plaintiff, and defendant brings error. Af-, set forth in accompanying proof of loss, unfirmed. The policy sued on in this case in consideration of $6 was issued for a term of three years, first insuring $600 upon plaintiff's dwelling house "situated on lot fourteen in block one, village of Helmick, Kansas." The insurance began April 1, 1903. For a further consideration of $7 other insurance ($700) was provided for the same term. When the additional $700 was arranged, instead of preparing a new policy, a form or printed slip was attached to the policy of April 1st, embodying the additional items insured together with the dwelling. This form thereafter with the pr.nted policy constituted the insurance contract held by plaintiff. So far as is material to the questions now involved, the policy abridged then read as follows: "The Fire Association of Philadelphia, in consideration of the stipulations herein named and of $3.00 (and $7.00) does insure S. E. Taylor for a term of three years from the first day of April, 1903, at noon, against all direct loss or damage by fire, except as hereinafter provided. To an amount not exceeding $600 (and $700) to the following described property, while located and contained as described herein and not elsewhere, to wit: On his ...... dwelling house $600.00 $100.00 $ Nothing $ 75.00 $450.00 $ 75.00 situate on lot 14, in block 1. village of Helmick, Kansas. On household furniture while contained therein. On ... On frame, board-roof harn, situated On vehicles, robes, horse and car- $ Nothing On hay, grain, and feed: all only while contained in above described barn To be attached to Policy No. 267688 of the Fire Association of Philadelphia. "If property covered by this policy is so endangered by fire as to require removal to a place of safety, and is so removed, that part of this policy in excess of its proportion of any loss and of the value of property remaining in the original location, shall, for the ensuing five days only, cover the property so removed in the new location; if removed to more than one location, such excess of this policy shall cover therein for such five days in the proportion that the value in any one such new location bears to the value in all such new locations." August 5, 1904, a fire damaged part of the property insured. Settlement was made, and plaintiff appears to have given a receipt and attached to it the policy, which reads as follows: "$84.50 Helmick, Kan., Aug. 24, 1904. Received of Fire Association of Phil., Pa., through agent at the sum of eightyfour 50-100 dollars, it being in full payment and compromise settlement of all claims and demands for loss and damage by fire, which occurred on the 5th day of August, 1904, as der policy No. 267686, issued at the Council Grove. Ks.. agency of said company, and in consideration of said payment, the sum insured is reduced in that amount leaving the sum of third item cancelled. Fifth item reduced $9.50 only, now in force under said policy cov ering proportionately and in the same man ner on the various items named therein, and the amount of loss thereon bears respectively thereto. S. E. Taylor, Assured." The fire of August 5th destroyed the barn described in the policy and insured under its third item. The horses described in item 4 were not burned, and after said barn had been destroyed, plaintiff moved them to another barn on land he owned, but not on either of the lots described in the policy, but across a public street or road and the right of way of the Missouri Pacific Railway therefrom. January 15, 1905, this other barn, so located on other land, and situated on the opposite side of a street and railroad right of way from the first, was burned, and with it several horses. Plaintiff made claim for the loss of these as property insured under the policy described, and instituted suit therefor and obtained judgment for $450, with interest and costs. Fyke & Snider, for plaintiff in error. Nicholson & Pirtle, for defendant in error. SMITH, J. (after stating the facts as above). It is agreed in the briefs of the parties that the only question for our determination is whether the horses burned were covered by the policy of insurance in the location where they were burned, or whether the contract limited the liability of the association for loss by fire on this property while the horses were contained in the barn described in the policy, and were not elsewhere. The only evidence set forth in the record is the following stipulation: "It is stipulated and agreed in this case that the following are the facts in the case: It is agreed by the parties hereto that the horses that were burned were of the value of $450; that at the time the horses were burned they were in a barn on the opposite side of the street, or road, and not on either one of the lots described in the policy, but on the premises belonging to the plaintiff; that the right of way of the Missouri Pacific Railroad is between the lots described in the policy and the place where the barn was located when the horses were burned, but that the property where the horses were burned was the property of the plaintiff. It is further agreed that, when the barn upon the premises described in the policy was burned, the plaintiff will testify the adjuster appeared upon the ground and adjusted the loss of the barn and other property contained in the barn, and that at the time he so adjusted the loss of this property he inquired where the horses were that were included in the policy, and was told that they were across the road and right of way of the railroad company, in the barn on the other side, and that he took a receipt from the plaintiff for the money paid for the loss on the barn destroyed, and the property therein contained, and did not offer or tender to the plaintiff the premium or any portion of it." The stipulation should be, and, of course, was, regarded as if the plaintiff below had been placed upon the witness stand, and had testified to the facts therein cited, and, there being no contradictory evidence, the recitals were accepted as true. There is also an implication from the language used that the stipulation embraced all the controverted facts. If so, the plaintiff's ownership of the horses burned should be accepted as alleged. The reply brief of the association seems to acquiesce in the statement in the answer brief that nothing is in issue but the construction of the contract, and we will so regard it as the court below evidently did. Otherwise this material allegation is entirely unsupported by evidence, and the judgment must be reversed. Surely neither the learned court nor the counsel could have considered this allegation in issue. The very object of the stipulation seems to have mutually been to strip the case of all other controversies except this: Were the horses which were burned covered by the insurance policy in question at the time and place they were destroyed? In the absence of fraud and duress, parties competent to contract may make any contract for a lawful purpose which they may agree upon, and, if the terms used in the making thereof are unambiguous, there is nothing for the courts to do, in the enforcement thereof, but to give effect to the plain recital. Neither party will be heard, in such case, to say that his understanding of the contract on his meaning thereby was other than the language used indicates. Where, however, the language used is susceptible of two or more meanings, it devolves upon the court to ascertain, by considering the situation of the parties, the purpose to be accomplished by the contract and all the surrounding circumstances what the actual intent of the parties was, and to give it effect. If the parties acted upon a contract ambiguous in any way, and such action indicates their mutual understanding as to its ambiguous provisions, the courts will usually adopt such interpretation as most likely to accord with the original intent. The contention of the association is that the horses were insured only while they remained in the barn located as described in the insurance policy. On the other hand, Taylor contends that the horses were insured wherever they might be, or, at least, were insured while in the barn where they were when destroyed. It cannot be said that the policy is unambiguous. In the statement of facts the printed slip for the items insured which was attached to the original policy is reproduced as near as may be. The first item insured is the dwelling house. The second item is furniture, etc., "while contained therein." The third item in full is: "$Nothing on- -." The fourth item is the barn, describing material of same and location. The fifth item is $450 on horses, without specifying where kept or to be kept. The sixth item is $75 on vehicles. etc., without location. The seventh item is in full: "$Nothing on hay, grain and feed; all while contained in above described barn." Each item constituted a full sentence, and is punctuated as indicated. The question is whether the last clause of the seventh item clearly modifies the two preceding items. That the association so intended is probably true. Is it so clear that he who runs may read or that the insured reading the item "$450 on horses" must be held to drop down two items below to an item which insures nothing, and on its face has no reference to horses, to find a qualification upon the insurance on his horses? The form for the seventh item was prepared for a risk to be assumed on hay, grain, and feed and the qualifying clause may limit the place where these products are to be kept or as contended it may include the two preceding items. is then ambiguous. The general rule seems to be that a policy of insurance, being an instrument prepared by the insurer, should in case of doubt be construed strictly against the insurer who prepares it, and liberally in favor of the insured, even though the intent of the company may be otherwise. The object of the contract being to afford indemnity, it will be so construed, in case of doubt. as to support rather than defeat the indemnity provided for. If there is any doubt or uncertainty under the terms of the policy as to the intent of the parties, it is to be resolved in favor of the insured, or, if a policy is susceptible of two constructions, that construction is to be adopted which is favorable to the insured. See 19 Cyc. 656, and authorities there cited; also Chandler v. Insurance Co., 21 Minn. 85, 18 Am. Rep. 385. It Much has also been said in regard to the nature of the property insured, whether animate or inanimate, and as to the contemplated use thereof, in determining whether the parties to the insurance contract contemplated that the property should only be insured while it remained in the place referred to in the policy; but the qualifying clause in this policy, if it applies to the insurance upon the horses at all, restricts the insurance upon them to the time "only while contained in above described barn." Rather than upon any general rule of construction, we prefer to arrive at the intent of the parties by their own interpretation of the policy as shown by their actions. The policy was issued in April, 1903. In August, 1904. a fire occurred which entirely destroyed the barn, and only while the horses were within it were they insured, according to the claim of the association. Nineteen days after this fire, and 14 days after the 5 days' extension of insurance, in case of necessary removal occasioned by fire, the association paid the indemnity for the loss of the barn and for a partial loss on the fifth item, and took a receipt from the insured which expressly recognized the fifth item as reduced by the payment as still in force, and by necessary implication recognized all the other items, including the, one on the horses, as in full force. The barn where the horses were afterwards burned was then pointed out as the place where they were then kept, and the association did not then offer to return any unearned premium por did Taylor demand the same. They each treated the policy as in force on the dwelling and contents therein insured and on the horses and on the vehicles, etc., as reduced by the payment of the partial loss. It cannot be assumed that at the time of this adjustment Taylor intended to donate the unearned premium for nearly 20 months on $450 insurance; neither that the association intended to keep the unearned premium without any consideration therefor. It is more in accord with business dealings to presume that both parties intended to maintain the insurance on the horses as well as on vehicles, which was specified in the receipt, although the barn was not in existence, and hence could contain neither of these items. The latter was evidently the conclusion of the court below. But it is said no authority is shown in the person called the adjuster to represent the association. After a loss by fire has occurred to insured property, and the insurer has been notified thereof, and soon thereafter a man appears upon the scene of the fire and adjusts the loss and pays the indemnity, and takes a receipt therefor in the name of the insurer, it will be presumed that he acts as the agent of the insurer in transacting such business, and it will further be presumed that the principal is informed and knows of all such facts as the agent is informed of and knows affecting such business. This is not regarded as a waiver of any condition of the policy or as the making of any new contract, but as a mutual interpretation by the parties thereto of the meaning of the original ambiguous and uncertain contract; which meaning the court below properly adopted. The judgment is affirmed. All the Justices concurring. upon the use of such building of which all subsequent owners, tenants, or occupants thereof must take notice at their peril. [Ed. Note. For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, § 414.] 2. SAME-KNOWLEDGE OF ORDER. In the prosecution of a subsequent tenant or occupant of such building for contempt. in the violation of such decree, no actual knowledge or notice of such order of the court is requisite to conviction. [Ed. Note. For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, § 414.] (Syllabus by the Court.) Appeal from District Court, Montgomery County; Thos. J. Flannelly, Judge. Jack Porter and John Cummings were charged with violation of an injunction restraining the maintenance of a liquor nuisance, and on conviction they appeal. Judgment is affirmed. On December 16, 1904, in an action then pending in the district court of Montgomery county, in which the state of Kansas, on the relation of Anna F. Fruits, was plaintiff, and John Hebrank, Fay Lovejoy, Ed Heckman, and Harry Robinson were defendants, a judgment of perpetual injunction was rendered enjoining the defendants, "their agents, employés, successors, and assigns and all persons associating, combining and conspiring with them and all persons whomsoever" from keeping and maintaining a nuisance in a certain brick and frame building on lot 16, block 42, in the city of Independence, in said county and state. Thereafter, on July 21, 1906, the county attorney of Montgomery county by affidavit, filed in said action, charged John Hebrank and the appellants with a violation of the injunction. On presentation of this affidavit to the judge of the court, the judge ordered an attachment to be issued for the arrest of the persons charged, and also ordered the county attorney to file a formal accusation against them, which was done. The appellants were arrested and appeared with their attorney before the judge at chambers, and, after motion to quash the complaint had been overruled, answered thereto. A hearing was had, and appellants were adjudged guilty of contempt of the order of injunction and to pay a fine of $500 each and to be confined in the county jail for six months and to pay the costs of the proceeding, including the sum of $100 as a fee to the county attorney. T. H. Stanford, for appellants. F. S. Jackson, Atty. Gen., Thos. E. Wagstaff, and J. R. Charlton, for the State. SMITH, J. (after stating the facts as above). The principal contentions of the appellants have been decided adversely to them in this court: The proceeding to punish for a violation of the order of injunction, is a part of the injunction suit, and not another independent action. State v. Thomas (Kan.) 86 Pac. 499; State v. Forner (Kan.) 89 Pac. 674. The accusation need not possess the formalities of an indictment or information; also, the court will take judicial notice of the order of injunction. Id. It is hardly nee essary to say that, in the exercise of a jurisdiction conferred upon him by statute, a judge at chambers will take judicial notice of all the facts which the same judge in exercising the same jurisdiction, sitting as a court, would take. A judge at chambers, then, will take judicial notice of his former orders made when he sat as a court. The judge has not the general jurisdiction of the court, but in the exercise of powers expressly conferred by the Constitution or statutes of the state his jurisdiction is as ample in everything necessarily incident to the exercise thereof as is the jurisdiction of the court in the exercise of like powers. It was therefore unnecessary to formally plead or to prove the issuance of the order of injunction. State v. Thomas, supra. notice. It is well said, in Silvers v. Traverse, 82 Iowa, 52, 47 N. W. 8S8, 11 L. R. A. 804: "The decree was against plaintiff's lesson, who was the defendant in the suit. It affected his right and interest in the property; that is, it limited and cut off his power to use the property for the unlawful keeping and sale of intoxicating liquors. The decree was a restriction upon the use of the property which followed it as a burden. and, as it were, an incumbrance. Surely the plaintiff. in taking the property, took it subject to this restriction and burden. In our opinion, these conclusions are based upon familiar doctrines applicable to all actions and proceedings in the courts. If the rule we announce be not recognized. the attempt to enforce injunetions to abate nuisances of all kinds would be vain. The defendant perpetrating the nuisance could wholly defeat the law by leasing or transferring the property to one who had no notice thereof. He could only be enjoined by a new action, and when so enjoinhe could in a like manner transfer the property, and so on indefinitely, defeating the law, to the scandal of public justice, and the oppression of the people." The only other question it is deemed necessary to especially notice is the allowance of $100 as attorney's fees for the county attor It is contended that, as the appellants were not parties to the injunction action, they could not be convicted of a violation of the order therein, unless they were proven to have had notice or actual knowledge thereof. The appellants were jointly charged with John Hebrank, the owner of the building. and who was a party to the injunction action, with a violation of the order therein.ney without evidence being introduced as to And, although it appears Hebrank was not arrested or tried for the contempt. there is probably sufficient circumstantial evidence to justify a finding that appellants had knowledge of the order and conspired with Hebrank to evade and violate it. Upon what evidence or presumption the judge based his decision we are not advised by the record. No evidence that they had actual knowledge i of the order was necessary. They admit they had possession of the building in which, but a few months before, the owner, his codefendants, "and all other persons whomsoever," were enjoined from maintaining just such a nuisance as they were maintaining. In willfully embarking upon an unlawful business they might well be presumed to have scanned every possible source of danger and to have not overlooked so public a proceeding as the injunction action. It is more probable they thought they had cunningly evaded it. It matters not. The proceedings of the courts for the maintenance of order and the enforcement of law are not thus to be trifled with. The decree of injunction was against the defendants in that action and in a sense was ad rem against the property, or rather against a certain illegal use of the property. It cut off perpetually the use of the property for any of the purposes which the prohibitory liquor law of this state denounces as a nuisance. Thereafter not only the parties to that action, but all persons using the property for any of such unlawful purposes, do so at their peril. The judgment is a limita the value of the services rendered by the attorney. Where attorney's fees are allowed to be taxed as costs, as in the statute under which this action was brought, it would seem the better practice for the state to offer evidence of the extent and value of the services performed, that the defendant might crossexamine the witnesses and offer rebuttal evidence. In this case, however, it is apparent that the judge was fully conversant with the extent of the services, and he will be presumed to know the value thereof. Noftzger v. Moffett et al., 63 Kan. 354, 65 Pac. 670; Bentley v. Brown, 37 Kan. 14, 14 Pac. 434. Evidence however, was offered of the judgment of injunction rendered by the court, and all the papers prepared by the county attorney in the subsequent proceeding for contempt were brought to the attention of the judge at chambers by the application for the attachment of appellants, the motion to quash the accusation, etc. The examination of the witnesses and all the details of the trial had also transpired before the judge. The papers prepared by the county attorney were the atidavit and application for the attachment and the accusation upon which the trial was had. The sufliciency of each of these documents was challenged by appellants' counsel and was defended by the county attorney. The attention of the judge was thereby challenged to these matters, as it must also have been to the response of the county attorney to various other motions and objections made by apIt also appears from the record tion upon the use of the property of which all that the county attorney actively represented subsequent owners or occupants must take the state in the introduction of all the evi In dence and the examination of all the witnesses produced on the trial. The record justifies the statement that all the services rendered by the county attorney were before the judge and could not have escaped his attention, and the judge is presumed to know the value thereof. Noftzger v. Moffett, supra. No evidence is requisite of facts which transpire in the presence of the tribunal. many lawsuits the more burdensome part of the lawyer's duties are discharged out of court and beyond the observation of the judge, and in such cases evidence would be required therefor in court. In this case it is evident that his own senses and observation were the best witnesses possible to the judge, and this court is able to say from the record that the sum allowed as fees was not unreasonable for the services rendered of which the judge had official cognizance. The judgment is affirmed. All the Justices concurring. (50 Or. 201) REEDER et al. v. REEDER. (Supreme Court of Oregon. Oct. 22, 1907.) 1. DEEDS-CAPACITY OF GRANTOR-EVIDENCE -SUFFICIENCY. In a suit to set aside a deed on the ground of the incapacity of the testator, evidence examined, and held to show that she understood the nature and effect of the transaction, rendering the deed valid. [Ed. Note.--For cases in point, see Cent. Dig. vol. 16, Deeds, §§ 638-640.] 2. SAME-DELIVERY TO THIRD PERSON. A grantor delivered her deed to a third person to be held by him until her death, and then to be delivered to the grantee. All control of the deed was passed from her at the time of its delivery to the third person. Held a sufficient delivery. [Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Deeds, §§ 130-134, 140-141, 298.] Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge. Suit by F. B. Reeder and others against J. L. Reeder. From a decree for defendant, plaintiffs appeal. Affirmed. T. G. Hailey and A. R. Mendenhall, for appellants. Wallace McCamant, for respondent. BEAN, C. J. This is a suit brought by F. B. Reeder and six other heirs of Catherine Reeder, deceased, to cancel and annul a deed from the latter to her son, J. L. Reeder, for 140 acres of land in Multnomah county. About 1855 Catherine Reeder and her husband, S. M. Reeder, settled upon a donation claim of 320 acres on Sauvie's Island, and afterwards completed the required residence and cultivation, and received a patent, in which the south half of the claim was designated as inuring to the husband, and the north half to the wife. Mrs. Reeder and her husband continued to reside upon the claim until their death, rearing a large family. of which defendant is the eldest. About 1878 defendant married, and built a dwelling house on the north half of the claim, about a quarter of a mile from the family residence, in which he continued to live until 1894, when his house was destroyed by a flood. He thereupon built another dwelling, with the consent of his parents, and, as he testified, under a promise by them that, if he would continue to reside on and cultivate the place and look after them during their lifetime, the land should belong to him. He has ever since resided upon and cultivated the land in connection with his father and other members of the family. S. M. Reeder died in 1902, and his wife, Catherine Reeder, continued to live in the family home, with her son F. B. Reeder and her two daughters, Mrs. Godwin and Mrs. Akin, until her death on November 22, 1905. Mrs. Reeder was about 75 years of age at the time of her death, and for some years prior had been in feeble health, but was not confined to her room, except for perhaps a month before her death. About two weeks before she died she executed a deed, conveying her half of the donation claim, except the family home and 20 acres of land surrounding it, to defendant, in consideration of love and affection, and made a will disposing of the remainder of her property. The deed was in the possession of a third person until after her death, when it was delivered to defendant and by him put on record, whereupon this suit was brought by the other heirs to set aside the deed, on the ground that the grantor was mentally incapable of making a valid conveyance. There is much testimony in the record, principally from interested parties, concerning the mental condition of Mrs. Reeder at the time, prior, and subsequent to the making of the deed, and many witnesses testified that, in their opinion, she was so feeble in mind and body as to be unable to intelligently and understandingly dispose of her property. Others expressed the opinion that her mental faculties were as good as ordinarily possessed by persons of her age, and that she was perfectly competent to transact any ordinary business. It is unnecessary to refer to the opinion evidence in detail. The uncontradicted testimony of S. H. Haines, who prepared the deed and before whom it was executed, shows beyond reasonable controversy that it was the act and deed of Mrs. Reeder and that she fully understood and comprhended the nature and effect of the transaction. And this is sufficient to sustain the instrument as a valid conveyance. Carnagie v. Diven, 31 Or. 366, 49 Pac. 891; Dean v. Dean, 42 Or. 290, 70 Pac. 1039. The defendant, J. L. Reeder, testified that, while on his way to his work, he stopped to see his mother on the morning of the 7th of November, and found her in good spirits. She claimed to be improving, and said she expected to be out in a day or two. She inquired when he |