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HEATH v. CITY OF IOLA et al. (Supreme Court of Kansas. Nov. 6, 1909.) 1. MUNICIPAL CORPORATIONS ($ 672*)-WORK ON STREETS BY INHABITANTS GENERAL GRANTS OF POWER.

Where an express provision of the statute

same right by implication.

Corporations, Cent. Dig. §§ 1452, 1453; Dec. [Ed. Note.-For other cases, see Municipal Dig. § 672.*]

2. MUNICIPAL CORPORATIONS (§ 646*) -ROAD DISTRICTS-STREETS-STATUTES-CONSTRUC

TION.

death, which was wrongfully taken away from the possession of his administrator, where it was awaiting the due course of administration. The defendants did not claim title to it otherwise than under the heir, who could obtain no title except through distribution or purchase at the administrator's sale. The defendants claimed upon the giving cities of the second class authority to require its residents to perform labor on the trial that the administrator and his brother, streets is repealed, general grants of power are the execution debtor, had divided the prop-not readily to be construed as conferring the erty between them; the part levied upon falling to the share of the latter. Whatever may be the effect of such an attempted division, without an order for, or approval by, the probate court, and before the time for exhibiting claims by creditors had elapsed, the general finding of the court upon conflicting evidence determines the fact-if it be materialagainst the defendants. Indeed, the constable stated in his return that he had taken the property from the possession of the administrator who claimed it. He did not even state that it was levied on as the property of the debtor. The effect of the judgment, aside from the order appealed from, was to restore this property to rightful custody so that the administration might proceed as required by law. In the hands of the administrator it was not subject to seizure under execution, for it was in the custody of the law. Freeman on Executions, § 131.

But it is urged that the administrator can

not complain of the order appealed from because he may still use the property to pay debts and expenses if it becomes necessary. To comply with this order, however, he must hold these animals until the time for filing claims has elapsed, and then, if the debts and expenses can be paid out of other property, they must be returned to Grover. In other words, in this summary proceeding to obtain possession of the property of the estate, the assets are classified, and a conditional lien is fixed upon a part. The wrongful seizure and removal are thus made the basis of a valuable right. Another effect of this order is that the distribution to be made upon final settlement is predetermined, and, if this property only shall be left for distribution, it must be delivered to one of the two heirs to the exclusion of the other, and this without any adjudication of their respective rights thereto.

If this practice should prevail, it would, as stated by Mr. Freeman in the section cited, not only embarrass and delay the settlement of estates, but would often draw them away from the courts of probate, where they ought to be settled. The author points out other evils which can be easily foreseen if such course should be pursued.

The judgment of the district court will be modified by striking out the order above copied, and the cause is remanded for such modification. All the Justices concur.

1901, § 6031) making each incorporated city "of The amendment of the statute (Gen. St. more than six hundred inhabitants" a road district, by striking out the words quoted and inserting "of the third class" (Laws 1907, p. 466, c. 295, § 1), indicated a legislative purpose to withdraw cities of the first and second class from the operation of that provision.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1419; Dec. Dig. § 646.*] 3. MUNICIPAL CORPORATIONS (§ 646*)-STREETS -ROAD TAX-STATUTES-CONSTRUCTION.

The provision of the law of 1909 (Laws 1909, p. 499, c. 198, § 8) making all male residents of the state between certain ages amenable to the road tax therein referred to, being essentially a re-enactment of the old law, did not indicate any change of legislative policy in that regard.

Corporations, Cent. Dig. § 1419; Dec. Dig. § 646.*]

[Ed. Note.-For other cases, see Municipal

(Syllabus by the Court.)

Appeal from District Court, Allen County; Oscar Foust, Judge.

Suit by Perry Heath against the City of Iola, Kan., and others. Judgment for defendants on demurrer to the petition, and complainant appeals. Reversed and remanded, with directions.

Frank R. Forrest, H. A. Ewing, and Ritter & Forrest (Ewing, Gard & Gard, of counsel), for appellant., Travis Morse (Morse & Pees, of counsel), for appellees.

MASON, J. In July, 1909, a city of the second class passed an ordinance imposing a road tax payable in work, the refusal to perform which was made punishable as a misdemeanor. An injunction was brought to restrain proceedings under the ordinance on the ground that it was void because not authorized by the statute. The district court sustained a demurrer to the petition, and the plaintiff appeals. The sole question presented is whether under the existing laws the city had the power to pass such an ordi

nance.

Prior to 1907 the statutes contained the following provisions, which clearly authorized a city of the second class to require its residents to perform labor upon the streets:

"All male persons between twenty-one and son lives, to be expended as above provided; forty-five years of age, who have resided unless the commissioners of roads and highthirty days in this state, who are capable ways shall when they meet recommend that of performing labor on public highways, and all such male persons shall perform two who are not a township charge, shall be days' work, or one day's work with a team, liable each year to perform two days' work upon the highways, in lieu of said three of eight hours each on the public roads, un- dollars, in which event all such persons shall der the direction of the road overseer within be liable each year to perform two days' whose district they respectively reside, or work of eight hours each or one day's work furnish a substitute to do the same, or pay with team on the public roads, under the dithe sum of one dollar and fifty cents per day rection of the road overseer within whose to said road overseer, who shall receipt for district they may respectively reside, or the same, and expend it in repairs on the furnish a substitute to do the same, or pay public roads within his district. ***” the sum of three dollars." Laws 1909, Gen. St. 1901, § 6033. "Each incorporated p. 499, c. 198, § 8. "Each incorporated p. 499, c. 198, § 8. The provision making all city of more than six hundred inhabitants male residents of the state between certain shall constitute a separate road district, and ages amenable to the statute, being essenthe corporate authorities of such corporation tially a re-enactment of the old law, does shall have power to appoint a road overseer not indicate any change of policy in that for such corporation, fix his term of office regard. The provisions regarding cities have and compensation, and remove him from of- a field of operation, since cities of the third fice for any misconduct, * * * and any and any class are affected by them. We discover in such city shall have the power to pass any the legislation of 1909 nothing to indicate by-law or ordinance necessary to carry out a restoration of the former plan of constifully the provisions of this act." Gen. St. Gen. St. tuting cities of the first and second class 1901, § 6031. In 1907 section 6031 was road districts. Were it not that the enrolled amended by striking out "each incorporated bill is practically unassailable evidence of city of more than six hundred inhabitants," the action of the Legislature, the Senate and and inserting in lieu thereof "each incorpo- House Journals would afford convincing proof rated city of the third class." Laws 1907, Laws 1907, that section 6031 as amended in 1907 in fact p. 466, c. 295, § 1. There seems no escape covered cities of all classes, not using the from the conclusion that this change depriv- phrase "of the third class" at all. That was ed cities of the second class of the power the form in which the bill passed both houses, they had possessed under the earlier statute. according to the journals. Senate Journal, The power is one not readily implied from 492; House Journal, 828. mere general provisions. 27 A. & E. Encycl. of L. 916. But, if the ordinary rule of interpretation were otherwise, it could not well be applied here. The Legislature had its attention directed to the very matter involved. A special enactment was made covering the subject. The repeal of this enactment must be deemed not only a withdrawal of the authority thereby expressly granted, but, in effect, a denial that a like authority was conferred elsewhere by implication, for it evidences a legislative policy unfavorable to the existence of that particular power. Galloway v. Tavares, 37 Fla. 58, 19 South. 170; 28 Cyc. 266.

The judgment is reversed and the cause remanded, with directions to overrule the demurrer to the petition. All the Justices concurring.

MCLAUGHLIN et al. v. WALL et al. (Supreme Court of Kansas. Nov. 6, 1909.) 1. AsSOCIATIONS (§ 20*)-ACTIONS-PLEADING -CAPACITY OF PARTIES.

that the action is brought by an association of The title and body of the petition showing individuals as an entirety, the character of which is fully described, but in their own names, capacity to sue is shown.

[Ed. Note.-For other cases, see Associations, Cent. Dig. § 43; Dec. Dig. § 20.*1 2. ASSOCIATIONS (§ 20*)-ACTION-PLEADING

-DEMAND.

The petition in an action by an association showing that defendants withdrew from it, but wrongfully keep its property, no formal allegation of demand is necessary.

[Ed. Note.-For other cases, see Associations, Cent. Dig. § 43; Dec. Dig. § 20.*]

In 1909, among other changes in the road laws, section 6033 was amended to read as follows: "All male persons between twentyone and fifty years of age who have resided thirty days in this state and who are not a public charge shall be liable each year to pay the sum of three dollars to the township highway commissioner or to the road overseer of his district, who shall receipt for the same and account therefor to the said commissioners, and the same shall be expended on repairs on the public roads within the district in which the persons live. And all moneys so received shall be paid over to the township highway commissioners or proper officer of the city in which the per- remanded. *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

Appeal from District Court, Neosho County; James W. Finley, Judge.

Action by William McLaughlin and others, a voluntary association, etc., against John W. Wall and others. Judgment for defendants. Plaintiffs appeal. Reversed and

C. S. Denison, J. M. Nation, and E. W 13. APPEAL AND ERROR (§ 931*)-FINDINGS— REVIEW. Grant, for appellants. W. R. Cline and J. Q. Stratton, for appellees.

PER CURIAM. The title and body of the petition show that the action is brought by an association of individuals as an entity, the character of which is fully described, but in their own names, so that capacity to sue appears. The petition does not disclose a joint ownership or tenancy in common of the property with the defendants. It shows ownership by the association of which the defendants are no longer members. The allegations respecting ownership by the associated plaintiffs are plain enough. Since the facts are stated, it is not necessary to name the kind of ownership by calling it either general or special. If the so-called disjunctive allegation confused the matter, then the amendment ought to have been allowed. The petition shows that the defendants withdrew from the association, but wrongfully keep its property; hence a formal allegation of demand is not essential. The allegations of value in the petition control in this proceeding. If, as the petition alleges, the defendants are not members of the order, they have no standing to invoke its laws, but, if they have, there is nothing in the laws pleaded to prevent the civil courts from settling the title to this property.

The demurrer to the petition was rightfully overruled, and the objection to the introduction of testimony was wrongfully sus

tained.

Reversed and remanded.

In a case tried by the court, where the court submits questions of fact to the jury in an advisory capacity, and adopts their findings, it will be assumed that the court gave proper weight to all the competent evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3765, 3766; Dec. Dig. § 931.*]

4. JUDGMENT (§ 256*)-CONFORMITY TO FIND.

INGS.

In a case tried by the court, where the court makes special findings in favor of the defendants, and finds generally on all the issues in their favor, and renders judgment accordingly, and some of the special findings appear to be insufficient to support the judgment, and the plaintiffs have neglected to ask the court to make further findings or to modify those made, the special findings will be disregarded, and the general finding held sufficient to support the judgment.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 447; Dec. Dig. § 256.*1] (Syllabus by the Court.)

Error from District Court, Montgomery County; Thomas J. Flannelly, Judge.

Suit by the People's Gas Company and the Atlas Crude Oil Company against Joseph Fletcher and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

The plaintiffs sought to enjoin Fletcher and wife and Yoke from operating for oil or gas or removing the same from land belonging to the Fletchers. The petition alleged that on September 4, 1899, Joseph and Matilda Fletcher executed and delivered to the Pennsylvania Oil Company, a partnership, an oil and gas lease to the northwest quarter of section 20, township 34, range 16, for a period of 10 years from that date, and as much longer as oil or gas should be produced in paying quantities, and that, by subsequent assignments, the lease became the property

PEOPLE'S GAS CO. et al. v. FLETCHER of the plaintiffs. The lease provided that,

et al.

(Supreme Court of Kansas. Nov. 6, 1909.) 1. ACKNOWLEDGMENT (§ 55*) - EFFECT - IMPEACHMENT BY PAROL.

A certificate of acknowledgment made by an officer authorized to take acknowledgments is only prima facie evidence of the execution of the instrument; and while it is entitled to a strong presumption in favor of its truth, it may be impeached by parol testimony.

[Ed. Note. For other cases, see Acknowledgment, Cent. Dig. § 295; Dec. Dig. § 55.*] 2. ACKNOWLEDGMENT (§ 62*)-IMPEACHMENT

EVIDENCE.

Where the parties have actually appeared and signed an instrument, and afterwards attempt to contradict the certificate as to what took place, the evidence to impeach the acknowledgment must be clear and convincing. Gabbey v. Forgeus, Adm'r, 38 Kan. 62, 15 Pac. 866. But, where the parties deny the execution of the instrument and claim neither to have signed nor acknowledged it, their testimony is admissible to impeach the certificate, and will be entitled to as much weight as that of any other interested witness.

if no oil or gas well was sunk on the premises within 12 months, the lease should be- · come null and void unless the second party should pipe gas to within 100 feet of the residence of the parties of the first part, and give them the right to use gas in consideration of the terms of the lease until a well should be drilled. The petition alleged a compliance by plaintiff with the terms of the lease, and that in October, 1905, the Fletchers executed and recorded a lease to the defendant, Yoke, covering the same premises, which Yoke accepted with full knowledge of the rights of the plaintiffs, and had erected a derrick on the premises for the purpose of boring for oil and gas, and prayed that defendants be enjoined from operating under the second lease. The defendants Fletcher and wife filed an answer, in which each denied under oath the execution of the lease described in plaintiffs' petition. The defendants further answered that the premises

[Ed. Note. For other cases, see Acknowledg- in controversy had been at all times their ment, Cent. Dig. § 346; Dec. Dig. § 62.*] homestead, and were then so occupied; that

the Pennsylvania Oil Company had not drilled a well of any kind on the premises within 12 months of the date of the alleged lease, and had failed to pipe gas to within 100 feet of the residence of the defendants or supply them with gas within 12 months from September 4, 1899. The defendants asked judgment against the plaintiffs, declaring the lease set out in the petition to be null and void, and that their title to the premises be quieted. The plaintiffs filed replies, in which they sought to avoid the failure to pipe gas to the residence of the Fletchers within the 12 months, and alleged that in October, 1900, a short time after the year expired, the Pennsylvania Company, with the knowledge and consent of the Fletchers, piped gas to their residence, and that the company and its assigns had continuously from that time furnished gas to the defendants for domestic purposes under the terms and conditions of the lease, by reason of which facts it was alleged the defendants had ratified and confirmed the lease, and were estopped from contesting its validity. At the trial, which was before the court and a jury, the plaintiffs introduced the original lease under which they claimed, signed "Joseph Fletcher and Anna M. Fletcher," and certified as acknowledged before J. F. McCorkle, a notary public. The notary was dead at the time of the trial, and his signature was proven. A number of handwriting experts examined the signature of Mrs. Fletcher to the original lease, and compared it with her signature to the affidavit denying the execution of it, and testified that in their opinion both signatures were written by the same person.

The foreman of the oil company testified that he had charge of the men who laid the pipe from the main line to within about 25 feet of Fletcher's residence; that they laid approximately 1,500 or 2,000 feet; that he saw Mr. Fletcher on the farm at the time, and talked with him about where he wanted the line laid, and it was laid at the place designated by Mr. Fletcher; and that Fletcher at no time by act or word made any objection to laying the pipe. Several other witnesses testified to substantially the same facts, and there was abundant testimony that defendants piped the gas into the house and used it for domestic purposes. In the original lease the description of the land was in typewriting. It appeared upon examination that there had been an alteration of the number of the section from 24 to 20 by writing over the figure “4” a cipher with pen and ink. Joseph Fletcher admitted his signature to the original lease, but contended that this alteration had been made after he signed and acknowledged it, and for this reason it was void as to him. He admitted that he intended to sign a lease for the land in section 20, and that this was the intention of the notary. He testified that he signed and acknowledged the lease while in the corn

that, after he had signed it, McCorkle went to the house. Mrs. Fletcher testified that McCorkle came to the house with the lease, and said that her husband had signed it, and asked her for a tax receipt; that she brought him one, and went about her household duties; and that, after doing some writing, McCorkle went away without asking her to sign the lease, and that she had neither signed nor acknowledged it, and would not have done so if he had requested it, as she was not satisfied with its terms. The testimony also showed that some weeks after this Joseph Fletcher received by mail a copy of the lease, and noted for the first time that the description of the section was wrong, and that it purported to be signed by his wife; that, acting for himself and wife, he notified the manager of the Pennsylvania Oil Company that the description was wrong, that his wife had never signed the lease, and that she was not satisfied with the terms of it, and that it was void; that the manager said he would prepare another lease that would be satisfactory, but never did so. He also testified that he had informed the manager of the People's Gas Company of the same facts, and had an understanding with him that nothing would be done until a new lease was made out; that, when the employés of the Pennsylvania Oil Company brought the pipe to the place, he told them that they had no lease, and went to the house and showed them his copy in which it appeared that the year had expired; that the foreman said he would leave the pipe there over night, and go back and inform the company; that afterwards the pipe was removed, but without his knowledge, taken to another part of the farm, and the line laid during his absence; that he knew nothing about it until he returned. Some of the employés of the company who laid the pipe testified that, acting under the instructions of the manager of the company, they hauled the pipe away, and brought it back and strung it along at another place on the farm, and afterwards went there and made the connection. Mrs. Fletcher testified that her husband was away when the pipe was brought back, and that she did not discover that the workmen were there until the pipe was laid; that there was a grove of trees between the house and where they were working. Both the Fletchers testified that they used the gas with the understanding that the company would carry out its promise and procure a new lease on satisfactory terms, and with no intention of accepting or ratifying the former lease.

The court submitted certain special questions to the jury, which were answered as follows:

"(1) Was the lease of Fletcher and wife to the Pennsylvania Oil Company, which is marked 'Exhibit C,' altered or changed as to that portion of the description with refer

after the signing and acknowledgment of the Wheelock v. Cavitt, 91 Tex. 679, 45 S. W. lease? Ans. After. 796, 66 Am. St. Rep. 920; Johnston v. Wal"(2) Did Mrs. Fletcher sign the lease? lace, 53 Miss. 331, 24 Am. Rep. 699. Ans. No.

"(3) If you answer question No. 1 by saying that the lease was changed after it was signed and acknowledged, when, if at all, did Fletcher and wife first learn that such change or alteration had been made? Ans. Some time after copy of lease was returned to Fletcher and wife.

"(4) If you answer question No. 2 by saying that the lease was changed and the addition of the signature of Mrs. Fletcher after it had been signed and acknowledged, when, if at all, did the defendants Fletcher and wife first learn that such change or alteration had been made? Ans. When Fletcher and wife read copy of the lease.

"(5) If you say the lease was changed, did Mr. Fletcher consent to the change? Ans. No.

"(6) If you say that the lease was changed, did Mrs. Fletcher consent to the change? Ans. No."

The court adopted the findings of fact made by the jury, and, in addition, found all the issues in favor of the defendants and against the plaintiffs, and rendered judgment as prayed for in the cross-petitions; and this judgment the plaintiffs seek to reverse.

John J. Jones and Zeigler & Dana (Eugene Mackey and Jones & Reid, of counsel), for plaintiffs in error. Charles D. Welch and Luther Perkins, for defendants in error.

PORTER, J. (after stating the facts as above). The plaintiffs' main contention is that as to innocent purchasers the certificate of acknowledgment of an instrument regular on its face cannot be impeached by the uncorroborated testimony of the interested parties. The rule contended for may obtain in a certain class of cases in those states where the act of acknowledgment is regarded as judicial, but manifestly such a rule has no place in Kansas. In this state the person taking the acknowledgment acts in a ministerial, and not in a judicial, capacity. Heaton v. Bank, 59 Kan. 281, 289, 52 Pac. 876. Even in those states where the certificate is held to be. conclusive of every fact appearing on the face of the certificate which the officer is by law authorized to certify, and where it is held that evidence of what passed at the time of the acknowledgment is inadmissible to impeach the certificate except in case of fraud or imposition, the certificate may always be impeached by proof that the party did not in fact appear before the officer certifying to the acknowledgment nor otherwise acknowledge the instrument. Michener and Wife v. Cavender, 38 Pa. 334, 80 Am. Dec. 486; Le Mesnager v. Hamilton, 101 Cal. 532, 35 Pac. 1054, 40 Am. St. Rep. 81; Grider v. American Freehold Land Mortgage Co., 99 Ala. 281, 12 South. 775, 42 Am.

In 1 Cyc. 622, it is said: "Where, in fact, the grantor has never appeared before the officer and acknowledged the instrument, evidence to show that the certificate, though regular on its face, is a forgery or an entire fabrication of the officer, is admissible even as against an innocent purchaser for value and without notice." While the certificate of acknowledgment is entitled to a strong presumption in favor of its truth, in this state it is only prima facie evidence of the execution of the instrument. Wilkins v. Moore, 20 Kan. 538; Heil v. Redden, 45 Kan. 562, 26 Pac. 2; Heaton v. Bank, supra. The following language from the opinion by Mr. Justice Brewer, in Wilkins v. Moore, supra, while dictum in that case, is undoubtedly a correct statement of the law: "Of course, the matter is still open for further testimony, either written or oral, for the acknowledgment is not conclusive evidence." In Devlin on Deeds, § 534, it is said: "The certificate standing by itself without other proof is prima facie evidence of all that it rightfully contains. While not conclusive, it is entitled to the utmost consideration." With respect to the character of proof necessary to overcome the certificate of an acknowledging officer, where the parties have actually appeared and signed an instrument and afterwards attempt to contradict the certificate as to what took place, the rule is that the evidence to impeach the acknowledgment must be clear and convincing. Gabbey v. Forgeus, Adm'r, 38 Kan. 62, 15 Pac. 866. There the wife admitted her signature to the instrument, and it was duly acknowledged and certified by a proper officer. It was held that, to sustain the defense of duress, the burden of proof was on the wife, and that "the genuine signature and duly certified acknowledgment of the mortgage could not be resisted by doubtful and unsatisfactory statements and circumstances. The evidence to impeach them should be strong and convincing." See, also, Winston v. Burnell, 44 Kan. 367, 24 Pac. 477, 21 Am. St. Rep. 289.

The general

Here the wife denies the execution of the instrument, and alleges that she neither signed nor acknowledged it. Her testimony was competent, and stands as the testimony of any other interested witness. rule is stated in 1 Cyc. 624, as follows: "The testimony of parties to the suit, while carefully scrutinized, is admissible to impeach the certificate, and is entitled to the same weight as that of any other interested witness." Moreover, the testimony of Mrs. Fletcher was not wholly uncorroborated. There were circumstances in connection with it which may have had more or less weight with the court in determining its truth. The husband testified that she was not present

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