Volume 14 — Kansas Reports

Error from, Nemaha District Oowrt. In November 1858 Mumford made a contract with James R. Herd, then a land-agent at Kickapoo, to locate a certain land-certificate held by Mumford on government lands situate in the' Kickapoo land-district, for which services Herd was to receive five cents an acre, to be paid in lands selected at the price of one dollar an acre. Herd located 16,760 acres? for which (under said contract) he was entitled to receive 838 acres of land.

Error from Neosho District Court. Injunction, brought to contest the county-seat election held March 26th, 1872, and the same election which was in controversy in the case of Butler'v. MaMillen, 13… Held: is, some means by which it can still hold the county-seat, after the election is over, a long time against the legally-expressed will of the people. Well, this is just the case with the friends of Osage Mission.

Error from, Atchison Eistrict Court. This case was here once before, and is reported in 9 Kas., 620, where a full statement of the pleadings, and of the main facts will be found, pp. 621, 622. On being remanded to the district court, another trial was had, at the June Term 1873. The facts, as proven on this trial, were set forth in a special verdict, which will be found in the opinion, infra. The jury found for the plaintiff, Pointer, and assessed his damages at $5,000.

Error from Bourbon District Court. Magill brought his action to foreclose a mortgage given by Edwin A. Wade and wife on Lot 2 in Block 193, city of Fort Scott, to secure the payment of notes given by Wade alone, amounting to $400. Martin being in possession of said property claiming title thereto, was joined as a co-defendant. The Wades made default. Martin answered, setting up title in fee in herself under a t.ax deed issued subsequently to the execution of said mortgage.

Error from, Johnson District Court. Injunction, to restrain the collection of alleged illegal taxes. The facts are sufficiently stated in the opinion. The district court, at the August Term 1873, dissolved a temporary injunction previously granted, and on final hearing dismissed the plaintiff’s petition and gave judgment in favor of the defendants for costs. The plaintiff brings the case here for review. 1.

Error from Morris District Court. Young and two others as partners obtained judgment against Ledrick & Simcoak, the defendants in error, at the April Term 1872 of the district court of Morris county, and afterward, proper cause being shown, instituted proceedings in aid of execution before the probate judge of Morris county under §§ 482 to 504 of the civil code.

Error from Leavenworth District Cowrt. Questions of practice only are determined in this case, and the opinion fully states how they arose. Budd and Budd, two of the defendants, demurred to the petition. The district court, at the November Term 1873, overruled the demurrer, and Budd and Budd bring the case here on error.

Information,.charging defendants with grand larceny, in having stolen a “black horse, the property of J. P. McN., of the value of seventy-five dollars.” Plea, not guilty. Trial at the December Term 1873, (C. O. F., judge pro tern., presiding.) Verdict, guilty, and defendant Folwell was sentenced to imprisonment in the state prison for three years, and defendant White for seven years. Defendants appeal. 1.

Gurnee was charged on the oath of George H. Newton before a justice of the peace, with maliciously and unlawfully entering upon the land, or “claim,” on the Black-Bob Reservation, alleged to be owned by said Newton, oh the 16 th of June 1874, and then and there cutting down and carrying away about fifteen acres of wheat growing on said “claim.” Gurnee was convicted before the justice, and appealed therefrom to the district court.

Error from Leavenworth District Court. Action brought by Delahay as plaintiff, against J. P. Taggart, I). W. Houston and J. I. Larimer. Houston arid Larimer demurred to the petition. The district court, at the May Term 1874, overruled the demurrer, and from this decision H. and L. appeal, and- bring the case here on error. The only question here is one of pleading, and the opinion states all the necessary facts. 1.

-Error from Atchison District Court. Riley brought an action against Holmes upon a certain promissory note. The petition set forth a copy of said note. Holmes made and filed his answer thereto, verified by affidavit, denying the execution of said note, and denying that Riley was the owner thereof, or that he'ever purchased the same before maturity, or paid any. value therefor. Reply, general denial. Trial at the November Term 1873.

A criminal complaint was filed before a justice of the peace, against defendant, the body of which was as follows: “Dorotha Evarts being duly sworn according to law deposes and says, that on or about the 27th day of August, 1873, in the county of Saline aforesaid, one W. D. Jennerson willfully, maliciously and unlawfully attempted to sever and remove from the freehold of affiant a cross-piece and hook which were then thereto attached, and which said cross-piece and hook were…

J. Rullier. Trial at the August Term, 1874. The facts, and the errors complained o'f, are sufficiently stated in the opinion. Verdict of guilty. New trial refused, and the defendant appeals to this court.

Error from Shawnee District Court. Gillett-had judgment against Haug at the June Term 1873 of the district court, and Haug brings the case here on error. The facts and proceedings are fully stated in the opinion.

Error from Wilson District Court. Action for perpetual injunction, brought by Akin. A preliminary injunction ivas applied for, at chambers, Nov. 7th, 1873. The district judge refused the application, and Akin appeals. The pleadings, facts and proceedings are fully stated in the opinion. No briefs on file.

Error from, Nemaha District Court. Action by Young to recover damages for an alleged breach of a covenant of seisin. Clippinger demurred, and the district court, at the April Term 1874, sustained the demurrer, and gave judgment for the defendant. The words of the deed, so far as material, are quoted in the opinion, infra.

Error from, Neosho District Court. Ejectment, brought by Lownsberry, to recover possession of Lot No. 3, and the S.E.J of the N.W.J of section 4, in township 29 south, of range 20 east, containing 80.42 acres, in Neosho county, which plaintiff • claimed to own in fee simple.

* Frror from Franklin District Court. Action by Parkinson to recover for services rendered by C. B. Mason, an attorney, in a cause brought and prosecuted in the district court of Franklin county against The Ottawa University. Mason made out his bill for said services, charging $1,000 therefor, and giving credits on account of same, $51.50, leaving a balance of $948.50, which he assigned to plaintiff, and for which this suit was brought. Answer, general denial.

Error from Leavenworth District Court. Action by Newby, on an account. The pleadings and facts are fully stated in the opinion. Newby had judgment at the November Term 1873, and Kermeyer brings the case here for review. No briefs on file.

<p>Attorney’s Services. The rule for determining the value of the services rendered by an attorney at law, stated in Ottawa University v. Parkinson, (ante, p. 159,) approved and followed.</p>

Error from Labette Eistriet Cowrt. Trespass, brought by Davis, to recover actual damages sustained by means of the wrongful suing out and levy of an order of attachment. McLaughlin demurred to the petition.

Sullivan was tried before a justice of the peace and convicted for an alleged violation of § 2 of ch. 113, Gen. Stat., “ an act to prevent certain trespasses.” He appealed to the district court, where another trial was had at the September Term 1874, M. S., judge pro tem., presiding. The facts were agreed to, signed by the parties, and filed. The defendant was again convicted, and he now brings the case here by appeal.

Howard was charged by information with assault with intent to kill one James Collier. Trial and conviction at the March Term, 1874. The instruction complained of is copied in the opinion, infra. Howard brings'the case here on appeal. We ask the attention of the court to the 5th instruction for the state.

Error from Doniphan District Court. Probasco brought suit to recover on two notes of $550 each, ($1,100,) executed by Wm. M. Ayres to hirp, and to foreclose a mortgage given by Ayres and wife to secure said notes. FranJc Sutter, as the holder of a second mortgage, was joined asa co-defendant. Afterward the court ordered W. L. Challiss made a defendant. Each defendant answered separately.

Error from, Jefferson District Court. Action by defendant in error to establish a trust, and compel plaintiff in error to reconvey. The land in controversy was a fractional quarter-section in Jefferson county. By amendment of the petition the action was converted into an action to quiet title.

M-ror from Miami District Court. Ejectment for a lot in the city of Paola, brought by Mrs. Beleaf Kent as plaintiff against Anderson & Potts as defendants. The defendants were in possession of the premises, and claimed title thereto by sheriff’s deed, obtained in an action by them against Erastus Renfro and Betsy J. Renfro, who were indebted to Anderson & Potts upon joint contract. The facts and proceedings are fully stated in the opinion.

Error from Harvey Eistriot Court. Action by Cuthbert against the Railroad Company. Judgment for plaintiff at the April Term 1874. The defendant brings the case here on error. All the facts necessary to a proper understanding of the case are stated in the opinion.

Original Proceedings in Quo Warranto. Quo Wabbanto, to determine the right to the office of treasurer of Morris county. The facts sufficiently appear in the foregoing syllabus. The action was commenced in this court by Duncan McDonald, county attorney of Morris county, as relator, to determine Conn’s right to hold said office of county treasurer. No briefs on file.

Error from Shawnee District Cou/rt. Foreclosure of mortgage, brought' by German against-Morris and wife. The plaintiff had judgment at the June Term 1872, and defendants bring the case here. The only question here decided is as to the allowance of attorney-fees, respecting which the facts are fully stated in the opinion. contended that what was a reasonable attorney-fee for foreclosure was, under the pleadings, an issue of fact to be tried by jury.

Tffrror from Miami District Court. Crozier & Co. brought their action to foreclose a mortgage executed by Vm, Toms and wife and G-ustavus E. Weylandt and wife, which mortgage was recorded in November 1869. Uriah Dorman, Joseph Haefner, Charles Quest, V. C. Jarboe, Frank Play ter, and others, were joined as co-defendants, as having some interest in or lien upon the mortgaged premises.

Error from Osage District Court. Shepard sued Sanford in a justice’s court on an account for goods sold and delivered, claiming a balance of $194.95. The record does not contain the pleadings before the justice, nor show what defense or defenses were there interposed by Sanford. The case was taken to the district court by appeal, where by consent of parties and leave of court new pleadings were filed.

<p> Error from Jefferson District Court. </p> <p>Action for partition of real property, brought by William B. McCauslin, Charles F. McCauslin, John Gregg, John W. Corwine, George Corwine, Christian Blaser, Ellen E. McCauslin, Harriet F. Millar, George B. Millar and Frank Millar, as plaintiffs, who claimed that they were the owners of the undivided one-half of a certain quarter-section of land. The plaintiffs admitted that McGuire, the defendant, was the owner of the other one-half interest, but he claimed title in fee to the entire tract. ' The tax deed under which defendant claimed title is set out in full in the opinion, infra. The district court, at the May Term 1873, found in favor of the defendant, “that the defendant was the legal owner in fee simple of all of said land, and that the plaintiffs had no interest in nor title to any part of said land,” and gave judgment accordingly. The plaintiffs bring the case here on error.</p> <p>1. The tax deed under which defendant claims title is not duly witnessed, and is therefore not prima facie evidence, and was not admissible in evidence without proof aliunde that all the tax proceedings prior to its execution were legal and regular. (Comp. Laws 1862, p.-878, §10.) It has only one subscribing witness. The statute' referred to (which was in force at the time,) requires the deed to be “ duly witnessed,” and then gives a form for tax deeds, the blanks in which cannot be logically or grammatically filled without the insertion of at least two names as attesting “witnesses.” The reasons for requiring “ attesting witnesses ” are, to give additional certainty that the execution is genuine, and to multiply the evidence by which that genuineness can be proved. Neither of these objects, nor any object whatever, is attained by having the officer who certifies the acknowledgment sign his name as a witness also. The whole object to be attained by his signature and witnessing is attained when he signs it officially; and there is no more sense nor reason in his signing again as a witness, than there would be in the same person signing his name twice, as a witness to a will, in order to satisfy the statutory demand for two witnesses. Hence we claim that, upon a rational construction of the statute, the deed is not witnessed at all.</p> <p>But whether the officer is a competent attesting witness or not, the deed fails to comply with the statute, which requires. “witnesses.” It is a well-settled principle that the courts cannot dispense with the regulations prescribed by statute to be observed in the execution of statutory power: Young v. Bawling, 15 Ill., 481; AtMns v. Kinnan, 20 Wend., 240, 249; Bloom v. Burdioh, 1 Hill, 130, 140; Sharp v. Speir, 4 Hill, 76, 86; Jaohson v. Esty, 7 Wend., 148; Blackw. on Tax Titles, 493.</p> <p>2. The deed does not show that any consideration was ever paid for the sale certificate, or the assignment thereof. It is a substantial requirement of the statutory form of tax deed, that it shall show the amount paid into the county treasury by the tax-lien purchaser. Such payment is the real and substantial foundation of his lien or title. The statute forfeits the title of the owner of the land for the nonpayment of the taxes to any person who pays them in the manner prescribed, and the statute requires such payment to be shown in the tax deed. The recital in this deed, that the county treasurer bid the land off for the county, does not show nor imply any payment, because the statute did not authorize the county treasurer to pay anything as a bidder for the county. The statute, (Comp. Laws, 867, § 44,) provides that any person may become the purchaser of the certificate by paying into the county treasury the cost of redemption at that time; and this court decided, in Guittard Township v. Marshall County, 4 Kas., 388, and other cases, that “any person” means some other person than the county.</p> <p>The omission to state in this deed that any such payment was made, leads to an absurdity in the latter part of the deed, where the county clerk says that he conveys the land in consideration of “said sum of $18.61 taxes,” etc., “to the treasurer paid as aforesaid.” No payment to the treasurer having been stated or referred to anywhere else jn the deed, the conveyance is left without a semblance of consideration, and for aught that appears from the deed, the taxes, penalty and charges still remain due and unpaid upon the land.</p> <p>3. The deed says this land was sold on the 7th of May, 1862, which, by reference to a calendar, is found to be Wednesday; and there is no averment in the deed that it was sold at any sale, or adjourned sale, begun and held on the first Tuesday in May. It is true that the insertion of,the word “at” in a certain place would cause it to make such averment. But the court would have to exercise equity powers in order to reform the deed in that manner, which the court is not authorized to do, because courts of equity even are not allowed to cure defects in the execution of statutory powers. Yov/ng v. Dowling, 15 Ill., 481.</p> <p>4. The name of the officer taking the acknowledgment is not given in the body of the certificate of acknowledgment. The statutory form, by leaving a blank for that name, requires it to be there inserted. A tax deed is not substantially in the form required by statute when it omits any averment therein required. The phraseology may be changed in many respects without substantially changing the form, provided equivalent averments are inserted; but when the fact required to be inserted is omitted, it loses a part of the substance. If courts can dispense with one requirement they can, with equal propriety, dispense with another which they may think the legislature has unwisely or unnecessarily required, and thus by gradual steps assume the entire legislative powers upon the subject. , ,</p> <p>5. The deed purports to be based upon a sale certificate .first issued to the county in a case where the land could not be sold for the taxes, penalty and charges thereon. (Comp. Laws, 867, § 42.) The only statute in force at the date of this deed providing for or authorizing the issuance of a tax deed was §10, page 877, Comp. Laws, which provides that a tax deed may be issued only in cases in which the land is sold for taxes. This land was not and could not be sold, or else the county treasurer had no authority to bid it off for the county, as stated in the deed. Such bidding off by the treasurer is not a sale within the meaning of said § 10. The county does not by such bidding off acquire any new lien on or title to the land — it can never become entitled to a tax deed thereon nor acquire any rights as an occupying claimant thereunder. Neither the certificate nor the land is any part of the general county property, the custody of which is given to the county board, and neither of them can be sold by the ■comity. . It is true, that Comp. Laws, page 867, §44, provides a way by which the county, with the other corporations, may receive the taxes due them respectively, by allowing “any person” (other than the county) to purchase the certificate, and thereby become entitled to the amount of the taxes when paid by the owner of the land; but such purchaser never becomes entitled to a deed thereon. But it may be said that the certificate issued to the county, and acquired by “ any person ” as a purchaser is by law required to state that at a certain date the holder thereof will be entitled to a deed thereon. Let us see if that is true. Sec. 44 requires the treasurer to make to the county a certificate “similar” to that specified in §43. If “similar” there means “technically and exactly like,” then it requires the treasurer to certify, not only that the county will at a certain time become entitled to a deed, but also that the county paid the amount of tax, penalty and charges thereon, both of which are untrue. The only reasonable construction of the term “similar certificate” is, a certificate certifying the facts, just as a certificate to a purchaser at the sale recites the facts. The facts required in a certificate to the county are, that the land, describing it, could not be sold for the amount of taxes, penalty and charges thereon, and was bid off by the county treasurer for the county for such amount, naming it. The statute nowhere prescribes a form for, nor provides for a deed upon a certificate to the county. Had the legislature intended that a tax deed should ever be issued on such a certificate, it would have provided a form of deed applicable to such cáse, or at all events would not have required all tax deeds to be in a form' not applicable to such a case.</p> <p>6. The middle portion of the deed (being about one-third of it) bears hardly any resemblance to the statutory form. It does not say that any person offered to pay the taxes, nor that the property was stricken off at any price, nor that the payment of any sum was made to the treasurer, nor that the amount of taxes, penalty and charges was ever paid by anybody; neither does it give a description of property sold where the statutory form requires it — the second description of land in said deed being in a connection which gives it no coherency or meaning except as an averment that no less quantity was bid for.</p> <p>But even if it is held that this deed may depart from the statutory form enough to suit the peculiar facts in the case, the deed still fails to be .good, because it does' not set forth sufficient facts upon which to found a conveyance. It does not say that the land could not be sold at any regular sale for the tax, penalty and charges thereon, as required by §42, (Comp. Laws, page 867,) nor that any person ever paid, or offered to pay, a sum equal to the cost of redemption at that time, as required by §44; nor does it say what county treasurer bid the land off, nor does it describe the land bid off by. the treasurer other than by a reference to the land subject to taxation.</p> <p>7. The evidence in the case shows that the plaintiffs and one Abel Whitney were tenants in common of this land before and up to January 21st, 1865, at which time the defendant purchased Whitney’s title, and received from Whitney a conveyance of the undivided one-half of said land; that at the same time, and as a part of the same transaction, defendant got from Whitney the certificate on which the tax deed in question was subsequently made to defendant. Now we claim that upon this evidence the legal presumption is, that Whitney held that certificate for the joint benefit of himself and the plaintiffs, and that defendant, by receiving it as a part of his muniments of title, took only the rights that Whitney had, and the defendant cannot by means of that certificate, or of a tax deed subsequently taken thereon, acquire a title to the land to the exclusion of his co-tenants, the plaintiffs. One tenant in common before partition cannot purchase in an outstanding title or incumbrance on the joint estate for his exclusive benefit, and use it against his co-tenants. The purchase inures to the common benefit of all the co-tenants — the purchaser being entitled to contribution only: 1 Neb.> 448; 51 Penn. St., 377; 2 Black, 613; 49 111., 78; 2 Haskell, 288; 5 Johns. Ch., 406; 2 Greenl., 207; 4 Litfcell, 187; 6 Dana, 172; 6 Ohio, 227; 33 Cal., 408; 8 Mich., 263.</p> <p>1. The clause, “such deed duly witnessed and acknowledged,” which occurs in § 10, ch. 198, Comp. Laws, p. 877, is borrowed from the tax law of "Wisconsin. The general law of that state provides that no deed for the conveyance of any land, or interest therein, shall be valid unless the same be executed in the presence of two witnesses. In this state our tax law does not designate the number of witnesses, nor does any law of this state require an instrument of conveyance to be witnessed. At common law attesting witnesses are not necessary to the validity of a deed. Where the statutes make no provision as to the number of witnesses, the common-law rule applies, and a deed that is acknowledged before a proper officer needs no witness: Gray v. Ulrich, 8 Kas., 112, 121; Phillips on Ev., 413 to 421; 2 Blackstone’s Com., 307; note 21; 4 Greenl. Cruise on Real Prop., 31; 3 Mich., 581-This deed is duly acknowledged, and this court has decided that “we do not think, where a deed is acknowledged, any witnesses are necessary;” Stebbins v. Guthrie, 4 Kas., 369; and see Shoat v. Walker, 6 Kas., 72.</p> <p>2. It is claimed that “the deed does not show that any consideration was ever paid for the sale certificate, or the assignment thereof.” The tax deed shows that the land was subject to taxation for the year 1861, and that the taxes assessed on said land for that year remained due and unpaid on the first Tuesday of May, 1862, (the time fixed by law for the sale of the same for delinquent taxes,) and that at the time aforesaid the treasurer of said county of Jefferson exposed the same to public sale at the county-seat in said county in conformity to all the requirements of the statute in such case made and provided, for the payment of the taxes then due thereon, and that no person bid therefor the amount of such tax, penalty and charges so due and unpaid, and that the land was bid off by the county treasurer for the county of Jefferson, for the sum of $7.57, that sum being the whole amount of taxes, interest and costs then due and remaining unpaid on said property. The tax 'deed thus far shows a compliance with the statute. (Sec. 42, Comp. Laws, 867.) Sec. 44 of the same act made it the duty of the county treasurer, where land was bid off for the county, to make a certificate to the county, similar to those given to individual purchasers; and also provides that said certificate shall be subject to purchase by any person offering to pay therefor a sum equal to the cost of redemption at that time, and the county treasurer should assign the same to the purchaser, the same being made assignable by the county treasurer in like manner as those given to other purchasers — the same as an individual. This tax deed further recites that the treasurer duly assigned the sale certificate and all the right, title and interest of the .said county to said property to Thomas McGuire. It further recites that “two years having elapsed since the date of said sale, and said property has not been redeemed therefrom as provided by law, now, therefore, * * * for and in consideration of the said sum of $18.61, taxes, interest and costs due on said land for the year 1861, to the treasurer paid as aforesaid,” etc. We think this shows a consideration paid to the county. It is true that the deed does not recite that McGuire paid to the treasurer $18.61 at the time the certificate was purchased by him, and the transfer made by the treasurer, but it recites the fact that the treasurer duly assigned the certificate. An officer duly doing a thing,' means, regularly, properly. If regularly and properly done, he must have received the amount of taxes, interest and penalty then due; and the clerk certifies that the sum of $18.61, taxes, interest and costs, was so due on said land, and was so paid by Thomas McGuire to the treasurer as aforesaid, who is, in a former part of said deed, described as “ the county treasurer of the county of Jefferson.” Bowman v. Qoekrill, 6 Kas., 326.</p> <p>3. It is claimed that the deed is void, because the land was sold on the 7th of May 1862, which is found by reference to a calendar to be Wednesday, and -that there is no averment in the deed that it was sold at any sale or adjourned sale begun and held the first Tuesday in May. It makes no difference whether the sale was made on Wednesday, or on any other day of the week. It is plain to be seen that the word at, before the “(an adjourned sale of),” in the form of the tax deed given in the statute, has been inadvertently left out or omitted from the deed in question by the draftsman. It cannot be seriously claimed that this slight omission invalidates this deed. It is simply a clerical omission, not a sub-, stantial defect. Bowman v. Qoekrill, 6 Kas., 324; 5 Kas., 498, 510; 4 Mich., 140, 154; 13 Mich., 329, 414.</p> <p>4. It is claimed the deed is- void because the name of the officer taking the acknowledgment is not given in the body of the certificate of acknowledgment. The acknowledgment forms no part of the deed; but even if it did, the certificate of acknowledgment to this deed is in substantial compliance with the requirements of the statute.</p> <p>5. It is claimed that the deed is void for the reason that the land was bid off by the county treasurer for the county, and for that reason a deed could not be made on a certificate issued to the county and transferred by the county treasurer. The argument of counsel on this proposition is ingenious. If this theory, contended for by counsel, can be sustained, then the owner of lands sold and bid in by the county for delinquent taxes can never lose the legal title to his lands by reason of such sale, nor the pui’chaser from the county thereby ever acquire a legal title thereto. This would be a strange anomaly indeed. But we do not understand the law to mean this. We think a person purchasing at a tax sale, and holding a certificate of purchase, and a person holding a transferred certificate of a tax sale from the county, stand in the same.relation. If the land is not redeemed in .the time prescribed by law, the holder of the certificate is entitled to a deed in either case; and if the proceedings and deed are regular, the deed passes the title absolutely. Section 42, Comp. Laws, 867, provides that when the land cannot be sold for the amount of tax, penalty, etc., it shall be bid off by the county treasurer for the county, for such amount. Section 44 provides that the treasurer shall make a certificate to the county similar to that made to an individual, which certificate shall be assignable by the county treasurer in like manner as those given to other purchasers. The county here is called a purchaser; the only difference being, the county purchases on credit, and pays when it sells the certificate, while other purchasers at the sale pay when they make the purchase. Where there is a purchase or a purchaser, there must be a sale and a seller. Sec. 10, Comp. Laws, 877, provides that if any land sold for taxes shall not be redeemed, etc., the county clerk shall, on presentation to him of the certificate of sale, execute in the name of the county a deed of the land unredeemed,; which means that the deed shall be made to the holder of the tax-sale certificate, whether the certificate was issued to him as the purchaser, or to the county, and then assigned to him.</p> <p>6. Again, it is claimed the deed does not follow the form given in the statute. There is no form prescribed by law for this particular conveyance, but we think thé form of the deed is substantially good, and the law fully complied with. In this particular kind of a case the deed certainly would not be good if it were made precisely in the form laid down in the statute. It is necessary to change the form of the deed to suit the circumstances of each case — the law only requiring that the deed shall be substantially, not exactly, in the form given in the statute. 6 Kas., 311, 324; Comp. Laws, 878, §10.</p> <p>7. It is scarcely necessary in this action to discuss the 7th point argued by counsel for plaintiff.</p>

<p> Error from Johnson District Court. </p> <p>Blake, as trustee, commenced an action in the district court of Johnson county against Anderson Turpin, Robert A. Collier, William Turpin, Josephine Sparks, Hiram Sparks, Irene Smith, O. M. Smith, Alonzo H. Turpin, William Henry Collier, Emma Burgess, and Sabina Turpin, to set aside and annul a certain quitclaim deed executed by Anderson Turpin to his children, and certain quitclaim deeds made by said children to said Robert A. Collier; to require said Robert to account to said Blake, as trustee of said Anderson Turpin, and for an order to sell the lands held by said Blake as such trustee. The answer and claim made by Collier, and all the facts and proceedings necessary to a proper understanding of the case, are stated in the opinion, infra. The action was tried at the November Term 1872 of the district court. Findings and judgment in favor of the plaintiff, according to the prayer of his petition. Robert A. Collier and Win. H. Collier, two of the defendants, appeal, and bring the case here on error, joining their co-defendants and the said Blake as defendants in errror.</p>

<p> JE/rror from Atchison District Cowrt. </p> <p>Nancy J. Wilcox, as plaintiff, filed her petition, against the Railroad Company as defendant, alleging that on the 2d of January 1866, the then Secretary of the Interior executed and issued to said Railroad Company two certain certificates of purchase, copies of which are fully set forth in the opinion,' infra, and that afterward, on the 10th of August 1866, the said defendant, “by S. C. Pomeroy, its president, agent and attorney-in-fact, in that behalf by it thereunto duly appointed and authorized,” for value received, made, executed and delivered to said plaintiff certain instruments of writing, transferring and assigning to said plaintiff all the right, title and interest of the said Railroad Company in and to the lands mentioned in said two .certificates of purchase and requiring “the issue of a patent to Nancy J. Wilcox as assignee of said company, in accordance with the terms of said certificate.” Answer, a general denial, and a special denial. Trial at the June Term 1873 of the district court. Separate findings of fact, and conclusions of law were made. The 8 th finding of fact is as follows:</p> <p>“8th. That Samuel C. Pomeroy did not receive said certificates from the defendant in blank, and thereafter execute the same in blank with the name of grantee left out; that the same were never delivered to L. C. Challiss, nor any other person except the defendant, and that G. L. Gaylord never sold the same to plaintiff upon any terms or conditions whatever, and never had anything to do with the same, but that they were regularly transferred for a valuable consideration from defendant to plaintiff, as is particularly described in exhibits attached to plaintiff’s petition.”</p> <p>As a conclusion of law, the court found that “the plaintiff is entitled to judgment as prayed for in her said petition, and to an order that defendant make and execute a deed to plaintiff of the said two tracts of land, within sixty days from the rising of the court, and that in default thereof the sheriff of Atchison county be ordered to make such conveyance to plaintiff,” and judgment was entered accordingly. The Railway Company brings the case here on error.</p> <p>1. Admitting all the facts of the petition, the written instruments set forth as executed by S. C. Pomeroy as president and attorney-in-fact of plaintiff in error, are mere quitclaim deeds. They release and convey only the right, title and interest the Railroad Company had on the 10th of August 1866 in the two tracts of land. At this date it had no title legal or equitable therein, under the terms of the Kickapoo treaty. It is neither averred nor assumed by plaintiff that it had any. Its road was then unconstructed, and the terms of the treaty, the conditions precedent wholly unperformed on its part. Its after-acquired title did not inure to the benefit of the defendant in error: Simpson v. Greeley, 8 Kas., 597; 9 Kas., 201.</p> <p>2. The court erred in sustaining objection to the question asked to witness Wilcox. The question asked was, “Are these the two certificates sued on?”- The defendant had a right on cross-examination, after the certificates were formally in evidence by plaintiff’s consent, to ask any question identifying them, and to call the atténtion of the witness to the two certificates produced.</p> <p>The court also erred in overruling the written objections of defendant to the deposition of S. C. Pomeroy, and allowing the same to be read. Six of the questions were leading, irrelevant, and not proof of any fact within the issue, and the objection to them should have been sustained. Question No. 7 is this:</p> <p>“Were these assignments when made and delivered by the company, so far as the papers themselves are concerned, intended to convey the title to the land itself or only the right to purchase the land provided for embraced in the treaty with the Kickapoos ? ”</p> <p>The question is leading, and also asks the opinion of the witness as to the legal effect of these certificates and the written instruments attached thereto. The intention of the company is to be gathered from the instruments themselves, and they are to be construed as to their legal effect by the court, not by the witness. Their plain legal interpretation cannot be thus construed away, changed, altered or modified: 8 Kas., 18; 6 Kas., 46, 55,59; 1 Greenl. Ev., §§ 440, 441, 275, 277.</p> <p>3. The court erred in overruling defendant’s demurrer to plaintiff’s evidence. The evidence of witness Wilcox clearly showed that plaintiff was not a bona fide purchaser, but bought with full notice of the defects of title. She took Gaylord’s guaranty to refund her the purchase-money she had paid him, if she did not succeed in getting her patent from the government. The whole testimony establishes these facts: that the plaintiff was not put in possession by defendant or with its consent; that the improvements she made were merely nominal, of the value of $85 only; that plaintiff bought of one G. L. Gaylord, in March 1870, and took possession thereafter, and paid him therefor, taking his guaranty to refund the purchase-money if she failed to get her patent; that plaintiff dealt only with Gaylord, and paid him alone, and utterly fails to show that defendant knew of or recognized her entry, or that defendant ever received one dollar of consideration from anybody for these lands. Her entry March 8th 1870 was not under the deeds of release or written instruments purporting to be of date August 10th 1866, four years before, but under her purchase from Gaylord, and under his guaranty of indemnity. And no demand was ever made on the Railroad Company by plaintiff for a deed, nor was a deed tendered to it for execution.</p> <p>No fraud on the part-of the Railroad Company is established or even sought to be. And article 6 of the treaty required the Railroad Company to pay for all these lands, including these tracts, before it could get title to any, or its patent.</p> <p>4. Findings of fact and conclusions of law are erroneous. Finding of fact No. 8, is wholly unsupported by evidence, and directly contrary to it. The court could only find its conclusions of fact upon and in accordance with-the evidence, and not directly contrary to such evidence, and against all the evidence.</p> <p>The 2d conclusion of law, “ That the writing signed S. C. Pomeroy on said certificates was an assignment thereof from the defendant to the plaintiff,” is contradicted by the writing itself. It is no more an assignment of this certificate sued on than of any other certificate. It is not an assignment of any certificate, but a quitclaim deed of the land. There was no authority given by the treaty to the Railroad Company to assign the certificates.</p> <p>5. The written instruments themselves do not purport to be executed by the railroad company, but by S. C. Pomeroy. The addenda, “President of and Attorney-in-fact for the Atchison & Pike’s Peak Railroad Co.,” may well be considered words of descriptio persones. No seal of the company is affixed. We may well hold that these are not the conveyances of the railroad company at all. The case of Hatch v. Barr, 1 Hammond, 390, is in point directly, where such a signature was held to convey no title from the corporation. See also, 2 Cushing, 329; 8 Conn., 192; 8 Cowen, 32; 1 Blackf., 189; 8 Blackf., 144.</p> <p>The answer in this case, not being sworn to as required by the code, § 108, admits all the substantial allegations of the petition. It admits the proper execution and delivery of the certificates of purchase, set forth in the petition, and the proper assignment and delivery of said certificates to the plaintiff, Nancy J. Wilcox. It admits also the execution and delivery of the patent by the United States tó the plaintiff in error, a copy of which is set forth in the petition, and which includes the lands in controversy, and the court also finds such to be the facts.</p> <p>The real defense in this case is, that these certificates, with the assignments and transfers thereof, do not, by their terms, entitle the plaintiff to a conveyance as prayed for in the petition, but that the assignment of the certificates conveyed only the right to Nancy J. Wilcox to receive patents from the United States for the lands mentioned in said certificates, upon payment by said Nancy to the government of the United States, or to said Eailroad Company, of $1.25 per acre, with interest from the date of purchase by the Eailroad Company, (see 13 U. S. Stat. at Large, 625, § 5,) in addition to the $2,400 paid by said Nancy to the Eailroad Company when she obtained the transfer of the certificate. That this is the only real point in the case, is shown by the second paragraph of the answer, and by the action of plaintiff in error in objecting to the giving or receiving of any evidence under the petition in said case, and by his interposing a demurrer to the evidence after plaintiff had closed her testimony.</p> <p>By the provisions of the Kickapoo Treaty aforesaid, there is no apportionment of the purchase-money of the lands thereby disposed of; neither the government nor the Kickapoos sold, nor did the Eailroad Company purchase, any one 160 acres of land at $1.25 per acre; on the contrary, § 5 of the treaty says distinctly, “provided said Eailroad Company purchase the whole of such surplus lands at the rate of $1.25 per acre.”</p> <p>When the contract of purchase was completed, and the-patent issued, the title by relation commenced at the time when that contract was made. The case of Parker v. Winsor, 5 Kas., 362, 373, does not militate at all with our views in this case, because when this suit was brought, both the legal and equitable title had passed from the Kickapoos and the United States, to the Eailroad Company; when the case of Parker v. Winsor was brought, neither title had so passed, and this is referred to by the court in its opinion, (page 373,) and made, as we think, the basis of its decision in that case. Both the legal and equitable title having passed when this suit was commenced (because it is found by the court that the patent had issued, that the lands had been paid for, and the road built in accordance with the provisions of the treaty,) both titles related back to the date of the original purchase, in accordance with the doctrine so fully laid down by the supreme court of the United States, in 10 Howard, 373.</p> <p>Nor does the-general doctrine relied upon in the court below by counsel for plaintiff in error apply, “that a quitclaim deed does not convey an after-acquired title” — because this patent conveyed no new title, but was only the consummation and perfecting of the title contracted for in the original purchase by the Railroad Company, when they elected to take all the surplus Kickapoo lands. 6 Wall., 402; 1 Black, 352; '23 How., 456; 24 How., 323. The plaintiff in error after receiving the patent was shown to be a trustee, holding the title to the lands in controversy in trust for defendant in error — and upon the introduction of evidence of a demand upon and refusal by plaintiff in error, to make a deed to said lands to said Nancy, she was entitled to the decree she obtained in the court below. And it makes no difference what evidence was admitted or rejected, and any exceptions taken thereto need not be noticed by us, or this court. Code, §§140, 304; K. P. Ply. Co. v. Pointer, 9 Kas., 626; Seibert v. True, 8 Kas., 53.</p> <p>With reference to the assignment of error, that the findings of fact are not sustained by sufficient evidence, we would state that the 1st, 2d, 3d, 4th, 8th and 9th findings are admitted by the pleadings, and are found from the pleadings, and neither party could have been permitted to show the contrary. We suppose that the 8th finding of fact is the only one that plaintiff in error really objects to, and the whole of this finding, except the last four lines, has nothing whatever to do with the case, and that portion of said finding was made solely, as is apparent upon its face, at the solicitation of plaintiff in error. Yet in view of the provisions of §108 of the code, and of the allegations of the petition, and of the failure of plaintiff in error to deny any of said allegations or averments under oath, the district court or any other court could not find otherwise.</p> <p>The entire deposition of Pomeroy might be stricken out, and it could not affect the case in the least. As to the objection made that certain questions were leading, we would state that we believe it is conceded law, that no such objection to questions asked a witness, and not objected to at the time, as leading, can afterward be raised on the trial. 9 Kas., 511, 627.</p> <p>We claim further that the wording of the treaty itself, quite as much as the wording of the certificates, shows that the government and the Railroad Company both intended that the $1.25 per acre should be paid by the Railroad Company, and not by its grantees. We think too that the treaty contemplated the issue of patents to the Railroad Company, or its assigns, but that the payment should be made in bulk, for the whole lands, by the Railroad Company alone, and for the purpose of securing such payment, according to the terms of the treaty, the Railroad Company was required to issue its bonds in double the amount of the entire purchase-money.</p>

Error from Davis District Cowrt. Action, by Aultman, Miller & Co., to foreclose a mortgage executed by Swenson and wife. The questions here were as to the correctness of the ruling of the district court, in refusing a continuance asked by defendants at the November Term 1873. The plaintiffs had judgment, and the defendants' appeal.

Error from Mitchell District Court. Taylor recovered a judgment against Bell and two others. In June 1873 he sued out a writ of execution on his judgment, directed to the sheriff of Mitchell county.

Error from Cherokee District Court. Sanford recovered a judgment against Boyd, at the October Term 1873, for $120 for services as an attorney-at-law. Boyd moved for a new trial, which was refused, and he now brings the case here. The proceedings on the motion for a new trial are fully stated in the opinion.

Error from Davis District Court. On the 8th of May 1855, at Mendota, Illinois, Augustine, as surety for one Rust, executed his promissory note for $200 payable to the plaintiff six months after date, with interest at the rate of 10 per cent, per annum. The action below was on this note.

Error from Anderson District Court. This action was originally brought before a justice of the peace to recover the price of goods sold and delivered by B. A. Feiniman & Co. to Williams # Pattee. Plaintiffs’ bill of particulars shows the “goods” sold were several half-barrels of whisky, and several kegs and cases of brandy, ginr and wine, amounting to $293.97, on which defendants were credited with payments to amount- of $9.5.

Error from Marion District Court. Peake & Marsh recovered a judgment against Bush at the September Term 1873 of the district court. Bush appeals, and the only question is as to the right of a party to have a special verdict, under § 286 of the civil code, as amended by §7 of ch. 87 of the laws of 1870, upon his demand therefor.

<p> Error from Osborne District Court. </p> <p>Burns brought replevin for one bay mare and one brown horse, claiming ownership and right of possession. Me Vey answered, first, a general denial, and second, that he was constable, and as such officer he had taken and held possession of said mare and horse under and by virtue of a writ of execution issued by him upon a judgment duly rendered against said Burns for the costs of a certain action, (describing it.) Reply, general denial, and a. special averment that the process under which defendant claimed the right of possession was void, and setting up a copy of such process. To this reply defendant demurred. At the April Term 1874 the demurrer was sustained. Afterward, when the case was called for trial, the following proceedings were had:</p> <p>(.Title.) “And now at this day this case came on to be tried, the plaintiff appearing by Smith & Knight his attorneys, and the defendant by A. Saxey his attorney; and the said defendant demanded a jury to try the case; and thereupon the plaintiff moved the court to dismiss the case without prejudice to a future action, which motion the court sustained, and ordered that the property replevied in this case be returned to the said defendant. And it is hereby ordered and adjudged by the court, that the plaintiff pay the costs of this action, to all of which the defendant excepts.”</p> <p>The defendant brings the case here on error. No briefs on file.</p>

Error from Jackson District Court. Action brought by E. N. Morrill and W. W. Guthrie as plaintiffs, to quiet title to the E.J of S.E.£ of sec. 26, township 6, range 12 east, and the WJ of S.W.jj of sec. 1, township 6, range 13 east, in Jackson county.

Error from Doniphan District Cowrt. Judgment, at the April Term 1874, in favor of Flickenger and against Jeffs and wife, and two others, as upon default.

<p> Error from Sumner District Court. </p> <p>Action by Tilton, as plaintiff, to foreclose a mechanic’s lien, a statement for which had been duly filed. The account attached to said statement showed a balance in favor of plaintiff of $149.31. At the November Term 1872 the plaintiff moved for a continuance, and filed an affidavit showing what he expected to prove by one C.S., an absent witness. The record contains a skeleton “case made,” signed by the district judge, in which are instructions to insert, in their proper places, the petition, answer, reply, affidavit, judgment, etc. This is followed by a duplicate of said “case made,” made complete by the insertion of the pleadings, etc., as directed in the original. In this latter part of the record, next after the affidavit for a continuance, is the following:</p> <p>“And the defendant answering himself ready for trial, and consenting that the said affidavit might be received and treated as the deposition of said absent witness, the court thereupon ordered the trial of this cause to proceed. This cause was thereupon submitted to the court, without the intervention of a jury, upon the petition, answer and reply, and exhibits on file; and the court having heard the evidence and the arguments of counsel thereon, and being sufficiently advised in the premises, * * * finds for the plaintiff in the sum of $32.42. The court thereupon orders and adjudges that the plaintiff recover of the defendant the sum of thirty-two dollars and forty-two cents, and the costs herein taxed at $7.55.”</p> <p>Plaintiff moved for a new trial, which was overruled, and he now brings the case here for review. No briefs on file.</p>

Error from Wyandotte District Court. Meninger brought -trespass against The City Cemetery Association, a corporation, to recover damages for breaking and entering plaintiff’s close and tearing down his fences, etc. The action was commenced before a justice of the peace. Defendant denied plaintiff’s title to the premises, and the case was thereupon certified to the district court, where it was tried at the October Term 1873.

Error from, Washington District Court. Action upon a forfeited recognizance, brought by the county attorney in the name of The State.

Error from Shawnee District Court. Action by Conrad Kreipe to foreclose a mortgage on twenty acres of land, given by Cannon and wife to secure a note for $962.85, given by said Cannon to C. & G. Cooper in March 1871, and by them transferred to said Kreipe. The answer of Cannon and wife set forth three defenses — first, a general denial; second, that plaintiff was not the real party in interest, and that Geo.

Error from Marshall District Court. Watson and wife brought injunction against Voorhees, as sheriff, and the St. Louis & Peoria Plow Company, to restrain the sale of certain real estate under an order of sale issued to Voorhees upon a foreclosure judgment rendered in favor of the Plow Company against the plaintiffs. The district judge, on the 18th of May 1874, refused to grant a temporary injunction, and from such order of refusal the plaintiffs appeal.

Error from Labette Disti'ict Court. Higby, a grocer, doing business at the city of Chetopa, on the 13th of November 1872 made assignment to D. J.Loolen, of “ all the lands and all the personal property of every name and nature whatsoever,” belonging to said Higby.

Error from, Leavenworth District Cowrt. Judgment in favor of the plaintiff, decreeing a divorce on account of the fault of the defendant, was rendered at the February Term 1874 of the district court. The court also, by its orders, gave the defendant the homestead, and the custody of the children. From these orders the plaintiff appeals. All the facts are stated in the opinion. 1.

Error from Greenwood District Court. The district court, at the October Term 1873, overruled Mrs. Weaver’s motion to vacate a decree of foreclosure, and set aside a sale; and from this order she appeals.

Error from Labette District Court. Davidson sued the Railway Company to recover damages for injuries sustained, alleging that “defendant-, in October 1872, did set fire to and burn up and destroy seven acres of young timber, the property of the plaintiff.” The action was commenced before a justice of the peace, was taken to the district court by appeal, where it was tried at the March Term 1874.

Error from Doniphan District Court. Smith sued Burkhalter before a justice of the peace. Trial before a jury, and verdict and judgment for defendant. Smith appealed, and the district court, at the March Term 1874, on motion of Burkhalter, dismissed the appeal, on the ground that there had been a jury trial, and that neither party claimed “in his bill of particulars a sum exceeding twenty dollars.” From this order of dismissal plaintiff appeals to this court. • .

Original Proceedings in Quo Warranto. In December 1874, Bawden filed in this court his petition in quo warranto, as follows: (Title.) “Now comes W. J. Bawden, plaintiff, and informs the court and… Held: as alleged in Stewart’s answer, and that Stewart had been duly elected, as claimed, if there was such vacancy as could then be filled by election, and that he had duly qualified, and had taken possession of the office.

Et'ror from Saline District Court. Replevin, by Orson Smith and Rodney Smith for 422 head of cattle. Russell, as sheriff of Saline county, received an order of attachment issued to him in an action then pending in Leavenworth district court, wherein Chas. F. Tracy & Co. were plaintiffs and John E. Tappan was defendant, and he levied said order of attachment on the cattle in question and took them into his possession.

The only question here is as to the sufficiency of a complaint, charging Walter with the unlawful selling of intoxicating liquors on Sunday. Upon a verdict of guilty being rendered, the district court, at the March Term 1874, arrested the judgment, and The State appeals.

<p>1. Continuance; Application Should Show Testimony. An application for a continuance on the ground of the absence of testimony must show what the absent testimony is, that the opposite party may, if he desire, prevent a continuance by consenting to the admission of such testimony.</p> <p>2. Demurrer to Evidence; Practice; Record. This court cannot affirm that there was error in a ruling of the district court sustaining a demurrer to the evidence, unless all the evidence upon which that court acted is before us, or unless it is apparent from the portion presented not only that it tends to prove the plaintiff's claim, but also that it could not be conclusively overthrown by any other testimony.</p> <p>3. Case Made; What it Imports. The signature of the judge to a case made, or a bill of exceptions, imports the truthfulness of the preceding statements in such case or bill, nothing more; and we must look to those statements to see-whether all of the testimony is preserved or not.</p>

jError from Linn District Court. In February 1871 the county-seat of Linn county was removed from Mound City, and relocated at La Cygne. On the 1st of February 1873 the board of county commissioners, on petition therefor, ordered an election “ to relocate the county-seat” of said county.

Error from Cloud District Court. The only question here is, as to the right of two or more parties respectively owning and holding separate notes secured by the same mortgage to join as parties plaintiff in an action on said notes and mortgage. The district court, at the August Term 1873, held that such joint action could be maintained, and gave judgment accordingly. Swenson and Swenson, the defendants, appeal, and bring the case here on error.

Error from Cowley District Court. Action by Johnston and four others to set aside and annul a certain quitclaim deed.

<p>1. Filing Supplemental Pleadings; Discretion of Court. The filing of amended or supplemental pleadings is a matter within the sound discretion of the trial court; and unless it appears that such discretion has been abused, a refusal to permit either to be filed is no ground for reversal.</p> <p>2. Usury; Withdrawing Plea; Public Policy. An agreement to-withdraw the plea of usury is against public policy, and cannot be sustained.</p> <p>3. Answer; Additional Defense, Showing to be Made. Ordinarily, when leave is asked to file an amended answer containing an additional defense, it is expected that some sufficient reason will be shown for’ not presenting such defense before.</p> <p>4. --Hence, when a party with full knowledge of a defense intentionally omits to plead it, or having once pleaded it intentionally withdraws it, as a rule he ought not to be permitted to replead it; and especially is this so where he reaps some benefit from such omission or withdrawal, and makes the omission or withdrawal by agreement with his adversary, and for the purpose of receiving such benefit.</p> <p>6. Usury — As a Defense. The defense of usury is to be treated as any other defense, and has no especial claims on the favor or indulgence of the court. Quaere: Is the defense of usury so far a personal one that the wife of the debtor cannot plead it where the homestead is mortgaged to secure the usurious debt, and such also that a subsequent mortgagee cannot plead it?</p>

Error from Franklin District Court. ' The action below was commenced by Babcock, as plaintiff, before a justice of the peace. It was removed by appeal to the district court, where it was tried at the March Term 1874.

Error from Saline District Court. Action by Long, to quiet title to certain lands acquired by him under the Homestead' Act, the patent for which was issued March 12th 1872.

Original Proceedings for Mandamus. A verified petition for a mandamus was filed in this court on the 16th of March 1875, which alleged the following facts: “That on the 8th of June 1868, one H. S. Cunningham purchased from George W. Veale, who was then the duly-appointed, authorized and acting agent of the state for the sale of the same, the S.E.J of section 6, in township 6, of range 5 east, said land being a part of the 500,000 acres granted to the state of Kansas by the…

Error from, Jefferson District Court. Chapter 42, Laws of 1875, entitled “An act authorizing townships to issue bonds for relief purposes,” was passed and approved February 20th, and was published… Held: that all acts and proceedings of the township board were regular, and that there was a majority of'37 votes at said election in favor of issuing said bonds. The district judge dissolved the injunction, and the relators appeal, and bring the case here for review.

Error from Diolcinson District Cowrt. Injunction by McCoy, to restrain the collection of a judgment. Trial at the September .Term 1873, before H. G. B., judge pro tern. Finding and judgment in favor of Hazlett, and plaintiff brings the case here.

Error from Shawnee District Court. Shellabarger & Leidigh sold and delivered to Bishopt in October 1872, lumber to be used in the erection of a building on real estate then owned by Bishop. On the 1st of November 1872 Bishop gave S. & L. his note for the lumber. Said building was completed in December 1872.

Error from Franklin District Court. Ejectment, brought by Clark to recover possession of 160 acres of land, to which he claimed title in fee and right of possession. Libbey denied plaintiff’s title, and claimed title in fee himself. Trial at the November’Term 1873. Findings and judgment in favor of Libbey, and plaintiff brings the case here for review. The facts are set forth in the opinion. No briefs on file.

Error from Allen District Cowrt. Noetheup brought suit against Faulkner as maker and Northrwp as indorser of the following note: $1,339.45. Iola, Kansas, July 22d, 1872. Ninety days after date I promise to pay to the order of Daniel Horville thirteen hundred thirty-nine and 45-100 dollars, at the Banking-House of L. L. Northrup, Iola, Kansas, for value received, with interest at the rate of 12 per cent, per annum after maturity.

Error from Osage District Court. Action by M. B. E[aas and H. B. Haas, as partner^, against Shepard & Playford, as partners. Trial at the November Term 1873. Verdict and judgment in favor of plaintiffs, and Shepard & Playford bring the case here.

Error from Cloud District Court. At the August Term 1873 of the district court, Neitzel was convicted of “selling, and consenting to be sold, bartered and drank upon premises occupied by him in the city of Concordia fermented, vinous and distilled liquors, by the glass, without having obtained a license from said city, and contrary to the ordinance of the city of Concordia in such case made and provided.” The action was commenced in the police court in the name of The City…

M’ror from, Crawford District Court. Fokeclosure, brought by Buckley against Curtis. Trial, and judgment in favor of Buckley, at the May Term 1873, for $289.20, (including $17.80 protest damages,) and that if said sum be not paid, etc., the mortgaged premises be sold, etc. Curtis brings the case here. The facts are fully stated in the opinion.

Jffkror from Davis Disti'ict Court. At the November Term 1872 of the district court said court found and decreed that a certain deed of conveyance from Jonathan Sanderson to Mary V. Sanderson was made without any consideration whatever passing from the said Mary V. to the said Jonathan; that at the time of said conveyance the said Jonathan Sanderson held said real estate in his name as the trustee of George Sanderson; that said conveyanee by Jonathan Sanderson to said Mary…

Error from Marshall District Court. On the 6th of December 1873, Olmstead, “who sues as well for the other taxpayers of Blue .Rapids City township as for himself,” applied to the-Judge of the district court for a temporary injunction against Charles E. Koester, as treasurer of Marshall county, to restrain him as such treasurer from collecting a certain tax levied upon the real property of the plaintiff and other citizens of Blue Rapids City township.

Error from Wyandotte District Court. Action by Brown to recover damages for the alleged killing of two horses by the Railroad Company, “by so carelessly and negligently running and managing its locomotive and cars that the same ran against and over said horses,” etc. Answer, general denial, and negligence on the part of plaintiff. Trial at the October Term 1873. Verdict and judgment in favor of plaintiff for $368, and the Railroad Com/pamy brings the case here on error.

Error from Atchison District Court. Action by Challiss to set aside a tax deed, and remove a cloud upon his title. The action was heard and decided by the district court at the November Term 1873. The facts and proceedings fully appear in the opinion, infra. 1. The tax deed was void on its face, but was nevertheless a cloud upon the title; Dmn v. City of Madison, 9 Wis., 402. It shows that two distinct parcels were assessed and valued, and taxed as one tract.

Error from Miami District Court. Casey complained of the action of the commissioners and others in laying out and establishing a certain highway, and sought to have such proceedings set aside and annulled. The district court, at the December, Term 1872, held the proceedings valid, and the road legally established, and adjudged that Casey pay the costs in that court. Casey brings th© record here by petition in error, for review.

<p> Error from Lyon District Court. </p> <p>Robinson sued Melvin to recover. an alleged indebtedness of $1,150, and upon an affidavit therefor obtained an order of attachment against defendant’s property. On m’otion, supported by affidavits, the district court, at the March Term 1874, discharged said attachment. From this decision and order of the court, Robinson appeals, and brings the case here on error. The facts are sufficiently stated in the opinion. No briefs on file.</p>

Error from Howard District Court. Mandamus, brought in the name of The State as plaintiff, by Samuel Donelson, county attorney, as relator, to compel M. B. Eight, as county clerk, to remove his office and the books, records, and papers thereto belonging from the town of Boston, to the town of Elk Falls, and there hold and keep the same. The action was to-determine whether Boston or Elk Falls was the county-seat of Howard county. The action was tried at the May Term 1874.

Mr or from Cloud District Court. Action by Anthony against Mark J. Kelley, B. F. Herman, and four others, on a certain. contract, or bond, which is set forth in full in the opinion. Kelley made default. Herman and the other four defendants demurred, and their demurrer was sustained at the August Term 1873. Anthony appeals, and brings the case here on .error. The facts are stated in the brief of plaintiff, and in the opinion.

Error from Jackson District Court. Sophia Nagle sued Rice, to recover damages for injuries to plaintiff’s growing crops. On appeal to the district court, the case was there tried at the January Term 1872.

Error from Wyandotte District Cowrt. Action by Oscar Orawford and James T. Johnson, plaintiffs, against Wilson C. Turner, Hadley & Click, and Wm. B. Bowman, as defendants.

Error from Doniphan District Court. The only questions here, are questions of practice, and the facts and proceedings necessary to a proper understanding of the case are stated in the opinion. Casey, as plaintiff, had judgment, at the June Term 1874, for $112.20, and costs, and the Railroad Company brings the cáse here on error.

Error from Butler District Court. All the facts of this case are set forth in the opinion. Becker had judgment at the February Term 1873 of the district court, and Nelson brings the case here on error.

Error from 'Leavenworth District Court. The defendant in error as administratrix of the estate of her deceased husband Daniel Salmon, brought suit against the K. P. Railway Company to recover damages sustained by the widow and heirs of said deceased by reason of his death.

<p>1. Service oe Summons, on Peturn-day, Irregular. A service of a summons made on the defendant on the return-day thereof is irregular and voidable, and a judgment founded on such a service may be reversed, vacated or set aside at the instance of the judgment-debtor in any proper proceeding therefor, provided no waiver of service has been had in the case by appearance or otherwise.</p> <p>2. Appearance; Special Purpose. Where the defendant appeared by his attorneys and moved the court to set aside the summons, and to dismiss the action, because the service was made on the return-day of the summons, and the appearance was made expressly for the purpose of such motion only, and the motion was signed by the attorneys as attorneys for the purposes of the motion only, and. no other appearance was made by the defendant in the case, held, that said appearance did not have the effect to waive service, or to cure the irregular service already made.</p>

Error from Chase District Court. Injunction brought against the Board of Commissioners and county treasurer, by Shipman and another, to enjoin the collection of taxes levied upon an alleged illegal… Held: occupied and enjoyed by settlers and occupants of homesteads, which, if this position is tenable, wholly escape the burden of taxation.

Information charging that defendant Whitej “ on the 13th of September 1874, at the county of Allen, with force and arms, in and upon the body of one James Black, then… Held: the said pistol being a deadly weapon, feloniously did shoot, and wound, with intent him the said James Black then and there feloniously and willfully to kill.” Plea, not guilty. Trial at the November Term 1874. Yerdict, guilty, and defendant was sentenced to four years’ imprisonment in the penitentiary.

Error from Wabaunsee District Gou/rt. Rumsey & Co., merchants at St. Louis, Mo., brought suit against Henry Schmitz and August Meyer, alleging that defendants “on the 12th of August 1872 made their certain promissory note in writing, of that date, and then delivered the same to plaintiffs, and thereby promised to pay to plaintiffs, or order, the sum of $465.53 in thirty days after date thereof, with ten per cent, per annum from date; that after the giving of the said…

Error from, EranMin District Court. Foreclosure, brought by Cooh', (as assignee of one Libby, the mortgagee,) against the Ottawa University and two others. The note for which the mortgage was given as security was for $2,000 with interest at twenty per cent, from date. The pleadings and essential facts are sufficiently stated in the opinion, infra. The case was tried before A.W. B., referee.

.Error from Pavis Pistriet Court. The Plant Seed Company brought-suit against Hall & Porter to recover a balance of $168.51 on an account for merchandise. Defendants answered, claiming a set-off to amount of $325.73 for certain goods alleged to be sold by by them to plaintiff. Trial at the March Term 1874 of the district court.

Error from Labette District Court. Brown brought suit in his own name as plaintiff against the M. K. & T. Railway Co. as defendant.

Error from, Labette District Court. Balter sued the Railway Company before a justice of the peace to recover a balance of $104.13 due him “for labor as time-keeper on work of grading in the city of Parsons ” on defendant’s railroad. The bill of particulars, except as to the nature of plaintiff’s claim, is very like that in Brown’s case, ante, p. 558. The case was removed to the district court, and there tried at the March Term.1874.

Error from Leavenworth District Court. Piper commenced his action against the Railway Company, seeking to recover damages for a breach of a judgment-obligation, and also to recover possession of the strip of land concerning which the judgment imposing such obligation was rendered.

Error from Leavenworth Eistriot Court. Ejectment, brought by Piper. This action was originally joined with the preceding action between these same parties. See, ante, p. 568, where a full statement of the facts, and the judgment under which the Railway Company claims title, will be found. Upon a separation of the causes of action, as there stated, Piper filed in this case an ordinary petition in ejectment for the recovery of said 100-feet strip.

Error from, FranlcUn District Court. In an action pending in the district court wherein Snodgrass was plaintiff and the Ottawa Furniture and WoodWork Co. was defendant, Roller and three others sought to be made parties defendant, and filed their petition praying to be so joined. The district court, at the -March Term. 1873, refused to grant said petition, and gave judgment in said action in accordance with the stipulation of the parties thereto.

Error from Butler District Court. Injunction, brought by Wilcox, to restrain Ellis, as county treasurer, from collecting the tax levied on $6,000 assessed as personal property. Held: the plaintiff will be taxed for $12,000 of property, when he is the owner of but $6,000. But if taxable at all, the next question to determine is, where is said $6,000 in notes taxable? We claim that these notes, if taxable at all, are taxable in the state of Illinois.

<p>License; Wholesale Liquok-Dealer; Sales on Credit; Effect of License. Where a wholesale liquor-dealer obtains a license signed by the mayor, clerk and treasurer of a city of the second class, authorizing him to sell intoxicating liquors at wholesale in said city, and he afterward in pursuance thereof sells intoxicating liquors at wholesale, held, in an action brought by the vendor of such liquors against the vendee for the price of the liquors —</p> <p>1st, That the license, if granted by the city council of said city specially to the wholesale dealer, is valid.</p> <p>2d, That in the absence of anything to the contrary it will be presumed that the license Was regularly granted and issued.</p> <p>3d, That it is not necessary that the license should be issued to some person who is actually a grocer, a dramshop-keeper, or a tavern-keeper, in order to bé valid.</p> <p>4th, That the license need not upon its face and in direct terms purport to be a grocery license, a dramshop license, or a tavern license; but if it clearly appears upon its face that it is a license to sell intoxicating liquors, it is sufficient.</p> <p>5th, That being issued as a license to sell intoxicating liquors at wholesale and not at retail, does not invalidate the license as a license to sell at wholesale.</p>

Error from Franklin District Court. Roller & Co., partners, commenced their action against C. M. Ott and A. Qottschalk, to recover damages for past breaches of a contract, and to enjoin defendants from further violations of said contract.

Error from Osage District Court. Ejectment, brought by Wetherell as plaintiff, against Bridget O’Brien, and Michael, her husband, and one O’Neil, as defendants, to recover the possession of “Lot 24, and a four-foot strip off Lot No. 23, making 29 feet front in Block 14 in Wetherell’s addition to the town of Osage City.” Wetherell had formerly owned said property, and had sold and conveyed the same by deed to one Reber, upon certain terms and conditions in said deed expressed…

Error from Brown District Court. Action by Barnett to recover $50 for rent of room for county treasurer’s office. In December 1872 a written lease or contract was entered into by Barnett and the then Board of County Commissioners, whereby the county board rented from Barnett a room for one year to be used by the county treasurer. It was so used, and the rent paid up to December 31st 1873.

In a criminal action against one A. F. Nicholas, Walter Smithers, as county treasurer, and 8.