(Supreme Court of Kansas. March 6, 1909. On Beakey brought three or four actions against

Benton for the unlawful detention, and to recover the possession of the land, and finally recovered judgment for the possession The owner of lands of which a tenant of thereof and for nearly $4,000 damages. No the owner was in possession under a lease which part of the mortgage debt or the interest would expire some months after the execution thereon was paid by Mrs. Beakey, and, after of the deed executed to a third person, who knew of the lease and the possession by the the full maturity thereof, Ed Vander Meertenant, a warranty deed in the usual form, with shen assigned the same to the defendant in this provision inserted, "The possession of said error, Henry C. Schwitzgebel, who in Auabove-described premises to be given to party of second part, her heirs and assigns, on or before gust, 1905, commenced this action against the 1st day of March, 1901," which was the next Mrs. Beakey and her husband to obtain judgday after the expiration of the lease. Held, ment for the amount of the indebtedness, under the circumstances, the provision in the and for a decree foreclosing the mortgage, deed did not obligate the grantor to remove the tenant and place the grantee in possession of and finally obtained a judgment and decree the premises, nor make the grantor liable for as prayed for. To reverse this judgment,

which denied her offset for the damages she | import such a contract unless the legal sigsustained by the unlawful detention of the premises by Benton, Mrs. Beakey brings the case here. J. O. Benton was also made a defendant in the action, but did not appeal from the judgment determining that he had no interest in the property.

E. A. Austin and Otis Hungate, for plaintiff in error. Crane & Woodburn Bros. and Thomas R. Marks, for defendant in error.

nificance thereof clearly compels such construction. Also, it is the general rule of construction of warranty deeds that they obligate the grantor to defend the title and right of possession against the lawful claims only of others than the grantee thereto, unless the language used clearly indicates a Bedell v. Christy, 62

different intention. Kan. 760, 64 Pac. 629. Again, it is a wellrecognized rule in this and other courts to SMITH, J. (after stating the facts as construe all the parts of a written contract above). From the conclusion we have reach- together and in the light of the circumstaned, an extended statement and discussion ces under which it was made. It was well of the defenses and offsets which Mrs. known to the parties to the deed that VanBeakey pleaded in the action becomes un- der Meershen prior to the execution of the We shall assume that whatever deed had conveyed the right of possession defense or offset she would have been en- to the land described in the deed until the titled to had the action been brought by Ed 1st of March, 1901, and that, upon the delivVander Meershen she was entitled to main- ery of the deed, he would forever part with tain against Schwitzgebel. Upon the con- all right or interest in the possession of the struction of the special covenant in the deed land conveyed by it. In the habendum to Mrs. Beakey "the possession of the above- clause of the deed, the grantor covenants described premises to be given to the party that the land is free and clear of all incumof the second part, her heirs and assigns, on brances, yet Benton's lease was an incumor before the first day of March, 1901. Par- brance. Clark v. Fisher, 54 Kan. 403, 38 Pac. Par-brance. ty of the first part reserves the right to 493. It is not contended, however, and collect all rents due from said described could not be, that the reservation of the property for the year 1900"-rests the de- possession until March 1, 1901, constitutes termination of the case here. By its ruling a breach of this covenant. On the other upon plaintiff's demurrer to the evidence hand, it will be read into the covenant as a produced by Mrs. Beakey, the court held, in modification thereof. Then in the warranty substance, that this covenant did not obligate clause of the deed the grantor undertakes to the grantor to put Benton out of possession warrant and defend the title to the land inand her into possession on the 1st day of cluding the modified right of possession March, 1901; but that the covenant amount- thereof "against all and every person or ed to a reservation of the right of posses- persons whomsoever lawfully claiming or to sion until that date. The plaintiff in error claim the same." Benton had no lawful in her brief says that, if this construction claim to the possession of the land after the of the covenant be correct, all other ques- expiration of the term of his lease thereon; tions raised by her become immaterial. hence there was no breach of the warranty, and Vander Meershen was not responsible to Mrs. Beakey for Benton's wrongful assertion of a claim to the land nor for his wrongful detention of the possession after March 1, 1901. See Bedell v. Christy, supra; Gazzolo v. Chambers, 73 Ill. 75.

Under the provisions of our Code, an action for the recovery of the land in question must have been brought in the name of the real party in interest. Previous to the deed to Mrs. Beakey, Vander Meershen had by lease conveyed the right to the possession of the premises to Benton until the 1st day of March, 1901, and by the deed he surely conveyed all of his right to possession therein to Mrs. Beakey after that date. There was, therefore, no interim within which he could have maintained an action in his own name to oust Benton from the possession of the land. This is not a conclusive test of his liability in damages, as one owning realty may lease the same to two different persons for the same term or a part of the same term, and the one failing to get possession under his contract may recover damages against his grantor.

It is suggested, however, that the parties to the deed, knowing the facts and presumably knowing the law, would not be presumed to have inserted in the deed a contract which one party was then known to be incapable of performing. In other words, the

The word "given," as used in the clause of the deed, "the possession of the above-described premises to be given to party of second part, her heirs and assigns, on or before the 1st day of March, 1901," must be construed as synonymous with "surrendered" or "granted." Also, the clause of the deed, last above quoted, construed in connection with the whole instrument, is held to be a reservation of the right of possession in the grantor's tenant until March 1, 1901, and not an undertaking on the part of the grantor to remove the tenant and put the grantee in possession of the land on that date. This also seems to be the construction placed upon this provision of the deed by the plaintiff in error. Upon the refusal of Benton to surrender possession of the land on the 1st of March, 1901, it does not appear that she called upon Vander Meershen to put her in

directly against Benton to recover from him | class. The State Agricultural College is located in that city. About 2,000 students attend this college. These students room and

The judgment is therefore affirmed. All board at club and boarding houses in the the Justices concurring.

To carry out this plan required the exercise fined not less than twenty-five dollars nor of discretion of the most delicate and im- more than one hundred dollars for each ofportant character. The patients were nec- fense." Section 3316. The performance of essarily taken from home while sick, and such duties is generally beyond judicial conkept isolated in the house used for that pur- trol by injunction. Holton Electric Co. v. pose. Mere considerations of ordinary hu- Board Co. Com'rs (just decided) 105 Pac. manity required the officers to provide a 453; National Bank v. Com'rs of Barber Co., comfortable building, and to furnish the best 43 Kan. 648, 23 Pac. 1079; National Bank care possible under the circumstances. At v. Peck, 43 Kan. 643, 23 Pac. 1077; Insurthe same time the citizens generally were en- ance Co. v. Wilder, 40 Kan. 561, 20 Pac. titled to adequate protection from contagion. 265; Com'rs of Harper Co. v. State ex rel., The city officers were compelled to perform 47 Kan. 283, 27 Pac. 997; 20 A. & E. Encycl. these difficult duties promptly. It was im- of L. (2d Ed.) 1229; 22 Cyc. 889; Beach on possible for want of time to select a site and Injunction, § 1373. erect a suitable building. The situation presented an emergency which the officers were compelled to manage without delay, and in such a manner as would protect the rights of all interested parties. It was necessary to procure a house suitable for temporary use wherever obtainable. Such a building would naturally be nearer the residence of some citizens than others, and would necessarily expose some citizens to more danger from contagion than others; but this condition could not be avoided. Chapter 46a of the General Statutes of 1901 provides for the performance of these duties, and imposes a penalty for failure to comply with the requirements of the statute. These sections read: "Any municipal or county board of health or health officer having knowledge of any infectious or contagious disease, or of a death from such disease, within their jurisdiction, shall immediately exercise and maintain a supervision over such case or cases during their continuance, seeing that all such cases are properly cared for and that the provisions of this act as to isolation, restriction of communication, placarding, quarantine and disinfection are duly enforced. The local board of health or health officer shall communicate without delay all information as to existing conditions to the state board of health. Said health officer will confer personally, if practicable, otherwise by letter, with the physician in attendance upon the case, as to its future management and control and with the authorities of the place, as to their duties in the premises. Should the disease show a tendency to become epidemic, the public and private schools must be closed, and, in extreme cases, church services suspended and public assemblages of people at shows, circuses, theaters, fairs or other gatherings prohibited. In case of smallpox, a general and thorough vaccination should be recommended and insisted upon." Section 3308. "All persons sick with smallpox, cholera, scarlet fever, diphtheria, epidemic cerebro-spinal meningitis or any contagious or infectious diseases dangerous to the public health shall be thoroughly isolated from the public and properly quarantined." Section 3309. "Any person found "Any person found guilty of violating any of the provisions of this act or failing to comply with any re

In section 1240 of High on Injunctions, it is said: "A municipal corporation being a political body, clothed with certain legislative and discretionary powers, equity is ordinarily averse to interfering by injunction with the exercise of those powers at the suit of a private citizen. And no principle of equity jurisprudence is better established than that courts of equity will not sit in review of the proceedings of subordinate political or municipal tribunals, and that, where matters are left to the discretion of such bodies, the exercise of that discretion in good faith is conclusive, and will not, in the absence of fraud, be disturbed. And the fact that the court would have exercised the discretion in a different manner will not warrant it in departing from the rule." In section 687 of 1 Spelling on Injunctions and Other Extraordinary Remedies, it is said: "The general rule of noninterference with the exercise of discretionary powers legally conferred applies with exceptional force and appropriateness to municipal bodies having extensive and important trusts of a public character confided to them, and being generally vested with important legislative powers. And it is a well-settled equitable doctrine that the domain of discretionary powers conferred upon municipal bodies will in no case be invaded by the courts. This rule is very strictly adhered to with respect to the legislative powers conferred by statute. So long as the municipal body does not transcend the scope of its authority to enact ordinances, or violate any of the limitations to the exercise of such power, it will not in the absence of fraud be interfered with by injunction. Nor will courts, when it is found that municipal legislative bodies have acted in good faith and within the scope of the authority conferred upon them, investigate as to the wisdom or expediency of their action, or interfere because in the light of circumstances the court would have acted differently." In the case of Baltimore v. Fairfield, 87 Md. 352, 360, 39 Atl. 1081, 1082, 40 L. R. A. 494, 495, 67 Am. St. Rep. 344, 345, it was said: "The statute law of the state confers upon the mayor and city council plenary power to establish, both within and beyond the city limits, hospitals and pesthouses for the iso

fectious diseases.

The preserva- (istrate committing a person upon a crimina charge, and he is upon such proceedings disable cause to hold him for trial, there is no charged by the district court for want of probauthority for an appeal to this court from the order discharging the prisoner.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 106; Dec. Dig. § 113.*] (Syllabus by the Court.)

Appeal from District Court, Leavenworth County; Eli Nirdlinger, Judge Pro Tem. George Ray was discharged on habeas corpus and the State appeals. Dismissed.

tion of the public health renders such legislation highly essential, and the authority of the General Assembly to enact it, in the exercise of the police power of the state, is beyond question or controversy. Within the scope of the power thus granted the whole authority of the state is included and delegated (Harrison v. Mayor, etc., 1 Gill, 264); and therefore whatever the state may directly do in furtherance of these objects the municipality, clothed with a delegated power from the state, may also lawfully perform." In the case of Frazer v. Chicago, 186 Ill. 480, 57 N. E. 1055, 51 L. R. A. 306, 78 Am. St. Rep. 296, the above language is quoted and approved. In the case of Burwell v. Commissioners of Vance County, 93 BENSON, J. The defendant was arrested N. C. 73, 53 Am. Rep. 454, the second sylla- upon a charge of perjury, and upon a prebus reads: "An injunction will not be grant-liminary examination was held for trial in ed to restrain or supervise the exercise of the discretion conferred by law upon public officers in the discharge of their duties."

F. S. Jackson, Atty. Gen., and Lee Bond, Co. Atty. (W. W. Hooper, of counsel), for the State. John T. O'Keefe, for appellee.

the district court. He was then taken from the custody of the sheriff in proceedings in habeas corpus before the district court, and upon the trial was discharged. From this order the state appeals.

The record contains the testimony given before the committing magistrate which was repeated on the trial in the district court, together with other evidence; but, in view of the conclusions reached, it will not be necessary to review this evidence.

In this case the city and its officers were prohibited from performing an important public duty-one which, by the statute, they are expressly and clearly commanded to do. To the extent that the duty was performed it seems to have been done in good faith, for the best interests of all persons concerned, and, under the circumstances shown, with commendable promptness and good The question whether the order discharging judgment. The building selected belonged the defendant is appealable must be considto the public and was the best that could be ered. Section 672 of the Civil Code provides obtained in the city. The location was as that: "No person shall be discharged from free from objection as could have been se- an order of commitment issued by any judicured. The claim that the use of the park cial or peace officer for want of bail, or in for this purpose operated to divert it to an cases not bailable, on account of any defect illegal use does not seem to be well taken. in the charge or process, or for alleged want The park is public property, given by a ded- of probable cause; but in all such cases the ication which does not limit its use. It court or judge shall summon the prosecuting might be used for any public purpose. A witnesses, investigate the criminal charge, pesthouse is a public purpose for which it and discharge, let to bail, or recommit the might be properly used temporarily in an prisoner, as may be just and legal, and recogemergency such as existed here. nize witnesses when proper." Gen. St. 1901, § 5168. The same provision is continued as section 700 of the Civil Code of 1903 (Laws 1909, p. 459, c. 182, § 700). This court has held that: "Under this section we hold that when a writ of habeas corpus issues on a complaint of illegal imprisonment, for alleged want of probable cause, the judge or court issuing the writ may, even in cases where there is no defect in the charge or process, summon the prosecuting witness, investigate the criminal charge, and discharge, let to bail, or recommit the prisoner, as may be just and legal. This section gives a party committed for a crime by an examining magistrate an appeal from his commitment by virtue of the writ of habeas corpus." In re Snyder, Petitioner, etc., 17 Kan. 542, 552. this case, as in that, the appeal was taken upon the ground that the facts proven before the magistrate did not show the commission of a crime; in other words, that there was

Under these circumstances, an injunction preventing the performance of this duty was improper and erroneous. The temporary injunction is dissolved, and the costs are taxed to the appellee. All the Justices concurring.

STATE v. RAY.

(Supreme Court of Kansas. Nov. 6, 1909.) 1. HABEAS CORPUS (§ 21*)-WHEN GRANTED. The Civil Code (Gen. St. 1901, § 5168; Code 1909 [Laws 1909, p. 459, c. 182] § 700) gives a party committed for a crime by an examining magistrate an appeal to the district court by the writ of habeas corpus.

[Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 19; Dec. Dig. § 21.*]* 2. HABEAS CORPUS (§ 113*)- DISCHARGE OF PETITIONER-APPEAL BY STATE.

Where an appeal is so taken to the district court from the order of an examining mag