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unborn child, and therefore the mother is powerless by contract to create a lien upon the fund, falls, when it is seen that the judgment is not a part of the child's esThe mother is not the trustee of the fund for the child and has, not only the optional right to institute the suit and control it after it is instituted, but she receives the judgment with the sole right of disposition. The argument would apply with equal force to the claim that the mother could not compromise or accept satisfaction and dismiss the proceedings. If the child has the vested interest, and the mother is only the trustee acting for it, she could not, by accepting a grossly inadequate sum, prejudice the child's interest. But, as we have seen, her right to institute, control, or compromise the prosecution is without reference to any supposed right of the child in the fund.

It is said in argument that if the child should die defendant would have a right to an order of the court refunding to him any unexpended balance that the court might deem proper in consequence of such death, and it argued that therefore the mother never got title to the fund. Gen. St. 1901, § 3337, provides for such a case where the judgment is to be paid in installments and the child dies before the last payment. is sufficient to suggest that after the attorney fee is paid it has been expended and, of course, would not be a part of an unexpended balance.

It is our opinion that it was error to refuse the allowance of the fees of the attorney, and that they were properly a charge upon the fund. The cause will therefore be reversed and remanded with directions to order payment of the fee to plaintiff in error. All the Justices concurring.

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MASON, J. A life interest in real estate in England vested in Margaret Jenson by the terms of a will, which also provided that upon her death the property should go to her husband, Thomas Jenson, for his life (he to educate and maintain her children out of it), and that upon his death the executors should sell it and divide the proceeds among her children or their heirs. She died in 1882, the only beneficiaries under the will surviving her being her husband and their son, Tom, who was born in 1875. In 1899, by what was understood to be their joint consent, the property was sold, the executors and the father and son uniting in the deed. The consideration was £3,000, which was paid to the father who came to this country, accompanied by his son, and invested it largely in the purchase and improvement of lands for a cattle ranch, taking the title in his own name. In 1903 the son began an action against his father, alleging in substance that he had never known until a short time before that the will referred to gave him any interest in the English property; that his father had fraudulently concealed the fact from him and had induced him to sign the conveyance by leading him to believe that it was purely a formal matter, and had procured the co-operation of the executors by representing to them that the purpose of the sale was to procure funds to be invested in land in America for the benefit of Tom, and by promising that such plan should be carried out. The plaintiff therefore asked to be declared the absolute owner of all property into which such proceeds could be traced. The defendant answered, denying the allegations of fraudulent concealment and misrepresentation, and taking the position that he held a life interest in such property, his son being the remainderman. The case was tried before a referee, who made detailed findings of fact and conclusions of law, in effect sustaining the defendant's contention as to the principal matter in controversy. The court, however, took a different view of the evidence; and, setting aside so much of the referee's report as was inconsistent therewith, gave judgment for the plaintiff. The defendant prosecutes error.

The evidence was partly oral and partly in the form of depositions. Circumstances were narrated from which different inferences might be drawn, and there was some direct conflict of testimony. The brief of the defendant in error contains a suggestion that in the course of other litigation the trial court had acquired information material to the resolution of these contradictions, not available to the referee or to this court, and that its conclusions regarding them should therefore control. This is not a consideration that can be given weight here. Inasmuch as the referee's report set out the evidence in full, "the testimony is presented to this court in the same form as it was to the district court, and hence we have the

same opportunity which that court had to determine its force and effect." Fountain v. Kenney, 66 Kan. 797, 72 Pac. 392.

In behalf of Tom Jenson a theory is presented, which was outlined in his petition, that he is entitled to recover because of representations made by his father to the executors to induce them to execute the deed to the English property. We cannot perceive that properly there is such an issue in the case. The executors had no power of alienation except as they derived it from the joint consent of the father and son. Their act was merely formal. Practically, Tom Jenson, being entitled to the proceeds of a sale of the property at his father's death, was the owner, subject to his father's life interest. Any disposition of the property, or its proceeds to which he and his father might agree, was a matter of no concern to any one else. He was of full age and not under guardianship. The sale was effective only because of his participation in it.

The real questions in dispute are: (1) Was (1) Was his consent to the transaction fairly given with a full understanding of bis rights, or was it obtained by a fraudulent concealment of the terms of the will, by which he was deceived into a belief that he had no substantial interest in the matter; and (2) if no fraud was employed, what was the agreement between himself and his father as to the disposition of the proceeds of the sale, was it that the new property purchased was to be absolutely his own, or that the American real estate should be held as that in England had been-the life estate in the father, the remainder in the son?

Upon the question of fraud there was a direct conflict of oral testimony between the parties. That of Thomas Jenson was explicitly corroborated by the deposition of the lawyer who arranged the details of the sale, to the effect that he fully explained to the plaintiff his rights at the time of its completion. The other evidence affecting the matter was largely negative or circumstantial. The referee by necessary implication, although not in express language, found against the defendant on this issue, and we see no sufficient reason for disturbing the finding.

To establish his claim to the absolute ownership of the American property, the plaintiff relied upon evidence that his father at various times had stated that his purpose was to use the proceeds of the English property to buy a cattle ranch for Tom--to start Tom in business; that he himself should remain in this country but a short time; that he had other means sufficient for his support. These expressions, however, and others of the same general import shown by the record, are consistent with the idea that, while the lands were to be bought with special reference to Tom's interests, were to afford him a present occupation and ultimately to become his, his father was to en

joy a life estate in them. No witness professed to have heard the defendant declare unequivocally that he was to renounce such interest on his part. Tom's own version of his father's promise was thus expressed : "He said he would come to America, and we would invest the money in a ranch, and I should share it with him." Upon the issue so presented the referee made the following finding, the portion thereof inclosed in brackets being afterwards stricken out by the court as not supported by the evidence: "At the time of the sale of said property known as the 'Hare and IIounds,' it was the intention of both plaintiff and defendant that the proceeds derived from said sale should be brought to the United States and invested in a cattle ranch for the purpose of establishing the plaintiff in business [but it was not the intention at that time, of either the plaintiff or the defendant, that the defendant should part with or forfeit his life interest in the proceeds derived from the sale of said Hare and Hounds property].”

It is unquestionably true that there was much in the relations and conduct of the parties to afford just ground for doubting the good faith of the father, and that a plausible argument can be made in favor of the son's contentions. But the case is peculiarly one in which the appearance and bearing of the parties upon the witness stand may have been of great value in deciding between them-may have been a determining factor. We deem it unnecessary to review the evidence more in detail, or to recite the considerations which might be thought to support one view or the other. The finding quoted is substantially to the effect that the father and son agreed that the interest of each in the property sold should attach to the proceeds and follow them into whatever form they might assume. We cannot say that such finding was without support, nor that it was against the weight of the evidence.

An incidental finding upon which the court differed with the referee had relation to a lease of the ranch from the father to the son, signed by both parties. The plaintiff claims that this lease was a sham; that it was executed to deceive a third person. The reieree found otherwise. The matter seems a fair one for his determination. But in any event the matter is not very material. The lease is important chiefly as an acknowledgment by the son of his father's title. If his story is true. such acknowledgment was made in ignorance of his rights and did not bind him; if it is untrue, the acknowledgment was superfluous. Moreover, the lease was pleaded in the answer, and the reply tendered no issue regarding it, except by alleging that the plaintiff entered into it not knowing that he was the owner of the land.

The referee also made findings, which are not challenged, settling various minor disputes, and establishing that the defendant

still has on hand a part of the proceeds of the sale of the English property, amounting to $679.32. His conclusions were that the plaintiff was the owner of this and of the lands referred to, subject to a life interest of the defendant, and that the costs of the action should be divided.

It results from what already has been Isaid that the judgment must be reversed and the cause remanded, with directions to enter a decree in accordance with the facts as found by the referee. The matter of costs, however, rests in the discretion of the district court, and there are obviously good grounds for permitting their recovery by the plaintiff. The defendant asserted in his answer that he was ready, and had been at all times, to assure to the plaintiff, by any proper instrument, his interest in the lands in controversy that is to say, the title to them subject to his father's life estate. The evidence showed that a few weeks before the suit was begun Tom was advised by a letter from his father that his rights as remainderman were recognized, but it does not appear that any offer was ever made, excepting that contained in the answer, to give legal effect to such recognition, or to make it a matter of record. The plaintiff therefore was entitled to relief in this respect, as well as to an accounting.

So far as the real estate is concerned, he can be protected by a judgment declaring his interest. As to the money, in the absence of an agreement between the parties, an order will have to be framed to meet the occasion. All the Justices concurring.

(76 Kan. 361)

ROWLES v. BOARD OF EDUCATION OF CITY OF WICHITA et al.

(Supreme Court of Kansas. July 5, 1907.) 1. SCHOOLS AND SCHOOL DISTRICTS-PUBLIC SCHOOLS-SEPARATE SCHOOLS.

Chapter 227, p. 329, Laws 1889, is a special act, which by its terms makes full provisions for the government of the public schools of the city of Wichita, a city of the first class. It renders all other provisions of the statute relating to public schools inapplicable to the public schools of Wichita, and it has not been amended or repealed and does not authorize the maintenance of separate schools for the education of white and colored children.

2. SAME-EXCLUSION OF COLORED CHILDREN. In the absence of statutory authority, the board of education of the city of Wichita has no right to exclude a child, by reason only of its color, from any public school of the city.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Schools and School Districts, §§ 15322.]

(Syllabus by the Court.)

Error from District Court, Sedgwick County; Thos. C. Wilson, Judge.

Action by Sallie Rowles for writ of mandamus against the board of education of the city of Wichita and others. Writ denied, and plaintiff brings error. Reversed and remanded.

John W. Adams and O. H. Bentley, for plaintiff in error. Stanley, Vermilion & Evans and H. C. Sluss, for defendant in error.

SMITH, J. The following portion of the agreed statement of facts upon which the case was tried is sufficient to determine the decision of this case, to wit: "It is further admitted that the seventh grade of the course of study of the schools of the city of Wichita is taught in the Emerson School, that whitechildren, living in the same block in which the said Fannie S. Rowles resides, were, at the time the said Fannie S. Rowles presented herself for admission and now, attending the said Emerson School and the seventh grade thereof; and it is further admitted that the said Fannie S. Rowles presented herself to the said Emerson School as set forth in the writ of mandamus herein, and that she was excluded and prohibited from attending said Emerson School for the sole reason that she was of African descent and colored and a separate school had been provided in the Park School for her education in the seventh grade as a colored child; and it is further admitted that the plaintiff is a widow and the mother of the said Fannie S. Rowles, and as such she has the charge and sole responsibility of educating the said Fannie S. Rowles, and that the father of the said Fannie S. Rowles is deceased; and that said Fannie S. Rowles resides within 400 feet of the Emerson School, and that the said Fannie S. Rowles is not attending the Park or Emerson School at this time because she claims the right to attend the Emerson School." The action was brought by Mrs. Rowles for a writ of mandamus to compel the school board of the city of Wichita to admit her daughter Fannie to the Emerson School, which writ was refused by the court, and she brings the case here.

Section 75, c. 18, Gen. St. 1868, which chapter relates to cities of the first class, authorized all cities of this class to maintain separate schools for the education of white and colored children, and authorized the establishment of high schools. In 1879 (chapter 81, § 1, p. 163, Laws 1879) said section 75, c. 18, Laws 1868, was repealed and amended. By the amendatory act cities of the first class were authorized to maintain separateschools for the education of white and colored children, "except in the high school where no discrimination shall be made on account of color." In 1905 this act was again amended (chapter 414, § 1, p. 676, Laws 1905), and cities of the first class were authorized "to organize and maintain separate schools for the education of white and colored children, including high schools in Kansas City, Kansas. No discrimination on account of color shall be made in high schools, except as provided herein."

The city of Wichita, from the time it be came a city of the first class until 1889, was,

as to its public schools, within the provisions | of the general statutes theretofore enacted and above cited. In that year, however, the Legislature, probably at the instigation of representatives of the city, passed a special act in which full provision is made for the schools of that city. The act applies only to the city of Wichita, and, in effect, repeals all former general acts to the extent of their application to the schools of Wichita. Section 1 of the special act reads: "The public schools of the city of Wichita shall be governed by the provisions of the following act." Section 4 thereof reads: "The board of education shall be a body corporate under the name of "The Board of Education of the City of Wichita,' and as such shall have the power to sue and be sued; to elect its own officers, and make all necessary rules for the government and regulation of the schools of said city under its charge and control, subject to the provisions of this act; to exercise the sole control over the public schools and school property of said city; and shall have the power to establish and maintain a high school: Provided, no Provided, no discrimination shall be made on account of race or color; Provided further, that no tuition fee shall be collected from any pupil who is an actual resident of said city. The board of education shall have power, where the school accommodations are deemed insufficient, to exclude, for the time being, children between the ages of five and seven years." This act has never been amended or repealed. The act of 1905 was expressly amendatory of the act of 1879, and was a general act with a special exception in relation to Kansas City, Kan. As the schools of Wichita had for years been under the special act of 1889, it cannot be inferred that the Legislature intended the act of 1905 to have any application whatever thereto.

It is contended on the one hand that section 4 of the special act supra prohibits discrimination on account of color in any and all of the public schools of Wichita, and on the other hand that the prohibition relates only to the high schools. However this may be, it is certain that the city is not by any provision thereof authorized to maintain any grade of its public schools for the separate education of white and colored children. The history of the legislation on this subject from 1868 to 1905 amounts almost to a legislative declaration that, in the absence of an express grant thereof. no city or school district has any authority to discriminate against any child, or to deny it admission to any public school thereof, on account of its color. Such, also, has been the uniform tenor of the decisions of this court. See Board of Education v. Tinnon, 26 Kan. 1; Knox v. Board of Education, 45 Kan. 152, 25 Pac. 616, 11 L. R. A. 830; Cartwright v. Board of Education (Kan.) 84 Pac. 382; Board of Education v. Dick, 70 Kan. 434, 78 Pac. 812; Richardson v. Board of Educa

tion, 72 Kan. 629, 84 Pac. 538. It follows that the plaintiff was entitled to the relief prayed for.

The judgment of the district court is reversed, and the case is remanded, with instructions to enter judgment for the plaintiff in accordance with the views herein expressed. All the Justices concurring.

(76 Kan. 280)

SPARKS v. BOARD OF COM'RS OF CHEROKEE COUNTY.

(Supreme Court of Kansas. July 5, 1907.) 1. COUNTIES — COUNTY OFFICERS - OFFICIAL BONDS.

Where by a statute changing the date of an election, enacted after a county officer has given his official bond, his term of office is extended for a year, the sureties on such bond cannot be held liable by reason of any misconduct on his part occurring after the expiration of the time for which he was elected, notwithstanding the bond is conditioned for his good behavior during his continuance in the office "by virtue of said election." and the Constitution provides that "county officers shall hold their offices for a term of two years, and until their successors shall be qualified."

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Counties, § 145.]

2. SAME-ACTION AGAINST PRINCIPAL.

An action upon the bond for such misconduct may be maintained against the principal. (Syllabus by the Court.)

Error from District Court, Cherokee County; W. B. Glasse. Judge.

Action by the board of county commissioners of Cherokee county against O. W. Sparks. Judgment for plaintiff. Defendant brings error. Affirmed.

E. E. Sapp and J. N. Dunnbar, for plaintiff in error. Tracewell & Moore, for defendant in error.

MASON, J. In November, 1899, O. W. Sparks was elected sheriff of Cherokee county for the regular term, which under the law as it then stood was fixed at two years, beginning with the ensuing January. As required by the statute (Gen. St. 1901, §§ 1740, 1741), he gave a bond, signed by himself and several sureties, for the faithful discharge of his duties. In 1901 the Legislature did away with elections in the odd-numbered years. Laws 1901, p. 309, c. 176. The result of this action was to extend Sparks' term until January, 1903 (Pruitt v. Squires, 64 Kan. 855, 68 Pac. 643), and he continued to hold the office until that time. During the year 1902 he collected and retained various fees which it may for present purposes be assumed he should have paid over to the county. An action was brought by the county commissioners upon the sheriff's bond to recover the amount so withheld. The matter was sent to a referee, who reported that neither the sheriff nor his sureties were liable in said action. The court approved the report as to the sureties, but held that the county was entitled to recover against the principal.

This proceeding is brought to review such rulings: the commissioners claiming that their demand against the sureties should have been sustained, the sheriff that he also should have been exonerated. The only questions involved are whether the bond is to be so construed as to make the sureties answerable for any misconduct of the sheriff occurring during the year which the Legislature added to his term after his service had begun, and whether a recovery can be had against the officer himself for such misconduct in an action upon the bond.

It is true that the Constitution provides (formerly by section 3 of article 9, now by section 2 of article 4) that "all county * officers shall hold their offices for a term of two years, and until their successors shall be qualified." And it was decided in Pruitt v. Squires, supra, that in such a case as the present the sheriff continued to hold office from January, 1902, to January, 1903, in virtue of that provision: that his service for that period was under his original election; that the effect of the statute was to extend the old term, not to create a new one. The bond in question, following the language of the statute, purported to guaranty the good behavior of the sheriff "during his continuance in office, in virtue of said election." Literally construed, therefore, the terms of the bond were broad enough to cover the misfeasance here complained of. But it is urged with much force that the sureties. being favorites of the law, are entitled to any reasonable construction that will relieve them from liability. There is a sharp conflict of authority upon the question whether, notwithstanding a statutory provision that an officer's term shall continue until his successor has qualified, a bondsman's liability does not cease as soon as a reasonable time has elapsed to permit such qualification, even although it does not take place. The authorities on the subject are collected in notes 5 and 6, 27, A. & E. Encycl. of L. 535, and in a note in Blades v. Dewey (N. C.) 103 Am. St. Rep. 932. This court in Riddel v. School District No. 72, 15 Kan. 168, definitely took a position in line with the cases which favor the surety by limiting his liability closely to matters arising in the regular term for which his principal was chosen. So in Life Association v. Lemke, 40 Kan. 661, 20 Pac. 512, it was said: "It will be conceded that, if the bond is an official and an annual one, the obligors are only bound for the defaults that occurred during the year for which the bond was given. The contract of a surety is favorably regarded by the law, and even in cases where the officer is authorized to hold over his term and until his successor is elected and qualified the liability on the official bond is not extended beyond the duration of the term. When an officer is chosen for a term of limited duration, and a bond for the faithful performance of duties is given, the presumption is that the obligors or sureties only con

tract for the faithfulness of the officer during that time, and the obligation of the sureties is not extended by the mere fact that such officer is re-elected or for any reason holds over the term."

The present case is peculiarly one which calls for the application of the principle by which a liberality of interpretation is allowed for the benefit of a surety. When Sparks' bond was given, those who signed with him might perhaps have been expected to take into account that through some accidental circumstances, such as the delay of his successor to qualify, his term of office might be extended for some inconsiderable period beyond the normal two years. But they could not have anticipated that the Legislature would add a whole year to his time of service. No such change could possibly have been contemplated; and, if the contention of the county is correct, the practical effect of the statute was to impose upon them an obligation which they might never have been willing voluntarily to assume. In King Co. v. Ferry, 5 Wash. 536, 32 Pac. 538, 19 L. R. A. 500, 34 Am. St. Rep. 880, the precise question here presented arose. Upon the authority of that case it is said in 27 A. & E. Encycl. of L. 535: "Where the term of office is extended by statute after the execution of the bond, the sureties thereon are not liable for the faults occurring during the extended term, though the statutes provide that the officer shall continue in office until his successor is elected and qualified." The grounds of the decision are shown by this excerpt from the opinion: "No consideration of the interests of the public will justify a court in extending by construction the obligation of a citizen under his contract beyond the scope of its natural import. The contract which embodies this obligation, like any other contract, must be construed to give effect to the intention of the parties, and that intention is to be gathered from the language employed and the circumstances surrounding the execution of the instrument. Now, what were the circumstances surrounding the execution of this bond, and what length of time would these bondsmen naturally think they were contracting with reference to it? The correct answer to the last question determines their liability. There need be no artificial rules of law applied. It is a simple question of intention gathered from the language of the contract, read in the light of the surrounding circumstances. At the time this bond was given the term of office of the treasurer as provided by law was two years. It is argued that the bondsmen entered into this obligation in view of the possible modification of their liability by the legislative assembly, and with notice that the Legislature would have a right to continue the incumbent in office beyond the term for which he was elected. So far as the first proposition is concerned. the Legislature would not have any right to pass a law that would change the terms of the contract or in any way impair its

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