was rendered against Kelson, which was not executed. Kelson then purchased the land at tax sale and extended his possession to full occupancy. This gave him a new, independent, paramount right, not adjudicated in the action of ejectment, upon which he could stand. In the opinion it was said: "Of course, the adverse judgment in the ejectment action is binding upon the plaintiff and concludes him in respect to the title and possession ineffectually defended in that action; but under many circumstances there may be a title and possession entirely distinct and wholly disconnected from that involved in the ejectment action, so that there is in fact no privity between the holder and the defeated ejectment defendant. In such cases the judgIn such cases the judgment extends no further than the title and possession which the parties were able to litigate, and, if a person claiming separate, paramount, and undetermined rights enter pending the ejectment action, a writ of possession may not be executed against him."

Wells took nothing as against Titcomb by the quitclaim deed from the United States Investment Company. The investment company had already deeded to Titcomb. True, Titcomb's deed was not of record, but he was in possession by his tenant, Miller, which fact afforded notice to the world of his rights. Wells was charged with this notice when he took his quitclaim deed, and he could not strengthen his position by litigating with the tenant alone. None of Titcomb's rights could be affected by legal proceedings to which he was not a party, of which he had no notice, and in which he did not participate. All of his rights, undiminished and unimpaired, were acquired by the plaintiffs after the judgment in favor of Wells had been rendered. In 23 Cyc. 1261.

it is said, citing the American cases: "In some states it is held that, where ejectment is brought against a tenant in possession, and he gives due and legal notice to his landlord, and the latter has an opportunity

to come in and defend, the landlord is bound by the judgment against the tenant; but in others it is held that the lessor is not estopped or concluded by the judgment in a former action against his tenant, although he may have been notified and have even put his title in issue and defended it, unless he was made a party of record." In In this state there is no statute providing for notice to the landlord of suits against his tenant, and the doctrine that one not a party to a suit may be made privy to it, and so be concluded by the judgment rendered, by a merely private notification and an opportunity to defend, has not met with favor. Park v. Ensign, 66 Kan. 50, 54, 71 Pac. 230, 97 Am. St. Rep. 352. Under certain conditions, which are stated in the case last cited, one not a party to the record may be

judication, and hence be bound by the judgment; but neither of these situations is presented in this case. We have here the naked question of the effect upon a landlord's title of a judgment in ejectment against his tenant. In the case of Redden v. Tefft, 48 Kan. 302, 306, 29 Pac. 157, it is said: "Second. Arthur I. Tefft, the son of Eli A. Tefft, was only holding the land, at the commencement of the action of June 2, 1885, under his father as a tenant. It does not appear that Eli A. Tefft was notified of the pendency of that action, or defended it. Not being a party thereto, he cannot be bound by the judgment, or any proceeding therein. A landlord, without notice or knowledge, cannot be prejudiced in his title by his tenant's acts or defaults." True, the action referred to in this opinion was one of forcible entry and detainer, which by statute does not bar subsequent actions to recover the same land; but the language quoted states a second ground, outside of and beyond the statute, for holding that the landlord's rights are not affected by a judgment of ouster against his tenant. his tenant. The reasons are that the landlord should have his own day in court. He is not in privity with his tenant because he does not claim under or hold in succession to the tenant, and sound titles might be weakened or utterly destroyed by actions undefended or imperfectly defended by tenants, or by actions brought in collusion with tenants, which their landlords might successfully resist if duly impleaded and served

with process.

Confining the decision to the facts of the who is not a party to, has no notice of, and present case, it may be said that a landlord does not defend, an action of ejectment prosecuted against his tenant, is not bound by a judgment in the action adverse to the tenant. 24 A. & E. Encycl. of L. 749; 2 Underhill, Landlord & Tenant, 975, § 582. For the reasons already stated, the judgment quieting Ditlinger's title against the investment company is no bar to the plaintiff's

suit. When the Miller tax deed was set aside in the ejectment suit brought by Wells, the Millers were given a lien for taxes, and Wells was required to satisfy this lien beThe evifore he could obtain possession. dence is uncontradicted that Wells paid the required sum to the clerk of the district court, who in turn paid it to the plaintiffs. It was and is the duty of the landowner, whoever he may be, to pay these taxes. In equity the payment by Wells should operate as an assignment of the lien to him, and his deed to Ditlinger should operate as an assignment to Ditlinger. The plaintiffs seek equitable relief and ought to do equity. Wagner v. Underhill, 71 Kan. 637, 81 Pac. 177. It seems this matter was not well presented to the district court; but upon the whole record it is clearly just that the relief

It is contended on the part of the petitioner that the sentence as shown by the first journal entry of the district court of Rush county was void for the reason that it is not authorized by this section of the indeterminate sentence law. It will be observed that, according to the first journal entry, the limit of the penalty which the court assumed to fix was the same as the limit fixed by law, except that it was not less than one year, whereas the statute prescribes that it shall not be less than three years. It appears, however, that the judgment pronounced was in accordance with law, and that the journal entry of the judgment was inaccurate. The district court of Leavenworth county did not undertake to discharge the petitioner at the time of the hearing, but simply held the judgment irregular, and ordered that the petitioner should be returned to the district court of Rush county for resentence within 30 days, and, if not so returned, that he should be discharged. It is not shown that he was not returned within the 30 days; but he was not taken before the court within that time for the reason that the court was not in session. Section 5167, Gen. St. 1901, provides: "No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following:

or, second, upon any process issued on any final judgment of a court of competent jurisdiction. ***" The jurisdiction referred to in this provision is evidently the jurisdiction to render judgment in the case. It is not questioned but that the district court of Rush county had jurisdiction to render a proper judgment. The evidence before the district court of Leavenworth county was that the jurisdiction had been irregularly exercised, but the Leavenworth court properly refused to discharge the defendant by reason thereof. The habeas corpus proceeding is a collateral attack upon the judgment of the district court of Rush county, which, even if irregular, is not void. The defendant was regularly convicted of the crime of manslaughter in the second degree, and was senrenced therefor. And it now appears that the judgment was pronounced in accordance with law, but was not correctly recorded. The law fixes the duration and limitation of

the punishment. In re Howard, 72 Kan. 273, 83 Pac. 1032, and cases there cited. The judgment was not subject to collateral attack. In re White, 50 Kan. 299, 32 Pac. 36; In re Corum, 62 Kan. 271, 62 Pac. 661, 84 Am. St. Rep. 382. If the defendant desired to avail himself of any irregularity in the sentence, he should have done so by a direct appeal to this court, and not by a collateral attack. In re Nolan, 68 Kan. 796, 75 Pac. 1025. The district court of Leavenworth county should have remanded the petitioner to the

penitentiary, and its order to have him returned to the district court of Rush county for resentence was void, at least so far as it implied any order to act or restriction upon the time of action by the district court of Rush county. In reply to the contention that the district court of Rush county was without jurisdiction to amend the journal entry of its judgment and to reorder the petitioner remanded to the penitentiary, we have only to refer to the decisions fully sustaining such action. The court has authority during or after the term at which judgment was rendered, when it discovers that its records do not speak the truth with regard to a judgment, to have such records amended so as to speak the truth. Lombard Inv. Co. v. Walsh, 70 Kan. 899, 79 Pac. 688; Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530, 85 Pac. 594; Chemical Co. v. Morrison, 76 Kan. 799, 92 Pac. 1114.

It is the judgment of this court that the petitioner be remanded to the penitentiary of the state of Kansas under the commitment of the district court of. Rush county until he is discharged according to law, and that he pay the costs of this proceeding. All the Justices concurring.

STATE V. MENZ.

(Supreme Court of Kansas. Nov. 6, 1909.) 1. CRIMINAL LAW (§ 1122*)-APPEAL-REVIEW -INSTRUCTIONS.

ous, because based on evidence that had been The contention that a charge was erronewithdrawn, cannot be considered on appeal, where the bill of exceptions does not contain the evidence.

Cent. Dig. § 2941; Dec. Dig. § 1122.*] [Ed. Note.-For other cases, see Criminal Law, 2. CRIMINAL LAW (§ 823*)-TRIAL-CURE OF

ERROR-INSTRUCTIONS.

Any error in giving a charge based on an exhibit was cured by an instruction to wholly disregard the exhibit.

Dec. Dig. § 823.*1 [Ed. Note. For other cases, see Criminal Law,

3. CRIMINAL LAW (§ 554*)-EVIDENCE-CRED

IBILITY OF WITNESSES-INTEREST OF ACCUSED.

The interest of accused may be considered as affecting his credibility as a witness.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1255, 1256; Dec. Dig. § 554.*]

Appeal from District Court, Sedgwick County; Thomas C. Wilson, Judge.

Henry Menz appeals from a conviction. Affirmed.

J. A. Brubacher and James Conly, for appellant. F. S. Jackson, Atty. Gen., and W. A. Ayres, for the State.

PER CURIAM. Instruction No. 8 informed the jury that the finding of a United States revenue stamp in a place used for the manufacture or storage of intoxicating liquors, showing payment by any person of the

COLLINS v. NORTON. (Supreme Court of Kansas. Nov. 6, 1909.) DEEDS (§ 61*)-DELIVERY-EVIDENCE.

The owner of land executed a warranty deed without reservations or exceptions, conveying the land to a member of his family, and deposited it in the hands of a third person to be delivered to the grantee "in case anything happened to him or he died." There was no evidence tending to show that he retained dominion or control over the deed. After his death, it was delivered to the grantee. Evidence examined, and held sufficient to warrant a finding of the court that the delivery was effective. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 140, 141; Dec. Dig. § 61.*]

(Syllabus by the Court.)

would have to be delivered by him to the grantee or to some one for her in his lifetime. On the day it was acknowledged Lamphier took the deed to the bank, and left it with E. E. Mullaney, who testified as follows: "He said he wanted it left with us to be delivered to Elsie Smith in case anything happened to him, or he died. I don't remember the exact language, but simply in case that he died, or in case of his death, he wanted it delivered to her." After his death the deed was delivered to her by Mr. Mullaney and placed on record, and this action was brought.

The defendant, who is a brother-in-law of Isaac Lamphier, claims title by virtue of a warranty deed executed by Lamphier in

Action by Elsie Norton against George W. Collins. Judgment for plaintiff, and defendant brings error. Affirmed.

D. Turck, for defendant in error.

PORTER, J. The plaintiff, Elsie Norton, formerly Elsie Smith, brought an action in ejectment and recovered judgment. The defendant brings error.

The land in controversy, which is a farm of 200 acres, at one time belonged to Isaac Lamphier, who died in 1906 at the age of 86 years. The plaintiff had been a member of his family for 21 years. She went to live with him and his wife when she was 16 years old under an agreement that, if she would remain with them until their death, they would leave her all their property. They had no children of their own, and treated her as one of the family. The undisputed testimony shows that she faithfully fulfilled her part of the agreement. She helped with the usual housework, milked the cows, fed the stock, and sometimes worked in the field. She was paid no wages, and received only her board and clothing. The wife of Isaac Lamphier died 10 years before his death occurred. The plaintiff nursed her in her last illness, and remained with Mr. Lamphier until his death, nursing and caring for him in the latter years of his life. Her claim to the land in controversy, however, is not based upon the agreement with the Lamphiers and performance on her part, but upon a warranty deed which Lamphier executed in 1900. The deed was a general warranty without exceptions or reservations. It was dated September 5, 1900, and acknowledged October 27, 1900. The testimony was that it was drawn at the request of the grantor by F. D. Turck, an attorney. The grantor went to his office with a description of the land, and said he desired to make a deed conveying the land to Elsie Smith. He was informed by Mr. Turck that, in order to make the conveyance valid, a delivery was necessary, and that the deed

They had no previous arrangement or understanding that the deed was to be made. He further testified that he had no knowledge of the existence of the deed to the plaintiff, and that he took immediate possession of the land, and occupied it exclusively, openly, and notoriously from that time. On the contrary, the plaintiff testified that she informed him of the existence of her deed long before he received his, and, further, that from the time he took possession of the farm until Lamphier's death he accounted to Lamphier for the rents, and that Lamphier paid the taxes. There was evidence tending to corroborate the plaintiff in this respect. defendant kept a store at which Lamphier had an account. The account was kept in the handwriting of the defendant, and showed a charge against Lamphier for the taxes of 1903, and the tax receipt for this year was in Lamphier's possession at the time of his death, together with a memorandum or waybill showing the amount of wheat raised on the land in 1903.

The

There was some evidence tending to show that in 1903 Isaac Lamphier changed his mind and concluded to dispose of all his property in his lifetime, and to make a different disposition of the land in controversy. In the deed to the defendant he included not only the 200 acres but 80 acres of other land to which the plaintiff has made no claim. About this time he conveyed all the rest of his property to Elsie Norton. It consisted of two pieces of town property and some notes secured by mortgages, and he gave her the immediate possession of both real and personal property.

The defendant has cited a great many authorities in reference to what will constitute a valid delivery of a deed to take effect on the grantor's death; but the main contention is that the evidence was more favorable to the defendant than to the plaintiff. In