Volume 86 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>1. Form of Action — Setting Aside Deed — Fraud. An action to recover the possession of a tract of land, the real gravamen of which is to set aside a recorded deed which purports to have been executed by the plaintiff, for the reason that such deed was fraudulently obtained by the grantee, is in form an action in ejectment but in substance is an action for relief on the ground of fraud. '</p> <p>2. Evidence. The evidence requisite to sustain such action is the same as would be required if the facts of the transaction were pleaded instead of. the conclusion authorized by the statute in actions of ejeetment.</p> <p>3. Limitation of Actions — Fraud. The limitation of time within which such action may be brought is two years after the discovery of the fraud as provided by section 17 of the code, subject to being tolled as in other cases, and not the fifteen years as provided in section 15 of the code.</p> <p>4. Petition — Demurrer—Grounds—Presumptions. Where in an action brought by several plaintiffs whose petition alleged several grounds-of relief, the defendant demurs to the petition on the ground of misjoinder of causes of action and other grounds, the district court sustains the demurrer without specifying the ground upon which it is sustained, and an appeal is taken to the supreme court from such order and the ruling thereon is sustained on the ground of mis-joinder of causes of action, it will be presumed that the district court decided the demurrer upon the same ground.</p> <p>5. -Demurrer — Void Judgment. If in such case,, after sustaining the demurrer and without other pleading, the court enters a judgment in favor of the defendant that he is the owner and entitled to the possession of the property in question, the judgment is based on no allegation of fact in any pleading in the case and is void; it is coram non judice.</p> <p>6. Failure — “Other tham, on Merits.” The plaintiff, having commenced such action in due time, failed therein “otherwise than on the merits” and was entitled to one year after such failure within which to bring a new action.</p> <p>7. Judgment — Gonelusiveness. The rule which determines the conclusiveness of a judgment is that it is conclusive only so far as it determines matters put in issue or admitted in the pleadings.</p> <p>8. Demurrer — Evidence—Province of Court. In passing upon a demurrer to the evidence of the plaintiff, either in chief or on rebuttal, the evidence should be regarded in the light most favorable to the plaintiff, giving full credibility to the witnesses and disregarding any conflicting evidence. The credibility of the witnesses and the preponderance of the evidence' are questions to be submitted to the jury and, until the verdict is rendered, are not for the consideration of the court.</p>

<p>OPINION ON REHEARING.</p> <p>Appeal from Rawlins district court.</p>

<p>Appeal from Dickinson district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Amendment after Verdict. Where, without undue advantage being taken, the issues presented by the pleadings are substantially enlarged at the trial and as enlarged are fully tried and duly submitted to the jury, It is not prejudicial error to permit the pleadings to be amended after verdict to conform to the proof.</p> <p>2. Gift — Acceptance—Feeble-minded Donee. The law presumes ■ the acceptance of a beneficial gift by one who, because of his feebleness of mind, is incapable of accepting it.</p> <p>3. -Delivery — Donor as Trustee. The requirement of delivery is satisfied by the donor, who retains possession, constituting himself a trustee of the gift for the benefit of the donee.</p> <p>4. -Evidence. The evidence considered and held sufficient to show a completed gift.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Public Records — Unacknowledged Mortgage — No Evidence of Title. A conveyance which has not been acknowledged or proved so as to be entitled to record, bnt which has in iact been recorded in the office of the register of deeds, is void as to one who subsequently buys the land with actual knowledge of the contents of the record, if he is otherwise an innoeent purchaser for value.</p>

<p>Appeal from Neosho district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Fire — Evidence — Other Fires. In an action against a railway company for damages by fire alleged to have been caused by the operation of the road, proof of other fires along the right of way occurring at or near the same time under similar conditions is competent as a circumstance tending to show not only that the railway company was negligent in the operation of its road, but also as tending to show that the fire complained of was caused in the manner alleged.</p> <p>2. Evidence — Burden of Proof — Instructions. In a case like the one mentioned it is error to instruct the jury that “evidence on the part of the defendant that its engine and appliances were in perfect condition and that the engine was handled in a careful and skillful manner by a competent engineer and fireman overcomes the ‘prima facie” evidence of the plaintiffs, and that “in order to entitle the plaintiff to recover he must show by affirmative evidence tó your satisfaction that the defendant was negligent.”</p>

<p>Appeal from Wilson district court.</p>

<p>Appeal from Shawnee district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sale — Conditions—Mortgage—Exemptions. Under the facts: stated in the opinion it is held that the sale of a span of mules-was a sale for cash, that delivery of the mules was conditioned upon payment of a check upon a bank given for the price, and that an oral chattel mortgage given by the purchaser to-the bank which furnished the money to meet the cheek was-.valid, and as a purchase-money mortgage was superior to exemption rights claimed by the widow of the mortgagor.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Evidence — Sufficient to Sustain Judgment. In an action against a corporation upon an account, upon examination of the evidence it is held that the evidence was sufficient to warrant the judgment for the plaintiff.</p>

<p>Appeal from Neosho district court.</p>

<p>Appeal from Johnson district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Findings op Jury — Practice, District Court. Where a party does not present questions of fact to be submitted to a jury he may, if he chooses, adopt as his own the questions submitted by the adverse party and join in the request that they be answered, but it is too late to insist upon this privilege after a general verdict against him has been received and the questions so submitted by the other party have been returned unanswered.</p> <p>2. - Same. Special questions presented by the defendant written under the caption:</p> <p>“interrogatories propounded by the dependant to BE answered IN CASE THE VERDICT IS FOR THE PLAINTIFFS”</p> <p>were submitted to the jury and returned unanswered, the verdict being for the defendant. It is held that the submission of the questions in this form was not an inducement to the jury to find for the defendant, affording grounds for setting aside the verdict.</p> <p>3. Expert Witness — Evidence—Competency. The answers of an expert witness concerning the distance to which sparks could be thrown from a certain type of locomotive, and concerning the competency and skill of the engineer in charge of the locomotive which it is alleged caused the fire for which damages were sought, are considered, and without deciding upon the competency of the testimony under the issues presented it is held that it does not appear that the rulings, if erroneous, injuriously affected the substantial rights of the party objecting thereto, and that the judgment can not be reversed therefor.</p> <p>4. Substantial Rights — Technical Errors. The provisions of section 141 of the civil code relating to errors and defects that do not affect substantial rights, and section 581, relating to technical errors and irregularities, are compared and applied.</p>

<p>Appeal from Trego district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. 'Ejectment — Purchaser at Foreclosure Sale — Title. In 188? the owner of a vacant and unoccupied quarter section of land mortgaged it and shortly thereafter conveyed to a grantor of the defendant. In 1891 the land was sold under foreclosure to a grantor of the plaintiff, neither the mortgagor nor the owner being a party to the foreclosure. The plaintiff and his grantors purchased in good faith for a valuable consideration, and paid all the taxes after the foreclosure. The plaintiff had a portion of the land broken and a crop was put in, a portion of which he was to receive, but the crop failed. He permitted another portion of the land to be fenced and used for a pasture, and while the owner of the fence was still using the pasture with consent of the plaintiff the defendant went upon the land, plowed and planted the broken portion and ran a few furrows around the quarter section, the object being to gain possession. No payment or offer to pay any part of the mortgage debt was made. Held, that the plaintiff could maintain ejectment.</p> <p>2. - Reply — New Issues — Not Prejudicial. In an action in ejectment the plaintiff, over objection, was permitted to file a reply setting up a cause of action to quiet title. Held, that such amendment was improperly permitted and substantially changed the claim of plaintiff, but as the matters in controversy were fully litigated and the judgment rendered ignored such amended reply the defendant was not substantially prejudiced thereby.</p>

<p>Appeal from Sumner district court.</p>

<p>Appeal from Scott district court.</p>

<p>Appeal from Allen district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Tax Deed — Recitals Inconsistent — Construction. A tax deed issued under section 9475 of the General Statutes of 1909, upon a compromise of delinquent taxes, contained the following recital:</p> <p>“And whereas, three years had expired from the date of said sale and no person had offered to redeem said property, or to purchase the same, for the amount of taxes, penalties and costs due thereon; whereupon the County Commissioners . of said County did, on the 3rd day of January A. D. 1899, by an order of said Board, authorize the County Treasurer to execute and the County- Clerk to assign the several certificates of the sale of .the several tracts of property hereinbefore numbered and described, to John Plummer on payment to said Treasurer of the several sums of money as follows.”</p> <p>The deed, which had been of record more than five years, purported to convey different tracts, sold in different years, and showed a sale of the tract in question in September, 1896,. for the taxes of 1895. It is held that under the rule of liberal construction applied to tax deeds on record for five years the recital that three years had expired from the date of sale should prevail over the date of the order of the commissioners as expressed in the deed, and that the deed should he upheld.</p>

<p>Appeal from Allen district court.</p>

<p>Appeal from Sumner district court.</p>

<p>Appeal from Leavenworth district court.</p>

<p>Appeal from Leavenworth district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Sale — Sheriff's Notice — Proof Thereof. There is no statutory provision requiring proof of publication o’f a sheriff’s sale notice by the affidavit of the printer. The sheriff’s return should show publication; and the confirmation of the sale is an adjudication that notice was duly published. The record may be supplemented by the evidence of the publisher or. printer and by the files of the newspaper showing such publication.</p> <p>'2. - Taking Out Second Tax Deed — Effect. The taking out of a second tax deed for the purpose of correcting defects in a former tax deed has the effect of reopening the question of the validity of both deeds and of the regularity of the tax proceedings, unless the first deed was one which fully complied with the statute, and notwithstanding the defects in the first deed may have been otherwise cured by the lapse of five years from the time it was recorded.</p> <p>:3. Tax Deed — Void When. A tax deed which is assailed within two years from the time it was recorded is held void upon the proof showing that the tax roll of the year for the taxes of which it was sold described the land as less than a full quarter section and gave the number of acres; and the delinquent tax-sale notice as published described' the land as a full quarter section without any mention of the acreage.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Building and Loan Association — Stock—Taxation—Not a Credit. Stock issued by a building and loan association was divided into classes. One class consisted of prepaid stock upon which interest is payable out of the earnings of the association at a rate not exceeding six per cent per annum; the holders have the right to withdraw the amount paid in upon conditions stated in the by-laws, and the association has the right to retire the stock upon notice. The holders are members of the association, eligible to vote and hold office therein as stockholders. It is held that the stock is not a credit within the meaning of the taxing laws and that a holder thereof, is not entitled to a deduction of the amount of debts owing by him from the value of such stock in the assessment thereof for taxation.</p>

<p>Appeal from Sumner district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Marriage — Separation—Divorce—Presumptions. Appellant and intestate were married but never lived together. The intestate left the state declaring he would .obtain a divorce, and returned two years later saying one had been obtained. Appellant, acting on the belief that a divorce had been granted, married another, and children were born of this marriage. Later,- intestate obtained a license and formally married another and lived with her about eighteen years and until his death, and eight children were born of that marriage. When he died, appellant, in a partition proceeding, claimed that no divorce had been granted, and no record or documentary proof of the divorce was introduced. Under the facts of the case it is held that it will be presumed that the first marriage was dissolved by a divorce, and that when appellant claimed to inherit land as the surviving widow of intestate it devolved on her to prove that no divorce had been granted.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sales — Rescission by Seller — Notice to Buyer Before Time for Delivery — Mitigation of Damages. If before the time for delivery arrives the seller notify the buyer that a portion of the goods will not be delivered it is the duty of the buyer to mitigate damages by going into the market and buying other goods, if he is able to do so.</p> <p>2. -Rescission by Seller — Notice to Buyer Before Time for Delivery — Mitigation of Damages — Action by Buyer— Burden of Proof. In an action by the buyer for damages occasioned by the seller’s refusal to deliver, the burden rests upon the seller to show that, after notice that the contract, would not be filled and before delivery, the buyer might have-protected himself from loss by purchasing other goods.</p> <p>3. -- Refusal of Seller to Deliver — Damages — Time of Measurement. In the absence of proof by the seller of the character just stated the damages should be assessed as of the date when, under the contract, the goods should have been delivered.</p> <p>4. -Rescission of Seller for Default of Buyer. Under a contract contemplating delivery in several carload lots,, to be paid for in part on receipt of the invoice for each car and the balance on receipt of the car, the seller is not obliged to make further delivery when the buyer is in default, which has not been waived, in his payments for previous shipments.</p> <p>5. - Rescission by Party Guilty of First Breach. If the seller has been guilty of the first breach of the contract and be himself in default, which has not been waived, he can not claim the right to rescind because payments for deliveries subsequent to his default have been withheld.</p> <p>■6'. -Pleading Default on Specified Day Waives Previous Default. If in an action for damages for refusal to deliver the buyer elect to plead default and repudiation of the contract by the seller on a specified day, he is bound by his pleading. He waives previous defaults on the part of the seller and the seller is entitled to the benefit of the rule stated in paragraph 4.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Stipulation for Warranty Deed — Rights of Ven-dee. Where a contract has been made for the sale of real property and its conveyance by warranty deed, the purchaser ordinarily has a right to insist that such deed.shall be executed by the person with whom he contracted.</p> <p>2..- Warranty Deed — Tender—Specific Objections. Where • a vendor, as a performance on his part of a contract for the conveyance of real property, tenders a warranty deed from another person, the vendee, in order to avoid the effect of the tender on the ground that the deed does not include the warranty of the person with whom he contracted, must make that specific objection, and allow a reasonable opportunity for it to be met.</p> <p>3. --- Specific Performance — Tender of Deed — Pleadings. In an action by the vendor for the specific performance of a contract for the sale of real property, an allegation in the answer that the plaintiff has never tendered a deed executed by himself, is met by allegations in the reply that no previous objection had been made upon that ground to the deed which he had tendered, and that he had at all times been, and was still, able and willing to furnish such a deed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Instructions — Collateral Issue — Error. It is reversible error to instruct the jury to determine a disputed question of fact which is only incidentally involved in the issues, and to base the verdict upon their finding as to such collateral issue.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Arbitration—Setting Aside Award. In an action upon an insurance policy, where the issue was upon the validity of an award of arbitrators chosen under the terms of the policy, the fact that the amount of the loss as found by the court upon the trial greatly exceeded the amount found by the arbitrators, while not deemed sufficient proof of prejudice on the part of an arbitrator, is a circumstance to be considered together with his conduct during the proceedings and all the attendant circumstances in determining whether the award was fairly made.</p> <p>2. - Same. Upon an examination of the evidence tending to show misconduct on the part of the arbitrator appointed by the defendant, his long continued services in such business for this and other insurance companies, the great difference between the amount awarded and the actual loss as found by the court upon the trial, the refusal to examine part of the goods remaining after the fire, and the attendant circumstances, it is held that a finding of the district court upon which the award was held invalid can not be set aside.</p>

<p>syllabus BY THE COURT.</p> <p>.1. Damages — Assault and Battery — Verdict — Inadequate Amount. In an action for damages for assault and battery the testimony showed that the defendant, without legal justification, struck the plaintiff in the face, causing some injury to the nose and profuse bleeding therefrom, followed for oyer two months by pain and clogging up of the nose. The defendant admitted the assault and introduced no evidence. The court instructed the jury that if they found that the plaintiff had been unlawfully assaulted and beaten they should allow reasonable compensation. The jury found for the plaintiff and assessed his damages at $1 — 50 cents for physical pain and 50 cents for insult and indignity. Held, that the verdict should be set aside for inadequacy.</p> <p>3. Jury — Verdict—Contrary to Evidence. While the jury are the exclusive judges of the credibility of the witnesses they are not authorized arbitrarily or from partiality or caprice to disregard uneontradicted and unimpeached testimony or facts shown beyond question both by testimony and by admission.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Attorney in Fact — Authority to Execute Notes. The defendant,- who had been a contractor, and who had purchased supplies on credit to enable him to carry on his contract, had money owing to him on the work done, and he owed several parties for supplies by whom a number of garnishment proceedings -had been begun. Having removed to a distant place he executed a power of attorney authorizing his agents to “settle, negotiate and sign and release any and all indebtedness due me or due by me, . . . and to negotiate and settle with” (certain.parties, naming them), adding that he gave his attorneys “full power to do everything whatsoever requisite and necessary to be done in the premises as fully as I could if personally present.” In the settlement made by the attorneys the money received for work done, being insufficient to satisfy all claims against him,' was apportioned among his creditors and notes were given by the attorneys for the unpaid indebtedness; held,' under the circumstances of the case, that the attorneys in fact had authority to execute the notes given in the settlement.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Fraudulent Conveyance — Statute of Frauds and Perjuries. Under the facts of this case it is held that a deed of real estate is. void under the statute of frauds and perjuries (Gen. Stat. 1909, § 3834) because it was intended to hinder and defraud an existing creditor of the grantor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Surveying — Report of Survey — Time of Filing — Appeal. Under a statute- requiring a county surveyor to make a written report. of a survey, and file it in his office, and allowing an appeal therefrom to be taken within thirty days from the time the report is filed, such report, as to any person having knowledge of the facts, is deemed to be filed from the time it is completed, dated, certified to be correct and signed by the surveyor, and placed among the reports of a similar nature in his office, subject to public inspection, although at the request of the attorney for such person he omits at that time to indorse it as filed, and afterwards places an indorsement upon it indicating that it was filed a few days later.</p>

<p>Appeal from Wyandotte district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law — Governor—Supreme Executive Power. The provision of article 1 of the constitution which vests the supreme executive power in' the governor implies that the governor is the highest in authority in the executive depart- . ment, with such power as will secure a faithful execution of the laws in the manner and by the methods prescribed by the constitution and statutes enacted in harmony with that instrument.</p> <p>2. - Attorney-general — Duties—Statute Mandatory. The statute making it the, duty of the attorney-general, when required by the governor, to appear for the state and prosecute in any eonrt or before any officer, in any cause or matter, civil or criminal, in which the state may be a party or interested, is. mandatory.</p> <p>3. Prohibitory Law — Examination of Witnesses — Authority of Governor. A proceeding for the examination of witnesses-under the provisions of the prohibitory law (Gen. Stat. 1909,. § 4366) is a matter before an officer in which the state is interested, and when required by the governor the attorney-general has no discretion to refuse to prosecute in such a. proceeding.</p> <p>4. - Same. In such a proceeding as that referred to ini the above paragraph, and in the situation shown by the facts in this case, it is within the authority of the governor to-name the witness to be subpoenaed and examined.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Judgment — Injunction—Jurisdiction. Where a defendant is out of the state, is not served with summons, and does not enter her appearance, nor authorize any one else to appear for her, a judgment of injunction is void.</p>

<p>SYLLABuS BY THE COURT.</p> <p>1. Mandamus — District Clerk — Execution. Mandamus will lie to compel a clerk of the district court to issue an execution upon a judgment or final order from which no appeal has been taken, notwithstanding the filing and approval of a supersedeas bond.</p> <p>2. Appeal — Supersedeas Bond — Stay of Execution. A super-sedeas bond is an essential part of an appeal, where it is sought to stay execution pending .appeal. The mere filing and approval of such bond where there has been no service of notice of appeal will not operate to stay execution upon the judgment.</p> <p>3. Judgment — Motion for New Trial — Stay of Execution. The pendency of a motion for a new trial in the action wherein the judgment has been rendered will not operate to stay execution.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation ■ — ■ Statutory Limit — “Current Expenses” — County Roads. The limit of 1.12 mills for current expense fixed by section 5 of chapter 245 of the Laws of 1909 does, not apply to-a road levy of 1 mill under section 33 of chapter 248 of the Laws of 1911, the maintenance of a road designated a county-road under the latter act not being a part of the current expense of the county within the meaning of the previous limiting act.</p>

<p>OPINION ON "REHEARING.</p> <p>Appeal from Ottawa district court.</p>

<p>Appeal from Wyandotte district court.</p>

<p>Appeal from Neosho district court.</p>

<p>Appeal from Wyandotte district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Publication Notice — Corporation — Misnomer — Collateral Attack. A publication notice directed to “The Farmers Loan &. Trust Company, a corporation,” given in an action brought to quiet the title of plaintiff to land in which “The Farmers Loan & Trust Company of Kansas” had held an interest, and based on which a judgment against the company was rendered, is sufficient to give the court jurisdiction over the company where it was shown on collateral attack that the name-by which the company was commonly known in the county where the action was brought omitted the words “of Kansas,” and the judgment is therefore binding on the company and its assigns.</p>

<p>Appeal from Sumner district court.</p>

<p>Appeal from Clark district court.</p>

<p>Appeal from Thomas district court.</p>

<p>Appeal from. Allen district court.</p>

<p>Appeal from Seward district court.</p>

<p>Appeal from Edwards district court.</p>

<p>Appeal from Rice district court.</p>

<p>Appeal from Brown district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Trial to Court — Conflicting Evidence — Weight for the Court. The evidence in this case being conflicting, the findings of' • the court will not be disturbed, and there being no question of law in the case, the judgment is affirmed.</p>

<p>Appeal from Montgomery district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Contract — Oral Acceptance — When Binding.' Ordinarily when the terms of a contract are reduced to writing and signed by one of the parties and by him presented to the other, who without signing expresses satisfaction therewith and a willingness to sign and who accepts the terms and proceeds with the work, such contract is binding on both parties.</p> <p>2. Cities — Unsigned Contract — Oral Acceptance■ — Liability. When a city receives a bid for preparing certain plans and specifications, instructs its attorney to draw a contract and directs the bidder to proceed without waiting for the contract to be signed, and the bidder thereupon proceeds with the work until it is nearly completed, when he is directed to cease, held, that the city is liable to him for the fair cost and value of what he has done, whether it actually received any benefit therefrom or not.</p>

<p>Appeal from Johnson district court.</p>

<p>Appeal from Brown district court.</p>

<p>Appeal from Comanche district court.</p>

<p>Appeal from Allen district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Misconduct op Counsel — When Prejudicial. Before a judgment will be reversed for misconduct of counsel of the prevailing party occurring at the trial it must be made to appear that such misconduct prejudiced the rights of the defeated party.</p> <p>2. - Instructions — Verdict — Evidence. Ordinarily where the trial court has directed' the jury to disregard .the matter and with full knowledge of all the circumstances has approved the verdict and has overruled a motion for a new trial based upon the ground of such misconduct, this court will not reverse- the judgment. Especially is this true where the verdict does not appear to be against the preponderance of the-evidence and where the amount of the verdict appears not to be excessive.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Building of Fraternal Beneficiary Association — Not Exempt. Real estate obtained by an appropriation made by a fraternal beneficiary association from its reserve or emergency fund for a home office building, occupied and intended to be permanently used for that purpose, is not exempt from taxation as a part of such fund, under the provisions of section 4313 of the General Statutes of 1909.</p>

<p>Appeal from Hodgeman district court.</p>

<p>Appeal from Wilson district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Public Administrator — Appointment — Collateral Attack. • Under a statute providing that before a public administrator shall take charge of an estate he shall make application to the probate court showing certain facts, and shall give bond, and that the court shall thereupon issue him letters of administration, his appointment as administrator is not rendered absolutely void by the omission of the application to set out some jurisdictional fact, where such fact actually exists.</p> <p>2. - Same. Under the statute authorizing the appointment of an administrator where a nonresident has died leav- - ing any estate to be administered in this state, such an appointment is not open to collateral attack by a showing that the intestate left no property in this state excepting the suit of clothes he was wearing, valued at $1.50.</p> <p>3. WRONGFUL Death — Who May Bring Action. An action for the wrongful death of a nonresident may still be brought by the Kansas administrator of his estate, under the original act conferring that authority, notwithstanding the passage of the supplemental act authorizing his widow or next of kin to bring the action.</p> <p>4. Verdict — Not Excessive. A verdict for $3000 held not to be excessive under the evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Crime — Reward for “Arrest and Conviction” — Party Entitled thereto. A reward, offered and published by a board of county commissioners under section 6900 of the General Statutes of 1909, is offered to every citizen, and when the offer comes to the knowledge of any one, and he begins the undertaking of doing the things upon which the offer is conditioned for the purpose of gaining the reward, a contract thereupon arises between him and the board of county commissioners that if he accomplishes the results specified he shall receive the specified reward.</p> <p>2. --- Same. Since it is not within the power of any citizen, literally, to do, by himself or his agents, the things specified in the statute and in the published offer, it) is held that if he substantially accomplishes the full objects of the offer, aided by the officers of the law in the orderly performance of their official duti'es, he has met the conditions of the contract and earned the reward.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action for “Relief on the Ground of Fraud” — What Constitutes. An action to recover a part of the consideration of a contract which it is alleged was paid by reason of the fraudulent representations of the defendants as to the amount due .thereon is an action for relief on the ground of fraud and not an action upon contract.</p> <p>2. Fraud — Discovery—Allegations—Limitation of Actions. K. P. ■Rly. Co. v. McCormick, 20 Kan. 107, and Ryan, et al., v. L. A. & N. W. Rly. Co., et al., 21 Kan. 365, 404, followed, and held, that in an action for relief upon the ground of fraud where a discovery of the fraud must be alleged to avoid the bar of the statute of limitations as provided by subdivision 3 of section 17 of the civil code, the circumstances under which the fraud was discovered need not be stated; nor is the plaintiff required to negative the fact that the fraud might have been ' discovered earlier.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Beneficiary -Societies — Certificate—Amendment to By-laws —Old Certificates Not Affected Thereby. Before the passage of the act relating to fraternal beneficiary societies (Gen. Stat. 1909, §§ 4303-4318) an association of that character in accordance with its by-laws issued a beneficiary certificate;' the by-laws were amended two years afterward providing for the issuance of certificates upon a plan less favorable to members and beneficiaries, but making no reference to or provision for certificates then outstanding, and the association continued after such amendments as it had done before to accept payments upon one of the old certificates, according to its terms, without objection or condition, until it became fully paid up and the holder became entitled according to its provisions to a new paid-up certificate. Eighteen, months after the payments had been so completed the association for the first time adopted a by-law providing a new plan for the old outstanding certificates, placing them in a separate class, and materially reducing the benefits stipulated for therein. It is held that the association is, upon these facts, estopped from making such changes, and that the holder of such a certificate who has fully performed the contract on his part is entitled to a paid-up certificate according- to the terms specified in the one so held and the by-laws in force when it was issued, although it was issued subject to amendments that might be-thereafter made.</p> <p>2. - Acpion on Certificate — Not Barred by Delay. Upon' the facts stated in the preceding paragraph the certificate holder is not precluded from maintaining Ms action because of delay in commencing it.</p> <p>3. - Certificate — Contract■—Enforcement. Although the-plan of benefits provided by the by-laws of a fraternal beneficiary society is afterwards found to be impracticable, the contract contained in the certificates issued in accordance with the original plan is not unconscionable so that a court of equity should refuse to enforce it in a suit brought by a holder who has made all payments due thereon, which have been accepted without objection or condition.</p> <p>4. Mutual INSURANCE Companies — Statute—Application. While the statute relating to mutual insurance companies was in some respects applicable to" certain mutual benefit associations, engaged in the business of insurance before the passage of the act relating specifically to such societies, still the former act. did not apply to the defendant association, which operated under the lodge system, under the supervision of a grand or supreme lodge. (Gen. Stat. 1901, § 3543.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>Vendor and Purchaser — Contract—Default of Buyer — Significance of the Word “About.” In an action to recover damages for failure to accept a shipment of English walnuts the testimony on behalf of the plaintiff showed such circumstances and conduct as to afford some basis for finding or inferring that there had been a substantial compliance with a contract calling for “250 sacks of about 100 pounds each.” Held, (1) that a demurrer to the plaintiff’s evidence was improperly sus-1 tained; (2) that the question of substantial compliance should have. gone to the jury under proper instructions as to the meaning and application of the quoted phrase.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Redemption — Mortgage Foreclosure — Amount Required to Redeem. In order to redeem mortgaged premises, sold under a judgment of foreclosure, the redemptioner is required to pay the amount for which the land was sold, and interest thereon, together with costs and taxes, and.the word “costs” as used in section 476 of the civil code means the costs of redemption and not the costs which accrued in the foreclosure action.</p>

<p>Appeal from Harper district court.</p>

<p>Appeal from Riley district court.</p>

<p>Original proceeding in quo warranto.</p>

STATEMENT. The appellant was convicted of a sale of intoxicating liquor in violation of an ordinance of the city .of Iola. The district court sentenced him to thirty days’ imprisonment in the county jail and a fine of one hundred dollars and costs. From this judgment he appeals.

<p>HEADNOTE BY THE REPORTER.</p> <p>Insurance — Arbitration—Setting Aside Award — Conflicting Evidence. The evidence reexamined and held that where the evidence is conflicting a finding of the trial court upon which the award was held invalid will not be set aside.</p>

<p>Appeal from Wyandotte district court.</p>

<p>Appeal from Wyandotte district court.</p>

<p>Appeal from Shawnee district court.</p>

<p>Appeal from Finney district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. INSURANCE — Loss—Settlement by Insured — Bights of Insurer. In an action by the insurer against the insured to recover insurance money paid on the contract of insurance, the general rule is that the insurer can recover only the excess which the insured has received from a wrongdoer, who caused the loss, after the insured is fully compensated for his loss and the costs and expenses of the recovery thereof.</p> <p>2. - Same. Where the insured brings an action against an alleged wrongdoer for occasioning a loss, partially covered by insurance, and the insurer is informed, from time to time, by the insured of the prospects of recovery and that a settlement is being discussed between the parties; and- the insurer contributes nothing to the prosecution of the claim and takes no steps to protect his interests therein; and thereafter the insured, in good faith, settles the action for less than his loss in excess of the insurance; held, the insurer can not recover the insurance money paid, in an action therefor against the insured.</p> <p>8. - Same. Where a plaintiff in an action* having not only a personal interest but also representing the interests of others who may be benefited by his recovery therein, settles the suit, on the advice of counsel, for less than the amount claimed, to the apparent detriment of both himself and the others, it will be presumed, in the absence of evidence to the contrary, that the settlement was made in good faith.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>'Taxation — Voidable Tax Deed — Lien—Rate of Interest. Where the holder of a voidable tax deed issued in the year 1895 is given a lien for taxes paid, the amount of such lien is the amount for which the deed was issued and all subsequent taxes paid with twelve per cent interest thereon.</p>

<p>Appeal from Chase district court.</p>

<p>Appeal from Finney district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Slander — Evidence—Reputation of Plaintiff — Mitigation of Damages. In an action for slander it is competent for the defendant to show, in mitigation of damages, that at the time of the defamation complained of the plaintiff’s general reputation was bad with respect to the matters involved in the charge made against him.</p> <p>2. -Same. Where the plaintiff sues on account of having-been accused of stealing cattle, the defendant is entitled to introduce evidence tending to show that the plaintiff had the general reputation of being guilty of that offense. The rule stated is not satisfied in such a case by allowing evidence that the plaintiff’s general reputation for “honesty, fair dealing and integrity” was bad. The defendant’s right in this regard is not limited by an allegation in his answer that the plaintiff’s reputation for truth and veracity and honesty was such that he could not have been injured by the accusation.</p> <p>3. - Malice — Punitive Damages — Evidence—Motive of Defendant. In an action for damages for being called a cattle thief, actual malice being charged as a basis, for punitive damages, where the defendant denies having made that charge, but avows having said that it was generally believed that the plaintiff had stolen cattle, he should be allowed to testify upon what he based the statements hé avowed making, .whether he believed them, .what basis he had for them, and Whether he was actuated by a desire to injure.the plaintiff.</p> <p>-Punitive Damages — Express Malice Must be Shown. In an action for slander, punitive damages can be allowed only where the defendant is found to have been actuated by express, as distinguished from implied, malice.</p>

<p>Appeal from Dickinson district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Title — Tax Deed — Adverse Possession — Finding of Court. The evidence examined, and it is held that a finding by the trial court, on conflicting evidence, that the holder of a tax deed on record for sixteen years had been in adverse possession of the land continuously during that period will not be disturbed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Slander — Witness — Impeachment — Cross-excmdnation—Col-lateral Offenses. A cause of action depended upon the testimony of one witness, whose credibility was variously impeached and supported by a number of witnesses. When called on rebuttal he was asked on cross-examination whether he had within three or four years lived with a woman in illicit cohabitation and had invited different persons to have improper relations with her for a consideration, and whether he had “a government permit to sell intoxicating’ liquor.” An objection to such questions was sustained and an offer to prove as indicated was overruled. Held, error.</p> <p>2. - Allegations of Petition — Evidence — Variance. Language substantially the same as charged shown to have been ' spoken at the time and place charged, in the presence of only one of the two alleged persons, and language substantially the same as charged shown to have been spoken at the place and in the presence and hearing of the persons alleged and at or near the time alleged, sufficiently meets the allegations of the petition and is not subject to the charge of material variance.</p> <p>3. Evidence — Communications between Husband and Wife. Plaintiff testified that the use of the alleged words had been communicated to her. On cross-examination she stated that such communication was by her husband. Held, that a motion to strike out her testimony as to the fact of the communication was properly overruled. •</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Allen district court.</p>

<p>Appeal from Pottawatomie district court.</p>

<p>Appeal from Jackson district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Personal Injuries — Negligence—Defects in Machinery. The evidence in this case, and the reasonable inferences derivable therefrom, are sufficient to sustain a verdict for damages resulting from personal injuries caused by defects in the clutch and latch of a body press in the defendant’s tin shop, which defects were negligently suffered to exist long enough that the defendant should have been aware of them.</p>

<p>Appeal from Linn district court..</p>

<p>Appeal from Sedgwick district court.</p>

<p>Appeal from Barber district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>I. Landlord and Tenant — Lease—Breach—Measure of Darn?-, ages. It is a general rule that damages may be recovered when they arise naturally- — -that is, according to the usual course of things — from the breach of a contract, or are such as may reasonably be supposed to have been in the contemplation of the parties at the time they entered into it.</p> <p>2. -Same. The growth of cattle and their increase in weight, under ordinary conditions of care and pasturage, are elements entering into the common business experience and observation of persons engaged in one of the great industrial pursuits of our people, and it must be presumed are ordinarily susceptible of reasonable estimate and calculation by those engaged in such business.</p> <p>3. -Same. Premises leased for pastura ge to a person engaged in the business of buying, selling, pasturing and marketing cattle were materially less in area than was represented by the lessor. The intended use was made known to the lessor when the lease was executed, and the deficiency was unknown to the lessee, who relied upon such representations in making such use of the premises. In the midst of the pasture season the deficiency was discovered, and efforts were made to obtain other pasturage, and a large part of the herd of over 900 cattle was removed to it, but sufficient pasturage could not then be obtained, and the growth of the cattle removed, as well as those remaining on the leased premises, was retarded, and there was a consequent loss in weight, amounting on an average to 150 pounds per head, and a loss in value of over $8 per head. It is held that the lessee, upon proper proof of these facts, should recover damages resulting from the failure of the cattle to grow and take on flesh, which were caused by the fact that the pasture contained materially less land than had been represented, and which losses could not have been avoided by a reasonably diligent effort to procure other pasturage.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages — ¡Negligence—Collision—“Law of the Road” — Instructions. In an action to recover damages for the loss of plaintiff’s horse caused by a collision with a vehicle of the defendant it was shown that the plaintiff driving south with a team on the right side of a city street angled across to the left to water his horses at a public trough, and just before reaching it the defendant’s servant coming north in a delivery wagon drawn by a single horse drove rapidly between the trough and plaintiff’s team, the shaft of the delivery wagon piercing the breast of one of the plaintiff’s horses, causing its death. Defendant requested the court to instruct in substance that the law of the road requires parties traveling in opposite directions on meeting each other to keep to the right, that one by driving on the wrong side assumes the risk of all such experiments and must use greater care than if he kept upon the right side, and if a collision takes place the presumption is generally against the party upon the wrong side, especially if the collision takes place in the dark, which instruction was refused. Held, not error.</p>

<p>Appeal from Leavenworth district court.</p>

STATEMENT. The plaintiff sued the defendant for damages occasioned by the negligence of its soliciting agent in not forwarding the plaintiff’s application for hail insurance promptly, in consequence of which the policy was not issued 'until after the property sought to be insured was destroyed. The court made the following findings of fact and conclusions of law: findings of fact. “1.

<p>SYLLABUS BY THE COURT.</p> <p>“Factory Act” — Injuries to Son — Action by Father — Failure to Demur or Answer — No Waiver. Where a father sues to recover for expenses incurred by reason of an injury to his minor son, and for the loss of his son’s services during minority, basing his claim upon the “factory act,” which makes employers liable for inj’uries to employees resulting from a failure to safeguard machinery, the obj'ection that no one but the injured person can .avail himself of that statute is not waived by a failure to raise it by demurrer or answer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Vendor and Purchaser — Chattel Mortgage — Payment—Sub-rogation. Where the owner of a number of cattle sells them successively to two different purchasers, the first purchaser, if he buys in good faith and upon sufficent consideration, is entitled to the ownership and possession thereof, although, he left the cattle temporarily in the possession of the seller; if, however, the second purchaser buys in good faith, and without knowledge of any fact which should put him upon inquiry as to the rights of the first purchaser, and he thereafter pays off a valid mortgage on the cattle, which contains such a description of the cattle that one not a party to the mortgage could by the description therein, aided by such inquiries as the mortgage suggests, identify the cattle mortgaged as the cattle purchased, the second purchaser is subrogated to all the rights of the mortgagee under such mortgage.</p> <p>2. - Same. Where, in such case, the first purchaser, as a part of the purchase price, assumed the payment of another valid mortgage upon the cattle, then, assuming that both mortgages are valid against the cattle, the right to the possession of the cattle is determined by the priority of the respective mortgages.</p>

STATEMENT. The bank sued C. M. Sheldon and C. K. Bowen to recover the amount due on a promissory note for $4500 payable to the bank’s order, executed June 5, 1905, by The C. M. Sheldon Company.

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — When Question Not Reviewable. Certain evidence was admitted over the objection of plaintiffs. No complaint of the ruling was made in the motion for a new trial. Held, that the question can not be raised in this court.</p> <p>2. - Transcript — Evidence—Documents—When Part of the Record. When there is complaint by one party that the abstract or transcript does not contain certain material and important evidence, and such evidence is contained in documents which were marked and certain portions offered in evidence and such documents filed with the clerk of the trial court, thereby making the admitted portions a part of the record under section 575 of the civil code, this court may, under section 576, direct the forwarding of such documents for examination, and may properly examine them when voluntarily forwarded at the instance of the other party..</p> <p>S. Agency — Allegations of “Appointment or Authority” — Statute Construed. “Appointment or authority” as used in section 110 of the civil code means a right to act for another, and an allegation to the effect that one has full right, power and authority to act for himself is not taken as true when not denied under oath.</p> <p>4. Deposits — Application by Depositor. Directions by a depositor as to how a certain deposit shall be credited, when a part of the transaction or accompanying it, may be shown by the banker, after the decease of the depositor. But” such • directions given after the credit has been made, and given for the purpose of changing a credit theretofore properly made, may not thus be shown.</p> <p>5. TRUST Funds — Election of Remedies — Filing Claim in Probate Court — No Estoppel. The grand treasurer of a fraternal order kept his official account in a bank which bank is charged by the order with diverting a portion of its funds on deposit to the payment of a private debt of the grand treasurer. The order had already filed with the probate court a claim against the estate of the grand treasurer and had the same allowed and classified. Held, that such proceeding in probate court is not a bar to this action; that the order may consistently pursue both remedies until there is one satisfaction.</p>

<p>Appeal from Morris district court.</p>

<p>Appeal from Wyandotte district court.</p>

<p>Appeal from Kingman district court.</p>

<p>Appeal from Wyandotte district court.</p>

<p>Appeal from Wilson district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Principal and Agent — Violation of Instructions by Salesman— Damages. Objections to instructions and to rulings relating to evidence are stated but not sustained. It is held that the question of fact was fairly presented and the verdict upon conflicting evidence is decisive of the controversy.</p>

<p>Appeal from Mitchell district court.</p>

<p>Appeal from Washington district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Foreclosure — Parties—Mortgagor in Penitentiary — Bights of Heirs. The owner of land subject to a mortgage was convicted of crime, sentenced to the penitentiary and confined there the remainder of his natural life. After his incarceration and before his death the mortgage was foreclosed by proceedings regular in form which resulted in a sheriff’s deed, The parties to the foreclosure proceeding were those who would have been made such had the mortgagor been naturally dead, including his children. After his death his children, who were his only heirs, sought to recover the land and to redeem from the mortgage. Held, the foreclosure proceedings and the sheriff’s deed were valid under section 337 of the criminal code, providing that whenever a person shall be imprisoned under a sentence for life his estate, property and effects shall be administered and disposed of in all respects as if he were naturally dead.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Divorce and Alimony — Alimony Alone — Division of Property. Under the statutes of this state real estate of the husband may be set apart to the wife in actions for alimony alone, as well as in actions for divorce and alimony.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. “Factory Act” — Guarding Machinery — Expert Evidence-Competent. In an action to recover damages under the factory act it is error to exclude the opinions of experts familiar with the character and operation of the machinery involved, as to whether it was practicable to guard such machinery, when the knowledge of such witnesses is superior to that possessed, and gained by the jury from the facts shown on the trial.</p> <p>2. Negligence — “Factory Act” — Common-law Liability- — Instructions. When the petition is drawn under the factory act. and also under the common law, and the answer in addition to a general denial pleads contributory negligence, assumption of risk and impracticability of guarding the machinery, it is error in stating the issues to instruct, over objection, merely that the answer denies each and every material allegation of the petition.</p>

<p>Appeal from Finney district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Appeal and Error — Criminal Law — Bill of Exceptions — Evidence. It is a fundamental requirement of the code of criminal procedure that trial proceedings, so far as they relate to evidence, must he brought upon the record by a bill of exceptions duly settled, signed and filed.</p> <p>2. -■ Evidence — Competent. Certain evidence examined, and it is held that there was no prejudicial error in the admission of the same.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Evidence—Stenographer’s Notes — Competent. On a trial for felony, a stenographer who testifies to having correctly made and transcribed shorthand notes of the evidence given at the preliminary examination, in the presence of the defendant, by a witness whose attendance can not be procured, may read such transcript to the jury as a witness for the state, so far as the subject matter is competent.</p> <p>2. - Manslaughter — Unnecessary Proof. In order to justify a conviction under the statute providing that “if any person shall be . . . wounded ... in cases and under circumstances which would constitute . ... manslaughter if death had ensued, the person by whose act . . . such injury . . . shall be occasioned shall ... be punished by confinement and hard labor” (Gen. Stat. 1909, § 2530), the state need not prove that death would have been a natural and probable consequence of the injury inflicted.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>CORPORATIONS — Employee—Weekly Wages — Settlement — Penalties. Where an employee of a corporation with full knowledge of his rights receives his full wages, according to his contract, he can not afterwards recover the penalties prescribed by sections 4667-4673 of the General Statutes of 1909.</p>

<p>Original proceeding in habeas corpus.</p>

<p>Original proceeding in mandamus.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Saline district court.</p>

<p>Appeal from Elk district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. State Auditor — Registration of Public Utility Bonds — Fees. Section 744 of the General Statutes of 1909 requires registration with the state auditor of public utility bonds issued by cities, “and said auditor shall be entitled to a fee. of not exceeding fifty cents for each bond so registered in his office.” Held, that such fees collected by the plaintiff when auditor belonged to him and he was not required by section 9007 of the General Statutes of 1909 to account for or turn them over to the state treasurer.</p> <p>2. Fees — Paid to State Treasurer by Mistake — Recovery Back. The plaintiff, while holding the office of state auditor, collected such fees and by mistake paid them to the state treasurer who credited them to the general fund. An act appropriating to the plaintiff the sum so paid, on condition that his right thereto first be determined by this court, was passed by the legislature and such appropriation was vetoed; the veto message inierentially expressing a willingness that the plaintiff’s right to the money should he judicially determined. Held, that permission to sue the state or exemption from suit not having been expressly given or waived the plaintiff should look to the legislature rather than to the court for relief.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Refused—Cwre of Minor Children — Jurisdiction. Under section 668 of the civil code, providing that when a divorce is refused because the parties are in equal wrong the court may, for good cause shown, make such order as may he proper for the custody, maintenance and education of the children, no separate hearing is necessary and no specific kind of evidence is required to determine whether or not such an order shall be made.</p> <p>2. - Same. At the conclusion of the divorce proceedings the judicial question arises upon them whether or not good cause has been shown for the entry of an order for the future protection of offspring. Whichever way the decision may fall, and whether or not it be sound or unsound, the court has jurisdiction to make it.</p> <p>S. - Order for Care of Minor Children — Enforcement— Contempt. Should an order of the character described he made it may be enforced by proceedings for contempt and is not vulnerable to collateral attack in the contempt proceeding on the ground of want of jurisdiction.</p> <p>4. Support op Minor Child — Order—Disobedience—Contempt— Habeas Corpus. At the conclusion of the trial of a divorce action in which both parties were denied relief because in equal wrong an order was made requiring the father to convey to a trustee property for the maintenance and education of his infant child, the custody of which was given to its mother. The trustee was required to give bond for the faithful performance of his duties. The bond was not given until after citation for contempt had issued to enforce the order. After the bond was given and approved opportunity was offered for compliance with the order, but not improved, and the father was committed for contempt.. Held, he may not be discharged by means of the writ of habeas 'Corpus.</p>

<p>Original proceeding in quo warranto.</p>

<p>Original proceeding in mandamus.</p>

<p>Appeal from Wyandotte district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Boundaries — Mistake—Intention—Survey.—The facts as found, based upon conflicting evidence, will not be set aside, and all propositions of law raised relating to rights of'one who by mistake unintentionally occupies a strip off his neighbor’s land have been decided by this court adversely to appellant’s claim. See Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836, and cases cited.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. PROMISSORY Note — Patent Right — Collateral Security — Consideration. On motion of the defendant in an action brought by an indorsee of two promissory notes against the maker thereof the payee of the notes was made a party and filed an answer that the notes sued upon had been transferred by him to the plaintiff as collateral security for his own notes, which had been obtained from him without consideration and through fraud upon false representations upon a pretended sale of a right under letters patent. The court submitted to the jury the question whether the principal notes were given without consideration, and directed that if the jury so found the verdict should be for the intervenor for the amount due upon the collateral notes, otherwise that the verdict for the same amount should he for the plaintiff, and instructed the jury (as the fact was), that there was no evidence of any fraudulent representations respecting the patent right. It was shown that the right had been conveyed as agreed in consideration for the .principal notes, and there was no evidence that it was invalid or worthless. It is held that a verdict and judgment for the intervenor for the amount of the collateral notes sued upon can not be sustained.</p> <p>2. Judgment^ — On Principal Notes — Conclusive as to Collateral. A suit was commenced in Illinois, where the three notes given for the patent right above referred to were made payable, in a court of competent jurisdiction, by the payee thereof, for the amount due upon two of them which had not been transferred, and also for the amount due upon the other note which had been returned to the payee by the indorsee thereof for collection and accounting of the proceeds, and which was secured by the endorsement and transfer of the collateral notes sued upon in this action. A judgment was duly rendered in that action against the maker of the principal notes for the full amount thereof. These are the same notes alleged in the answer of the maker thereof — the intervenor in this action— to have been obtained by fraud and without consideration. It is held that the Illinois judgment is a final determination of the validity of the principal notes.</p> <p>3. ORDER of Revivor — Affirmed. Pending an appeal taken by the plaintiff the principal defendant died, and a motion was made to revive the action against certain persons to whom, it was alleged in the motion, the deceased had transferred money, and property, to prevent the plaintiff from collecting its claim in this action. A revivor was not asked against the personal representatives of the deceased nor does it appear that any had been appointed. A revivor was ordered against the heirs of the deceased, including the alleged trustees, who were also heirs. On appeal by the alleged trustees or holders of. the funds and property referred to, the order of revivor is affirmed.</p> <p>4. Revivor — Against Personal Representatives — When Unnecessary. The liability of the principal defendant having been admitted and established by the judgment referred to in the second paragraph, and the only issue being the question to whom the liability is due, that issue may be determined without a revivor against the personal representatives of the defendant who died after the judgment was rendered.</p> <p>■5. Judgment — Satisfaction—Reversal. A transcript of a release of the judgment in favor of the intervenor against P. H. McCoy, given and filed by the .intervenor after the appeal therefrom had been taken, having been filed in this court and this judgment being reversed, it is held that upon a proper issue to be made and proof of such satisfaction the intervenor should be adjudged to pay the amount of such judgment to the plaintiff.</p>

<p>Appeal from Sedgwick district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Without Consideration — Unenforceable. A promise to pay a sum of money for property which the promisor already owned, and in which the promisee has no interest, is without consideration and unenforceable. n</p> <p>2. - Unenforceable — Estoppel — Defenses. The fact that the promisor only stated one ground of refusal when payment was demanded will not estop him from setting up all the defenses he has when an action is brought against him on the promise.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Injunction — Sale Under Execution — Fraudulent Conveyance. The evidence examined, aim ' "'Ll to fully sustain the findings of the court that appellee purelm. d in good faith the land in controversy, and that no fraud was perpetrated on the creditors of her husband by having the title placed in her name.</p>

<p>Appeal from Allen district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Sale — Delivery Delayed — Damages — Findings — Instructions. The record examined, and it is held that no prejudicial error appears in the refusal to submit certain questions to the jury, nor in the instructions as to amount of recovery, nor are the special findings of the jury inconsistent. ■</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Summons — General Appearance — Jurisdiction. Any appearance in an action other than to challenge the jurisdiction of the court is a general appearance for all purposes of the action. (Abercrombie v. Abercrombie, 64 Kan. 29, 67 Pac. 539.)</p> <p>2. - Same. A general appearance in an a.ction waives all defects in the issuance and service of" the summons and confers jurisdiction upon the court for all the purposes of the action without the issuance or service of a summons.</p> <p>3. Change op Venue — Judicial Discretion. The allowance or refusal of an application for a change of venue rests largely in the discretion of the court.</p> <p>4. Ejectment — Petition—Amendment—New Cause of Action— Partition. An amendment to a petition in ejectment may be properly allowed to unite a cause of action for partition.</p>

<p>Appeal from Kiowa district court.</p>

<p>Appeal from Butler district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Appeal — Jurisdiction—Due Course and Process of Law — Irregularities in Procedure. The action in the district court was one brought there by the defendant’s appeal from the judgment of a justice of the peace before whom the defendant appeared and contested other than jurisdictional matters. The case was one for the recovery of money due on account for goods sold and delivered, involved a sum less than $100 and did not involve the state constitution or the constitution of the United States. The district court having rendered judgment against the defendant by default he appealed to this court and, among others, assigns as error that he has been denied due course of law and has been deprived of property without, due process of law. Held:</p> <p>(1) This court has no jurisdiction to consider any but the constitutional questions.</p> <p>(2) The civil code provides a procedure which satisfies all the requirements of due course and process of law in actions of this kind, and errors and irregularities committed in the administration of such procedure by a district court having jurisdiction of the parties and of the subject matter do not constitute a denial of due course or process of law.</p> <p>(3) An irregularity is the failure to observe that particular course of proceeding which, conformable with the practice of the court, ought to have been observed in the case.</p> <p>(4) The defendant challenges the proceedings on the following grounds: a. The judgment was rendered without notice to him of the time of the hearing, while he was in custody under a commitment for contempt of the probate court and notwithstanding he had requested that such notice be given him; b. The judgment was rendered notwithstanding his motion attacking the verification of the plaintiff’s bill of particulars was pending and was not passed on; e. The plaintiff’s bill of particulars was not properly verified and the judgment was taken without proof; d. A motion to vacate the judgment for the reasons stated was overruled.</p> <p>Assuming this entire charge to be true, the course pursued ’iras irregular and erroneous only and the defendant was not denied due course or process of law within the meaning of the state arid federal constitutions.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Vendor and Purchaser — Contract—Abstract of Title — Default — Specific Performance. Where in a contract for the sale of land the seller agrees to furnish an abstract showing a clear title, and the buyer to pay the purchase price on a certain day, when a deed is to be delivered, the buyer is not in default for failure to make payment on the day named when at that time he has made a reasonable objection to the title and abstract, with respect to a matter which apparently admits of correction, and no effort to that end has been made by the seller.</p> <p>2. - Same. The fact that one of the deeds under which the seller derives title contains a misdescription of the property, resulting from a mistake on the part of the draftsman, affords grounds for a reasonable objection.</p> <p>3. - Same. The situation is not altered by the fact that • after the objection was made the draftsman, without authority from the grantors, changed the description in the deed, and caused corresponding changes to be made in the record and in the abstract.</p> <p>4. - Same. Under the circumstances stated in the foregoing paragraphs the right of the buyer to enforce the specific performance of the contract is not barred by the fact that upon the day fixed for payment he did not have money sufficient for the purpose, nor property upon which he could have raised it, where he had made arrangements by which he could have borrowed the necessary amount by using the land he was buying, with the other property, as security, had the title been marketable.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Deed — Delivery—Title—Intention—Evidence. The passing of an executed deed into the hands of a grantee named therein does not constitute a delivery where it is the understanding and intention that the instrument shall not then become effective as a conveyance.</p> <p>2. - Same. In a transfer of real property by deed i’t is essential that grantor and grantee shall understand that the conveyance is complete and that the title is to pass in order to have the mere placing of it in the hands of a grantee, his attorney, or agent, construed as a complete delivery.</p> <p>3. - Same. The evidence in the case is examined, and held to he sufficient to sustain the finding of the trial court that there was no delivery of the deed in question.</p> <p>4. INSURANCE — Loss — Mortgagee — Distribution of Insurance Money. Where by the terms of a fire insurance policy it is stipulated that the loss, if any, shall be payable to the mortgagee, he becomes the beneficiary of the policy, and if a loss occurs while the debt is unpaid he alone is entitled to recover the insurance to the extent of his debt; and where the indemnity is paid by the insurance company in a draft made payable to the mortgagor and mortgagee jointly and the mortgagor offered to indorse the draft and have the mortgagee take from the proceeds the amount of the mortgage debt, and where the mortgagee refused to accept the amount of his indebtedness, but claimed that he was the owner of the insured property and was entitled to all the insurance money, which greatly exceeded the amount of the mortgage debt, he is not entitled to interest on the mortgage debt after the time he refused to accept the payment to which he was entitled.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deed — Five Years Old — Statute of Limitations. When suit to quiet title against a tax deed is commenced less than five years after the deed is recorded but the tax-title holder and parties who claim under the deed are not made defendants until the deed is more than five years old, it will be entitled to the protection afforded by the five-year statute of limitation.</p> <p>2. - Several Tracts — Void as to Part — Valid as to Others. A tax deed five years old which purports to be for several . tracts of land, and which is void as a conveyance of title to ' one of the tracts by reason of lack of description, is not for that reason void as to other tracts attempted to be conveyed and which are properly described.</p> <p>S. -- Same. The recitals in a tax deed five years old examined, and held to show a separate sale ol each tract and the amount for which each was sold and conveyed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Conclusions—Error—Curative Evidence. The admission of testimony giving a conclusion instead of the constitutive facts is rendered harmless by the reception of other and competent evidence so showing such facts that the verdict reached would have been required thereby.</p> <p>2. Contract — Employment—Promise to Pay — Instructions. The petition alleged an employment and promise to pay what the services should be reasonably worth, the performance of the services, and a subsequent agreement that they were worth $1000, followed by a promise to pay that sum. The court charged that if the jury should find for the plaintiffs and should find that such agreement to pay $1000 was made the verdict should be for that sum. The testimony touching the value of the services ranged from $250 to $2000. Held, that such instruction was not erroneous.</p> <p>3. Writings — Interpretation—Court—Jury. Instead of advising the legal effect of certain correspondence- alleged to embrace the contract of .employment the court submitted such correspondence to the jury, whose construction thereof was the only one justified by the language used in such correspondence. Held, no material error.</p> <p>4. Contract — Express—Implied—Quantum Meruit.. Each party asserted a promise as to compensation, one claiming it to embrace certain terms, the other that it contained different terms. The contention of the plaintiffs was adopted by the jury and supported by the evidence. Held, not to be a case of mutual misunderstanding whereby, the minds of the parties never met, relegating plaintiffs to a recovery quantum meruit.</p> <p>5. Statute op Frauds — Promise — Individual Liability. The Missouri statute of frauds (1 Rev. Stat. of Mo.-1899, § 3418) provides that “no action shall be brought to charge any . . . administrator, upon any special promise to answer ’ for any debt or damages out of his own estate, . . . unless the agreement ... or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some-other person by him thereto duly authorized.” Held, that an administratrix, who, by her agent and attorney authorized, but not in writing, employs counsel in Missouri to assist in litigation for the estate in which litigation she is interested as administratrix, is individually liable for the payment for the services rendered by such counsel.</p>

STATEMENT. Action for redemption from an alleged mortgage, which was, in form, an absolute deed, in which ap-pellee asked to have the amount of the .mortgage debt determined and that he be allowed to redeem the land upon payment of the amount due, and that thereupon he be decreed to have the legal and equitable title to the land.

<p>SYLLABUS BY THE COURT.</p> <p>Quieting Title — Service—Allegations of Petition — Judgment by Default. In an action to quiet title uncontroverted allegations of the petition, which contains the statutory requisites, are to be taken as true, and the plaintiff is entitled to judgment by default against defendants who are properly served by publication and who do not appear.</p>

<p>Appeal from Shawnee district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Sale—Bailment—Delivery—Evidence. Two parties have a conversation resulting in the delivery of personal property from one, the owner thereof, to the other. One, the owner, testifies to such language used as would constitute a sale; the other denies this and testifies to language that would constitute a bailment only. Held, that the evidence of other witnesses of acts done and statements made by the latter soon after he acquired and while he was in possession of the property, no change of circumstances affecting, his interests having occurred, are admissible as a part of the res gestae, as characterizing his possession and corroborating his testimony.</p> <p>2. Practice — Prejudicial Error — Motion for New Trial. Where rulings of a trial court, sustaining objections to questions asked, result in excluding testimony, it is not sufficient to justify a reversal that it be made to appear that the rulings are erroneous, but it must also appear that the error is prejudicial. For this purpose a motion for a new trial must be filed and the proposed evidence produced as provided in section 307 of the civil code.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Ejectment — School Lands — Rival Claimants — Estoppel. In an action of ejectment between rival claimants to a tract of school land, it is held, following Burgess v. Hixon, 75 Kan. 201, 88 Pac. 1076, and Thayer v. Schaben, 79 Kan. 856, 98 Pac. 1134, that upon the facts stated in the opinion, the holder of the older contract who had made default in payments and against whom a forfeiture had been declared upon proceedings not in strict, compliance with the law as it then existed, is barred from asserting title thereunder as against the holder of a later contract issued after the forfeiture proceedings had been completed, who has complied with all the terms of his purchase .and is in possession.</p>

<p>Appeal from Stafford district court.</p>

<p>Appeal from Wyandotte court of common pleas.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Question of Fact for Jury. Whether or not an accident was caused by the negligence of the defendant is an inference of fact for the jury to determine, and not of law for the court, notwithstanding the evidence may be contradictory, uncertain, and confusing.</p> <p>2. - Same. In this case it is held that the plaintiff’s account of the way in which the accident occurred can not be said as a matter of law to be inherently improbable.</p> <p>3. -Dangerous Place — Complaint — Promise to Repair— Assumption of Risk. The plaintiff, a brakeman, was injured while throwing a switch by reason of conditions which made the place unsafe. Three weeks before the accident he complained to the division roadmaster that the conditions at the switch made it unsafe. The evidence was that the roadmaster said “He knew it was n’t a very nice place there and not any too safe and they were going to -fix it up when they could get to it and make a double track . . . and we would head in there and not have to make that switch.” Held, a sufficient complaint and promise to relieve plaintiff of the assumed, risk.</p> <p>4. - Same. Upon the facts stated in the preceding paragraph, held, that the division roadmaster stood in relation to the plaintiff as a yice principal of the defendant and that whether or not plaintiff was warranted in relying upon the promise was for the jury.</p> <p>5. - Same. The question whether or not under all the circumstances of this case the time which elapsed between the promise and the accident was a reasonable time for the performance of the promise was for the jury to determine.</p> <p>6. - Same. Where complaint is made and the servant is assured that it is the intention of the master to remove the danger, and, relying upon such assurance, the servant continues in the work, the fact that the master had other reasons than the safety of the servant for making the change, or that before the complaint he had intended to' make it, will not render the promise ineffectual.</p> <p>7. Verdict — Excessive Amount — Passion or Prejudice. The court refused to approve a verdict for $17,000 for the loss of a leg, and required the plaintiff to remit $4,000, rendering judgment for $13,000. Held, there being nothing to show that the ex- ■ cessive amount was caused by passion or prejudice of the jury, the judgment will not be set aside.</p>

<p>SYLLABUS BY THE COURT.</p> <p>VENDOR and Purchaser — Insufficient Abstract — Payment — Tender — Recovery. In an action by a vendee to recover the money advanced upon a contract to purchase land, where the delivery of an abstract showing a good title is to be made by the vendor simultaneously with a further payment by the vendee who is ready, able and willing at the proper time to make the payment and so informs the vendor, who does not furnish the abstract then or afterward, a formal production of the cash is not required, as a condition precedent to an action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporation — Stockholder—Conditional Subscription. A corporation organized ostensibly to sell insurance as agent for another company proceeded to sell stock in its own concern. It sold one hundred shares to M., taking his note due in six months and giving a written agreement that “his note given in payment for stock” should not be discounted before maturity, and that if at any time, for any reason, M. should desire to surrender the stock certificate he might do so and receive his note back together with any profit that might accrue in replacing such stock, also any money he might have paid on the note. He- receipted for the stock “purchased by me,” also receipted for a dividend “on Certificate No. 330, for 100 shares of the capital stock of the Company, owned by me August 15, 1907.” Held, that M. thereby became a stockholder and not a mere optional subscriber.</p> <p>2. Stock — Subscription■—Promissory Note — Collateral Agreement. The company sold its stock to many persons, though it had no substantial value, and being insolvent the company, upon the petition of certain shareholders, was put in charge of a receiver who succeeded in collecting a small sum netting about $1400, constituting the entire discoverable assets of the concern. The note was promptly negotiated and M. was compelled to pay it, the company-refusing to take back his stock or repay the amount of the note. M. intervened in the receivership suit, setting up his contract with the company and its breach and praying for an order allowing him the amount of the note out of the assets in the hands of the receiver or his just proportion thereof with other allowed claims against the company. Held, that as between M. and the other stockholders his contract with the company was one which equity will not enforce at their expense.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Injury to Stock — Private Railroad Crossing. Negligence is not imputable tó a railway company merely because it did not insist upon the performance of the landowner’s duty to keep a gate in a right-of-way fence at a private crossing closed, or else permanently close the gate, in consequence of which trespassing stock of a third person went through the open gate and upon the railway track, where they were killed by a passing train.</p>

<p>Appeal from Sedgwick district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>“Railroad” — “Railroad Company” — “Street Railway”■ — “Electric Street Railway” — Distinguished. The words '“railroad” and “railroad company” as used in section 1 of chapter 142 of the Laws of 1877 and in amended section 1 of chapter 183 of the Laws of 1887 (Gen. Stat. 1909, § 7027) do not mean “street railway,” “electric street railway,” nor an interurban company such as is described in the petition in this case.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. “Executor” or “Administrator” — When Words of Description Only. The general rule that where an action is brought against an executor or administrator to recover upon a claim for which he is or may be liable individually the use of the words “executor” or “administrator” in the pleadings will be regarded as words of description and rejected as • surplusage, can have no application to a case where it conclusively appears from other facts and circumstances that the action was brought against the person in his representative capacity alone.</p> <p>2. Nonresident Executor — Publication Service — Personal Judgment. Where an action is brought against a nonresident executor of a foreign estate to recover commissions claimed to be owing to the plaintiff for the sale of lands in Kansas belonging to such foreign estate, and the lands, in which the defendant has no interest other than as executor, are attached in the action and service obtained upon the foreign executor by publication, and he files an answer defending for the estate, the court acquires no jurisdiction to render a judgment against him individually, notwithstanding the allegations of the petition or the fact that he may have incurred a personal liability to the plaintiff on the claim sued upon.</p>

<p>SYLLABUS BY THE COUET.</p> <p>1. Appeal — Informal Undertaking — Amendment. An undertaking on appeal from proceedings to appropriate land for park purposes, running to the park board instead of the city as required by law, was not void but was informal, and it was proper to allow an amended undertaking to be filed after the period for taking an appeal had expired.</p> <p>2. PRIVATE Property — Public Use — Damages—Evidence—Bents. On the trial of an appeal taken in proceedings to appropriate private property for public use it is not error to admit evidence of the amount of rents received in good faith within a reasonable limit of time, not including anything fanciful or fictitious.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgment — Verdict—Conflicting Evidence. A judgment supported by a verdict returned by a jury after determining a disputed question of fact upon competent, material and conflicting evidence will not be disturbed.</p>

<p>Appeal from Reno district court.</p>

<p>Appeal from Montgomery district court.</p>

<p>Appeal from Cherokee district court.</p>

<p>syllabus by the court.</p> <p>1. Criminal Law — Witness—Cross-examination. Where in a criminal action a witness for the state has on direct examination testified to incriminating .facts, it is proper on cross-examination, for the purpose in good faith of testing his memory and accuracy, to inquire if he was not drunk at the time referred to.</p> <p>2. - Same. If however the court in such case sustains an objection to such cross-examination and tenders to .the defendant permission to recall the witness after the evidence for the state is closed, the error is not prejudicial.</p>

<p>Appeal from Dickinson district court.</p>

<p>Appeal from Trego district- court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Intoxicating Liquors — Common Nuisance — Hotel — Privilege of Guest. In this case it is held that a hotel porter who, for ■ a guest of the hotel* received and stored in a room of the house a barrel of bottled beer belonging to the guest, and who afterwards,. as required by the guest, iced the liquor and served it at the* guest’s room, where it was drunk by him and his friends, was guilty of maintaining a place where persons were permitted to resort for the purpose of drinking intoxicating liquor as a beverage, contrary to the provisions of section 1 of chapter 232 of the Laws of 1901.</p>

<p>OPINION. ON REHEARING.</p> <p>Appeal from Wyandotte district court, division No. 2.</p>

<p>Appeal from Wyandotte district court, division No. 2.</p>

<p>Appeal from Montgomery district court.</p>

<p>Appeal from Reno district court.</p>

<p>Appeal from Clark district court.</p>

<p>Appeal from Grant district court.</p>

<p>syllabus BY THE COURT.</p> <p>Broker — Agent of Borrower and Lender — Embezzlement — Equal Losers. Where .two persons are equally, or about equally, interested in the application of a sum of money in the possession of one of the two to the payment of certain mortgages, and neither ha® any right to the money except to have it so applied, and each party appoints or acquiesces in the appointment of the same person to receive the money and aPPU it to such payment and nothing is left to the discretion of such person; Held, (1) that the person so appointed is equally the agent of each of the parties to receive the money and make the payment; (2) if such agent accepts such appointment and receives the money and embezzles it and loss results thereby, such loss falls equally upon each of the parties interested in the payment which tlie agent failed to make.</p>

<p>Appeal from Crawford district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Redemption — Sale—Receiver—Income—Taxes. In view of the provision of the statute that after the sale of real estate on execution and before the expiration of the time allowed for redemption, a receiver may be appointed when necessary to prevent waste, but that the income, except what is necessary for that purpose, shall go to the defendant, the court is not authorized to direct the receiver to pay the taxes out of the rents collected for that period.</p> <p>2. - Same. Under the circumstances here presented it is held that no error is shown in allowing the compensation of the receiver to be paid out of the income of the property.</p>

<p>Appeal from Wyandotte court of common v pleas.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Partnership — Purchase and Sale of Land — Accounting. A man actively engaged in the general real estate business entered upon a joint venture with another in the purchase and sale of a tract of land, the profits or losses to be shared equally. The court found that they agreed that each would give special attention and his time to the selling of the land and would faithfully and diligently endeavor and use his best and special efforts to sell as soon as possible. Upon a suit for an accounting after a speedy and profitable sale of the land the defendant, without claiming extra compensation for his own services and without evidence of damage to the firm, was permitted to recover for the failure of the plaintiff to devote proper attention to the enterprise. Held, error.</p> <p>.2. - Same. In such an accounting the defendant was allowed credit for expenses, and the plaintiff asked to open up the case and establish an expense account also. Held, that his request should have been granted.</p>

<p>SYLLABUS BY THE COUET.</p> <p>1. Negligence — Master and Servant — Safe Place to Work. It is ttle duty of the master to use reasonable diligence to provide a safe place for his employees to work, and also to provide safe appliances for the work, and this duty is a continuing one which can not be so delegated as to relieve the master of . his responsibility.</p> <p>2. - Same. If the negligence of the master in failing to furnish a safe place to work or to provide such appliances contributes to the injury of an employee, it constitutes no defense to the master that the negligence of other employees also contributed to such injury, but he is liable therefor.</p> <p>3. Demurrer — Special Findings —• Motion for Judgment. No error was made in overruling the demurrer to appellee’s evidence nor in refusing to render judgment for appellant upon the special finding and against the general verdict in this case.</p>

<p>Appeal from Seward district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>'Title and Ownership — Tax Deed — Adverse Possession. The evidence examined, and it is 'held that the appellees and their grantors have been in adverse possession of the land in controversy for more than fifteen years.</p>

<p>Appeal from Cherokee district court.-</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. MORTGAGEES in Possession — Improvements — Liens — ■Priorities. While the power of the court in foreclosure cases to-create preferential liens upon the mortgaged property in favor of persons who have furnished labor or material for its betterment or preservation is ordinarily limited to the property of corporations or concerns in the business of which the public has an interest, nevertheless, where possession of mortgaged property of a corporation in a business in which the public has no interest is upon default surrendered by the mortgagor to the mortgagee, and the latter, while'in possession and before the final decree, employs' labor and purchases supplies which are used to improve and preserve the property and to increase-its value as security, it is proper for the court to make the claims for such labor and material liens paramount to the lien of the mortgage.</p> <p>2. Interpleas — Filed after Judgment — Judicial Discretion. It is within the sound discretion of the trial court to permit persons claiming an interest in mortgaged property to file inter-pleas after judgment of foreclosure has been entered and before the final disposition of the cause.</p>

<p>Appeal from Shawnee district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Appeal — Judgment—Amount—Jurisdiction. A judgment in an. action for the recovery of money only, involving $33.60, is-not one from which an appeal can be taken to this court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>New Trial — Judicial Discretion. An order granting a new trial will not be reversed unless it appears beyond reasonable doubt that such order was made because the trial court manifestly and. materially erred with respect to an unmixed question of law.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — ■Ejectment by Senior against Junior Tax-deed Holder —Limitation of Action. The plaintiff in ejectment claimed title under a tax deed valid on its face and recorded in October, 1892. No showing was made by either party relating to the occupancy of the premises for the succeeding twelve years. The defendant’s title rested on a voidable tax deed recorded on September 10, 1904, under which he took and continued to hold possession. The suit was commenced more than two years and less than five years after the defendant’s deed was recorded. Held, the plaintiff is to be regarded as the owner of the land and the defendant as a tax purchaser;- the two-year statute of limitation appearing in section 15 of the civil code (former section 16) relates to actions brought by a tax purchaser against the owner and does not apply, but the five-year limitation fixed by section 270 of the taxation act (former section 141) applies; and the suit is not one by a tax purchaser to build up title or to enlarge his rights but is one by the landowner to protect title already vested” against impairment by subsequent irregular tax proceedings.</p>

<p>Appeal from Linn district court.</p>

<p>Appeal from Wyandotte district court.</p>

<p>Appeal from Jackson district court.</p>

<p>Appeal from Allen district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Amended Pleading — Judicial Discretion. Where the specific . allegation of the authority of an agent had remained unchallenged from June 12, 1909, to September 10, 1910, it was well within the discretion of the court to refuse to allow the allegation to be put in issue by filing a verified denial.</p> <p>2. Compromise Verdict — Set Aside. Where there is no dispute concerning the amount which plaintiff should recover, if anything, a verdict for a less amount, rendered under such circumstances as to suggest that it was reached by a compromise among the jurors, should not be allowed to stand.</p>

<p>Appeal from Norton district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Landlord and Tenant — Dangerous Nuisance — Liability of Landlord. Where a nuisance dangerous to life is created by the owner on his premises, or through his gross negligence is suffered to remain there, he can not by leasing the property to another avoid his own liability to any person who is rightfully upon, the premises and who, without fault, is injured by reason of such nuisance; and this liability extends to a servant of the tenant, notwithstanding the tenant, by reason of his own fault or neglect or knowledge of the danger, could not have maintained an action against the owner for any injury suffered by himself.</p> <p>2. --— Leased Premises — Dangerous Nuisance — Notice to Landlord. In such a case it is for the jury to determine whether or not the owner knew of the dangerous condition of the premises at the time of the letting, or in time to have abated the ■ nuisance before the injury, occurred, dr should have known it by the exercise of ordinary care.</p>

<p>Appeal from Finney district court.</p>

<p>Appeal from Phillips district court.</p>

<p>Appeal from Neosho district' court.</p>

<p>Appeal from Riley district court.</p>

<p>Appeal from Greenwood district court.</p>

<p>Appeal from Sedgwick district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Accounting — Evidence—Counter Claim — Verdict—Error. In an action involving the settlement of mutual accounts, where an. entire counter claim is disallowed, although a large part of it was supported by uncontroverted competent evidence, and the plaintiff’s account was allowed for the full amount testified to by him less only a nominal- sum, although a substantial credit had been endorsed upon it, it is held that the jury must have misapprehended the evidence and that the court should proceed to state and settle the accounts after hearing any additional evidence deemed necessary concerning any item or items and render a proper judgment thereon.</p> <p>2. - Same. A jury is not required in the further proceedings directed in the above paragraph.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Riparian Rights — Bed of Arkansas River — Title—Navigation. The title to the bed of the Arkansas river within the boundaries of Kansas is in the state.</p>

<p>SYLLABUS BY -THE COURT.</p> <p>1. Intoxicating Liquors — Common Nuisance — In Dwelling— Evidence. A nuisance under the prohibitory law may be maintained in a dwelling house as well as in a place of business, but the mere possession of intoxicating liquors can not be relied upin as prima facie evidence of their being kept for unlawful use, where the place where they are kept is a dwelling house.</p> <p>2. Information — Verification—Personal Knowledge of Offense. A prosecuting witness who verifies positively an information under the prohibitory law need not have actual personal knowledge of the facts constituting the offense charged. It is sufficient if he have notice or knowledge from hearsay of the particular transaction complained of.</p>

<p>Appeal from Phillips district court.</p>

<p>Appeal from Sedgwick district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — County Road Fund — By Whom Expended. The fund derived from a levy on the taxable property of a county for the construction and maintenance of a county road, as provided for in section 33 of chapter 248 of the Laws of 1911, is to be expended by and under the direction of the county commissioners and the approval of the county engineer. The officers of a city within such county are not entitled to the possession of so much of the fund as is derived from the levy on property in the city nor have they any control of the expenditure of the fund.</p>

<p>Appeal from Bourbon district court.</p>

<p>Appeal from Sedgwick district court.</p>

<p>Appeal from Wyandotte district court, division No. 1.</p>

<p>Appeal from Sedgwick district court.</p>