the representations be proved substantially as alleged.” (p. 525.)
What the plaintiff wished to buy was bonds as good as the Kansas bonds he was selling. This court is not impressed with the argument that the bonds sold were worth 100 cents on the dollar at the time they were sold. The plaintiff was looking for a safe investment for his funds. He was not interested in the technical difference in bonds as argued' by defendant. If a bond had infirmities in it at the time it was sold which were bound to result in the bond eventually being worthless or at the most worth only a few cents on the dollar the plaintiff did not want it. In this case there were bonds issued by bankrupt municipalities, in some cases poorly secured, in other cases inferior to other liens, so that the payment of them was made impossible or put at a time far in the future: The defendant knew or should have known these things. The plaintiff stated that he did not know and had no means of knowing the facts which he now says were misrepresented. On the other hand, the defendant did have the means of obtaining this information. In some cases, indeed, the'agent of defendant testified that he had such information. Under such circumstances frequently courts have held a statement which under other circumstances would be an opinion to be a misrepresentation of a fact. In Abmeyer v. Bank, 76 Kan. 877, 92 Pac. 1109, this court said:
“It is contended that the representations of Wright, if false, were mere matters of opinion, which cannot be regarded as fraudulent. Ordinarily the expression of an opinion or belief by a vendor as to quantity or value, although false, is not a basis of action or ground of relief. Where, however, the parties do not stand upon a basis of equality — where the vendor assumes to have knowledge and asserts an opinion upon a matter of which the vendor [vendee] is ignorant, and the misrepresentations are made with intent to deceive, the vendee who relies upon and is injured by them is not without remedy.” (p. 879.)
See Stevens v. Allen, 51 Kan. 144, 32 Pac. 922. See, also, 1 Quindry on Bonds and Bondholders, pp. 96, 98, sec. 61; Shriver v. National Bank et al., 117 Kan. 638, 232 Pac. 1062, and McDonald v. Smith, 139 Mich. 211, 102 N. W. 668.
We hold that the argument of defendant that the jury’s findings acquitted appellant of all fraud charged by plaintiff, that the representations found by the jury to have been made are not actionable, and that the representations found by the jury are not legally equivalent to the representations pleaded, is not good.
The defendant next argues that the plaintiff as a matter of law was not entitled to maintain an equitable action in rescission. This argument is based upon the fact that plaintiff filed this action originally on March 12, 1932. He had served a demand for repurchase on defendant on February 20, 1932. The petition in that case set up every ground of fraud which was submitted to the jury in this case as a ground for rescission and joined with these allegations of fraud an action to recover on an asserted repurchase agreement. Defendant argues that plaintiff thereafter resisted the efforts of defendant to force an election on the part of plaintiff from March 12, 1932, until the 22d day of August, 1933, when the amended petition on which this trial was-had was filed. The facts are that' the original petition in this case was filed on March 12,1932. When that action was filed defendant filed a motion to quash the summons, motions to strike, motions to require plaintiff to separately state and number, and finally a demurrer - to the. petition: These were all overruled, and defendant appealed. This court reversed the trial court on the motion to separately state, and number, on the motion to make definite and certain, and on the demurrer. These rulings were all on the same point, that is, this court held that it was not plain from the petition whether plaintiff was suing and relying, on the contract for repurchase, or suing for damages on account of fraud; or suing for a rescission. It was held that an action must be based on some definite legal theory. (See Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 22 P. 2d 965.) After the decision in that case the plaintiff filed the amended petition upon which the trial was had which we are now discussing. In that amended petition the plaintiff alleged fraud and prayed for a rescission and for damages. We see in the record of the case of Sluss v. BrownCrummer Inv. Co. nothing more than the ordinary case of two parties vigorously contesting every step in a lawsuit. It is true that seventeen months elapsed while the former action was reaching a decision in this court. We cannot see, however, where the delay could be fastened on plaintiff or where the defendant was damaged by it.
So far we have discussed various arguments of defendant wherein it is claimed that the trial court committed errors which require a judgment for defendant.
We will now discuss errors which defendant argues entitle it to a new trial. The first error of which defendant complains under this head is the refusal of the court to submit the following special, question requested by defendant:
“6. With respect to any transaction on which you allow recovery give in detail with respect to each such transaction on which you allow recovery, what you find induced plaintiff to purchase the securities.
“Answer: Description of issue: Statement of what induced purchase:”
The question was an attempt on the part of defendant to cross-examine the jury. This is not permitted. In Doty v. Crystal Ice & Fuel Co., 122 Kan. 653, 253 Pac. 611, this court held:
“The trial court has discretionary supervision of the form and nature of special questions which may be submitted to a jury, and may properly refuse to submit questions which are highly technical, or which are not focused on the ultimate facts of the matter in issue, or which are designed merely to recapitulate the evidence rather than to determine. the facts proven by the evidence.” (Syl. ¶ 1.)
See, also, Ladd v. Railway Co., 97 Kan. 543, 155 Pac. 943. The court instructed the jury that the false representations must have induced the defendant to purchase the securities. In order for the jury to have found generally for the plaintiff it must have believed that the false representations induced the plaintiff to make the purchase. We conclude that the proffered question was an improper one-.
Defendant next argues that there was a failure of proof of the allegations of fraud. This argument is based on the fact that the allegation in the petition was that defendant represented that the bonds were “gilt-edge” and as “safe and sound as any Kansas bond,” while the jury found the representation was made to be that the bonds were “high class” and “as good as any Kansas bond.” This argument has already been disposed of in this opinion.
Defendant next argues that it was error for the trial court to admit evidence as to the value of the bonds at the time of the trial because it was too remote from the time of the sales. The court instructed the jury that such evidence could only be considered by it insofar as it' tended to prove that the bonds were or were, not such bonds as they were represented to 'be at the time of sale. Plaintiff was buying bonds for a long-time investment. Defendant knew this. In Paul v. Cameron, 127 Neb. 510, 256 N. W. 11, the court considered a similar question. There the court said:
“Defendants also contend that subsequent events must not be taken into account in determining the value of the bonds in suit as of the date of the alleged fraudulent sale. And, on this ground, objections were originally made to the introduction of evidence relating to the default in payment of the rent and the forfeiture of the 99-year lease, and the subsequent insolvency of the obligor of the bonds purchased, and the fact that at the time the present action was instituted such bonds were worthless. The evidence in the record is without dispute that the bonds were purchased by plaintiff for investment, and held as such until the bankruptcy of the Keystone Investment Company and likewise of the Peters Trust Company culminated. Under these circumstances, the approved rule appears to be that, in ascertaining the measure of damages, where bonds have been sold by fraudulent representation for the purpose of investment, it is competent to take into consideration, in ascertaining the true and intrinsic value of such bonds, subsequent events such as the history of the company, the winding up of its affairs, and all other facts and circumstances throwing light upon the real and true value of the bonds at the time the same were sold.” (p. 519.)
The fact that the bonds in nine different cases turned'out bad is a strong circumstance to prove that the bonds were not what they were represented to be. In Cramer v. Overfield, 115 Kan. 580, 223 Pac. 1100, this court held:
“The court adheres to its prior decisions where the sale of corporate stock is affected by false pretenses the price paid is some evidence of what the value would have been if the representations had been true; and that where the stock so sold was at the time worthless the amount paid therefor may be recovered as damages for the fraud. And it is further held that the intrinsic and not the market value of the stock sold is what controls; that its value at the time of the sale may be arrived at by the aid of subsequent developments; and that in the present case there was evidence to support a finding that the stock was worthless when the contract of sale was made.”
See, also, Watson v. Gardner, 183 Minn. 233, 236 N. W. 213; also, Davis v. Coshnear, 129 Maine 334, 151 Atl. 725.
The amount for which these bonds could have been sold on the day after they were purchased is not the determining factor in this case. The plaintiff was not buying bonds for speculation. He was buying them for a long-time investment and the evidence admitted is of some value in this issue.
The next error of which defendant complains is the failure of the trial court to require the answer to question number 5 to be made more definite and. certain. That question and answer were as follows:
“Question 5: With respect to each issue of securities on.account of which you allow recovery, state the date or dates, as near as possible under the evidence, on which plaintiff discovered the fraud on account of which you allow such recovery.
“Answer: Description of issue on all issues on which allowances were made.
“Date or dates of discovery of fraud. After February 20, 1932.”
The defendant argues that the jury should have been required to answer when the fraud was discovered as to each cause of action. It is difficult to see how this would have been of any help to the defendant. Without entering into a discussion it may be said that the evidence was that the discovery of the fraud was progressive and continued from day to day. The exact date when the fraud was discovered was of no consequence. It was held by this court in the former appeal that “if the fraud were discovered after the notice to repurchase was served then the action might proceed for rescission.” The jury found in its answer to question number 5 that this was the case. There was substantial evidence to sustain the finding and that ended the matter.
The next error of which defendant complains is the failure of the trial court to give a requested instruction defining the term “any Kansas municipal bond.” The purport of the requested instruction was that plaintiff must • establish that he believed the bonds he bought to be as good as bonds of the state of Kansas, the city of Wichita, the city of Topeka or other similar cities. There is no evidence that the. plaintiff believed any such thing. Since the governing factor is the effect produced on the mind of the plaintiff, the instruction should not have been given.
The defendant next argues that the trial court failed to instruct the jury as to the application of testimony on the value of Kansas municipal bonds. The record discloses that the jury was instructed that this testimony should be taken by the jury for what it was worth on the question of whether the bonds bought were the kind of bonds they were represented to be.
The next error of which defendant complains is that the trial court failed to instruct the jury that the plaintiff must prove that he relied on the representations of the defendant before he purchased the bonds. An examination of the record discloses that while the court did refuse to give the instruction as requested by defendant the substance of it was given in another instruction.
The next error of which the defendant complains is an instruction , given the jury by the trial court that the evidence of the value of the bonds at the time they were bought was of value only insofar as it tended to show whether or not the bonds were the kind of bonds which they were represented to be. That is, a bond wherein the interest would be paid and the principal paid when due. This instruction was a proper one.
The next error of which defendant complains is an instruction given by the trial court as to the Royal Oak and the Corpus Christi bonds. Defendant argues that the court in this instruction told the jury that these two issues had been held illegal. The instruction did not go that far. What the instruction amounted to was a statement that both issues were involved in litigation. The court instructed the jury that it should take this situation into consideration in determining what kind of bonds these were. Since the most the defendant contends for now is that the plaintiff might one day get his money by being adjudged to be an innocent purchaser, it hardly seems that the instruction was not justified.
The next error of which defendant complains is the giving of instruction number 27. It was as follows:
“Damages caused by a representation’-false in fact, may be' recovered, if made to induce the damaged person to part with his money, even when such representation is made without actual knowledge, of its truth or falsity, provided, of course, the person to whom such representations or statements are made believed the same and relied thereon.”
This instruction is in accordance with the holding of this court in Pellette v. Mann, 116 Kan. 16, 225 Pac. 1067 and Roome v. Petroleum Co., 111 Kan. 633, 208 Pac. 255. We still adhere to what was said there.
So far we have examined the arguments wherein the defendant maintains that the judgment against it should be reversed. We will now examine the cross-appeal of the plaintiff.
The first error of which plaintiff complains is that the trial court unduly limited the misrepresentations of fact that were submitted to the jury. What these questions were has been heretofore set out in this opinion. We have examined the record and conclude that the questions as to misrepresentations submitted were the only actionable ones pleaded.
The other errors urged by plaintiff have to do with requested instructions and the admission and rejection of testimony. We have concluded that the issues were fully covered by the instructions given, and there were no errors in the admission of the evidence.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action by resident taxpayers of Washington county to enjoin the board of county commissioners of that county from carrying out the terms of a resolution by which $20,000 had been appropriated from the state and county road funds to be used, with federal aid, for the improvement of a section of highway three and one-half miles long. It is alleged that the proposed highway is not an immediate necessity and is not of general utility because it does not stop or terminate at any objective point, and is not a part of the state highway system as approved by the state highway department, and has not been approved by the federal government under the federal highway act; that it does not connect the county seat of the county with other county seats, nor with the principal market centers of the county; that the system of state roads provided by the county has not been completed; that the appropriation of the money for such improvement was without authority and fraudulent; that if defendant is allowed to proceed with the work it will result in the creation of a public burden and the levy of an illegal tax, charge and assessment upon plaintiffs. The answer was a general denial. The trial court made findings of fact and rendered judgment for plaintiffs. The defendant has appealed.
The evidence has not been transcribed. The appeal presents the question whether the findings of fact support the judgment. When a case is tried to the court, and the court is asked to make findings of fact and conclusions of law in accordance with R. S. 60-2921, it is essential that the findings made include all facts necessary to support the judgment. (Black v. Black, 123 Kan. 608, 610, 256 Pac. 995, and earlier cases there cited.)
Appellant contends that the findings do not support the judgment for the reason that there is no finding that the appropriation by defendant of the sum mentioned in the resolution- for the improvement of the road in question will result in the creation of a public burden and the levy of an illegal tax, charge and assessment upon plaintiffs. It is essential, of course, that the action of defendant sought to be enjoined should have that result before plaintiffs can maintain this action. (R. S. 60-1121; 32 C. J. 47; Abraham v. Weister, 103 Kan. 162, 172 Pac. 998; Bissey v. City of Marion, 104 Kan. 311, 178 Pac. 611, 991; Clark v. George, 118 Kan. 667, 669, 236 Pac. 643; Engstrom v. City of Wichita, 121 Kan. 122, 124, 245 Pac. 1033; Warner v. City of Independence, 121 Kan. 551, 557, 247 Pac. 871; Jackson v. Joint Consolidated School District, 123 Kan. 325, 328, 255 Pac. 87; Grecian v. Hill City, 123 Kan. 542, 256 Pac. 163; Wellman v. City of Burr Oak, 124 Kan. 780, 262 Pac. 607; Collingwood v. Schmidt, 125 Kan. 81, 262 Pac. 556; Home Riverside Coal Mines Co. v. McAuliffe, 126 Kan. 347, 267 Pac. 996.)
The result is there is lacking an essential finding of the court necessary to support the judgment. The fund from which the appropriation was made is not raised by general taxation, but from the sale of gasoline and from licenses on motor vehicles. (Laws 1925, ch. 214.)
With respect to this question, the court made a specific finding that the question was not raised by motion, demurrer or answer, nor at any time in the trial of the case until requested findings were made, and concluded that defendant thereby had waived the question. This conclusion is erroneous. It is true the question was not raised by motion, demurrer or answer, but in view of the allegations of plaintiff’s petition on that point, raising the question in that way would have been unavailing. The question was raised the day the case was tried on its merits and after the close of the evidence, which is as soon as it could have been raised effectively. There was therefore no waiver of the question, if indeed it could be waived, which we do not find it necessary to determine.
From the findings it appears that, having previously considered the location of the road in Washington county to comprise a part of the state highway system, the members of the board of county commissioners, on March 2, 1926, addressed a letter to the state highway commission and to the federal highway department, designating the road in the county, including the three and one-half miles here in question, which had been determined upon as constituting the state highway system for Washington county. This’ was later approved by the state highway commission subject to a checking of the route. The checking was subsequently done, and the designation of such highway was finally made by the defendant November 23, 1926. The trial court determined that the action of March 2 was the individual action of the members of the board of county commissioners and not the action of the board itself, and was for that reason void; and further determined that the action of the board of November 23, 1926, was void for the reason that it did not connect the county seat with the principal cities and market centers of the county. This, while incorporated as one of the findings of the court, is more properly a conclusion, and does not accord with other findings of the court which specifically set out the state highway system for Washington county as located by defendant with the approval of the state highway commission, shown by specific descriptions and by a plat. This system of highways, as described and platted, shows about as direct a connection as the mileage will permit of the county seat with other market centers of the county.
The court specifically found that there was nothing fraudulent in the action of defendant, but that the acts of its members in connection with the matter were in good faith and with an honest intent to perform their duty.
The result is that the judgment of the court below must be reversed, with directions to enter judgment for defendant.
It is so ordered.
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The opinion of the court was delivered by
Burch, C. J.:
The action was one to foreclose a real-estate mortgage. The mortgagor claimed credit for the amount of insurance on a building destroyed by fire, paid by the insurance company to the mortgagee. The credit was disallowed, and defendants appeal.
Zehr and wife gave a real-estate mortgage to the Union Central Life Insurance Company for $3,750. The Farmers Alliance Insurance Company issued a fire insurance policy covering the dwelling house on the land. A mortgage clause was attached, making loss payable to the mortgagee, and providing the insurance should not be invalidated on account of acts of the mortgagor. The dwelling house was destroyed by fire. The fire insurance company paid to the mortgagee the sum of $1,250, and took from the mortgagee an agreement that the mortgagee should account to the fire insurance company for a portion of the sums realized by the mortgagee on the note and mortgage.
The fire insurance company was a mutual company, organized under the laws of this state. The bylaws of the fire insurance company provided that the policy should be void if the property were encumbered by mortgage or if, to the knowledge of the assured, foreclosure proceedings had been commenced. When the policy was issued the property was encumbered by a second mortgage, on which foreclosure proceedings had been commenced. The result was, that so far as the dwelling house was concerned, the policy was void as between the fire insurance company and the mortgagor. By virtue of the mortgage clause, the insurance policy was good as between the mortgagee and the fire insurance company.
The policy covered household goods in the dwelling house. The fire insurance company settled with the owner for amount of loss and unearned premium, and the owner executed a written instrument releasing the fire insurance company from all liability on the policy. In trying to get some benefit of the insurance on the dwelling house, the owner asked that the settlement and release be set aside on the ground of fraud. The story follows:
The policy was a renewal of a former policy. An agent of the fire insurance company prepared an application from the data contained in the old policy, took the application to Zehr for signature, Zehr signed the application without reading it, and omission of reference in the application to the second mortgage and its foreclosure was the fault of the agent. After the building and contents were destroyed, the adjuster denied all liability on the ground the policy was void. The insurance company receded from this position to the extent that it settled with the owner for loss of the household goods and for the unearned premium. In deciding the case the district court said:
“Had Zehr made the application himself and failed to disclose the existence of the second mortgage, the policy would have been void as to him. (Metropolitan Life Insurance Company v. Mennonite Mutual Fire Insurance Company, 131 Kan. 628.) It is the duty of an agent of a stock company soliciting insurance to prepare the application so it will accurately and truthfully state the result of the negotiations, and the agent’s failure to do so'is in legal effect the fault of the insurance company. (Pfiester v. Insurance Company, 85 Kan. 97.) A different rule applies to Kansas mutual fire insurance companies. (Kennedy v. Farmers Alliance Ins. Co., 127 Kan. 768.) Mutual policies of insurance can be issued only on written applications, which even the secretary of the company would have no authority to waive. (Smith v. Miami Farmers Mutual Insurance Co., 125 Kan. 10.) The bylaws become a part of the contract of insurance and are binding on the member insured. (Kennedy v. Insurance Co., 96 Kan. 598.) As the bylaws provided the policy should be void in the event of a nondisclosed mortgage, it must be held that the policy was void as to Zehr. . . .
“Hence it must follow that the adjuster’s statements were in no sense misrepresentations, but. were a fair and general statement of the law as it exists.”
The views expressed, by the district court are approved.
The judgment of the district court is affirmed.
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Per Curiam:
Order to make additional party, and for additional party to set up claim, determined no question of law or fact in favor of or against anybody and is not an appealable order.
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal from the ruling of the trial court in striking out the amended reply as inconsistent with the original reply. The petition sets forth a cause of action under a common law liability for negligence of defendants. The answer sets up compromise, settlement and full release in writing, attaching the release as an exhibit. In the original reply the plaintiff alleged a mutual mistake of fact as to the terms and contents of settlement; that the settlement did not state the true agreement entered into between the parties, and set forth the agreement as the plaintiff had understood it; and asked to have the contract reformed or the release set aside and held for naught.
The omitted parts, as alleged by plaintiff, were limitations as to the extent of the release in the following language in two places, viz.: “Up until and including the 1st day of June, 1925”; and also the following sentence: “And thereafter such sum or sums as the parties may mutually agree are due and may be due said party of the first part, providing he has not fully recovered from said injuries.” The original reply also alleged—
“That he was suffering excruciating pain and agony, was under the influence of drugs and did not know and appreciate the contents of said release, and did not fully understand that a statement was being made and did not understand its terms.”
The amended reply contained practically the same averments as the original, but added averments relative to the release having been obtained by false and fraudulent representations, and asked to have it set aside and held for naught.
With the original reply the plaintiff’s petition, from a standpoint of pleading, was substantially the same as if in his petition, after referring fully to his injury, his continued disability therefrom, and the defendants’ negligence and liability, had set out the agreement of settlement as it was and as it should be reformed, leaving open after June 1, 1925, only the questions of his continued disability and the amount he should receive per month therefor. This would most certainly be in effect an action upon the contract as reformed. The plaintiff recognizes the contract as such, says he executed it, and asks that it be reformed by the addition of the parts omitted by mutual mistake. Under such a contract it would not be necessary to establish negligence; the defendants, by having signed such instrument as plaintiff says it should be, could not be heard to deny their negligence. The only matters left for determination would be whether or not the plaintiff continued to be disabled, and if so how much he should receive when the parties failed to agree thereon.
“Where the parties have left an essential part of the agreement for future determination, it is no doubt correct to say that the contract is not completed. . . . The law does not favor, but leans against the destruction of contracts because of uncertainty.- Therefore the courts will, if possible, so construe the contract as to carry into effect the reasonable intention of the parties if that can be ascertained. Though there are some formal imperfections in a written contract, still it is sufficient if it contains matter which will enable the court to ascertain the terms and conditions on which the parties intended to bind themselves.” (6 R. C. L. 643, 645.)
“A contract to support a person will not be held to be unenforceable simply because the amount to be paid is not fixed by the terms of the agreement.” (6 R. C. L. 647.)
Appellant contends that he does not claim anything under the reformed contract, but does claim the contract when properly reformed will limit its extent as a release, and the contract will then, by such limitation, cease to' be a bar to his further recovery under the common law liability for continued disability. We do not here have to decide whether it will be an enforceable contract when reformed for further recovery on account of continued disability, but we can see no good reason why it should when reformed become enforceable as a release and not an enforceable contract for other purposes: Under the terms of the release as executed the plaintiff is effectively barred, and it is only by the additional terms of the proposed reformation that he has any rights whatever in courts as far as that feature of the case is concerned.
Appellant argues that by reason of the refusal of the defendants to enter into negotiations relative to the plaintiff’s- injuries and disability after June 1,1925, as the reformed contract provides, the release is not an absolute bar to the maintenance of his common law action for such further disability. This itself, it appears to us, is an apparent breach of duty or obligation by the defendants to so refuse or fail to negotiate, and if so must be a violation of the contract.
We conclude that the original reply with the proposed reformation of the release pleaded by the defendants made the plaintiff’s pleadings in effect an action upon contract, and therefore the amended reply, which alleged the release was obtained by false and fraudulent representations, is inconsistent with the original reply and was properly stricken out by the trial court.
Appellant does not controvert the theory that a pleading inconsistent with a former pleading cannot stand, but, as stated above, continuously and strenuously maintains that the proposed reformation of the release does not change his action into one on contract, and likens the reference to any contract in this case to the facts in the case of McKim v. Carre, 72 Kan. 461, 83 Pac. 1105, where a legal remedy was mistakenly supposed to exist and therefore was held not to be an election of remedies. In the original reply the plaintiff elected to affirm the release as proposed to be reformed, and in the amended reply he seeks to disaffirm it on account of fraud. A pleader cannot affirm and disaffirm a contract where it has to do with remedies and the election thereof. (Pitt v. Keenan, 124 Kan. 810, 262 Pac. 567; Baltimore American Ins. Co. v. Zimmerman, 127 Kan. 145, 272 Pac. 165.) We think the motion to strike the amended reply from the files was properly sustained.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a promissory note. The defense was that the action was barred by the statute of limitations. Plaintiffs contended the bar was removed by an acknowledgment in writing. Plaintiffs prevailed, and defendant appeals.
The note was given by Alfred Junod to Philip Cosandier and Paul Cosandier. Paul died and Philip was appointed executor- of his will. The plaintiffs were Philip Cosandier, and Philip Cosandier as executor. The defendant was the maker of the note. Authorized attorneys for plaintiffs wrote a letter to defendant describing the note and requesting payment. Defendant asked that the note be sent to a bank in Onaga- for his inspection. Philip Cosandier resided in Onaga, the note was sent to him, for inspection by defendant, and defendant was notified. Not hearing from defendant, the'attorneys wrote a letter to him urging prompt action. Defendant replied by the following letter:
“In reply to your letter of the 26th, will say that it is impossible for me to pay the note to Paul and Philip Cosandier at this time. I would like to know what you can do for me. I need more time on this, and would like to have the note renewed at least until some time this fall, say about January 1.”
The petition pleaded the correspondence. Defendant demurred. The demurrer was overruled, defendant stood on the demurrer, and judgment was rendered against him. The statute reads:
“In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.” (R.S. 60-312.)
In this instance there was no payment or promise to pay which tolled the statute. There is no question here of identity of liability, debt or claim, or mere general or incidental reference to a particular debt, or reference to a debt of the past. It is not necessary to read together several communications in order to make out acknowledgment, or to consider power to make acknowledgment. The quoted letter signed by defendant himself expressly referred to the note to Paul and Philip Cosandier, and decisions turning on solutions of the enumerated questions need not be considered.
The letter said defendant needed more time on the note, which it was impossible for him presently to pay, and asked what plaintiffs could do for him. Unless there.were an existing debt, defendant did not need more time, and did not need to have anything done for him. Let it be conceded, for purpose of the decision, the letter as thus far analyzed might be interpreted as a feeler, and did not commit defendant to acknowledgment of debt. The letter then proceeded, however, to express desire for renewal of.the note until a suggested date, and reading the entire letter, it amounts to this:
“It is impossible for me to pay this note now. I need more time on the note, and I desire to renew it until January 1. What can you do for me?”
It is not necessary to admission which will satisfy the statute that the debtor use the words, “I acknowledge this is an existing debt,” or “I am now liable on this note,” or “Your claim against me is valid,” or any other formula which may be made up from the words of the statute and the words used in the opinions of this court interpreting the statute. All that is necessary is that the debtor manifest “acknowledgment of an existing liability, debt or claim.” In the case of Elder v. Dyer, 26 Kan. 604, the debtor said: “I do not want to be held longer on the note.” The court said the language used was equivalent to “I am now held on the note, and do not wish to be held any longer.” (p. 610.) In this instance the debtor said in effect, “I am now liable on this note, and I want time of payment extended to January 1.” In the case of Pracht v. McNee, 40 Kan. 1, 18 Pac. 925, the debtor said: “I will turn over fanners’ notes for the note you hold against me — the Fign note. Let me hear from you.” Although the debtor did not say he was liable on the note, and would discharge the liability by turning over farmers’ notes, the court said he acknowledged liability on the note. In this instance, instead of proposing a mode of discharge of liability, the debtor requested a needed extension of time in which to pay the note, which was an acknowledgment of existing liability to pay.
The judgment of the district court is affirmed.
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'The opinion of the court was delivered by
Burch, J.:
Defendant was convicted under the statute relating to sale of lottery tickets, and appeals. He contends there was no •evidence to sustain the verdict that he kept for sale and exposed for .sale lottery tickets in Wyandotte county.
Defendant lived in Kansas City, was porter for a barber in Kansas •City, and was arrested on a street in Kansas City, all in Wyandotte •county. When he was arrested he had in his possession tickets, Tokens, books and all paraphernalia necessary to the business of a salesman of lottery tickets. He told the officers who arrested him ■.that he had been “writing policy” for about three months, and that he had written about two dollars’ worth that morning. It is idle to ■contend he did not keep in Wyandotte county policy tickets for sale, which is enough to sustain the verdict. He could not write policy ■without exposing the tickets, and the natural inference from the Tacts stated is that he exposed his tickets in Wyandotte county.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action for rescission of a contract to purchase 320 acres of Colorado land.
Plaintiff based his action chiefly on the ground of alleged fraudulent misrepresentations made by defendant, touching the quality of the land, on which he relied. Defendant joined issue on the allegations of plaintiff; and pleaded ratification, estoppel, and laches of plaintiff after he had become conversant with the facts.
The cause was tried by the court, which made findings of fact and conclusions of law favorable to plaintiff, and judgment was entered accordingly.
Defendant assigns three principal errors, the first of which is that plaintiff’s evidence was not sufficient to justify a finding of fraud. That evidence may be sufficiently summarized thus: Plaintiff and defendant were confidential friends of many years’ standing in Kingman county. Both dealt to some extent in land transactions and helped each other in their deals and sometimes had such transactions between themselves. In 1922 plaintiff and defendant and their wives made an automobile trip to Arizona, where they spent the winter together. In the spring plaintiff went on to California, and defendant returned to Kansas. They corresponded frequently until the summer of 1927, when plaintiff returned to Kansas and took up his abode temporarily in the home of defendant. Plaintiff revealed to defendant the fact that he had about $1,500 in cash and that he planned to go to farming on a quarter of Kingman county land which he possessed. During the few years plaintiff sojourned in California defendant had acquired some land in Lincoln county, Colorado, and had spent some time there. He also knew of a 320-acre tract of land of little value near his own Colorado'holdings. The title to this land was in one Green, who had removed from Colorado to New Mexico after mortgaging the land for $600, which was practically all it was worth. Defendant conceived a scheme to palm off the “equity” in this land on plaintiff for the latter’s $1,500, and effected a deal with Green whereby he obtained a deed to the land in exchange for something or other in Wichita of the nominal value of $100. After various maneuvers needless to rehearse, defendant induced plaintiff to buy this Green land for $1,500, receiving therefor $1,200 in cash and plaintiff’s note for $300. Defendant erased his own name as grantee in the deed from Green and inserted the name of plaintiff. Plaintiff made this purchase because of his implicit confidence in defendant, and because of his reliance on defendant’s representations as shown in the following excerpt from plaintiff’s testimony:
“He [defendant] said it was a better country than this. The taxes were less and a man could make a better living out there than he could here and he said, T was out there’ and ‘I made good’ and he says, ‘I know if I can make good so can you make some money out there.’
“Q. What did Mr. Shea at that time say about the nature, character and quality of this land, this Gordon Green land? A. He told me it was nice level bottom land.
“Q. What did he say about water? A. He said water could be obtained from eighteen to twenty feet.
“Q. Did he otherwise describe the land except that it was nice level bottom land — what did he say about its worth for farm land? A. He said it was good farm land.
“Q. Did he say that he knew about that country out there? A. Yes, sir.
“Q. What did he say? A. He said it beat this country all to pieces; that it was a better country than this.
“Q. Did you give him the $1,200 check at that time? A. I did.”
It will be noted that some of the foregoing statements attributed to defendant which induced plaintiff to buy the land “no sight and unseen” were mere matters of opinion, that the Colorado land was in a better country than Kingman county, and that it “beat this country all to pieces.” But when defendant told plaintiff that the property was “nice level bottom land,” and that it was “good farm land” and that water could be obtained at a depth of “eighteen or twenty feet,” he was making representations of fact for which he was responsible, knowing' as he did that plaintiff was purchasing the property in reliance thereon. It developed at the trial that these representations of fact were grossly untrue; the land was neither nice, nor level, nor good farm land; but was chiefly a low ridge or hogback of sand and gravel so sterile that little grass grew upon it and such bottom land as there was in the tract was subject to overflow and the soil of the bottom land was adobe underlaid with shale and had been scoured so much by periodic floods that only an occasional touch of coarse salt grass grew thereon. Some farming had been attempted on forty acres in one corner of the land — the only place where it was worth while to do so. The evidence also tended to show that no water was obtainable at any reasonable depth. An auger could not be drilled into the ground more than a few feet — at one place for more than twenty inches. In short, the property was a very poor quality of pasture land and worthless for tillage or general farming; and this court is bound to hold that the evidence was sufficient to sustain the trial court’s findings that the contract of purchase had been effected through material misrepresentations of fact made by defendant touching the quality of the land, and that plaintiff had parted with his money in reliance thereon.
It is next urged that whatever fraudulent misrepresentations were made to induce plaintiff to buy the Colorado land were waived by him after he became fully apprised of the facts. This argument is based upon the following circumstances: The contract of purchase was effected on August 6, 1927. On August 28 plaintiff and defendant and their wives drove out to Colorado and stayed five or six days in a two-room house on defendant’s land about three-quarters of a mile from the land in controversy. One evening about sundown the two men and their wives drove to the northwest corner of the tract, where they halted a few minutes. On another occasion plaintiff and defendant took up some fencing on the northwest side of the land and hauled it to defendant’s premises. The parties then returned to Kansas and plaintiff paid the $300 note he had’ given defendant as the balance of the purchase price. Later, about October 15, plaintiff went back to Colorado and occupied defendant’s house under some tentative understanding that he was to farm defendant’s land as well as the land he had purchased. There was a small cabin on the land he had acquired and he tore it down and hauled its materials to defendant’s premises, not yet knowing how badly he had been duped. The evening he and defendant visited the land in August the latter misinformed him as to its direction and pointed out three forties of good land belonging to another man as part of the 320 acres plaintiff had acquired. Defendant came out in December and plaintiff asked him to help locate his land comers, but defendant said he “didn’t have time.” Eventually plaintiff learned which way his land lay and its character and said to defendant, “I found them stones up there — them corners. I haven’t got no land. You think there would be any chance to turn that land so I could get my money out of it?” Defendant answered, “You might,” and walked away and thereafter gave plaintiff no chance to talk to him.
'It is on the foregoing facts that defendant chiefly bases his defense of ratification. But it does not seem just to apply that equitable doctrine to such a situation as that presented by this record. It is a fair talking point that plaintiff saw the land in August, but it was only one corner of it he saw, the best part of it, too, and it was sundown when he did see it and then only for a few minutes. Moreover, if plaintiff’s evidence is true, defendant misled him as to its directions from the point where the parties were when they visited it, and made him believe he was getting 120 acres which did not belong to the tract bargained for at all. Defendant argues that plaintiff was furnished with a plat and the legal description of the land, but if that description was no more accurate or intelligible than what is set down in the record submitted to this court he should certainly be excused for not having understood it. Furthermore, at the time plaintiff and defendant had the conversation quoted above, the full extent of defendant’s duplicity had not been revealed to plaintiff. He might be inclined to forgive defendant for misrep resenting the quality of the land so long as his confidence in him as a friend was not completely extinguished, and so long as it was possible for him to entertain a belief that the misrepresentations were merely innocent errors of judgment, but when he later learned that his supposed grantor, Green of New Mexico, had never sold him the land at all, but had sold it to defendant and that the latter had erased his own name as grantee from the deed and had inserted that of plaintiff, the full scope of the fraud practiced upon him stood revealed for the first time. After plaintiff was apprised of all the material facts constituting the fraud practiced upon him by defendant it cannot be said that plaintiff did anything.which could be fairly characterized as ratification of the fraudulent sale which defendant had imposed on him.
The third point urged in defendant’s behalf was laches — delay in bringing this action. There was no delay. It was late in December when defendant’s duplicity was fully uncovered. By that time defendant had left the state of Colorado. How soon plaintiff was enabled to arrange his affairs to follow him back to Kansas does not appear, but this action was begun on February 14, 1928, less than two months after the facts constituting the cause of action were fully uncovered. There is no semblance of laches in the circumstances revealed in this case. Nor is there any abstruse question of law involved. It is a fact case throughout, and the final result prompts not the slightest misgiving that justice may have miscarried.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
The principal question involved in this proceeding brought by C. B. D. Colver against Jonas W. Miller, Sr., was the validity of a tax deed and some matters incidental to that question.
It appears that one George Miller was the owner of a half section of land at the time of his death on June 4, 1909. He left a will’ devising a life estate in his land to his brother, Jonas W. Miller, Sr., and devising the remainder to his nephew, Jonas W. Miller, Jr., his heirs and assigns forever, subject to the life estate. The remainder-man is the son of the testator’s brother to whom the life estate was given. Later in 1909 Jonas W. Miller, Sr., entered into an agreement with his son-in-law, James Hohn, to take the farm and do with it as he pleased, in consideration that the life tenant should have board and room with the Hohn family. The taxes on the land for 1909 became delinquent and it was sold to the county, and on November 6,1913, the county clerk executed a tax deed, to M. M. Rummell, who transferred it to James Hohn by a quitclaim deed for which the lattér paid $500. Hohn quitclaimed the land to M. C. Tubbs on June 21, 1922, and he conveyed it in like manner to the plaintiff, Colver, on November 14, 1923. The deeds to Tubbs and Colver were given as security for an indebtedness of Hohn, and were in fact mortgages. Hohn had erected several buildings and made other improvements on the land and has since paid the taxes up to the year 1922, since which time they have been paid by Tubbs and Colver. The reasonable market value of the land is $16,000, and it was of about the same value in 1913 when the tax deed was issuéd. Jonas W. Miller, Jr., the remainderman, left the community in 1916, and before going had been told that Hohn was claiming ownership of the land under the tax deed conveyed to Rummel and transferred by him to Hohn. In that year Jonas W. Miller, Sr., executed an oil-and-gas lease on the premises in controversy. It was found that in 1925 the state procured the appointment of an administrator to ascertain and collect inheritance taxes due under the devise of the land, and it was found that there was due from the life tenant $122.49 and from the remainderman $194.91. The land was assessed for taxation in two parcels, a quarter section in each; and in the tax deed it was recited that one tract was sold for $276.36, and the other for $131.50, amounts said to be equal to the cost of redemption of each tract. The final redemption notice recited that one tract was sold for $43.56 and the other for $50.74, and it was added that “notice is hereby given that the following lands and lots situated in Edwards county, Kansas, were sold for the taxes of 1909 on the 6th day of September, 1910, and unless the same are redeemed on or before the 6th day of September, 1913, by payment of the sum opposite each tract, same being costs and charges computed to said date, same will be conveyed by deed to purchaser.” These amounts were much less than the sums necessary to redeem at that time. The court concluded as matters of law that the tax deed is voidable for the reason that the amounts set out in the redemption notice were considerably less than the amounts necessary for redemption; that James Hohn has at all times during his tenancy of the land been a tenant at will of Jonas W. Miller, Sr.; that he had never been in adverse possession of the land; that the inheritance taxes assessed against the Millers are valid liens on the land, and that the probate court had jurisdiction to appoint an administrator to collect the inheritance taxes. Judgment was accordingly given for the remainderman.
There is no dispute as to the facts found by the court, and the principal question raised by plaintiff is that Hohn was not under any obligation to pay taxes on the land and was not barred from obtaining an adverse title to it. He was a tenant of the life tenant and of course cannot deny the title of his landlord, the life tenant. He was in privity with the life tenant. It was the duty of the life tenant to pay the taxes (Jinkiaway v. Ford, 93 Kan. 797, 145 Pac. 885), and in no case could he or Hohn, who was in privity with him, acquire a title adverse to the remainderman. In Wiswell v. Simmons, 77 Kan. 622, 95 Pac. 407, it was said:
“For the owner of a life estate is disqualified to take a tax title to the prejudice of a remainderman, even although the taxes upon which it is based accrued before he acquired any interest in the land, at least in any case where they became due after the creation of the life estate which he later obtained.” (p. 623.)
See, also, Menger v. Carruthers, 57 Kan. 425, 46 Pac. 712; Duffitt v. Tuhan, 28 Kan. 292.
Neither can one who is in privity with the life tenant acquire a tax title against the remainderman, and when Hohn purchased the tax title it amounted to no more than a redemption of the land from the tax lien. The theory of the law is that the taxes on land so held shall be paid out of its proceeds or profits. Primarily it was the duty of the life tenant to pay the taxes, and one succeeding to an interest in his estate who is in privity with him is equally bound to pay them, and the successor cannot acquire adverse rights against the remainderman by the failure of the life tenant or his successor to pay taxes and the purchase of a tax title to the lands. The proceeds of the farm held by Hohn under the life tenant were amply sufficient to pay the accrued taxes. Hohn had been in possession of the land, worth about $16,000, holding; under the life tenant for about nineteen years, paying no more to-the life tenant than board and room for the latter, and is now asserting title to the whole of the land for the price of the tax title, $500, as against the remainderman. The life tenant under whom Hohn is holding is still living, and together they are enjoying the benefit of the life estate and at the same time seeking to obtain title to the premises through their failure to pay taxes and the purchase of a tax title that arose through their neglect during their occupancy of the land. The life tenant is supporting Hohn in his claims, as it appears he was present when Hohn obtained the tax title, and both are cooperating in an effort to secure full legal title for the comparatively trifling sum paid for the tax title.
The contention that the remainderman is barred by the lapse of time cannot be sustained. The life tenant was entitled to the possession of the land as long as he lived, and an action to oust him did not accrue in favor of the remainderman while the life tenant was living. It has been said that:
“A disseizin of the life tenant will not affect the remainderman during the tenant’s life. The remainderman may recover his seizin from the disseizor at any time after the death of the life tenant, if within the period limited by statute for instituting such action. The statute of limitations begins to run against the remainderman at the death of the life tenant.” (1 Thompson on Real Property, § 730.)
The contention that the inheritance taxes found to be a lien on the land were barred by the statute of limitations is without merit. They were imposed by the state and were due to the state. The statute does not run against the state, nor is it estopped by the failure of its officers to perform their duties in the collection of taxes or by reason that they took some unauthorized action. (Sedgwick County Comm’rs v. Conners, 121 Kan. 105, 245 Pac. 1030.)
The tax deed itself was bad in that two separate tracts were conveyed and the deed failed to show the amount for which each tract was sold as-required by statute. Besides, the amounts stated in the notice for redemption were for sums much less than the amounts required to redeem. In a tax sale of two separate tracts of land it is essential that the deed must show the amount for which each tract was sold, and failing in that the deed is invalid. (Gibson v. Kueffer, 69 Kan. 534, 77 Pac. 282; Manker v. Peck, 71 Kan. 865, 81 Pac. 171.) Apart from the invalidity of the deed, however, it must be held for the reasons stated that Hohn was disqualified to acquire tax title to the land, and it is manifest from the findings of the trial court that this was the controlling consideration in its finding in favor of the remainderman.
The action was in form an application for declaratory order or judgment, and there is some complaint that the court did not make a declaratory order on the quitclaim deeds to Tubbs. and plaintiff, which were found to be mere securities for debts. Tubbs, it appears, was not a party to this proceeding, and the court was not warranted in determining the validity of a lien in the absence of a party directly interested and through whom plaintiff is claiming rights. The court has considered and made declarations on the substantial questions submitted, and it was not required to consider controversies which may arise between Tubbs, not a party, and others who were parties.
Finding no error in the record, the judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This is the second chapter of Harrison v. Lyon, decided in November, 1928. The plaintiffs, R. T. Lyon and Mamie Lyon, brought this action against W. H. Harrison, alleging that defendant became indebted to plaintiff in the sum of $11,000, which money was delivered to defendant about July 6, 1927, and also $100 delivered to him on March 26, 1927, in consideration of a promise by defendant that he would convey by warranty deed certain real estate in Wichita. It was alleged that although he had made the oral promise to convey the property for the money received, he refused either to convey the property or to return the money so received. Plaintiffs ask damages in the sum of $11,000.
In his answer the defendant set up the proceedings in the former action, including the judgment against the plaintiffs, which was affirmed in -this court. (Harrison v. Lyon, 126 Kan. 705, 271 Pac. 395.) Reference is made to the decision in that appeal which incorporates pleadings and the issues joined in the former action, the findings of the trial court against the Lyons and the decision of this court affirming that judgment. Defendant further alleged that in the former case it was adjudged that Harrison received no part of the $11,000 mentioned and that that case involved the same parties, the same property and the same money as are involved in this action, and that the judgment in that case is res adjudicata of the issues in this suit. There were denials in the replies filed by plaintiff and later a motion was made by defendant for judgment in his favor upon the pleadings. The motion was sustained and the case, was dismissed. Plaintiffs appeal.
The only question in this case is whether the judgment rendered in the first case is res adjudicata of the present action and estops its maintenance.
There is identity of the parties in the two cases, and it is conceded that both were based on the same transaction. In the former the main issue was whether the $11,000 for which Mrs. Lyon, handed two checks to Harrison was accepted, cashed and retained by Harrison as the consideration for certain real estate, for which a deed had been executed but had not been delivered by him, and the title of which was claimed by Mamie Lyon. Whether the $11,000 was actually paid to Harrison and retained by him was a vital issue in the case. It was found and determined in that case that checks for the amount were made by Mrs. Lyon and were given to and cashed by Harrison, that the proceeds were given to her, the circuitous transaction having been made to subserve a personal purpose of Mrs. Lyon’s. The question whether Harrison had obtained and kept the $11,000 was alleged and vigorously contested throughout the suit up to the court of last resort. On that question the court made a finding:
“That the defendant, Mamie Lyon, made two checks in the aggregate sum of 111,000, payable to W. H. Harrison, which were cashed by him on July 6, 1927, in the presence of Mamie Lyon and the currency was then given to Mamie Lyon by W. H. Harrison.” (Harrison v. Lyon, 126 Kan. 705, 708.)
In the present action the Lyons are seeking to recover the same $11,000 on the theory that he was given checks for that amount and had retained the proceeds of them, and was therefore owing plaintiff that sum. The fact was directly involved and was determined between the parties in the former action and it cannot be again contested by the same parties in the same or any other court. In Winkler v. Korzuszkiewicz,, 118 Kan. 470, 475, 235 Pac. 1054, it was said:
“The general rule is that a fact or a question directly in issue and judicially determined in a former suit is conclusively settled by the judgment therein and cannot be relitigated between the same parties or their privies in the same or any other court upon either the same or a different cause of action.”
See, also, Greenwood v. Greenwood, 97 Kan. 380, 155 Pac. 807; Lux v. Columbian Fruit Canninq Co., 120 Kan. 115, 242 Pac. 656; 15 R. C. L. 974.
It is argued that the rule should not apply here because the form of action in the first case differs from that in the present case, but it was held in Greenwood v. Greenwood, supra, that it is immaterial as to the form of the action where the issue of fact was raised and definitely determined. In Southern Pacific Railroad Co. v. United States, 168 U. S. 1, it was said:
“A right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery cannot be disputed in a subsequent suit between the same parties or their privies, and even if the second suit is for a different cause of action, the right, question or fact once so determined must as between the same parties or the privies be taken as conclusively established so long as the judgment in the first suit remains unmodified.”
No error was committed in rendering judgment for defendant ' upon the pleadings or in dismissing the action.
The judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from an award under the workmen’s compensation act, the question being whether the claimant met with personal injury by accident arising out of and in the course of his employment.
At the hearing before the examiner, employment of the claimant by the respondent was admitted, and the evidence taken bore on the question above stated. As a result of that hearing, an- award in favor of the claimant was made. An appeal to the district court resulted in an award which in the aggregate was the same as that first made. The appeal to this court followed.
This court’s jurisdiction in compensation cases is limited to questions of law, and whether a judgment is supported by substantial, competent evidence is a question of law as distinguished from a question of fact. (Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70.) Our function in this case is to determine if there is evidence to sustain the judgment of the district court the claimant did sustain personal injury by accident arising .out of and in the course of his employment. Fair v. Golden Rule Refining Co., supra; Goodwin v. Sinclair Pipe Line Co., 136 Kan. 8, 12 P. 2d 842; Kearns v. Reed, 136 Kan. 36, 12 P. 2d 820, and cases cited, and many other cases are to this effect.
In examining the evidence we therefore do not detail those portions which tend to support respondent’s claim that no accident occurred, or that tend to show claimant’s physical condition was not the result of the claimed accident. Claimant was an automobile mechanic. On October 24, 1934, while working under a car, he was stricken with a burning pain in the center of his chest. He rested a few minutes and then resumed work, having no more difficulty that day. The next afternoon he was working on some shock absorbers on a car and to get under the car was lying on a dolly which seems to have had rollers on it. Using a ten-inch wrench, he attempted to loosen a nut. The first time he pulled, the dolly rolled and the nut- did not loosen. He then braced his feet and while pulling a steady hard pull on the wrench, he was stricken with a pain about the center of the breast bone. Two statements of the claimant were: “I think my condition is the result of pulling on the wrench and strained myself. I was in good physical condition before this as far as I know,” and, “I did not slip that I know of. I don’t know if the nut broke loose or not.” After he was stricken, other workmen took him to a doctor’s office, where he was given treatment and sent to a hospital. The doctor was the only medical witness called. He testified that claimant showed all the signs of acute shock and that he diagnosed a coronary thrombosis. After defining the meaning of the term, he stated the heart muscle becomes weaker on account of lack of blood supply until eventually, either due to some effort or emotion, whatever it might be, the safe limit is passed where the excess force of the heart is not sufficient to carry on the normal function, and heart failure, either immediate or delayed in its effect, occurs. In answer to a hypothetical question, the doctor stated the sudden pulling and effort claimant had put on the wrench aggravated, activated or hastened the condition of coronary thrombosis, and that claimant was unable to perform work at the time of the hearing, and that in his opinion he would never be able to again perform manual work. On cross-examination, he stated:
“We usually think of either emotional or physical effort as being the last thing where the heart fails to respond to its usual effort; I will put it this way, if you will permit me, Mr. Powers — I will say this: If the man, for instance, instead of working had been sleeping or reading a book, I am sure it wouldn’t have happened at that time, considering the extra effort being the cause, without which it wouldn’t have happened.”
After being questioned about when a coronary thrombosis might occur and disable the stricken person, the following questions were asked and answers returned:
“Q. All you know is he was pulling on the wrench and had the attack? A. Yes.
“Q. And you say since it happened then you feel that is the thing that finally produced the last stage? A. We' usually try to connect the attack with the last physical effort, but as I say there are many cases in which no physical effort is made at all and it will occur. In my opinion, I think it is the last physical effort that brought it on.”
Respondent offered no testimony.
Respondent argues that what happened was while claimant was doing his regular work in the manner in which it was ordinarily done, that there was no slipping, falling or other unexpected occurrence, and that there was no accident — in other words, the heart attack under the circumstances was not an accident for which he could recover compensation.
In Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793, claimant was working in a quarry, breaking rock with a large sledge. He seemed to be in good health prior to the time he was observed to be bleeding profusely from his mouth and nostrils. He died before medical aid could reach him. It was insisted there' was no accident. This court said:
“An accident is simply an undesigned, sudden and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force.” (p. 773.)
After reciting some of the circumstances, it was further said:
“There was no direct evidence of extraordinary exertion suddenly displayed. When last observed, the deceased was working in the manner habitual to the employment. The fact remains, however, that an extraordinary and unforeseen [thing] suddenly and unpremeditatedly occurred, and presence of all the essential attributes of accident cannot be gainsaid.” (p. 773.)
After reviewing authorities as to distinction between injury on the one hand, and accident producing it on the other, as applied to the facts of the case, it was further said:
“The evidence warranted a finding that the physical structure' of the man gave way under t.he stress of his usual labor. He certainly did not intend to kill himself by breaking rock and loading cars at a price per car. He did not know, or in any event he was inattentive to, the limited power of his blood vessels to resist blood pressure aggravated by vigorous muscular effort. Out of this ignorance or miscalculation of forces came misadventure, and the term accident applies to what happened to him, as clearly as it would apply to what happened to the car had it broken down under the assumed circumstances.” (p. 777.)
In Gilliland v. Zinc Co., 112 Kan. 39, 209 Pac. 658, where compensation was allowed in the lower court, it was held:
“A workman employed to haul ashes at a smelting plant became overheated at his task and drank ice water, which caused congestion of the vascular system, from which he died within one hour. Held, that within the scope and purpose of the workmen’s compensation act, the death was caused by an accident arising out of and in the course of his employment.” (Syl. ¶ 1.)
In Stringer v. Mining Co., 114 Kan. 716, 220 Pac. 168, many authorities being cited, it was held that the extra effort used by the workman in sawing heavy timbers and causing a hemorrhage was an accident under the statute. See, also, Riggs v. Ash Grove L. & P. C. Co., 127 Kan. 91, 272 Pac. 153, where sufficiency of a petition for recovery under the former workmen’s compensation act was under consideration.
In Harmon v. Larabee Flour Mills Co., 134 Kan. 143, 4 P. 2d 406, the deceased, who had lead a rather sedentary life, obtained employment with respondent and started work on Saturday. He did not work Sunday, and on Monday while engaged in lifting heavy sacks of flour, he suffered a heart attack and shortly died. From an award in favor of his dependents, the employer appealed to this court which affirmed the award, holding that, where the physical structure of the man gave way under the stress of his usual labor, the accident was compensable, citing in support Gilliland v. Cement Co., supra.
And in the recent case of Lee v. Lone Star Cement Co., 142 Kan. 349, 46 P. 2d 864, where it was contended the deceased workman died of disease in no way related to the employment, an allowance of award to defendants was upheld, this court saying:
“It is no longer an open question that although a workman is afflicted with a disease which eventually culminates in his death, neither he nor his dependents are thereby barred from the right to compensation if he actually suffered an accident in the course of his employment and which arose out of it and if such accident intensified or aggravated his affliction or contributed to his death.” (Citing cases.) (p. 351.)
Appellant directs our attention to Meredith v. Seymour Packing Co., 141 Kan. 244, 40 P. 2d 325, and Williams v. Wilson, 129 Kan. 215, 282 Pac. 574, and insists that they are decisive of the case at bar. 'We concede elements of similarity of facts, the difficulty, however, is that in the first of those cases there was a finding by the commissioner and also by the district court, and in the second case by the district court, that the claimant’s incapacity did not arise out of and in the course of his employment. In neither of the above cases is there anything said which is inconsistent with the cases heretofore reviewed.
Appellant also cites Zelinkoff v. Mountain States Brush Mfg. Corp., 135 Kan. 247, 9 P. 2d 649, where claimant appealed from refusal to make award. There was failure to show accident, and this court affirmed the lower court.
We have examined the other Kansas cases cited and do not find them controlling. We also note citation of authorities from other states, but in view of our former decisions, it is not necessary they be analyzed.
In our judgment, the evidence before the commissioner, and later before the district court, warranted the conclusion that even though claimant, unknown to himself, had an affliction of his heart or cir culatory system that eventually might cause his death or render him incapable of manual labor, the hard pull on the wrench aggravated his condition, and caused a speeding up of a result that might or might not have occurred in the future. Certainly as to the claimant, it cannot be said he intended by the pull on the wrench to cause a thrombosis that might cause his death or render him an invalid. When claimant braced his feet and exerted a strong pull on the wrench, so far as he or anyone else was concerned, wha then happened to him was undesigned, sudden, unexpected and of an afflictive character — or, in shorter form, it was an accident. It arose out of and in the course of his employment, and the district court properly held he was entitled to compensation.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
'This was a workmen’s compensation case. The legal question presented is whether the claim for compensation was made in time. The trial court held it was. The employer and the insurance carrier have appealed.
Plaintiff was in the employ of Pomeroy and Graham, bakers, operating under the workmen’s compensation act. He sustained an accidental injury within the meaning of the act on February 20, 1933. He had taken out a medicial service certificate with the Pittsburg clinic, at his own expense, where he was treated for some time. He continued to work, with the exception of the time from August 8 to August 19, until March 8, 1934, when he quit, because of his injury. From December 23, 1933, to April 26, 1934, his employers paid him various sums aggregating $79.56 as compensation, and within the same period paid for his medical treatment, or some of it. On April 9,1934, he filed his claim for compensation.
There is no claim that any compensation was paid, or any medical service furnished by his employers prior to December, 1933. The statute (R. S. 1933 Supp. 44-520a) requires the written claim for compensation to be made within ninety days after the accident, or, if compensation is paid, within ninety days after payment of compensation ceases. This is imperative; it cannot be waived. (Klein v. McCullough, 135 Kan. 593, 11 P. 2d 983.) It is clear if the claim had been made in this case any time after May 21 and before December the claimant could not have recovered.
Claimant’s contention in effect is that notwithstanding the fact the time had gone by within which he could file his claim for compensation, and several months had elapsed, the fact this employer paid him something as compensation revived his lost right to file his claim and recover compensation. We cannot agree to this view. When the time provided by statute within which to file a claim for compensation has passed the right to recover compensation under the statute is lost and cannot be revived by subsequent voluntary payments of compensation by the employer. We regard this as the proper interpretation of the statute and to be consistent with our former decisions.
Claimant cites and relies on Ketchell v. Wilson & Co., 138 Kan. 97, 23 P. 2d 488. There the claimant was injured February 25, 1932; the claim for compensation was made September 9,1932. The claim was held to be in time. The opinion disclosed medical attention furnished by the employer June 10 and on subsequent dates to within ninety days of the filing of the claim. The opinion also discloses the claimant’s injury was X-rayed and that she received medical attention from the date of the injury without stating specifically who paid for or furnished the earlier medical attention. A reexamination of the abstract disclosed the employer furnished all the medical attention from the date of the injury to August 26. Hence the case is not in point.
The judgment of the court below is reversed with directions to render judgment for respondents.
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The opinion of the court was delivered by
Harvey, J.:
This is an action on a policy of insurance issued by a mutual fire insurance company organized under R. S. 40-421 et seq. There was a trial to the jury, judgment was for plaintiff, and defendant has appealed.
There is not much controversy about the facts. Plaintiff lived at Weir, Kan., and was conducting a bakery. C. U. Judd was the soliciting agent at Weir for the defendant company, and solicited plaintiff for insurance on his household goods and went to see the goods, and took plaintiff’s written application for a membership and a policy of insurance in the defendant company. This application contained, among other things, the following:
“1. Are you sole owner of the property to be insured? Yes.
“6. Is the personal property encumbered? No.
“21. By whom is building occupied? George Kennedy.
“22. For what purpose? Dwelling.
“23. Have you ever suffered loss by fire? Yes.
“24. If so, give particulars. Gasoline exp. 1904; no ins.
“Loss payable to George Kennedy.
“I warrant the foregoing application to contain a full and true description and statement of the condition, situation, occupation and title of the property to be insured and I warrant the answers to each of the foregoing questions to be true. I further agree to be bound by the conditions and requirements set forth in the policy and by-laws of the Farmers Alliance Insurance Company of Kansas, and it is especially understood and agreed that the said company will not be bound by any act or statement made to or by the agent, restricting its rights or waiving its written or printed contract, unless inserted in this application.”
These statements were false in that plaintiff was not the sole owner of the property to be insured; part of it was encumbered, and he had suffered two losses by fire, for one of which he had collected insurance. Plaintiff had recently moved to Weir, and had bought $950 worth of furniture from a Mr. Wilkerson, on which he had made an initial payment of $25 and two monthly payments of $10 each; the balance of the purchase price was secured by a mortgage on the furniture. Two smaller lots of furniture, one amounting to $178, the other to $100, had been bought on payments, the vendors retaining title, on which small payments had been made. The application should have stated the true condition as to encumbrances on the property, and requested the loss to be paid to the mortgagees, as their interest should appear, and it should have disclosed the two fire losses previously suffered and the fact that insurance was collected on one of them. The fact that the application contained the false statements above mentioned is not altogether the fault of plaintiff. At the time of the making of the application he told Judd how he had purchased the property, substantially what he owed on it, and how the same was secured, and that one of the reasons he was taking insurance was to protect his creditors, naming them, and told the facts about his two previous fire losses. Both plaintiff and Judd so testified. Judd placed his “own interpretation on what plaintiff told him” concerning these matters and filled out the application in the form it was signed. What prompted Judd to fill out the application with these false statements and thus deceive the president and secretary of the company he represented, and jeopardize the rights of the applicant., is not disclosed. His conduct in this respect deserves severe censure. But plaintiff signed it without reading it, or observing the false statements therein. Perhaps “when Gabriel blows his horn” there will be persons so indifferent to their property rights and liabilities as to be signing instruments relating thereto without reading them or knowing their contents, and courts will be importuned to relieve them of the consequences of their acts. It is the duty of an agent soliciting insurance to prepare the application so it will accurately and truthfully state the result of the negotiations, and it has been held, in Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245, and allied cases, that the agent’s failure to do so is in legal effect the fault of the insurance company. But that was said with reference to stock companies. A different rule applies to mutual companies organized under R. S. 40-421 et seq. See Akers v. Farmers Alliance Ins. Co., 118 Kan. 241, 234 Pac. 956, and cases there collected. These companies are organized by property owners who desire mutually to insure the property of their members. Before a person can have his property insured by such a company he must become a member of it and join with other members in their mutual obligations. In a sense he is both the insurer and the insured. The premiums paid by members constitute the fund from which losses and expenses are paid; the members share in the profits in proportion to their interest, and control and regulate the affairs of the company. (32 C. J. 1018.) The mutuality of obligation, of insurance, and of all the advantages, is the main and essential feature of such a company. (32 C. J. 1019.) No policy of insurance is issued except on written application. (R. S. 40-425.) The persons insured form the membership of the company. (Brenn v. Insurance Co., 103 Kan. 517, 520, 175 Pac. 383.) The members elect their officers. (R. S. 40-427 to 40-429.) By-laws are authorized. (R. S. 40-436.) Each policy must have attached to it or printed thereon a copy of the bylaws, and these must be signed by the president and secretary of the company, and by the insured member. (R. S. 40-441.) These bylaws become a part of the contract of insurance, and are binding on the member insured. (Kennedy v. Insurance Co., 96 Kan. 598, 152 Pac. 639.) He cannot be heard to say that he does not know what the by-laws are, or that they are .not binding on him. (32 C. J. 1022.) Policies of insurance can be issued only on written application, which even the secretary of the company would have no au thority to waive. (Smith v. Miami Farmers Mutual Fire Ins. Co., 125 Kan. 10, 13, 262 Pac. 552.) The by-laws of the defendant company in this case contained, among others, the following provisions:
“This entire policy unless otherwise provided by agreement indorsed thereon or added thereto by the secretary, shall be void ... if the interest of the insured be other than unconditional and sole ownership, . . . or if the subject of insurance be personal property and be or become encumbered by a chattel mortgage.”
By this provision the officers of the company had authority, “by agreement indorsed” on the policy or “added thereto by the secretary,” to issue a policy of insurance on property in which the interest of the insured was other than unconditional and sole ownership, or if the subject of insurance was personal property encumbered by a mortgage. It is not even contended by plaintiff in this case that any such agreement was indorsed on the policy or added thereto by the secretary; hence, under the facts, the policy is void. Indeed, it is not seriously contended that the secretary even knew that the property was encumbered, or that plaintiff’s title thereto was other than unconditional and sole ownership. So far as the record here discloses, the only information the secretary had concerning the matter was the written application signed by plaintiff which was forwarded to him. Without setting out the correspondence the record indicates that the secretary wrote the soliciting agent questioning the amount of the insurance on the household goods, and that the soliciting agent answered with assurances that the goods were of such value that they justified a policy in the amount of $2,000, as applied for. In this respect it may be noted that the estimate of the soliciting agent exceeded the value placed on the goods by the plaintiff, who, in his testimony, placed the value at $1,800. But there is no contention that this correspondence disclosed to the secretary the true condition of plaintiff’s title to the property and the encumbrances thereon. In this respect the case differs from Boberg v. Fitchburg Mutual Fire Ins. Co., post, p. 787. There, there was evidence tending to show that the secretary or general agent of the company was advised by the soliciting agent, of certain temporary concessions made to the insured, and the policy was issued with knowledge of those matters.
It is true in this case plaintiff testified he did not read the policy after it was delivered to him, and did not know what the by-laws of the company were. In view of the nature of the defendant company and plaintiff’s relation to it he cannot, under the authorities above cited, be heard to make this contention. It was his business to know what they were, and he is bound by their provision. The result is there should have been no recovery on the policy in this case. Defendant’s demurrer to the evidence should have been sustained.
The judgment of the court below is reversed with directions to enter judgment for the defendant.
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The opinion of the court was delivered by
Dawson, J.:
This was an action by a landlord, Fannie Millheisler, to recover a money judgment against her tenant, George Lamb, for $300, which was the agreed annual cash rent of plaintiff’s farm.
The tenant sold the wheat crop to C. E. Solter without paying the rent. The wheat had not been delivered, and the plaintiff attached it to insure the efficacy of her lien as landlord.
The action was begun in the city court of Wichita. Solter, purchaser of the wheat crop, moved to release the attachment. This motion was overruled.
Issues were then joined in the city court on plaintiff’s bill of particulars, defendant’s answer and counterclaim, and plaintiff’s reply. In the tenant’s answer and counterclaim he had set up various items for which he claimed credits — kafir, threshing bill, pasture rent, etc., totaling $319.90. He prayed judgment for $169.90 and other relief.
The cause was tried and judgment was entered in favor of the plaintiff landlord against the defendant tenant for $72.10, and it was also adjudged that plaintiff had a landlord’s lien on the undelivered wheat the tenant had' sold to Solter.
Plaintiff appealed to the district court as the code provides. Later she filed an amended and supplemental reply to defendant’s answer and counterclaim, in which she set up various items of money owed to her by the tenant on account of cash loaned to him and for oats, corn, and forage supplied to him, and for miscellaneous items of damage, aggregating $484, in addition to -her claim for $300 cash rent pleaded in her first bill of particulars.
The cause was tried before a jury which returned a verdict in favor of plaintiff for $300, and judgment was entered accordingly. In the course of the trial in the district court, Solter filed a motion to release the attachment and discharge the writ issued out of the city court. This motion was denied on the specific ground that it—
“Was a matter which had been ruled on by the city court in this cause and that no appeal had been taken therefrom and that said matter could not be raised under the aforesaid motion [in the district court] . . . therefore the motion . . .- of Ck E. Solter ... for the release and discharge of the attachment . . . should be . . . denied.”
Judgment was entered accordingly, and Solter appeals, contending that since the issues between plaintiff and defendant were enlarged in the district court so as to include various, items of cross-claims and counterclaims of plaintiff and defendant, the original action lost its distinct character as one to enforce a landlord’s lien, and that the judgment rendered in the principal cause was not specifically for the unpaid rent, and consequently the landlord’s lien on the attached wheat faded entirely out of the case.
Counsel for the appellee scarcely attempt to meet this contention. They merely suggest that the matter of dissolving the attachment was decided against Solter in the city court, and that it is res adjudicata since “he took no appeal.”
We think this point oversimplifies the appellant’s well-founded grievance against the net result. At the time his motion to release the attachment was filed in the city court the principal cause had not been tried. If he had filed no motion of any sort in the city court, the plaintiff’s right to a landlord’s lien on the wheat would not have been conclusively adjudicated in that court. Moreover, plaintiff was not content to abide the judgment of the city court. She appealed therefrom. She could not have the benefit of a landlord’s lien when she appealed from the judgment which awarded her the sum of $72.10. If she had accepted that judgment it might have supported a landlord’s lien on the wheat purchased by Solter for that amount. But when she appealed and enlarged the issues of her lawsuit against her tenant, the landlord’s claim to a lien faded out of sight; and there was no finding of the jury that the amount of their verdict (which merely chanced to be for $300) was intended to be a finding that they regarded all the other items and cross-items of plaintiff and defendant as entirely without foundation; and that they were rendering their verdict in plaintiff’s favor for the claimed rent and for nothing else. No special questions were submitted to .the jury, and their general verdict would not justify such an inference. Consequently the plaintiff’s claim to a landlord’s lien on Solter’s wheat must fail. The fact that the city court denied his motion to dissolve the attachment was quite proper, no doubt, when that ruling was made. It is elementary law, however, that the propriety of an attachment eventually depends upon the final adjudication of the attaching creditor’s claim of right thereto. In Bishop v. Smith, 66 Kan. 621, 72 Pac. 220, it was said:
“An attachment is merely an ancillary proceeding growing out of the original action, and any orders made concerning the property are only interlocutory, in the disposition of which there is never that fullness of investigation to which one is entitled where the judgment is to become final. The applicant is not entitled to a trial by jury or allowed any of the other formalities guaranteed to a litigant in an action where his property rights are to be finally determined. Such motions are summarily disposed of upon affidavits and other evidence secured without an opportunity for cross-examination, and without any formality as to pleadings, and are not intended to reach further than the present status of the litigation demands.” (p. 623.)
It ought to be readily understandable that if the main action fails, the incidental right to attach fails, and the attachment evaporates.
Counsel for appellee direct attention to R. S. 1933 Supp. 61-1002a, which gives an intermediate appeal from an order of a justice of the peace (and a city court is substantially of that character) which overrules a motion to dissolve an attachment. That provision of statute does not foreclose the right of appellant. Indeed in this case an intermediate appeal would have been ill-advised, since at the time the city court denied his motion the principal cause had not been tried, and it could not then have been ascertained whether plaintiff would successfully maintain her cause of action against her tenant or not.
The judgment of the district court is reversed, and the cause remanded with instructions to dissolve the attachment and to enter judgment in favor of C. E. Solter.
It is so ordered.
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The opinion of the court was delivered by
BPrch, J.:
The action was one by an administrator with will annexed against-a removed executor and the surety on his bond, for money and the value of property for which the executor failed to account. Plaintiff recovered, and the surety appeals.
Venetia E. Gardner died testate. The will designated the defendant, Henry W. Wacker, as executor. He was duly appointed by the probate court, and in qualifying gave bond signed by the defendant, the Fidelity and Deposit Company of Maryland. The bond was approved on March 27, 1923. At the time of her death the testatrix had on deposit in the Home State Bank, of Greensburg, the sum of $1,106.39. Under the law title to the deposit vested in the executor. Subsequently the executor collected a note forming part of the assets of the estate, and deposited the proceeds, amounting to $443.37, in the Home State Bank, in his name as executor. Part of the assets of the estate consisted of rent wheat produced by G. A. Keller on land owned by the testatrix before her death. The executor directed Keller to deliver the wheat to the Greensburg Grain Company. Keller did so in July, 1923, and the executor was present at the company’s elevator when the first load of wheat was delivered. The value of the wheat was $665.40.
On October 10, 1923, the Home State Bank was closed by the bank commissioner, and a receiver was appointed to wind up its affairs. Soon thereafter the grain company failed. The executor filed no report, and in January, 1925, he was removed. While in office he received a dividend on the bank deposit, amounting to $154.97, for which he accounted. He did not account for the remainder of the deposit, and he did not account for the wheat. The administrator with will annexed was paid a dividend by the receiver of the bank, amounting to $232.46. The executor’s delinquency amounted to $1,827.73, which with interest made up the amount of the judgment, $2,065.33.
The first question is whether, in the exercise of reasonable prudence, the executor should have withdrawn the money deposited by the testatrix and himself in the Home State Bank before it failed.
The executor owned a majority of the stock of the bank, was president of the bank, and was the active manager of its affairs. He testified that for a considerable period before the bank closed he was obliged to rediscount a considerable quantity of its paper, not merely in due course of business, but “to keep the Home State Bank going.” The will made- a number of small bequests — $100 each to twelve beneficiaries. The'probate judge suggested to the executor that he pay these bequests and get them out of the way, and after-wards urged the executor to do so. No formal order that he pay the bequests was entered, but the question is one of due care, and not of liability for failure to obey orders of the court. Keller’s daughter was the beneficiary of one of the bequests referred to. He talked to the executor a number of times in the summer of 1923 about payment of those bequests. The executor’s responses to the probate judge and to Keller were that he did not have the money to pay them. Money enough stood to his credit on the books of the bank. He did have the money, unless the bank was in an embarrassed condition, and in that event it was incumbent on him to transfer his executor’s account to some sound bank. The executor was asked if bank drafts had not been allowed to go to protest. On advice of counsel he refused to answer. The presumption is the answer would have been adverse to his interest. (Belknap v. Sleeth, 77 Kan. 164, 93 Pac. 580.) The evidence disclosed that the executor was convicted of embezzling, abstracting, and misapplying funds belonging to and on deposit in the Home State Bank, and at the time of the trial he was serving sentence in the penitentiary.
Plainly, the evidence was sufficient to establish breach of official duty on the part of the executor and liability on the bond.
The Greensburg Grain Company was a partnership consisting of the executor and another. As indicated, Keller testified the executor requested the wheat be delivered to the grain company, and it was delivered to the grain company at its elevator. The executor testified he supposed the wheat was mingled with other wheat, was shipped out, and the grain company received the proceeds. The executor testified the grain company failed because of loss in speculation on the board of trade. It seems quite unnecessary to set down in a judicial opinion the duty of the executor with reference to the handling of the rent wheat.
The foregoing covers the merits of this case. The findings of fact and conclusions of law are criticized in some particulars, but it is not necessary to discuss the criticisms in detail. The judgment is clearly correct, and it is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
The plaintiff brought this action to recover for the conversion by the defendant of 136 head of cattle sold by defendant, and 52 head of excess cattle left on the ranch, and the excess feed thereon at the expiration of the lease. The defendant denied the allegations of the petition except as to the execution of the lease, and asked to recover for hay, feed and other items claimed by him, including recovery of one-half of pasture bill paid by defendant for pasture and feed for cattle belonging to both plaintiff and defendant. The court denied the demand of the defendant for a trial by jury, holding that it was an appropriate case for a reference. Subsequently, by agreement, it was tried to the court instead of a referee, and a jury was called by the court to' answer certain questions in an advisory capacity. The court made findings and conclusions and rendered judgment for plaintiff, from which defendant appeals. Plaintiff filed a cross appeal as to the item of one-half the rent paid by defendant, which was allowed by the court.
Appellant assigns a number of errors in connection with the introduction of evidence and the refusal to set aside some of the findings and to grant a new trial, but the most important question presented in the appeal is the right of trial by jury.
This action is based upon what is often called a lease-stock farming contract. A copy of the contract is attached to the petition. It shows that the defendant owned and furnished a 1,200-acre ranch and 108 cows. The plaintiff was to do the farming, raise feed for the cattle and care for them for three years, and at the close of that period was to have one-half of the increase, and also was to leave on the place at the expiration of the lease the same amount of feed that was there when he took charge. It provided in detail about the sale of steers and other cattle during the term, leaving the matter of such sales to the owner. The period was later extended for another year, ending September 1, 1924.
The plaintiff’s claim consisted of four items, one for one-half of the proceeds of 136 head of cattle sold by the defendant, another for one-half of 52 head of excess cattle left on the ranch, and the other two for excess hay and feed left on the ranch at the termination of the lease. The defendant’s cross petition contained nine items as claims against the plaintiff, one of which was for one-half of the pasture and feed bills paid by defendant for the cattle belonging to plaintiff and defendant, which item is the subject of the cross appeal here. Four of the nine items of defendant’s claim were later withdrawn. So we have a case involving an accounting between these parties, with four items on one side and five on the other and covering a period of something more than four years, as some of the sales referred to were made after the expiration of the lease.
Our bill of rights (section 5) and statute (R. S. 60-2903) guarantee the right of trial by jury of issues of fact arising in actions for the recovery of money, unless jury trial is waived or a reference be ordered as provided by law. R. S. 60-2923 provides that the court may direct a - reference “where the trial of an issue of fact shall require the examination of mutual accounts, or where the account is long and on one side only.” It will be observed there are only two situations in which a case like this can be referred — one where there are mutual accounts and the other where the account is long and on one side only.
Both sides refer to the case of Lapham v. Oil and Gas Co., 87 Kan. 65, 123 Pac. 863, where these matters received the careful consideration of our court. That was a suit for an attorney fee of $7,000 and to be reimbursed for 47 items of expense incurred for the client. The defense was a general denial as to any indebtedness, admitting the employment but stating payment had been made in full, then setting up 34 items of payment on account. It was there held that this was not a mutual account, but a long account and on one side only. The number of items do not wholly determine the length of the account, for sometimes the intricacy, and complications of one item may require more time and effort than many small or disconnected items. “Long” is a comparative term, and, as far as that feature alone is concerned, even the nine items here involved might meet the requiremént. But how about the account being on one side only? In the attorney-fee case the account consisted of the charges for fee and expenses. The defendant had no charges. All it had was cash payments, 34 in number. All these, if correct, should have been noted as credits on the account of the attorney. Defendant claimed nothing from the attorney; all it wanted and needed as to these 34 items was credit dor them; so the court held it was an account on one side only. With the same line of reasoning it was held it could not be a mutual account. It was said on page 68:
“We construe the clause, ‘or when the account is long and on one side only,’ used as it is in contradistinction to ‘mutual accounts,’ as meaning an account in which there are charges by one party only against the other, and as not intended to exclude a long account of charges in favor of one party and credits of payments thereon by the other. If this is the correct interpretation it seems entirely immaterial whether the account is kept exclusively by one party or whether one keeps account of his charges and the other of his payments. In either case it is one account only, and if long will justify a reference under the statute.
“On the other hand, ‘mutual accounts’ arise where each party has rendered services or sold articles of property to the other with the express or implied understanding that their respective claims shall, upon settlement, be offset to the extent of the smaller claim. Nor in such case'is it material whether both or only one of the parties keep the accounts. The distinction lies in the nature of the transaction or transactions. (21 A. & E. Encycl. of L. 246.) The more usual definition of ‘mutual accounts’ is a reciprocity of dealing, charges and credits on both sides — each party having a cause of action against the other.”
We think this distinction can be illustrated by the instance of a merchant selling groceries on account to a city customer who pays in cash or by check from time to time. That would be an account on one side only. But where he sold groceries to a farmer, who, in addition to payment of cash and by check, sold to the merchant from time to time on account butter, eggs and poultry/that would be a mutual account, and each party would have a right of action against the other. We need to consider but one only of the nine items or claims of the defense in the instant case to bring this case under the definition of mutual accounts as stated in the case above cited, ■and that item is the claim for one-half of the payment made by the defendant for outside pasture and feed for the cattle owned by both of them. Had no action been commenced by plaintiff this defendant had a good cause of action to recover this rent money advanced by him. These matters are to be determined by the pleadings rather than by the evidence, and the pleadings in this case undoubtedly show the issues of fact to be upon mutual accounts and therefore make the case a proper one for reference.
A number of other cases are cited by both parties, but they do not change or modify the definitions given or the rule expressed in the Lapham case. We find no error in denying defendant’s demand for trial by jury and sustaining the application to refer it.
Appellant urges as errors four rulings of the trial court as to the introduction of evidence. First, in permitting the plaintiff to introduce evidence to tlie effect that the defendant had, during the period covered by the lease, sold 28 of the original stock cows and had kept the proceeds, which was his privilege under the contract; but by the terms of the contract the original number of 108 was to be reduced by that number in determining the number to be left on the ranch by the plaintiff, i. e., if he sold 28 plaintiff should leave 80 instead of 108. Appellant contends the allegations as to the sale of the 28 head are inconsistent with the admission in the preceding paragraph of the petition where it was said, in speaking of the increase, that all the sales during the term of the lease had been accounted for as far as plaintiff knew. A careful reading of the petition permits of no doubt that the pleader was speaking of the increase in one paragraph and of the .original cows in the other.
Second, the appellant thinks the witness Winkler was incompetent to testify as to the value of two- and three-year-old heifers. The witness had been a farmer all his life, had not handled cattle recently, had not had a lot of experience, and had not seen any sold for some years, but read the market reports and knew approximately the market value. Under the authority of Hall v. Electric Railroad Co., 89 Kan. 70, 130 Pac. 664, and Bank v. Bank, 111 Kan. 682, 208 Pac. 636, we think the evidence was not prejudicial to the defendant and could properly go to the jury for what it was worth. To have a knowledge of the market value of live stock does not require any special training or long experience; neither is this witness disqualified, as was the one in the case of L. & W. Rld. Co. v. Ross, 40 Kan. 598, 20 Pac. 197, by not living in the neighborhood of the land on which he was placing a value, and not knowing its situation and fertility.
The third objection was to the introduction of a copy of the Drovers Telegram to give the market value of com, kafir corn, and milo at Kansas City, Mo., the crops in question being valued as of September 1 in an immature condition on land in Kiowa county, Kansas. If this had been the only evidence introduced on the subject the objection would have been of more force, but there was other evidence as to the estimated yield or prospect of crop and the freight rate between Greensburg and Kansas City, Mo. It was said in Nelson v. Railroad Co., 116 Kan. 35, syl. ¶ 4, 225 Pac. 1065, that—
“Market reports contained in familiar periodical publications are admissible in evidence for whatever they may be worth.”
See, also, Evans v. Moseley, 84 Kan. 322, 114 Pac. 374.
Witness Alls, called by defendant, testified about plaintiff paying money to the bank of which he was president for the account of defendant, having seen both parties in the bank talking settlement. This was introduced to show that defendant had settled with plaintiff for the 28 cows sold out of the original herd. The court concluded it had no bearing on that subject and sustained the motion of plaintiff to withdraw it from the jury. We see no error in so doing.
The court overruled the motions of the defendant to set aside a number of findings made by the jury and by the court, particularly as to the amount of rent paid for outside pasture and feed for the cattle, and concerning the sale of the 28 head of cattle. There appears to be some slight confusion as to the exact amount of the rent paid, and the court followed the finding of the jury. There also appears to be evidence to support the finding as to the 28 head of cattle sold, when the one that died and the two that were otherwise disposed of are taken into account.
The appellee insists in his cross petition that the trial court erred in sustaining the finding in favor of the defendant for one-half of the rent paid by defendant for outside pasture, saying the terms of the contract limited the liability of the plaintiff to growing the feed and caring for the cattle, and the defendant, as owner of the ranch, should have'furnished the additional pasture if such was needed. The liability of the defendant is also limited by the terms of the contract, and he was to furnish 1,200 acres for farm and pasture. The contract imposed no liability on either to furnish such outside or additional pasture. The cattle were pastured in the outside pasture with the knowledge of both parties. They belonged to both. Plaintiff should not claim and receive the benefit of the growth of such cattle as the result of such outside pasture without meeting his share of the reasonable and customary charges for the same, when he knew the defendant was not required to furnish it under the contract.
We find no reversible error in the case under the assignments of error in the appeal or in the cross appeal.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This proceeding involves the question of the finality of an order of the probate court allowing a claim against an estate, without notice to an heir or devisees _ whose property was later attempted to be sold for the payment of the claim.
The pertinent facts shown by the record, which disclose more specifically the question before us and how it arose, are as follows: On March 23,1922, W. H. Barlow executed his will, which was probated November 24, 1924, which, we presume, was soon after his death. He left surviving him two married daughters, and he had real property in Noble county, Oklahoma, and in Washington county, Kansas, and some personal estate. By his will he made a specific bequest to certain grandchildren, devised to his daughter, Mrs. Ada E. Fladd, the Oklahoma land for life, with remainder to certain grandchildren and great-grandchildren named, and directed that the amount of money from the proceeds, representing three-fourths of the remainder of his estate, be set aside as a trust fund for the benefit of his daughter, Mrs. Clara Beach, the income to be paid to her each year, together with one-fifteenth of the principal, until the whole of the principal was disbursed to her. The remainder was devised and bequeathed to his daughter, Mrs. Ada E. Fladd. B. B. Norris was nominated as executor, and was later appointed by the court and qualified. The provisions of this will are not in controversy in this proceeding. A statement of its terms is made to show the interest of Mrs. Clara Beach in the estate of her father.
On March 6, 1925, Ada E. Fladd presented a claim against the estate, which, after the caption, reads:
“proof of demand against estate.
“Said Estate to Ada E. Fladd................................Dr.
Board, room and laundry from September first, 1917, to March 23d, 1922, or 237 weeks, at $10.50 per week....................$2,488.50”
This was sworn to by the claimant. This was exhibited to the executor with a notice that the claim, or demand, would be presented to the probate court for allowance on a day named. The executor, in writing, acknowledged service of such notice, and by a further writing waived the notice of the presentation of the claim to the court for allowance and gave his consent that the same be presented at any time. On April 22, 1925, the claim was presented to the court and allowed. Neither the executor nor anyone in his behalf appeared. Mrs. Clara Beach resided in California, and had no notice, either actual or constructive, of the presentation or allowance of this claim.
In April, 1927, the executor petitioned the court for authority to sell the real property in Washington county for the payment of debts. The petition alleged that the debts due from the estate, as nearly as they could be ascertained, amounted to $4,310; that the probable cost of administration was $300, and that the total value of personal assets did not exceed $2,250; that on account of the insufficiency of the personal assets to pay the debts and cost of administration it was necessary that the real property described be sold.
The hearing of this petition was set for a day certain, and notice of it was given by publication in the newspaper.
Mrs. Clara Beach filed in court written objections to the sale of the real estate, for the reasons, among others: That from the files in the case it appears that such sale was necessary for the purpose of paying the claim of Ada E. Fladd in the sum of $2,488.50, allowed April 22, 1925, the personal estate being sufficient to pay all other claims; that Mrs. Clara Beach is, and has been since the probate of the will, a nonresident of the state, and had no notice of the allowance of the claim; that the claim shows on its face that, excepting a few items, it was barred by the statute of limitations, which "the executor had no right to waive; and that there was an absence of any claim of a legal contract for such service.
On the hearing of the petition for the sale of real estate the executor objected to the contentions of Mrs. Clara Beach for the “reason that said claim has been regularly allowed and is conclusive as to the said Mrs. Clara Beach.” The probate court sustained that view, and Mrs. Clara Beach appealed to the district court. In the district court the executor demurred to the objections of Mrs. Clara Beach to the sale of the real estate. This demurrer was sustained, and Mrs. Clara Beach has appealed.
Appellant contends that an heir or devisee who had no notice of the filing and allowance of a claim against an estate may, at the hearing of a petition for the sale of real estate for the payment of debts, the granting of which would be in effect an order for the sale of his property to pay the debt, contest the legality and justice of such claim. In Black v. Elliott, 63 Kan. 211, 65 Pac. 215, it was held:
“In any proceeding brought either in the probate court or in equity for the purpose of subjecting the lands of a deceased person to the payment of the debts of such person, the heir or devisee of such person, or one claiming under him, may contest the legality or justness of such claim, and this regardless of whether it has been duly allowed by the probate court as a claim against the estate. Such' allowance is not binding upon such heir or devisee or other person in such proceeding.” (Syl. J 2.)
The allowance of a claim against an estate in the probate court, ex parte and without notice to heirs or devisees, is for the information of the court and convenience of the executor and is only prima facie correct, and is subject to correction of any errors or mistakes thereafter discovered in it, without appeal, in any direct proceeding to review it or set it aside. (Musick v. Beebe, Adm’r, 17 Kan. 47.) The allowance of a claim against the executor or administrator, ex parte and without notice to the heirs or devisees, is in a proceeding to subject real estate to the payment of debts, prima jade against the heirs or devisees of its validity and due presentation; that is, it justifies an executor in presenting a petition for the sale of real estate to pay claims so allowed, and justifies the court in making an order for such sale; provided, of course, no heir or devisee who had no notice of the allowance of the claim makes any objection to the legality or justice of the claim. (Thomas v. Williams, 80 Kan. 632, 103 Pac. 772. See, also, Young v. Scott, 59 Kan. 621, 54 Pac. 670; Calnan v. Savidge, 68 Kan. 620, 624, 75 Pac. 1010; McLeod, Adm’r, v. Butts, 89 Kan. 785, 786, 132 Pac. 1174; Marshall’s Kansas Probate Law, § 881; 11 R. C. L. 200, 338, 340; and 24 C. J. 282, 283, 284, 603, 604, and cases there cited.)
These .authorities announce or apply the rule that, generally speaking, the law contemplates that parties in interest shall have a day in court, and that in the presentation and allowance of claims against an estate, where notice is given to the executor or administrator only, and the heirs or devisees whose property ultimately may be subjected to the payment of the claim have no notice, the executor or administrator acts somewhat in the capacity of an auditor, and that upon the final settlement of his accounts, or upon the hearing of a petition to sell real property of the heirs or devisees for the payment of debts, the heirs or devisees, being the real parties in interest, are entitled to a hearing upon the legality and justness of the claim, and that upon such hearing the real parties in interest are the claimant, on the one hand, and the heirs or devisees whose property is sought to be subjected to the payment of the claim, on the other, and that when such heirs or devisees in such proceeding question the legality or justice of the claim, the claimant must establish it by evidence sufficient to establish a debt in an ordinary action therefor. The previous decisions of this court accord with these authorities. In one respect they may appear to differ slightly. In some of our cases, previously cited, there is language to the effect that the allowance of the claim by the probate court, without notice to heirs or devisees, was prima ■facie 'evidence of its validity and justice. But that was said in cases in which the validity or justice of the claim was not put in issue by an heir or devisee. The allowance, of course, is such prima facie evidence of the legality and justness of the claim, when those questions are not put in issue, as to authorize the executor or administrator to predicate thereon a petition for the sale of real property and to give the court jurisdic tion and authority to allow such petition. But we have no decision to the effect that when the legality and justness of the claim are directly put in issue by an heir or' devisee the fact that the claim had been previously allowed by the probate court placed upon the heir or devisee the burden of proof of the illegality or the injustice of the claim.
Appellee concedes that the rule of law contended for by appellant was the law of this state until 1923, when the court decided the case of Gift v. Lennen, 113 Kan. 467, 114 Kan. 322, 218 Pac. 996, and contends that the decision of this case changed the law of this state on that question. This contention misconstrues the decision. In that case the court had before it the construction of R. S. 22-713, which provides that the claimant shall give notice to the executor or administrator ten days before presenting the account to the court, .and that the administrator shall thereupon mail a copy of such notice to each of the heirs or legatees, or their guardian, if a resident in the county in which the claim is presented. The question was whether the statute required the administrator or executor to send a notice of the claim to an heir or devisee who was a nonresident of the county. That was the only question before the court. This ■court held that the statute did not require the giving of a notice by the administrator or executor to an heir or devisee who was a nonresident of the county. It may be noted that this 'statute was •amended by chapter 193 of the Laws of 1927, by omitting the requirement that the executor or administrator should give notice to the heirs or devisees. R. S. 22-713 was in effect at the time the ■claim in this case was presented, but since, as interpreted in Gift v. Lennen, supra, it did not require the executor or administrator to give notice to heirs or devisees who were nonresidents of the •county, it had no application to the facts in this case. The result is there is nothing in any of our decisions contrary to the rule of law contended for by appellant.
Appellee cites R. S. 22-915 as fixing a limitation upon the time in which the allowance of a claim may be questioned by one who had no notice. The section refers to accounts settled in the absence of ■one adversely interested and applies only incidentally to allowance •of claims.
Appellee argues that the attack here made upon the allowance of ithe claim is a collateral attack. This argument lacks merit. The attack is made in the probate court in the form of objections to the petition for the sale of real property to pay it and is one of the methods of direct attack upon the claim within the authorities above referred to.
The judgment of the court below is reversed for further proceedings in accordance with the views herein expressed.
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The opinion of the court was delivered by
Hutchison, J.:
The main question involved in this appeal is whether there was error in rendering judgment against the defendant insurance companies for an attorney fee of $250 for the attorneys for plaintiff under section 40-908 of chapter 281 of the Laws of 1927, being the insurance act. There is also a preliminary question raised as to whether there can be an appeal from the allowance of such attorney fee when the statute permitting it to be done states that it is to be recovered and collected as a part of the costs, and R. S. 60-3303 limits appeals to cases where the amount in controversy exclusive of costs shall exceed $100.
We will take up the jurisdictional question first. The appellee maintains the attorney fee allowed is properly a part of the costs and is therefore not subject to review by appeal. Of course, if it is a part of the costs, strictly speaking, it is not within our statute as an appealable order. The statute above mentioned, which authorizes the allowance of such fee, does not state it is or shall be costs, but that it is “to be recovered and collected as a part of the costs.” Our own court has settled this question in an insurance case just like this one, defining the term “exclusive of costs.” And in the subsequent revision of the section that term has remained unchanged, and the decision is applicable to appeals now as it was then.
“The words ‘exclusive of costs,’ as used in subdivision 3 of section 542 of the civil code, mean such costs as are provided for by statute and may be computed and taxed by the clerk of the court, and do not include any allowance as an attorney’s fee to the prevailing party, the amount of which cannot be computed and determined under statutory provisions but must be determined judicially by the court.” (Insurance Co. v. Stahl, 78 Kan. 528, syl., 96 Pac. 854.)
In the consideration of this question in 2 R. C. L. 30, attorney fees, when taxed as costs, were called extraordinary costs, and in a number of jurisdictions they are distinguished from the usual and drdinary costs as not being subject to the discretion of the court, and are therefore appealable matters. The allowance of such fees requires a judicial determination in two respects — first, whether the particular case under consideration is one in which it was contemplated such a fee should be allowed; and, second, the amount of the fee that would be .reasonable under all the circumstances of the case. These determinations are purely and strictly judicial and subject to review for errors in the conclusions reached, and bear no relation to costs in the case except as the statute provides that they are to be recovered and collected as part of the costs.
This action was commenced in the district court of Mitchell county by the administrator of the estate of Matilda Ann Bracken, deceased, he being an administrator with the will annexed. The defendants • were two insurance companies who had issued fire insurance policies on the house and household goods belonging to the deceased 'in her lifetime. Shortly after her decease the house and contents were destroyed by ñre. The liability was admitted by the companies, and the total amount was found to be $1,506, which the companies expressed from time to time a willingness to pay. The administrator claimed the insurance as necessary to pay debts. The deceased left a husband, and the house and household goods were claimed by him to be exempt to him as a homestead and exempt personal property. The will also made him the beneficiary. He demanded of the defendant companies that the insurance money be paid directly to him. A number of letters were exchanged between the administrator and the companies and between the husband and the companies concerning the conflict, of claims before this suit was commenced, the companies offering to pay the money to both parties or pay it into court. As soon as this action was commenced they obtained permission from the court to pay it into court, and did so. The issues joined were therefore mainly between the administrator and the husband. After hearing the testimony the court held in effect that the district court was without jurisdiction to try the main contention between the claimants because the evidence showed a similar controversy had been pending in the probate court, but held it had jurisdiction to instruct the clerk to dispose of the insurance money in his hands as the probate court might direct, and also that it had jurisdiction to determine the matter of attorney fee requested by attorneys for plaintiff, and did fix it at $250. From this the insurance companies appeal. A supplemental abstract shows that later the differences between the administrator and the husband of the deceased were settled in the probate court.
The only matter in this contention between these claimants whi-ch concerns us at this time is the right of the administrator to maintain this action if the property was a homestead and exempt. It was said in the case of Continental Ins. Co. v. Daly, Adm'x, 33 Kan. 601, 7 Pac. 158, that if the administrator could maintain such a suit for the proceeds of exempt property it would be as trustee. If he could maintain it in any capacity it will be sufficient for the purpose of this action, which now involves only the question of the allowance of an attorney fee for the attorneys of the administrator as plaintiff herein.
The section of the statute under which the fee was allowed is as follows:
“That in all actions now pending, or hereafter commenced, in which judgment is rendered against any- insurance company on any policy given to insure any property in this state against loss by fire, tomado or lightning, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee to be recovered and collected as a part of the costs: Provided, however, That when a tender is made by such insurance company before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed.” (Laws of 1927, ch. 231, § 40-908.)
We need not go very far in the construction of this statute to determine that it is only applicable to cases where judgment has been rendered against the insurance company. No judgment was rendered against the insurance companies in this case except for costs and this attorney fee. In the case of Insurance Co. v. Corbett, 69 Kan. 564, 77 Pac. 108, it was said in the opinion:
“Recovery is limited to a reimbursement of the successful party for the necessary expenses incurred in the prosecution of his claim.” (p. 672.)
The plaintiff was the successful party in this only to the extent of having his own case dismissed at the cost of the defendants. The plaintiff accomplished nothing whatever by the suit in the district court except to have the insurance money paid into court, and this the evidence shows was offered by the companies long before the action was commenced. This statute is intended to penalize companies which are delinquent in making prompt payments on policies after loss has occurred. As was said in the opinion in Assurance Co. v. Bradford, 60 Kan. 82, 85:
“To the end that insurance companies may be compelled to respect the obligations voluntarily taken upon themselves to subserve the policies of the state in these respects, the legislature may rightfully impose upon them the repayment to insurers of attorneys’ fees necessarily incurred in suits to make good their delinquencies.”
It is not necessary for us at this time to consider the question of any offer or tender before this action was brought, nor what the result might have been if the case had gone on in the district court to a determination in favor of the plaintiff, but we are holding that no judgment was rendered against the insurance companies on the policies, as contemplated by the makers of the statute under which the fee is claimed.
The judgment is reversed and the cause is remanded with instructions to set aside the ruling and judgment as to the attorney fee.
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'The opinion of the court was delivered by
Hutchison, J.:
In this action a number of taxpayers in a benefit road district in Reno county seek to enjoin the board of .county •commissioners of that county from using the state road funds for any other purpose than for reimbursement of taxpayers in benefit •districts, as prescribed in chapter 255 of the Laws of 1927. The •trial court found in favor of the defendants and denied the injunction, from which judgment the plaintiffs appeal.
The plaintiffs pray for mandatory injunction and declaratory judgment in addition to injunction. As expressed by the trial court, the question here is whether the reimbursement provided for in chapter 255 was mandatory or optional at the time the injunction action was commenced. Section 9 of the act provides for “the payment of the installments of the benefit district tax assessed on the property in such benefit districts as the same become due, and to the reimbursement to the taxpayers of all assessments made and collected On such lands” out of the county and state road fund. This general requirement is followed in the same section with the following sentence:
“Provided, however, That such payments and reimbursements shall be optional with the county board in any county where any proceedings are now under way for the construction of a state road in accordance with some federal aid specification until the construction of such road shall have been completed.”
The answer of the defendants was that proceedings were under way for two such roads at the time this act took effect, and therefore it had the option of using these funds for the completion of those two projects instead of distributing them as reimbursement. This act of 1927 repealed and took the place of chapter 214 of the Laws of 1925, which authorized the construction of state highways with federal aid, prescribing the method of procedure and making provision for reimbursement. The new law made several changes in the old and specifically set the time of its taking effect about six weeks in the future. It was approved March 15, published March 17, and it provided it should take effect May 1.
The first point urged is that the word “now” in the option or proviso means literally the present time, the very moment the legislature is speaking, namely, the day the act was approved. There are authorities sustaining that view, but the weight of authority and the tendency of the Kansas decisions is to consider the whole act as the voice of the legislature on the specific day they have designated for it to become a law, to be operative and in effect, unless a different construction is plainly and purposely intended.
“Now. An adverb implying present time. . . . The intent with which the term is used as gathered from the contents determines its meaning. It does not necessarily mean at the present time. The word is sometimes used, not with reference to the moment of speaking, but to a time contemporaneous with something done. It may mean at the time spoken of or referred to as well as at the time of speaking.” (46 C. J. 632.)
When the act itself designates a particular date in the near future for it to take effect such designation should control rather than a retrospective or even a present date, upon the theory that a definite date signifies a legislative purpose, and a prospective effect is preferable to a retrospective or even a present effect.
“It seems clear that the legislature intended that this statute was to operate prospectively. That would ordinarily follow, not because a retroactive effect could not be given, but that such construction is never given unless the legislative intent to do so is clear and unequivocal. (Douglas County v. Woodward, 73 Kan. 238, 84 Pac. 1028; City of Wichita v. Railroad & Light Co., 96 Kan. 606, 152 Pac. 768; Lightner v. Insurance Co., 97 Kan. 97, 102, 154 Pac. 227.)” (State v. Trust Co., 99 Kan. 841, 843, 163 Pac. 156.)
In the case of Nyhart v. Iverson, 127 Kan. 48, 272 Pac. 176, called the Atchison county case, to which further reference will be made later, the date of taking effect of this road law was not in controversy, and from the dates of the several facts involved therein it would have made no difference whether the date of its taking effect was March 17 or May 1. There was no question in that case on that point, nor ruling thereon, but by common consent March 17, the date of the publication of the act, was the date referred to as when it took effect.
It is the contention of the appellants that there were no proceedings under way in this case in accordance with some federal-aid specification prior to July 22, and possibly later, and therefore there was nothing that would give the defendant board an option as to the use of the funds for construction purposes instead of reimbursement. A statement of the facts as to proceedings and dates, as shown by the exhibits and oral evidence, is as follows:
September 1, 1926, petition was filed for the extension of state highway U. S. 50 South as a federal-aid project. September 23, 1926, minutes of the board show the following:
“Board met with the board of county commissioners of Harvey county for the purpose of discussing the improvement of Fourth avenue East. It was decided jointly with Harvey county commissioners to proceed as soon as possible to improve the above road as to grade, culverts and sand clay surface.”
The county engineer after this meeting proceeded and surveyed the road on Fourth avenue East, known as U. S. 50 South. November 1, 1926, petition was filed for state road 17, sometimes called Harper road, as a federal-aid project. November 16, 1926, the following action was taken by the county board:
“November 16, 1926. Board discussed petitions on file for hard-surfaced roads asked for on Harper road; also Fourth avenue East road. Before taking action, on the petitions the board requested Chairman French to make a trip to Topeka to meet the state highway commission and ascertain if petitions will meet requirements to receive state and federal aid.”
December 14 and 15, 1926, the state highway commission took action on these projects, requesting detailed information of the division engineer, and on December 17, 1926, the state engineer sent a letter to the division engineer indorsing such request and referring to the projects in connection with the federal aid available. The county engineer testified the plan of work on U. S. 50 South was started in December, 1926. Culverts were widened and estimates furnished the highway commission for four miles on U. S. 50 South prior to February 1, 1927. January 14, 1927, a tentative estimate was furnished the state highway commission by the county engineer as to both roads, both designated as being of concrete type, U. S. 50 South being four miles in length, probable cost $112,000, of which one-half was federal aid, one-fourth county, and one-fourth state aid, and No. 17 was five miles in length, probable cost $140,-000, of which $70,000 was federal aid and the balance state and county. The county engineer further testified as to federal-aid specifications as follows:
“The specifications for these improvements on SO South and No. 17 were prepared by the county and approved by the state according to specifications already approved by the department of agriculture. The specifications are approved by the department of United States bureau of public roads, and the plans were prepared in accordance with those and approved by the state. The state highway commission has on file certain standard specifications for different' kinds of highways — a hard-surfaced highway, graveled highway, or even a dirt-surfaced highway. There are different types of surfaced highways. They have specifications for ordinary grading, for sand and clay work, for gravel work, and then the different pavements. They are all in writing. The witness has copies of all of them on file in a bound book ‘Standard Specifications.’ They are official. Witness produces a book for the record. . . . They provide rules to be followed in any particular type, the manner of construction. . . . The plans had been started in 1926 but weren’t finally approved until the summer of 1927 . . . the 22d of July, 1927.”
April 1, 1927, the board passed a resolution and order concerning these two roads, reciting that they came up at that time “for final consideration and action by the board,” and ordered them to be a part of the state road system; that the building be “in accordance with the plans, specifications and estimates, approved by the state highway engineer and the United States secretary of agriculture, is an immediate necessity and is of general public utility.” The order concluded with directions to the county engineer to make an accurate survey, together with plans and specifications for the improvement therein ordered, and after final approval to file them with the county clerk. July 22, 1927, the board made another order as to road 17 substantially the same as on April 1, except it stated the amount of county and state aid there was available. On the same day an order was made for a further extension of road 17. September 6, 1927, a new petition was filed for No. 17, and on September 17, 1927, the board approved it. September 9, 1927, the highway commission agreed with the county board as to original part of road 17. September 27, 1927, the county board made another order concerning U. S. No. 50 South, including an extension of four miles in addition to the original four miles. October 4, 1927, the county board made a final order as to U. S. 50 South, covering the entire eight miles, and referred to the matter being initiated by the resolution of April 1,1927.
Appellants insist that the proceedings of July 22, 1927, are the first of any substantial character, all previous incidents being merely preliminaries, and the resolution and order of April 1, 1927, had to be followed with other order by the board after the approval of the highway commission. There were additions made to both roads, which probably required some of the subsequent orders. We find nothing further done with U. S. 50 South from April 1, 1927, until September 27, 1927, and in this order, as in that of October 4, 1927, the additional four miles are included.
The above statement shows there was quite a little done and accomplished with reference to these two roads before May 1, 1927. Were these two projects or either of them “under way” on May 1, 1927? The term “under way,” used in the proviso of the road law above quoted, is a nautical one, defined by Webster as “through the water; in motion — said of a vessel starting out; hence, making progress or having started in any sense.” See, also, 4 Words and Phrases, 2d series, 1052. A ship is under way when it has started, or is making progress without regard to the distance it has traveled or gone. Would not a road project be under way when it has been definitely started or commenced? It is quite like a suit pending, which requires nothing more than a substantial start — not a gesture, but a real start in good faith.
“A civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.” (R. S. 60-301.)'
“An action shall be deemed commenced within the meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a codefendant who is a joint contractor, or otherwise united in interest with him.” (R. S. 60-308.)
“When the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency.” (R. S. 60-2601.)
“For the purpose of computing the statute of limitations an action is deemed commenced against the defendant upon the filing of a petition which states a cause of action against him and the service of process upon him.” (Commercial Nat’l Bank v. Tucker, 123 Kan. 214, syl. ¶ 2, 254 Pac. 1034.)
It is in fact a saving clause in legislation and similar to hundreds of such clauses which provide for the act not to affect suits pending. In the consideration of this subject in 36 Cyc. 1232 it is said:
“The word ‘pending,’ as applied to proceedings in saving clauses, is used in the general sense of ‘commenced and not terminated.’ ”
And in 32 Cyc. 406 a proceeding is defined as “regular and orderly progress in form of law including all possible steps in an action, from its commencement to the execution of judgment.”
Reverting now to the Atchison county case, above cited, which was the first interpretation of this part of section 9 of the road law under consideration, it is observed that only four incidents are noted in the progress of that road project, two before and two after the taking effect of the act, as follows: June, 1925, county board applied for federal aid for the road under consideration; February 16, 1926, county board adopted a resolution to construct and maintain the road as a federal-aid road; September 1, 1927, contract for the road was let; and September 10, 1927, work on the road was begun. The last two are of use only to show in this case, as in the case at bar, that the -matter had not progressed as far as the letting of the contract or beginning of work until long after the act became effective. The court held in that case that the two acts which occurred before the law took effect, viz., the application of the county board for federal aid and the adoption of a resolution to construct and maintain the road as a federal-aid road, were sufficient to make the proposed road a federal-aid project already under way when the act of 1927 took effect.
In the case at bar we have the two exact counterparts of the only two instances in the Atchison county case, as follows: The petitions for the two roads as separate federal-aid projects, one on September 1, 1926, and the other November 1, 1926, and the resolution of the county board to construct and maintain them as federal-aid roads, adopted April 1,1927. This fully meets the complete showing made in the Atchison county case, where the project was held to have been commenced or under way before the law went into effect. But in the instant case there are the additional items of progress as enumerated, which include resolution of county board to request state highway commission for federal aid, survey estimates, widening culverts, submitting estimates to state highway commission, and action of such commission. Under a reasonable construction of the statute and the authority of the Atchison county case it is held both these proposed roads were under way as federal-aid projects before the act of 1927 took effect.
Appellants urge and insist that this is not enough under the proviso above quoted, but that the projects must have been under way “in accordance with some federal-aid specification”; that it must be a definite one of the several federal-aid specifications as defined in section 8 of the same chapter, and unless a definite specification was selected and agreed upon by those in authority before the act took effect the project could not be considered as being under way. We think such a construction would be extremely technical. The statute - only requires it to be in accordance with some federal-aid specification — any one of the many. The county engineer testified, as above quoted, what the specifications mentioned in the statute were. He said they were of different kinds and types of surface, each of which is fully described as to specific requirements and are bound in a book called “Standard Specifications,” a copy of which he introduced in evidence. All federal-aid roads, it would follow, were required to be constructed according to some one of these types. A proposed road not in accordance with some federal-aid specification would not be entitled to federal aid, but might make an approved county or township road. That kind of a project would not, under this proviso, entitle the county board to the option as to the use of the funds. Appellants say if any sort of a start for the construction of a road will give the commissioners the right to use the funds for its construction instead of reimbursement, section 9 is useless because section 8 excludes counties where such roads are not completed. There is quite a difference. “Not completed” refers to construction, and implies that such construction has been started but not finished. That is, construction not completed, whereas this proviso is concern ing "proceedings now under way” — entirely different situations. The reason for the exception is compelling and in harmony with the whole act, viz., to use this state and county road fund above and beyond what is needed for maintenance to pay taxes assessed to benefit-district property owners or reimburse them for taxes already paid, except where it is needed to complete a road being constructed or where proceedings were under way for such a project. The two roads here under consideration were without question being projected in accordance with some federal-aid specification as required by the statute and such as to entitle the county board to exercise the .option of concluding the proceedings and arranging for their construction out of the available funds instead of using the funds for reimbursement.
We have thus far assumed that the plaintiffs have a legal capacity to maintain this action, and having reached the conclusion in favor of the option it is now unnecessary for us to decide that question.
The judgment is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
This controversy involves the question whether a deed was in fact a mortgage. The action was one for possession of a ranch (840 acres) in Cheyenne county. It was brought by George S. Rusco, claiming to be owner and landlord, against L. D. Reinhold, tenant, and against J. W. Dorsey DeGood, to have a deed purporting to convey the ranch to the latter, declared to be a mortgage. Reinhold answered denying the landlord’s title, admitting nonpayment of rent under a lease through which he held, and claiming that DeGood was the owner of the ranch and entitled to the rent. The plaintiff admitted execution of the deed to DeGood, but claimed it was in fact a mortgage and DeGood a mortgagee. DeGood answered, claiming to be owner of the ranch by the deed to him. The court sustained a demurrer to plaintiff’s evidence, and he appeals. The facts disclosed by the evidence were substantially these: The land in controversy was owned by one Devore, subject to a mortgage held by William Buck. Charles Boyington held a contract of purchase from Devore, subject to the mortgage. Boyington applied to DeGood for a loan of $25,000 to be secured by a mortgage upon the land. There is some controversy as to the facts, but the plaintiff claims that DeGood agreed to loan the money to Boyington but demanded in lieu of a mortgage that the legal title in Devore under the contract of purchase should be conveyed directly from Devore to him (DeGood). DeGood further agreed as part of the transaction to lease the' property to Boyington. Transfers of the property were made; deed to DeGood and lease from DeGood to Boyington. Boyington leased the premises to Reinhold May 31, 1923. Subsequently thereto (January 6, 1925) Boyington assigned and transferred his interest in the DeGood lease and also executed a quitclaim deed to Rusco, the plaintiff. Material parts of the lease from DeGood to Boyington read:
“This lease made this 6th day of March, 1922, by J. W. DeGood of the first part, to Charles Boyington, of the second part.
“Witnesseth, that the said party of the first part, in consideration of the rents, covenants and agreements of the said party of the second part, hereinafter set forth, does by these presents, grant, lease, and rent, to the said party of the second part, the following described property, situated in the county of Cheyenne and state of Kansas. . . .
“The party of the first part gives the party of the second part the exclusive option to buy said land at any time during the term of this lease for the purchase price of $25,000 cash, to be paid in full at the time of purchase.
“It is further agreed that if on or before the termination of this lease, the party of the second part pays the party of the first part, $15,000 or more, then all the terms of this lease to be extended three years from said payment or the termination of this lease, after which the party of the second part shall have the same option to purchase for the sum of $10,000 or less, according to the amount paid on the aforesaid $25,000.
“To have and to hold the same unto the said party of the second part, from the first day of March, 1922, to the first day of March, 1927.
“And the said party of the second part, in consideration of the leasing of the premises, as above set forth, covenants °and agrees with the said party of the first part to pay the said party of the first part, his heirs or assigns, as rent for the same, the semiannual rent or sum of eight hundred seventy-five dollars, in ten semiannual payments, as follows, to wit: The first year’s rent of $1,750 is paid, receipt whereof is hereby acknowledged. And eight hundred seventy-five dollars September 1, 1923, and $875 each six months thereafter, until all payments provided for are paid. And in addition to said rent pay all taxes assessed against said land during the term of this lease. Party of the second part agrees to pay all expenses of executing and stamping any deeds, notes or mortgages in connection with this lease.
“Hereby waiving the benefit of the exemption, valuation and appraisement laws of said state of Kansas to secure the payment thereof.
“The said party of the second part further covenants with said party of the first part, that at the expiration of the time mentioned in this lease, to give peaceable possession of the said premises to said party of the first part, in as good a condition as they now are, the usual wear, unavoidable accidents and loss by fire excepted, and will not make or suffer any waste thereof, nor lease, nor underlet, nor permit any other person or persons to occupy the same, or make or suffer to be made any alteration therein, without the consent of said party of the first part in writing having first been obtained, and not use or occupy said premises for any business or thing deemed extra hazardous on account of fire; and that upon violation of or default in any of the preceding covenants and provisions, or on the nonpayment of the rent, as aforesaid, the said party may, at his election, either distrain for said rent due, or declare this lease at an end, and recover the same as if held by forcible detainer, the said party of the second part hereby waiving any notice of such election or any demand for the possession of said premises.
“The covenants herein shall extend to and be binding upon the heirs, executors and administrators of the parties of this lease.
“In witness whereof, the said parties have hereunto set their hands, the day and year first above written. J. W. DeGood,
Chabdes Boyington.
“It is further agreed that the party of the second part has the privilege of paying any part of said purchase price at any rent-paying date and any such payment shall draw interest at the rate of seven per cent per annum and said interest be deducted from all subsequent rent payments.”
The assignment from Boyington to Rusco reads:
“For and in consideration of one dollar and other valuable consideration, I, the undersigned, hereby sell, assign and transfer, and set over to Geo. S. Rusco, of St. Francis, Kan., all my right, title, interest, equity and estate in and to the within lease and hereby authorize said assignee to carry into effect in full, all the provisions of the within lease. Chas. Boyington.”
Material parts of the deed from Boyington to Rusco read:
“This indenture, made this 6th day of January, in the year of our Lord one thousand nine hundred and twenty-five, between Charles Boyington and Clara Boyington, husband and wife, of-, in the county of Cheyenne and state of Kansas, of the first part, and Geo. S. Rusco of the county of Cheyenne and state of Kansas, of the second part:
“Witnesseth, that the said parties of the first part, in consideration of the sum of one dollar and other valuable consideration, to them duly paid, have sold, and by these presents do remise, release and quitclaim unto the said party of the second part, heirs and assigns, forever, all that tract or parcel of land situated in the county of Cheyenne and state of Kansas and described as follows: . . .
“The parties of the first part covenant that at the date hereof they have executed no conveyance or other instrument of writing whatsoever affecting the said real estate, which does not now appear of record in the office of the register of deeds of said county and state, with the appurtenances, and all the estate, title and interest of the said parties of the first part therein; to have and to hold all and singular the above-described premises, together with the appurtenances, unto the said party of the second part, heirs and assigns forever.”
The defendants contend that the instruments on their face showed a conveyance of the property to DeGood with an option only from DeGood to Boyington to purchase the property within a specified time, and in the interim the property to be leased to Boyington, and that parol evidence to vary the terms of such contracts was incompetent. Considerable testimony was offered by the plaintiff and rejected by the court upon the theory advanced by defendants. Such testimony, however, was not brought into the record on the hearing of the motion for a new trial as, required by the statute and its rejection is therefore not available as error. (R. S. 60-3004; State v. Snyder, 127 Kan. 7, 272 Pac. 169; Newton v. Newton, 127 Kan. 624, 274 Pac. 247.) The question for our consideration is whether the plaintiff was entitled to a submission of the case to the jury upon the evidence introduced; that is, whether the court erred in sustaining the demurrer to plaintiff’s evidence.
There was evidence showing a warranty deed, C. G. Devore and wife to DeGood, including the land in controversy; agreement of purchase by Boyington from Devore, dated February 17, 1920; Devore sells to Boyington about 900 acres of land, the subject of this action; “deed to be delivered . . . when all payments are made down to the first mortgage.” In consideration of which Boyington covenanted and agreed to pay unto Devore “the sum of $39,600, as follows, to wit: $5,000 due and payable February 17, this day; $10,000 payable the first of March, 1920; the balance (excluding a first mortgage now against said 880 acres) of $9,200 payable within ninety days from the date of this contract, or at such time as shall be agreed on by the above two parties, same to bear interest at the rate of seven per cent per annum from date. Party of the second part, Boyington, hereby assumes a first mortgage on the above lands now owned by Mr. William Buck, same payable in five years with interest at seven per cent.”
Boyington testified:
“I got possession of this described land on the first of March, 1920, under this agreement. . . . The land described in that agreement had no im provements except fences around part of it. It was mostly bottom land, laying both sides of the river, with perhaps sixty acres of hill land. There was about forty acres in .cultivation. In 1920 I did some fencing and broke out something over 100 to 150 acres, and put on from $150 to $200 worth of fencing. The breaking of the new land was probably of the value of $400. I paid $5,000 at the time I got this contract, and all together paid $15,000 upon the -contract. I paid that shortly after going into possession. Besides breaking 140 acres I put about 80 acres into wheat and 15 acres into alfalfa. I got a fair stand of alfalfa. I thought sowing the alfalfa would raise the value about $50 an acre. In 1921 I broke out more of the land, probably 30 acres, and built a five-room house of lumber and cement upon the land, the cost of which was about $2,000. I also built a barn that cost about $500. Tt was made of lumber and cement. I also, during that year, built corrals for the cattle, costing probably $100. Also improved by constructing wells; also put in about 35 acres in alfalfa, which increased its value from $25 to $30 an acre. I also sowed barley and kafir corn and built a small horse barn and a hog house, which cost me about $800. In the year 1922 I had not paid off the mortgage of $15,000 and it was due, I believe, in March. ... I talked with Devore and had arrangements with him early in the winter. ... I had a talk with DeGood with reference to this land, ... in this contract of sale, with Devore. . . .
“Q. Where was that conversation with Mr. DeGood? A. In his mill. . . .
“Q. What was the conversation? Go ahead and state the conversation as near as you can detail it in your recollection. A. I asked Mr. DeGood first if he wouldn’t go in a half interest with me on the place, and stock it proper with cattle and he said he would think about it, and later we talked it over at different times how to get the place stocked. ... I had conversations at other times with him. We talked about it at different times. At this first conversation I first asked him about talcing a partner in and he said he would think about it. ... I came back to the mill to see Mr. DeGood about it. There was no one present except DeGood and myself, and DeGood said he could not go in partnership but he would see about getting money for me. We talked about that. That is about all the second time. In a couple of weeks I went back again to the mill and DeGood and I talked at that time. I asked him if he could give me a loan on the place and he said he could and explained it.to me how he could make a loan. ... I told Mr. DeGood I needed a loan of $25,000; $15,000 to pay the Buck note and mortgage and some to pay Mr. Devore and have some to buy cattle with. He said that could be arranged he thought all right, and he told me how he could arrange it; that he couldn’t loan me the money outright unless he got ten per cent, and I knew I couldn’t afford to pay that much. He gave as his reason that there would be taxes to pay on the mortgage and the rate of tax was so high it would leave him nothing for his loan. He said the taxes at that time would be about four per cent and that would leave him only three per cent on his money, but that he could make the arrangements if he could get the deed and give me an agreement. When I paid this money back to him I could have the deed. The land was to be mine. That was about all at that time until the deal was closed. I was living on the land at that time, in possession of it. I think the next conversation I had with him we went to Mr. Kite’s office and made the papers out and he told me at that time how he would fix the matter. That was the last conversation I had with him before we made out the papers. ...
“Q. I am asking you to state what Mr. DeGood said with reference to the agreement that he would give you, what the terms of that was, what it was to be?•
“The Court : Just state it in the language of the parties.
“A. That he would let me have $25,000 and pay $15,000 in five years and $10,000 in eight years. If I paid the $15,000 he would give me eight years for the last $10,000.
“Q. Go ahead and state what he said he would give you with reference to the terms of that agreement, what he would give you to show that. A. He would give me a written agreement.
“Q. Was that written agreement what you got with reference to paying him back this money? A. Yes, sir. . . . The deed from Devore to DeGood was delivered the same day at the same time we drew the papers up in Mr. Kite’s office.
“(Cross-examination.) The deed was delivered to Mr. DeGood. . . .
“(Redirect examination.) I received money when this deed was made from Mr. DeGood at that time in the sum of $5,000. I gave Mr. Devore a check for 83,000 as a payment upon my contract, my note, with Devore. The agreement to pay Devore $3,000 on his contract was made the same day the deed was executed. ... I had had a talk with Devore some two or three weeks before that. ... It was agreed between Mr. Devore and myself that the money received from DeGood was to pay the Billy Buck note and mortgage. Devore and I talked about that and it was agreed it would be better for me if we could take the $15,000 and pay it. . . .
“Q. Was Mr. DeGood present at the time you arranged to pay the $3,000 to Devore? A. He was.
“Q. Was DeGood present when this conversation was had? A. He was.
“Q. Was he in the room at the time and sufficiently close to hear the conversation? A. He was.
“(Cross-examination.) Witness was shown exhibit C and testified that it was made at the time of the execution of the deed on March 6, 1922, in Mr. Kite’s office; and that he, Boyington, remained in possession of the premises under this instrument about one year and a half.”
Coun'sel for defendants interrogated Boyington:
“Q. Now, under the terms of this lease, I understood you to say that you paid the first year’s rent by DeGood retaining it out of the purchase price, is that right? A. Yes, sir.
“(Redirect examination.) Q. Mr. Boyington, I will ask you with reference to this so-called lease, if there was any stamps furnished to put on the deed executed by Mr. Devore to Mr. DeGood — government revenue stamps? A. There was.
“Q. Who paid for those stamps? A. I did.
“Q. You know how much the stamps were on that deed, you remember now what the amount to be? A. I believe it was close to $30.
“Q. They took this out of the money that was paid to you at that time on this transaction, did they? A. Yes, sir.
“Q. A part of this lease reads: 'It is further agreed that the party of the second part has the privilege of paying any part of said purchase price at any rent-paying date, and any such payment shall draw interest at the rate of seven per cent per annum, and said interest be deducted from all subsequent rent payments.’ Now, was that provision- talked over between you and Mr. DeGood at the time that you arranged with him to furnish this $25,000? A. Yes, it was. ...” I told Mr. DeGood that I had a chance to lease this land to Reinhold. If it would be all right and satisfactory to him, Mr. DeGood, that I would lease the land to Reinhold for a certain sum and make up the difference — the difference of the rent price to Reinhold and the interest on this loan from DeGood — I mean the interest on this loan that I got from DeGood in the sum of $1,750.
“Q. Then, I will ask you, do you mean the difference between the money that you was getting from Mr. Reinhold and the seven per cent mentioned in the lease. A. Yes, I do. I made a computation as to the amount of seven per cent interest would be on $25,000. That would be $1,750. That first $1,750 was first taken out of this $25,000 at the time the papers were drawn.”
Mr. C. G. Devore, called as a witness on behalf of the plaintiff, when shown the contract of purchase entered into by Boyington and Devore, stated that it was his signature and that the exhibit was the agreement between Boyington and himself. He testified:
“I have seen the contract before and operated under it. ... I executed a deed under that contract, marked “Exhibit D,” on or about the 6th day of March, 1922. The deed was made to Mr. G. W. Dorsey DeGood. I had a talk with reference to that deed with Mr. DeGood right at that time. Never talked with him about it before the execution of the deed. I had been spoken to, and talked about executing the deed to Mr. DeGood prior to that time in regard to the deed to Mr. DeGood. I was spoken to about it on the street here in St. Francis prior to the day upon which the deed was executed. If I remember correctly it was the latter part of February, 1922. . . .
“Q. Did you receive any consideration for the execution of this deed from anyone else? A. Yes.
“Q. Did you execute this deed, Mr. Devore, without any consideration whatever? A. No.
“Q. At whose solicitation did you execute this deed? A. Mr. Boyington’s.
“Q. At anybody else’s solicitation besides Mr. Boyington’s, was anybody else joined in that? A. No. There was money due me at that 'time of the contract between Mr. Boyington and myself, and I received payment on that contract at that time from Mr. Boyington at the time I executed the deed. . . . At the time the deed was executed to Mr. DeGood the contract between Boyington and DeGood was executed and the Buck mortgage was satisfied. I don’t remember whether that was the day I got my check from Mr. Boyington for the $3,000. I got a check from him for $3,000 at the same time and Mr. DeGood paid over some money to Mr. Boyington. I don’t remember the amount. I took a note from Mr. Boyington the same day or about that time. ... I have got that note yet. . . . Mr. Boyington and I talked over the arrangements between us at that time with reference to terms of the agreements. We talked back and forth there. Boyington talked with Kite, DeGood and myself. That was before the papers were drawn up. We talked over the different clauses as we went along drawing them up — that is exhibit C, the agreement between DeGood and Boyington, the different clauses as it was being drawn up.”
We are not unmindful of the rule that spreading the evidence at length upon the record is not good form. (State v. Rose, 124 Kan. 37, 257 Pac. 731, and citations.) But the question here is so sharply contested that it appears not improper to violate the rule. We are of the opinion the evidence received by the court was sufficient to require submission to the jury upon plaintiff’s theory that the money procured from DeGood was a loan. Comment at length thereon is not necessary, but a few observations are not amiss. For instance, Boyington was purchasing the land in controversy from Devore for $39,000, a transaction with which DeGood was familiar. DeGood was putting up only $5,000 at the time the deed was executed, $3,000 of which he knew went to Devore. Also, DeGood must have known that Boyington was occupying and improving the land in all respects as though he owned it, not as a mere tenant or lessee.
It is contended by the defendants that the written instruments between the parties disclose only a conveyance and an option by Boyington to buy back; that there was no debt owing by Boyington to DeGood, which under the authorities is the true test. (Fabrique v. Mining Co., 69 Kan. 733, 77 Pac. 584; Hoyt v. National Bank, 115 Kan. 167, 222 Pac. 127; Lincoln State Bank v. Breazier, 122 Kan. 423, 251 Pac. 1080.) Aside from the oral testimony we do not regard the language of the lease itself as free from the interpretation claimed by the plaintiff. For instance, it states that “the second party waives the benefit of the exemption, valuation and appraisement laws to secure the payment thereof.” That is, payment of all of the sums stipulated in the contract. It also provides that upon violation of any of the covenants and provisions the first party may distrain for his rent due and recover the same as if held by forcible detainer.
As ágainst a demurrer the plaintiff was entitled to every fair and reasonable inference which might be drawn from the evidence. In Rowan v. Rosenthal, 113 Kan. 604, 215 Pac. 1008, it was said:
“A demurrer to the evidence of plaintiff should not be sustained unless the court is able to say that admitting every fact that is proven which is favorable to the plaintiff, and admitting every fact that the jury might fairly and logically infer from the evidence favorable to the plaintiff, still, the plaintiff has failed to make out some one or more of the material facts of his case.” (Syl.)
What was said in the Rowan case had been stated before, and has been reiterated many times since that decision. (Walker v. Eckhardt, 122 Kan. 453, 251 Pac. 1093; Lindenbaum v. Kamen, 122 Kan. 775, 253 Pac. 409.)
The judgment is reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Clark, J. :
This action was brought by the Mortgage Trust Company of Pennsylvania against W. J. Fleming et al. to recover a personal judgment against Fleming on a coupon-mortgage note for $500 alleged to have been executed by him, and to foreclose a mortgage on certain real estate in Pottawatomie county securing the payment thereof. The defendant Fleming answered under oath, denying the execution of the note and mortgage, and this issue was submitted to a jury, which in due time returned its verdict in favor of the plaintiff. The defendant filed his motion for a new trial, setting forth, among other of the statutory grounds as reasons therefor, that “the verdict, report and decision is not sustained by sufficient evidence and is contrary to law:” This motion was sustained by the court, the record showing that a new trial was granted for the reason that “the verdict is contrary to and not supported by the evidence.” The plaintiff duly excepted to this ruling, and has brought the case here for review, assigning for error the action of the court in vacating the verdict of the jury and granting a new trial.
The plaintiff in error contends that the prevailing rule of law is that
“unless the verdict is clearly, palpably, decidedly, strongly and shockingly against the competent evidence, a'court has no legal right to set it aside as unsupported thereby; and that, when the evidence is conflicting, a difference of opinion thereon by a court is nothing but its personal opinion ; and that the jury are then the exclusive judges of the weight of the evidence and the credibility of the witnesses. There is no prerogative in the court in such event authorizing it to override the finding of the jury, and 'set aside their verdict on the ground that it is against the weight of the evidence.”
This court, in C. R. I. & P. Rly. Co. v. Reardon, 1 Kan. App. 114, passed upon the question at issue, and there held that
“it is the duty of the trial judge passing on a motion for a new trial, one of the grounds of which is that the verdict of the jury is not sustained by sufficient evidence, to review the evidence in the case, and to approve or disapprove the verdict; and if, after such review of the evidence, he is clearly of the opinion that the verdict is wrong, he should express his disapproval by setting it aside and granting a new trial.”
In the opinion, Gakvek, J., reviews the decisions of our supreme court at some length, and says :
“The functions of judge and jury are dissimilar until the verdict is rendered; but at that point the duties of the trial judge are enlarged and he is called upon to consider, weigh and pass upon all questions of fact as well as of law in the case. The decision of the jury cannot be ignored or laid aside simply because, in the exercise of his judgment upon the evidence, the judge would have arrived at a different conclusion; but, when the difference between the judge cand jury is so marked that the former cannot bring his judgment to acquiesce in the conclusions of the latter as being such conclusions as reasonable men might, under the circumstances, naturally arrive at, it is his duty, without evasion or hesitation, to withhold any approving act from a verdict so rendered, and set it aside.”
There is no question but that, in July, 1887, the defendant executed and delivered to a firm of loan agents in Pottawatomie county, who also represented plaintiff’s assignors, a note for $500 and a mortgage on real estate to secure its payment. A member of that firm testified that this mortgage was subsequently released of record, and, together with the note, returned to the defendant; that on August 1, 1887, Fleming signed a written application, prepared by the witness, for a loan of $500, and that on August 18 the defendant executed the note and mortgage sued on in this action. The record shows that Fleming was indebted to certain parties on other notes, which were held by this firm of loan agents for collection, amounting to nearly $500, which were paid out of the proceeds of the loan ; but they were not delivered to the defendant, nor was any money paid to him until some time in August. The defendant testified that the note and mortgage which he signed in July had never been returned to him, and that he supposed his payments of interest were being applied on that loan-. He also testified that he had no knowledge or information concerning the note and mortgage in controversy until after this suit was ^brought, and that he did not execute them. Several Avitnesses, including bankers of' many years of experience, accustomed to examine and compare signatures, testified that in their judgment the note and mortgage sued on in this action were not executed by the defendant. True, two witnesses testified that they saw the defendant sign them, yet they both admitted on cross-examination that they had but recently been brought back from New Mexico on extradition papers ; but upon what charge they were being prosecuted does not appear from the record. They were both members of the firm of loan agents to whom the July note and mortgage had been executed, and both testified regarding that transaction, and it is almost wholly upon their testimony that the plaintiff relied to establish its case. Another witness testified that he was with the defendant constantly from the 1st day of August, at 9 o’clock A. m., until the 20th or 21st of that month, in Marshall county, and.this statement is corroborated by the defendant; and if their testimony, is true, the witnesses of the plaintiff must have been in error when they stated that the written application was signed in their office, in Pottawatomie county, on the 1st day of August ; that about a week thereafter the defendant called in person and got the note and mortgage which he had executed in July, and that he had also executed the new note and mortgage in their office on the 18th day of August. The evidence is conflicting, and while the jury found the issues in favor of the plaintiff, and while from an examination of the record it might seem that the verdict was supported by the evidence, yet the trial judge, having the same opportunity to hear and see the witnesses as the jury had, is better able to determine that question than a reviewing court can be with nothing before it. save the printed record of the proceedings of the trial court.
As we cannot say that the court erred in granting a new trial on the ground that the verdict was con: trary to and not supported by the evidence, the order vacating the verdict and granting a new trial must be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages on account of plaintiff being hit by a taxicab. The demurrer of defendant to the evidence of plaintiff was sustained. Later plaintiff was granted a new trial. Defendant appeals.
Plaintiff alleged in her petition that she was struck by a taxicab while the driver was driving it in a careless and negligent manner, by driving on the wrong side of the street, and that the taxicab’s windows and windshield were covered with mist and the driver was not keeping the proper lookout for pedestrians on the street.
The answer of the defendant denied that the driver was negligent, and alleged that the plaintiff was guilty of contributory negligence in that she cut across the street in a diagonal course and not in the regular sidewalk lane.
At the trial the plaintiff showed that she arrived at the intersection of Fifth street and Topeka- boulevard in Topeka at about 7:30 a. m. December 24. The weather was cold. Mist was falling and freezing as it fell. The streets were rather slippery. A person walking on the street could see about half a block or a little more. When the plaintiff arrived at the northeast corner of Fifth and Topeka she glanced up and down Fifth street and seeing no cars coming she proceeded to cross. Since her destination was 509 Topeka boulevard, which is on the west side of the street, it was then necessary for her to cross Topeka boulevard. Just as she started to step from the curb into the street there was a car coming from the south. This car was properly in the half of the street into which plaintiff was stepping. She glanced up and saw this car coming and passed in front of it on into the center of the street. She was walking on the crosswalk crossing Topeka boulevard and at the time she was hit she was looking straight ahead. The windshield of the taxicab had ice on it. Plaintiff knew that Topeka boulevard was a through street and that the speed limit was 35 miles an hour.
When this evidence had been introduced the defendant demurred to it. This demurrer was sustained. Later a motion for a new trial was filed by plaintiff on the ground that the court erred in sustaining the demurrer to the evidence. During the same term this motion was sustained by the trial court. Defendant is appealing from the order sustaining the motion of plaintiff for a new trial. Had the court overruled the demurrer to the evidence in the first place defendant would have had the right to appeal. The effect of the action of the trial court in granting the motion for a new trial after the demurrer had been sustained was the same as though the demurrer had been overruled in the first place.
As to the merits of the case defendant argues that there is a duty on a pedestrian to keep a constant lookout for cars while crossing a street, and that since the evidence showed the plaintiff was looking straight ahead when the taxicab hit her she was guilty of such contributory negligence as would preclude her recovery of damages as a matter of law.
It will be noted that the only specific act of negligence pleaded against the plaintiff was that she did not cross the street in the sidewalk lane. . All the eye witnesses to the occurrence testified that she was in the sidewalk lane. The only evidence that she was not in the sidewalk lane when hit was that when she was picked up off the pavement after she had been hit she was about a car length south of the sidewalk lane. This is simply a circumstance and not a very persuasive one that the eye witnesses were wrong. Under such circumstances the question should have been submitted to the jury.
There is one other vague charge of negligence made against plaintiff in the answer, that is, the answer pleads that the plaintiff “did, in disregard to the weather conditions and the time of the morning, cut across Topeka boulevard in a careless and negligent manner.” To sustain the argument that the evidence of plaintiff showed her to be guilty of contributory negligence under that allegation, defendant points out that one eye witness testified that she was looking straight ahead when she was hit, while plaintiff herself remembers nothing after she stepped into the street. It is argued that such conduct constitutes sufficient contributory negligence to prevent plaintiff from recovering. To sustain this argument, this court would have to say that where a pedestrian took his eyes away from either- his right or his left, depending on which traffic lane he was in, for an instant, he was negligent. Such a rule would make it impossible for a pedestrian to look in the direction he was walking to see whether he was stepping into a hole in the pavement or stumbling over a brick. There was a half of a street fifty-five feet wide at this intersection and it is difficult to see why defendant’s driver could not, by the exercise of due care, have avoided hitting plaintiff. The rule as to the duty of a pedestrian crossing a street at an intersection is stated in 3 Berry on Automobiles, 7th ed., page 302, as follows:
“When a pedestrian has committed himself to the crossing, he has the right to assume that vehicles will have due regard for his safety. Where a pedestrian is lawfully and prudently crossing a street, he is not guilty of contributory negligence merely because he does not run upon seeing an automobile approaching.
“Whether a pedestrian crossing a street at an intersection has used ordinary care to avoid injury from automobiles is ordinarily a question for the jury.”
Another specification of error made by defendant is that the court erred in sustaining objections to certain questions upon the cross-examination of the plaintiff. We have searched the record and find only one objection sustained to a question asked plaintiff on cross-examination. It was argumentative, and objection to it was properly sustained.
We have concluded, therefore, that the demurrer of the defendant to the evidence of plaintiff should have been overruled and the court was correct in granting plaintiff a new trial.
The judgment of the trial court is affirmed.
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The opinion of the court was,delivered by
Harvey, J.:
This is a criminal prosecution for being a persistent violator of the intoxicating liquor law. Defendant was found guilty on two counts, and he has appealed.
Appellant contends that the court erred in permitting the county attorney to make prejudicial statements to the jury in his final argument. Counsel, in his argument, made statements as to what certain witnesses had testified. Defendant’s counsel objected that the testimony was incorrectly quoted. The court, at the request of defendant, had the stenographer read from his notes the testimony of the witnesses mentioned. This reading disclosed that the witnesses had not testified as counsel for the prosecution had quoted them, whereupon the court admonished the jury that if any witness had testified as counsel for the state had quoted, they should disregard it — that such testimony was improper; and further, that if counsel for the state, or either side, misquoted any of the testimony the jury should disregard such statements of attorneys and be guided only by the positive evidence of the witnesses who testified on the witness stand. This incident, and the way it was handled by the trial court, would seem to be more favorable to the defendant than otherwise. It amounted to a reprimand to counsel for the prosecution for the inaccurate statement of the testimony, and was a specific admonition to the jury not to consider any statements of counsel with respect to the testimony which did not accord with the testimony given.
Appellant complains of this admonition of the court as being an instruction given after argument for defendant in the case had closed, and argues that the statute provides when instructions should be given, which should be before the argument. But naturally a question of this kind would have to be dealt with when it arose. There was no error in this respect.
A witness on behalf of defendant was absent from the state and her affidavit was read as her deposition. When this affidavit was read counsel for the prosecution stated that the- state admits that if the witness were present she would testify as stated in the affidavit, “but the state does not admit the truth of the matter testified to.” Counsel for defendant moved to strike out the remarks of counsel. This was overruled, the court stating that it saved him from instructing the jury on that point. Appellant complains of the quoted remark of counsel for the prosecution and of the ruling of the court thereon. There is no merit in this complaint. It was proper — in fact essential — that the jury at some stage of the trial should understand that the contents of the affidavit of the absent witness were received in evidence as-her testimony, and that when the prosecution consented it should be so received there was no consent with reference to the truth of the statement any more than there would be if the witness had been called by the 'defendant and had testified.
Appellant contends he should be granted a new trial for the reason that he was prepared to meet the claim of the state that whisky was purchased from the defendant at some time between 10:45 and 11:15 p. m. of a certain day, and to his surprise the witness who testified to the sale fixed the time between 9 and 10 o’clock. There is nothing in the record from which appellant can predicate error in this respect. No contention was made during the trial that he was so surprised, nor was any request made for a continuance or for. time to secure other witnesses by reason thereof. It is said in the brief for the state that there had been a preliminary examination at which testimony had been given and the hour of the sale had been testified to. If so, the defendant was fully advised of it before he went into trial. In any event the record discloses no error on this point.
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The opinion of the court was delivered by
Harvey, J.:
This is an action in damages alleged to have resulted from the breach of a parol contract of employment for personal services. The trial court sustained a demurrer to plaintiff’s evidence, and he has appealed.
The legal question presented is whether the case is controlled by the statute of frauds (R. S. 33-106). In other words, was the parol contract relied upon one which could not be performed within a year?
In that portion of the petition necessary to be considered on this point it is alleged, in substance, that on May 27, 1926, plaintiff orally contracted with defendant’s representative to work on defendant’s farm as foreman at a salary of $85 per month, with a house and certain other things furnished; that this contract of employment was for one year from August'20, 1926; that on about that date he moved to defendant’s farm, and that after he had moved to the farm, and on the same day, defendant’s representative “verbally employed him to take charge of the dairy department of said farm at a salary of $100 per month for the first month and thereafter for a period of eleven months at $125 per month,” a house and certain other things to be furnished. The petition does not allege when the year of employment in charge of the dairy department was to begin. The petition contained further allegations of the breach of the contract by defendant, without fault of plaintiff, and of the plaintiff’s damages. The-answer was a general denial.
• In this case plaintiff does not rely upon the contract made May 27, 1926, for the year beginning August 20, at $85 per month, hence we need not consider whether, under the statute of frauds, an action would lie for the breach of this contract. Plaintiff relies upon the alleged breach of'the parol contract made August 20, 1926, for employment for one year at a salary of $100 per month for the first month and $125 a month for eleven months. While the petition does not allege when that year of service was to begin, the evidence of plaintiff and other witnesses in his behalf makes it clear that under this contract, made August 20, 1926, the term of employment for one year was to begin September 1, 1926, and extend to September 1, 1927. It was therefore an agreement, not in writing, which could not be performed “within the space of one year from the making thereof,” and because of the statute of frauds (R. S. 33-106) an action for its breach could not be maintained. In this situation the court properly sustained a demurrer to the evidence. The ruling is supported by the following authorities: (27 C. J. 174, 176, 186, and cases there cited; see, also, Wolf v. Dozer, 22 Kan. 436; Osborne v. Kimball, 41 Kan. 187, 21 Pac. 163; Jamison v. Christman, 95 Kan. 131, 148 Pac. 247; Tredick v. Birrer, 109 Kan. 488, 200 Pac. 272.)
Commenting on cases relied upon by appellant, here the services contracted for did not admit of full performance within a year from the making of the contract, and do not fall within the rule stated in Sutphen v. Sutphen, 30 Kan. 510, 2 Pac. 100. In Sugar Co. v. Taylor, 37 Kan. 435, 15 Pac. 586, service began April 1, 1884. The contract was made April 10 for a year from the time'the service began, and it was properly held that the service could be perfomed within a year from the making of the contract. In Aiken v. Nogle, 47 Kan. 96, 27 Pac. 825, the contract was for a year beginning the date of the contract, and it was held that the services could be performed within a year. In Heery v. Reed, 80 Kan. 380, 102 Pac. 846, the contract admitted of full performance within a year. Moreover, it had been performed — the action was one for compensation for services performed. In Pierson v. Milling Co., 91 Kan. 775, 139 Pac. 394, the performance of the contract did not necessarily extend over a year. In Millikan v. Shoe Co., 95 Kan. 327, 148 Pac. 660, the question of the application of the statute of frauds was not presented. Hence, none of the cases relied upon support appellant's position.
The judgment of the court below is affirmed.
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The opinion of the court was delivered' by
Hutchison, J.:
This is an appeal by the plaintiff from an order of the trial court granting an extension of the eighteen-months period of redemption under the provisions of the second moratorium law of 1935 (ch. 22,6).
It involves only one feature in addition to those considered and discussed in the case of the Kansas City Life Ins. Co. v. Anthony, decided December 7, 1935, and reported in 142 Kan. 670, 52 P. 2d 1208, and that is the fact- that after the eighteen-months period of redemption had expired the defendant mortgagor filed in the district court of the United States, first division, his application for composition or extension under section 75 of the bankruptcy act, and on that account the plaintiff claimed the state district court was without jurisdiction while that application was pending in the federal court. The appellant, however, in its reply brief, filed since recent rulings on such matters, limits its grounds for error to the invalidity of the moratorium act (Laws 1935, ch. 226). So the matters now and here involved are the same as those in the Anthony case, and will not require further discussion.
The judgment is reversed.
Harvey, J., dissenting.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one of ejectment. The land involved is a small portion of the right of way of the Blue Valley branch of the Union Pacific Railroad Company, a short distance north of the connection with the main line at Manhattan. Plaintiff prevailed, and defendant appeals.
The history of the case is told by the trial court’s findings which are, in part, substantially as follows:.
That in 1872 Manhattan was a city of the third class and on November 22 of that year passed an ordinance granting to the Manhattan & Northwestern Railroad Company a right of way 66 feet wide through the city on the wést side of the Blue river, according to a profile on file in the office of the city clerk. That from 1887 to 1912 the plaintiff and its predecessors owned and operated a rail road along the center line of the 66-foot right of way. That such track was the main line of the Blue Valley branch of the plaintiff. That for the operation of its trains, for drainage purposes and for the maintenance of its trackage a strip of land 20 feet wide on either side of the center of said track is (and was) necessary for the plaintiff’s and its predecessors’ use and occupancy; that the plaintiff and its predecessors did in fact have the occupancy and use of said 20-foot strip of land on either side of the center of said track at the< point in controversy in this action, and were in the open, notorious, exclusive and adverse possession thereof.
That in 1912 the Purity Milling Company was the owner and holder of the fee title to the land now claimed by the defendant; that through various title owners, successors to the Purity Milling Company, the title to the real estate now claimed by the defendant finally lodged in the Liberty Milling and Ice Company.
That on November 23, 1921, the district court of Riley county appointed one Hal E. Harlan as receiver of the Liberty Milling and ■Ice Company. That in conformity to the orders of said court the receiver did on the 4th day of January, 1923, make, execute and deliver his receiver’s deed to the real estate now claimed by defendant to one E. L. Craig, which deed was approved by said court; and that said E. L. Craig thereafter deeded to defendant all of the real estate now claimed by defendant, a part of which is in controversy in this action.
That on October 23, 1912, an agreement was made and entered into between the plaintiff and the Purity Milling Company, through whom defendant acquired title, wherein and whereby the Purity Milling Company was by the plaintiff herein given permission to occupy with its coal sheds a strip of ground 16 feet in width off of the west side of the present 66-foot right of way, in the alley located between Humboldt and Leavenworth streets, and the alley located between Leavenworth and Osage streets, in the city of Manhattan, and in consideration of this license to use the west 16 feet of the claimed 66-foot right of way the Purity Milling Company deeded to the plaintiff herein a strip of land 16 feet in width opposite the location of the coal sheds and adjoining the claimed right of way on the east; and that the defendant herein is now occupying the said 16-foot strip on the west side of plaintiff’s claimed 66-foot right of way with coal sheds that were at said time built thereon.
That some time subsequent to 1912 the main-line railroad track of the plaintiff herein was moved easterly from its original location to its present location. That some time subsequent to 1912 an addition was built to the coal sheds which then existed upon the claimed right of way of the plaintiff, and extensions made thereto, to and across the tract of ground where, in 1912, the main line of track of the plaintiff was located; and this extension of the coal sheds and the tract of ground occupied by such extension, is now in controversy in this action.
That on May 25, 1921, the Liberty Milling and Ice Company, successor to the Purity Milling Company, accepted a lease from the Union Pacific Railroad Company, plaintiff herein, which lease was introduced in evidence. This lease covers the extension of the coal sheds beyond the 16-foot strip on the westerly side of plaintiff’s claimed 66-foot right of way. That such lease ran for a period of five years and was in full force and effect on January 4, 1923, on which date Hal E. Harlan, as receiver of the Liberty Milling and Ice Company, executed and delivered a receiver’s deed conveying the real estate now claimed by defendant to one E. L. Craig. That E. L. Craig later, and before expiration of the term of said lease above mentioned, conveyed by quitclaim deed the property covered by the receiver’s deed, to the defendant herein. That the agreement above referred to and entered into between the plaintiff and the Purity Milling Company, as well as the lease above referred to, entered into on May 25, 1921, between the Liberty Milling and Ice Company and plaintiff herein, were never filed or recorded in the office of the register of deeds of Riley county, Kansas.
That while the evidence is silent upon the question of whether the commissioners appointed pursuant to the terms of ordinance No. 61 of the city of Manhattan, Riley county, and passed on November 22, 1872, for the purpose of determining and assessing the damage to property that should be condemned as a right of way and to be used in the construction and operation of said railroad, the court found that the plaintiff herein and its predecessors in title, having subsequently thereto built and operated a line of railroad through the city of Manhattan at such point, and having built their main line of track in the center of the 66-foot right of way granted by said ordinance, that the duty so imposed upon said commissioners was performed as provided in said ordinance and as provided by law.
That while in the year 1912, or at some time immediately subsequent thereto, the plaintiff herein did move- its main-line track from the center of the claimed 66-foot right of way eastward for some distance, that said act of moving the main-line track did not amount to an abandonment by the plaintiff of any claimed right of way which had theretofore been granted to said plaintiff, or which was acquired by adverse possession and usage. That as shown by the evidence, at the time of such removal and subsequent thereto, the plaintiff claimed the right to the use and occupancy of the land upon the extreme west side of said 66-foot right of way and actually entered into contracts with respect thereto with the Purity Milling Company and the Liberty Milling and Ice Company, predecessors in title to the defendant.
The court concluded that the plaintiff is the owner and entitled to the use and occupancy of the real estate in controversy and entered judgment accordingly.
The defendant contends that the court erred in admitting evidence of ownership of the right of way without having alleged it in its petition. The contention cannot be sustained. In Abercrombie v. Simmons, 71 Kan. 538, 81 Pac. 208, it'was said in the opinion:
“A right of way, although commonly designated as an easement, is an interest in land of a special and exclusive nature, and of a high character. In speaking of its character the supreme court of the United States said:
“ ‘A railroad right of way is a very substantial thing. It is more than a mere right of passage. It is more than an easement. We discussed its character in New Mexico v. United States Trust Co., 172 U. S. 171, 19 Sup. Ct. 128, 43 L. Ed. 407. We there said (p. 183) that if a railroad’s right of way was an easement it was “one having the attributes of a fee, perpetuity and exclusive use and possession; also the remedies„of the fee, and, like it, corporeal, not incorporeal, property.”’ (Western Union Tel. Co. v. Penn. R. R. et al., 195 U. S. 540, 570, 25 Sup. Ct. 133, 141, 49 L. Ed. 312.)” See, also, Donovan v. Pennsylvania Company, 199 U. S. 279, 50 L. Ed. 192; Rio Grande W. Ry. v. Stringham, 239 U. S. 44, 60 L. Ed. 137.
So far as its use and occupancy are concerned the owner of the railroad right of way holds it for all practical purposes the same as a fee title, and since a railroad’s right of way has the attributes of a fee title its owner has in some respects at least the remedies of a fee title owner. After the issues were settled the petition contained a description of the land and a blue print showing it to be within the bounds of the plaintiff’s right of way. We are of the opinion that the allegations of the petition were sufficient, and evidence of title to the right of way was properly received.
“Ordinarily it is enough fairly to inform the defendant what the suit is about, and even if inconsistencies appear they are not fatal if on any theory the plaintiff states a cause of action; and whether or not the petition is technically good becomes less material after a full trial on the merits in which the subject of the controversy has been thoroughly investigated.” (Trousdale v. Amerman, 124 Kan. 614, syl. ¶ 2, 261 Pac. 826.)
A contention by the defendant that he had possession of the land in controversy for fourteen years cannot be sustained. The deed through which he claims appears to have been executed and delivered in October, 1923, while his answer shows the Purity Milling Company, through which he claims, recognized plaintiff’s 66-foot right of way and occupied the west 16 feet thereof by permission of the' plaintiff. There was evidence that the plaintiff had occupied the 66-foot right of way since 1885; that the Liberty Milling and Ice Company occupied a portion of the right of way now in dispute under a lease from the plaintiff, its right of way thereby being again recognized in May, 1921; that the Purity Milling Company, had recognized the plaintiff’s right to the 66-foot right of way in 1921. The land on which the defendant’s coal sheds were located was acquired through these two companies. The defendant’s possession of the tract in controversy after October, 1923, and refusal to vacate or to take an industrial lease thereto, appears to be the only adverse claim to the plaintiff’s right of way since 1885. His title was acquired by quitclaim deed from the purchaser at a foreclosure sale of the property owned by the Liberty Milling Company. The Liberty Milling Company, as above noted, recognized plaintiff’s right of possession to the tract in question, an undisputed possession existing for more than fifteen years. In Anderson v. Burnham, 52 Kan. 454, 34 Pac. 1056, this court held:
“Possession of land by an adverse occupant for more than fifteen years, which is actual, notorious, continuous, and exclusive, will give title thereto, although such possession is entirely destitute of color of title.” (Syl. ¶ 1, See, also, Pratt v. Ard, 63 Kan. 182, 65 Pac. 255.)
The defendant as successor to and claimant under the Liberty Milling Company through Craig, who was the purchaser at the receiver’s sale, acquired only the interest which the milling company had in the land at the time — no more. He took the land subject to all rights and equities which could be set up against the milling company. (See R. S. 60-3465; Culp v. Kiene, 101 Kan. 511, 168 Pac. 1097; Markley v. Investment Co., 67 Kan. 535, 73 Pac. 96.)
Various other questions argued in the briefs need no elucidation here. We are compelled to conclude that the trial court reached a proper decision.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
Carl Millheisler appeals from a judgment setting aside and holding for naught an amended answer and cross petition filed by him against his codefendants C. C. Zimmerman and Thomas I. Sproul.
This action was commenced by the plaintiff to recover from C. C. Zimmerman and Thomas I. Sproul $507.13 insurance premiums collected by them as agents for the plaintiff and which premiums had not been remitted to the plaintiff. Afterward, on application of Zimmerman, Millheisler and Murphy were made additional parties to the action. Zimmerman then answered the petition of the plaintiff and filed a cross petition against Millheisler and Murphy. In that cross petition Zimmerman alleged that Millheisler and Murphy, under contract with Zimmerman and Sproul, had purchased from Zimmerman his interest in the insurance business and had agreed that Zimmerman should be thereafter under no liability for the firm debts or obligations, all of which were assumed by the new firm consisting of Thomas I. Sproul, Carl Millheisler and Andrew H. Murphy. Millheisler and Murphy then filed an answer and cross petition to the cross petition of Zimmerman, in which they alleged that they had purchased the interest of Zimmerman in the insurance business for the sum of $6,000; and that Millheisler and Murphy were induced to purchase that interest by the fraud of Zimmerman, which consisted of misrepresentations, a number of which were set out in their answer and cross petition to the answer, and cross petition of Zimmerman. Millheisler and Murphy alleged that they had tendered to Zimmerman all the property which they had received from him under the contract, and had demanded of him the return of the $6,000 which had been paid to hirp, and alleged that the tender and demand were refused and that the tender had been kept good. Millheisler and Murphy also alleged that they had been damaged in the sum of $6,000, and that Zimmerman was indebted to them in the sum of $6,000. They asked that the plaintiff take nothing as against them, and that they recover judgment against Zimmerman for the sum of $6,000. Issues were joined on that answer. The cause was afterward tried before a jury, but the jury did not agree. No judgment was rendered. On that trial Millheisler in open court elected to stand upon his cause of action for rescission.
Afterward, an amended answer and cross petition to the cross petition of Zimmerman was filed by Millheisler, in which he alleged that he and Murphy had purchased the interest of Zimmerman in the insurance business of Thomas I. Sproul and C. C. Zimmerman for which $6,000 had been paid and that fraud had been practiced on Millheisler and Murphy to bring about the purchase. The amended answer and cross petition did not allege a tender of what had been received by Millheisler or Murphy or both of them, but did affirmatively allege—
“That upon the discovery of the fraud complained of herein, which was less than two years before this amended cross petition was filed herein, [Millheisler] ratified said contract and thereby lost the right of rescission.”
The amended answer and cross petition asked for judgment against C. C. Zimmerman in favor of Carl Millheisler for the sum of $3,000. Zimmerman filed a motion asking that the court set aside, hold for naught, and not require him to answer the amended answer and cross petition of Millheisler for the reason that it attempted to set forth a different and inconsistent cause of action from that set out in his first answer and cross petition which asked for the rescission of the contract and for the recovery of what had been paid, while the amended answer and cross petition alleged an affirmance of the contract and asked for damages. The motion also stated that at the trial Millheisler elected to stand upon his cause of 'action for the rescission of the contract. The motion was sustained on the ground that -there had been an election of remedies by Millheisler and that he had elected in open court to stand on his cause of action for rescission. The appeal of Millheisler is from the order sustaining that motion.
The question presented is not a new one. In Ireland v. Waymire, 107 Kan. 384, 386, 191 Pac. 304, this court declared that—
“It has been consistently held throughout a long line of decisions in this state, that where a party having the right to choose one of two inconsistent remedies, deliberately elects to follow one of them, with knowledge or the means of knowledge of the facts, he is effectually barred from thereafter making a new election and pursuing the other remedy. (Smith v. McCarthy, 39 Kan. 308, 18 Pac. 204; Plow Co. v. Rodgers, 53 Kan. 743, 37 Pac. 111; Evans v. Rothschild, 54 Kan. 747, 39 Pac. 701; National Bank v. National Bank, 57 Kan. 115, 45 Pac. 79; Burrows v. Johntz, 57 Kan. 778, 48 Pac. 27; Blaker v. Morse, 60 Kan. 24, 55 Pac. 274; Bank v. Haskell County, 61 Kan. 785, 60 Pac. 1062; Railway Co. v. Henrie, 63 Kan. 330, 65 Pac. 665; Remington v. Hudson, 64 Kan. 43, 67 Pac. 636; James v. Parsons, 70 Kan. 156, 78 Pac. 438; Ullrich v. Bigger, 81 Kan. 756, 106 Pac. 1073.) The doctrine is an application of one phase of the law of estoppel which prevents one who comes into court asserting or defending his rights from taking and occupying inconsistent positions.”
To these authorities may be added Morse v. Grain & Ice Co., 116 Kan. 697, 701, 229 Pac. 366, and Pitt v. Keenan, 124 Kan. 810, 262 Pac. 567.
Under these authorities, the judgment of the district court must be and is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This action involves the right of a railroad company to conduct motor-carrier operations in this state through a contract carrier without holding itself out as a public motor earner, but under circumstances which in effect constitute a public motor-carrier business, in competition with other public carriers, without first obtaining from the corporation commission of this state a certificate of convenience and necessity.
The occasion for this controversy and the pertinent facts concerning it may be ascertained from a portion of the order of the state corporation commission. It.reads:
“By the commission: This proceeding arises on a citation' issued by the state corporation commission upon the complaint of the Southern Kansas Stage Lines Company, alleging that the Missouri Pacific Railroad Company is engaged in transporting goods in intrastate commerce between Arkansas City, Kan., and El Dorado, Kan., by truck over the highways without a permit. The commission on its own motion included in said citation against said Missouri Pacific Company operations by truck on highways between Atchison, Kan., and Topeka, Kan., also between Salina and Concordia and between other points in Kansas, and required said railroad company on due notice to appear and give evidence of its operations by motor vehicle, if any, and show cause why it should not cease said operations if operating illegally, or comply with the motor-carrier laws of the state of Kansas.
“The matter was heard by the commission on June 11, 1934. The complainant, the Southern Kansas Stage Lines, appeared; the respondent, the Missouri Pacific Railroad Company, appeared and offered evidence of its operations by motor vehicle; and the Atchison, Topeka and Santa Fe Railway Company, the Union Pacific Railroad Company, and the Chicago, Rock Island and Pacific Railway Company appeared by counsel as friends of the commission. After hearing the testimony the case was taken under advisement.
“The pertinent facts as shown by the evidence are as follows: The respondent, the Missouri Pacific Railroad Company, is a corporation duly organized and incorporated under and by virtue of the laws of the state of Missouri for the 'purpose of purchasing lines or railroad . . . and property appertaining thereto . . . and of maintaining and operating said lines of railroad, and of constructing, maintaining and operating a railroad for public use in the conveyance of persons and property . . in Missouri and Kansas and other states. While the record in this case does not so disclose, the commission will take notice of the fact that said railroad company is duly authorized to do and does a common-carrier business by rail in the state of Kansas.
“On May 13, 1933, a contract-carrier permit was issued by the commission to Henry Blake, doing business as Blake Transport Company (permit No. 21-87). This permit was issued prior to the effective date of the law requiring the commission to hear applications for contract-carrier permits.
“On March 1, 1934, the Missouri Pacific Railroad Company entered into a contract with H. W. Blake whereby the said Blake agreed to load into his truck ‘any and all freight, baggage, mail and express tendered to contractor (Blake) by Pacific Trustees’ (Missouri Pacific Railroad), and transport the same to said company's depot and unload from said trucks at the stations designated by the agent of said railroad. Said Blake agreed to furnish forces and equipment for the proper handling and movement of said freight, baggage, mail and express, and make such number of trips each day as might be agreed upon, on such schedules as the railroad company ‘shall, from time to time, deem necessary to promptly and efficiently handle said business required to be moved; stopping en route on each trip at the depots specified by said company, for the purpose of picking up and/or delivering any such freight, baggage, mail and express’ which said company desired moved.
“Said Blake further agreed to hold said railroad company harmless in any operation of the trucks, from injury or damage caused by said transportation over the highways, and further agreed to comply with all applicable municipal, state and federal laws with respect to the operation of trucks, together with payment of all taxes, fees and charges, and furnish bond or insurance required by said laws incident to such operation. Said company agreed, so far as possible, to furnish to said Blake transportation for himself and employees, to be used on the railroad, so far as the same was necessary to perform properly the work covered in said contract.
“For the services rendered by the said Blake said company agreed to pay monthly, not later than the twentieth day of each calendar month, in full for the services rendered by said Blake during the preceding month, ‘such rate or rates per mile for each trip made by each of contractor’s (Blake’s) trucks hereunder, and for such mileage per trip as provided in attached exhibit or addenda.’ Attached to said contract in an addenda is set forth nine separate routes over which said Blake shall transport property under this contract, said routes ranging in length from fifty miles to three hundred seventy-three miles, for which said company agreed to pay Blake on each of said operations the sum of 15 cents or 15.5 cents per mile. These routes include the one on which the citation was issued. This contract and addenda was submitted in evidence and was the first time that it had been before the commission for consideration.
“The Blake Transport Company hauls for no one but the Missouri Pacific Railroad Company and does no pick-up or delivery service for the Missouri Pacific Railroad Company or anyone else. All shipments handled by the Blake Transport Company move under the legal rates and tariffs published by the Missouri Pacific Railroad Company under regular waybills or bills of lading made out by the Missouri Pacific agents at their regular railroad stations. The property moved by the Blake Transport Company by motor vehicle is of three types: First, that which moves from one station to another station of the Missouri Pacific on the same line; second, that which moves from one station on the Missouri Pacific to another station on another line of the Missouri Pacific; and third, that which moves from a station of the Missouri Pacific Railroad Company to a connecting carrier such as the Chicago, Rock Island and Pacific Railway or the Union Pacific Railroad Company. All of the transactions of the shipper are with the Missouri Pacific Railroad Company, and all of the transactions of the Blake Transport Company are with the Missouri Pacfic Railroad Company. The shipper in most instances does not know that his freight is being moved en route by motor truck.
“On a separate citation Henry Blake' was cited to appear on the same date as the respondent herein. Upon request of his attorney, who is also attorney for the Missouri Pacific Railroad Company, and upon his statement that all of the points could be raised in this case, the commission continued the citation against Blake.”
The commission made the following findings and order:
“The commission, therefore, finds that the railroad company and Henry Blake, doing business as Blake Transport Company, are engaged in the transportation of property by motor vehicle on the highways as a common carrier without having proved public convenience and necessity, and further finds that the present operations by said parties on the highway are not authorized by law or the rules and regulations of this commission, and that said parties should desist from further operations on the highways under said contract.
“The operation under the contract; with Blake does not comply with the rules and regulations of the commission in a further respect. The commission after formal hearing duly promulgated minimum rates for contract carriers below which said contract carriers cannot legally charge. These minimum rates are based, on classification, weight and distance. Under the rate fixed in the contract between the Missouri Pacific and Blake there is no way of ascertaining whether or not this rate is being violated, inasmuch as the rate' between the Missouri Pacific and Blake is based on mileage alone, which has no relation, so far as the record shows, to tonnage moved.
“The commission, therefore, finds that under the operations by motor vehide by the Missouri Pacific Railroad Company and the Blake Transport Company it is impossible to ascertain whether or not there is compliance with the minimum-rate order pertaining to contract carriers heretofore promulgated in Docket No. 14484.
“For all these reasons the commission finds that the Missouri Pacific Rail road Company should cease and desist from offering and delivering its freight to Henry Blake, doing business as the Blake Transport Company, holder of contract-carrier permit No. 21-87, and should refrain from transporting said property by motor vehicle for hire under contract-carrier permit.
“It is therefore by the commission ordered that said Missouri Pacific Railroad Company cease and desist from offering and delivering freight to Henry Blake, holder of a contract-carrier permit, doing business as Blake Transport) Company, and that the Missouri Pacific Railroad Company, before engaging in operations by motor vehicle either directly or indirectly, comply with the motor-carrier laws of the' state of Kansas and the rules and regulations of this commission pertaining to the transportation of motor vehicles upon the highways of the state of Kansas.”
Respondent railroad company filed its application with the commission for a rehearing, which was denied. It filed its application in the district court of Atchison county for a review of the proceedings before the commission. The trial court made findings of fact, conclusions of law and set aside the order and decision of the commission on the ground it was unlawful and unreasonable, and that respondent in the movement of its freight, through a contract carrier duly authorized under the laws of this state, was acting within its corporate rights as granted to it by R. S. 1933 Supp. 66-501a and R. S. 1933 Supp. 66-501b. From those findings, conclusions of law and order, the commission and The Southern Kansas Stage Lines Company have appealed.
Respondent is authorized to transact business in this state as a common carrier by rail. A portion of one of its lines runs from El Dorado to Arkansas City. That service, however, is not by direct but by a circuitous route intended to serve the trade territory through which it passes. There is a direct line of railroad operating between El Dorado and Arkansas City, and there has also been granted to complainant, a common motor carrier, a certificate of convenience and necessity to operate directly between these points. Complainant and the commission contend, if respondent desires to transact a common motor-carrier business directly between these points, it is required to obtain from the commission a certificate of convenience and necessity. (R. S. 1933 Supp. 66-1,114; R. S. 1933 Supp. 66-501a; R. S. 1933 Supp. 66-501b.) They insist the motor-carrier act gives the commission authority to determine whether additional transportation facilities are required. They contend this is not only true now as to common motor carriers, but likewise applies to the issuance of contract-carrier permits; that a hearing must now be had on application for a contract-carrier permit and all operating common carriers and those who have applied for a certificate to operate as common carriers in the territory proposed to be served, must all be notified and be given an opportunity to be heard on such application. (R. S. 1933 Supp. 66-1,112b.) The pertinent portion of that statute provides:
“The commission is hereby vested with power and authority t.o grant or deny the permit prayed for, or to grant it for the partial exercise only of the privilege sought, and may attach to the exercise of the privilege granted by such permit such terms and conditions as in its judgment vnll cany out the purposes of this act." (Italics inserted.)
It clearly appears one of the main purposes of the act is to protect common carriers by rail'and common carriers by motor vehicle alike in territory where there exists sufficient common-carrier service to adequately, meet the public needs. To permit respondent in its service as a common carrier by rail to add a short-cut motor service over a direct line already served by rail and motor carriers, without obtaining a certificate to do so, would of course defeat the obvious intent and purpose of the act. The evidence plainly discloses the service of the contract carrier, Blake, is a part of the common-carrier service conducted by respondent. The shipper and Blake alike deal exclusively with the railroad. So far as the consignor ordinarily knows his shipment is delivered to consignee entirely by rail. Under the terms of the contract between respondent and Blake, respondent, not Blake, determines the movement of freight, baggage, mail and express according to its own schedules, routings, stops, etc. It fixes his schedules and routings in the same manner as it fixes schedules, routings and stops for its trains. That is, Blake complies strictly with its directions and mandates. Respondent completely controls and maintains sole supervision of Blake’s trucking business. In other words, it has made the truck operation a component part of its common-carrier business.
In the very similar case of N. Y. C. Rd. Co. v. P. U. C., 121 Ohio St., 588, 170 N. E. 574, it was said:
“So far as the contract or contracts between The A. B. Peek Company and the respondent are concerned they speak for themselves. By these contracts the railroad company has secured to itself the exclusive use of these motor-propelled vehicles in its common-carrier business. While it does not own the trucks and trailers it does completely .control their operation. It directs the property to be conveyed by them; it determines the times when and the routes over which the trucks shall travel; it retains complete supervision of their operation; the property transported is at all times under the control of the respondent; the transportation is a consummation of the contracts between the respondent and the shippers; the property is handled through the use of bills of lading and waybills exactly as any other freight which moves upon the respondent’s road. In short, the respondent has made this truck operation a part of its common-carrier business.” (p. 592.)
In the instant case respondent in effect is operating a common motor-carrier business on the highways of the state without a permit. To be sure it receives the shippers’ goods as a “public carrier by rail,” but it conducts that common-carrier business by truck or by rail as its convenience dictates.
That respondent is an authorized public carrier by rail is admitted. It contends it has authority to engage in the transportation business by highway without obtaining a certificate of convenience and necessity from the commission. Our attention is directed to R. S. 1933 Supp. 66-501a and 66-501b. Those sections provide:
“Every railroad corporation now or hereafter organized under the laws of this state shall, in addition to the powers now conferred by the statutes of this state, have power to engage in transportation of persons, property, and mail by highway transport, air transport, and water transport, and every railroad corporation organized under the laws of any other state or territory and now or hereafter lawfully engaged in the operation of a railroad in this state shall have like powers in this state: Provided: That the exercise in this state of any powers hereby granted in all things shall be subject to all lawful requirements of the statutes of this state now or hereafter enacted with reference to certificates of convenience and necessity, permits, and public regulation in the same manner as like business conducted by private individuals or by corporations other than railroad corporations: And provided further, That any railroad corporation organized under the laws of this state shall exercise in any other state any power hereby granted only in conformity with and to the extent permitted by the laws of such other state.” (R. S. 1933 Supp. 66-501a.)
“Any such railroad corporation may exercise in one or more of the following methods any power hereby granted: (a) by itself operating equipment owned, leased, and otherwise held or controlled by it; (b) through operations conducted by a corporation owned or controlled in whole or in part by such railroad corporation through stock ownership or otherwise, with equipment owned, leased, and otherwise held or controlled by either or both of such corporations; (c) by operations conducted under contract therefor by a corporation independently owned or controlled, or by any individual or association of individuals, in either case with equipment owned, leased, and otherwise held or controlled by. either or both of the parties to such contract.” (R. S. 1933 Supp. 66-501b.)
Blake had obtained a permit as a contract carrier on May 13, 1933, under the old law, R. S. 1933 Supp. 66-1,115, before the new law became effective which required a hearing on the application for a contract-carrier permit. (R. S. 1933 Supp. 66-1,112b.) Respondent claims it was authorized to contract with Blake and operate as it is doing. But the pertinent portions of R. S. 1933 Supp. 66-1,114 provide:
“It shall be unlawful for any public motor carrier to operate as a carrier of intrastate commerce within this state without first having obtained from the public service commission a certificate of convenience and necessity. . . . If the commission finds from the evidence that the proposed service or any part thereof will promote the public convenience and necessity, the commission shall issue the certificate; otherwise such certificate shall be denied. Before granting a certificate to a public motor carrier, the commission shall take into consideration other existing transportation facilities in the territory for which a certificate is sought, and in case it appears from the evidence that the service furnished by existing transportation facilities is reasonably adequate, the commission shall not grant such certificate.”
These various statutes must be construed together. Respondent had no authority under its charter as a carrier by rail to use the state highways. Provisions of R. S. 1933 Supp. 66-501a and 66-501b, are in the nature of enabling acts. They supply the railroads with the desired authority to engage in motor-carrier business on the public highways. Obviously the legislature did not intend a railroad should be permitted to operate motor vehicles on the highways irrespective of the rights of other public carriers by rail or highway. This intent is also clearly disclosed by the proviso portion of the particular statute on which respondent relies. (R. S. 1933 Supp. 66-501a.) That proviso reads:
“That the exercise in this state of any powers hereby granted in all things shall be subject to all lawful requirements of the statutes of this state now or hereafter enacted with reference to certificates of convenience and necessity, permits, and public regulation in the same manner as like business conducted by private individuals or by corporations other than railroad corporations.”
In South End Motor Coach Co. v. Cleveland Ry. Co., P. U. R. 1930 B, p. 126, the Ohio public utilities commission held as follows:
“The commission has jurisdiction to determine whether or not a motor-propelled vehicle is being operated within the state in such a manner as to make the operator thereof a motor transportation company subject to regulation provided by law, p. 127.
“A street railway company has no more right to use the public highways to conduct a common-carrier business through the operation of motor buses, without first proving the convenience and necessity therefor and paying the required tax, than any other person or corporation, notwithstanding an alleged private contract with an amusement park company providing for the transportation of persons patronizing such a resort, p. 130.” (Syl. JU 1, 2.)
In .the course of the opinion it was said:
“The Cleveland Railway Company transported the public over this route and it cannot avoid the jurisdiction of the public utilities commission of Ohio by a private contract with another party. If this can be done, then there is no bus law in Ohio, and the state of Ohio would be compelled to maintain its highways and keep the same in repair for the use of companies operating as common carriers and the public utilities commission would be without authority.
“As far as the contract between the Cleveland Railway Company and the Geauga Lake Amusement Company is concerned it speaks for itself, but it cannot set aside the laws of the state of Ohio, neither can it bind the general public of the state of Ohio nor the public utilities commission of Ohio.” (p. 130.)
In an opinion, on the application of the New York, New Haven & Hartford Railroad Company, before the Massachusetts department of public utilities, P. U. R. 1926 B, p. 338, it was held:
“A railroad corporation must secure from the department not only its approval of the railroad’s engaging in motor-vehicle business and its finding as to the public convenience and necessity of the specific routes under chapter 125 of the Massachusetts Acts of 1925, but must also obtain from the department a certificate declaring that public convenience and necessity requires such operation under the provisions of chapter 280 of the Acts of 1925.” (Syl. If 4;)
The trial court held the order of the commission in the instant case was unlawful and unreasonable. In this connection the supreme court of Missouri, on appeal from the ruling of the public service commission of Missouri, in the case of State, ex rel. Railroad Co., v. Publ. Serv. Comm., 327 Mo. 249, 37 S. W. 576, P. U. R. 1931 D, held:
“Where there arc duly certified motor-bus carriers already in the field furnishing adequate and satisfactory service, and willing and able to furnish any additional facilities and service which may be needed or which the public service commission may require, the order of the commission denying to a new motor-bus carrier a certificate of convenience and necessity, entitling it to enter the same field in unnecessary and perhaps destructive competition with such existing carriers, is neither unlawful nor unreasonable.” (Syl. If 2.)
In the course of the opinion the court said:
“As argued by respondents, the railroads have helped greatly to develop the country, they have large investments, can assure permanency of service and satisfaction for injuries from accidents, and they pay large sums in taxes. But, while such is true, other duly authorized public utilities are also entitled to consideration. As said in Monongahela West P. S. Co. v. State Road Commission (W. Va.), 139 S. E. 744, 748: ‘The holder of the permit over the established route is entitled to the same protection and consideration as any other public utility.’ To hold otherwise would be unwise policy as well as unjust.” (p. 257.)
We have not overlooked the authorities cited by respondent. 10 C. J. 39, 65; Graham v. Macon, D.. & S. R. Co., 120 Ga. 757, 49 S. E. 75; Green Bay, etc., R. R. Co. v. Union, etc., Co., 107 U. S. 98, 2 S. Ct. 221. These cases are not in point on the specific question here involved.
Respondent has never obtained a certificate of necessity and convenience. Having determined that respondent is in effect conducting a common-carrier business by motor vehicle it necessarily follows it must obtain a common-carrier certificate.
There is an additional reason for regulation by the commission in the instant case. It is involved in respondent’s rate schedule under which it employs Blake. The commission has full authority to fix minimum rate schedules for contract carriers. R. S. 1933 Supp. 66-1,112f provides:
“The commission is hereby vested with power and authority and it is hereby made its duty to prescribe rules and regulations covering the operations of contract motor carriers in competition with common carriers of this state, and the commission shall prescribe minimum rates, fares and charges to be collected by such contract motor carriers.”
According to the evidence, under the rate fixed in the railroad-Blake contract it is impossible to ascertain whether the rate schedule fixed by the commission is being violated. The contract rate is based on mileage alone which has no relation, so far as the record discloses, to tonnage moved. To permit such a practice to continue would nullify the above statute and the power of the commission to regulate contract carriers. Respondent contends the commission rate schedule was not in effect when the contract-carrier permit was issued. That is no justification for not complying with it now.
Respondent finally contends the order made by the commission is unconstitutional and void in that it violates the provisions of section 10 of article 1, of the United States constitution, which provides that: “No state shall . . . pass any ... ex post facto law, or law impairing the obligation of contracts.”
The basis of this contention is that Blake had obtained a permit as a contract carrier and had a valid contract with respondent which contract the order of the commission destroyed. The order did not abridge or impair the obligation of any valid contract. The order simply directed respondent to discontinue an unauthorized business. The order contains nothing to prevent Blake from receiving all the benefits of his contract with respondent when respondent conducts that particular portion of its business as the law requires. In N. Y. C. Rd. Co. v. P. U. C., supra, it was held:
“An order which requires a common-carrier railroad to cease and desist from such traffic is not void upon the ground that it impairs the obligation of a contract between such common-carrier railroad and a trucking company which owns the trucks employed in such motor-transportation service.” (Syl. IT 5.)
In the body of the opinion the court said:
“It is further urged that the ruling of the públic utilities commission impairs the obligation of the contract between the railroad company and the Peek company and invades constitutional provisions. No specific authorities upon these points are given, and indeed could not be found. The courts have never held that a contract between private parties which would permit the evasion of a state statute will protect those parties from the operation of state law upon the ground of interference with the obligation of contracts. The statute itself is read into and becomes a part of the contract.” (p. 600.)
We are of the opinion the order of the commission was neither unlawful nor unreasonable and the order of the district court setting it aside should be reversed. The cause is remanded with directions to the trial court to enter judgment affirming the order of the commission.
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The opinion of the court was delivered by
Burch, C. J.;
The action was one by the executor of the estate of Rowland J. Edwards, deceased, to recover on promissory notes given the decedent by John A. Edwards, and to foreclose a lien on land imposed by decedent’s will, securing payment of the notes. The defendants, so far as material here, were the makers of the notes, and mortgagees and purchasers of the land deriving title from him. Plaintiff recovered judgment against John A. Edwards on the notes, but was denied judgment for lien, and the titles of lien holders and purchasers were quieted. Plaintiff appeals.
The trial was by the court, and elaborate findings of fact and conclusions of law were returned. Objection was made to some of the findings, and requests were made for additions to and substitutions for some of the findings. There is no abstract of the record. Instead, appellant has abstracted testimony under each of the suggestions respecting the findings. The suggestions will not be examined for the purpose of ruling on them. One conclusion of law was that plaintiff, representing himself and his sister, Hannah M. Honhart, who are the real parties in interest, was guilty of laches, and was estopped to assert lien on the land. It will be sufficient to consider this conclusion of law only. For that purpose the findings of fact are approved, but some of the evidence abstracted by appellant will be considered in connection with the findings.
Rowland J. Edwards died testate, leaving land and personal property inventoried as worth between $250,000 and $300,000. His indebtedness did not exceed $18,000. Under the will the greater part of his estate was devised to his three children, Samuel R. Edwards and John A. Edwards, residents of Kansas, and Hannah Honhart, a nonresident.
The will was executed on December 19, 1916. On December 20, 1916, Rowland J. Edwards wrote a memorandum, addressed to his children, relating to subjects important to them in case of his death. Among other things, he told where copies of his will, executed in triplicate, would be found, and where the key to his lock box in the bank would be found. The memorandum spoke of John’s notes to his father of about $25,000. When the box was opened it contained two notes of John A. Edwards to his father. One note was for $22,370, dated April 1, 1915. The other note was for $3,052, dated April 2, 1915. The larger note \yas payable one year after date, and matured April 1, 1916. The smaller note was payable November 1, 1916. Each note bore interest at the rate of 7 percent per annum.
Rowland J. Edwards died March 2, 1917. His will was duly probated, and the executors named in the will, Samuel R. and John A. Edwards, were appointed as such by the probate court. The will devised land, including the land in controversy, to John A. Edwards, and contained the following item:
“I direct that John A. Edwards is to pay to my estate all his personal obligations to me at the time of my death, and is to care for and pay all papers or notes given as evidence of the indebtedness on which I am indorser or otherwise liable; otherwise, the property herein bequeathed to him, shall stand as security for such indebtedness, and be charged therewith, and he must save all other property harmless therefrom.”
On February 28, 1918, an inventory of the assets of the estate was filed. The inventory was verified by Samuel R. Edwards. The verification stated he had listed all property of the deceased which had come to his knowledge, and all just claims of the estate against him and all other persons. The notes were not included in the inventory. Mrs. Honhart knew the contents of the' inventory, and knew the notes were not included. She and Samuel R. Edwards had known of the notes ever since the death of their father.
Among the papers in the office of the probate judge is a letter' from Samuel R. Edwards to the probate judge, dated February 17, 1923. The letter stated, among other things, that notes of John A. Edwards, of the face value of $25,000, were still held for determination as to validity, as assets of the estate, and when the matter was settled a final account would be filed. The letter was not filed as a paper in the case. Unless it was read by persons investigating title to the land, it was not notice to them of existence of the notes, and the district court did not find that anybody who might be affected with notice ever saw the letter.
On December 9, 1926, a motion was filed to remove John A. Edwards as executor. On February 27, 1929, John A. Edwards was removed, and an order was entered that the remaining executor, Samuel R. Edwards, was-a proper person to bring proceedings to determine title and ownership of the notes and have all matters in dispute settled. No order to bring such suit was made. Previous to the motion to remove, made nearly ten years after the will was probated, there was nothing on record in the probate court showing existence of the notes.
The present action was commenced November 25, 1929, thirteen years after maturity of the notes, and more than twelve and a half years after the will was probated. Meantime many things had occurred. ,
After the death of Rowland J. Edwards the board of county commissioners of Lyon county, the county in which the will was probated, and the state tax commission, after a full investigation, found the larger note did not represent a real debt. The district court found, on disputed evidence, that Samuel R. Edwards made no contention at any of the hearings that the notes were taxable.
In June, 1919, John A. Edwards mortgaged the land in controversy for $14,000, and Samuel R. Edwards knew of the transaction and that John A. Edwards was mortgaging the land.
In April, 1922, John A. Edwards executed to the Central Trust Company a principal mortgage securing a note for $32,000, and a commission mortgage for $1,600, securing a note for that amount. The note and mortgage for $32,000 were sold by the Central Trust Company to the Rutland Savings Bank, of Rutland, Vt.
An abstract of title was furnished to the Central .Trust Company, which disclosed the item of the will which has been quoted. The attorney for the Central Trust Company made various require ments, certain affidavits were supplied, and the attorney approved the title. One affidavit was that of John A. Edwards,the proposed mortgagor and coexecutor of the estate. He stated he was well acquainted with the affairs of the Rowland J. Edwards estate, which was of considerable value, and knew from his own knowledge that all claims against the estate had long since been paid, that he had paid all personal obligations due from him to the estate and he had taken up all notes and other indebtedness of any kind on which the estate of Rowland J. Edwards was liable.
The abstract and affidavits were delivered to the Rutland Savings Bank with the note and mortgage which it purchased, were examined by its attorney, and the title was approved.
In 1924 the commission mortgage to the Central Trust Company was foreclosed, the land was sold to the Central Trust Company, and on August 28,1924, the sale was confirmed. Neither of the executors of the estate nor Hannah Honhart was made a party to the suit.
On March 12, 1925, John A. Edwards and wife conveyed the land to Charles E. Moore. On July 27, 1926, Moore redeemed by conveying a part of the land to the Central Trust Company. The Central Trust Company subsequently conveyed that part of the land to the Rutland Savings Bank.
In July, 1926, Moore entered into a contract to sell and to convey by warranty deed 501 acres of the land to Joseph and J. F. Pedroja. The title was examined by an attorney and was approved. The sale was consummated, and certificates of deposit in the sum of $26,-646.68 were delivered in payment of the consideration.
When the consideration was paid and the deed to the Pedro jas was delivered they called an attorney for advice respecting a collateral matter. As the attorney was returning to his office he met Samuel R. Edwards, who said the estate had some claim on the land. This was on August 6, 1926, nearly nine and a half years after the will was probated.
On March 3, 1922, John A. Edwards wrote a letter to Samuel R. Edwards, asking Samuel R. Edwards to do one of two things: bring an action to determine whether John A. Edwards owed the estate, or drop the subject and forget it. The letter concluded as follows:
“I hope that you will decide definitely and forever on one of the two courses and in the near future. I much prefer going to bat than to be everlastingly and secretly accused of a wrong that has not been committed.”
This letter was written five years after Rowland J. Edwards died.
Four months after the Pedrojas had purchased, the motion to remove John A. Edwards as executor was filed, and the fact there were notes was brought on the record of the probate court for the first time’. Nothing was done about this motion for more than two years, and more than twelve years after the will was probated action was taken in the probate court about the notes found in Rowland J. Edwards’ lock box after his death. It is now March, '1936, and Samuel R. Edwards is here asking this court to adjudge that a lien has always existed on the land, a judgment which would be fraught with disastrous consequences to those who have dealt with the land.
The will did not create a lien on the land unless the notes of John A. Edwards in .fact constituted an indebtedness due to the estate. Samuel R. Edwards was present when his father’s box containing the notes was opened. He presented the will for probate. It was his duty to return a true inventory of the assets of the estate. Had he filed a true inventory there would have been record notice of lien, and all subsequent mortgagees and purchasers would have been able to act advisedly. He filed an inventory which showed there was no lien, and thus laid the foundation for future trouble, when he might have prevented future trouble. Therefore, responsibility for the tangled web which was subsequently woven is traceable to him.
After Rowland J.’ Edwards died, John A. Edwards assured Samuel R. Edwards the notes did not represent enforceable obligations in favor of the estate and he would so show. John A. Edwards was not able to do this to the satisfaction of Samuel R. Edwards, but as early as June, 1919, John A. Edwards, with the knowledge of Samuel R. Edwards, commenced to involve third persons in possible danger by using the land as his own, free from lien. Samuel R. Edwards did nothing. In March, 1922, John A. Edwards importuned Samuel R. Edwards to take action to determine whether John A. Edwards owed the estate. Samuel R. Edwards did nothing. In April, 1922, John A. Edwards executed the mortgages to the Central Trust Company, and that company and the Rutland Savings Bank became involved. In 1924 the commission mortgage was foreclosed. Had a supplemental inventory, containing the notes, been filed before the foreclosure suit was commenced there would have been record evidence the will did create a definite lien on the land, and whether the Central Trust Company had a first lien could then have been determined. The matter drifted two years more, and the Pedrojas became involved, and more than three years later Samuel R. Edwards commenced this action to enforce the lien.
Samuel R. Edwards says, in effect, there was the will all the time, and the subsequent mortgagees and purchasers could have found out about the notes by asking him.
The Central Trust Company investigated the title to the land, perfected the abstract, as it believed, used its judgment'and advanced $32,000 on a mortgage believed to be a first lien. The Rutland Savings Bank investigated the title disclosed by the abstract with affidavits attached and approved the title. The Pedrojas investigated the title, used their best judgment, and invested $26,600 in cash in the land. Mortgagees and purchasers paid their money in perfect good faith. After a full trial the district court stated, as a conclusion of law, that the Central Trust Company, the Rut-land Savings Bank and the Pedrojas were innocent purchasers.
There was no testimony that the mortgagees and purchasers relied specifically on the fact Samuel R. Edwards had made a record in the probate court which excluded the fact of lien. Plaintiff may or may not have a nice point about whether mortgagees and purchasers ought to have done something more than they did do in finding out whether they could safely deal with title to the land. But because of the conduct of Samuel R. Edwards they were left to explore a field outside the record. The question of diligence in exploring a field of this character is always relative. Experts may not agree. A court must finally decide, and in finally deciding the court must frequently choose between two views, both of which may be reasonable. The mortgagees and purchasers never would have been exposed to danger of failing to do something which a court might ultimately say they should have done, if plaintiff had done what the law required him to do. He had power to prevent any question from arising. After that the courts were open to him to forestall- consequences of a wrong view, and the bringing of the lawsuit after such dilatoriness was against public policy. Sleeping on known rights opens the way to speculation in stale and doubtful claims, to disturbance of titles, and to the breeding of turmoil where peace, and repose ought to prevail.
Plaintiff contends that the mortgagees and purchasers must take the position that plaintiff is barred from asserting his claim by mere lapse of time. The foregoing is sufficient to dispose of the contention, but another circumstance may be adverted to.
The district court returned the following finding of fact:
“In 1922 John A. Edwards was in good, substantial financial condition, ‘a going concern,’ meeting all his obligations. In 1929 he had nothing. He testified that ‘all he had in 1929 was hope.’ ”
Plaintiff objected to the finding as not sustained by evidence and as immaterial, and prints the testimony of John A. Edwards:
“Q. In the year 1922 what was your financial condition? A. My condition in that year was—
“Q. Not conclusions, but— A. I was in good, substantial condition at that time.
“Q. In possession of tracts of land? A. A great many.
“Q. Livestock? A. A great many.
“Q. Credit? A. Over credit — too much.
“Q. Where did you have credit at that time? A. I doubt very much if there was any bank in Kansas City but where I had credit. At that time I owed the Commerce Trust Company over two hundred thousand dollars, and Peter Goebel’s bank over two hundred thousand dollars.
“Q. Had you had that credit the preceding year? A. I had built it up from ‘way back.’
“Q. Where were you living? A. In Eureka.
“Q. Were you interested in a banking institution? A. I was .chairman of the board of directors of the First National Bank and a stockholder in two banks in Kansas City.
“Q. In 1929 what was your condition, Mr. Edwards? A. Well, in 1929 I was convalescent.
“Q. Had your lands been attached at that time? A. I didn’t have any lands in 1929.
“Q. What was your financial condition as compared with 1922 — better or worse? A. There wasn’t anything'in 1929 to compare with 1922, because all I had in 1929 was hope.”
The testimony was very material. Laches takes into account all the consequences which may result from delay. It is a fair inference from his testimony that if John A. Edwards had not been permitted to use the land as security for the Central Trust Company loan he could have supplied his needs elsewhere. If his privilege to mortgage the land to the Central Trust Company had been questioned promptly after the mortgage was made, he could have taken care of it, and there would now be no lawsuit here, threatening the trust company, the savings bank and the Pedrojas with great loss.
Whether laches bars action depends on the special circumstances of the case. While delay under certain typical classes of circumstances is recognized as sufficient to raise the bar, any catalogue of circumstances would be illustrative only and not definitive. There fore, it is not necessary to expand this opinion to include quotations from authorities in which it was held the facts did or did not constitute laches.
The conclusions of the district court that the action was barred by laches, and the titles of the Central Trust Company, the Rutland Savings Bank and the Pedrojas should be quieted are approved, and the judgment of the district court is affirmed.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment of conviction of manslaughter in the first degree.
The state’s evidence tended to show that on August 6, 1934, defendant resided in Kansas City. About noon on that day, while defendant was eating his dinner, his wife noticed some boys who were in his back yard helping themselves to his pears. She so informed her husband and took an army revolver from a trunk and laid it on the buffet. Defendant picked up the revolver, walked to the back door, took aim at one of the boys, Goldie Lee, who was stooping to pick up a pear, and as the boy straightened up defendant shot him through the chest. The lad ran out of the yard, crossed a fence, and expired a short distance away. After shooting young Lee, defendant ran out into his back yard, caught another boy and struck him twice, and then pursued a third boy, snapping his pistol at him, until he came to where Goldie Lee was lying on the ground. Defendant aimed his revolver at the dead or dying Lee and snapped it but it did not go off. Later, in a statement to the police, defendant said that he merely used his revolver to scare the boys and that the one shot he fired had been aimed toward the ground.
At the trial defendant’s evidence tended to show that for some time prior to this tragedy he had been annoyed by trespassers and burglars and thieves, and that his wife claimed that these crimes had been committed by the same boys who were raiding his pear trees on the occasion of this homicide.
The cause went to the jury about 3 o’clock on a Saturday afternoon. At 5:35 p. m. the same day the foreman advised the court that the jury were “hopelessly locked.” Under admonition they were excused until the following Monday morning. At that time the foreman advised the court that the jury desired that some of the testimony be read to them. This was done.
Then the foreman stated that the jury wished to be instructed as to the penalties for the various degrees of murder and manslaughter. Over defendant’s objection the trial court orally gave such an instruction and also orally instructed the jury as to the purpose of a criminal trial and the desirability- of verdicts. In part the court said:
“. . . Now, I want to state this to the jury in this case: The purpose of these trials is to do justice, and to reach conclusions and to determine the matters that are submitted to you. We are not here just for the purpose of trying cases, but we are here for the purpose of also to dispose of them. And you will understand, of course, that a disagreement in a case of this kind does not help dispose of business. It merely makes it a matter of trial here again at another term and another time. It is important that we have verdicts, not disagreements, if the jury can conscientiously get together on the facts under the instructions. And I want you to go out and make a careful study of this case again. Consider the evidence and these instructions and see if you cannot reach a verdict this time. . . . And this instruction I just have given you, that statement in regard to the penalties, really an instruction, I will have that written down and sent to you.”
The jury then retired to consider their verdict, and returned into court about noon reporting that they had reached a verdict. Counsel for defendant objected to its being received on the ground that the jury had been given oral instructions and not in writing, and moved that the jury be discharged.
The court denied the motion; but declined to receive the verdict at that time, and excused the jury until 2 o’clock p. m. Meantime the oral instruction touching the penalties for murder and manslaughter was reduced to writing, and when the jury reconvened it was handed to them. Ten minutes later the jury returned into court and their verdict of guilty of manslaughter in the first degree was then received and approved, and judgment and sentence thereon followed, counsel for defendant raising all the usual objections thereto.
Among the errors urged by defendant, the one of particular gravity relates to the oral instruction, belatedly reduced to writing, which expounded the respective penalties attaching to the two degrees of murder and to the four degress of manslaughter. It is an express mandate of the criminal code that the court’s instructions to the jury shall be in writing. (R. S. 62-1447.) The code also requires that these written instructions shall be read to the jury prior to the arguments of counsel. (R. S. 62-1438.) The importance of conforming to these provisions of the criminal code has been repeatedly emphasized by this court. (State v. Potter, 15 Kan. 302; State v. Stoffel, 48 Kan. 364, 29 Pac. 685.) In State v. Huber, 8 Kan. 447, which was a homicide case, the pertinent section of the syllabus reads:
“Section 236 of the criminal code provides that -the court 'must charge the jury in writing,’ and it is error to omit to do so in any criminal case.” (Syl. ¶3.)
In State v. Bennington, 44 Kan. 583, 25 Pac. 91, which was a case of grand larceny, the trial court gave some instructions in writing and some of them orally, the latter being taken down by a stenographer and afterwards reduced to writing and delivered to the jury. This court held that this plain breach of the pertinent statute necessitated a reversal of the judgment of conviction. The syllabus reads:
“It is error for a trial judge to give a portion of his instructions to the jury orally, though they are taken down by the stenographer at the time, and afterward copied and delivered to the jury, on retiring, with the other instructions.”
The cases we have just cited are old. It does not appear that any breach of the statutory mandate to give the jury timely instructions in writing has required the attention of this court in recent years. The attitude of the court is not so intolerant of lapses from correct procedure as it was a generation ago. In State v. Sanders, 127 Kan. 481, 485, 274 Pac. 223, it was said:
“The legislative mandate concerning technicalities in criminal appeals (R. S. 62-1718) is accorded much greater respect nowadays.”
But can we say that the giving of this oral instruction was merely a technical error? The later reduction of the oral instruction to writing and giving it to the jury was an idle gesture which served no purpose. Following the oral instruction the jury reached their verdict, but the court declined to receive it until the belated instruction had been given to them in writing. When that was done the verdict, already reached, was received and approved.
But the substance of the instruction itself was objectionable. This court has repeatedly held that the statutory penalty for crime is no concern of the jury. (State v. O’Keefe, 125 Kan. 142, 263 Pac. 1053; State v. Reuter, 126 Kan. 565, 566, 268 Pac. 845; Levell v. Simpson, 142 Kan. 892, 52 P. 2d 372.) In this case the record is open to an inference, if it does not conclusively show it, that the irrelevant instruction touching the various penalties for the different degrees of homicide served the purpose of permitting the jury to dicker on their verdict, not on the innocence or guilt of defendant, but taking into consideration the penalties, the jury reached a verdict when they had been “hopelessly locked” until that oral instruction respecting the penalties had been given.
It should also be kept in mind that counsel for the state and for defendant were entitled to argue the case to the jury after all pertinent instructions had been given. If this instruction had been germane to the offense charged and to the evidence adduced, counsel should have had an opportunity to argue its relevancy to the case. And yet it would have been rather absurd to have permitted further arguments on Monday following the giving of the criticized instruction on penalties, when the case had already been submitted to the jury on Saturday and when the jury had already deliberated on it for two and a half hours that afternoon.
Reluctant as this court is to disturb the result in this case, we find it impossible to set down anything in an- opinion which would justify a decision that the giving of this instruction complained of, either in form, time, or substance, was not erroneous and prejudicial. To gloss it over under the terms “mere technical error” would open the door to further irregularities of similar character. This court feels constrained to hold that it constituted reversible error.
Touching the court’s observations as to the desirability of verdicts and the avoidance of disagreements, this court finds nothing therein which was either coercive or prejudicial. However, it is proper to say that such general observations touching the duty and responsibility of jurors, in our system of administrative justice, would better be given when the venire is first convened. In such circumstances the court’s instructive admonitions would pertinently apply to all cases on which the assembled jurors would serve during the term. Such is a familiar practice in the federal courts. The wisdom of such a lecture on jurors’ duties given in the middle of their deliberations in a particular case is not so clear.
Error is also assigned on the giving of an instruction in which the jury were told that every person is presumed to intend to do what he voluntarily does and to intend all the natural and probable results of his voluntary acts. The instruction is a commonplace one in criminal trials, and quite correct in its statement of the pertinent law. The present objection to it is that since defendant had testified that he did not intend to shoot the boy but only to scare the lads it should not have been given — that once evidence on the point was introduced, the presumption of intention was eliminated. This objection is hypercritical and disapproved.
The judgment is reversed and the case remanded for a new trial.
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The opinion of the court was delivered by
Harvey, J.:
This is an action by certain taxpayers on behalf of themselves and 120 others similarly situated (who will be spoken of herein as plaintiffs) to enjoin the sheriff and other county officials from levying on their property and collecting on certain tax warrants in the hands of the sheriff for the reason that the taxes had been paid. The court rendered judgment for plaintiffs, and the defendants have appealed!
The facts are not controverted, and may be briefly stated as follows: Plaintiffs reside in or near Ada, in Ottawa county. Each had property subject to taxation for the year 1926 upon which taxes were duly levied and assessed. The tax rolls were made up by the county clerk and delivered to the county treasurer November 1. The Ada State Bank had been duly designated by the county commissioners as a depositary of money for the county treasurer and had given its bond in the sum of $10,000 to secure such deposit. The treasurer- had money belonging to the county on deposit in that bank. Although not specifically authorized to do so, it had been the practice of the county treasurer each year, for several years, for convenience in paying and collecting taxes, to make a list of the property subject to taxation in the vicinity of Ada and the amount of taxes thereon, and a similar list pertaining to personal property, and send such lists to the Ada State Bank, where the taxpayers of that vicinity might pay their taxes. Other similar lists were sent to banks in other localities in the county. Soon after November 1, 1926, a copy of the tax roll of the property of taxpayers in the vicinity of Ada was made out by the county treasurer and sent to the Ada State Bank. There were also sent tax receipts in triplicate, each of which, with the knowledge and consent of the county clerk, bore a facsimile of his signature. Each of the plaintiffs paid to the Ada State Bank the amount of their respective taxes. The bank kept a taxpayers’ account. This account showed the name of each plaintiff, the amount of tax paid, and the date of payment. On December 21,1926, this account was closed, and the amount thereof, $6,648.58, was transferred and credited to the county treasurer’s account.
In the court below the defendants offered no evidence, but their counsel stated: “We have admitted all through the case that money was paid into the -Ada State Bank by the various plaintiffs in the amount of $6,648.58, and that the same was placed on the books of the bank to the credit of the county.” A deposit slip, in duplicate, was made, showing such deposit to the credit of the county treasurer, and this deposit slip, together with the books and receipts showing who had paid the taxes and the property on which payment had been made, were sent by the Ada State Bank to the county treasurer, and were received by him on December 22.
Because of the rush of work in his office, and similar reports coming in from other banks, the county treasurer did not get time to go through this report and list the persons who had paid taxes until January 13, 1927, on which date the proper entries were made on his books, showing the money received and deposited to his account in the bank at Ada, the same was reported to the county clerk, where the proper entries were made, and the treasurer marked on his tax roll in the proper place opposite the entry of the amount of taxes charged to each of the persons who had so paid to the bank an entry that the taxes were paid, and the originals of receipts sent him by the bank were signed by the county treasurer. These signed receipts were retained by the treasurer in his office. On January 11 the county treasurer, anticipating, or having learned, that the amount deposited to his credit on December 21, added to the amount which he had on deposit there, would make his deposit larger than the $10,000 bond given by the bank to secure its deposit, drew a check on the Ada State Bank for $3,000 which reached the bank and was paid on January 15, which reduced his deposit there to less than $10,000.
Under the terms by which it was designated a county depositary, the bank paid interest monthly at the rate of two per cent per annum on the daily balances. On December 31, 1926, it credited the treasurer’s account with $11.39 and sent him a deposit slip therefor. This included interest on the $6,648.58 deposited to the credit of the treasurer December 21 from that date to the end of the month.
The Ada State Bank closed January 24, 1927, and was taken charge of by the bank commissioner and later liquidated. On March 3, 1927, after the bank was closed, the county treasurer erased the entries which he had made on his tax rolls, showing taxes paid by plaintiffs, attempted to disclaim credit for the deposit of December 21, 1926, to his account in the Ada State Bank, charged off the amount of that deposit on his books, or changed them to show that he had not received it, and caused corresponding entries to be made by the county clerk in his records. He refused to deliver to plaintiffs the signed receipts in his office showing that their .taxes had been paid, and treated the taxes as not having been paid, and in due time issued tax warrants thereon, which tax warrants were delivered to the sheriff for levy and collection, when this action was brought.
The real question in this case i's: Had plaintiffs paid their taxes to the county treasurer in conformity, or at least in substantial conformity, to our statutes pertaining to such payments?
Appellants argue that the county treasurer is the collector of taxes (R. S. 19-515); that taxes are payable in money only (Judd v. Driver, 1 Kan. 455); that the treasurer, in collecting taxes, acts in a governmental, not in a proprietary, capacity (Seward v. Fisken, 122 Wash. 225); that the treasurer had no legal authority to send duplicate tax rolls and blank tax receipts to the bank for convenience in collecting taxes; that any practice or custom in that regard is not binding on the county, and that the bank was necessarily the agent of the taxpayer to transmit for him his taxes to the county treasurer. (Haynie v. Bryant & Parker, 117 Okla. 138; Skinner v. Mitchell, 108 Kan. 861, 197 Pac. 569; Scheafer v. McFarland, 49 S. D. 605; 26 R. C. L. 377, and cases there cited.)
For the purposes of this case all these points may be conceded as being well taken. It may be conceded that the method used by plaintiffs in paying their taxes was irregular and not specifically authorized or provided for by our statutes. But the question still remains: Were the taxes in fact paid, in money, or its equivalent, and was such payment in fact received by the county treasurer? It was admitted “that money was paid into” the bank “by . . . plaintiffs . . . and placed on the books of the bank to the credit of the county.” Now, the only other question is: Did the county treasurer receive it? It was paid in money to the bank, and placed in and credited to the account of the county treasurer, and he was given the deposit slip therefor. The bank paid interest to the county on the amount of such deposit in accordance with its agreement as a county depositary. The county treasurer drew on the account for the purpose and in an amount to keep his deposit in this bank within the sum for which it had given bond as a county depositary, and the check so drawn was paid. The county treasurer is required by statute (R. S'. 19-530) to deposit daily all funds and moneys which come into his possession by virtue of his office, in his name as treasurer, in some bank located in the county and designated by the board of county commissioners as a county depositary. The receipt of the money was recognized by the treasurer by his drawing on the account, by his signing of the original tax receipts, by the entries made in his books, and by the entries he caused to be made in the books of the county clerk. We think the evidence conclusive that the money paid by plaintiffs was received by the county treasurer.
This is not a case in which the county treasurer was given by a taxpayer a check or draft which was not paid on presentation, as in Barnard v. Mercer, 54 Kan. 630, 39 Pac. 182, and allied cases collected in 44.A. L. R. 1234. Neither is it a case where checks were given on an insolvent bank, as in Beloit Building Co. v. Staley, 118 Kan. 141, 234 Pac. 57. Here there is no intimation in the evidence that the Ada State Bank was insolvent, or in failing condition, on December 21, 1926, nor at any time prior to its closing its doors January 24, 1927.
Appellants cite and rely upon Skinner v. Mitchell, supra. There is at least one outstanding material difference between that case and the one before us. In that case the bank was not a county depositary. This is clear from the opinion in the case, also from Brogan v. Kriepe, Receiver, 116 Kan. 506, 227 Pac. 261, involving the same moneys. In that case the taxes had been collected by a real estate firm, which charged the taxpayers a commission, and by this firm deposited to the credit of the county treasurer in a bank in which he was not authorized to have on deposit county money. When he learned of that he promptly drew on the bank for the amount of the deposit. His draft was not paid and the bank failed immediately. There it was clear the money never reached the county treasurer — even his effort to get it was fruitless. No such situation exists in the case before us.
We have examined all authorities cited by counsel. We deem it unnecessary to further analyze them. The judgment of the court below is affirmed.
Burch, J., not sitting.
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The opinion of the court was delivered by
Marshall, J.:
This is an original action in mandamus to compel the defendants as the governing body of the city of Emporia to “proceed at once to the issuance and sale of bonds in an amount sufficient to pay one-third of the cost of construction of a subway under the tracks of the Atchison, Topeka & Santa Fe Railway Company on Mechanic street in the city of Emporia, Kansas.” The defendants have filed an answer in which they allege that there is no statutory authority for the city of Emporia to do the things prayed for in the petition of the plaintiff. The alternative writ alleges that a petition had been filed asking that Mechanic street between Logan avenue and Fourth avenue be drained, graded, curbed, guttered, and paved, and at the time the petition was filed the property owners, who had signed it, orally asked the governing body of the city to construct a subway under the tracks of the Atchison, Topeka & Santa Fe Railway Company, at Third avenue and Mechanic street, in the city of Emporia; that the matter of constructing a subway was then taken up with the Atchison, Topeka & Santa Fe Railway Company and an agreement was reached by which the railway com pany agreed to pay for two-thirds of the cost of constructing the subway provided the city of Emporia would pay the other one-third; that the proposition was submitted to the voters of the city of Emporia to determine whether or not the city should issue bonds in the sum of $55,000 with which to provide funds to pay one-third of the cost of the subway; that the proposition carried by a large majority; but that afterward the governing body of the city, at a regular session, determined not to issue the bonds because of insufficiency of statutory authority to issue the same and to levy a tax for the payment thereof.
By their answer the defendants present but one issue and that is that the city does not have statutory authority to issue the bonds described in the alternative writ. The plaintiff has asked that a peremptory writ be issued for the reason that the answer does not set forth any sufficient reason for refusing to issue the writ. The sole question for determination is: Do the statutes give to the city of Emporia authority to pay one-third of the cost of constructing the subway? The problem is one of interpreting material statutes.
The plaintiff relies on and cites sections 14-402, 14-423 and 14-434 of the Revised Statutes. So far as material, those statutes read:
“The cities of the second class coming under the provisions of this act in their corporate capacity are authorized and empowered to enact ordinances for the following purposes in addition to the other powers granted by law. . . . Second. To open and improve streets, avenues and alleys, make sidewalks and build bridges, culverts, sewers . . .” (R. S. 14-402.)
“The council shall have power to open, widen, extend, or otherwise improve any street, avenue, alley, or lane. . . .” (R. S. 14-423.)
“The council shall have power to . . . provide for the passage of railways through the streets and public grounds of the city; also to regulate the crossings of railway tracks and to provide precautions and prescribe rules regulating the same, and to regulate the running of railway engines, cars and tracks within the limits of said city, and to prescribe rales relating thereto, and to govern the speed thereof, and to make any other and further provisions, rules and restrictions to prevent accidents at crossings, and on the tracks of railways. . . .” (R. S. 14-434.)
So far as quoted these provisions appeared in chapter 100 of the Laws of 1872 and have continued from that time until the present.
In the City of Argentine v. A. T. & S. F. Rld. Co., 55 Kan. 730, 41 Pac. 946, this court said:
“A city of the second class is vested with power to construct at its own expense, or to require the construction by a railroad company at its expense, of a viaduct or bridge over railroad tracks within the city, where the safety and convenience of the public make it necessary; and when it is deemed to be just that the cost of such a structure should be divided between the city and the railroad company, the city may contribute or bind itself to pay a share of such cost.” (Syl.)
In the opinion of that case this court said;
“Argentine is a city of the second class, and although there is no statute which in express terms provides for the building of viaducts in cities of that class, there appears to be ample authority for such a city to build or require the building of viaducts or bridges over railroad tracks where the convenience and safety of the public make it necessary. In the act governing cities of the second class, authority is given to open and improve streets, avenues and alleys, and to build bridges within the city. (Gen. Stat. of 1889, f 788.) It also provided that the city may provide for the passage of railways through the streets and grounds of the city, regulate depots, and depot grounds, the crossing of railway tracks, the running of railway engines, cars and trains within the limits of the city, and make any other and further provisions to prevent accidents at crossings and on the tracks of railways. (IT 821.) In addition to these, there are provisions vesting the care, management and control of the city in the mayor and council, authorizing them to open, widen, extend, or otherwise improve the streets and avenues of the city, and to prevent all encroachments upon them, and granting authority to them to enact all such ordinances as they shall deem expedient for maintaining the good government and welfare of the city, its trade and commerce (Iff 787, 811, 812, 824). Under these general provisions we think there is ample power in a city of the second class to construct or require the construction of viaducts over railroad tracks. ...
“It is conceded by the city that it had the power to compel the railroad company to build the viaducts wholly at the expense of the company; and that the city can build them at its own expense, under the provisions mentioned, there can be little doubt. As the city may construct them entirely at its own expense, no reason is seen why it may not contribute a part of the expense of viaducts determined to be necessary. The questions of necessity and expediency of viaducts, the character and cost of those which the safety and convenience of the public may require, and the means of providing them, including what proportion of the expense should be borne by the city and what by the railroad company, are for the determination of the mayor and council, rather than the court. The fact that the city can compel the railroad company to build a viaduct upon certain conditions at its own expense does not prevent the city from sharing the expense under other circumstances where it is deemed to be just that a division of the expense should be made, and that question, like the others which have been mentioned, so far as the municipality is concerned, rests with the legislative authority of the city.” (pp. 733, 734.)
The statutes on which that decision was based were sections 787, 788, 811, 812, 821 and 824 of the General Statutes of 1889, all referring to cities of the second class. Section 787 gave to the mayor and council the care, management and control of the city, and its finances, and power to enact ordinances necessary for the good government of the city, etc. That statute now appears as section 14-401 of the Revised Statutes. Section 788 of the General Statutes of 1889 gave power to “open and improve streets, avenues and alleys, make sidewalks, and build bridges, culverts and sewers within the city.” That statute, with amendments not here material, appears as the second subdivision of section 14-402 of the Revised Statutes. Section 811 of the General Statutes of 1889 gave to the council “power to open, widen, extend, or otherwise improve any street, avenue, alley, or lane.” Those powers áre now given by section 14-402 of the Revised Statutes. Section 812 of the General Statutes of 1889 gave to the council power to “prevent all encroachments into and upon the sidewalks, streets, avenues, alleys, and other property of the city.” That statute is now section 14-424 of the Revised Statutes. Section 821 of the General Statutes of 1889 gave to the council power “to provide for the passage of railways through the streets and public grounds of the city; also to regulate the crossings of railway tracks, and to provide precautions and prescribe rules regulating the same, and to regulate the running of railway engines, cars and tracks within the limits of said city.” It now appears as section 14-484 of the Revised Statutes. Section 824 of the General Statutes of 1889 provided that “for any purpose or purposes mentioned in the preceding sections, the council shall have power to enact and make all necessary ordinances, rules and regulations,” etc. That statute now appears as section 14-439 of the Revised Statutes.
These statutes were referred to in City of Argentine v. A. T. & S. F. Rld. Co., supra. The court distinctly said that they afforded ample power to cities of the second class to construct or require the construction of viaducts over railway tracks, and that there was express authority given for the construction of bridges. The court then defined bridges so as to include viaducts. But the decision rested on the general grant of powers above referred to, all of which are still in force. Under these general grants, a city of the second class has as much power to construct a subway as it has to build a viaduct.
The defendants contend that section 12-1633 of the Revised Statutes takes from cities of the second class the power to construct a subway under railroad tracks under sections 14-402, 14-423 and 14-434 of the Revised Statutes, and that section 12-1633 abrogates City of Argentine v. A. T. & S. F. Rld. Co., supra, and compels such a city to proceed under it. So far as material, that section reads:
“The governing body of cities of the first and second class shall have the power to regulate the crossings of railway and street-railway tracks and provide precautions and prescribe rules regulating the same, and to regulate the running of street railways or cars and railway engines and cars in the city, and to prescribe rules relating thereto and to govern the speed thereof; and to make other and further provisions, rules and regulations to prevent accidents at crossings and on tracks of railways, and to prevent fires from engines, and to require all railway companies to erect viaducts over or tunnels under their tracks at the crossing of streets. The governing body shall have ppwer to require any railroad company or companies'owning or operating any railroad or street-railway track or tracks upon or across any public street or streets of the city to erect, construct, reconstruct, complete and keep in repair any viaduct or viaducts upon or over or tunnels under such street or streets and over or under any such track or tracks, including the approaches of such viaduct, viaducts, or tunnels, as may be deemed and declared by the governing body to be necessary for the convenience, safety or protection of the public.”
Provision is then made for determining damage sustained by property owners, and then the section continues—
“The proceedings for such purpose shall be the same as provided by law for the purpose of ascertaining and determining damages to property owners by reason of the change in grade of any street, except that such damage shall be paid by such railway company or companies.”
This statute first appeared as section 59 of chapter 122 of the Laws of 1903, and gave to cities of the first class power—
“To regulate the crossings of railway and street-railway tracks and provide precautions and prescribe rules regulating the same, and to regulate the running of street railways or cars and railway engines and cars in the city, and to prescribe rules relating thereto and to govern the speed thereof; and to make other and further provisions, rules and regulations to prevent accidents at crossings and on tracks of railways, and to prevent fires from engines, and to require all railway companies to erect viaducts over, or tunnels under, their tracks at the crossing of streets.”
This section was amended by section 1 of chapter 89 of the Laws of 1911 by extending the operation of the section so that it covered practically the entire field now covered by Revised Statutes, section 12-1633, except that it still was restricted in its operation to cities of the first class. By chapter 106 of the Laws of 1913 the operation of the statute was extended so as to include cities of the second class. The repealing clause of the last-named act was as follows:
“That section 1, chapter 89, of the Session Laws of 1911 is hereby repealed.”
No other act or part of act was expressly repealed by chapter 106 of the Laws of 1913. There was nothing in the act to indicate that it was the intention of the legislature to repeal any law giving to cities of the second class any power which they at that time possessed. If those powers were taken from cities of the second class by chapter 106 of the Laws of 1913, it was done by implication. Repeals by implication are not favored. (Stephens v. Ballou, 27 Kan. 594, 601; Keirsey v. Comm’rs of Labette Co., 30 Kan. 576, 579, 2 Pac. 864; Kansas Breeze Co. v. Edwards, 55 Kan. 630, 633, 40 Pac. 1004; Hornaday v. The State, 63 Kan. 499, 502, 65 Pac. 656; Newman v. Lake, 70 Kan. 848, 79 Pac. 675; State, ex rel., v. Holcomb, 93 Kan. 424, 426, 144 Pac. 266; Dubourdieu v. Delaware Township, 106 Kan. 650, 655, 189 Pac. 386; Schnatterly v. Eslinger, 126 Kan. 9, 13, 266 Pac. 657.)
In Stephens v. Ballou, 27 Kan. 594, 601, this court said:
“If the provisions of the old act and of the new can be reconciled by any possible mode of interpretation or construction, if the old act and the new can both be given force and effect, according to their terms and under any circumstances, then it should never be held that one overturns and destroys the other, but both should be given full force and effect.”
The cases above cited either declare or support this rule. (See, also, School District v. Coughlin, 88 Kan. 1, 6, 127 Pac. 219; Shortall v. Huppe, 99 Kan. 639, 641, 162 Pac. 319; Harwood v. Railway Co., 101 Kan. 215, 219, 171 Pac. 354.) Other cases on both of these propositions might be cited, but it is not necessary.
Can the powers conferred on cities of the second class by Revised Statutes, sections 14-402, 14-423 and 14-434, be exercised notwithstanding the existence of Revised Statutes, section 12-1633? In other words, may a city of the second class proceed under one of the first three sections named or under the last section as the city may deem best? There is nothing in section 12-1633 which prohibits a city from operating under any other statute. Section 12-1633 by its term is permissive, not compulsory. If the city proceeds under that section, its act may be questioned by the railway company on the ground of unreasonableness. If the city proceeds under the other powers granted to cities of the second class, its acts may be questioned by taxpayers for illegality of the tax, but cannot be questioned by the railway company on account of unreasonableness.
City of Emporia v. Railway Co., 94 Kan. 718, 147 Pac. 1095, is the decision of this court concerning an ordinance of the city of Emporia by which that city’ undertook to compel the Atchison, Topeka & Santa Fe Railway Company to construct a subway under its tracks on another street in that city. The court held the ordinance unreasonable and refused to compel the'railway company to construct the subway.
A city o'f the second class may desire to have a subway constructed under railroad tracks within the city at a certain place much to its advantage. The situation may be such that it would be unreasonable to ask the railway company to construct the subway at that place and pay all the expense thereof.
If a city, because of unreasonableness, cannot compel the construction of a subway under section 12-1633, there is nothing in that section which prohibits the city from proceeding under the general powers given to the city under other laws. Section 12-1633 appears to be cumulative. It gives statutory power in addition to other powers previously given by statute to cities of the second class. The powers given by that section are not conclusive, and it does not prohibit cities from proceeding under other powers given to them. The city of Emporia had power to contract with the Atchison, Topeka & Santa Fe Railway Company for the construction of the subway and to contract to pay part of the expense of such construction. The city has power to issue bonds for the purpose of raising the money with which to pay for such improvement.
It follows that the peremptory writ of mandamus should issue. It is so ordered.
Hopkins, J., concurs in the result.
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The opinion of the court was delivered by .
Harvey, J.:
Plaintiff, J. E. Burtrum, sued the bank on a time certificate of deposit for $10,400.59 issued by the bank to plaintiff, which sum the bank had refused to pay him on demand. The bank answered that it had first issued the certificate to plaintiff’s father, but at his request had issued it to plaintiff, dating it back; that thereafter the father brought the certificate in, bearing plaintiff’s endorsement as well as his own, and had a new certificate issued to the father. It alleged that it is informed and believes the sum is claimed by both plaintiff and his father; “that defendant is holding said money subject to the order and decision of the . . . court, and will pay and deliver said money to whomever this court decides and decrees is entitled to it.” It at no time filed the affidavit or took the other steps provided by R. S. 60-418. Plaintiff replied that he had never endorsed the certificate, and any endorsement appearing thereon was unauthorized.
The father, J. W. Burtrum, by leave of court, filed an intervening petition in which he claimed the proceeds of the time certificate, alleged it was his all the time, and that he was authorized to sign plaintiff’s name to the endorsement. Plaintiff answered the intervening petition and denied the right of the father to sign his name, and by an amended answer alleged that the father put it in plaintiff’s name to cheat and defraud his mother, who had brought an action against J. W. Burtrum for divorce. This was denied by J. W. Burtrum. The intervener demanded a jury trial, which the court denied. As the pleadings were finally framed the principal controversy between the parties related to the authority of J. W. Burtrum to endorse his son’s name on the certificate, and whether his having the certificate made to plaintiff was for the purpose and had the effect of defrauding his wife in the divorce action. The court made findings of fact and rendered judgment for plaintiff against the bank for the full amount of the certificate and interest, and denied the intervener any relief. The defendant and the intervener have appealed.
The findings of fact tell the story of the controversy. These findings and the court’s conclusions of law are as follows:
FINDINGS OF FACT
“1. That J. W. Burtrum and Nellie M. Burtrum were married in the year 1897.
“2. That on the date of their marriage both parties owned a small amount of personal property, and thereafter the husband, J. W. Burtrum, inherited approximately $800 from his father’s estate; that with the exception of the property owned by the parties at the time of the marriage, and the property inherited by J. W. Burtrum from 'his father’s estate, all the property owned by the parties on September 16, 1932, was the joint accumulation of J. W. Burtrum and Nellie M. Burtrum, husband and wife, during the period of their married life.
“3. That on or about the 14th day of September, 1932, Nellie M. Burtrum left the home of J. W. Burtrum, and thereafter and on September 16, 1932, filed an action in the district court of Craig county, Oklahoma, at Vinita, against J. W. Burtrum in which she prayed for a divorce, alimony, division of property and costs; that summons was issued in said action and served upon J. W. Burtrum on September 17, 1932, at about the hour of 11 o’clock a. m.
“4. That prior to the 17th day of September, 1932, J. W. Burtrum had been a customer of and had deposits of money in his own name in the First National Bank of Vinita, Vinita, Oklahoma, the State Bank of Welch, Oklahoma, and the Chetopa State Bank of Chetopa, Kansas.
“5. That on September 16, 1932, J. W. Burtrum had on deposit in his own name in the form of checking accounts and time deposits in the several banks, the sums, as follows:
Chetopa State Bank, Chetopa, Kansas, on time deposit............ $10,400.59
State Bank of Welch, Welch, Oklahoma, on time deposit.......... 6,000.00
State Bank of Welch, Welch, Oklahoma, checking account......... 1,456.00
First National Bank of Vinita, Vinita, Okla., checking account..... 2,911.00
Total......................................................... $20,767.59
“6. That on the 17th day of September, 1932, J. W. Burtrum went in person to the Chetopa State Bank, at Chetopa, Kansas, and transferred the money he had on deposit in said bank from his own name and caused to be issued by said bank in the name of his son, the plaintiff herein, J. E. Burtrum, a certain certificate of deposit in the principal sum of $10,400.59, which represented all the money he had on deposit in said bank at said time.
“7. That on the 17th day of September, 1932, J. W. Burtrum went in person to the State Bank of Welch, Oklahoma, and transferred all the money he then had on deposit, in both checking account and time deposit in said bank in his own name to that of his son, Harry Burtrum, and caused said bank to issue its certificate of deposit payable to said Harry Burtrum in the sum of $6,000, which transaction represented a transfer of all the funds J. W. Burtrum then had in said bank on deposit in his own name.
“8. That the plaintiff, in said divorce action, employed Carey Caldwell, an attorney at law, of Vinita, Oklahoma, to represent her in the prosecution of said divorce action, and that defendant, J. W. Burtrum, employed one Richard L. Wheatley, an attorney at law of Vinita, Oklahoma, to represent him in the defense of said divorce action, and that thereafter all negotiations for a prop erty settlement in said divorce action, as hereinafter referred to, were carried on between the respective attorneys for the parties thereto, and there was no direct communication between J. W. Burtrum and Nellie M. Burtrum during said negotiations.
“9. That during the pendency of the action of the divorce case in the district court at Yinita, Craig county, Oklahoma, Carey Caldwell, as attorney for and acting on behalf of Nellie M. Burtrum, conducted an investigation for the purpose of determining the location, nature and extent of the property owned by J. W. Burtrum and Nellie M. Burtrum, and that as a part of said investigation said J. W. Burtrum, through his attorney, Richard L. Wheatley, gave letters to said Carey Caldwell directed to the banks at Beaver, Oklahoma ; Welch, Oklahoma; Vinita, Oklahoma, and Chetopa, Kansas, authorizing said banks to disclose to said attorney, Carey Caldwell, the funds on deposit in the name of and belonging to said J. W. Burtrum.
“10. That pursuant to notice, and on the 11th day of January, 1933, plaintiff took the deposition of one C. G. Whitby, president of the Chetopa State Bank, at Chetopa, Kansas, in which said deposition inquiry was made as to whether or not J. W. Burtrum had on deposit any money in said bank, and that said C. G. Whitby, president of said bank, testified in substance, that J. W. Burtrum had been a depositor of said bank from October 9, 1922, to June 8, 1931, and that defendant, J. W. Burtrum at one time had money in said bank on time deposit, which certificate was renewed from time to time; that it was last renewed on June 8, 1932, for the sum of $2,250.59, for six months, and that this certificate was paid on September 17, 1932; that said C. G. Whitby had searched the records for time deposits and did not find any other certificates of deposit of J. W. Burtrum, and had no personal recollection of defendant, J. W. Burtrum, having any other money on time deposit in said bank.
“11. That on the 11th day of January, 1933, the intervener, J. W. Burtrum, and his son, J. E. Burtrum, the plaintiff herein, left their home in an automobile on their way to Welch, Oklahoma, and stopped at a mailbox, about one mile distant from the home of J. W. Burtrum, at which time and place J. W. Burtrum received a letter from his attorney, Richard L. Wheatley, advising him that a deposition was to be taken at the Bank at Chetopa, Kansas, that afternoon, and requesting his presence at said time and place; that said J. W. Burtrum responded to said request and went to Chetopa, Kansas, on the date of the taking of said deposition, but was not personally present in the room at the time the deposition was actually taken; that at the taking of said deposition, J. W. Burtrum was represented in the taking thereof by his attorney, Richard L. Wheatley.
“12. That on January 11, 1933, and immediately after having received and read the aforesaid letter from his.attorney, Richard L. Wheatley, and at a time before said deposition was taken, J. W. Burtrum made a statement to his son, J. E. Burtrum, the plaintiff herein, in substance that he had about $10,000 on deposit in the Chetopa State Bank in the name of J. E. Burtrum, the plaintiff herein, and further stated, in substance, that T am giving this money to you to give you a start in life.’ And further said on the same date on their return from Chetopa, Kansas, ‘I have the certificate of deposit and will keep it for you,’ and that on the evening of the same date, and after having re turned from Chetopa, where said deposition was taken, J. W. Burtrum made a statement in substance to Mrs. Zella Burtrum, the wife of plaintiff, J. E. Burtrum, that she was better off than she thought she was, and that he, J. W. Burtrum, had given to them, J. E. Burtrum and wife, the sum of $10,000.
“13. That at all the times subsequent to September 17, 1932, up to and including the date of the property settlement in the divorce case, at Vinita, Oklahoma, J. W. Burtrum knew the exact amount of money on deposit in the Chetopa State Bank, and the fact that said deposit was evidenced by a certificate of deposit payable to J. E. Burtrum; that upon the date of the taking of the deposition of C. G. Whitby, president of said bank, on January 11, 1933, Richard L. Wheatley, the attorney for J. W. Burtrum, knew that there was on deposit in said bank the sum of $10,400.59, and that same was evidenced by a certificate of deposit payable to plaintiff, J. E. Burtrum; that the divorce case between Nellie Burtrum and J. W. Burtrum was tried in the district court of Craig county, Oklahoma, at Vinita, Oklahoma, on January 13, 1933; that for some time prior to that date there had been some discussion of a property settlement between the respective attorneys for the parties, Carey Caldwell and Richard L. Wheatley, and that on January 13, 1933, and shortly before the trial of said cause, final negotiations were had and a property settlement was made as between the parties in the divorce action by the terms of which said settlement it was agreed that plaintiff in the case, Nellie M. Burtrum, should receive the sum of $8,500 in cash and 160 acres of land in Beaver county, Okla-home, and that the defendant should receive 400 acres of land in Craig county, Oklahoma, and all the remainder of the personal property, which said property settlement between the parties was confirmed and approved upon the trial of said case by the district court of Craig county, Oklahoma, and made a part of its judgment in said cause.
“14, That thereafter, and subsequent to the trial of said divorce case, J. W. Burtrum endorsed the certificate of deposit theretofore issued by the Chetopa State Bank in the name of J. E. Burtrum in the principal sum of $10,400.59 by writing on the back of said certificate the words, ‘Pay to the order of J. W. Burtrum,’ and then signed i.he name ‘J. E. Burtrum,’ and then further signed his own name, ‘J. W. Burtrum,’ and on the 28th day of January, 1933, presented said certificate to the Chetopa State Bank and eaused said certificate to be canceled, and in lieu thereof a new certificate issued in a like amount payable to himself, J. W. Burtrum, and said moneys are now on deposit in said Chetopa State Bank, evidenced by said certificate; that thereafter, and in August of 1933, the plaintiff, J. E. Burtrum, made a demand upon the Chetopa State Bank for the payment of the aforesaid funds to him, which said demand was refused; that thereafter, and upon the 6th day of March, 1934, this action was instituted by J. E. Burtrum, plaintiff, against the Chetopa State Bank, as defendant, and thereafter said bank filed its answer in which it admitted that it had and held possession of the sum of $10,400.59 ; that the ownership of same was in dispute and that said fund was claimed by both J. W. Burtrum and J. E. Burtrum, and that said bank was holding said money subject to the order and decision of this court, and will pay and deliver said money as directed by this court, and prays a discharge with judgment for costs.
“15. That the plaintiff, J. E. Burtrum, did not at any time authorize the intervener, J. W. Burtrum, to endorse the name of 'J. E. Burtrum’ on the back of the certificate of deposit, which was issued in his name, by the Chetopa State Bank, on September 17, 1932, in the principal sum of $10,400.59, or to deliver same to the said Chetopa State Bank, and that the endorsement of the name ‘J. E. Burtrum’ on the back of said certificate of deposit and the delivery of same without authority so to do, was ineffectual to transfer the title from plaintiff, J. E. Burtrum, to intervener, J. W. Burtrum.
“16. That while J. W. Burtrum actually transferred the record title to the money in controversy in this case on September 17, 1932, from his own name to that of J. E. Burtrum, as evidenced by said certificate of deposit, and thereafter, and on the 11th day of January, 1933, J. W. Burtrum stated to plaintiff, J. E. Burtrum, in substance, that he was making to him a gift of said property, and that he would retain possession of the certificate for J. E. Burtrum, the court finds that at said time there was no intent on the part of J. W. Burtrum to make a gift of said money or the certificate evidencing ownership of the same to the plaintiff, J. E. Burtrum.
“17. The court finds that the transfer of the record title of said funds from the name, of J. W. Burtrum to J. E. Burtrum, on September 17, 1932, the statement of J. W. Burtrum to J. E. Burtrum, on January 11, 1933, in substance, and to the effect that he was making a gift of said money to said J. E. Burtrum, and that he would hold and care for the certificate of deposit for J. E. Burtrum; that the endorsement and delivery of the certificate of deposit payable to J. E. Burtrum by said J. W. Burtrum, and without authoritj' from J. E. Burtrum, attempting to thereby convert the record title of said money from the name of J. E. Burtrum back into the name of J. W. Burtrum was as to each separate act on the part of J. W. Burtrum, a part of a scheme and plan, on the part of J. W. Burtrum, to conceal from his wife, Nellie M. Burtrum, the nature, the extent and the location of his property interest, for the purpose of cheating and defrauding said Nellie M. Burtrum in the property settlement thereafter entered into between the parties and approved by the district court of Craig county at Vinita, Oklahoma, on January 13, 1933.
“18. That the plaintiff, J. E. Burtrum, did not know of and did not participate in the plan and scheme of J. W. Burtrum to defraud his wife, Nellie M. Burtrum, in the property settlement in the divorce case.
“19. That had Nellie M. Burtrum known of the fact that there was on deposit in the Chetopa State Bank, on January 13, 1933, the sum of $10,400.59, which said J. W. Burtrum claimed as his own property, she would not have agreed to the property settlement entered into between the parties on January 13, 1933; that the concealment of said funds by said J. W. Burtrum, by the transfer of the record title of same from his own name to that of his son, J. E. Burtrum, constituted a transfer of title with the intent, on the part of J. W. Burtrum, and for the purpose of defrauding said Nellie M. Burtrum, in the property settlement in said divorce case; that by reason of the acts aforesaid, said J. W. Burtrum was enabled to and did defraud his wife, Nellie M. Burtrum, in said property settlement.
CONCLUSIONS OF LAW
“Wherefore, the court concludes, as a matter of law, that the intervener, J. W. Burtrum, not having come into court with clean hands, all as shown by' the above and foregoing findings of fact, that said intervener, J. W. Burtrum, is not entitled to the relief as prayed for in his petition, and that the plaintiff, J. E. 'Burtrum, should be decreed to be the sole, separate and absolute owner of the funds now deposited in the Chetopa State Bank of Chetopa, Kansas, in the sum of 110,490.59, together with accumulated interest, and that said bank should be directed to forthwith pay the aforesaid funds to plaintiff, J. E. Burtrum, and that intervener, J. W. Burtrum, pay the costs of this action.”
Appellants contend the court erred in overruling the intervener’s motion to strike from plaintiff’s answer to the intervening petition allegations to the effect that the intervener placed the certificate in plaintiff’s name and gave it to him fqr the purpose of defrauding intervener’s wife in the divorce action. The soundness of the ruling depends on whether the facts pleaded constitute a defense to the intervening petition. It is well-settled law that where property is transferred with a fraudulent purpose the grantor cannot recover it from the party to whom he transferred it. (Robinson’s Executors v. Blood’s Heirs, 64 Kan. 290, 67 Pac. 842; Wyatt v. Collins, 105 Kan. 182, 180 Pac. 789, 105 Kan. 189, 180 Pac. 992.) Plaintiff could plead facts which constitute a defense to the intervening "petition.
Appellants argue even if the intervener has practiced fraud on his wife in the divorce action plaintiff cannot take advantage of it. The intervener placed the certificate in plaintiff’s name, thereby giving him title to it, and that is where the title stays unless he can get it back, which his fraudulent purpose in making the transfer prohibits him from doing. Having shown no authority to endorse plaintiff’s name to the certificate appellants now contend — although it seems this contention was not made in the trial court — that the name of the plaintiff in the certificate was a “fictitious” name within the meaning of R. S. 52-209, hence that it needed no endorsement by plaintiff, and the intervener, having possession of it, could rightfully endorse it and receive payment. There are three answers to this argument: (1) Plaintiff was not a fictitious person, either in fact, or under the evidence, or under the court’s findings, or under the' authorities cited by appellant; (2) the intervener, under the evidence or the court’s findings, was a holder of the certificate for the plaintiff and was not holding it for himself, and (3) the point was never raised or passed upon by the trial court.
The appellant, J. W. Burtrum, contends the court erred in overruling his motion for a jury trial. He got into this case by permission of the court to file an intervening petition. The remedy by interpleader is an equitable one, and the interpleader is not entitled to a jury as a matter of right. (Bennett v. Wolverton, 24 Kan. 284; Robertson v. Robertson, 100 Kan. 133, 136, 163 Pac. 655.) More than that, ho jury question was raised by the pleadings. The question of the amount of recovery was not in dispute. The issues were the alleged frauds of the intervener and the effect thereof.
The findings are fully sustained by the evidence. We find no error in the record. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This action originated as one in replevin, and this appeal is chiefly concerned with certain supplemental proceedings for the collection of the judgment.
Heretofore on some date not shown, the plaintiff Gray replevied a herd of cattle in the possession of defendant Penley. When the cause came on for trial plaintiff dismissed his action, and on October 14, 1932, defendant was given judgment for the return of the cattle or for $180.25 with interest.
On July 28, 1934, defendant, as judgment creditor, caused garnishment summons to be served on one Ernest Walker who answered that he was indebted to Gray in the sum of $80.
Gray filed an answer in which he averred that he had returned the livestock which had been the subject matter of the action in replevin and had paid the costs. Gray concluded with a prayer that the clerk of the court be directed to enter full satisfaction of the judgment in the replevin case.
The cause was heard by the court. Plaintiff, defendant, and other witnesses gave testimony; the trial court found the issues in favor of Penley; directed the garnishee to pay over to him the $80 he admitted owing Gray, and directed that this sum be credited on the judgment theretofore entered in the replevin action.
Plaintiff Gray appeals, contending that the evidence showed that he had returned the property involved in the replevin case, and in consequence that he was entitled to have the judgment in that case marked satisfied. The evidence, indeed the plaintiff’s own testimony, will not bear such an interpretation. There is a seeming want of candor in both briefs; the record is too scant to fully apprise the court; an inference may be deduced that some sort of ineffective hocus pocus -relating to the return of some of the replevied cattle had been attempted; yet plaintiff admitted that he had sold some of the cattle and had pocketed the proceeds, and that he actually had possession of some of the cattle at the very time of the hearing of the proceedings in garnishment.
Appellee suggests that less than $100 is involved and that this appeal should be dismissed. Be that as it may, the judgment of the district court is unassailable, and it is therefore affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is a petition for a writ of habeas corpus by one who is now confined in the state penitentiary under sentence as a habitual criminal under R. S. 1933 Supp. 21-107a, having been found guilty by a jury in the district court of Sumner county of the crime of forgery in the second degree, the punishment for which is “confinement and hard labor not more than ten years.” (R. S. 21-631.)
The journal entry of judgment shows that five days after the verdict of guilty was rendered the court overruled motions of defendant for a new trial and in arrest of judgment and continued the matter of passing sentence on defendant as a habitual criminal for nine days, then found him, after the introduction of evidence, to have been previously convicted of two other felonies and to have served sentences therefor, one in the reformatory of Oklahoma and the other in the Kansas State Penitentiary, and sentenced him as a habitual criminal.
The warden of the state penitentiary is madé respondent in the petition, and he has filed a formal return and also a motion to dismiss the petition, assigning many reasons and calling attention to numerous alleged omissions and defects therein. While there may be merit in some of the grounds of the motion to dismiss because of irregularities, omissions or defects, yet we feel like overlooking them because the petitioner is acting as his own attorney in the preparation of his petition and his brief. Such motion of respondent will theref ore be overruled.
The petitioner Urges many constitutional reasons why his imprisonment under this habitual-criminal act is illegal and why a writ of habeas corpus should be granted him. This act has several times, after full and careful consideration in this court, been held to be. constitutional, one of which decisions was rendered very recently in the case of Levell v. Simpson, 142 Kan. 892, 52 P. 2d 372, which was a case where the facts were almost exactly like those in the case at bar. There the petitioner was serving a life sentence for grand larceny, which sentence was imposed after it was shown that he had theretofore been convicted of two other felonies, for one of which he had served a term of imprisonment in the Kansas penitentiary and the other in the Missouri penitentiary, and it was there held that—
“The statute under which the petitioner was sentenced is not subject to any constitutional or other infirmity which would render void the sentence and judgment under which he is incarcerated in the penitentiary.” (Syl., fl 5.)
It was also held in that case that habeas corpus was not a substitute for a timely motion for a new trial and appeal on account of procedural irregularities, and that a defendant is not entitled to a jury trial on the question of whether or not he had theretofore been convicted of prior felony or felonies, and that such matter was not a proper or necessary charge or charges to be included in the information, and that the petitioner was properly sentenced as a habitual criminal under the statute.
In the case of State v. Woodman, 127 Kan. 166, 272 Pac. 132, the following statement from the text, 16 C. J. 1339, was quoted with approval: “Statutes which authorize a more severe penalty to be inflicted upon one convicted of a second or subsequent offense are constitutional.”
Petitioner especially stresses the point of the law not affording equal protection to all offenders in that it allows the exercise of discretion and discrimination between offenders and is therefore in violation of the fourteenth amendment of the United States constitution. That matter was fully considered in In re Skinner, 136 Kan. 879, 18 P. 2d 154, where it was held:
“The exercise of reasonable judicial discretion which results in a discrimination in the application of a law to those of the same class does not necessarily or generally render the law unconstitutional as depriving one of the equal protection of the law.
“The omission or failure of trial judges to make findings of prior conviction or convictions of other defendants under the provisions of the habitual-criminal act (R. S. 1931 Supp. 21-107a) does not in and of itself and without a showing of the discrimination being illegal by reason of its being willful, arbitrary, designed, deliberate, intentional or by concerted action, deprive one in whose case such finding was made of the equal protection of the law or render the law unconstitutional as being in violation of the fourteenth amendment of the United States constitution.”
See, also, State v. Merriweather, 136 Kan. 337, 15 P. 2d 425, where the proof of former conviction, although not regularly authenticated, was held to be conclusive.
The petitioner also objects to the enforcement of this law because it is an ex post facto law, the first felony which is taken into consideration in this case having been committed, if committed at all, prior to the enactment of the law by the legislature of 1927, but it has been generally held that it is not an ex post facto law, that it is simply an additional or greater punishment imposed for the recent conviction because of a former conviction or convictions. It was said in 58 A. L. R. 21:
“A statute enhancing the punishment for a second or subsequent offense is not an ex post facto law merely because the prior offense occurred before the statute in question was enacted or became effective.”
Also, in the same section heretofore cited from 16 C. J. 1339, it is said that such statutes “are not objectionable upon the ground that they are ex post facto laws, that they inflict a double punishment for the same offense, that they inflict cruel or unusual punishment, that they put accused twice in jeopardy for the same offense, that they deny defendant due process of law, that they deny defendant a fair and impartial trial, or that they impose a penalty on crimes committed outside the jurisdiction. Likewise such a statute is not violative of a constitutional provision requiring that all penalties shall be proportioned to the nature of the offense; nor is it objectionable on the ground that it prescribes different punishment for different persons committing the same offense.” (See, also, State v. Frizzell, 137 Kan. 35, 19 P. 2d 694.)
Petitioner especially urges the fact that the first of the two prior felonies relied upon by the state was committed when he was a minor and mentally incapable of making a proper defense to the charge, that his mother insisted that he plead guilty and throw himself upon'the mercy of the court, and that the conviction under such circumstances is void. The case of State v. Strasburg, 60 Wash. 106, 110 Pac. 1020, is cited and urged as decisive on this question. That 'decision is an' able discussion of constitutional law, but the act in question was very different from the one here under consideration. It is described in the syllabus as being an act providing punishment for the criminally insane by restraint beyond the necessities of protection to society after the complete restoration to sanity.
In Weihofen on Insanity as a Defense in Criminal Law it is said on page 257:
“Where the defense of irresponsibility by reason of insanity was not raised at the trial the reviewing court will not consider the question on appeal or habeas corpus.”
In 8 R. C. L. 274 it is said:
“Even though a sentence under a prior conviction is void, the conviction is still a first conviction within the meaning of the statutes, because a void sentence does not affect the conviction, but simply compels the appellate court to remand the case for a proper sentence. An erroneous conviction is voidable merely and not void, and until proper steps are taken to secure its reversal it will stand and be as effective as a conviction free from error. Hence the rule is that such a conviction is to be considered as a prior conviction in determining whether the defendant therein is an habitual criminal. . . .”
Mental unsoundness is a condition that is necessary to be proved, as sanity, like innocence, is presumed until the contrary is established. (Ex Parte McKenzie, 28 S. W. 2d [Tex. Cr. App.] 133.) It is a procedural matter and should have been brought to the attention of the court at the time of the trial.
“One who pleads guilty to a charge of embezzlement cannot by proceedings in habeas corpus secure his release by showing that the prosecution was barred by the statute of limitations at the time he was arrested.” (In re Johnson, Petitioner, 117 Kan. 136, syl., 230 Pac. 67.)
“No offender under sixteen years of age may be imprisoned in the state industrial reformatory, but where a judgment in the district court recites that the age of the defendant sentenced to' that institution was found and decided to be more than sixteen years the adjudication of that fact, although erroneous, is not open to attack in a habeas corpus proceeding.” (In re Wallace, 75 Kan. 432, syl. ¶ 2, 89 Pac. 687.)
The fact of the first conviction being obtained in another state is fully cared for in the concluding language of the statute itself (R. S. 1933 Supp. 21-107a), where it refers to former convictions for felonies committed by the prisoner, “in or out of this state.”
We adhere to our former rulings that R. S. 1933 Supp. 21-107a, the habitual-criminal statute, is not unconstitutional, and the fact that the petitioner may have been a minor or a person of unsound mind at the time of the first conviction, is a matter of procedural irregularity, which might possibly have tended to render the first-conviction voidable but not void, nor open to attack in a habeas corpus proceeding.
The writ of habeas corpus is denied.
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The opinion of the court was delivered by
Marshall, J.;
The plaintiffs commenced this action to set aside a tax deed conveying certain real property in Morris county to the defendant Dicae A. Munsell. The defendants answered denying any title in the plaintiffs and alleging title in defendant Dicae A. Munsell. Judgment was rendered setting aside the tax deed, decreeing that the plaintiffs were the owners of the premises, subject to a life estate in Francis E. Munsell, and quieting the title of the plaintiffs against the defendants, subject to that life estate. The defendants appeal. Findings of fact and conclusions of law were made as follows;
“April 26, 1904, Oliver S. Munsell, being the owner of section 25, in township 15, range 7, Morris county, Kansas, conveyed said premises to Clara B. Munsell, his wife, and Francis E. Munsell, by an instrument offered in evidence, as plaintiffs’ exhibit E. By the terms of said instrument, the grantees became trustees, and among other things said trustees, upon the death of the grantor, were to hold said premises for the benefit of persons named in the will and codicil thereto of the grantor, and if necessary to execute such conveyances as might be necessary to make conveyances to cany out the terms of said will and codicil.
“The grantor died; his will and codicil thereto were duly probated. By the terms of said will an inalienable life estate in the above-described premises was devised to Francis E. Munsell, with reversion and succession to the legal heirs of his body, share and share alike.
“Francis E. Munsell had three heirs of his body, one of whom was James O. Munsell. The other heirs conveyed to James O. Munsell their interest in the premises in controversy. On July 6, 1916, Kate G. Munsell was granted a divorce from her husband James O. Munsell by the district court of Dickinson county, Kansas, and was by said court awarded all the right, title and interest of her husband in the premises in controversy.
“Just prior to said decree of divorce the First National Bank of Herington, Kansas, attached the premises in question as the property of James O. Munsell, and said premises were sold. Thereafter they were redeemed by the divorced wife of James O. Munsell for the sum of $4,058.62, the money therefor being furnished by the plaintiffs, and she conveyed the remainder estate in said premises to the plaintiffs.
“The owner of the life estate failed to pay the taxes against the premises for the years 1918 to 1922 inclusive, and a tax deed was issued therefor to Dicae A. Munsell, to whom Francis E. Munsell conveyed the premises.
“Said tax deed shows that said premises were bid in by the county treasurer and a tax deed issued therefor on the same day, and said deed fails to show the amount for which said premises were bid in, and that no notice of final redemption of said premises was published as by law provided.
“Conclusions op Law.
"The tax deed issued to Dicae A. Munsell is void, and any lien for taxes is merged with the life interest óf F. E. Munsell, to which she claims to have succeeded.
“The plaintiffs are the owners of the premises in question, subject only to an estate during the life of Francis E. Munsell.
“That the title of the plaintiffs to said premises, subject to an estate during the life of Francis E. Munsell, should be quieted against all the parties defendant in this action.”
The attachment suit was by the First National Bank of Herington as plaintiff against J. O. Munsell as defendant. The writ of attachment was directed to the sheriff of Morris county and said:
“You are commanded to attach the lands, tenements ... of the above named defendant, J. O. Munsell, in this county.”
The sheriff’s return on the writ of attachment recited:
“By virtue of said order, I attached said real estate at the suit of the within named plaintiff.”
The journal entry of the judgment rendered on April 5, 1916, in the attachment action contained the following language:
“The court further finds that there is due from the defendant to the plaintiff, on both causes of action set up in plaintiff’s petition, the sum of $3,874.35. . . .
“The court further finds that the following-described real estate situated in Moms county, Kansas, has been attached in this action, to secure the payment of said sum . . . and that said attachment is in conformity with the statute in such case made and provided in all respects, and said attachment is sus tained, and that the interest of the defendant ought to be sold to satisfy the claim of the plaintiff, . . . and that an order of sale should issue in this cause for that purpose.
“The court further finds that the interest of said defendant in said real estate is subject to the life estate of F. E. Munsell, and that after the termination of said fife estate the defendant will be the owner in fee of said real estate.
“It is therefore ordered, adjudged and decreed that the said J. O. Munsell is indebted to the plaintiff in the aforesaid sum of S3,87435, and that the plaintiff has an attachment lien on the interest of J. O. Munsell in said real estate, subject to the life estate hereinbefore mentioned. It is further ordered and adjudged and decreed that an order of sale issue out of the office of the clerk of the district court of this county to the sheriff of Morris county, Kansas, commanding him to sell all the right, title, and interest of the defendant in said real estate, subject to the life estate of F. E. Munsell, . . .”
The interest of James O. Munsell in the land was sold under that judgment. The record presented to this court does not show who was the purchaser. Other facts shown by the evidence were as follows: Charles H. Munsell, James O. Munsell and Edwin G. Munsell were the children of Francis E. Munsell. There were no children of deceased children. On April 7, 1926, Francis E. Munsell and his wife executed a warranty deed conveying the real property to Dicae A. Munsell, the wife of Charles H. Munsell. The present action was commenced May 12, 1926. Francis E. Munsell was the president of and the principal stockholder in the First National Bank of Herington, the plaintiff in the attachment action. That action was on two causes of action — one on a note for $910, dated February 26, 1914, signed by J. O. Munsell, given to the bank, and payment thereof guaranteed by F. E. Munsell. The other cause of action was on an account for $2,810.05 for money paid to various parties by Francis E. Munsell for James O. Munsell covering a period of time running from January 4, 1907, to June 1, 1914. That account was assigned to the bank by Francis E. Munsell shortly before the commencement of the action in February, 1916.
The part of the will of Oliver S. Munsell material for consideration at the present time read as follows:
“I hereby give, devise and bequeath to my son Francis E. Munsell, now of Herington, Kansas, an inalienable life estate in the following-described real estate lying and being in the county of Morris and state of Kansas, viz.:
“All of section twenty-five (25) in township fifteen (15) south of range seven (7) east, with all of its appurtenances, tenements and hereditaments, with reversion and succession, in fee simple, on his decease to the legal heirs of his body at the time of such decease, share and share alike.”
The plaintiffs contend that Francis E. Munsell and his privies are estopped to claim title to the real property as against them by reason of the attachment of the real property at the suit of the First National Bank of Herington. Was the defendant Francis E. Munsell estopped by the attachment, by the judgment in the attachment action, or by the sale of the property in that action?
In Ard v. Pratt, 61 Kan. 775, 60 Pac. 1048, this court said:
“One who causes an execution to be levied on land as the property of another necessarily affirms that such other has a salable interest in the land, and will not be heard to deny such interest and title when the owner sets up a claim that the property levied on is a homestead and exempt from sale upon execution.” (Syl. f 1.)
In the attachment action judgment was procured declaring that after the termination of the life estate of Francis E. Munsell, James O. Munsell would be the owner in fee of that real property. Francis E. Munsell is bound by that judgment. It estops him from doing anything that will defeat that ownership in fee after the termination of the life estate. To hold otherwise would permit Francis E. Mun-sell, through the bank of which he was president and principal stockholder, to sell the land on order of sale, bid it in for the full amount of the judgment, and then defeat the rights of the redeemer from the sale by deeding the land to another person. In other words, Francis E. Munsell, by that means, would not only get the redemption money but would also in effect keep the land.
It follows that the judgment should be and.it is affirmed.
Harvey, J., dissenting.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by a school district in Sedgwick county to recover tuition from Kingman county for pupils who resided in Kingman county and attended high school (at Cheney) in Sedgwick county. Plaintiff prevailed and defendant appeals.
Trial was to the court. Material facts agreed to were substantially that Sedgwick county operates under the Barnes law (R. S. 72-3001 to 72-3022, with later amendments); that Cheney is located about a mile from the Sedgwick-Kingman line; is the center of school district No. 141, and maintains a high school, the graduates of which are entitled to admission to the freshman class of the schools of arts and sciences in the University of Kansas. That the pupils in question are bona fide residents of Kingman county, and all presented certificates signed by the superintendent of public instruction of Kingman county, certifying that they had completed the course of study for the eighth grade or passed examinations satisfactory to the high-school authorities of the plaintiff district. That all of them attended plaintiffs high school for the time in question. That the county superintendent of Sedgwick county approved the bills for tuition for 1924-’25 and 1925-’26 and recommended their payment. It was also agreed that there were rural high-school districts within Kingman county during the years in question and specifying their enrollment, where the pupils in question might have attended. That the taxable valuation of certain townships of Kingman county, where the pupils in question might have attended, was sufficient for the establishment of another rural high-school district. Also, that the students attending the plaintiff high school from Kingman county resided at distances from five to seven miles from the school; that some of them lived within from seven to nine miles of the Norwich rural high school in Kingman county, and some within ten miles of the high school at Kingman.
The defendant contends that under the provisions of the existing law (Laws of 1905, ch. 397), as subsequently amended, the students in question should have attended a high school maintained in the townships of Vinita and Evan in Kingman county. That in order for the plaintiff to maintain this action against Kingman county it should have shown that there were an insufficient number of students in such townships to organize and maintain another high school, and that the valuation of that territory was insufficient to maintain a high school. That the townships in question (two from which students attend the Cheney high school) have a valuation of something over two and a half million dollars, and that within their territory there were during the two years in question around sixty students of high-school age and attainment. A painstaking argument in support of the contention cannot be sustained- because not in conformity with the requirements of the statute, which reads:
“That tuition shall be free in all high schools established pursuant to Laws 1905, ch. 397, as amended by later enactments, to pupils residing in the county where such high-school law is in force: Provided, That such pupils shall present to the high-school authorities an entrance certificate, signed by the county superintendent of public instruction, certifying that such pupil has completed the course of study prescribed by the.state board of education for the pupil below the high school, or who shall pass such entrance examination as the high-school authorities may require: Provided further, That when pupils reside in an adjacent county that does not- operate under the provisions of such high-school law established pursuant to Laws 1905, ch. 397, as amended by later enactments, the board of county commissioners of such adjacent- county in which the pupils reside, shall, upon recommendation of the county superintendent of public instruction having jurisdiction over the high school where said pupils attend, pay the tuition of $2 per week, or fraction thereof, for such pupils to the district in which the high school is located: Provided further, That this act shall apply to all high-school pupils residing in any adjacent county that attend high school established under Laws 1905, ch. 397, as amended by later enactments: Provided further, That the said county commissioners shall pay such tuition from the general fund of the county where such pupil or pupils reside.” (R. S. 72-3014.)
In Byers Rural High School v. Stafford County Comm’rs, 121 Kan. 832, 250 Pac. 313, it was said in the opinion:
“In Board of Education v. Leavenworth County Comm’rs, 119 Kan. 117, 237 Pac. 1055, it was held that tuition must be paid on the recommendation of the county superintendent of the county in which the pupils resided. Under that construction, sections 72-3013 and 72-3014 conflict with each other. Which is the controlling statute? Section 72-3014 is the last expression of the legislature, and for that reason it must control.” (p. 836.)
The parties to this action were before this court in a mandamus action by plaintiff to compel defendant to pay the tuition in question, in School District v. Kingman County Comm’rs, 122 Kan. 213, 251 Pac. 631, where it was held that payment could not be compelled by mandamus. It was, however, observed in the opinion:
“The petition states facts which bring the case completely within the rule declared in Byers Rural High School v. Stafford County Comm’rs, 121 Kan. 832, so far as the liability of Kingman county to plaintiff district is concerned.” (p. 214.)
We adhere to the decision that the defendant is liable for the tuition.
Contention is made that the court erred in allowing interest on the claims from the date they became due, because there is no statutory authorization therefor. (Jackson County v. Kaul, 77 Kan. 715, 96 Pac. 45; Salthouse v. McPherson County, 115 Kan. 668, 224 Pac. 70.) Plaintiff’s petition prayed for judgment for the full amount of the first claim, with interest at six per cent from July 1, 1925, and on the second claim at the same rate from July 1, 1926. The court entered judgment upon the two claims, calculating interest up to and including October 3,1927, the date on which judgment was rendered, and included such interest in the judgment, the total amount being $3,556.08, of which amount $327.28 was interest.
The plaintiff, on the other hand, contends that the defendant approved the figures and amounts which were given to the court; that the defendant did not question the allowance of interest before the trial court and is precluded from first raising the question here. In answer to this, the defendant argues that while the specific point was not mentioned to the trial court, the general allegations of error contained in its motion for a new trial were sufficient to comprehend the question of interest; that the court overruled the motion for a new trial, and that it is therefore not precluded' from raising the question here. This court has repeatedly held that error cannot be predicated upon action of the trial court unless the alleged erroneous action is submitted to that court for determination. (Kelly v. Insurance Co., 101 Kan. 636, 168 Pac. 686; Schmitz v. Schmitz, 125 Kan. 115, 263 Pac. 1045; Koshka v. Railroad Co., 114 Kan. 126, 219 Pac. 293.) It is apparent that neither of the parties to the action nor the trial court gave any attention to the question of interest. It was computed by the parties, and no question being raised it was allowed by the court as a matter of course. Under the circumstances it cannot be said that the court committed error in allowing it. However, since there is no authority under the statute for the allowance of interest on a debt due from a county (Jackson County v. Kaul, supra; Salthouse v. McPherson County, supra), we are of the opinion the judgment should be modified so far as the interest item is concerned.
The judgment is modified by striking out the amount of interest- and as modified is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
Appellant was charged, tried and found guilty of robbery in the second degree. He has appealed, and contends the court erred: (1) In not granting a continuance, (2) in requiring defendant to plead to an information filed before the warrant had been returned or a preliminary hearing held, (3) in setting the case for trial before there was any case pending in the district court, and (4) in not permitting defendant ten days in which to prepare his case.
No transcript of the testimony has been made and the record before us is meager. From it we get the facts to be substantially as follows: On February 8, 1935, Fred E. Etherton was robbed of $68, at Dodge City, by three men, under such circumstances as to constitute robbery in the second degree. On March 25 an affidavit charging Harold Gipson, John Doe and Richard Roe with the offense was filed with the county court, and a warrant was issued for Gipson’s arrest. He was apprehended at Phoenix, Ariz., in May. He resisted extradition, a hearing was had before the governor of Arizona, and he was brought back to Ford county. In default of bond he was placed in jail. Soon thereafter two attorneys, one of Hutchinson, another of Dodge City, representing themselves to be employed by him, began conferring with him and discussing his case with the prosecuting officers. They asked for delays in conducting the preliminary examination and appear to have wanted the charge changed to a less serious offense, to which he would plead guilty, which the prosecuting officer declined to do. Several dates were fixed for the preliminary examination, at which times counsel for defendant asked for more time, and stated there was no necessity of making any preparations to hold it for the reason that the preliminary examination would be waived. The case dragged along in that situation until the time approached for the beginning of the regular September, 1935, term of the district court. Shortly before the first day of that term of court, as is the practice in that judicial district, a day was set apart, of which attorneys were notified, for the purpose of sounding the docket and ascertaining what cases would be for trial to a jury. Defendant’s counsel was present on that occasion and, after the court had called and inquired about the cases on the docket, called attention to the fact that this case was not on the docket and announced that it would be for trial and that defendant would be ready for trial. The nature of the charge was discussed, also the fact that a preliminary examination had not been held. Defendant’s counsel stated he would waive the preliminary examination. The court set the case for trial for September 12. A few days later, and on September 9, the county attorney filed the information in the case, apparently overlooking the fact the preliminary examination had not been held or waived. That was discovered a day or two later. Defendant refused to waive the preliminary examination, and it was held the morning of September 12, and defendant was bound over to the district court for trial. Thereafter and on the same day the information was refiled. Later in the day the case was called for trial. Defendant pleaded not guilty and filed a motion for continuance on the ground of absent witnesses, naming two, who he said lived at Wichita. The excuse for not having subpoenaed the witnesses was that he had been in the county jail since his arrest. This, of course, was no excuse under the circumstances, and his motion for a continuance was denied. It later developed that the place of residence of the witnesses named was fictitious, and perhaps their names were fictitious. The record shows defendant pleaded not guilty to the information after the preliminary examination and after the information was refiled. The court set th^ case for trial before it was pending in the district court at the request of defendant’s counsel and upon his representation that it would be ready for trial, and that an early trial was desired.
The points presented by appellant are devoid of merit. The appeal is frivolous.
The judgment of the court below is affirmed, the mandate to go down at once.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Charles F. Moran and his wife, Edith A. Moran, against J. P. Thurman and John J. Wyatt, brokers, to recover a commission which the latter had fraudulently obtained from them in the sale of real estate which they owned. Upon the evidence offered by plaintiffs the trial court held that it did not establish a cause of action against defendants and a demurrer thereto was sustained. Plaintiffs appeal.
It appears that the plaintiffs owned a half section of land which they listed with defendants to find a purchaser. A purchaser was found, in A. D. Updegraff at the price of $24,000. A number of mortgages had been given upon the land before the sale was made, and Updegraff assumed the face of the mortgages- as part of the purchase price; $1,000 was paid by the purchaser as earnest money and the parties entered into a written agreement to the effect that plaintiffs ratified the contract of sale, acknowledged the receipt of $1,000, and it was stipulated that the net balance to be paid to plaintiffs, less the commission, when the transaction was closed was $19,000, which amount was made up in large part of the mortgage indebtedness assumed by the purchaser. As to the commission of plaintiffs, it was stipulated that the balance of the $24,000 to be paid by the purchaser, whether in land, notes, mortgages, money or other property, should be paid to the defendants as their compensation for negotiating the sale, and that no other commission should be due from plaintiffs. It was stipulated that the defendants were required to pay out of the $4,000 interest on the mortgages up to a certain date. The agreement contained other provisions as to producing abstracts of title, the giving of possession of the land, the division of the crops on the land, also as to a possible lease, and that they would aid in procuring a loan to plaintiffs on another tract of land, and some other provisions not material to the controversy.
The transaction with the purchaser was closed and a deed to him was executed. Out of the money paid by the purchaser, after subtracting the mortgage indebtedness which had been assumed by him, there remained the sum of $5,933.71, and of that sum there was due to the plaintiffs as commission $3,140.34, which was paid to defendants through plaintiffs’ agent, Paul Brown, who acted for plaintiffs under specific written directions as to the payment. These directions were carried out faithfully- by- Brown. The plaintiffs in their directions specified the sum due to defendants, to wit: $3,140.-34, and the transaction was closed and payment of commission made in May, 1918. Nearly nine years later, and on February 28, 1927, this action was brought by plaintiffs asking for the recovery of the commission paid to defendants in 1918, alleging that in the transaction defendants had not dealt openly and fairly with plaintiffs in reporting the sale; that they represented the land was sold for $20,000, instead of $24,000, the actual price, and that $4,000 of the named price of $24,000 was oil stock of the face value of $4,000, but that it was worth much less and that this was to be accepted by-defendants as commission. It is alleged that there was no oil stock involved in the-deal and that plaintiffs did not learn that fact until February, 1925; that the sale was made for $24,000 cash, which was the consideration actually paid by the purchaser. Because of the alleged misrepresentation and fraud of defendants, the plaintiffs claimed the defendants had forfeited the right to any commission and hence this action to recover it back.
The defendants answered with a general denial and also an allegation that the cause pleaded by plaintiff was barred by the statute of limitations as it accrued, if ever, jnore than two years before the petition charging fraud was filed. The plaintiff, Moran, testified that defendants represented that the price offered for the land was .$20,000 in cash and $4,000 in oil stock which was to be accepted by them as commission for negotiating the sale, and that not until February, 1925, did he learn of the misrepresentation when he was told by the purchaser that no part of the consideration was to be paid in oil stock, and that he had not offered oil stock as part payment.
The evidence upon which the ruling was made included the following letters from .plaintiff, dated May 2, 1918, which specifically directed payment to defendants and on which a receipt of payment was indorsed:
“Wichita, Kan., May 2, 1918.
“.Mr. Paul Brown, Wichita, Kan.:
“Dear Sir — Out of the proceeds of the money you collect from Dr. Updegraff, you will please pay to J. P. Thurman and John J. Wyatt the sum of $4,000, less the following amounts:
To be paid...................................................... $4,000.00
Less:
Interest on first mortgage, Feb. 1, 1918, to Feb. 1, 1919.. $750.00
Interest on Swartz mortgage, Feb. 1,1918, to May 1, 1918, 62.50
Interest on Chappie mortgage, Feb. 1,1918, to May 1,1918, 17.16
Bonus of 50 cents per acre on pasture, 60 acres........... 30.00
- 859.66
Net amount to be paid.......................................... $3,140.34
“Yours very truly, C. F. Moran.”
On of letter the following: “15,933.71
3,140.34
$2,793.37
“May 9, 1918.
“Mr. Paul Brown — Pay to J. P. Thurman and John J. Wyatt, the $3,140.34 set out in this letter and I hereby acknowledge receipt of the amount coming to me, to wit, $2,793.37. C. F. Moran."
“May 9, 1918.
“Received of Paul Brown the $3,140.34 stated in this letter.
J. P. Thurman.
John J. Wyatt.”
Payment was made under this direction with a check duly signed to Thurman & Wyatt for $3,140.34, on which payment was received by the defendants. From the moneys derived from the purchaser a check was issued to plaintiffs for $2,793.37, which was paid to plaintiffs as their portion of the purchase price. On May 2,1918, a letter of plaintiffs directing a delivery of the deed to the purchaser which included a statement of the amount to be collected after the deduction of the mortgages assumed, taxes and interest to be paid by the defendants as follows:
“Mr. Paul Brown, Wichita, Kan.: May 2, 1918.
“Dear Sir — You will please deliver my deed to the north half of 27-32-1 east, Sumner county, Kansas, to Cliff Matson for Dr. Updegraff, upon the payment of $23,000, less the following amounts as per attached statements:
Account to be paid..............................................$23,000.00
Less first mortgage and accrued interest to Feb. 1, 1919.. $11,750.00
Less second mortgage favor S. E. Swartz, accumulated interest and penalties................................. 4,143.54
Less mortgage favor J. N. Chappie, accrued interest and penalties ........................................... 1,082.16
Less taxes and penalties................................ 90.59
- 17,066.29
Net amount to be collected...................................... $5,933.71
“Yours very truly, C. F. Moran.”
Another letter addressed to Brown was the following:
“Mr. Paul Brown, Wichita, Kan.: May 2, 1918.
“Dear Sm — Out of the proceeds of the money you collect from Dr. Updegraff, you will please pay to J. P. Thurman and John J. Wyatt the sum of $4,000, less_the following amounts:
To be paid...................................................... $4,000.00
Less:
Interest on first mortgage, Feb. 1, 1918, to Feb. 1, 1919.. $750.00
Interest on Swartz mortgage, Feb. 1,1918, to May 1,1918, 62.50
Interest on Chappie mortgage,Feb. 1,1918, to May 1,1918, 17.16
Bonus of 50 cents per acre on pasture, 60 acres.......... 30.00
- 859.66
Net amount to be paid........................................... $3,140.34
“Yours very'truly, C. F. Moran.”
On May 7, 1918, the following receipt and release were given relating to compliance with other provisions of the contract and recognizing the cash balance due from the land and the amount to be paid to the defendants as their commission:
“Wellington, Kan., May 7, 1918.
“Mr. Paul Brown, you are hereby instructed that whenever my deal is closed and financed according to contract that is to say to the extent of sixteen thousand eight hundred dollars on the same terms as is provided for in contract dated April 4, 1918, and supplemental contract dated April 20, 1918, which contract is on NE14 of sec. 11-33-2 west and SEU of sec. 2-33-2 west, then said Thurman and Wyatt shall have the $3,140.32, and same shall be paid to them by you out of $5,933.71, which you now hold. C. F. Mohan.”
On May 21, 1918, the following receipt and release was executed by Moran acknowledging fulfillment of the contract in other respects:
“May 21, 1918.
“Received of J. P. Thurman and John J. Wyatt satisfactory loans aggregating $16,800, and $150 in cash, in full compliance with contract, and full and complete settlement of deal except as follows: Said Thurman and Wyatt are to procure a $200 loan due Sept. 1, 1918, at 6 per cent interest, same to be secured by a chattel mortgage on one-third of the wheat now growing on the southeast quarter of sec. 2 and the northeast quarter of sec. 11-33-2 west; and I hereby release said Thurman and Wyatt of any claim of whatsoever kind. Charle F. Moran.
“Receipt and release: In fulfillment of contract as to procuring loans. C. F. Moran with J. P. Thurman and John J. Wyatt.”
While plaintiffs contend that the court erred in sustaining a demurrer to the evidence it appears that the evidence then before the court showed conclusively that the price at which the land was sold was $24,000, that there was no question as to the existing liens upon it, nor that the purchaser was to assume these. There was no question either that the price was actually paid nor that a written contract was made between plaintiffs and defendants before the transaction was closed and the deed executed to the purchaser. The plaintiffs undertook to say that defendants had represented something to the effect that they might have to take oil stock for the $4,000, over and above the $20,000 named, instead of cash, and he said that no such stock was ever received or tendered, and that only cash was to be paid. However, when the contract was afterwards made it was stipulated that the $4,000 reserved for commission might be paid in land, notes, mortgages,- money or other property and that plaintiffs would never be required to pay any other commission. That it was immaterial to plaintiffs in what form payment of the commission was made as the amount to be paid, whether in money or other property, was definitely stipulated. Defendants agreed to pay out of the $4,000 certain interest which was then due and other charges against the land, which left for their compensation for finding a purchaser $3,140.34. This fact was stated in writing in plaintiffs’ letters indicating that it was well understood and acceptable to both parties. The compensation thus paid was treated by both parties as a money and not an oil-stock payment. Prior to the execution of the deed the plaintiffs stated and restated the accounting by which this amount was found due to plaintiffs, and under his direction it was paid to defendants more than ten years ago. After settling with defendants on a money basis it is idle for plaintiffs to contend that the representations respecting oil stock might be taken for part of the price of the land had operated as a fraud upon them. The letters quoted in relation to the transaction showed a deliberate accounting, settlement and payment of the commission, including the subsequent release of defendants, which altogether makes it clear and beyond question that the plaintiffs in their evidence had failed to establish a right of recovery. In view of what had occurred and of the action of plaintiffs, after the alleged representation and the settlement upon a money basis, it would be futile and a trifling with justice to hold that plaintiffs had shown even a 'prima fade right of recovery. More than that, if there had been fraudulent representations made in 1918 respecting acceptance of oil stock, the plaintiff learned definitely,'when the transaction was closed, that payment was made in money and not in oil stock. His cause of action for fraud was barred long before the action was brought. It is vain to talk about his lack of knowledge of the fraud respecting oil stock when under his direction money, and not oil stock was paid. The evidence shows that beyond doubt plaintiffs knew the essential facts in 1918, and the result is that the right of action, if any they had, was barred years before it was brought.
There is a complaint of the reception and consideration given to the testimony of Paul Brown, the attorney, who acted for plaintiffs in the receipt and payment of the purchase money and in the delivery of the deed. They contend that being an attorney the letters and directions given' to Brown by plaintiffs were confidential and privileged. It will be observed that, while Brown was an attorney, the matters committed to him were not of a secret or confidential character.
On the other hand, the instructions given to him were extra professional in nature such as might have been given to an agent or trustee or anyone not acting in the capacity of an attorney. If it be assumed that the directions in the letters were given to Brown as an attorney they still do not come within the rule of privileged communications since they were intended to be communicated to others. By these communications the plaintiffs constituted Brown as their special agent to make the settlement and close the transaction for the purposes and on the terms prescribed in the letters. 'As to such communications it has been said that:
“There is no privilege as to statements by a client to his attorney for communication to a third person, or matters which the attorney, in the discharge of his duty to his client, is necessarily obliged to make public.” (40 Cyc. 2375.)
In respect to the character of communications to an attorney that come within the privilege, this court held that:
“In order for a communication from a client to his attorney to be confidential and to impose upon the attorney the duty of not disclosing the same it must be of a confidential character, and so regarded, at least by the client, at the time, and must relate to a matter which is in its nature private and properly the subject of confidential disclosure.” (In re Elliott, 73 Kan. 151, 84 Pac. 750.)
As shown the letters authorized Brown to deal with outsiders and settle with them according to the terms prescribed by plaintiffs and were not regarded by either plaintiffs or Brown as private or confidential. Among the many authorities treating on this phase of privileged communications see Bruce et al. v. Osgood, Trustee, 113 Ind. 360; Koeber v. Somers, 108 Wis. 497; Rosseau v. Bleau et al., 131 N. Y. 177; Williams v. Blumenthal, 27 Wash. 24; 28 R. C. L. 563.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This appeal involves the construction of a deed and accompanying contract. Appellant maintains that they constitute a conditional sale of the land therein described, while appellee asserts they constitute a trust. The trial court held that it was not a sale, that the grantee in the deed was a trustee, and ordered a reconveyance and an accounting for the rents and profits. The grantee appeals.
The petition for reconveyance alleges some of the circumstances leading up to the making of the deed and contract as well as the conduct of the parties thereafter, and evidence was introduced along these lines in addition to the introduction of the deed itself and the contract accompanying it. The plaintiff, an elderly man, lived in Barber county and owned 1,100 acres of land in that county, unencumbered, and considerable personal property. In 1919 he was arrested on a very serious charge, and just a few days later was made defendant in two civil actions connected with the criminal charge, where the damages asked for amounted to more than $40,000. Mr. Griffin, the defendant in this action, was employed by the plaintiff herein to defend him in these three actions. Before any of the cases reached trial they were all suddenly dismissed and compromised at a time when Mr. Griffin was not at home. The accused gave a deed to 300 acres of his land to two parties and a mortgage to two others for $6,000 on the remaining 800 acres. Later he consulted with Mr. Griffin, and it was decided to make an effort to recover the land and set aside the deed and mortgage. In November, 1919, he made a contract with Mr. Griffin and Mr. J. W. Davis to commence proceedings for that purpose, which they did, and shortly thereafter, on May 3, 1920, he was rearrested on the same charge. He then employed Mr. Griffin and Senator Davis to defend him in the criminal case for $3,500. At the same time there was other expense with other parties in connection with these trials amounting to $1,500. Separate notes were given for these two amounts to a local bank, and by agreement a second mortgage was given to the bank for $5,000 on the 800-acre tract. The civil action to set aside the deed and mortgage was tried twice with a hung jury each time as a result. The note and mortgage had in due course reached the hands of an innocent purchaser, a trust company, and it commenced a foreclosure proceeding and obtained a judgment in October, 1921. The land was sold by the sheriff to the trust company for the amount of the first mortgage. In the meantime the accused had been tried, found guilty, and sentenced to a term in the penitentiary, from which he took an appeal. He tried to borrow money on the land to redeem it and thus make good the $5,000 second mortgage, of which $3,500 was for attorney fee. Mr. Griffin had advanced and paid a part of .this amount to Mr! Davis, so that he was the main one interested in it. The land was worth more than the first mortgage, but loan companies refused to make the loan to one convicted of crime. This was the situation as shown by the evidence when the deed and contract in question were executed on December 31,1921.
The deed was in the form of a regular warranty deed, consideration $16,000, and excepted the judgment for $7,286.50 and the $5,000 mortgage. The following is a copy of the contract signed by both parties:
“This Agreement, Made and entered into this 31st day of December, 1921, by and between John Handrub, party of the first part, and Samuel Griffin, party of the second part, both of Barber county, Kansas.
“Witnesseth: Whereas, said party of the first part has transferred by a warranty deed to the said party of the second part the following-described real estate, located and situated in Barber county, Kansas, to wit: [description follows] for and in consideration in the sum of five thousand and no/100 dollars, and subject to a certain judgment set forth in said deed.
“Now, therefore, it is agreed by and between the parties hereto that if the said party of the second part shall sell or otherwise dispose of the above- described real estate for a sum in excess of the said five thousand and no/100 dollars, and the judgment of seven thousand two hundred eighty-six and 50/100 dollars, together with interest from the 1st day of October, 1921, at the rate of eight per cent per annum and the costs and accrued costs of said action, in which said judgment was rendered, then said party of the second part agrees to pay the said party of the first part said excess amount.
“It is further agreed that if the said party of the first part should at any time pay to the said party of the second part said sum of five thousand and no/100 dollars hereinabove mentioned, the said party of the second part agrees to deed back to the said party of the first part all of said real estate subject to the judgment hereinabove set forth.
“The said party of the second part does further agree to use his best efforts and endeavor to obtain as large a price for said land as he can possibly get.”
The evidence further shows that Mr. Griffin procured a loan of $10,000 on the land in October, 1922, by personally signing the note and mortgage, paid off the judgment, and had the local bank release the $5,000 mortgage so as to make the new loan a first lien. Since that time the defendant herein has been using, developing and improving the farm, has not accounted to the plaintiff for any returns from it, but once sent him a check for $25 because he understood plaintiff was needing funds. On appeal the criminal case was affirmed, but the accused was never imprisoned in the penitentiary, having been paroled.
This action was commenced July 12, 1926, which was after the date of the parole. It was tried to the court and decided in favor of the plaintiff on November 8,1927. The findings of the court are contained in the following paragraphs of the journal entry:
“And the court, being fully advised in the premises, finds that the evidence established the claims made by the plaintiff in his amended petition, and that the evidence fails to establish the claims made by the defendant in his answer, and the court announced and found that the plaintiff is the owner of the following-described real estate, lying and situate in Barber county, Kansas, to-wit: [Description follows.]
“That the deed made from plaintiff to defendant was not a sale of said real estate, and that the plaintiff did not part with his title to said real estate by the making of said deed, and that the defendant did not obtain title to said real estate by the taking of said deed, and that the plaintiff is the owner of said real estate.
“The court further finds that the defendant has received the income from said real estate since 1922, and that the plaintiff was entitled to said income, and is entitled to an accounting by the defendant for said income.
“The court further finds that during the time the record title has stood in the name of the defendant, the defendant has placed a mortgage on said real estate to take up a mortgage placed thereon by plaintiff.
“The court further finds that the defendant obtained his deed to the premises above described from the plaintiff while he was the attorney for the plaintiff, while the plaintiff was under arrest, and while the relation of attorney and client existed. That the plaintiff is entitled to a conveyance from the defendant, conveying his property back to him.
“The court further finds that the allegations of the plaintiff’s amended petition are true.”
Appellant groups and treats together several alleged trial errors, among others overruling motion to strike out parts of the petition, motion to make petition more definite and certain, demurrer to amended petition, and objection to introduction of evidence. These preliminary matters have been considered in connection with the allegations of the petition, and we see no substantial error in the ruling of the court thereon.
The petition alleged the relation between the parties as attorney and client; that plaintiff was induced by defendant to execute the deed to defendant in order to procure a loan on the land conveyed, so as to pay the judgment against the land and the indebtedness to the defendant, his attorney, and defendant was to return the legal title when plaintiff desired and defendant was paid; also, alleges demand and refusal to reconvey and offer to pay any balance that may remain, and prays for reconveyance as per agreement and an accounting of rents and profits. A pleading can generally be made more definite and certain, and perhaps this one could have been made so, but our attention is not directed to any serious or vital defect therein or prejudicial allegations that might have been stricken out.
It is seriously contended by the appellant'that the plaintiff has no legal capacity to sue because he'had been convicted of a crime and sentenced to confinement and hard labor in the state penitentiary for a term less than life. At the time this case was commenced the supreme court had affirmed the decision and the district judge had paroled him. R. S. 21-118 provides that “a sentence of confinement and hard labor for a term less than life suspends all civil rights of the person so sentenced during the term thereof.” His term of confinement had not commenced. He cannot claim credit for service during the time he is out on parole.
“The suspension of the civil rights of a person sentenced to the penitentiary for a term less than life begins at the date of his imprisonment under the sentence.” (Harmon v. Bowers, 78 Kan. 135, syl. ¶ 1, 96 Pac. 51.)
“From these provisions it appears that civil rights are not suspended until the convict is imprisoned. If we should hold that civil rights are suspended the moment sentence is pronounced the defendant’s punishment would be increased by taking away his civil rights for an indefinite period in excess óf the term of imprisonment, which does not begin until the stay allowed upon appeal has expired and he is imprisoned, or, possibly, when he is in custody to be conveyed to the penitentiary.” (Harmon v. Bowers, supra, p. 137.)
Even the last sentence here quoted will not apply here, for the reason it is not shown that he was ever in custody to be conveyed to the penitentiary.
Appellant urges error in the admission of parol evidence as to the relation of the parties and the circumstances under which the written instruments were executed by the parties hereto, because such evidence tended to contradict, alter and vary the terms of such instruments. In the first place, we think the evidence so introduced, as it appears in the abstract, does not contradict the terms of the deed and contract but, rather, supplies information where the contract is incomplete and explains and interprets the purposes and intentions of the parties at the time the contracts were executed. This has always been proper and such evidence is not inadmissible.
“The parol evidence rule does not exclude proof of the true consideration of written instruments. The situation of the parties and the circumstances under which written instruments are executed and delivered may be shown by parol in aid of interpretation.. The deed, the agreement, and the will are to be considered as integral parts of a single transaction, so far as disposition of land is concerned.” (Roseman v. Nienaber, 100 Kan. 174, 176, 166 Pac. 491.)
“Parol testimony is competent (a) to prove that defendant orally bound himself to pay his tenant’s debt out of the tenant’s wheat crop turned over to defendant for that purpose; and (i>) to explain certain indefinite matter contained in a written contract to which defendant had subscribed.” (Schroyer v. Ruffhead, 122 Kan. 767, syl. ¶ 4, 253 Pac. 414.)
“A written contract for the performance of certain services and conditions which contained no provision as to the duration of the contract relation or the time within which the services and conditions were to be performed is manifestly incomplete, and parol evidence to supplement and explain the written provisions is admissible.” (Kaul v. Telephone Co., 95 Kan. 1, syl. ¶ 1, 147 Pac. 1130.)
“Parol evidence is admissible to prove the terms of the contract not contained in the letter.” (Thurston v. Lubrite Refining Co., 120 Kan. 137, syl., 242 Pac. 126. See, also, Shields v. Johnson, 124 Kan. 155, 257 Pac. 926; MacLorinan v. Finley, 124 Kan. 637, 261 Pac. 587.)
Appellant cites various authorities to the effect that such parol evidence is only admissible in case of fraud, mutual mistake or un due influence being alleged in the petition, or in case the writings are ambiguous. We think this is the true rule where such evidence actually contradicts, but not where it only explains or furnishes incomplete parts. We see nothing in these two written instruments to make them ambiguous or uncertain, but we do see the possible use of such evidence under one of the very exceptions named by appellant, which is undue influence, a technical species of fraud, which is even presumed when a fiduciary relation is shown to have existed between the parties at the time of the execution of the written instruments.
“Parol evidence is admissible on the part of one party to a written agreement, when it shows that the relations of the parties were specially confidential, that the plaintiff had great confidence in the defendant, and relied upon his advice, and was likely to be guided by it.” (10 R. C. L. 1059.)
“The relation of attorney and client has always been regarded as one of special trust and confidence. The law therefore requires that all dealings between an attorney and his client shall be characterized by the utmost fairness and good faith, and it scrutinizes with great closeness all transactions had between them. So strict is the rule on this subject that dealings between an attorney and his client are held, as against the attorney, to be prima facie fraudulent, and to sustain a transaction of advantage to himself with his client the attorney has the burden of showing not only that he used no undue influence, but that he gave his client all the information and advice which it would have been his duty to give if he himself had not been interested, and that the transaction was as beneficial to the client as it would have been had the client dealt with a stranger.” (6 C. J. 686, 687.)
This rule obtains in this state wherever fiduciary relations exist. See White v. White, 103 Kan. 816, 176 Pac. 644; Silvers v. Howard, 106 Kan. 762, 190 Pac. 1; Lyons v. Lyons, 114 Kan. 514, 220 Pac. 294; Bolin v. Krengel, 116 Kan. 459, 227 Pac. 266.
So much for the question of the admissibility of parol evidence in cases where a confidential relation exists between the parties as attorney and client. Not that we think such rule or such evidence is necessary or important in the determination of this case, but because the appellant urges and insists that there was reversible error in admitting such evidence. We presume the attorneys for plaintiff in the exercise of discretion plead in a way to avail themselves of all their rights and introduced their proof in the same way, but we think- the issues in this case can be determined on the face of the papers without any explanation by parol evidence and without the question of the relation of attorney and client, and, believing they can, we much prefer to reach a legal conclusion as to the rights of these litigants without reference to that relationship.
The warranty deed names a consideration of $16,000 and conveys the 800 acres to the defendant subject to the judgment of $7,286.50 and a mortgage of $5,000. The contract executed the same day refers to the deed and the land by it conveyed, and recites that for and in consideration of the sum of $5,000 and subject to a certain judgment set forth in the deed, if the second party (defendant) shall sell or dispose of the land for a sum in excess of judgment with interest and costs and the $5,000, “then said party, of the second part agrees to pay the said party of the first part said excess amount.” The next paragraph is as follows:
“It is further agreed that if the said party of the first part should at any time pay to the said party of the second part said sum of five thousand and no/100 dollars, hereinabove mentioned, the said party of the second part agrees to deed back to the said party of the first part all of said real estate subject to the judgment hereinabove set forth.”
Let us observe a few points in these instruments. First, there is no limit in either paragraph as to time, except the last one provides that the plaintiff may “at any time pay” the party of the second part the $5,000 and shall be entitled to a reconveyance; second, the $5,000 to be paid to defendant is the same $5,000 described in the deed as being a mortgage; and, third, the difference in •consideration of the two instruments on the face of them — in the •deed $16,000 and in the contract $12,286.50, with interests and costs. Appellant claims these two instruments constitute a conditional sale; appellee maintains that at most they make defendant a trustee to reconvey to plaintiff; and the court found that the transaction was not a sale. Appellant relies largely upon the case of Hoyt v. National Bank, 115 Kan. 167, 222 Pac. 127, and cases cited therein. A careful review of all those cases will show they are widely different from the case at bar. In that ease it is said in the •opinion:
“The true test in determining whether or not the transaction between the parties constituted an absolute conveyance or a mortgage, is whether, after the transaction, there existed, by virtue thereof, the relation of debtor and •creditor. It is well settled that an instrument in form of a deed or an absolute ■conveyance may, under certain circumstances, be shown to have been given ■only as security for the payment of a debt or the performance of some act, in which case the instrument is in reality a mortgage.” (p. 172.)
The test is also given in the syllabus as follows:
“A mortgage is a defeasible conveyance to secure the payment of a debt. Where there is no continuing debt, the execution of a deed with a simultaneous contract to reconvey upon the payment of certain sums of money by the grantor to the grantee within a specified time the payment of which is optional with the 'grantor, is a conditional sale and not a mortgage.”
Note the requirement of time, which does not apply here. In that one there was a limit to the option; not so here. Again, the test is as to the continuing of the debt. Here, at the close of the negotiations the debt still existed, described in the deed as a mortgage, and three times mentioned in the contract by referring to the sum of $5,000 to be paid to second party. In the Hoyt case special emphasis is given to the fact that his indebtedness was canceled and his notes and obligations returned to him before the deed and contract were executed. In the case of Fabrique v. Mining Co., 69 Kan. 733, 77 Pac. 584, cited by appellant, the mortgage on the land had been foreclosed and the property sold before the contract was made, and no debt existed. They made a new deal like they did in the Hoyt case, and, of course, the debt being canceled, it was nothing but an option, and the option had expired before the action was commenced. It was said in the opinion in the case of Bank v. Kackley, 88 Kan. 70, 71, 127 Pac. 539:
"If the deed were not a mortgage the bank bought for cash and agreed to sell a year later for the same price — a queer tiring for a bank to do.”
. There can be no question about the $5,000 being an existing debt at the time this deed and contract were executed, it being so designated in the deed and in the contract, to be paid either out of the proceeds of a sale or by the plaintiff paying the defendant at any time, with the option still open, and covered by an offer in his petition.
“Where at the same time a deed is made the grantee executes a contract to reconvey upon the payment of an existing debt owing by the grantor the transaction is in effect a mortgage, notwithstanding the grantee takes possession and refuses to accept an ordinary mortgage, giving as a reason that he does not wish to .be at the expense of a foreclosure in case of a default.” (Wiswell v. Simmons, 77 Kan. 622, syl. ¶ 2, 95 Pac. 407. See, also, Calhoun v. Anderson, 78 Kan. 746, 98 Pac. 274; Gilmore v. Hoskinson, 98 Kan. 86, 157 Pac. 426.)
We conclude that the trial court was right in its finding that this was not a sale, and that the plaintiff is entitled to have a reconveyance of the land described in the deed upon paying the whole .or any balance of the $5,000 indebtedness that is found to be left after being given credit for the rents and profits of the land since the date of the deed; that an accounting be had under the pleadings now in this case or as they may be amended by consent of the court, and in such accounting due consideration be given of all legitimate items in the way of expenses, as well as items of income.
Two other assignments of error as to the value of the land and discrepancies in testimony of plaintiff we pass as not affecting the result of the case.
The point discussed in the briefs as to a trust arising by implication of law we think not pertinent under the view we take of the written instruments.
The judgment is affirmed, and the cause is remanded with instructions to proceed with the accounting in accordance with the views herein expressed.
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'The opinion of the court was delivered by
Hutchison, J.:
This is an appeal from the decision of the trial •court of Jackson county overruling a general demurrer to the petition of the plaintiff. The petition was for the rescission and cancellation of a contract for the sale and purchase of a farm in that ■county. A copy of the contract was attached to the petition as an exhibit. The petition was by the vendor, alleging that he had fully ■complied with his part of the contract, but that the purchaser had wholly failed, neglected and refused on his part. It alleged that ■defendant was in possession of the property, was insolvent, and totally unable to perform the contract. It alleged the terms of purchase were: (1) $1,500 cash, April 1, 1926; (2) assuming a $6,000 mortgage of record; (3) to pay balance of $2,250 March 1, 1927, with interest. It further alleged “that the defendant failed to complete the cash payment of $1,500, which should have been paid on the first day of April, 1926, and has failed to make any payment on the $2,250 to be made by the defendant on the first day of March, 1927.” The contract is dated March 23, 1926, eight days prior to the time the cash payment was to have been made, and this action was commenced September 9, 1927, which was after all payments should have been made.
Does the petition state facts sufficient to constitute a cause of .action? It is argued by the appellant in a preliminary way that it lacks some of the necessary allegations for a sufficient petition for recovery of unpaid purchase money, for the foreclosure of a pur•chase-price lien, for an action in ejectment, and for a recovery of ■damages for breach of contract, but the prayer of the petition and the brief of the appellee preclude the necessity of considering any ■of these suggested features, in that the only claim or right asserted is the equitable right to rescind and cancel the contract. There does not seem to us to be any confusion as to the theory of the plaintiff's •claim, as expressed in the petition, as thefe was in the petition in the case of Investment Co. v. Burdick, 67 Kan. 329, 72 Pac. 781, cited .and quoted by appellant. Whether or not the petition is sufficient .as one for rescission and cancellation of contract is all that appears to be here for review at this time. In this respect we think it lacks one very essential element, viz., an offer of restitution or to place the ■defendant in statu quo.
“In nearly all jurisdictions a bill is demurrable in which complainant does not offer to return any consideration which it shows that he has received, or otherwise place defendant in statu quo, or sufficiently excuse himself from that duty.” (9 C. J. 1241.)
“The vendor or grantor seeking cancellation of a contract of sale or of a conveyance must, as a general rule, restore any cash payment which has been made, or property or property rights given in consideration of the sale or conveyance.” (9 C. J. 1217.)
Except for one clause in the petition it would be fair under the ■general allegations to conclude that the defendant had not paid anything, but the statement, “That the defendant failed to complete the cash payment of $1,500,” necessarily admits he had paid a part of that sum. The petition is not complete as one for rescission without an offer of restitution of the amount paid or an allegation of excuse for retaining it, as was probably in the mind of the pleader when he referred to the defendant receiving the benefits of the crops; but this was in no way connected with the cash admittedly received.
“A party seeking to set aside a contract or conveyance as fraudulent and void, must-return or offer to return all that he has received as consideration for such contract or conveyance.” (Jeffers v. Forbes, 28 Kan. 174, syl. ¶ 3.)
“One asking to rescind a contract based upon sufficient consideration and wholly executed, for fraud, must restore or offer to restore to the other party the money or thing received under the contract, and so far as practicable place him in the position he was in at the time of the execution of the contract.” (Dutton v. Dutton, 113 Kan. 146, syl. ¶ 1, 213 Pac. 326.)
“The rescission of a contract must be made by a restoration to each of the parties thereto of that which has been received under it.” (Constant v. Lehman, 52 Kan. 227, syl. ¶ 1, 34 Pac. 745. See, also, Gribben, Guardian, v. Maxwell, 34 Kan. 8, 7 Pac. 584; Bell v. Keepers, 39 Kan. 105, 17 Pac. 785; Basye v. Refining Co., 79 Kan. 755, 101 Pac. 658; Kliesen v. Mercantile Association, 101 Kan. 138, 165 Pac. 650; Harnden v. Hadfield, 113 Kan. 525, 215 Pac. 441.)
It is worthy of mention in this connection that the contract itself entirely failed to provide for a forfeiture of payment already made or outline any procedure in case of breach of contract, so that the plaintiff received no help from the contract to justify him in omitting this necessary allegation from his petition. The demurrer to the petition should have been sustained.
The judgment is reversed and the cause remanded, with instructions to sustain the demurrer to the petition.
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The opinion of the court was delivered by
Burgh, J.:
The action was one to recover from Crawford county the value of gravel which it took from a gravel bar on plaintiff’s land in Neosho county. Defendant demurred to the petition. Before the court ruled on the demurrer plaintiff amended. A demurrer to the amended petition was sustained on the ground action was barred by the statute of limitations. Plaintiff appeals.
The action was commenced October 29, 1924. The petition disclosed that taking of gravel extended to December 22, 1921. The petition was amended July 7,1925. Defendant contends the original petition stated a cause of action for trespass on land, and the action was barred by the two-year statute of limitations; if the amended petition stated a cause of action for trespass, the action was barred the same as before; if the amended petition converted the action into one based on implied contract, the action was commenced as of date of amendment, and was barred by the three-year statute of limitations.
The material portions of the petition follow:
“2. That during all the year of 1921 the plaintiff was and ever since has been the owner, and has been in the possession of the following-described land in Neosho-county, Kansas: [Here follows description of land.]
“3. That during the year of 1921, and up to and including December 22, 1921, defendant took and hauled from a gravel bar on plaintiff’s land 3,833.75 yards of gravel of the reasonable value of 25 cents per yard, aggregating in value the sum of $958.94, for which amount defendant is indebted to plaintiff, and which is due and unpaid.
“5.’ That no proceedings were at .any time taken by said defendant or by any other rightful authority under any statute of Kansas condemning said gravel under the right of eminent domain, and said defendant is liable for the reasonable value of said gravel.
“Wherefore plaintiff prays judgment against said defendant for the sum of $958.94, with interest thereon at six per cent from December 22, 1921, and the costs of this action.”
The amendment was added to paragraph 3, and reads as follows:
“That said gravel was used by defendant on the public roads of Crawford county in the improvement and betterment of said roads, as provided by law, . . .”
The statute provides that, if a county needs road material, including gravel, and an owner refuses to sell, or demands an excessive price, or denies access to a source of supply, the county may condemn, and the county determines, subject to appeal, the damages to the landowner and the price of the material taken. The provisions of the statute are extended to embrace the procuring of material from another county. (R. S. 68-137, 68-138.)
Leaving at one side the concluding statement of paragraph 5 of the petition, that defendant was liable for the reasonable value of the gravel, the substance of the paragraph was that the gravel was not taken pursuant to the statute. That being true, no price had been fixed by the county, and under the implied-contract theory, defendant would be liable, if at all, for reasonable value, as the paragraph alleged.
Defendant contends that consent to the taking was not alleged, no contract of sale was alleged, condemnation was negatived, and the taking must of necessity have been by trespass; a county cannot trespass on land in another county; members of the board of county commissioners may trespass, but .the county is not liable for their tortious conduct; therefore, no matter how the petition was framed, the action was one for damages for trespass.
A county is a body corporate whose corporate powers are exercised by a board of county commissioners, in whose name the county sues and is sued. In its corporate capacity a county has statutory authority to purchase personal property for use of the county. If a county needs gravel, it may buy gravel. The condemnation statute recognizes contractual power, and contains no limitation on exercise of contractual power. The statute merely enables a county to get gravel which it cannot procure' from the owner on satisfactory terms regarding access to gravel bed and price of gravel removed. Whether the statute existed or did not exist, the county had corporate power to buy the gravel which it took and hauled away.
The principle that when a county appropriates property of another, which it might have obtained by contract, to its own use and benefit, without express contract, the law will imply one, was established by the decision in the case of Butler v. Comm’rs of Neosho Co., 15 Kan. 178. In that case plaintiff sued for the value of the use of a room as a county office. The ground of the decision was appropriation of property to use of the county. In this instance the property was personal property, gravel hauled away. As the court said in the opinion in the Neosho county case, there would be no question if defendant were an individual or a private corporation. The doctrine of quasi contract was invented to meet just such cases, and the principle applied in the Neosho county case applies here, if recovery is predicated on quasi contract. The reasons for preferring the name quasi contract, instead of the name implied contract, are stated in 1 Williston on Contracts, § 3.
The nature of a cause of action, whether based on tort or on quasi contract, is to be determined from the allegations of the petition. When doubt exists words appropriate to an action for tort will be disregarded, and the petition will be interpreted as counting on quasi contract. (Smith v. McCarthy, 39 Kan. 308, 18 Pac. 204; Delaney v. Implement Co., 79 Kan. 126, 98 Pac. 781; Douglass v. Loftus, Adm’x, 85 Kan. 720, 727, 119 Pac. 74.)
In this instance the following decisions leave no doubt whatever that the action was not one for trespass: Bernstein v. Smith, 10 Kan. 60: “Timber taken and received” from described land; Hagaman v. Neitzel, 15 Kan. 383: Trespass and severance of fence and twenty-two loads of stone; McGonigle v. Atchison, 33 Kan. 726, 7 Pac. 550: “Dig sand thereon,'and remove, take and carry away” from Missouri to Kansas; Douglass v. Loftus, Adm’x, 85 Kan. 720, 119 Pac. 74: Trespassed on and into coal beds on the land of John C. Douglass, and carried away and converted his coal; Garrity v. Board of Administration, 99 Kan. 695, 162 Pac. 1167: Wrongfully entered on farm of plaintiff without his knowledge or consent, and removed large and valuable fossil.
The conduct of defendant was not merely destructive, or mischievous, or otherwise simply injurious, or of no benefit to defendant. (Tightmeyer v. Mongold, 20 Kan. 90; Greer v. Newland, 70 Kan. 310, 77 Pac. 98.) Defendant got 3,835.75 yards of sand worth 25 cents per yard. Paragraph 2 of the petition alleging ownership of described land was inserted by way of identification (Bernstein v. Smith, 10 Kan. 60, 67), and to show ownership of the gravel bar from which the gravel was taken. Words characteristic of trespass on and damage to realty are not found in the petition. The taking was not spoken of as wrongful, and no matter what the circumstances of the taking were the taking was ratified. By suing for the reasonable value of the severed gravel plaintiff elected that title had passed. (Ireland v. Waymire, 107 Kan. 384, 387, 191 Pac. 304.) The petition alleged that defendant was indebted to plaintiff for gravel taken in the sum of $958.94, which was due and unpaid. The result is there is no doubt the petition stated a cause of action for the reasonable value of personal property which defendant appropriated to its own use. The amendment to the petition merely specified the use, and did not change the nature of the cause of action stated in the original petition.
The trespass cases of Thomas v. Ellis County, 91 Kan. 443, 138 Pac. 409, and Isham v. Montgomery County Comm’rs, 126 Kan. 6, 266 Pac. 655, cited and relied on by defendant, clearly have no application, and the action was not barred by the statute of limitations.
The judgment of the district court is reversed, and the cause is remanded with directions to overrule the demurrer.
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The opinion of the court was delivered by
Gilkeson, P. J. :
This action was brought by Martha S. Belford and William T. Belford against the insurance company to recover for a loss occasioned by a fire. The petition alleges the insurance of a frame building used as a private dwelling in the sum of $500, household goods contained and used in said dwelling in the sum of $100, and a frame stable in the sum of $100; that the private dwelling was located upon lot 47, block C, range 6; that the stable was located on lots 7 and 8, block C, range 6; that Martha S. Belford was the owner in her own right of said lots 7, 8, and 47, block C, range 6, and the residence and stable were the property of William T. Belford; that the household goods insured and that portion of them burned and destroyed were owned by Martha S. and William T. Belford jointly ; that the fire occurred on the 2d day of May, 1890, and that within the time prescribed by the terms of said ■policy, a copy of which is attached to the petition,'to wit, on the 19th day of May, 1890, they made and submitted the proofs required by that part of the policy of insurance included in lines 40 to 60 inclusive. This portion of the policy required, .among other things :
“And shall give immediate, notice and‘render a particular account thereof, with an affidavit statihg the time', origin and circumstances of the fire, the occupancy of the building insured, or containing the property insured, the whole value and ownership of the property insured, the amount of loss or damage upon each article, . . . and shall also produce a certificate, under the hand and seal of a magistrate or notary public nearest to the place of the fire — not concerned in the loss as a creditor, 'or otherwise, nor related to the assured. — stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the-assured has, without fraud, sustained loss on the property insured to the amount to which the magistrate or notary public shall certify; and until such proofs are rendered the loss shall not become payable. ...”
The defendant company filed a demurrer to the petition upon the following grounds : (1) Misjoinder of the parties plaintiff and of causes of action; (2) petition does not state facts sufficient to constitute a cause of action, which was by the court overruled ; and whereupon defendant filed an answer, containing : (1) A general denial; (2) an allegation that the plain tiffs were not jointly interested in the claim sued upon; (3) an allegation setting up the condition of the policy as to proof of loss, that the plaintiffs did not comply therewith by furnishing the company with the same, before the commencement of this ac tion, and that the claim for loss was not payable by reason of said failure.
The plaintiffs filed a reply of general denial. Trial was had before the court and jury, and, after plaintiffs had rested, defendant filed a demurrer to the testimony, which, was by the court overruled. No testimony being offered by defendant, a general verdict and special findings were rendered by the jury. A motion for judgment upon the special findings was filed by defendant, and overruled. Judgment was rendered for the plaintiffs by the court upon the general and special verdict. The defendant brings the case here for review.
The first error assigned is in overruling the defendant’s demurrer to the petition. An examination of the petition satisfies us that the demurrer should have been sustained. It is conceded by the defendant in error that the policy sued upon in this action was issued upon the joint property and was intended to protect the joint property only. Yet the cause of action set forth in the petition is for the recovery of damages for loss occurring to the individual property of W. T. Belford and to the joint property of W. T. and Martha S. Belford, and the testimony discloses that some of the household property destroyed was the individual property of W. T. Belford, some of Martha S. Belford, and some the joint property of both. If a recovery could be had under this policy for the loss of individual property of the parties insured, which we do not feel called upon to decide, we cannot see how the defendants in error could maintain a joint action therefor, as is attempted in this action.
It is one of the prerequisites to the uniting of different causes of action that all the causes of action must affect all the parties to the action, plaintiffs as well as defendants, the provisions- of the code applying equally to both parties. (Harsh v. Morgan, 1 Kan. 293; Swenson v. Plow Co., 14 id. 387; Palmer v. Waddell, 22 id. 352; Jeffers v. Forbes, 28 id. 174; Pomeroy’s Rem. § 483.)
In this case, where is the community of interest between the plaintiffs, except as to the few articles of household goods they owned jointly? Mrs. Belford wants damages for her goods destroyed, Mr. Belford for his, and they both want damages for their joint property destroyed by fire. True, it is by the same fire, but what interest has Mrs. Belford in the recovery of Mr. Belford, or e converso f If the company were liable for the individual and joint property destroyed, under the tetras of the policy, they could bring separate actions, and the judgment in one case would not affect the other, as they are all valued separately. There is no community of interest in all the matters involved in the suit. No right common to all is claimed and certainly none proven. Everything is separate, save only that the right to sue is founded upon a contract which happens to be on one and the same sheet of paper. Two or more persons having separate causes of action against the same defendant, though arising out of the same transaction, cannot unite. Nor . can several plaintiffs in one complaint demand several distinct matters of relief, nor can they enforce joint and separate demands against the same defendant. (Tate v. Railroad Co., 10 Ind. 174; Durein v. Pontious, 34 Kan. 353.) We have failed to find any warrant in the adjudged cases for a joinder of plaintiffs under such circumstances. We therefore think the demurrer should have been sustained.
The next objection urged is, that at tfie trial of this cause there was'no legal evidence adduced showing that the proof of loss in substantial compliance with the terms of the policy had been submitted to the company prior to the commencement of this action. In order to recover in this action it was necessary for the plaintiff to show two things : (1) That the proofs of loss were made in substantial compliance with the terms of the policy; (2) or a waiver of these conditions. In this action there was no waiver pleaded, nor'in any manner claimed. The allegation as to proofs of loss having been made is equivalent to an allegation that they were made in compliance with the terms of the policy. But this is not sufficient. It must be averred and proven that the proofs of loss were furnished within the time required by the terms of the policy, or that the conditions requiring said proofs had been waived by the company ; and if at the trial there is a total failure to prove either, it is the duty of the trial court to sustain a demurrer to the' evidence and dismiss the case. (Insurance Co. v. Ross, 48 Kan. 228.) As was said by the court in that case, “it seems idle to cite authorities upon this proposition.” We think the point well taken. It is true some evidence was offered, and admitted over the objection of the defendant, as to a paper being made out and mailed to the company. They did not offer any copy, nor attempt to show that they had the original or a certified copy, and that it had been lost or destroyed, and that they had made any search for it. There was some testimony as to a search being made, but that was in reference to a “return registry card.” In fact, there was no excuse offered for the non-production of the original; but it was clearly shown that whatever the paper was that was made out and sent to the company it was in the company’s possession.
Before secondary evidence of a writing can be re ceived, a party must in .general show the loss or destruction of the original, or that he has used reasonable efforts and the means which were accessible to him to find the writing, or to procure its production ; and if it appears to be in the hands of the adverse party, notice to produce the original was necessary in order to lay a foundation for the introduction of secondary evidence. (1 Greenl. Ev., §§ 558-560; Roberts v. Dixon, 50 Kan. 436.) Section 368 of the code provides for such notice, but no. such steps were taken,.nor was there any such preliminary proof as warranted the introduction of oral evidence as to the proofs of loss.
But aside from this, admitting that all the..testimony introduced upon the point was legal, it did not prove that the terms of the policy had been complied with. What was this paper claimed to have been made out and forwarded? The testimony of W. T. and Martha S. Belford is that it was a copy, of the book in which had been entered a list of the household goods destroyed and damaged, and that they swore to it, and sent it to the company by registered mail. This is all the testimony offered as to the proofs of loss. The requirements of the policy as to certificate of magistrate were never complied with. If any such was made, the record is silent as to who made it, or when it was made, and we are compelled to hold that there was not only no legal evidence of any proofs of loss in substantial compliance with the terms of the policy made and submitted to the company before commencement of the action, but that there is a total failure of proof upon this point, and that the court should have sustained the demurrer to the evidence. The plaintiffs’, case, depended upon this proof of loss being made, and unless it was made no right .of action accrued to them.
The judgment in this case will therefore be reversed, and the cause remanded for further proceedings.
Clark, J., concurring.
Garver, J., not sitting, having been of counsel in the case.
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The opinion of the court was delivered by
Gilkeson, P. J. :
This action was brought by the King Iron Bridge and Manufacturing Company, plaintiff, against Modell township, of Norton county, Kansas, defendant, in the district court of Norton county, to recover the contract price, viz., $400, with interest thereon, from January 25, 1891, for the erection of three bridges for and in said township.
The petition in the case states, in substance, that on the 15th day of September, 1888, the bridge company entered into a contract in writing (a copy of which is attached to the petition), with the officers of said township, agreeing that the said bridge company should build, paint, make complete, and have ready for use by the 15th day of November, 1888, for the said defendant township, three certain bridges ; that the plaintiff was to furnish all the material for said bridges with bents, and that the' material furnished was to be of good and suitable quality ; that it should do all the work in a thorough and workmanlike manner ; that it was to receive in payment for said work four township warrants of $100 each, to draw 7 per cent, interest, and to be due as follows : March 1, 1889, August 1, 1889, March 1, 1890, Airgust 1, 1890 ; that it did perform all and singular the conditions precedent on its part required to be done and performed by the terms and conditions of said contract (specifications were attached to and formed a part of the contract) ; that in January, 1891, it presented its sworn voucher to the said township, and the township refused to issue the warrants. Judgment for the sum of $400, with 7 per cent, interest from the 25th day of January,' 1891, is asked.
The answer of the defendant consists of eight paragraphs. The first four contain admissions of immaterial matters, and deny every allegation not admitted. The fifth specially denies that said plaintiff has done and performed all and singular the conditions precedent upon its part required to be done and performed, as provided for in said contract. The sixth alleges that the plaintiff did pretend to erect all three of the bridges provided for in said contract, but that the material .and lumber of which they were constructed was not of good and suitable quality; that the work thereon was not done in a workmanlike manner, and that none of the bridges was ever completed or made safe for public travel; that on account of the inferior quality of the lumber and the poor manner- in which the work was done, the defendant never accepted nor received any of said bridges, but at once notified the plaintiff that it would not accept or receive them until they should be made to comply with the provisions of the contract. The seventh alleges that some time in May, 1889, the defendant notified the plaintiff by letter that the bridges would be taken down, for the reasons above set forth, and that they would be subject to its orders. The eighth alleges that in February, 1890, the defendant took said bridges down, piled the same up subject to the disposal of the plaintiff, and notified the plaintiff of such fact, and prays judgment for damages in the sum of $100.
The plaintiff filed a reply denying generally and specifically the sixth, seventh and eighth allegations contained in the answer, and asked judgment as prayed for in the petition.
Trial was had by court and jury. A general verdict and special findings of fact were returned by the jury. Judgment was rendered in favor of the plaintiff and against the township for the sum of $220 and interest. Defendant brings the case here for review on petition in error and case-made.
The plaintiff and the court below evidently adopted in the trial of this cause the theory that a recovery might be had in this action upon a quantum meruit, if not upon the contract, and this is the contention presented for our consideration. We do not think that the theory can be sustained upon any known authority, and certainly not in view of the decisions of the supreme court of this state. While it is true that the common-law rule, that the express stipulations of a contract are required to be strictly performed and a substantial compliance with the terms is not sufficient, has been greatly relaxed by late decisions of the supreme court of this and other, states, yet we do not think that it has gone to the extent contended for by the plaintiff. It is well settled that where one party has entered into a special contract to perform work for another, and furnish material, and the work is done and material furnished, but not in the manner stipulated in the contract, yet if the work and materials are of any value and benefit to the party, he may recover for the work done and materials furnished. This is done upon the principle that, if the other party has derived a benefit from the part performed, it would be unjust to allow him to retain that without paying anything. (2 Pars. Contr., 6th ed., 523; Duncan v. Baker, 21 Kan. 99; Barnwell v. Kempton, 22 id. 317; Quigley v. Comm’rs of Sumner Co., 24 id. 300.)
Mr. Justice Johnston, in commenting upon the rule laid down in Duncan v. Baker, supra, says:
“That case and the authorities there cited declare the doctrine now generally recognized, that where contracts for personal services or to furnish materials and perform labor are not fully performed, but the parties for whom the work is done and the materials are furnished accept the fruits of the contract, and receive and retain the benefits of that which has been performed and furnished, they are bound to pay what the same is reasonably -worth.- The law implies a promise on the part of him who elects to accept partial performance that he will pay the value of that which he receives and retains. This, however, is the extent to which, the rule-lias been extended.” (Denton v. City of Atchison, 34 Kan. 442.)
But this rule does not apply to the case at bar. The jury in their answers to special questions found that neither of the three bridges contracted for was erected so as substantially to comply with the provisions of the contract; that the defendant township never accepted any of the bridges ; that the township did not waive its right to demand a substantial compliance with the provisions of the contract as to any of the bridges; that none of the bridges was ever used by the township or the public. Hence, under the facts in this case as found by the jury, it does not come within the rule laid down in Duncan v. Baker. And as was further said in that case :
“.Of course, in all cases where the employer can refuse to accept the work and does refuse to accept it or returns it, he is not bound to pay for it unless it exactly corresponds with the contract; but where he receives it and retains it, whether he retains it from choice or from necessity, he is bound to pay for the same what it is reasonably worth, less any damage that he may sustain by reason of the partial non-fulfilment of the contract. Of course, he is not bound to pay anything unless the work is worth something, unless he receives or- may receive some actual benefit therefrom.”
It is clearly shown in this case that these bridges were never accepted or received by the township, and that neither the township nor the public ever used or derived any benefit from them ; that they were not constructed in substantial compliance with the provisions .of the contract, and that there was never any waiver of the conditions of the contract by the township.
In the case of Denton v. City of Atchison, 34 Kan. 438, which, was an action brought against the city to recover money claimed to be due upon contract for furnishing material and constructing sidewalks, the defendant denied the performance of the contract and refused payment, and the only difference between the contract for material and that furnished was that the contract called for oak subsills, 2x6 inches in dimension, and those furnished were pine and only 2x4 in size. Mr. Justice Johnston, in speaking for the court, says :
‘ ‘ The more equitable rule has . been generally adopted, which permits a recovery by one who in good faith attempts to perform his contract, and does so substantially, although there may be a slight deviation, or some technical and unimportant omission or defect. ' A substantial performance, however, is still indispensable to a recovery; and a failure to carry out any material part of the contract will not amount to a substantial performance.”
And again, in Denton v. City of Atchison, supra, it is said : .
“And where a party, by an express contract, as in this case, undertakes to furnish material and perform labor., he is only entitled to payment according to its terms, and the law will not make for him a contract different.from that which the parties have entered into. The implied liability arises, if at all, from the subsequent transactions or conduct of the parties ; and if there is a substantial non-performance of the contract, as there is here, and the party for whom the materials were furnished and the labor performed refuses to accept and does not receive or retain any of the benefits of the contract, no such liability will arise..”
The case at bar is not only fairly within the rule thus laid down, but under the findings of the jury a much stronger case has been made. We are therefore of the opinion that the plaintiff is not entitled to the application of the rule which it invokes; that no right of recovery has been established by it; and that the court below should have sustained the defendant’s motion and application for judgment upon the special findings.
The judgment of the district court will therefore be reversed, and the cause remanded with instructions that the court enter j udgment therein for plaintiff in error, defendant below, upon the special findings of the jury-
All'the Judges concurring.
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The opinion of the court was delivered by
Giliceson, P. J. :
This cause comes here upon error in the findings of fact, conclusions of law, and judgment. The court found that each of the tax deeds was invalid : (1) That the tax deed issued upon the sale for the taxes of 1885 is invalid because there was included in such taxes a township road tax levied in 1884, under the eighth subdivision of section 22, chapter 110, Compiled Laws of 1879, and carried over to and added to the taxes of 1885, such road tax being illegal because the said subdivision of section 22 was unconstitutional. (2) That the tax deed issued upon the sale for the taxes of 1885 is invalid because a township road tax levied in 1885 was not collected as other taxes levied for that year, but was carried over to 1886, and constituted a part of -the taxes for which the land was sold in the latter year. No other reasons are assigned.
As to the first tax deed, we think the decision of the court is correct. It is conceded by defendants in error that section 22, chapter 110, Compiled Laws of 1879, was declared unconstitutional by the supreme court of this state in M. & M. Rly. Co. v. Champlin, 37 Kan. 682; but they contend that the assumption of the court in its findings of fact that these taxes were levied upon that law was erroneous, and is not warranted by the findings of fact. The testimony is not preserved in the record, and the findings of the court upon this proposition are conclusive upon us. We shall treat it, then, as a fact that these taxes were so levied.
An unconstitutional act is not a law. It confers no rights ; it imposes no duties ; it affords no protection ; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.' As to the second tax deed, the court held it was invalid for the reason that a township road tax levied in 1885 was not collected as other taxes levied for that year, but was carried over to 1886, and constituted a part 'of the taxes for which the land was sold in the latter year. At the time this tax was levied there was in force the laws of 1885 and 1874. Conceding this to be true, we think that the carrying over of the taxes to the following year would be but a mere irregularity, without prejudice to the taxpayer.
There is no contention, nor does the court find in this case, that the land in controversy was not subject to taxation or that the taxes were illegally levied for the year 1885. The law in force at the time this tax was levied (section 85, chapter 84, Laws of 1876) is as follows :
“All taxes shall be due on the 1st day of November of each year. A lien for all taxes shall attach to the real property subject to the same on the 1st day of November in the year in which said tax is levied, and such lien shall continue until such taxes, penalty, charges and interest which may have accrued thereon shall be paid by the owner of the property or other person liable to pay the same.”
We think that the language of this section is perfectly plain. “A lien for all taxes shall attach to the real property subject to the same on the 1st day of November” ; that is, when a tax is levied, and the 1st day of November has arrived, it then becomes a lien, and continues so to be until paid. The defendants in error do not attempt to show that for 1885 they had paid all of the taxes except this, but, on the contrary, the record shows that none of the taxes upon the real estate in controversy was paid for that year, o.r for two years subsequent thereto. And section 54 of the act of 1876 makes it the duty of all county clerks to cause all lands in their respective counties that for any reason have escaped taxation for any former year or years, when the same were liable for taxation, to place the same upon the tax-roll, and charge up or carry out the assessment against said lands. And section 55 provides that the taxes charged up under the provisions of section 54 shall be collected in the same manner as other taxes levied upon said real estate.
This case might stand quite- different if the owners, or if the defendants in error, they claiming to be the owners, had paid, or offered to pay the taxes for 1885, or if they had paid all of the taxes for 1885, and this had been omitted from the roll of that year, or if it had changed ownership other than by will, inheritance, or gift. But these conditions do not exist. The' law is very careful to prevent the escape from taxation of any person. All must bear their fair share of the public burden, and no one should be permitted to escape taxation merely because of some irregularity in the assessment or elsewhere. And we do not think that the party who has contributed to the public revenue should be deprived of -the benefits that he has derived by a mere irregularity, and particularly where the purchase price paid is for a removal of a lien created by express terms of the statute. The most that can be said of this transaction would be that it is a mere irregularity, and thfit no one has been prejudiced thereby. The man who fails to pay his taxes is not complying with the duties imposed upon him by law, and cannot be said to be without blame. We think,'therefore, that the court erred in its second conclusion of law, as to the tax deed issued upon the sale for delinquent taxes of 1886.
The judgment in this case will therefore be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Judges'concurring.
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The opinion of the court was delivered by
Gar ver, J. :
The controversy in this case is over the right to recover for a loss by fire under a policy of insurance issued by The Long Island Insurance Company, under date of March 22, 1890, insuring one Charles F. Neerman against loss or damage by fire on certain mill machinery alleged to have been destroyed by fire.on the 12th day of April, 1890. After the fire Neerman transferred and assigned all his interest in and rights under the policy to the Great Western Manufacturing Company, plaintiff below. This action was commenced August 28, 1890, and a summons in the ordinary form of a summons was issued by the clerk of the district court of Republic county, directed and transmitted to the superintendent of insurance, by whom service was duly acknowledged, and the summons, with his return thereon, returned to and filed in said court. The jurisdiction of the court was questioned by the insurance company by a motion to quash the summons. This objection was overruled, and the case proceeded to trial, and judgment against the insurance company. The summons is attacked because it was directed to the superintendent of insurance instead of to an officer authorized by law to make service of a summons ; and the service is objected to because made by direct transmission of the summons by the clerk of the court to the superintendent. It is admitted that the defendant is a foreign insurance company authorized to' do business in this state, and that it duly filed in the insurance department its written consent, as required by the- statute, ‘‘ that ' action may be commenced against such company . ... by service of process on the superintendent of insurance of this state.” Counsel for plaintiff in error, in Ms brief, states his objection to the summons as follows :
“The true construction of such statute is, that the summons must be issued to the sheriff as otherwise required by the code, and by him served on the superintendent, upon service of which the superintendent must notify the company of such summons.”
This objection stands in the face of the positive and unequivocal direction of the statute, and, if sustained, would require the court to substitute a particular form of summons and manner of service, when the legislature has clearly said that another form "and manner should be adopted. The same section of the statute which provides that jurisdiction shall be acquired by service of summons on the superintendent of insurance also directs what shall be the form and manner of such service. The language of the statute is: “The summons shall be directed to the superintendence of insurance, and shall require the defendant to answer by a certain day not less than 40 days from its date. Such summons shall be forthwith forwarded by the clerk of the court to the superintendent of insurance, who shall,” etc. It is not disputed that the legislature has the right to provide upon what terms and conditions a foreign insurance company may do business in this state. Having formally and voluntarily assented to the conditions imposed, and having agreed that jurisdiction might be obtained in an action brought against it in the manner provided by the statute, and having done business in the state under the permission so granted, it cannot, when brought into court by process issued and served in strict compliance with the statute, question the sufficiency or validity of such service. A similar objection was considered by this court in the case of German Ins. Co. v. Hall, 1 Kan. App. 43 (41 Pac. Rep. 69), and the validity of the service sustained. We see no reason to change the views expressed in the opinion in that case.
The next question raised is as to the right of the insured or his assignee to recover, in any event, under the policy. It is contended on behalf of the plaintiff in error that the interest of Neerman in the property insured was not truly stated in the policy; that he was not the absolute owner thereof, and that, therefore, under the terms of the policy, the contract of insurance was avoided. It appears from the record ■that Neerman, a short time before the insurance was written, purchased the mill machinery from The Great Western Manufacturing Company under a contract or agreement providing for payment therefor in installments, and that, until full payment was made, the legal title was to remain in the vendor. At the time of the fire, something over $1,100 remained unpaid on the contract. No written application was made for the insurance, but the policy contained, among others, the following conditions :
“This entire policy, unless otherwise provided by agreement indorsed hereon, or attached hereto, shall be void . . . if the interest of the insured be other than unconditional and sole ownership, . or if the subject of insurance be personal property, and be or become incumbered by chattel mortgage.”
The policy also contained the provision that no ofr fleer, agent or other representative of the company should have power to waive, or be held to have waived, any conditions or provisions of the policy, unless the waiver be written upon or attached thereto. There is no material conflict in the evidence as to the facts and circumstances surrounding the writ ing of this policy. Radford, the local agent of the insurance company, who wrote the insurance, understood at the time the risk was taken, and before the policy was delivered by him, the nature of Neerman’s interest in the property; and he was then informed that it was only partially paid for; that it had been purchased under a contract of sale which provided for the retention of the title by the vendor as security for the deferred payments, and that Neerman was not, and did not claim to' be, the unconditional and sole owner of the property. Counsel for plaintiff in error claims that such knowledge of the agent cannot aid in avoiding the forfeiture provided for by the express terms of the policy; that the conditions of the policy as to ownership cannot be held to have been waived, unless such waiver was indorsed on or attached to the policy. With this contention we cannot agree. There is, of course, much force in the argument, that one claiming under a written policy of insurance is bound by whatever representations or limitations of authority appear therein with reference to any particular agent or class of agents. So long as such express limitations are with reference to matters concerning which the parties may legally contract, there would seem to be no valid reason why each party should not be conclusively presumed to have knowledge thereof, nor why his rights and obligations should not be measured thereby. The rule is well settled that the act of an agent does not bind his principal, when the person dealing with the agent has express notice that the agent has no power to do that particular thing. This principle has often been applied in contracts of insurance, and insurance companies, held not bound by the contracts or acts of local agents, after the issuance and delivery of policies containing express limitations of authority. To this effect are most of the cases cited by counsel for plaintiff in error, and this is the principle which underlies the decision of the court in Burlington Ins. Co. v. Gibbons, 43 Kan. 15. In that case the court held that, as the insured relied upon an agent having only limited powers, the company was not bound by a waiver of the conditions of the policy by the agent, when the policy itself gave notice that such waiver could not be made by him. Conceding the correctness of the rule thus announced in Burlington Ins. Co. v. Gibbons, though it seems to be questioned in the subsequent case of German Ins. Co. v. Gray, 43 Kan. 497, it does not aid the plaintiff in error in this case. The policy under consideration is sweeping in its limitations of authority, and provides that there can be no waiver by any officer or agent of the company, unless in writing, indorsed upon or attached to the policy. Such an attempted limitation of the power of all agents of a company, which can act only through agents, is quite different from the restriction of the authority of a particular agent or class of agents and the intrusting of the execution of the excepted things to certain general officers of the company. 'It is well settled by the decisions of the courts of this and other states, that such a sweeping limitation of the powers of the. agents of a corporation is nugatory, upon the principle that one of the parties to á written contract which is not required by law to be in writing may, subsequently to the making of the contract, by parol agreement, waive any of the provisions thereof which were incorporated therein for his benefit, even though such contract expressly provides that no waiver shall be made unless in writing. The effect of such limi tations is considered at length, in Phenix Ins. Co. v. Munger, 49 Kan. 178, and the authorities cited, which sustain the proposition. The court in that case held, after a review of the decisions upon the question, that an agent such as Radford was may bind his company by a parol waiver of the conditions of the policy, notwithstanding it expressly provides that a waiver shall not be made by any agent unless in writing. It is idle to consider the decisions of the courts of other states in the face of this decision of our own supreme court.
It is also well settled by the supreme court of this state, that in an action upon an insurance policy for the recovery of a loss sustained by fire the company is estopped, in the absence of any fraud on the part of the insured, from raising any question as to the validity of the policy on the gr'ound that the interest of the insured in the property was not truly stated in the policy, when the agent who issued the policy and effected the insurance on behalf of the company was fully informed as to the title and ownership of the property or its condition as to incumbrances before the policy was written or delivered. (Am. Cent. Ins. Co. v. McLanathan, 11 Kan. 533; Sullivan v. Phœnix Ins. Co., 34 id. 170; National Ins. Co. v. Barnes, 41 id. 161; Continental Ins. Co. v. Pearce, 39 id. 396; German Ins. Co. v. Gray, 43 id. 197; Phenix Ins. Co. v. Weeks, 45 id. 751; Capitol Ins. Co. v. Bank of Pleasanton, 50 id. 449.)
Upon the authority of these cases we hold, when the agent, Radford, with full knowledge of the interest of the insured in the property, agreed to write the insurance, received the premium, and delivered the policy, and the insured accepted it, relying in good faith upon the validity of the contract of insur anee thus effected, that the company cannot avoid liability for a loss because of a condition of the policy providing for a forfeiture in case the insured was not, at the time the insurance was written, the unconditional and sole owner of the property. The nature and extent of the insured’s interest in the property was made known to the company, and if it was not truly expressed in the written policy thereafter issued by it, it was because of its own fault and neglect, and it would be acting in bad faith toward the insured if the company should now be permitted to escape liability because of such omission.
Another error is alleged, in the assessment by the court of the amount of the damages for which judgment was rendered. The court allowed as for a total loss, and gave judgment accordingly. Under the terms of the policy, the company was not liable beyond the actual damage to the property by the fire, and if such damage was only partial as compared to the actual value of the property, it was liable for only the partial loss. The- court found the actual value of the property insured and injured by the fire to be $1,704.57, and gave judgment against the company for three-fourths of that amount, in accordance with the conditions of the policy. The property consisted of a steam-engine and boiler, and a large number of other articles designated as mill and elevator machinery. The evidence does not show the value of each separate article. The engine, boiler, and a number of other articles for use in connection therewith, were valued together at about $500. There is nothing in the record to show how much of this valuation was for the boiler alone. As to all machinery other than the boiler, the evidence shows a total loss ; as to the boiler, it shows only a partial loss. The
proofs of loss, which, were made under oath by the insured and sent to the company, and which were introduced in evidence on the trial, stated : “ The loss on said property was total, except on boiler, the damages to which amount to about $100.” The only direct evidence given upon the trial as to the damage to the property was that given by Neerman, as follows : “Q,. Was the property entirely destroyed, or was it partially destroyed? A. Why, it was a total wreck, with the exception of the boiler, probably.” The only other evidence given upon the subject is found in the deposition of John Wilson, president of the Great Western Manufacturing Company, who stated that he was familiar with the machinery in question, that his company had sold it to Neerman, but that he had not seen it since the fire, and had no personal knowledge of its actual condition. He, however, testified:
“The engine, after having gone through the fire, would, in my opinion or judgment, be rendered entirely worthless. The boiler might not be so badly injured. The condition of it after the fire would depend entirely upon circumstances. If the boiler was empty, that is, if the boiler did not have any water in it at the time of the fire, it would, in all probability, get very hot and the fire would spoil it very materially.”
On cross-examination, he said :
“Q,. State whether or not you have seen the machinery since it was shipped from your place. A. I have not.
“ Q. How then do you determine the condition of the machinery since the fire? A. Merely from our experience in examining machinery after having gone through a fire.”
The plaintiff recovered as for the total destruction of the boiler. Such a recovery cannot be sustained, unless it is supported by competent evidence from which, the court could fairly infer a total loss. The proofs of loss as to the damage sustained were competent against the insured, considered as his statements or admissions. In them he admits that the loss upon the boiler was not total, and was about $100. On the trial he makes the same exception. There is nothing to show how much more than $100 the boiler was actually worth previous to or after the fire. In this respect the evidence does not sustain the findings and judgment of the court. As there is no separate finding as to the values of, or the amounts allowed for, the different articles of property, we are unable to determine to what extent this error affects the judgment.
Because of the error in the assessment of the amount of damages, the judgment must be reversed and a new trial had.
All the Judges concurring.
|
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The opinion of the court was delivered by ,
Garver, J. :
The controversy in this case is about the ownership of a crop of wheat raised and harvested on a piece of land in Brown county. The land, consisting of 160 acres, and belonging to one John K. Ewing, was, on January 11, 1886, leased to C. W. Sheets, for a term ending March 1, 1889, the lease expressly providing that the premises should not be sublet without the consent of Ewing. In the spring of 1886, Sheets sublet to Charles S. Welch, for an agreed rental of one-third of the crop raised, 40 acres of the land, on which Welch raised a crop of corn during that year, and which he planted to wheat in the following fall. About February, 1887, Sheets absconded, leaving his wife in charge of the land and other property. In the leasing of the land to Sheets, Ewing, being a non-resident, acted through a local agent, who had knowledge of the subletting of the land to Welch, and made no objection thereto ; nor was any objection made of any violation of the conditions of the lease until after Sheets had left the country. On March 1, 1887, the agent of Ewing entered into a contract of lease for the same premises with the plaintiff in error, Winkler, for a term of three years from that date. No steps or proceedings of any nature were taken at any time for the termination of Sheets’s lease or to regain possession of the land. The agent of Ewing proceeded upon the assumption that the term of Sheets might be considered forfeited and terminated by the mere fact of the subletting to Welch in violation of 'the terms of the lease. Welch remained in the undisturbed possession of the land and wheat until after it was harvested, in June, 1887, when this controversy arose by Winkler claiming ownership of the wheat under the lease entered into between him and the agent of Ewing. The trial court found against the claim of Winkler, that Welch was the legal owner of the wheat and entitled to its possession, and rendered judgment accordingly. The other defendants in error had interests derived through Welch.
The plaintiff in error complains of certain of the findings of fact made by the court, on the ground that they were not sustained by the evidence. This objection cán have but little weight in an appellate court. The trial court is the exclusive judge of conflicting testimony given by witnesses before it. We think, however, there was sufficient evidence to have warranted the court in this case in finding as it did. The contract of the lease entered into between Ewing and Sheets did not contain any condition or provision by which a violation of its terms by the tenant would, of itself, effect a forfeiture and termination of the lease. For any such violation the lessor might have had the benefit of either of several different remedies ; and, if the violation was of a substantial part of the contract and of sufficient consequence, the lease might have been terminated by proper proceedings at the option of the landlord. (Godfrey v. Black, 39 Kan. 193.) But the landlord cannot proceed, as was attempted in this case, by simply assuming that the lease was terminated and making a lease of the premises to another.
Some objection is made in the brief, in a general way, to the rulings of the court upon the admission of testimony, but as the portions objected to are not specifically pointed out, as required by the rules of this court, we shall not consider them. -
Finding no substantial error in the record, the judgment will be affirmed.
All the Judges concurring.
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