ABSTRACT OF DECISIONS OF SUPREME COURT OF KANSAS.

July Term, 1878.

HON. ALBERT H. HORTON, Chief Justice.

66 D. M. VALENTINE, Associate Justices. 66 D. J. BREWER,

ACTION OF FORCIBLE DETAINER-SHERIFF'S DEED -CONFIRMATION-DFLIVERY-EVIDENCE.-1. In an action of forcible detainer, the plaintiff offered in evidence a sheriff's deed, from which he claimed title to the premises in dispute, dated July 13th, 1374, and the journal entry of the confirmation of the sheriff's sale of the date of July 16th, 1874, together with the testimony of the clerk of the district court, and the sheriff who executed the deed, that the deed was not executed till after the confirmation of the sheriff's sale, and thereupon the defendant moved the court to strike out the sheriff's deed, for the reason that the records of the court introduced in evidence showed that there never was any confirmation of the sheriff's sale prior to the date of the execution of the deed. The court sustained the motion and a demurrer to the evidence of the plaintiff: Held, error, as the evidence, under proper instructions, should have been submitted to the jury. 2. Ordinarily the date of a deed, (admitted to have been delivered) is prima facie evidence of the time of its delivery, but this presumption may be rebutted by testimony, and where a sheriff's deed is dated three days prior to the date of confirmation of the sale therein recited, but is not delivered till after such confirmation, the deed not void. Opinion by HORTON, C. J. Reversed. All the justices concurring.-Cain v. Robinson.

TAX DEED-DEFECTIVE RECORD OF TAX PROCEEDINGS-MANDAMUS.-1. When a tax deed has been issued, which is void upon its face as showing the county to have been a competitive bidder, and the purchaser at the tax sale, the party entitled may, if the sale was in fact valid, and that fact is apparent from the record of tax sales and the sale certificate, compel by mandamus the issue of a valid tax deed. Clipplinger v. Fuller, 10 Kan. 377. 2. Before the mandamus will lie, the clerk must, after demand therefor, have refused to execute such deed. 3. Where the record of tax sales and the sale certificate show upon their face a sale not made in accordance with law, the clerk is concluded by the recitals therein, and is not at liberty to take parol testimony as to the actual facts of the sale, and such record and sale certificate must be corrected by appropriate proceedings before mandamus will lie to compel him to issue a valid tax deed. Opinion by BREWER, J. All the justices concurring.—Bryson v. Spaulding.

BANKS-CORPORATION DE FACTO-EVIDENCE VARIANCE-DISCOUNTING-POWER TO PURCHASE NOTES.-1. Article 13, of the State Constitution, entitled "Banks and Currency," applies to banks of issue and does not prohibit the legislature from creating banks of deposit and discount. 2. Where there is a general law under which an incorporation can be had, an incorporation attempted in good faith to be made thereunder by the requisite number of corporators, and where, in reliance upon such supposed perfect compliance with the statute in all the steps prescribed for the organization, there is an actual, open and notorious exercise for a series of years, unchallenged by the state, of the powers of a corporation, public policy will not permit one who has frequently dealt with it as a corporation when sued upon a note purchased and held by such supposed corporation, and which, as

a corporation, it might rightfully purchase and hold, to defeat the action by showing a technical omission in some of the proceedings prescribed for the organization of incorporations. The corpor ation is as to him one de facto, and whether it be one also de jure is a question not open for inquiry in that collateral manner. 3. Quere: Was not section 30 of the corporation law intended as a substitute for section 6, so far as the incorporation of savings associations is concerned? 4. A petition was filed in the name of the "Capitol Bank of Topeka." The certificate of incorporation offered in evidence showed that the name selected for the association was the 66 Capitol Bank," and that its prescribed place of business was Topeka. Held, that the variance was too slight to be regarded as a defense to the action and any needed amendment will be considered made, 5. Under the general power of discounting negotiable notes, granted by section 127 of the corporation law to savings associations, such institutions have the power to purchase such notes. Opinion by BREWER, J. Affirmed. All the justices concurring.-Pape v. Capitol Bank.

DEPOSITION-PRACTICE-IMPEACHMENT OF WITNESS-INSTRUCTIONS-POSSESSION OF REAL ESTATE -CONSTRUCTIVE NOTICE OF TITLE.-1. Where a plaintiff makes a general objection and exception to a deposition to the effect that it is incompetent and irrelevant, and a large portion of the testimony is clearly admissible against the party excepting, and the portion of the deposition which is incompetent only effects a co-plaintiff, who takes no exception, and the deposition is admitted in evidence and read to the jury: Held: no cause for reversing the judgment obtained in the action. 2. Where the deposition of a witness has been read in evidence, and the opposing party produces another and a conflicting deposition of the same witness, taken in another action between the same parties, of a prior date, and offers to introduce the same to impeach the witness, and the court of its own motion excludes the testimony: Held, not error, as the witness sought to be impeached, and the party to be affected thereby, are entitled of right to any explanation which the witness can give of the statements imputed to him; and, therefore, the attention of the witness must be first called, on cross-examination, to such prior contradictory statements. 3. Where a party requests the court to instruct the jury that if a particular witness (naming him) has knowingly and willfully testified falsly in regard to any material fact in the case, they must entirely disregard the testimony of the witness, and the court modifies the instruction to include all the witnesses, and then gives the same, and thereafter, the party asking the instructions alleges the court committed error in giving instructions thus modified: Held, that, as the instruction is virtually in accord with the request of the party alleging error, the giving of the same is not sufficient reason to reverse the judgment. K. P. R. W. Co. v. Cutter, 19 Kan. 83. 4. Where a defendant purchased real estate July 4th, 1859, and obtained a deed of that date, and thereafter has open, notorious and exclusive possession of the premises, but fails to record his deed till August 20th, 1859, a plaintiff, buying the property August 16, 1859, and recording his deed the same day, has notice of the title and interest of the defendant to the property of which he is in full possession at the date of plaintiff's purchase, and, Held, that the plaintiff, by his subsequent purchase, obtains no title which he can assert against the defendant in possession of the premises. Johnson v. Clark, 18 Kan. 157; School District No. 82 v. Taylor, 18 Kan. 287. Opinion by HORTON, C. J. Affirmed. All the justices concurring.-Greer v. Higgins.

REPLEVIN-LAND CONTRACT-A HOUSE A CHAT

TEL.-1. Where A enters into a written contract to sell a certain piece of land to C, and this contract contemplates that C shall take possession of the land, build a residence thereon, and make other improvements thereon, and that all such improvements shall remain on the land until all the terms and conditions of the contract shall be complied with and fulfilled, and that if all such terms or conditions should be fulfilled, then that the contract should be at an end, and that all the improvements made on the land should remain thereon and be the property of the realty; and C assigns said contract and all his rights thereunder to D, and D builds a dwelling house on said land and resides therein, and said dwelling house is a one-story frame building, about 16 by 24 feet in size, and is set upon ten blocks of wood, the highest one being about one foot, so that said house almost touches the ground on one side, and is about one foot from the ground on the other side, and afterwards D removes said house into the highway adjoining the land, and then assigns said contract and all his right thereunder to R, and at the same time sells said house to B for $200, to be paid in one year, and B then removes said house to his own land, and places it on permanent stone foundation, intending to make the house a part of his real estate, and to make it his own. The terms and conditions of said contract were not fulfilled, but were violated before the removal of said house from the land of A, and also by such removal. Held, that said house, while it was on the land of A, was real estate and belonged to A, subject to said contract; that when it was removed into the highway it became personal property of A and belonged absolutely to him; and that after it was removed from the highway and placed upon a permanent stone foundation on B's land, it still remained the personal property of A, and did not become a part of the real estate of B. 2. When a house, which is a chattel and belongs to A, is wrongfully removed on to a permanent stone foundation on the land of B, B intending at the time to convert the house into real estate and to make it his own, and the house is one that can easily be removed from the land of B, without any substantial injury to either the house or the land: Held, that such house does not thereby become a part of the realty belonging to B, but remains merely a chattel belonging to A, and that A may recover the same in an action of replevin. Opinion by VALENTINE, J. Reversed. All the justices concurring.-C. B. U. P. R. R. v. Fritz.

HOMESTEAD-DISTRIBUTION.-1. Where V. and wife occupied certain real estate as a homestead at the time of V.'s death, and the children of V. were all of age, and none of them occupied the residence of the intestate at his death, nor thereafter, but the widow continued to occupy it as her home after the decease of her husband: Held, that the premises are the absolute property of the widow and children, and the children, being all of age, are entitled to have the premises partitioned, onehalf in value to go to the widow, and the other onehalf in value to go to the children. If the homestead is not susceptible of division, the same may be sold and the proceeds divided. Opinion by HORTON, C. J. Reversed. All the justices concurring.-Vandweir v. Vndweir

CORPORATION DE FACTO-STOCK LAW OF 1874DEMAND.-1. A corporation which has the possession, control and management, and is engaged in the business of running and operating a railroad in this state, is a "railway corporation" within chapter 94 of the laws of 1874, although it is so doing in the execution and discharge of a trust for the benefit of the bond and stockholders of the corporation which built and owned the road, and it is not itself the absolute owner thereof. 2. A demand under that act is suffi

cient, if made upon one who is the "stock and claim adjuster, and authorized to settle for stock killed." Opinion by BREWER, J. Affirmed. All the justices concurring.-Union Trust Co. v. Kendall.

MANDAMUS-JUDICIAL PROCEEDINGS.-1. An information was filed in the Probate Court alleging insanity of a certain person. Upon this an order was entered in which the court, after reciting the filing of the information, states that it appears from its own records that prior proceedings had been had by which said person had once been adjudged insane, and still remained under said adjudication, and therefore the inquiry prayed for is refused. Held, that whether the decision of the Probate Court was right or wrong was a question which could not be enquired into on mandamus, and that the probate court having acted in the premises and refused the application, could not be compelled by mandamus to reverse its decision and institute the inquiry prayed for. Opinion by BREWER, J. Judgment for respondent. All the justices concurring.-State v. Norton.

LEGISLATURE - QUALIFICATION OF MEMBERS — RIGHT OF REMOVAL OF MEMBERS.-1. A member of the legislature can not be removed from office under chapter 122 of the laws of 1875. 2. The exclusive power to judge of the qualifications of its own members is vested in each house, and can not by its own consent, or by legislative action, be vested in any other tribunal or officer. 3. This power is not exhausted by the admission of a member to his seat, but continues during the entire term of office. Opinion by BREWER, J. Judgment for defendant. All the justices concurring. -State v. Gilmore.

FRAUDULENT CONVEYANCE-POWER AND RIGHTS OF ADMINISTRATORS.-1. When a person conveys personal property with the intention of defrauding his creditors, the conveyance is good and binding as against him and his representatives, including his agents, executors, administrators and heirs, and is void only as against his creditors whom he intended to defraud. 2. Where a person loaning money, took the note and mortgage given for the money, in his son's name, and gave them to his son for the purpose of defrauding his creditors: Held, that the administrator for such person can not, after his death, maintain an action against the son to recover said note and mortgage and to restrain the son from collecting the same, even though the estate may be insolvent; that only the creditors of the deceased can mantain an action against the son to deprive him of the benefit of said note and mortgage, and they can do it only for the purpose of subjecting the same to the payment of their claims against the deceased. Opinion by VALENTINE, J. Affirmed. All the justices concurring.- Loomis v. Crawford.

QUERIES AND ANSWERS.

QUERIES.

60. IN THE BLANK FORMS OF PROMISSORY NOTES, the following clauses frequently occur: "Waiving all right to exemption and homestead laws"; "Without exemption from appraisement, valuation or homestead laws." Do the above create a legal waiver? Y. De Soto, Mo.

[This question is governed to a great extent by the language of the homestead laws themselves. Our correspondent is referred to Mr. Thompson's work on "Homesteads and Exemptions."-ED. CENT. L. J.]

ANSWERS.

No. 54.

[7 Cent. L. J. 179.]

B's remedy is properly against C, by bill to foreclose, in which all the grantors and grantees should be made parties defendant. B, on filing his bill to foreclose, first discovered that, by mutual mistake of the parties, the description in the mortgage did not embrace the land or lot intended to be mortgaged, and which neither A nor B owned, or claimed to own. In the case of Davenport v. Sovil, 6 Ohio St. 459, it was held that parol proof is competent to establish such mistake, and that the mortgage may be reformed and enforced in the same proceeding. Such, also, are the opinions of those eminent chancellors, Kent and Story, 2 Johns., Ch. 585; 4 Ib. 44, Story's Equity Juris., sec. 154. This decision is approved and followed in the case of Goshorn v. Purcell, 11 Ohio St. 641, in which the court say: "The court has the same power to correct the mistake, whether the defect is in the execution or in the body of the instrument-whether the mistake is that of the parties or of an officer in taking or certifying the acknowledgment." 11 Ohio St. 641. The circuit court erred in refusing to reform the mortgage executed by C to B. F first discovered the error when he sold and conveyed to G, but concealed the fact and conveyed lot 20, to which he had no legal title, instead of instituting proceedings to reform his title. I, having derived title to lot 20 through F, could only acquire such title as F possessed; and if he suffered loss by the reforming of B's mortgage, his remedy would be against F for a breach of covenant in conveying lands to which he held no title. D.

BOOK NOTICE.

THE CODE OF CIVIL PROCEDURE of the State of Iowa, with references to the decisions of the Supreme Court and prior Statutes. Compiled by J. S. STACY, Attorney at law. Des Moines, Ia. Mills & Co., 1878. This is a compilation which will prove of great value to the profession in Iowa. It gives, in a compact form, the statutes relating to procedure in Iowa, as adopted by the fourteenth general assembly, and as amended by the fifteenth, sixteenth and seventeenth general assemblies, with references under each section to prior statutes, and the decisions of the supreme court made thereunder. Two editions of the work have been issued, one in the usual law-book size, with a wide margin for annotations, and the other, the one before us, in a pocket form similar to Desty's Federal Procedure, so well known to the profession. The arrangement is excellent, and the printing and binding are of the best kind. The index is more thorough than usual in works of this kind, and deserves particular mention.

NOTES.

SIDNEY BREESE.

First Nature gave to him a dowery grand-
Health, strength and grace, of body, mind and soul;
Then Culture came, and with most cunning hand,
Polished and wrought to one harmonious whole.
Mounted, he swept Life's course from goal to goal;
A Counselor, replete with legal lore-

A Soldier, taking rank on Honor's roll;
A Statesman, searching far his country o'er,
That freedom, health and peace obtain from shore to
shore.

A Scholar, garnering fruit from every field-
A Patron, seeking modest worth to praise;

A Justice, holding balance, sword and shield, All wrongs to heal, the prostrate poor to raise, Bating, or giving, as the Right displays; Thus filling full Heaven's generous span of years, "Tis ours to crown with honorable bays; 'Tis ours to mingle our memorial tears, As he ascends from earth to nobler, happier, spheres. [EDMUND S. HOLBROOK, of the Chicago Bar.

CHIEF JUSTICE HORTON, of Kansas, has been renominated for another term.-J. G. Dickerson, one of the associate justices of the Supreme Court of Maine, died at Belfast in that state, on the 1st inst., in his sixtyfifth year.-T. Bradford Dwight died at Andover, Mass., on the 1st inst. He was born at Portland, Me., in 1837, and after graduating at Yale College was admitted to the bar of Philadelphia in 1862. He was for a short time a judge of the Orphans Court of Philadelphia-It is scarcely necessary to refer at length to the event of the week in this city, viz: the opening of the St. Louis Fair and Exposition. This is the eighteenth annual fair, and promises, both in the number of entries and the variety of attractions, to eclipse all former ones. It will last until October 12th. In addition to the exposition proper, each week is given up to competitions of different kinds, which will be in themselves more than admirably interesting. The first week will be devoted to contests between the military companies of this and other cities. The second is the muscians' week. The third week will be taken up with trials of agricultural implements and machinery; the fourth with athletic sports and contests, and from the 7th of October to the close of the fair the exhibition of live stock will take place. We would remind the profession that the exposition opens before the lawyers' vacation ends, and we have no doubt that many of our subscribers in this and other states will take advantage of the occasion to see a sight which only one city in the Union can present.-The London Times contains the following with respect to the Congress of the International Association for the Reform and Codification of the International Law, at Frankfort-on-theMain. The congress has adopted a resolution, proposed by Herr Marcus, of Bremen, approving the decision taken at Berne establishing a uniform railway goods tariff. Mr. Freeland, who was supported by Mr. Peabody of the United States, spoke, amid general assent, in terms of approval of the new relations promoted in London by the Chinese and Japanese Ambassadors, both in the domain of political economy and international law. The congress unanimously adopted a resolution proposed by Sir Travers Twiss supported by Count Sparre of Sweden, to the effect that the Suez Canal and similar international works should be declared free in case of war, and not be subject to any restrictive measures on the part of belligerents. Newgate Prison has been condemned but it will not fall alone. The old Bailey is to be removed and a new block of buidings will take its place. Within the dock to be removed have stood Jack Sheppard, Jonathan Wild and the poet Savage, whose biography was one of the best that Dr. Johnson wrote. It was in the Old Bailey that the regicides had their trial, but that portion of the original structure has disappeared. It is many and curious forms of law that the Old Bailey has seen come and go. "The hangman no longer," says the Echo, "sits down by the side of a prisoner halter in hand, as he did in 1669;" and the awful warrants are no longer issued in shoals, as formerly, or in the "good old days." The Old Bailey Chronicles, however, are enough to make the mind of man shudder over the fallibility of verdicts and the cruelty of law. Is it credible that, when a new set of courts have been provided, a new spirit will be prepared to enter them?

tion is to commit a felony, and such demand shall be deemed an assault with an intent to commit a felony; and the person or persons so offending shall, upon conviction, be punished by imprisonment in the penitentiary not less than ten years nor more than twenty years." In Walpole v. State, decided at the last term of the supreme court of that state, it was held that the prisoner, who had gone upon the premises in a disguise for the purpose of stealing chickens, was properly convicted under this act SNEED, J., said: "It is apparent that the object of this statute was to repress a great evil which arose in this country after the war, and which grew to be an offense of frequent occurrence-that of evil-minded and mischievous persons disguising themselves to terrify or to wrong those who happened to be the object of their wrath or resentment. This was a kind of mob law, enforced sometimes by a multitude of vagabonds, which grew to be a great terror to the people, and placed human life and property at the mercy of bad men whose crimes could scarcely ever be punished, because of the disguises under which they were perpetrated. There were laws already sufficiently rigorous and severe for the due punishment of any and all offenses which might be committed without disguise, and this act of 1869-70 was intended to strike at offenses committed in masquerade; to make these more highly penal, because of the inherent difficulty of identifying offenders, who wore masks in order to secure immunity from detection. The mere entry in disguise upon the premises of another is made prima facie evidence of an intention to commit a felony, and this of itself is a substantive offense from which there is no escape, except by proof that there was in fact no purpose to commit crime. In this case, we have not only the prima facie case, but the conclusive case of an intent to commit a felony by the confession of the prisoner." See, also, State v. Box, (Jackson, 1875), not yet reported, where the same court said: "We are of opinion that the statute makes it a felony to enter upon the premises of another disguised or in mask; and to demand in masks or disguise entrance or admission into the house of another is likewise a felony; and to demand entrance into his inclosure, masked or disguised, is a felony; and the person or persons doing either of said acts subjects himself to the penalty prescribed in

THE case of Mott v. Consumers Ice Co., recently decided by the New York Court of Ap peals, is a leading case on a question of law lately much discussed in these columns, viz, the liability of a master for the willful acts of his servant. See 6 Cent. L. J. 281, 412, 483; 7 Cent. L. J. 82. While the plaintiff was driving along a street in his carriage, one of the company's ice wagons was driven against his, throwing him out and severely injuring him. The court below dismissed the complaint, on the ground that the driver's act was willful, and the company was therefore not liable. On appeal, this judgment is reversed. The rule recognized in all the recent cases, and which does not materially conflict with any of the older decisions, although it may qualify some of the intimations and casual expressions or illustrations of the judges is, that for the acts of the servant within the general scope of his employment, while engaged in his master's business, and done with a view to the furtherance of that business and the master's interest, the master will be responsible whether the act be done negligently, wantonly, or even willfully. In general terms, if the servant misconducts himself in the course of his employment, his acts are the acts of the master, who must answer for them. There are intimations in several cases of authority that for the willful acts of the servant the master is not responsible. McManus v. Crickett, 1 East., 106; Hibbard v. N. Y. & E. R. R. Co., 15 N. Y., 455; Wright v. Wilcox, 19 Wend., 343. But these intimations are subject to the material qualification that the acts designated "willful" are not done in the course of the service, and were not such as the servant intended and believed to be for the interest of the master. In such case the master would not be excused from liability by reason of the quality of the act. Limpus v. London Gen. Omnibus Co. 1 H. & C., 526; Seymour v. Greenwood, 6 H. & C., 359, affirmed 7 Id., 355; Shea v. Sixth Avenue R. R. Co., 62 N. Y., 180; Jackson v. Second Avenue R. R.