The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-03-11
No. 1898.
Inc Chicago, Rock Island and PAT
b, Railway Company

Railway Company
Error from Smith County.
| AIthouah a plaintiff, walking and
driving team, has been guilty of negli-
Eence IN , entering long marrow chute be-
| surmountable obstacles on the other he is
not thereby prevented from recovering
by a railroad train if he tried to do and
could not extricate himself and the engi-
the train saT a as IN time
T. An instruction. or qualification of an
instruction. based upon supposititious
when the finding OF the jury, supported
sy ew,defnse; anirmauvely show that such
| Inherent in, the verdict.
AL the, Justices concurring.
Attest: D. A. VALENTINE,
lSeai1 Clerk Supreme Court
No. 1886
Eleanor p. Dye
The Midland valley Railway Company
Error from Cowley County.
syllabus. By the Court. Graves, J.
| l. tax deed which has not been re-
corded five years. and contains several
separate tracts of land, is void on it's face
| when. its recitals do not show the amount
1
| 2. A tax deed, executed in pursuance of
| a compromise sale OF lands held by the
county under the provisions of section
| 7672, Gen. Stat. 1901, which deed has not
been recorded five years, is void on its
face II it's recitals do not show that each
tract of land described in the deed was
| sold for g. sum not in excess OF the tax
ana interest due thereon.
| 8. A tax deed which has been recorded
yS YEAR, E. Of ss I'm pss Ss
! construction of its recitals and statements
| ana by the application of reasonable In
ferences and Prescriptions, it can be held
1 to contain the recitals required by the
1. A tax deed which has not been re-
| corded five years will be deemed invalid
unless it contains. substantially. the re-
! citals prescribed by the statute, unaided
| by the liberal rules of construction, the
application OF differences and presumptions,
which are permissible where the tax deed
| has been Of record five years or more.
s. When a railroad company under the
proceedings prescribed by statute. con-
| dennis real estate for right of way and
other purposes, such proceedings will ef-
! fectuate transfer of the land to the rail-
road company and in lieu thereof. the
| owners will receive the damages awarded
in the same proportions in which they held
the land.
owners Of the land condemned appeal from
the award Of the commissioners to the dis
is s's submitted o to and determined by jury,
the court may permit the owners not ap.
peaIing. to fnterplead for the purpose of
coptesting their right to the damages
All the Justices concurring.
| A true copy.
j fseaIl Clerk supreme Court
Estate Of Ernest w. Raider, Deceased
| ]. S. Laney.
Error from Montgomery County.
/ : ~ s-fss-s--ss REVERSED. -
syilapYs b. BY the Court; .ar, Benson son.
| lions in the direct examination of wit.
ness. in a deposition are inadmissable, ant
are excluded. the Cross examination upoT
| the subject matter SO excluded, is. equally
inadmissib1e. >-
g Where competent testimony is giver
to show that the defendant has the pos
ject of the action, and the defendant tes
, titles that he does not have, and never
. ala have the possession OF such instru
. mont, and that it never existed, oral evi.
is admissible
a A notice to the defendant to produce
| an instrument, the existence of which ht
thus denied, would have been vain and In
efrectual. and was therefore unnecessary
against an alleged partner, where the fact
of partnership was in issue, testimony Oh
the oral admissions OF the defendant o.
nership between the parties was proper
! evidence for the Jury to consider, although
It was alleged In the petition that tbs
partnership agreement was In writing.
| All the Justices concurring.
| Attest: D. A. VALENTINE.
| TSeaI1 Clerk Supreme Court.
| No. 15440.
| The williamson Ha1sell Frazier Company
Joseph J; A ssssz'ss c :. al:
AFFIRMED.
Syllabus. BY the Court. Johnston, c. j
/. A contract, in order to be valid and
| binding, must be the result of the free
assent Of the parties making it and where
| a father is coerced into executing, a mort
gage to secure the payment Of defa1ca
| fion of his son by threats of the arrest
and prosecution OF the son for embezzle
| ment, IL such security is not given, the
mortgage may be avoided on the ground
| OF 6ureSS.
?. The test in determining whether
| there was duress Is not 50 much tht
| means by which the father was compelled
Of mind induced by the means employed
! | the fear which made it impossible for hin
! to exercise his own free will.
8. If the threats Of the arrest and prose es.
| father of his free will power and to con
t strain the execution of the mortgage thu
, actual guilt or innocence OF the son upof
J the charge of enbezz1ement. was not
material question in determining whethe
, there was duress, and in charging the jury
| upon that defense 1t was not essentia
that the court should give complete def
1 milton of the offense OF embezzlement
81 All the Justices concurring.
ii Attest. d. A. VALENTINE.
: Iseal5 Clerk Supreme Court.
> No 15445.
Henry c. Eyer, ct al
2 VS..
VI J. U. Brown ct al.