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thew Sample at the time of his death, although apparently it may seemed to have belonged to Matthew K. Sample. She simply shows that the deeds from Matthew Sample to Matthew K. Sample were never executed; that they were never delivered, but were in fact procured by fraud; and therefore that Matthew Sample still owned the land when he died; and may she not show this for the purpose of partition? The theory of the Code is not to split up into several causes of action what might reasonably be united into one cause of action; for such would increase litigation, and create a multiplicity of suits. Matthew K. Sample also complains of certain allegations with regard to Matthew K. Sample's holding the legal title to certain other portions of said land in trust for Matthew Sample, and that the land was really and in fact owned by Matthew Sample at the time of his death. What we have said with respect to the allegations concerning the land purporting to have been conveyed by Matthew Sample to Matthew K. Sample will apply to the allegations concerning this land. If this land was really and in fact held in trust by Matthew K. Sample for his father, Matthew Sample, then Matthew Sample's interest therein would descend to his heirs in the same manner as though he had possessed the legal title to the land, and Elizabeth Sample would have a right to one-half of such land and to have the land partitioned; hence these allegations with regard to Matthew K. Sample's holding the land in trust for his father are proper allegations to be inserted in this present action for partition. It is true that these allegations might furnish the basis for a separate and independent cause of action if the plaintiff and the other heirs had chosen to use them for such a purpose; but, as the plaintiff has stated them in this present action, they are only incidents or constituent parts of the more general cause of action for partition. In other words, what might have constituted a separate and independent cause of action, if the parties had chosen to use them as such, are used in this action as a part of a more extended cause of action. There are certain other allegations with regard to a certain trust deed and mortgages held by other defendants, of which Matthew K. Sample complains; but these allegations are wholly immaterial as between Elizabeth Sample and Matthew K. Sample, and hence we shall make no further mention of them. Considering this case as an action for partition, and an action for partition only, there was certainly no defect of parties either plaintiff or defendant, and no misjoinder of either causes of action or parties. Any person who has an undivided interest in real estate may commence an action for partition without joining with him or her as plaintiffs any of the other interested parties. The other interested parties may be made defendants; but they need not be made plaintiffs; and so far as is shown in this case every person who has or might claim to have any interest whatever in the real estate in controversy has been made a

party. The statute regulating the action for partition is article 26

of the Civil Code.
The order and judgment of the court below will be affirmed.
(All the justices concurring.)

(34 Kan. 122)
MoNTGOMERY v. RoAD and others.

Filed October 9, 1885.

1. TRIAL–DENIAL OF EXECUTION OF WRITTEN INSTRUMENT—BURDEN OF PROOF. Where the answer denies the allegations contained in the petition of the execution of the written instrument sued on, and the answer is properly verified by the affidavit of the defendant, the burden of establishing the execution of the instrument rests upon the plaintiff.

2. MoRTGAGE-FORECLOSURE-RES ADJUDICATA.

Where, in an action against an alleged mortgagor to foreclose an alleged realestate mortgage, a third party is joined as co-defendant, and such third party in his answer claims to be the owner in fee of the premises described in the petition, under a deed of general warranty from said mortgagor, and alleges that the mortgage was never executed, is a forgery, and the acknowledgment false, and at one term of court judgment is taken by default against the alleged mortgagor, expressly excepting from its operation said co-defendant, but the action is continued for trial to the next term of court as to the co-defendant claiming absolute ownership of the premises, held, that the judgment rendered upon default against the alleged mortgagor does not make the matter res adjudicata as to said co-defendant.

Error from Norton county.

L. H. Thompson, for plaintiff in error.

J. R. Hamilton, for defendants in error.

HoRTON, C. J. Prior to November 16, 1880, one K. C. Road was the owner of lot No. 2, in block No. 22, in the Norton Town Association’s addition to the town of Norton, in Norton county, in this state. Subsequently she transferred the property by deed of general warranty to Peter McCrea. McCrea and wife then transferred the property to We Broquet Delcourt. On February 15, 1883, Charles Montgomery filed his petition in the district court of Norton county against K. C. Road, P. McCrea, M. P. McCrea, his wife, and We Broquet Delcourt, alleging that on April 17, 1880, K. C. Road executed her promissory note to him in the sum of $230, payable six months after date, with interest at the rate of 12 per cent. per annum; and that on the same day, to secure the payment of the note, she executed to him a mortgage upon said lot No. 2, and praying judgment upon the note and a foreclosure of the mortgage, and also asking that Peter McCrea, M. P. McCrea, his wife, and We Broquet Delcourt be barred from setting up any claim or title to the premises after a sale under the foreclosure. On March 16, 1883, We Broquet Delcourt filed her answer to the petition, which was verified by her attorney, J. R. Hamilton.

At the April term of court for 1883, the case was called for trial, and upon default judgment was rendered, as prayed for in the petition, against K. C. Road, Peter McCrea, and M. P. McCrea. In the decree foreclosing the mortgage, no judgment whatever was taken against the defendant Delcourt, and the decree expressly excepted her from its operation. At that term of the court, the plaintiff obtained leave to amend his petition, and Delcourt was given until July 12, 1883, to answer or demur thereto, and the case, as to Delcourt, was continued until the next term. Subsequently plaintiff filed an amendment to his original petition, and Delcourt filed her answer, duly verified by herself, alleging that she was the owner in fee-simple of the premises described in the petition; that K. C. Road never executed, signed, or delivered to the plaintiff, or to any other person, the mortgage sued on; that the mortgage was a forgery and the acknowledgment false. To this answer the plaintiff filed a reply containing a general denial, and setting up the proceedings had in the case at the April term of the court for 1883 in bar of the claim of defendant. Trial was had at the October term of the court for 1883 before the court without a jury. The only evidence offered by the plaintiff was the record and journal entry of the trial of the case between himself and K. C. Road, P. McCrea, and M. P. McCrea, his wife, at the April term of the court for 1883. The court took the matter under advisement until the April term of court for 1884. At that time it made a finding that the mortgage was a forgery, and constituted no lien upon the premises, and rendered judgment in favor of the defendant for all costs. The plaintiff excepted to the judgment, and brings the case here. His claim is that the proceedings had in the suit at the April term of court for 1883 makes the matter res judicata as to defendant We Broquet Delcourt, and therefore that the judgment rendered at that term of court is conclusive upon her. Not so. Atchison, T. & S. F. R. Co. v. Commissioners of Jefferson Co., 12 Kan. 127. The plaintiff had made Delcourt a party defendant, and she had filed her answer setting up a full and complete defense. The verification to her first answer was defective, but at the April term of court for 1883 plaintiff obtained leave to amend his petition, which was afterwards done, and to the petition as amended this defendant filed her answer, properly verified. The case at the April term of court for 1883 was continued, as to this defendant, until the October term of court for 1883, and she was expressly excepted from the judgment rendered at said April term. At the October term for 1883, the case came on for trial between the plaintiff and this defendant. The latter had put in issue, by her answer, verified by affidavit, the execution of the mortgage sued upon. Upon the pleadings, the burden rested upon the plaintiff to establish that the mortgage had been executed as alleged in his petition. Code, §§ 108, 275. This he wholly failed to do. He merely offered the record and proceedings of the April term of court for 1883, to which proceedings the defendant Delcourt was not a party, nor was she affected thereby. The plaintiff took that judgment at his peril, and the case was continued to the next term as to this defendant. The default of K. C. Road, P. McCrea, and M. P. McCrea, his wife, could not prejudice the rights of Delcourt, or take from her the real estate described in the petition, of which she was the absolute owner. As K. C. Road had sold and parted with all her title to the premises in dispute, she had no interest in contesting the mortgage sued upon, and the case was not tried, as against Delcourt, at the April term of court for 1883. The plaintiff has no right whatever to complain of the proceedings of the trial court, and the judgment of the district court must therefore be affirmed. (All the justices concurring.)

(34 Kan. 119)
BoyD and others v. MooRE.

Filed October 9, 1885.

1. ANIMALS AFFECTED WITH TEXAS OR SPANISH FEVER—ACTION AGAINST SHERIFF FOR DRIVING OFF-RES ADJUDICATA. Where the sheriff of a county, upon complaint made to him under the provisions of chapter 161, Sess. Laws 1881, takes charge of and corrals cattle alleged to be infected with the Texas, splenic, or Spanish fever, and B., the owner of the cattle, commences an action against the sheriff to recover the possession of the same, and the sheriff gives a redelivery undertaking, under the provisions of section 182 of the Code, with one M. as a surety, and upon the trial of the action said M. is present and testifies as a witness in behalf of the sheriff, and in such action the owner of the cattle recovers judgment for the return of the same to him, and, in default of their return, that he recover the value thereof, such judgment is not a bar to an action to recover damages instituted by M. against B., the owner of the cattle, under the provisions of section 7, c. 161, Sess. Laws 1881, on account of said B. driving the identical cattle over which the litigation was had in the former suit through his county, whereby M.'s cattle were infected with disease from the cattle so driven by B. 2. SAME-REDELIVERY BOND–SURETY. M., the plaintiff in the action to recover damages against B. under the provisions of section 7, c. 161, Sess. Laws 1881, although a surety upon the redelivery bond of the sheriff in the former action, was not a party or privy thereto, nor had he the right to control that action.

Error from Barber county.

W. D. Webb, Cook & Sisson, and I. P. Campbell, for plaintiffs in 61'I'OI".

Gillett & Raymond and Ellis & Ellis, for defendant in error.

HoRTON, C. J. M. B. Moore brought his action against Jesse Boyd, Martin Cochran, and M. McGuire under the provisions of section 7, c. 161, Laws 1881, for his damages in the sum of $3,500 for the driving of cattle by them into Barber county, diseased with the Texas, splenic, or Spanish fever, whereby the cattle of plaintiff were infected with disease, and died in large numbers. The defendants pleaded, in bar to the action, a judgment rendered in the district court of Kingman county on April 23, 1880, in favor Jesse Boyd against C. T. Rigg. The action in which that judgment was rendered was commenced in Barber county, in December, 1883, and afterwards removed to Kingman county for trial. Prior to December, 1883, C. T. Rigg, as sheriff of Barber county, took charge of certain cattle owned by Jesse Boyd, under the provisions of said chapter 161, upon complaint made to him by certain citizens of Barber county. Subsequently Jesse Boyd brought his action to recover the possession of the cattle from C. T. Rigg, and was successful in obtaining judgment that the cattle be returned to him, and in case they could not be so returned that he recover as their value the sum of $10,485. In the action of Boyd v. Rigg the latter executed an undertaking to the plaintiff in double the amount of the value of the cattle, in accordance with the provisions of section 182 of the Code. M. B. Moore was one of the sureties upon that undertaking, and was present at the trial, and testified as a witness in behalf of Rigg. In the case of M. B. Moore v. Jesse Boyd, Martin Cochran, and M. McGuire, the plaintiff filed a demurrer to the said defense upon the ground that the several matters contained therein were not sufficient in law to bar the action of plaintiff. The demurrer was sustained, the defendants excepting. The question now before us for consideration is whether M. B. Moore is bound by the judgment of Jesse Boyd against C. T. Rigg. In other words, can the doctrine of res judicata be applied in the case before us as to Moore? The contention against the demurrer is that in the case of Boyd v. Rigg the jury found that the condition of the cattle driven into Barber county by Boyd was not “such as to endanger the health of other cattle in the vicinity by reason of probable contagion.” Therefore it is asserted that the cattle so driven into Barber county by Boyd and the other defendants could not have diseased Moore's cattle. We perceive no error in the ruling of the district court. M. B. Moore, although a surety upon the redelivery bond of C. T. Rigg, was not a party or privy in the action of Boyd v. Rigg. Neither had he the right to control that action. It is true, if, after the determination of Boyd v. Rigg, the latter had failed to return the cattle pursuant to the judgment of the court, Moore, as surety upon the redelivery bond, would be bound by the judgment in that case; but this is not an action upon the bond of Rigg. No question of ownership or right of possession of the cattle is sought to be litigated. The question in the case is one of damage, under chapter 161, for communicating to Moore's cattle Texas, splenic, or Spanish fever, and it is immaterial whether Boyd or Rigg was entitled to possession of the cattle charged to have communicated the disease. Although the evidence in the case of Boyd v. Rigg may have taken as broad a scope as alleged in the answer, and embraced many facts which will necessarily be testified to in the action now pending, the judgment in the former case is not conclusive upon Moore in this case. Atchison, T. d6 S. F. R. Co. v. Jefferson Co., 12 Kan. 135. Again, in this case Martin Cochran and M. McGuire are co-defendants with Jesse Boyd, and although it is alleged in the answer that Boyd represented them in the prior case, yet, from the other statements in the answer, it is

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