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STATE JOTJRNAI FRIDAY EVENING-. JUNE. 15. 1894.
PubUshed June 13, 1894. Supreme Court Syllabi 6959. E. A. Barber ys. C. Van Horn. Error from Allen County. AFFIRMED. Br thi Court. Syllabus. Hobton. C. J 1. Every partner is a general agent of the firm to carry oat and transact its business in the usaal and ordinary way. a. It is the general principle relating to commercial or trade partnerships that each partner Is the law! al agent of the part nership in all matters within the apparent cope of the business. Deitz ts. Regnier, 27 Kas., 94. 3. The knowledge of one partner concern ing partnership matters is constructively the knowledge of all the members of the partner ship, although the other members are act ually Ignorant thereof. 4. Where a private banking firm obtains money for the purpose of carrying on ita usual and ordinary business from another person with the knowledge of all the members of the firm, and execute a firm note therefor, and afterward one of the partners of the firm with draws from the assets of the firm sufficient moneys to pay the note and falsely informs the other members of the firm that the note is paid, and such note is shown by the books of the firm to be catisfied and canceled, bnt is not in fact paid oil, and such partner, without the knowledge of the ether members of the firm, continues to pay interest upon the note, and when due, renews the same in the name of the firm, the new note, if the payee has no notice to the contrary, is binding upon the firm as a valid obligation thereof. 5. The fact that the partner signed his In dividual name to a renewal of the old note, priven by the firm, before signing that of the firm, may be considered by the trial court In determining whether or not the payee had reason to know the new note was executed without the knowledge of the other partners, or in fraud of their rights. All the justices concurring. A true copy. Attest: C.J.BROWN, seal Clerk Supreme Court. 7103. Lorenzo D. Stephenson, et aL vs. Albert H. Klliott Error from Jackson County. REVERSED. 8 rLLABB. By thi Cocbt. Hobton. C. J l. Where the grantee of a deed enters into an agreement with the grantor that he will assume and pay all of the mortgages and en cumbrances on the land conveyed at the time of the execution of the deed, but by tbe mu tual mistake of the parties the deed in its -written form does not express this contract, equity has jurisdiction to reform the written Instrument so as to conform to the intention, agreement and understanding of the parties. a Where the grantee, as a part of the con sideration for the conveyance of a tract of land, accepts a deed which provides that he assumes and agrees to pay all the claims, mortgages and interest of whatsoever nature of record at the date of the dea," he becomes thereby personally liable to the mortgagees to pay the mortgages on the premises so con veyed to hifa. All the justices concurring. A true copy. Attest: C. J. BROWN, seal Clerk Supreme Court. 71 S9. Harry Talcott vs. The First National Bank of Larned. Error from Pawnee County. AFFIRMED. Syllabus. Byxhs Court. Hobton. C. J 1. A pass book given by a bank to a depositor Is not a written contract but is prim tacie evidence tbat the bank received the amounts at the dates therein stated and binds the bank like any other form of a receipt and is open to explanation by evidence aliunde. 2. When an appeal is taken to tbe district court from tbe judgment of the justice of tbe peace, and full pleadings are filed in that court, the parties are bound thereby: and if it appears from the answer of the defendant that no countsr-claim, set-off or other de fenses is alleged, and it is shown by the plead ings, including the alienations in the answer of ihe defendant, that the plaintilT is entitled to judgment, the court may render judgment, upon the pleadings on the motion of the plaintiff. All the justices concurring. A true copy. Attest: C. J. BROWN, -beal Clerk Supreme Court. 7134. W. M.Benham and A. T. Lea vs. J. B. Smith. Error from Cherokee County. REVERSED. SYLLABUS. By thi Coubt. Hobton, C. J 1. The case of Hill vs. Bank, 42 Kas., 3G4, followed. 2. A certain promissory note payable to S. and signed "Wm. M. Benham, l'resident Odd Fellows Hall Association; A. T. Lea, secre tary." was sued upon by s the original payee to hold Kenoam and Lea personally liable. The answer alleged that the note was the ob ligation of the Odd Fellows Hall Association aud referred to a mortgage given by the asso ciation to S. upon certain real estate to secure the note. The mortgage concluded as follows : "In witnrss whereof the said party of tbe first part has consented this deed to be signed by its president and attested by its secretary and its corporate seiil to be hereto aflixed the day and year aforesaid. W. M. Benham. president Columbus Odd Fellows Association. Attest: A. T. Lka. Secretary. Held, That B. & L..the president and secretary Of the association could introduce the mort gage and also parol evidence to show they signed for the association only and that it was the intention of all the parties to the note to make it the obligation of the associa tion. All the justices concurring. A true copy. Attest : C. J. BROWN. seal Clerk Supreme Court. 7123. Union Pacific Town Site Company vs. Charles Page, et aL Error from Shawnee County. REVERSED. Syllabus. Bt the Court. Hobton. C. J An agent of a town site corporation en gaged in building and promoting a town has no implied authority to purchase lumber and other supplies for private Individuals to con struct buildings upon their own lots, pur chased by tbera from the town site company, and to make tbe corporation liable for such lumber and supplies. All tho justices concurring. A true copy. Attest: C.J.BROWN, seal Clerk Supreme Court. 6975. Bradley, Weeeler & Co, et aL, ts. Frank Borin. Error from Rooks County. ' MODIFIED. Syllabus. By thi Coubt. Hobton. C J In an action for damages on account of the wrongful levy of an attachment upon goods, wares and merchandise, special damages for loss of profits not alleged in the petition can not be recovered. All the justices concurring. A true copy. Attest: C. J. BROWN, sal Clerk Supreme Court. 9545. Stat 8 ex reL, Alfred J. Harwl vs. W.D.Webb, Judge, et aL Original Procee iiugi la Mandamus. WRIT DENIED. Syllabus. By the Coubt. Hobton, C J With a view to substantial justice between the parties, a trial court, even after a motion for anew trial is overruled, may reserve for future consideration the question whether judgment should he entered upon the verdict of the jury. Sec 409, Civil Code. All the justices concurring. A true copy. Attest: C. J. BROWN, seal Clerk Supremo Court. 715L George P. Cole vs. J. M. Bower. Error from Cowley County. AFFIRMED. Syllabub. By thi Court. Hobton, C. J L Where it Is urged that errors of law oc curred upon the trial, and the record shows that the motion for a new trial was overruled, put neither the motion, nor the grounds con tained therein are preserved, the supreme court can not review the same. 2. "A party who has given a receipt admit ting payment in full has the right always to show by parol evidence that it was given by mistake, and that it was untrue." Clark vs. Marbourg, 83 Kas., 47L All the justices concurring. A true copy. Attest: C. J. BROWN, seal Clerk Supreme Court. 059. Thomas A. Kirk vs. John G. Goodwin, et aL Error from Wyandotte County. AFFIRMED. Syllabus. By thi Coubt. Hobton, C.J Where a contractor enters Into an agree ment with the equitable owner of certain lots to furnish material and labor for the improve ment of the same, and subsequently files a mechanic's lien upon the lots, alleging therein that he has furnished tire material and per formed the labor in accordance with his con tract with the equitable owner and that the person contracted with is the owner of the lots, and afterwards in an action brought by the contractor against such equitable owner to recover a personal judgment against him for the material and labor furnislied and to foreclose his mechanic's lieu upon the lots the party, who has the legal title, is also mt de a defendant in that action, and such con tractor obtains a personal judgment against the equitable owner for the full amount of his claim for material and labor and a foreclosure of his mechanic's lien with a decree barring therein all tne titie and interest of the defend ant holding the legal title, and thereafter col lects a part of the judgment fr.uii the pro ceeds of the sale of the lots, and then subse quently brings his action to recover a personal i'udgment agaiTst the party, who had the egal title at the date of the former judgment, upon the ground tbat such party agreed to be come responsible and pay the contractor for his work, if he would tin.sh the mine, such contractor is not entitled to recover a new or further judgment against the party, who held formerly the legal title and was one of the de fendants in the prior action. All the justices concurring. A true copy. Attest: C. J. BROWN, seal Clerk Supreme Court. 7109. The Farmers' Stock Breeding Association vs. Adam Scott, et al. Error from Norton County. REVERSED. Syllabus. By the Court. Horton, C. J L Representations made by a seller to a purchaser after a contract of sale has been consummated, are not actionable. 2. To maintain an action for fraudulent representation made to induce a sale, the rep resentation must have been known to be false by the person making it, or at lea-t he must have made it without reasonable grounds for believing it to be true. 3. Where tire seller gives to the purchaser a written warranty, tne purchaser can not main tain an action upon a contract of war ranty not included in such written instru ment received by him. All the justices concurring. A true copy. Attest: C.J.BROWN. seal , Clerk Supreme Court. 7095. L. F. Crosby vs. W. P. Wilson, as Sheriff of La bette County, Error from Labette County. AFFIRMED. Syllabus. By the Court. Horton, C. J 1. A general exception to an entire charge of a court, wt.ere any portion of the same is correctly given, is iusutiicient. state vs. Wilgus, o2 Was., ISti. 2. In order to preserve in acase-made all the evidence introduced upon the trial a state ment to that effect should be inserted in the case itself, and not in the certificate of the trial judge. Eddy vs. Weaver, 37 Kas., 540. All tho justices concurring. A true copy. Attest: C.J.BROWN, seal Clerk Supreme Court. 70Si Tootle, Hosea & Co. vs. C. R. Rice, et aL Error from Pratt County. REVERSED. Syllabus. By the Court. Horton, C. J 1. The property of a co-partnership is the joint property of the partners and unless all the partners consent to do so, one partner can not dispose of the property of the partner ship to satisfy his Individual debts. 2. The consent of a partner to the sale and transfer of the joint property of tho partner ship by one partner to sausty his Individual debts must be established iu a satisfactory monner, not resting upon vague and uncer tain inferences: otherwise the rights of the non consenting partner may be improperly sacrificed ami the creditors of the partnership unjustly deprived of a priority of payment out of the partnership assets. All the justices concurring. A true copy. Attest: C.J.BROWN, seal Clerk Supreme Court. 71G& In the Matter of the Estate of E. B. Mallory, Deceased, and Fannie Mallory, Administra trix, vs. The Burlington & Missouri River Railroad Company in Nebraska. Error from Atchison County. AFFIRMED. Syllabus. By the Coubt. Johnston, J L Where a person dies intestate who Is not a resident or inhabitant of tbe state at the time of his death, and who left no estate within the state to be administered. .a probate court of the state has no jurisdiction to issue letters of administration on the estate of such intestate; and where letters are issued, the acts of the court in doing so are utterly null nd void. 2. Letters so issued without authority may be set aside by the court in which they are is sued upon its own motion, or such action may be taken at the instance of anyone interested in the administration ; and where an action has been brought by the administrator against a railroad company to recover dam ages for an injury alleged to have caused the death of the intestate, the company has sutli cient interest to make it a competent party to Institute proceedings for a revocation of the letters of administration. o. Where letters of administration are is sued witiiout jurisdiction, and the probate court, unon a hearing, determines and orders that they be declared null and void, the per son Illegally appointed as administratrix is not entitled to appeal from such an order without giving the appeal bond required from ordinary appellants. AH the justices concurring. A true copy. Attest: C.J.BROWN, seal Cieik Supreme Court. 7190. Otis I Tbisler vs. J. J. Miller. Error from Dickinson County. AFFIRMED. Syllabus. By thi Coubt. Johnston. J L A judgment in favor of the owner for the recovery of apart of a number of animals from an officer who had wrongfully seized them upon an execution against another than the owner, where all of the animals were seized and taken from the possession of the owner at the same time and upon the same writ, is a bar to the maintenance of another action by the owner against the officer to recover the remaining animals so seized and detained. 2. A motion for a new trial on the ground of newly discovered evidence will not be sus tained where it appears that the testimony relied npon was within the knowledge of the Sarty, who was absent from the trial, but who ad failed to communicate the facts to the attorney who appeared in his behalf. All the justices concurring. A true copy. Attest: C. J. BROWN, seal Clerk Supreme Court 712G. J. C. Ard vs. C. H. Pratt . Error from Allen County. AFFIRMED. Syllabus. By thi Coubt. Johnston J Win 1873, M. obtained a patent from the united States for a tract of land, but never took actual possession of the same. A claim ing title, went into possession of the same land in 1873, but never paid any taxes thereon and this possession, which was exclusive and adverse, continued for more than fifteen years, and until the title of M. was extinguished by adverse possession. The taxes on the land for 1883 were not paid, and it was sold to a stranger for taxes, and a tax deed therefor was issued in 187, In lss'J.und after the statute of limitations had run against the patent title, M. purchased the outstanding tax title and subsequently conveyed the same to P.. who brought an action to recover the land from A. Held. That as M. owed no duty to A. to pay the taxes, and as their claims to the land were an tagonistic, M. was not disqualified to purchase the outstanding title nor was the grantee of M. precluded from relying upon the same as against the adverse possession and claim of A. All the justices concurring. A true copy. Attest: C.J.BROWN, seal Clerk Supreme Court. 9405. Alfred Blaker, Administrator, etc., vs. Hood & Kincaids and O. K. Morse, Receiver. Error from Linn County. AFFIRMED. Syllabus. By the Court. Johnston. J 1. The provisions of the constitution au thorizing the organization and control of banks of circulation do not lim t the legisla tive power nor operate to prohibit the enact ment of laws im po-ing reasonable regulations upon banks of deposit and discount. 2. The act providing for the organization and regulation of banks Chap. 43. laws of lsyi is held to be within the scope of the police power of the state and not an uncon stitutional infringement of private rights. 3. Tne act does not contravene the constitu tional provision which requires that "no bill shall contain more than one subject, which shall be clearly expressed in its title." All the justices concurring. A true copy. Attest: C. J.BROWN, seal Clerk Supreme Court. 7isa J. N. Stewart vs. M. E. Fowler & Co. Error from Shawnee County. AFFIRMED. Syllabus. By the Coubt. Johnston. J. 1. Under a contract whereby brokers agreed with the land owner to find a person with whom the owner would make a contract for the sale of his land at a fixed price and upon terms satisfactory to himself at a stipulated commission, the brokers found a purchaser who contracted with the owner foi the land at the price agreed upon, payments to be made in installment-, and giving the owner the op tion in case of any default of the purchaser to declare the contract and the payments there under forfaited. Tne purchaser was then ready, willing and able to comply with the conditions of the contract, and subsequently made two of the payments provided for, but defaulted in the others, and tbe owner, in stead of enforcing the contract, chose to de clare a forfeiture and to retain the pavments which had been made, but declined to pay the commission. Held, That the brokers had earned their commission when the purchaser was found by them and accepted by the owner, aud that they cannot be deprived of the same because the deferred payments were not made by the purchaser and the terms of the con tract fully carried out. 2. A finding of the jury, based upon suffi cient testimony, to the effect that the land owner accepted the services performed by the brokers as a compliance with the condition of their contract with him, renders imma terial a departure from some of the conditions of the contract, and authorizes a recovery of the compensation for such services. 3. Stewart vs. Fowler, 37 Kas., 677, distin guished and limited. All the justices concurring. A true copy. Attest. C.J.BROWN, sk al Clerk Supreme Court. 9514. A. D. Rathburn vs. H. H. Hamilton. Original Proceedings in Quo Warranto, DEMURRER TO ANSWER OVERRULED. Syllabus. Bythk Coubt. Johnston.J. 1. Where a political party assembled In con vention places in nomination a candidate for a county ollice, and the president and secre tary of such convention executes and verifies a proper nomination certificate, which is pre sented to the county clerk in due time to be filed, and is left with him for that purpose, it will be deemed to be filed within the meaning of the Australian ballot law, although no in dorsement of riling is written thereon, and al though it is afterward mislaid or lost through the inadvertence or negligence of such officer. 2 Where a nomination certificate is found to be insufficient or inoperative, the defect may be corrected by the political party or per sons making the original nomination, or by the executive or central committee of such party or persons, in the manner pointed out by section 9 of that law, at any time before election day. All the justices concurring. A true copy. Attest: C.J.BROWN, seal. Clerk Supreme Court 7158. The Wichita National Bank vs. Geo. H.Maltby, Administrator of the Estate of Charles War ren, Deceased. Error from Sedgwick County. REVERSED. Syllabus. By thi Coubt. Johnston, J 1. In a controversy over the right to a bank deposit, where it is denied that the depositor was the owner of the fund and entitled to draw the same from the bank, it may be shown that the ownership of the deposit is in another, and that a payment to him releases the bank from liability. 2. In an action npon a certificate of deposit which is in form a negotiable instrument and is not in the possession of the plaintiff, and where ownership is alleged by the plaintiff,an unverified answer denying that plaintiff is the owner and holder of the certificate and alleg ing that another was the owner and had drawn the same from the bank with authority presents an Issue for trial which precludes the sustaining of a motion for judgment upon the pleadings without proof. All the justices concurring. A true copy. Attest: C.J.BROWN, seal Clerk Supreme Court 925. E. Eichholtz, Rnfus Thrall and the Missouri, Kansas &, Texas Railway Company vs. D. H. N artin, as County Clerk of Labette County, Kas et aL Error from Labette County. AFFIRMED. Syllabus. BY thi Court. Johnston. J Chapter 140 of the laws of 1893, "An act to es tablish a county high school in Labette county, Kansas," does not contravene section 17 of article 2 of the constitution, which pro vides that laws of a general nature shall have a uniform operation throughout the state, and that no special laws shall be enacted where a freneral law can be made applicable; nor is it n conflict with section 2 of article 6, which authorizes the legislature to establish a uni form system of common schools and schools of a higher grade. All the justices concurring. A true copy. Attest: C. J. BROWN, seal Clerk Supreme Court 7153. Lilla L. Taylor. Agnes M. Ladd and VInnle G. Ladd vs. Daniel Ladd and Mary Ladd. Error from Clay County. AFFIRMED. Syllabus. ; By the Coubt. Johnston. J L. died, leaving three children as his only heirs. Several years before, under a parol agreement, his son, D left a profitable posi tion In another state and joined the father in the purchase of a farm, the eon. D., contribut ing the greater part of the consideration. It was stipulated that D. should piovide the father and mother a home, with suitable food and clothing, and care for them during their lives.. in consideration of which the entire in terest in the land should then become the property of D. The mother died soon after wards, and the provisions of the agreement were substantially complied with by D. prior to the father's death, and when his mind was not sound, he conveyed his interest in the land to D. The agreement between the father and D. was known to the other children. After the father's death a daughter claimed a share of the land, and a dispute arose to tbe proper division of the estate. A compromise was ef fected, by which D. agreed to pay her much more than her share of the personal estate, when she deliberately made a writing acknowledging the payment made to be her share of her deceased father's property, both real and personal; and settlement was made with the other heir upon substantially the same basis. Afterward, and for a period of ten years, the parties treated the settlement as effective and binding, and D. held possession of the land and made extensive and valuable improvements thereon, with the knowledge of the other heirs, and without objection or pro test, when an action was begun by the daughter claiming a share in the land. Held, That her declarations and acts, as well as those of the other heirs, constitute an equit able estoppel which precludes the reopening of the settlement or tbe assertion by them of any interest or right in the land. All the justices concurring. A true copy. Attest: C.J.BROWN, seal Clerk Supreme Court 7145. H. E. Shafer and J. C. Youngman vs. The First National Bank of Russell, Kas. Error from Russell County. MODIFIED. Syllabus. By the Coubt. Johnston, J 1. Where a national bank makes a loan and knowingly charges and receives a greater rate of interest than is allowed ty the laws of the state where the bank is located, up till the maturity of the note, after which time It was agreed that the note should bear interest at a rate which was lawful, the receipt of the usurious rate will work a forfeiture of the en tire interest which the note carries with it, in cluding that which accrues after the maturity thereof. 2. A judgment rendered upon such a debt will bear interest from the time of Its rendi tion at the rate of t per cent, per annum. All the justices concurring. A true copy. Attest: C.J.BROWN, sxal Clerk Supreme Court 7184. The Kansas City & Southwestern Railway Company and the Missouri Pacific Railway Company vs. Isabella K. Fisher. Error from Miami County. AFFIRMED. Syllabus. By the Coubt. Allen, J L An attempted condemnation of land for the right of way of a railroad without giving the notice provided by paragraph 1395 of the general statutes of 18S9 is void. 2. A railroad company organized nnder the laws of a neighboring state, which is in pos session jointly with a railroad organized un der the laws of Kansas, of a railroad con structed across plaintiff's land over which a right of way has never been purchased, nor condemned, claiming ownership thereof, is liable to the owner of the land, for the value of the land taken and the damages to the bal ance of the tract, and the plaintiff may recover against both railroad companies, as for a per manent taking and appropriation of such right of way. All the justices concurring. A true copy. Attest: C. J. BROWN, seal Clerk Supreme Court 7112. William T. Rickards vs. D. A. Baldrldge. 'i Error from Reno County. AFFIRMED. Syllabus. By the Coubt. Allen, J 1. A judgment or order made by a distrlci court may for good cause afterward, at the Fame term, be set aside, and where an order of dismissal has been entered, but is afterwards at the same term in effect set aside, and the cause continued for a further hearing, the court does not thereby lose jurisdiction of the parties. 2. In an action to set aside several instru ments affecting the title to real estate, and to recover an interest in the lands, where the court upon a hearing denies tbe plaintiff the relief asked, but grants him the right to file an amended petition, and proceed to an ac counting between the plaintiff and the de fendants as to the rights of the parties with respect to purchase money due plaintiff under the view of the court that the conveyances should be upheld, an announcement by the court at the first hearing that it declines to set aside the various written instruments affecting the title to tht property does not amount to an adjudication which will prevent the court on a final hearing from awarding the plaintiff the amount due him from one of the defendants, and making the same a first lien on the lands in controvery as against all the other defendants deriving title through him. All the justices concurring. A true copy. Attest: C J. BROWN, seal Clerk Supreme Court 717a 3. M. Anderson vs. S. H. Rodgera. Error from Hamilton County. REVERSED. SYLLABUB. By thi Coubt. Allen, J L The payee of a check who fails to make presentment within a reasonable time, assumes the risk of loss occasioned by the in solvency of the drawee occurring in the mean time. 2. It Is negligence In the holder of a check to sendit directly to the drawee, residing in a distant place, for payment, and the holder Is responsible for any Iobs occasioned by adopting such course. . 8. The bank of H. as the agent of plaintiff, sent a check drawn by the defendant on the bank of R. distant about fifty-five m 'les. to the back of R, by mall, with tbe revest that it remit the amount in Kansas City exchange. The check was received by the bank of R. on the evening of December 12. The bank of R. continued to do business during all of the fol lowing day, receiving deposits and paying checks. On -the evening of that day after business hours, it deposited a letter enclosing the check with tho statement, "No funds in bank," addressed to the bank In H. which was received by the bank of H. on the evening of tbe next day. The defendant bad more than funds enough on deposit to pay the check. The bank did not open for business thereafter, and has never paid anything to either party. Held,, That the loss must fall on the plaintiff. All the justices concurring. A true copy. Attest: C. J. BROWN, sxal i- , Clerk Supreme Court :- 9507. The City of Argentine vs. Harriet Daggett, et aL Error from Wyandotte County. AFFIRMED. 9508. The City of Argentine vs. G. H. Simmons, et aL Error from Wyandotte County. AFFIRMED. By thi Coubt. Syllabus, AXLXN, J Tbe grade of Second street In the city of Argentine was duly established by ordinance. Three-fourths of the owners of property front ing on the street thereafter petitioned for the f;rading of the street An ordinance provid ing for plans, specifications, estimates, and the letting of the contract for such grading was thereupon passed, and a contract there for afterwards duly let After such letting another ordinance was passed materially changing the grade of the street There waa no new plan, estimate, contract or- ordinance relating to such work, but the grading was done in accordance with the grade last estab lished, and the city council after Its comple tion passed au ordinance assessing the cost against the abutting lots; Held, That such assessment is invalid. All the justices concurring. A true copy. Attest: C.J.BROWN, seal Clerk Supreme Court 9634. The State of Kansas ex. rel. W. F. Means, Ccunty Attorney, vs. The City of Hiawatha and General Electric Company. Error from Brown County. AFFIRMED. Syllabus. By thi Court. Allen, J Section 60, of chapter 19, of the general stat utes of 1889, confers on the council of a city of the second class the right to provide for and regulate the lighting of the streets, and under said section the mayor and council have the power to purchase an electric plant for light ing the streets. That clause in the section which authorizes them to make contracts with any person, company or association for such purpose does not restrict them to supply ing light by such contract, but they may in their discretion provide lights for the streets and public places, in such manner as they deem best. Provided, They do not exceed their powers in Incurring obligations or levying taxes. All the justices concurring. A true copy. Attest: C. J. BROWN, seal Clerk Supreme Court 7146. John L. Bell vs. Frank Sternberg. Error from Ellsworth County AFFIRMED. Syllabus. By the Court. Allen J, A vendor of real estate who has executed a title bond agreeing to convey land, which is subject to a mortgage, for the payment of which a third party Is primarily liable, of which the vendee has notice, and which is not due for more than a year after the time when a deed is due under the contract being sued by the vendee to recover the purchase money Faid will be allowed to perfect his title with n a reasonable time, and having acted with due diligence, so perfected it, and tendered a proper conveyance thereof, even after suit brought out before trial, and no special dam age having resulted to the vendee, is entitled to a judgment All the justices concurring. , A true copy. Attest: C.J.BROWN, seal Clerk Supreme Court 7143. Gerbart Becker vs. G. H. Hulme, R. C. Bailey and C. F. Diffenbacker. Error from Barton County. AFFIRMED. Syllabus. By thi Coubt. Allen, J The plaintiff recovered judgment against one D. on the 19th of February, 1894. After the re turn of an execution thereon unsatisfied, an order was in December of the same year duly served on the defendants in this case requir ing them to answer as garnishees. They an swered, denying liability. More than three years after such answers were filed, this ac tion was commenced; Held, That being an action on a liability created by statute, it was barred by the statute of limitations. All the judges concurring. A true copy. Attest : C. J. BROWN, seal Clerk Supreme Court 9513. O. C, Boyd vs. O. Mills. Original proceedings in quo warranto. MOTION TO STRIKE OUT PARTS OF PETI TION PART SUSTAINED AND PART OVERRULED. Syllabus. By thi Coubt. Allen, J L That part of section 2, of article 5, of the constitution of this state as amended in 1867, which reads, "No person who has ever volun tarily borne arms against the government of the United States, or in any manner volun tarily aided or abetted, in the attempted over throw of eaid government, except all persons who have been honorably discharged from the military service of the United States since the first day of April, A. D., 1861, Provided, That they have served one year or more there in, shall be qualified to vote or hold office in this state until such disability shall be re moved by a law passed by a vote of two-thirds of all the members of both branches of the legislature," does not conflict with section 10, article 1, of the constitution of the United States, and is a valid constitutional provision. 2. Where the election officers of a township were furnished by the county clerk with offi cial ballots printed on white paper, and also with sample ballots printed on colored paper, in a separate package, and where by mistake the sample ballots were used by all the voters of that township, and the official ballots on white paper were all returned unused by the judges of election, and the election in such township was conducted regularly, in every other respect, and the ballots used by the electors of all political parties were of the same color; Held, That such ba.lots were rightly counted. All the justices concurring. A true copy. Attest: C.J.BROWN, seal Clerk Supreme Court 7135. R. J. Hardesty vs. George B. Cox. Error from Ford County. REVERSED. By thi Coubt. Syllabub. Allen, J Where the members of a partnership submit to arbitration all matters connected with the winding up of their business, each giving sureties for tbe performance of his part of the award, and thereafter the arbitrators duly award and determ ne that the members of the firm for whom the defendant is surety, shall pay a note of the firm, which the plaintiff, as their surety, had been compelled to pay; Held, That plaintiff can recover from the surety the amount of the note. All the justices concurring. A true copy. Attest : . c.J. BROWN, seal Clerk Supreme Court 9258. David Hnbbard, Administrator, of the Estate of George B. Lord, JJeceased, vs. The Alamo Irrigating and Manufacturing Company. Error from Johnson County. AFFIRMED. By thi Coubt. Syllabus. Allen. J 1. This action was brought by the plaintiff to recover trust funds wrongfully mingled by L a deceased banker, with his own lunds. H., administrator of L's. estate. Hayes, a former administrator, and Lord's widow were joined as defendants; Held, That no error was com mitted in overruling the motion of H. to strike out all allegations with reference to the other defendants. Also, -HW.Thaadenxurwoa the ground that there waa a defect of parties defendant was properly overruled. a. In such an action it Is not necessary that all creditors and other persons who may be Interested In the estate be brought in as de fendants. 3. The case of Myers vs. The Board of Edu cation, 51 Kas. 87, followed and approved. 4. A trust fund wrongfully mingled by a trustee with his other funds and property, and retained by him, may be followed and re claimed from the administrator of bis estate, and paragraph ii64 of the general statutes of 1889, providing for the classification of de mands against the estates of deceased per sons has no application, because such trust funds constitute In equity no part of his es tate. 6. In an equitable action to recover as a trust fund moneys received from bonds sold by L, as plaintiff's agent, where it appears that more bonds were sold than the plaintiff authorized the sale of, and tbat that the agent kept aud used a part of the proceeds; Held, That the allowance by the court in favor of L's. administrator of compensation for the sale of the bonds authorized to be sold will not be reversed as erroneous. All the justices concurring. A true copy. Attest: C. J. BROWN, - seal Clerk Supreme Court 7163. William Claflin vs. A. H. Case. Error from Shawnee Coun y AFFIRMED. Syllabus. By thi Coubt. Am. en, J Where vacant land adapted to occupancy and cultivation is conveyed with covenants against inenmbrances, or right to convey, and warranty, and the grantee fails for twenty, one years to take possession of the land, which has remained vacant and unoccupied during all that time, and is therefore defeated in an action brought by bim to obtain posses sion from one claiming under a prior, ad verse, and better title than hin own, and thereupon brings suit uuon the covenant of warranty against his grantor; Held, That al though an action on the warranty did not accrue until the assertion of the superior title, the plaintiff's neglect in failing to take possession of the lands for so long a period, and thereby protpct his title, precludes bis recovery on the covenant. All the justices concurring. A true copy. Attest: C J. BROWN. seal Clerk Supreme C our',. 6896. The Kansas Farmers' Fire Insurance Com pany vs. Ben Salndon. Error from Cloud County. MOTION FOR A RE HEARING ALLOWED IN A MODIFIED FORM. Syllabus. Per Curiam. 1. Where an Insurance policy provides against future incumbrances, tbe policy may be avoided if a subsequent incumbrance is created, or if the incumbrances existing at the time of the application for tbe Insur ance are materially increased by a new or ad ditional debt, but a mere subsequent renewal of a prior lien or mortgage with accrued in terest is not an increase of such pre-existing Indebtedness or the creation of a new or an additional incumbrance. 2. Where an Insurance policy covers a dwelling house and various classes of per sonal property, including household furni ture, beds, books, etc., describing them sep arately and specifies different and separate amounts on the dwelling and on the personal firoperty. as $1,900 on dwelling, and iK)0 on urniture, beds, books, etc.. such contract is severable, and the execution of a mortgage on the real estate in violation of a condition of the policy against subsequent incumbrances on the property insured in whole or In part is no defense to an action for the loss of the personal property not incumbered. A true copy Attest : C. J. BROWN, seal Clerk Supreme Court In the Supreme Court ) op the State op Kansas. ( I, C. J. Brown, clerk of the supreme court of the state of Kansas, do hereby certify that the foregoing are true and correct copies of the syllabi of the decisions in the above entitled cases as the same appear on file In my office. Witness my hand and the seal of the supreme court this 11th day of June, 1894. SEAL C. J. BROWN, Clerk Supreme Court Tatiouax. Stables. Vlrst-elasa Livery. Boarders a ipeol.tU, TtUfkan 46. J. C GILCHRIST, Juktaa StraaW r,rw'r. ARTHUR MASSEY, Practical Horsc-Shocr 213 WEST FIFTH ST., vsiskss sa. TOPERA, KANSAS. Harass with diseased feet skilfully Cyack and road shoeing a specialty. TOPEKA. TRANSFER liTiii " O M PANT, 509 BLrm. Are. TeU. P. P. BAC0H, FEEHCH TISSDE PAPEHI TBJt LABOXtT LIHE THI CITY. AIX CHINA AND ART MATKRIALj COMPLETE HEWS DEPARTIEHT. M KiHSSl . ATJfc CAPITAL COAL YARD, 112 WEST FOURTH ST, Osacre Coal per ton. Cut prices on all Coal and Wood orders. Kraut's Jersey Bull Is located here. Come ' in and see me if you want cheap prices on Coal or Wood. X. W. B. GRANT, WflT ' FOUBTfl a --mv W . .Mhssssasl-- " WWMUa.1 W ST. II i 111