davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13
No. 1868.
Spadra-Clarksville Coal Company. Ap
pellee.
LEGAL.

LES!A1s>---
No. 1s,oes.
spadra-Clarksvilie Coal Company. APP
pellee.
Kansas Zine COMPANY, Appellant.
Sylabus- BY the Court Porter. J.
!: A manufacturing corporation. with
ou' having issued any shares of its au-
on All Of its property to secure an issue
OF ponds with provision that upon de-
, tanI n the payment Of interest the
the mortgaged property into their posses
sion through the trustee. and operate ana
manage the business and property a. .
Ing 3 - security. The conspsny dsfsaitsd
on It's payments, and at the request of
majority Of the bondholders the trustee
business, making one Of the principal
OK ndholdefs itS agent, ana the business
was continued for more than two years
mortgA9or. Thereafter at the request OF
ths bondholderD the trustee foreclooed the
mortgage ana the property was sold UNI
oondholders who thereupon organized
new company As holding company to
take the title to the property. ana the
the property to the new company. none Of
the authorized capital stock Of which was
issued. No consideration was paid for the
.sSA.~DS "a sssC - VII - ~ 49, AA<~
company. except the interest its incorpor-
Ators owned ~ b0ndholderA In an action
by plaintiff to recover for material and
supplies furnished to the bondholders
while in possession and which were used
for the purpose Of preserving the prop
erty a. security for the bonds. 1t IL held
that 1t would constitute q fraud On the
rights of the plaintiff to permit the new
company to acquire the title to the prop
erty freed from such obligations; that the
circumstances surroundins the creation II
the new corporation ana its succession to
tue business and property Of the old show
that there was. in fact, no purchase but
mere q change in the capacity in which
the business was conducted. The same
persons who conducted the business as
bondhOlders in possession as mortgages,
c--anged from partners or bondholders to
Incorporating of the new company. and
therefore. plaintiff WAS entitled to judy
ment against the new company.
2. In q motion for q new trial 1t 10 suf-
ficient to set forth the grounds In the
language Of the statute, and where such
motion recites ''erroneous rulinss' as
one OF it's grounds. appellant can have q
review of any ruling made on the trial
respecting the admission Of evidence.
All Of the Justices concurrfng.
true copy.
Attest D. A. VALENTINE,
[EeaI1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13
D. A. VALENTINE.
Clerk Supreme Court.
No. 10. 1853.
E. c. Watts, Appellee,

r. u. W0tI4, Appellee,
VS..
Emma Myers and Alonzo Lafayette Bur-
gon, Appellants.
AFFIRMED.
Syllabus. BY the Court. West, ].
l. On the trial OF an action by a widow
had been induced to convey by the fraud
and duress of her former husband she
was asked whether or not she had heard
case she did not sign the deed and an
swered IN the Affirmative. She was also
permitted to testify in answer to a Ques-
trouble .'well. had it from the surround
lre circumstances. what mad happened.
HELD. that such testimony was not in
civil code as amended by CHAPTER rs.
Laws of 1911. concerning transactions or
communications had with deceased per-
sons.
2 The testimony showed and the court
found that the former husband in con-
spiracv with his brother had by fraud and
conveying the land to the brother but that
the husband continued to be the real own
err Of the land up to the time Of his death
grantees without consideration the deed
70 them being made for the purpose of
defrauding the plaintiff. HELD. that 1t was
statements made by the deceased husband
after the execution Of the deed by the wife
that he still owned the land and had
wife.
8. Mere delay in bringing a suit does
~. estop the plaintiff from its mainten-
ance when the property has remained
Substantially the same md the rights Of
no innocent third party have INTERVIEWED.
4. The defendants never having been
themselves Of the fifteen years statute of
limitation A. a basis for claiming adverse
possession.
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE,
tseal1 Clerk suprsVne Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13

No. 1913.
Tho State Of Kansas ex rel John g.
Dawson as Attorney-General Plain
tin,
vs.
The Kansas City Stock Yard Company Of
Missouri. Defendant
ORIGINAL Proceeding In Quo Warranto.
JCDGFENT FOR PLAINTIFF.
SYLLABUS BY the Court. Mason. J.
stock yards. owning a track between such
yards and the railroads over which stock
Is transported thereto, and making
ch.lr-e to the railroad companies for each
car moved over sCch track. in accordance
with a tariff which It has filel with the
Interstate commerce commission. is to oe
common carrier.
The grant to foreign corporation of
the right to operate q took yards does
not carry with it the privilege Of engag-
ing IN business az common carrier in
the manner stated.
3. To the extent Of any intrastate busi-
ness done in that manner such a corpora
ton exercises q function which is unau-
thorized, and from which 1t will be ousted
by the courts upon application OF the
proper executiv officer Of the state,
L. The fact that most Of the business
that interstate business IL done only in
virtue Of the presence Of few cars Of
that character in an entire train. which
Is handled together does not effect such
merger of the two classes of business
as to place It all beyond the control Of
tie state.
Johnston. c. J.. Burch, J., Smith, j.,
Porter. J., and Benson, j., concurring
West, j. dissenting.
true copy.
Attest: d. A. VALENTINE,
lSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13
No. 19. 20s.
Caroline Glenn. Appellee.

No. Il, 209
Caroline Glenn. Appellee
vs..
The St. Luis 4 San Francisco Railroad
Company, ct al. Appellants
Appeal from Wyandotte County
division No -
AFFIRMED.
Syllabus. BY the Court. Johnston. c. J.
I. The rule that the supreme court can
not weigh conflicting evidence or 20 far
Their in its examination than to see that
there il substantial testimony to support
the finding or verdict Of tho trier Of the
facts IL herein applied.
z The rule that an employee OF q rail-
road company whose duties re quire his
presence upon the track and preclude the
strictest watch for the approach Of trains
IL not necessarily guilty Of contributory
negligence as . matter Of law II he on,its
to look and listen for the approach of q
train which strikes and injuries him but
that he il required to exercise such rea-
sonable care As the circumstances sur
rounding him would suggest to a man CT
ordinary prudence IL herein applied.
On q challenge OF the sufficfency Of
the evidence 1t - found to be sufficient to
sustain the verdict of the jury.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
[Seal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13
No. 1888.
H. A. Martin. Appellee

II. a Martln, appellee,
vs..
The Atchison, Topeka & Santa Fee Rail-
way Company. Appellant.
Appeal from Sedgwick County
Division No. 2.
AFFIRMED
Syllabus. BY the Court. Porter =
l. In an action under the Act OF Con-
gress known as the Federal Emp1overs,
Liability Act, brought against a raiiv.v
company by q brakeman of a freirht
train to recover for injuries 1t was shown
that the conductor directed the plaintiff 70
go forward and act as fireman while he
himself took charge of the locomotive for
the purpose of allowing the regular an
gineer and fireman to go to the caboose
to eat their dinner It was shown thai
while obeying the order of the Conductor
the plaintiff received injuries resulting in
consequence of the conductors nexli-
gence in managing the locomotive Held.
(a) In the absence Of any rule Of the
company prohibiting the conductor from
giving or a brakeman from obeying such
an order the conductor had authority to
order the plaintiff to act as fireman. and
in obeying such order the plaintiff was
acting within the scope of his employ
ment
(b) Under tho Federal Employers Liza
bility Act the railway company IL liable
for the negligence Of the conductor in the
management of the engine.
(c) The evidence fs sufficient to susu-
tain a finding that the plaintiff had not
assumed the risk, and that he was not
guilty OF contributory Negligence IN obey
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13
D. A. VALENTINE.
Clerk Supreme Court.
No. 1850.
X. G. Leavens, Appellee,

No. 1850
X. G. Leavens, Appellee
VS..
John ]. Hoover, Appellant
Appeal from Osborne County.
AFFIRMED
Syllabus. BY the Court Mason I
1. In an action upon a promissory note
one re principal issu - being whether
the p rintin was a holder in due course
1t is neld that prejudicial error was
Committed in restricting his cross-exam:-
nation concerning the circumstances un-
der WI ch he aQuired it.
2. Various trial rulings examined and
held not to require a reversal.
All the Justices concurrtng
A true copy.
Attest: D. A. VALENTINE
lSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13
No. $3.50.
Mary Olive Howe. Appellant.

No. o,1So.
Mary Olive Howe. Appellant.
We.
Henry H. Howe, ct al. Appellees.
Appeal from Summer County.
/, REVERSED.
Syllabus BY the Court. Burch. J.
In the premises Of deed the grantor
was described as 'of the first part" FIVE
persons who were his children. were
named as "of the second part" The
granting clause granted the land to the
parties Of the second part. their biood
heirs and assigns" The habendum was
forever" The covenant Of seizin was
with "said parties OF the second part"
The warranty was to "said parties OF the
second part their heirs and assigns" A
life estate was reserved to the grantor ~
a separate clause. HELD:
l. The intention OF the grantor IL to be
gathered from the four corners OF the M
strument. -
3 The grantor intended to make .
present grant Of the land to the five per-
sons named as parties OF the second part,
reserving to himself . lie estate. the
grantees were to have power to convey
but II no conveyance were made the lana
was to descend to their blood heirs only.
Z The words, blood heirs were words
Of limitation and not words OF purchase.
The Limitation was void and the grantees
took estates in fee-simp1e and not estate
for life.
Ali the Justices concurring.
Attest: ID. A. VALENTINE.
TSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13
IIECAL

EEGA1s
No. 1s.10.
Charles v. Norman, Administrators OF the
IsssIe OF French J. fallows. deceased.
Neiiss Rullman. Appsaless ana Narsnfsa
e 1aIlows. Appellant
REVERSED.
syllabus. By the Court. Benson. J.
In making q loan Of money
pf0mtso0ry note was taken, payable to the
order Of the lender at . certain date II
nv11ng. or in case OF his death to his
note was paid. the administrator Of his
estate sued the MAKER ana joined the
widow A. defendant who answered
In Il . issue Joined between the admin-
istrator and the widow, 1t is held that the
widow should recover.
left insufficient personal property to pay
all his debts Is immatsrial to the issue
All the justices concurring.
Attest: d. A. vAI.nrer1NE.
lSeaL1 Clerk Supreme Court
No. 1916.
Emelia New. and Robert HI. Clogston as
Trustee Of Emelia New. a convict. APP
pellees.
J. A. Smith, Appellant.
Appeal from Greenwood County.
MODIFIED.
Syllabus. BY the Court. West, ].
!. In an action to recover possession OF
certain real estate on the ground that
deed therefor had been procured by fraud
and that the defendant took his title with
notice OF such fraud the plaintiff testified
to transactions and communications had
personally by her with one OF the defend
ants grantors who was charged with the
attorney in the case. AT subsequent
trial, such grantor having died, the plain
tin was ON the defendants objection pre-
cluded from testifyine to the matters COW
upon offered In evidence the stenographer' 8
transcript thereof. HELD, that an objec-
ton thereto on the grounds OF incom-
potency and because 1t concerned transac-
tons and communication had personally
with deceased grantor from whom the
defendant claimed title was properly over
ruled.
2. The statute permitting the use Of the
stenographer's transcript of testimony
Gen. Stat. 1903. Sec 2lOD does not restrict
such use to the limitations which attach
to deposition under sections 6oH and 6S63.
3. The defendant claimed title by virtue
OF his purchase and also claimed the right
to possession by reason Of having paid
placed thereon by the plaintiff Upon mo-
ton of the plaintiff the defendant over his
protest was required to elect between
these defenses and elect to stand upon his
claim OF title. At a subsequent trial he
was held bound by such previous election.
HELD. that the two defenses are not in
consistent and the election was improper
~ required ana for that reason az well as
because 1t was compulsory the defendant
should not have been held bound thereby.
4. Such payment did not az q matter of
law work merger Of the interests Of the
the circumstances being optional with the
owner.
s. Although IT was determined that tho
defendant took his title with notice of
facts Aufficfeut To plff him unon fuuuiry
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13
No. 1909.
]. c. Borton. Appellant,

No. - 0&9.
]. c. Borton. Appellant,
VS..
George Mangus, Appellee
Appeal from Sherman County
AFFIRMED.
Syllabus. BY the Court Porter. T.
One who has occasion to pass over a
highway more frequently than Others does
not sustain special damage peculiar TO
himself beyond that OF the general public
which would entitle him to relief by in
junction.
All the Justices concurr7ne
true copy.
attest: d. A. VALENTINE
ISealI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13

No. 1905.
Camel williams. Appellee and Appellant
Herman Vessels. ct al. (O p. Shearers
@'p'"A'' Hppeliees5
/ Appeal from Butler County.
MODIFIED.
Syllabus. BY the Court. Porter, J.
I. In an action for the specific performs
ance of a contract to sell real estate. the
ficient to support a finding that a sub.
note, -, the plaintiff's rights.
2 The provisions Of the act regardin9
descent and distributions relate to lands
in Kansas owned by any intestVe at the
time Of his death, irrespective of his resi-
g. Where the owner Of land in Kansas
executes a valid contract for its sale, In
which his wife. who was ut one time q
resident Of the state. does not Join, later
deed executed by the husband and vile
transfers her interest in the land free ok
any claims Of the original purchaser. not
yyithstandink the grantee has notice of the
prior contract
L. Where the owner Of land in Kansas.
whose wife has at one time been resi-
dent Of the state. contracts for its SALE
agreeing to convey q full title. and his
chaser may enforce specific performances
AGAINST the husband. or any one who
claims under him with notice of the con-
tract SO far az that II possible. receiving
an abatement In the agreed purchase
price to the extent to which the value OF
the title he obtains II diminished by the
outstanding interest of the wife.
All the Justices concurring. So
A true copy.
Attest: ID. A. VALENTl Ne,
TSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13
No. 1907.
Loyal M. Martin, Appellant.

VS.
Loyal ]. Martin as the executor of the
last will and testament Of d. ID. Martin.
deceased. Appellee.
Appeal from Chautauqua County.
AFFIRMED.
Syllabus. BY the Court Smith !,
I. The laws of Kansas determines the
descent and distribution OF real estate
situated in this state.
2 When there is no ambiguity or un
certainty in the language used in the
making OF will, 40 construction Of he
Will Is necessary and il will be enforced
In accordance with the provisions thereof.
All the Jusuces cuncurring.
true copy.
Attest:
lSeal.l D. A. VALENTINE.
Clark SunremA Co,,rA
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13
.lE0Aa.

s>~-~>~---.>>>~e-~sSCC<
I'D Certain special findings when con
sidered In the light Of the evidence. tne
questions Of the parties and all the facts
not to be 30 Inconsistent with each other
or with the general verdict as to author
ize the granting Of q new trial:
Of TT plaintiff were caused by defect N
the tire Of one OF the drive wheels OF tho
ocomEtiys that Il was loose and na
with notice thereof. The jury found thas
il became , defective BY the improper S 1ss
acting as engineer. and that this occur
red but few moments before the injury
cial findings and the evidence show that
plaintiffs injuries were caused by the neg
ligence of the conductor, the company Is
:Ss hsd q ss :os 81 sny Of tire
All the Justices concufrtng.
Attest: ID. A. VALENTINE.
[SeaLJ Clerk Supreme Court
No. 1s.o5s.
William F. Perry, Administrator OF the
pellant.
Edward g: Robertson; Appsliss.
Second Division.
AFFIRMED.
Syllabus. BY the Court Smith. J.
1. In an action brought in this state, the
statute Of limitations Of this state applies
unless the statute OF another state or
country Is pleaded as applicable.
2. In such case, no other statute being
pleaded and it appearing by the petition
that the action is barred Under .he statute
Of Kansas, the petition is dem1rrabie.
All the justices concurr1ng.
true copy.
Attest: q. A. VALENTINE.
rSeAll C1crk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13
D. n. VALENTINE.
Clerk Supreme Court
No. 1874.
Sarah F. Barker, Appellee


Sarah F. Barker, Appellee.
VS..
The Missouri Pacific Railway Company.
Appellant.
Appeal from Wyandotte County.
AFFfRM HSi -
Syllabus. BY the Court. Johnston, G. ].
l. Where fruit trees which have dis
tinct value as a part of the land are In
jured and DESTROYED by fire through the
the damages sustained can be definitely
measured by showing the value Of the
trees before and after che fire ana this
no material error in the failure Of the
court to direct the application Of the rule
that the measure OF damages is the diff
and after the burning Of the trees.
q The owner is entitled to plant an or
chart on his land whether or not It is
e a ,piied and If the fruit trees are de-
stroyed he Is entitled to claim damages
from the wrongdoer for being deprived OF
g. Under the evidence herein it can not
be held that the damages awarded are
excessive.
All the Justices concurring.
Attest: D. A. VALENTINE.
[Seal1 Clerk Supreme Court
George C. Delearno and Anna B. Del
garno. Appellee.
VS..
pany ct al. Crhe Middle West Portland
Cement Company. AppellanD.
Appeal firm ,, Allen &c. County.
Syllabus. BY the Court. Mason. J.
/. The petition examined and held not
to be denurrable for mistoinder or for the
failure to state cause Of action.
2 In an action for a money judgment
equitable relief was also sought. Both
features Of the case were heard together
Of the evidence was admitted because of
Its effect upon matters to be decided by
the court. but that they might consider
tiers submitted to them. Held. that under
all the circumstances Of the case II does
not -ppea-- that material prejudice re-
g. Other rulings examined and held not
to continue error.
All the Justices concurdng
Attest: d. A. VALENTINE,
lSeaL1 Clerk Supreme Court
No 1854.
Tobias Byland, Appellant,
E. I. Dupont De Nemours Powder Com
pany. Appellee.
Appeal from Cherokee County.
REHEARING LEN1ED.
In an AM action Tor damages caused By an
explosion Of defendants powder mill the
former decision affirming the Judgment
which sustained a demurrer to the plain
tif's evidence IL adhered to.
All OF the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
tSeaL1 Clerk Supreme Court
No. 1907.
Fielder E. Moore, martha r. Provence
ct al. Substitute for Fielder e. Moore.
Appeliants.)
William w. Moore ct al. Appellees.
Appeal from Cowley County.
REVERSED.
Syllabus BY the Court. Smith. j.
]. The effect of the deposit Of q. deed
in escrow. as between the parties thereto.
is largely a question of the intention of
the parties and especially of the grantor.
2. Where there is any. evidence fairly
tending to establish a right to relief IN
favor of one party to an action. the evil
dence should all be considered and the
case should he decided upon the pre-
ponderance thereof and not upon a de-
murrer to such evidence.
All the justices CON ring
A true copy.
Attest D A. VALENTINE.
tSeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13
No.S4a5GT4
The Larapee 1cb,r :ssfiIls Co..

: the Iar.Des !. '9St " 's!. Co.
The Missouri Pacific Railway Co.
Decision respecting the filing of . plea
Syllabus: By the Court. Benson. j.
An action to compel the railway COM
pany to perform a duty in moving cars
resulted In the allowance OF q peremp-
tory writ OF mandamus. The defendant In
the alternative writ had denied the juris-
diction Of this court, alleging that the
service demanded was a part of interstate
made In the supreme court OF the United
States which reviewed the Judgment of
this court. but the judgment was af-
hrmed- Meanwhile Ia proceedings in the
same action judgment was rendered for
damages against the Railway company.
On q review OF that Judgment in the SUI
preme court Of the United States. it was
ing as damages tenn of attorneys fees
and expenses in the supreme court Of the
United States. but that from a federal
point of view there was no error in the
judgment to the extent that 1t awarded
damages complained OF and allowed a
court Tc sve ec Is these
the judgment was reversed and the cause
remanded for furth proceedings not in
consistent with the opinion Pending the
entry of judgment on the mandate con-
tanning these directions the defendant pre-
scented plea in abatement and a pro-
posed s,,. answer . setting ~. up With greater
merce acts, ALLEGING that they deprived
TINS court of jurisdiction. and pleading
especially that it had filed schedule Of
rates for the services In question which
had been approved by the Interstate
Commerce Commission and praying that
the court should proceed no further ex-
cent tn dismiss the action.
It Is held a. that the original pleadings
were sufficient to admit the proof respect
ing the schedule referred to; % that the
jur1sdictional question was determined
by the judgment Of this court and that of
the slpreme court of the United States
at least 30 far as It was presented and
every fact available for that purpose now
was equally available At. the trial: 81 that
IL TT e reference to the schedule should be
considered as q new feature Of the plead
ing it should not now be allowed in or
der to present federal question not be-
fore raised: and ~ that Judgment should
be entered upon the mandate for the
DAMAGES which the reviewing court held
were not erroneously allowed.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
rSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13
d. A. VALENTINE.
Clerk Supreme Court.

No. 1s.lM-
Nora Jinlkiaway. ct NJ, AppeIlants,
= Va.
Bertha Ardellia Ford. ct al. Appeuees.
Appeal from Clay County.
AFFIRMED.
Syllabus. BY the Court. Benson. !.
!. It IL the duty Of q tenant Tor ine IN
Possession. and enjoying the rents ana
profits Of land, to pay the taxes thereon.
2 A femanderman not In possession
and having no right to the occupancy Or
use OF thu land may purchase and hosu
tax title thereon 0naef sale x0r Ge-
linquent taxes which the lie tenant Ought
to have paid.
3 Where q remainderman purchases q
tax title In the circumstances above stat
ed. and enters into possession under IL.
and afterwards takes . Quit-clatm deed
from the lfe tenant. the tax title IL not
necessarily merged in the conveyance OF
the life estate.
l. One Of the several remaindermen
who does not have the pooDesston, or right
OF possession. or right to rents and
profits. who purchases the property at
sale Tor taxes which the life tenant ought
to have paid. to whom a tax deed valid
on its face 10 issued. may hold the tax
title Tor his own use and benefit az
against other remaindermen.
All the Justices concurrtng.
Attest: D. A. VALENTINE,
lSeall Clerk Supreme Court.