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THE ADVOCATE AND NEWS. 1897. (Published December 15, 181)7.) Supremo Court Syllabi. No. 10872. The State of Kansas vs. William Shlve and B. Underwood. Error from Reno County. REVERSED. Syllabus. By thu Court. Doster, C. J. Where two persons jointly accused of it crime defend upon the ground of absence iit the time of Uh commission, but testi mony la offered tending to prove their pres ence at a point a few miles from tho scene of Its occurrence a few hours previous to its commission. It Is error to receive In evi dence a mailed envelope addressed to one of them and having upon It the return card of the other, where its genuineness as sent by one and received by the other Is not shown, nor the connection of the receiver with It shown by proof of Its pre vious possession by him, or inferable from any other fact than his name and ad dress written thereon. All the Justices concurring. A true cony. Attest: JNO. MARTIN. ISeal.J Clerk Supreme Court. No. 10321. Jessie Davis vs. George O. Threlkeld, et al. Error from Wyandotte County. AFFIRMED. Syllabus. rty the Court. Doster, C. J. 1. The tunning of the statute of limita tions in favor of persons in adverse pos session of land, is not suspended by the death of the opposing claimant and the descent of his cause of action for the re covery of the land to his minor heirs. 2. A general verdict of a jury In favor of a person claiming land by ndverse pos session, made in .disregard of an erro neous instruction as to the time when the statute of limitations began to run, does not constitute reversible error upon the theory that such instruction, though erroneous, is the law of the case to the iury, where all the facts In regard to possession and other matters material to the rights of the parties were either ad mitted, proved by uncontradicted docu mentary evidence, or were specially found by the Jury, and where judgment cannot be entered according to the right of the case upon the fact so admitted, proved or found, without prejudice from the er roneous Instruction. All the Justices concurring. A true copy. Attest: JNO. MARTIN. Seal. 1 Clerk Supreme Court. No. 102M. R. B. Ward vs. Edward Ryba. Error from Republic County. REVERSED. Syllabus. By the Court. Doster, C. J. An agent who takes in his own name a bill of sale of personal property in pay ment of a debt due to his principal and who upon taking possession of the prop erty for his principal is dispossessed of it by third parties, cannot maintain re plevin in his own name for its re-possession under a general allegation of owner ship in himself, without stating the facts in relation to his special Interest and right of possession. All the Justices concurring. A true copy. Attest: JNO. MARTIN. Seal. Clerk Supreme Court. No. 1021.'!. Charles Eaton Keith vs. William Eaton, et al. Error from Johnson County. AFFIRMED. " Syllabus. By the Court. Doster, C. J. 1. The Interpretation of a foreign will as to the meaning of words used in it is to be ascertained by the law of the testa tor's domicile, unless the circumstances surrounding the testator or the language of the instcument as a whole requires a different Interpretation, or unless an in terpretation by the law of the testator's domicile will contravene the law of the State in which it is offered for record and probate. 2. The statutes of Missouri disables an illegitimate child from Inheriting from the father, except under conditions of Inter marriage by the parents and recognition of the child by the father, but the statute of this State invests an Illegitimate with the quality of inheritance from the father. If the child has been recognized by him as his: Held, that where a will executed in Missouri, by a person domi ciled there, devises a life estate in lands In that and three other States. Including Kansas, to the testator's son, with re mainder "to the heirs of his. the son's, body," the testator will be presumed to have used the words "heirs of his body" in accordance with the laws of his dom icile, and hence that an illegitimate child of his son. born" after the testator's death, though duly recognized by the father in compliance with the laws of this State. Is not entitled under the will to take the lands In this State along with the legiti mate lineal descendants of the Bon. All the Justices concurring. A true copy. Attest. JNO. MARTIN. ISeal. - Clerk Supremo Court. No. 1022S. J. W. Relnhart. et al.. as receivers of the A., T. & S. F. R. R. Co., vs. Rachel V. Sutton. Error front Lyon County. AFFIRMED. Syllabus. By tho Court. Doster. C. J. 1. Under sections two and threw of (he act of Congress of August 13, 1888, amend atory of the Federal Judiciary act. re ceivers over property appointed by the United States' courts are required to man age or operate the trust property accord ing to the laws of the State in which it is situated, and they may be sued in re spect to Its management or operation in tho courts of such State, without the pre vious leave of tho court appointing them; and in such cases a judgment rendered In the State court is conclusive upon the Federal court as to the existence Hiid tho amount of the plaintiff's claim; but tho time and manner of its payment are to be controlled by the court under whose orders the receiver acts. 2? A railway company has no right to dig a ditch on its right of way for the drainage of surface water bo near to tho line of a street In a town as to encroach upon the street by the erosion of the soil of Its banks, and if it does so the owner of lots abutting upon the opposite side of the street, who keeps hotel upon them, and whose use of them for such purpose is materially interfered with by the wid ening ot the ditch into the street, may maintain an action for the abatement of the ditch as a private nuisance, and for damages caused l)y it. All the Justices concurring. A true copy. Attest: JNO. MARTIN. ISeal. Clerk Supreme Court. release or writing of redemption waB given by htm. About sixteen years afterward he was informed by II. that a tax deed had been made to him, and upon the re quest of II., and believing that It would be an act of Justice to tho real owner, he made a quit-claim deed to II.. telling him at the same time that he had no In terest In the land: Held, that K. had no title or interest to convey, and that H. acquired none through the quit-claim deed. All the Justices concurring. A true copy. Attest: JNO. MARTIN. (Seal.) Clerk Supreme Court. No. HK523. The Atchison. Toneka & Santa Fu Rall- road Company vs. M. 11. Osbum. Error from Harper County. REVERSED. Syllabus. By the Court. Johnston, J. 1. In showing the quantity and value of wheat alleged to have been destroyed by tire, a witness should be confined to his individual knowledge and Judgment, and not permitted to give the estimate or con clusion of another who also made an ex amination as to quantity and value. 2. When It Is claimed that a certain en gine, in charge of a particular englneer.was defective and, was so negligently man aged as to unnecessarily throw out tire, from which damage resulted, testimony of tho condition of another engine or of tho careless conduct of other engineers is ordinarily not admlssable. 3. The declarations of the section fore man and depot agent of the railroad com pany, made after the tire occurred, in re garjj to the condition and management of the engine, and which had no connec tion with the business committed to them, arc mere hearsay. All the Justices concurring. A true copy. Attest: JNO. MARTIN. Seal. Clerk Supremo Court. No. 10911. In the Matter of the Petition of Frank Palmeter for the Writ of Habeas Corpus. ORIGINAL PROCEEDING IN HABEAS CORPUS. Petitioner discharged. Syllabus. By the Court. Johnston, J. 1. The power of a Police Judge to im prison for contempt cannot- rest on a mere implication or Inference, but must be clearly expressed in the statute. 2. The general welfare clause, which au thorizes a City Council to enact such ordinances as may be deemed expedient for maintaining the peace, good govern ment and welfare of the city and its trade and commerce, does not authorize the City Council to confer power upon the Police Judge to adjudge a person guilty of contempt and to Imprison him therefor. All the Justices concurring. A true copy. Attest: JNO. MARTIN. Seal. Crk Supreme Court. No. 10M1. The State of Kansas vs. A. D. Hubbard. Error from Shawnee County. REVERSED. Sjllabus. By the Court. Johnston, J. Receivers are not agents within the meaning of section 88 of the crimes act, and are not subject to prosecution under the latter part of that section, which pro vides In effect that if any agent shall neglect or refuse to deliver to Ills em ployer on demand money or property which comes Into his possession by virtue of such employment, office or trust after deducting lawful fees or charges, unless the same has been- lost by means beyond his control, or his employers have per mitted him to use the same, shall upon conviction be punished as for embezzle ment. Doster, C. J., concurring. Allen, J., concurring specially. Johnston, J., dissenting. A true copy. Attest: JNO. MARTIN, LSeal.l Clerk Supreme Court. No. lOSTf,. F. G. Hentlg vs. II. Plpher, et al. Error from the Court of Appeals, North ern Department. AFFIRMED. Syllabus. By the Court. Johnston, J. 1. A person who holds possession of real estate under a claim of ownership is en tilled to recover the same as against one who has no right or title to the same. 2. Where a leasehold interest In land Is sold at Judicial sale the purchaser ac quires no greater right than the tenant held, and, like the tenant, he will not hn permitted to dispute the title of the landlord under whom he holds. 3. K. purchased land at a tax sale and a deed thereto was issued to him without his knowledge. A few months afterward he accepted the full amount of his claim tor taxes from the owner, and a written No. 10207. Mary W. Johnson va. C. J. Jones, et al. Error from Finney County. REVERSED. Syllabus. By the Court. Johnston, J. 1. A Judgment by default based upon personal service of summons on one of the defendants Is as conclusive against such defendant upon every matter admitted by the default as any other kind of Judgment. 2. Such a Judgment having been duly rendered and entered of record, and the term al which it was rendered having passed, can only be vacated or set aside at the times and In the manner provided by law. H. So long us the judgmejit stands the defendant has no right to tile answers raising issues finally determined by the Judgment, und tho court has no power to re-try them. All the Justices concurring. A true copy. Attest: JNO. MARTIN, Seal. Clerk Supreme Court. No. 90J4. Joel B. Mayes, as principal Chief of the Cherokee Nation, etc., vs. The Cherokee Strip Live Stock Associa tion, et al. Error from Sumner County. AFFIRMED. Syllabus. By the Court. Johnston, J. A lease of lands in the Cherokee Outlet was made bv the Cherokee Nation to the defendants In violation of section 211ti of the Revised Statutes of the United States. Possession was taken under the lease, and the defendants falling to pay a part of the stipulated rent, an action was brought In behalf of the Cherokee Nation to re cover the same: Held, that as the lease was prohibited by law and Illegal, no ac tion can be maintained thereon. Doster, C. J., concurring. Allen. J., dissenting. A true copy. Attest: JNO. MARTIN. ISeal. Clerk Supremo Court. No. 92. The State of Kansas, ex rel., vs. E. G. Barton, as County Clerk of Gray county, Kansas, et al. Error from Gray County. REVERSED. Syllabus. By the Court. Johnston, J. 1. In a mandamus proceeding to con test a county seat election brought after the election la held and the result declared, every matter affecting the validity of the election. Including the sufficiency of the petition on which the election was or dered, may be investigated and determined. 2. Electors of the county who partici pated In the election are not estopped from instituting the statutory contest ques tioning the validity of the election. All the Justices concurring. Attest: COPy" JNO. MARTIN. (Seal. Clerk Supreme Court. No. ura. The State of Kansas vs. George II. Thomas. Appeal from Anderson County. AFFIRMED. Syllabus. By tluo Court. Allen. J. 1. The testimony examined and held suf ficient to sustain a conviction of rape on a female under the ago of 18 year.s 2. In such case tho venue as well us the criminal uct may be established by circumstantial evidence. ;i. Flight by a person accused of a crime, though not of Itself sufllclent to support a conviction. Is a circumstance that may bo shown against him and given such weight, as tho Jury deem it entitled to, and it Is not error for the court In the instructions to the Jury to mention the. fact that evidence tending to prove flight has been offered, and may be considered by them as a circumstance bearing on the guilt of the accused, with all the other evidence In tho case. All tho Justices concurring. A true copy. Attest: JNO. MARTIN. ISeal. Clerk Supreme Court. No. 10881. The First National Bank of Topeka vs. David H. Hellebower as State Treasurer. Original Proceeding In Mandamus. JUDGMENT FOR DEFENDANT. Syllabus. By the Court. Allen, The State Treasurer will not be con pelled by mandamus to register and pay orders drawn upon the permanent school fund by the State School fund Commis sioners to pay for bonds purchased by ihem, where It appears that the price agreed to bV paid is more than the ac tual market price thereof at the time of the purchase, even though the excess above the market price be so small that the purchase cannot be declared nn Im provident one. All the Justices concurring. A true copy. Attest: JNO. MARTIN. (Seal.) Clerk Supreme Court. No. 10857. The Marysvllle Investment Company vs. Wllhelm Holle, et al. Error from Court of Appeals, Northern Department, Central Division, Syllabus. REVERSED. By the Court. Allen, J. 1. The townslte of Palmetto was entered by the Probate Judge of Marshall county for the benefit of the occupants thereof, under tho act of Congress of May 2.1, JS44. lie thereafter conveyed the property to M. and eleven other parties mtmed as mem bers of the Palmetto Town Company, which was a corporation. M. and several of the others conveyed their Interests to the plaintiff which brought this suit to re cover certain lots occupied by the de fendants. Tho defendants claimed by vir tue of adverse possession under a void tax deed for a period of about ten years: Held: First That the deed from the Probate Judge to M. and the others con veyed a valid title as against tho defend ants. , Second That uncertainty as to the re spective rights of the Palmetto Town , Company and tho persons named In the deed from the Probate Judge, neither en larged or diminished the rights of the de fendants under their tax title. Third That mere failure to nssert his title for a long period of time will not estop the owner from maintaining an ac tion against one claiming under a void tax deed, whose possession has never ripened Into a title by prescription, and in not protected by any statute of limita tions. Fourth One who claims under a tax title is chargeable with notice of the exist ence of the original patent title as nn ad verso claim, and it is important under the facts in a case like this whether he Is rightly or wrongly informed as to who thf: holder of that title may be. Fifth Estoppel by conduct arises only where the person claiming the estoppel Is influenced in some degree by the con duct set up as constituting the estoppel, and the failure of the owner of town lots to pay the taxes on them does not operate by way of estoppel to strengthen or vali date a void tax deed. All the Justices concurring. A true copy. . , . Attest: JNO. MARTIN. . Seal. Clerk Supremo Court. No. 10.",20. John Schrlmpcher, et al., vs. John 8. Stockton, et al. Error from the Court of Common Pleas of Wyandotte County. Syllabus. AFFIRMED. By the Court. Allen, J. After restrictions on the alienation of lands patented to Incompetent Wyandotte Indians were removed by the treaty of 1M7, title thereto might be gained by oc cupancy under claim of ownershop; and where the defendants were in the actual (Continued on page 16.)