davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
D. A. VALENTINE,
Clerk Supreme Court.

No. 17A3.
Silas Harrison, ct al, Appellants,
VS..
David Miller, ct al, Appellees.
Appeal from Linn County.
REVERSED.
syllabus BY the Court. Smith. J.
l. An appointment of a guardian of
minors by a probate court must be made
OF record and the non-existence of such a
record negatives any appointment.
2 A probate court is powerlesS to di-
vest minors of their title to real estate
except through a guardian duly appointed
in this state and in substantially the man
ner prescribed by the statute.
8. The five years limitation, prescribed
under heading. Second Section 560S of
the general Statutes of 1909, does not apply
in action for the recovery of land
which was sold by one guardian, who
was not so appointed.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
No. 1852.
Grace Dillon ct al, Appellees,

Matthew Gray ct al, Appellants.
Appeal from Leavenworth County.
AFFIRMED.
Syllabus. By the Court. Porter, ].
1. Upon sufficient evidence the court
found that the owner of a farm with the
tract with their daughter and her hus-
band, the plaintiffs, by which plaintiffs
were to live with them on the farm and
care for them long they lived, in
consideration of which all their ppropertv
was at their death to become the prop
erty of plaintiffs; that for more than ten
years plaintiffs fairly performed their
part of the contract and made lasting and
valuable improvements on the land; that
afterwards, following the death OF his
wife, the owner of the land sold the farm,
deprived plaintiffs of possession, refused
longer to live with them, remarked, and
executed will leaving his property to
other heirs. In an action for specific
performance against his heirs and the
executor of the will held, that, no cir
cumstances or conditions being shown by
the findings and the evidence which
would render the enforcement of the con-
tract inequitable, a decree will be upheld
which fastens a trust in favor of the
plaintiffs upon the fund in the hands OF
the executor.
q Marriage will not constitute the wife
or held by the husband Upon his death,
the wife acquires no interest by will on
under the statute in any property to
which he held the legal title but which
inequity belonged to others. Under the
facts stated in the preceding paragraph,
therefore, the Plaintiffs were not required
to show that the second wife, before her
marriage, had notice of their calm under
the contract.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
CSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
No. 1850.
R. F. Murchison, Appellant,


+. G. Mics and Arthur Mes, doing bust
ness as F. G. Niles & Son, Appellees.
Appeal from Sedgwick County.
AFFIRMED.
Syllabus. BY the Court. Johnston. =. J.
/. Upon examination of the teStl-
nlony 1t is held to be sufficient to support
a general finding that the execution or
the note in suit was procured by fraud in
which the holder participated and, also,
that it was without consideration.
2 An agreement by the makers of the
note for its transfer from the payee 20
another, and recognizing its validity, does
not preclude the defense that its execu-
ton was fraudulently procured and that
il was without consideration, where the
makers were not aware of the fraud nor
of the want of consideration when the
agreement was made, and where the in
dorsee and holder was acquainted with
these facts.
3. The rule that an equity arising in
favor of the maker and against the
payee of a promissory note after the
transfer of the note can not be interposed
as against an action thereon by the in
dorsee is not applicable here as the in
firmities in the note, of which the in
dorsee had notice, existed when 1t was
transferred to him.
All the Justices concurring.
a true copy.
Attest: D. A. VALENTINE,
LSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
ElAl.

strued to prevent other and different re-
quirements as conditions should demand
them, was ultra wires.
o. The plaintiff board cannot compel the
elevation of the bridges in question until
reasonable plans therefor are approved
by the proper federal authorities.
All the justices concurring.
A true copy.
Attest. d. A. VALENTINE,
ISeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
D. A. VALENTINE.
Clerk Supreme Court.
No. 1883.
William Wendell, Appellee,


John G. Helm, Appellant.
Appeal from LeavenWorth County.
AFFIRMED.
Syllabus. BY the Court. Benson, J.
1. The provisions of section 1863 of the
civil code authorizing the admission in
evidence of the record of instrument
properly recorded in any public office.
without preliminary proof that the orig
1nal is not in possession or under the
control of the party desiring to use IL,
furnishes the rule for the admission of
such testimony notwithstanding the pro-
visions of section 1878 of the General
Statutes of 1909, relating to conveyances,
which authorized the. admission of such
secondary evidence upon proof of the loss
or destruction of the original instrument.
2. right of way may be acquired by
reservation in a conveyance of a part of
tract for the benefit of the part not con-
Veyed, and may pass by conveyance OF
the latter, as an appurtenance.
All the Justices concurring.
4 true COPY.
Attest: D. A VALENTINE,
lSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14

No. II ,631.
Gabriel Schmuck ct al, Appellees,
VS..
Missouri, Kansas & Texas Railway Com
pany, Appellant.
Appeal from Cherokee County
AFFIRMED.
Syllabus BY the Court Burch. J..
1. In a suit award of damages
for land taken by a railway company I'M
der condemnation proceedings. brought
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
No. 17,5SS.
Claude M. Cave, Appellee,


S. Rinehart and l.. d. Meredith, Appel
lantS.
Appeal from Haskell County.
AFFIRMED.
Syllabus. b. the Court. Mason, j.
While the statute was in force requiring
that the notice of the expiration of the
time allowed to redeem land sold for taxes
should state the amount of taxes and in
terest computed to the time of redemp-
ton, tax deed was voidable which was
based upon a notice purporting to give
the amount of taxes, fees, charges, and
interest, even although the amount named
was in fact less than the taxes and in
tereSt.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
[Seal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
No. 17,659.
E. P. Dunlap, Appellee,

e. p. Dunlap, Appellee,
vs.
The Chicago, Rock Island & Pacific
Railway Company, Appellant.
Appeal from Norton County.
REVERSED.
Syllabus. By the Court West, j.
The doctrine of the last clear chance
does not apply so long as the two par
ties are concurrently negligent, for then
the law will not compare or apportion the
negligence. An owner of cattle having
negligently permitted them to go upon a
railroad crossing from which he was using
due care to remove them can not hold
the railroad company liable for failure
of its engineer to discover the cattle
upon the crossing but only for failure to
use proper care after actually seeing them
there.
All the Justices concurFing.
A true copy.
Attest: D. A. VALENTINE
[SeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
No. 1855.
The State of Kansas, Appellee,

The State of Kansas, Appellee,
VS..
William Sherow, Appellant.
Appeal from Reno Count.
AFFIRMED.
Syllabus BY the Court. Porter, j.
Section 2 chapter 1855, of the Laws of
1886 (Gen. Stat. 1909, sec. 1860, authorizing
township boards to grant a license for
billiard halls, pool halls and bowling al
leys within the township whenever in the
Judgment of the board it shall be to the
best interests of the township to grarr
the same, is valid exercise of the police
power and does not delegate legislative
powers nor confer judicial powers, nor is
it any objection to the validity of the
statute that appeal is provided from
the refusal of the board to issue such per-
NIT.
All the Justices concurrilg.
A true copy
Attest: D. A VALENTINE,
ISeaI1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14

No. 1851.
The Commercial National Bank, Appellant
VS..
S. A Poe, ct al, Appellees.
Appeal from Reno County.
AFFIRMED.
Syllabus By the Court. West, ].
The parties commended for opposing the
cries of the case and the jury on com
petent and conflicting evidence found for
the defendants, no errors appearing
in the rulings or instructions. Held, that
the verdict is conclusive.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
CSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
No. 1858.
Thomas Chapel, Appellant,

VS..
William Foster Appellee.
Appeal from Usage County.
AFFIRMED.
Syllabus BY the Court. Mason, J.
A lessee, who has the exclusive right to
conduct mining operations upon tract of
land for a stated period, can not recover
more than nominal damages from one
who has wrongfully removed a part of the
mineral, where it appears that he would
not, within the life of his lease, have
reached the mineral so wrongfuIly taken.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
d. A. VALENTINE,
Clerk Supreme Court.

No. 1886.
The Atchison, Topeka & Santa Fe Rail-
way Company, Appellant,
The City of CherryvaIe. Kansas, ct al.
Appellees.
Appeal from Montgomery County.
REVERSED.
Syllabus By the Court. Benson, J..
A city of the second class caused a
street, which is parallel to the railway
tracks and includes a strip of the right of
way, to be paved. The strip has been
used as part of the street for over TWEEN
ty years without objection by the railway
sary for right of way purposes. In a
former action it was held that the city
should not be enjoined from paving such
strip as part of the street then being
improved but that such Improvement
should not give to the city or public any
title to the land, or any interest that
that would interfere with the of the
right of way. (Railway Co. V O'Leary,
70 Kan. 664, 100 Pac. 62S.) The city now
seeks to charge the cost of paving sucr
strip, together with other land used with
it as a street, against the adjoining prop
erty, including the property of the rail :
way company. 1t is held, ID that there
is no authority to make special assess
ments upon the property of the railway
company to pave thds part of its right of
way; CD that the railway company may
maintain an action to entoin the collec-
ton of the tax assessed therefor; CD
that a tender of the amount of the legal
assessments which may be paid in annual
inStallmentS. was not required before
commencing this action; and "a that tie
decision in the former action is not
adjudication of the validity of the assess
ment in question
Burch, J., Mason, J., Porter, J. and
West, j., concurrfng.
Johnston, c. ]. and Smith, J., dissent
ing.
A true copy.
Attest: D. A. VALENTINE,
[SeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
No. 1852.
John F. Hanson, Appellant,
Joseph L. Bristow, Appellee.
Appeal from Saline County.


Joseph L. Bristow. Appellee.
Appeal from Saline County.
AFFIRMED.
| Syllabus. BY the Court Porter. ].
l. An action for libel will not lie Tor
publishing in a newspaper a statement,
admitted to be true, to the effect that the
plaintiff, practicing attorney. was sent
to jail for contempt of court, whether the
court had or had not jurisdiction OF the
proceedings out of which the alleged con-
tempt arose and regardless of whether OF
not the plaintiff was in fact innocent q
the offense for which the court imposed
such imprisonment.
2. The statement in a newspaper that
the plaintiff, a practicing attorney, was
a witness before the court and refused
to answer the courts questions as to
he had collected for the Estate. which no
had not turned over to the proper pa =
ties'' is held not to charge plaintiff with
conduct as an attorney, and therefore Is
not libelouS per
8. The following was published in refer
ence to the plaintiff:
Hanson was one Of the attorneys In
the Linderholm case, and in closing up
the estate it became necessary that Mr..
Hanson should tell what had become OF
certain funds. Mr.. Hanson refused to
make any explanation to the Probate
Court, and the Court ordered him to jail
for contempt"
Held that the statement cannot be
made to appear lfbelous by an innuendo
alleging that it was thereby intended 20
charge that plaintiff guilty of the
crime of endorsement and OF unprofes-
sional conduct.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
ISeall Clerk Supreme Court.
No. 1883.
A. s. Lapham and S. W. Brewster, Part
ners Lapham & Brewster. Appel
lees
The Kansas & Texas Oil. Gas & Pipe
Line Company, a corporation, Appel
lants
Appeal from Neosho County.
AFFIRMED.
Syllabus. BY the Court. Smith, j.
l. At the commencement of this trial
the court, by motion to refer. was re-
quired to determine, over the objection 81
one party. whether the motion should be
allowed or a jury trial awarded Held.
that the p1eadfngs are determinative OF
the question, and that error COM
mitted in sustaining the motion to refer
2. The claim for services and the forty.
seven items OF expenses set forth IN tn
petition. with proper credits OF payneoo
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
Nosf717, 1863.
o. H. Johnston, Appellant,

MOI IL, 1858.
o. H. Johnston, Appellant,
Tvs.
Frank r. Isanter, Appellee.
Appeal from johnson County.
REVERSED.
Syllabus. BY the Court. Smith, j.
1. A sale of goods in which a quality
thereof is described implies a warranty
that the goods are of the quality described,
provided the purchaser has had no prior
opportunity to inspect them but relies
upon the description thereof.
2. There is no rule of law, applicable to
all cases, by which it can be determined
whether a purchaser, delivery to him
of goods bought without inspection but
on warranty, has unreasonably delayed
discovering and reporting to the seller a
defect. The apparent or concealed nature
of the defect and all the circumstances
of each particular case should be consid-
cred and the conclusion of fact should be
submitted to the jury under proper in
structions.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[SeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
i. E:GAL.

No. 17,S2S.
No. Is, O53.
The Holden Land and Live Stock COM
pany. and Howard NJ. Holden. Appel
lants,
The Interstate Trading Company, The
National Bank of Commerce, Of Kansas
City, Missouri, and George T. Cults.
M Rec eve Of said Bank, Appellees.
pany. and Howard M. Holden, Appel
lees,
The Interstate Trading Company, The
Nauonal Bank of Commerce, of Kansas
City, Missouri. and George T. Cults,
Receiver of said Bank, Appellants.
Appeal from Shawnee County.
First Division)
MODIFIED.
Syllabus. BY the Court Mason. j.
i. An agreement by mortgagor that
he will forfeit all interest in the mort
Gagged property. If he fails to pay the debt
secured by a fixed time, will not be en-
forced, although made after the execution
of the mortgage.
2. Where by the agreement of the mort
gagor and mortgage the note secured,
and deed for the mortgaged property
from the mortgagor to the mortgage.
lIVered to the mortgagor if he pays his
debt by a certain date otherwise the note
to be delivered to him and the deed to the
mortgages, the delivery of the deed IN
accordance with the agreement does not
deVest the mortgagor's title.
g. If such deed is regarded as taking
the continued existence of the Indebted
ness thereafter characteTizes it as mort
gage. If it is regarded as taking effect at
the end of the designated period 1T is in
valid as an absolute conveyance of title
because it is an attempt to procure in adj
vance release of the equity of redemp-
ton.
4. When a deed has been given under
such circumstances that it amounts to a
mortgage, the fact that the grantor ac-
cepts and signs a lease of the property
from the grantee does not preclude him
from asserting his right to redeem
g. Where party asks court to de
clare deed to be in effect a mortgage, he
may be required, as a condition to receiv-
ing such equitable relief, to forego the adj
vantage of any statutory penalties for the
exaction of I1sury, and submit to a charge
of the principal of the debt and legal in
tereSt.
All the Justices concurring.
true copy
Attest: D. A VALENTINE
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
No. 1858.
E. NJ. Long. Appellee,
NyG

NO. IL, 040-
E. NJ. Long. Appellee,
VS..
z. L. Smyre, Appellant.
Appeal from Kiowa County.
AFFIRMED.
Syllabus. BY the Court. Smith, J..
l. About twenty years before the COM
mencement of this action NJ owned Lot
10. Block IS. in the City of Greensburg,
Kansas and owned Lot g. adjoining on
the south. NJ erected stone building on
his property and, with the consent of S
but without any contract that S should in
any event pay anything therefor, placed
the south wall about one-half on Lot 10
and one-half on Lot 9. Through mesne
conveyances appellant. before the COM
mencement of this action, acquired title
to Lot g. and appellee to Lot 10. Appel
that the wall stood partly on that lot; and
neither he nor his grantors have paid
anything therefor. Held, that by the
conveyance from the owner thereof, ap-
pellee acquired the title and right of pos
session to Lot 9 to the north line thereof
including the portion of the wall stand
ing thereon.
2. Under the undiSpusted facts of this
case, each party owns the wall in ques-
ton, in severalty, to the common line be-
tween the respective lots.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
CSeal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
No. 1877.
Robert L. Rains, Appellee,

No. 1857.
Robert L. Rains, Appellee,
Joshua A. Stone, Appellant
Appeal from Montgomery County.
AFFIRMED.
Syllabus. By the Court. Johnston, C. ].
/. Under the findings the person in di-
rect charge of the factory herein involved
is held to have been the foreman and
agent of the owner and not an independ-
ent contractor, and the owner, who re-
tanned control of the workmen and the
work, is liable for an injury to an en-
ployee resulting from the failure to safe
guard the machinery, as the statute re-
quires, and also for neglecting to warn or
instruct the employee as to the dangers
of a defective machine of which the in
jured employee was ignorant
2 The factory act contains its own
definitions of the mills and manufacture
ing establishments which come within
its provisions and the meaning of these
expressions is not affected by the re-
strfcted definitions of like terms in the
act creating state society of labor and
industry being chapter "a, Laws of 1898.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14

No. 1851.
Nena H. Quinton, Appellant,
VS..
P H Adams, Appellee.
Appeal from Shawnee County.
First Division.
AFFIRMED.
Syllabus By the Court West, j.
After the sale of land on execution mo-
lions to confirm and set aside were filed,
the latter being granted and an appeal
taken. When the order was reversed and
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
No. 1885.
Mary O'Leary, Appellee,


Mary O'Leary, Appellee,
VS..
Metropolitan Street Railway Company,
Appellant.
Appeal from Wyandotte County,
Court of Common Pleas.
REVERSED.
Syllabus By the Court. Burch. j.
1. Under the circumstances stated Ill
the opinion it is held that the city of
Kansas City should be estopped from
now questioning the legality of certain
completed changes in one of its streets
made by the street railway company un-
der color of ordinances of the city, to
accommodate its railway.
2. In such a case the street changes.
although not warranted by the ordinances,
are to be considered as having been law
Iully made, the city having had power in
the first instance to authorize them, and
an abutting property owner should not be
allowed damages for resulting injury to
his property the theory that the work
was unlawful and created nuisance.
All the Justices concurrlng.
A true copy.
Attest: D. A. VALENTINE,
LSeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
No. 1881.
Lola Henry, Appellant,

Lola Henry, Appellant,
VS..
Amanda Butler, ct al, Appellees.
Appeal from Jewell County.
AFFIRMED.
Syllabus BY the Court. Smith, J.
1. Marriage is a sufficient consideration
for an ante-nuptial contract determining
the descent Of property and when such
contract is freely entered into, and is just
and fair, it should be sustained.
2. Under all the evidence in this case
relating to the age, the prior financial
condition of each of the parties, the duty
of the prospective husband to his three
young daughters and his prospects for
further accommodations of property there
after and the circumstances attending
the execution of the contract, the court
was justified in holding that the contract
was fair and equitable and was freely en-
tered into.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE.
(Seal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
No. 1854.
Miley Hawkins, Appellee,

RIiley Hawkins, Appellee,
vs.
Emma c. WindhOrSt, Appellant
Appeal from Edwards County.
AFFIRMED.
Syllabus. BY the Court. Mason, J.
l. An agent may ordinarily, without dis
closing the fact of his agency, make a
valid contract in his own name for the
sale of personal property, which may be
enforced by the undisclosed principal.
2. The application of this rule is not
defeated by the mere fact that in the
negotiations for the sale the agent stated
that he was the owner of the property,
and that the purchaser understood that to
be the case.
All the Justices concurrfng.
A true copy.
Attest d. A VALENTINE,
TSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14
No. 1885.
John Gardarl, Appellant.


The City of Humboldt ct al, Appel1ees.
Appeal from Alien County
AFFIRMED.
Syllabus By the Court. Burch, J
L BY virtue of section g. chapter 70,
General Statutes of 1868, the filing and
recording of plat of addition to d
city by the proprietor thereof vests the
fee of the streets shown by the plat in
the county for public purposes and no
formal acceptance by the city or user Ky
the public is necessary to perfect the dedi-
cation.
2. When the title to city street has
once become vested in the county for the
public benefit such title cannot be i'm
paired by any inaction delay on the
part of public Officials in devoting the
property to the uses to which it has been
dedicated. No equities can arise in favor
of individual who takes private posses
sion. His occupancy is subject to the
paramount right of the public and such
right may be asserted against any private
appropriation whenever the public cou-
venfence or necessity may suggest.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[Seal1 Clerk of Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-05-14

No. Is O13.
John NJ. Young, ct al. plaintiffs,
VS..
The Regents of the University of Kansas,
Defendants.
Original Proceedings in Mandamus.
WRIT ALLOWED.
Syllabus. BY the Court. Burch, ].
1. The plaintiff is citizen of Weir, the
owner of home there and the head of a
family. He is a coal miner by trade and
the superintendent of several coal mines
in his vicinity. He desires and intends to
attend the school of mines and metallurgy
created by chapter 80, Laws of 1911 and
educate himself in the branches of learn
ing required to be taught there, having
already taken a considerable portion of
the courses of study provided for, and he
has a son whom he desires and intends to