m..ARK f'. REEDEB.
(O£rcu(t Oonrt, D. West VirgintlJ;., November,1889.)
On bill to resoind a oontraot for the purohase of lands by plaintiff, on the grou.nd of fraud' and false representations, it appeared that part of the lands wasoovered' by a patent older than that under whioh defendant, who was the vendor, olaimed, andwasolaimed adversely to defendant; but defendant agreed to oonveywith speoial warranty only, and plaintiff agreed to pay for all lapds within the exterior boundaries fixed by a oertain survey, exoept saoh as were shown by a survey, had at the expense of the vendee, to be held "by adverse title and possession," oonRti. tuting a better title than defendant's. The bill did not allege that those in pos. seasion, daWning adversely to' defendant,. had a better title than defendant. Plltintiff's attorney, to whom the question of title was by the oontract to be submitted, knew of the prior patent, but not of the extent of the interferenoe, and certified that suoh' patent nuld not, in any event, affeot defendant's title, except to a small extent. Both he and defendant's agent supposed that the interlook oovered only a small portion of. the and plaintiff the first payment on that supposition thoughnot preventea from making full investigation. No survey wa!'! had by the vendee to ascertain the extent of the interlook. .Held, that the interlook constituted no' ground for resoission, though greater than supposed. On cross-bill by defendant, praying for a sale of the lands to pay the purqhase money, defendant is entitled to a deoree for a sale of the lands for the amount of the prioe; less the amount paid, and less, also, the value, at the agreed prioe per aore, of the lands to whioh others may be shown to have a better right than defendant, with interest.,
SAlIlJl-,I'RINOIPAL AND AGENT-RATIPIOATION.
A contract for the. sale of lands was exeouted by W.,"as agent" 01 the owner, and, being presented to the latter, he approved it, and subsequently received from the vendee the oash'payment specified in the contract, without disolaiming, on either ocoasion, W. 's assumption of agenoy. Beld, in a suit brought by the vendee for a resoission of the oontraot upon the ground of fraud and false representations upon the part of W" that the vendor, having taken the benefit of Its provisions, oould not dispute W.'s agenoy, and was as muoh bound by his fraud or false representations in the making of the contraot as if W. had been authorized to make the 'sale as agent.
In Equity. , 'I'his is a suit in equity for the rescission of 8 contract for the purqhase of rea;l the ground both of mutual mistake and fraud in respectto the quantity of the lands sold. The contract in question was as follows: "Agreement made this 29th day of February, 1884, by and bet,ween C. C. Watts, O'f Charleston, W. Va., acting under an agreement in writing between himself and Charles Reeder,of Baltimore, Md., dated the 3d day of .February, 1884, and as the agent of said Reeder, of the first part, and H. M. Bell, of Staunton, Va., acting as the agent of E. W. Clark, of Philadelphia, Pa., of ,the second part, witnesseth: That the party of the first part, acting as aforesaid, has this day sold to the party of the second part, acting as aforesaid, a Certain tract and parcel of land lying and being in the counties of Boone, Logan, Wyoming. and Raleigh, in the state of West Virginia, containing 50,096 acres, be the same more or less, which tract of land was granted by the commonwealth of Virginia to Edward Dillon, by patent bearing date on the 16tll day of April, 1796, and is now claimed and owned by the said Charles Reeder by a regular chain of conveyance, the first being a tax-deed for said land executed by the clerk of Wyoming county, dated the 22d day of December, 1857, executed in pursuanoe of a sale thereof for taxes delinq uent thereon, in: tbename ·of the heirs of the said Ed ward Dillon,' and, the last to the said Reeder from C. C. Cox, dated the 27th day of August, 1870; and fora'pal·ticv.40F.no.9-33
FEDERAL "REPORTER. 'v61. 40. ular description of said tract of land reference is had to said patent, upon the Said sale of said land is l\ following terms and sale by the acre, and not in gross. Second. The party of the second part is to pay for the said land at the rate of'one dollar and se-venty cents per acre, as follows: Thirty-five thousand dollars to be paid on the day on which James H.Ferguson, a practtcing attorney of Charleston, W. Va., shall eel'· tify the title of said Reeder to said land to be good and valid, which certifi. cate ia to be made within 30 days from this date; twenty-five ,thousand dol. lars of whicbsum iato bapaid to the said Reeder, and the residue to saii:! Watts. Thebaillopca of the !laid purchase money is to be paid to said Reeder On the 1st day of lSS4, or as soon thereafter as the necessary surveying can be done, to ascertain the quantity of land witl)in the bounds of the said patent to the ,said Reedar make good title;. It is understood that the party the sac,ond patt is the survey already made by Wm. T.Sl\Xverof bounds of said t:r;act of)and, and tbat the surveying to be done isonly,isuch as may become necessary to ascertain what lands within said boundarrare held by a better title than that of the said Reeder, of adverse,title. and all of which surveying .lsto be done at the expense of the, said .party of the second, part. Third. When the last of the purchase money is paid, the said Reeder is to convey said land. of special warranty, to the said E. Clark, or to such perBOn or persons as he may direct. Fourth. The ba,lance of said purchase money. after the qijte of the certificate of said Ferguson, is to bear interest until paid. Fifth. In addition to the said one 70·100 (laHars per,acre, the party of the second part to pay said, Reeq-et one thousand dollars, as pro. ric:ted for in hh;\ !l()l1tract with said Watts.' SirJ;th,' ThiS contract is subject to theappro'val Qtllaid Reeder. is to take effecUrom the date of such apof said Ferguson is proval; butthe sameshaU then\be void iithe not made within the time "Witness tbefotlbwing the day and year aforesaid. ," "C. O. WATTS. "H. M. BELL, Ag't for E. W. Clark." ..Approved March 4, 1884. C. REEDER." The paYJI,l,entof the 835,000 specified in this contract was Shown by thidollowing receiiM " ',' , ' . 1884, at H. M. Bell, agent for E. W. "$35',000. ReceitedMarcb Olark;,two drafts on said' S. 3d St.· Philadelpbia, dated this day, and payable at sight, one for ten thousand ($10.000) dollars. payable to order of C. C, Wl\tts.l\udthe ot;1)er for tw,enty-five tbousand($25,OOO)dollars, payable, to 'order of C1;larlel$, Beetler, wbichsaid, drafts, will be in flillpayment of the band, paYlI1.ent provided for in within <l.l?utract. , [Signed] WA':l'TS, Agent for Charles Reeder." fonescission, and by crossbill the, spe'cific enforcement of the contract., ,The cause wasargued Mr.J;Qstice JUc;lge JACKSON, sitting ol1"the circuit; the former holding the court in conformity with the writtetireqilestofthe chief justice, as provided for in section 617 of the Revised'Statutes.' , " ' H. nnd Ll&ydW. WiUUtm:', fo;plaintiff, Clark. .. ,
Watt8,and W·.4", Quarrwr,
HARLAN,' J ustroe.' '1. The contract 1884, was for the sale by Reeder to' Glark of a bdd,Ydf !ani! 'in, thissta1Je' containing. 50,096
acres, lporeor a patent from the commonwealth ofVhginia to: Edward DiUon, issued April 16, 1796; whichland, the and owned ,by Reeder by a regular chain Of conveyanpes, the first peing a tax.deed,to.WardandLawson,dated De:. cember 22, 1857, and the last a deed from C. C. CQX, dated August 27, 1870. 2. The was by the Mt ingross;-$1.70 peraore. 3. was to convey by special wnrranty, but he did ,not: expect to be p!\id for any land a better right to which, by ,adverse title and possession, wa.a shown to pe in some one else. This is made plain by various clauses in th'ilcontract, namely: (a) The land is described as "claimed and owned" by !leeder. (b) The cash payment of 835,000 was to be rnadeon the day On which Mr. Ferguson certified thetitIe of Reeqer"to be good andvali,d." (c) The balance of the purchaseinoney wliLS to be paid when the quantity of lands, within the exterior, of the Dillon patent, to which Reeder could make "good title" wasascer· tained by a survey. (U) The surveying. was to ascertain only whether any lands. withip. the boundaries" as established hy *e survey, were, "by reasOr} verse title and possession," held by "a better title" than that of Reeder. 4. ,If Mr. Ferguson did not give the required certificate within the time specified, then the contract, by its terms, became void. 'If he gave it witlii'n the time prescriOed, the balance of'the purqhase money, when such balartce was ascertairted, wHh, interest, from the date of such certificate, until paid. I am of opinion thatthe rights of the'parties must be determined upon the'theory that, at the date or the contract, Watts had authority, as agent for Reeder, to negotiate for the sale of the lands; though any sale or agreement to sell that he would make was to be subject to the approval of his principal. It is true that at the signing oithe contract Watts did not, in fa<lt, have authority, as agent for Reeder, to enter into an agreement for the sale of the lands. He had only an optional right for himself, fol' a limited period, and upon certain conditions, to buy. the lands. But, in making, the contract of February 29, 1884, he assumed to act, not only for himself, under his written agreement with Reeder, but as the agent oftne latter. And it was so stated in the contract. When, therefore, Reeder approved the contract in question, without qualification, he must be held, as between himself and Clark, to have assented to Watts' assumption ofagency. It does not appear that he was informed of what passed between Watts and Bell at or before the contract was signed by them; but he was at liberty to inquire as to such matters, or, when approving the contract, to disclaim the agency of Watts, as well as responsibility, for what ,the latter may have said to. Bell or others in respect to the lands. His unqualified approval of the contract was equivalent, so far as the question of agency was concerned, to original authority to Watts to make a sale of the lands, subject.to his approval as to terms. If, when the contract of February 29, 1884", was signed, Watts was guilty of any fraud, or made anyfalserepl'esentations,>that would en-
title Clark to a rescission, if Watts had been, in fact, an agent to sell, then, Reeder, in taking, the benefit of the contract, which, on its face, recites Watts' agency, cannot escape responsibility for such fraud or representa,;tions upon the grouhd that Watts was not agent, or because he did not have personal knowledge of what passed between Watts and Bell. The original bill seeks relief upon the ground of mutual mistake. The last amended and supplemental bill, it was said in argument, proceeds upon the ground of fraud or false representations by Watts, whereby Reeder succeeded in obtaining a contract which Clark would not have made had he known at the outset, or before any money was paid, what the record now discloses. But, upon careful examination of that supplemental bill, it is very doubtful whether it contains any direct, posi. tive averment of fraud or false representa,tions by Watts. The clauses in it that come nearest to a,n averment of that character are those alleg. ing that, 'if the interference of the Rutter-Etting patent had been known or suspected by Clark, or his agent or attorney, the contract in question ' would not have been entered into; and"If the existence olthe said Rutter and Etting survey, and the fact that it interfered with and overlapped the said Dillon survey, had in any way come to the knowledge of the said Reeder and Watts, or either of them, before or at the date of the execution ofsaid contract, or if they, or either of them, even suspected 'such interference, their said failure to make the known to your orator, or to his said agent or counsel, .before the of said tract, waS a fraud upon your orator in law and in fact, no matter whether they, or either of them, so intended it or not."
The supplemental bill seems. to' have been drawn with the view of find· ing out whether a fraud had been committed, and does not directly oharge fraud, or such representations as would entitle the plaintiff to a rescission. In the view"however, which I take of the case, it may be ,assumed that the plaintiff's pleadings sufficiently charge fraud; and it may also if it were satisfactorily proven that Watts made representations; in respect to the interlock of the Rutter-Etting survey and the, Dillon survey tha.t were false,and of a material cha.racter, the plaintiffwould be.imtitledto a rescission. I am, however, of. opinion that the evidence upon that issue does not justify a decree resciriding the contract. The testimony of Mr. Ferguson and Gen. Watts is painfully con1I.ic.ting, as is often the result where witnesses occupy the position, also, of lawyers in the ,same case. I have read and reread their depositions, and, while there are ugly confliots between them as to material matters, I take pleasure in saying that I do not believe that either gentleman has made any statement that he did not at the timebelievEl to be true. Look· ing at all the evidence, I lim of opinion that the charge of fraud-,assumingJraud to be ,sufficiently not sustained by such evidence as Will justify the court in basing a decree upon that charge, or in determiningthe rightll of the partieslipon any basis except that furnished by the written doouments, and"such uncontradicted facta as are competent in. cohnectionwith .those documents.
CLARK ". REEDER.
Undoubtedly the Rutter-Etting patent is older than the Dillon patent. It is equally clear that the former covers most of the Dillon survey, though the extent of the interlock is not made certain by the evidence. But the interlock, however serious, does not, of itself, or by itself, enti", tIe the plaintiff to a decree setting aside the contract. Every foot of the Dillon survey might be covered by the Rutter-Etting patent, and yet Reeder's title, under the Dillon patent and survey, to the lands in question may be better in law than any other. The parties to take the exterior boundaries of the Dillon survey, as established by Sarver, and Clark was given the right, by a survey at his own expense, to ascertain what lands within those boundaries were held by a better title than Reeder's, "by reason of adverse title and possession." Now it is perfectly consistent with the allegations of plaintiff's pleadings that no single acre in the Dillon survey is held by a hetter than Reeder'sr "by reason of adverse title and pos8ession." If Reeder, and those claiming under him, are in possession with a better right in law than any one not in possession, but simply claiming under the Rutter-Etting patent, then it is immaterial, under the contract, that the Rutter-Etting patent is older than the Dillon patent. I repeat there is no distinct averment in the plaintiff's pleadings that he will lose any of the land" by reason of adverse title and possession" in others. He avers that there are lands within the Dillon survey which .are claimed adversely to Reeder, but he does not allege that the claimants are in possession, under the Rutter-Etting survey, and have the "better" title. As to the evidence in respect to lands within the Dillon survey that are covered by the Rutter-Etting patent, it falls far short of establishing. what is claimed for it by the plaintifPs counsel. Mr. Ferguson, -in his brief, insiststhat the "purchasers" at the sale by the commissioner, under the forfeiture of the Rutter-Etting survey by Virginia, "or others holding under them, are to a great extent in possession of these lands, claiming them as their own." On the other hand, Mr. Quarrier, in his brief, insisted that there is no proof in the cause showing, or tending to show, that the Rutter:Etting title is better than the Dillon title, or that the plaintiff has been, or ever will be, injured by reason of the RutterEtting title. Mr. Kenna asserts in his brief that there is neither allegation" nor a scintilla of proof" that the title certified by Mr. Ferguson is not good against the world. I have examined the proof, and to my surprise, and contrary to the impression I got at the oral argument, it does not appear that any very large part of these lands, outside of what is held by junior patentees in possession, is held by a better title than Reeder's, "by reason of adverse title and possession." The utmost shown is that most of the Dillon sur· vey is within the lines of the Rutter-Etting survey. But, as already said, this might be true, and yet Reeder's right be the better in law; Can it be a sufficient ground to Bet aside the contract for the plaintiff to show that a large part of the lands in question is within the lines ofapatent older than tbe one under whioh Reeder claims, and that ,it is claimed to Reeder; espeoially when ;Reeder only agreed tocoDvey with
special' _tfiiuty" :anMwh6ri., theplaintitf· agreed to' pay for all the lands covered by-the Sarver stlrvey,exceptsuchas had at his expense to be, held" by:adverse title" and possession," constituting a better title than Reeder's?' I think not. 'There, are,'other weighty cortsiderations in this connection. Whatever fact may be in dotibtuuderthe evidence, it appears beyond all question that before Mr. Ferguson, the Moomey of the plaintiff, to whom, by the <Jontract, the question,rof title was submitted, certified Reeder's title to ,be good, he: became aware of'the fact, if it was previously unknown tohirn, that: the Rutter..Ettil1g patent,was older than the Dillon patent, and covered part of the lands in question. I am satisfied that no one ' connected with this business knewthefuUextent of the interlock; but Mr. Ferguson kne)'Vthat, no one's judgment or guess on that subject, without an actual: flurvey, was, of any If Mr. Watts believed, and so said tohimaHhe time ofthe investigation of the title, ithat the RutterEtting patent covered less.thanlO;OOO acres of land, it is impossible to stippose that Mr. Ferguson, with aU, his experience as a lawyer, especially in eonneotion with <land titles, relied upon any such expression of belief,or any such statement. This ,is shown by his certificate. He llS:lys: " 'II The only' title which can be found older than the Dillon patent is a grant from the comtuonwealth of Virginia to "Rutter and Etting, dated the 9th day of January. 1796. There is, :from, the best information I can obtain, a small portion of the Rutter-Etting;!lurveyembr!Lced within the Dillon survey. But Etting survey was,forfeited IQug prior to 1837, in the state of Virginia, fOr the non-payment of taxes tliereon, andior the non-entry thereof, on' the land books of the proper county, and was sold by the commissioner of and forfeited Jands Some forty or more yeal"S ago.. At the time of that sale the taxes on the Dillon sllrvey had always been paid, and for that reason the title to the whole thereof became good and valid, so far as the Rutter and Etting is concerned." After referring to junior'clahhants of the land, and saying that it impossible t6 tell what number of acres they can make good title to, he proceeds: ' "But lcan with itlino!,ta jlE;lrfeet certainty, that in viewof the possession of the said tract 'by said Reeder,l!ond those untl.¢r whom he claims, for nearly 25 yearB,lhe number of acres to which these junior claimants can make title will be but small, comparatively. "r do therefore certify that in my opinion the title of Charles Reeder to the said Dillon '"1'VaY is good and valid, except to such parts of said tract as may afiected, by ,tlle claims of the aforesaid, ,which may ,or may not to the title of sl;'idReeder." ,
," " 'j' .'" ' _. " . ,
The basiso£ the present suit lathat the interlock between the RutterEtting survey and the Dillon survey is much greater than any one'supposed. But! evidently Mr. Ferguson'did not care, at the time he gave his 'certificate; how great this, interlock 'was; for heoertifiesj in effect, fhat whether it· was large or small the: title under the Dillon survey I as to the wholEr of that survey, was good against the Rutter-Etting patent, and that Reeder's title valid against tlieolder patent, and as to all
the lands except that held 'by junior occupants. :Wall he mistaken as to' nor Watts the law of the case as thus presented? If so, neither was responsible therefor. Would a survey have shown the extent of the conflict between the older patent and the Dillon patent? Certainly. But Mr. Ferguson did not deem such survey necessary, believing, for the reason stated in his certificate, that the Rutter-Etting patent did not affect the title under the Dillon survey. .It will not do to. say. that there was not time for such a survey within the 30 days fixed for giving his certificate. His client was not bound to accept a certificate disclosing upon its face a conflict between the Rutter-Etting patent and the Dillon patent,but not disclosing the extent of that conflict; but he was at liberty to accept and act upon a certificate by his attorney, to the effect! that such·conflict did not affect the value of Reeder's title. It is suggested that Mr. Clark would have lost the benefit of the contract if Mr. Ferguson had insisted upon a. survey. to ascertain the extent of the interlock between the Rutter-Etting patent and the 'Billon before giving his certificate. Surely that is no reason why the court should interfere and a·nnulthe contract. If Mr. Clark, .byhis agent, Mr. Bell, chose to-make the oosh payment of $35,000 with knowledge that an older patent covered a part of the lands in, question, and relying upon the opinion of his. attorney that Reeder's title was valid safar as the old patent was conceriled,and without reference to the extent of the interlock, he is in no position to have the contract canceled bemuse 9f such interlock, especially in view of the fact that he agreed to take a deed with speeial warranty only. This view is not at all affected by the fact stated by Mr. Bell (;who is an attorney, was th.6 agent of Mr. Clark, and was interested in this purchase) that the first information he had as to tht> Rutter-Etting survey interfering with the Dillon survey was on the 25th of March, 1884, when Watts delivered to him Mr. Ferguson's opinion as totitleL that Watts concurred with Mr. Ferguson that the interlock was oJ,llyas. to a small portion of those landg j and that the result of their, tion on the subject was that he, (Bell,}being satisfied as to title, gave to Watts the drafts upon Clark for. the amount of. the cash payment. At most this only shows that Ferguson and Watts concurred in the view that thA interlock between the .two patents was only as ito a reI;ativelysmallportion of the land. But that was not a tion, that entitled the plaintiff to a rescissiun of the contrMt. Ferguson, representing Clark, made his investigation of 'title independently of; the question as to the extent of the conflict between the patents of 1796. Nothing was done to pfeventhim from maij:ing the,J!1Uest investigation. If, in order to enable Clark to get the benefit of what was supposed at the time to be a beneficial contract, he chose, instead of making or requiring such investigation, to make the question of title rest upon his belief and opinion as to the validity of the Dillon title as against the older patent, by reason of the facts stated in his certificate, and if Mr. Clark's agent, Mr. Bell, with the contract before him, accepted the certificate as prepared, and made the cash payment, then the
FEDERAL REPORTER,vol. 40.
interlock between the Rutter-Ettingsurvey and the Dillon survey constitutesno ground for annulling the contract. ',I am of opinion that the prayer for a rescission of the contract ought not to be granted. The next question to be considered is whether Reeder is entitled to the relief asked in his cross-bill; namely, a decree for the sale of the lallds in question to raQse such sumas may be due him as the balanee of the 'purchase money. If the views already expressed are sound, a decree in favor of the defendant, Reeder10n his cross-bill, will necessarily ·follow; The amQunt apparently due him from the plaintiff is $85,163.20, (50,096 acres at $1.70 per acre,)less $35,000 already paid, and less alstrthevalue of such· lands (at the rate of $1.70 per acre) as may be sho\Vn to be within the exterior boundaries of the Dillon survey, fixed by Sarver, and to which there is showl\ to be a better title than Reeder's "by reason of<lldversetitle and possession." The lands thus to be excluded from the computation of th£i'ualance of the purchase money, and excepted from any decree of sale, include not only such as are in possession ot junior patentees, holding bya better right than Reeder, but such lands asnre within both the Dillon and Rutter-Etting surveys, and are in the possession of 'others having title under the Rutter-Etting patent, and who, by reason of such title and possession, have a better right than Reeder. For the balance remaining, with interest thereon from the date of Mr. Ferguson'soertificate, Reeder will be entitled to a decree for the sale of 'the lands. . In view of the uncertainty which has prevailed as to whether the quantity of lanns to be excluded from the computation as to thebalance dub Reeder would be ascertained by institution of actions of 'ejectmentor in sQme other 111ode,it would not be just to proceed to a final decree lipontheevidence now before' the, court. The case should go to a competent 'master, under whose directions a survey should be had, at Clark's election, as weU as at his expense, to ascertain who, if any persons. are in possession of,lands· within the Dillon survey, as run by Sarver, claiming by title adverse to' that of Reeder, and whether such claim by adverse title and possession gives a better right than Reeder has to the lands, or any of them, embraced in the contract of sale. In the event asllrvey be had; the parties should be given a reasonable time to make additional proof upon the above point, and upon such proof, and the evid'Ell100 now in the record, 80 far asoompetent, the report of the master should be based.
. JACKSON, J.
I concur in the conclusions of Justice HARJ..AN.
· . WILLIAMS tI. WILLIAMS.
(OIirCUJtt COurt, D. Kansa8.
GIFTs-INTER VIVos-HUSBAND AND WIFE.
November 25, 1889.)
Plaintifl', living in England,separatedfrom her husband. The latter came to America,married defendant, who did not know of his former marriage, and died, leaving children by both wives. Some time before his death he transferred his property, without consideration, to defendant, and, though he continued to have the use of it for his support, i1;did not appear that he could dispose of it without defendant'.s consent. Plaintiff never lived in the state in which the husband lived in this cOuntry, so that the husband's conveyances to defendant did not require plaintifl"s signature. Defendant ·worked til 'help accumulate the property, 'an.d nursed the husband for several years, while he was disabled. Held, that plaintiff and her children had no claim on the property thus transferred to defendant.
In Equity. . Gillett, Fowler &: Saddler, for complainants. J!1rook H. Hay and Joh'lUJOn,Martin &: Keeler, for defendant.
FOSTER, J. This action is brought by Anne Williams, widow,jointly with eight of her children, heirs at law of William Williams, all subjects of Great Britain, and residents of Wales, against Catherine Williams, of Osage county, Kan., widow of said .William Williams, under an illegal marriage, to recover the estate left by said William Williams, deceased, alleged to be worth about $8,000.' Anne Williams and William Williams were married in Wales in 1846. At the date of .this marriage, Anne had, in her own right, in possession and expectancy, quite an .estate. By the law of England, the husband at marriage' became entitled to her personal property,. and did receive quite a sum of money from her estate. There was an antenuptial contract entered into between the parties, by which Anne reserved an hundred pounds, the income of which was to be and remain her separate property. Among other things, it was provided in said contract, in case Anne should survive her. husband having living issue, .the estate was to be divided .between Anne and her children in such· proportions as William might, by will; designate. The parties lived together until 1871, when theyseparated, and in 1873 William came to America, bringing with him about £800. In 1875, Williams and the defendant, Catherine, were married in Kansas, and have two children living, issue of such marriage.. Williams died in 1887, leaving quite an estate, among which is the farm in Osage county on which the defendant and her children now reside. The testimony as to whether Catherine, at the time .of her marriage with Williams, was aware of hia having a wife living in the old country, is somewhat conflicting; but I think the weight of the testimony and circumstances tend to show that she did not have such knowledge prior to the marriage, but first became aware of it after the birth of her firstchild. At the time of the plarriage, Catherine had about $5.00 of ,herowomoney, which went into the hands of her husband.. These parties lived together, as man and wife, for 12 years. They were industrious and thrifty. The defendant worked as well as her husband to accumu-