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the principal on appeal to the Supreme Court The complaint sets forth, in substance, to make the sureties parties.

that the plaintiff was the owner of a oneTEd. Yote.--For cases in point, see Cent. Dig.

tenth interest in a certain mine in the vol. 2, Appeal and Error, $$ 1798-180..

Cripple Creek district; that the defendant 2. FRAUD – MISREPRESENTATION – PROCURING

was also the owner of an interest therein; TRANSFER.

A complaint showing that plaintiff and de. that the defendant came to the plaintiff and fendant were owners of certain interests in informed him that a person whose identity mine; that defendant represented to plaizitiil : he did not disclose was willing to buy the that a prospective purchaser was ready in bu the same at a certain price, whereby he induced

said lode for the sum of $3,000, $1,500 in plaintiff to convey his interest to defendant for cash, the balance to be paid in mining stock the sum named; that at the time of making siz! of the value of $1,500; that the defendant representations the said proposed purchaser livet offered and agreed to pay defendunt i'or liiniself

also stated to plaintiff that he was willing and associate owners of the proj,crti : muihi

to sell his interest in said property upon the larger sum than defendant had represented, but said terms and that he believed the other such fact was concealed from plainrifi, was owners were also willing to sell on sa il sufficient to show a cause of action.

basis; that the defendant represented that 3. APPEAL AND ERROR-RECORD-EVIDENCE.

The rejection of evidence oflere:) :15 : tomu- the said prospective purchaser was unwillation for impeachment of another witness (an- ing to pay more for the said property, and not be reviewed where the evidence is not in the that he, the defendant, beliered the amount record which will enable the court to determine the relevancy of the testimony rejected.

offereil a fair price for the property and that Ed. Note.-1'or cases in point, sep Cent. Dig.

no better price could be obtained therefor; vol. :), Appeal and Error, $$ 2897-29.:)

that at the time of the making of said repre4. SAME.

sentations the said proposed purchaser hail The action of the court in refusing instruc-offered and agreed to pay the defendant, tions relating to the effret of testimony cannot

for himself and associate owners of said be reviewed where none of the testimony taken on the trial appears in the abstract.

property, the sum of $1,300 cash therefor: Ed. Note.--For cases in point. see (nt. Dig.

all of whith the defendant well knew, but vol. 3, Appeal and Error, $S 2933-203.5.1

which he concealed from plaintiff ; that the 5. SAME-BRIEFS-WAIVER OF ERROR.

mining stock mentioned was of no value. An assignment of error in relation to giying which fact the defendant well knew; that of instructions will be considered waiveal whore such matters are not mentioned in the brief of

the statements made by the defendant wer? counsel.

false and were known by defendant to be [Ed. Note.--For cases in noint, ser Cont. Dig. false, and were made by him for the purvol. 3, Apreal and Error, SS 4250-261.)

pose of cheating and defrauding plaintiff : Appeal from District Court, El Paso Coun

that relying upon said representations the ty: Louis W. Cunningham, Judge.

plaintiff executed a deed to defendant for his Action by E. C. Campbell against Robert

interest in the property upon the terms proA. Christy. From a judgment for plaintiff. posed by defendant; that he received $150 in defendant appeals. Affirmed.

cash, but that said mining stock was never

delivered to him ; that thereafter the propVanatta & Woodruff and W. K. Brown. erty was sold for the sum of $1,500 cash to for appellant. H, McGarry, for appellee.

the same person who had previously offered STEELE, J. Judgment was rendered in

defendant said sum. The prayer is for the district court of El Paso county against judgment for $300, being one-tenth of the Robert A. Christy and the sureties upon a

sum of $1,500 less $150. The complaint, we

$ bond given to carry the case by appeal from

think, states a cause of action. Yone of the county to the district court. The defend

the testimony taken on the trial appears in ant Christy prayed, and was allowed, a sopa

the abstract. The defendant recalled a witrate appeal to the court of appeals; the other ness for further cross-examination, and projudgment debtors were not made parties in

pounded one or two questions, answers to the court of appeals. I motion to dismiss

which the court did not receive. These the appeal was made, and denied with leare questions and the objections, and the rulings to renew on final hearing. Section 400 of of the court thereon, are copied from th: Mills' Ann. Code authorizes a separate appeal,

bill of exceptions into the abstract. This and provides that for the purposes of all

was offered as a foundation, so it is said, peal the party appealing shall be permitted for impeachment of one of plaintiff's witto use the names of all persons against whom nesses, and error is assigned upon the ruling judgment was rendered, if necessary. It of the court rejecting the testimony; but as is urged that although one person may ap

this is the only testimony before us, we peal wlien il joint judgment is rendered. cannot say wliether it was relevant or not. all persons against whom judgment was and cannot, therefore, say that the court rendered should be made parties in the ap

committed error. pellate court. The Code authorizes the use The instructions offered by the defendant of the names of all such persons if necessary. and refused and not given relate to the effect. No necessity for the use of the names of of testimony, and, as the defendant has not such persons appears to be present in this copied into the abstract any portion of the case; and the motion to dismiss the appeal, bill of exceptions, except what we have will be denied

mentioned, we cannot review the action of

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the court in refusing the instructions. The title has since rested. When the Scotts setcourt erred, it is said, in the giving of cer- tled on this land, the cornerstone between tain instructions. As the objections to these sections 2 and 3 on the north line of the secinstructions are not mentioned in the brief tions was not found. In 1878 Walton, a depof counsel, we conclude that the assignment uty county surveyor, undertook to survey a of error in relation thereto has been abandon. public road on the section line between these ed. The jury assessed the plaintiff's dam- sections, and laid it along the east line of the ages at the sum of $300, being one-tenth of strip in question, but the cornerstone was not the amount received for the property less

found. In 1879, upon an agreement of the the amount the plaintiff received.

landowners in that region, a survey was made As no error has been pointed out, we must by Smith, the county surveyor, for the puraffirm the judgment.

pose of finding and establishing the corners

and division lines, and he found the section The CHIEF JUSTICE and CAMPBELL,

line to be on the west side of the strip in J., concur.

question. Between these surveys there was left the strip in controversy, which was

about 160 rods long, 4 or 5 rods wide at the (74 Kan. 448)

south end, and about 12 rods wide at the SCOTT v. WILLIAMS.

north end. The following sketch will serve (Supreme Court of Kansas. Oct. 6. 1906. Re

to indicate the location and extent of the hearing Denied Nov. 10, 1906.)

tract: 1. ADVERSE POSSESSION-WIAT CONSTITUTES.

One who has title to a certain quarter section of land, and by mistake as to the boundary line occupies a strip of land in an adjoining section owned by another, without any intention to take and hold land beyond the section line, or to claim land which does not belong to him, will not acquire title to such strip by adverse possession.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 1, Adverse Possession, ss 370-378.] 2. EVIDEXCE-DOCUMENTARY-RECORDS.

A volume of the records of permanent surveys of the county surveyor, forming a part of the public records of the county, is not discredited as evidence because it may contain an original paper of a survey, instead of a copy of such paper. (Syllabus by the Court.)

Error from District Court, Sumner County; C. L. Swarts, Judge.

Action by Josiah Scott against E. G. Williams. Judgment for defendant, and plain

Smith's Survey tiff brings error. Affirmed.

Ed. T. Hackney and F. A. Dinsmore, for plaintiff in error. W. W. Schwinn, for defendant in error.

Lot 5.

s.1/2 of the N.E.1/4 of Sec. 3.

Lot 1.

Lot 6,

Walton's Survey

Sec. 2.

N.W.1/4 of
W.1/2 of the

JOHNSTON, C. J. This was ejectment to recover a triangular strip of land lying along the section line between sections 2 and 3, in township 35 S., of range 4 W., of the sixth P. M. Josiah Scott was the owner of what is spoken of as the “northeast quarter of section 3,” and which is composed of the south half of the northeast quarter, and of lots 1, 5, and 6 of section 3, and E. G. Williams was the owner of the west half of the northwest quarter of section 2. It appear that Arthur Scott settled upon lots 5 and 6 and the south half of the northeast quarter of section 3 in 1876, and obtained a patent to the land from the United States in 1882, and that in 1877 George W. Scott settled upon lot 1, the patent for which was issued to him in 1852. In 1881, George W. Scott conveyed this lot to Arthur Scott, and in 1890 Arthur Scott deeded lots 1, 5, and 6 and the south half of the northeast quarter of section 8 to the plaintiff, Josiah Scott, in whom the

Notwithstanding the Smith survey, the Scotts occupied and farmed the land over to the Walton survey for more than 15 years. In 1903 the county authorities opened the road on the Smith survey, when Williams took possession of the strip and the present

section. According to his own testimony the possession was not hostile or adverse, and therefore none of the questions raised by him as to the application of the statute of limitations are material.

Plaintiff complains of the introduction of a record of the county surveyor. The objection was that the record appears to have been made up in part of the original papers of the survey, and it is argued that the statute contemplates that only copies of them shall constitute the record. That which was introduced was placed in a volume of the permanent surveys and kept among the permanent records of the county. The statement of the witness who presented it, that the papers recorded in the book appeared to him to be the originals, did not take from the record its official character or destroy its force as evidence. He stated that it was a permanent record of the county, and the fact, if it be a fact, that it included an original paper instead of a copy of such paper, did not impeach the record or destroy its authenticity.

Some other objections are mentioned by counsel, but they appear to be immaterial, and, as no error is seen in the record, the judgment of the court will be affirmed. All the Justices concurring.

action was soon afterward brought by Scott. The verdict of the jury was for the defendant, finding that the government corner between sections 2 and 3 on the north line of the sections was in accordance with the Smith survey, and that Walton, who made the first survey, did not find the government corner. One of the points in the case, and, in fact, the principal one, was, Where was the true section line established by the government survey? Was it the one traced by the Walton survey, or by the later survey of Smith? The jury found, upon conflicting evidence, that the Smith survey was upon the true line, and that the strip is a part of the west half of the northwest quarter of section 2, claimed by the defendant, must be regarded as settled.

It is claimed, however, that the possession and use of this strip of land for over 15 years by the Scotts gave title by prescription or limitation. To have that effect the possession must be hostile and adverse as against the owner. If Scott only claimed title to the northeast quarter of section 3, and mistakenly occupied land in section 2, believing it to be a part of his quarter, when it was not, his possesssion was not adverse. In Winn v. Abeles, 35 Kan. 85, 10 Pac. 443, 37 Am. Rep. 138, it was held that a possession originating in and continuing under a mistake as to a boundary line, with no intention on the part of the occupant to claim beyond the true line, will not give title by adverse possession. The rule was restated and applied in the recent case of Shanline v. Wiltsie, 70 Kan. 177, 78 Pac. 436, where it was said: “As between the respective owners of adjoining lands, a physical possession held by one of them of a part of his neighbor's ground, taken and held through a misapprehension of the location of the boundary line, is not adverse, and, however long continued, will not ripen into a title or set the statute of limitations in operation, for the reason that there is no intention on the part of the occupant to exercise, or on the part of the owner to suffer, any dominion beyond the true line, wherever it may be.” Now, the testimony of the plaintiff and his grantors is to the effect that they claimed no more land than was in the northeast quarter of section 3, no more than they were entitled to under the patents and deeds conveying that quarter section. They claimed the land to the section line as established by the gov, ernment survey, and had no purpose to take or hold possession of Williams' land, or of any land in section 2. Plaintiff did occupy a strip of Williams' land for more than the statutory period, and, if he had intended to claim beyond the true line, there would be reason to call the occupancy adverse. It is clear, however, from his testimony that his occupancy was based upon a mistake as to the boundary line, and because he believed the strip to be a part of his own quarter

(74 Kan. 456) KUHN v. NATIONAL BANK OF

HOLTON et al. (Supreme Court of Kansas. Oct. 6. 1906. Re

hearing Denied Nov. 22, 1906.) 1. JUDGMENT-LIEN-PRIORITIES.

Where one who has no interest in, or lien upon, a tract of land buys the land, which is incumbered by three mortgages and two judgments of record, and, as a part of the purchase price, asşumes and agrees to pay the mortgages and afterwards does pay one of them ; such purchaser is not entitled to an injunction to prevent a sheriff's sale of the land, which has been advertised under executions issued upon such judgments, to be made subject only to the two unpaid mortgages. 2. MORTGAGES – PAYMENT — RIGITS OF PURCHASER MAKING PAYMENT-SUBROGATION.

In such case the purchaser is not entitled to have the paid mortgage, which has been released of record, revived for his protection, nor is he entitled to be subrogated to the rights of the mortgagee thereunder, and it is quite immaterial whether he had actual knowledge of the existence of the judgments at the time of his purchase or at the time of paying the mortgage. He is conclusively presumed to know what the proper records of the county disclose, which, by statute, are made constructive notice to all.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 35, Mortgages, 88 958-960.] 3. VENDOR AND PURCHASER--BONA FIDE PUR

CHASERS - RECORD AS NOTICE – TITLE ACQUIRED.

In such case the purchaser takes the legal title to the land subject to all licns which are properly of record, and subject also to other liens of which he has actual notice.

[Ed. Note.For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, $8 474, 513.)

(Syllabus by the Court.)

Error from District Court, Jackson Coun- of the county show, and which records the ty; C. F. Hurrel, Judge.

statutes provide shall be public notice, then it Action by W. D. Kuhn against the Nation- is quite immaterial whether or not Kuhn al Bank of Holton and E. S.

E. S. Bateman. had actual knowledge of the existence of Judgment for defendants, and plaintiff brings the judgments. In the absence of conduct error. Affirmed.

on the part of the person, who afterwards

asserts the facts shown by the records to Kuhn, the plaintiff in error, having at the

the prejudice of the purchaser, which pretime no interest whatever in, or lien uron,

vents an examination of the records, or inthe land, purchased a tract of land which

duces the purchaser not to make such exwas incumbered by three mortgages. At the

amination, it is negligence for a purchaser time of the purchase, and for some time prior

of either real or personal property to make thereto, abstracts of two judgments rendered

the purchase without ascertaining the facts by a justice of the peace against Kuhn's

shown by the records which may affect the grantor and in favor of the National Bank of

title to be acquired. In the absence of such IIolton, had been on file in the district court

fraudulent condurt the purchaser will be of Jackson county, in which the land was

presumed to have bought with knowledge of located, and such judgments were liens upon

all the facts which the records at the time the land in question. By his contract of

would have disclosed. Equity cannot be inpurchase Kuhn assumed, and agreed to pay,

vokell to relieve one from the consequences the mortgages against the land, and all un

of his own negligence. Hargis v. Robinson, paid taxes thereon. Subsequently Kuhn paill

C Kan. 686, 66 Pac. 988. If, thien, as is to one of the mortgages, procuring the money

be presumed, Kuhn bought the land with therefor principally by a loan which he se

knowledge that the three mortgagi's and two (ured by executing a new mortgage on the

judgments were subsisting liens thereon, and land. Subsequently Kuhn also will the

he assumed and agreed to pay the mortgage mortgage given by him to secure the loan,

debts, but ignored the judgment liens, is he leaving only the two mortgages which he had

entitlel, baving paid one mortgage, to be subassumed to pay and the two judgments as

stituted to the position of the holiler of the liens upon the land. Thereafter the Nation.

mortgage paid and to have the mortgage conal Bank of Bolton, the owner of the two

siderei unpaill when an attempt is made to judgments, caused execution to be issued

sell the land on execution to satisfy the judgthereon, and the sheriff of said county, not

ments? If so, having paid the senior mortfinding goods or chattels of the judgment

gage lien, could he not, in an action to foredebtor to satisfy the executions, levieil the

close the second mortgage, claim subrogasame upon the land in question, and adver

tion as to the first, or, having paid the first tised the same for sale, subject only to tlie

and second, could he not claim subrogation two unpaill mortgages, to pay said judg

as to both in an action to foreclose the third? ments. Thereupon Kuhn brought this ac

Sufficient answer it is to say that the equitation in the district court of Jackson county

ble relief of subrogation was not designed to to enjoin the bank and the sheriff from pro

aid speculation, nor to relieve litigants from ceeding with said sale. A temporary injunc(

the consequences of their own negligence, tion was granted during the pendency of the

ignorance, or mistakes of judgment. Hargis action, and in due time a trial was had be

V. Robinson, $upril. This equitable relieť fore the court without a jury, and the tem

originated in the evident justice of substiporary injunction was dissolved, a permanent

tuting a surety, who has been compelled to injunction was refused, and judgment was

pay the debt of his principal, to the place rendered against the plaintiff. The plaintiff, of the creclitor as against other creditors Kuhn, brings the case here for review.

affected by the transaction. It has, on prin

(iple, been extended to the relief of junior Hursh & Walton and John D. Myers, for

lien holders who, to protect their own interplaintiff in error. Hayden & Hayden, for

ests have been compelled to pay off prior defendants in error.

liens, and to other cases where natural jus

tice required its application, and where no SMITII, J. (after stating the facts). Two violence was done to legal rights of others. objections to the action of the court in this

It is urged in behalf of plaintiff that at case are presented: (1) The exclusion of evi.

the time he bought the land in question it dence offered to show that the plaintiff had was of no greater value than the amount no actual knowledge of the existence of the

of the three mortgages and taxes due therejudgments or judgment liens on the land at

on. We are not cited to any evidence, and the time he purchased it. (2) That, upon the have scanned the record in vain to find evifacts, not the defendants, but the plaintiff | dence, in support of this assertion. Whethwas entitled to judgment.

er the land was worth more or less than the If, as it has uniformly been decided, a debts assumed, which constituted the only purchaser of either real or personal property consideration for the purchase, is probably is bound to take notice of the facts affecting | immaterial. At the time Kuhn made the the title to the property, which the records purchase he had no interest therein to protect. At the time he paid the Myers mort

(4 Cal. A. 276) gage he did not stand in the relation of

BASHIORD V. MOONEY et al. (Civ. 217.) surety for its payment; by his contract he

(Court of Appeal, Third District. California. had made it his debt. He became the prin

Aug. 30, 1906.) cipal debtor and his grantor who executed

1. QUIETING TITLE-ISSUES AND PROOF, the note and mortgage became the surety.

Though, in a suit to quiet title to an irriSchmucker v. Sibert, 18 Kan. 104, 26 Am. gation ditch, the complaint alleged plaintiff to Rep. 765; Rouse v. Bartholomew, 51 Kan. be the owner of the ditch in fee, it did not pre423, 32 Pac. 1088. We have not been cited

clude the court from finding a right or owner

ship in the nature of an easement. to any authority, neither have we fourd any,

2. _WATERS AND WATER COURSES—IRRIGATION supporting the proposition that an independ

PRESCRIPTION. ent purchaser of real property incumbered One who constructed an irrigation ditch with liens, who has no interest to protect

on the land of another might acquire title to

the ditch by adverse use for the statutory pe therein and no other equitable claim, can

riod. assume the payment and pay such lien or

[Ed. Note.--For cases in point, see vol. 48, liens as he may choose and claim subroga- Cent. Dig. Waters and Water Courses, 8 144.] tion as against all inferior liens save the

3. SAME. cases of Darrough v. Bank, 125 Cal. 272, 57 One might acquire a prescriptive right to Pac. 983, and Matzen v. Shaeffer, 65 Cal. 81, an irrigation ditch to convey a limited 3 Pac. 92. These cases do not appear to be

quantity of water to his land, while another

retained the right also to use the ditch for his in accord with the weight of authority nor

own purposes to the extent of its remaining with the accepted reason for granting this capacity equitable relief and are disapproved. Young [Ed. Note.--For cases in point, see vol. 48, v. Morgan, 89 Ill. 199, does not appear to

Cent. Dig. Waters and Water Courses, $$ 149,

150.) be in point as the land in question was a homestead at the time of the sale and the

4. SAME-ELEMENTS OF RIGIIT.

In a suit to quiet title to an irrigation judgment creditor had no lien thereon, and

ditch, a finding that it had been used by the the homesteader had a right to sell the land persons constructing it, openly, continuously, clear of creditor's claim. Plumb v. Bay, 18 adversely to the titles of all others and under a Kan. 415, is cited in support of plaintiff's

claim of title exclusive of any other right, as

their own, and notoriously and uninterruptedly claim. In this case the mortgage paid by

for a period of more than five years, prior to Plumb, the lien of which was preferred to an the commencement of the action, and that they apparently prior judgment lien, was given

had paid all the taxes levied or assessed against

the ditch, and the right of way therefor, sulifor the purchase price of the land. In Bow

ciently showed a prescriptive right. ling v. Garrett, 49 Kan. 304, 31 Pac. 135, 33

[Ed. Note. For cases in point, see vol. 48, Am. St. Rep. 377, the purchaser had a

Cent. Dig. Waters and Water Courses, $ 150.) mechanic's lien on the land to protect at the

5. SAME. time he purchased it, and his equity for this Where one constructed an irrigation ditch and for a mortgage on the land which he as- across the lands of another and used the ditch sumed and agreed to pay as a part of the pur

adversely for the statutory period, he was not

prevented from acquiring a prescriptive right chase price, and afterwards had in part paid,

by the fact that he took the water for his ditch was preferred to the lien of a judgment of from another ditch instead of from a natural which there was no record, as it had not stream. been rendered at the time of his purchase 6. FRAUDS, STATUTE OF INTERESTS IN REAL of the land, although, under the statutory

ESTATE-IRRIGATION DITCHES.

A right of way for an irrigation ditch is rule relating to lis pendens, the lien of the

an interest in real property within Code Civ. judgment was prior to the mortgage lien.

Proc. $ 1971, providing that no interest in real The decisions of this court have been property can be created, assigned, etc., otherliberal in allowing subrogation where any

wise than by a conveyance in writing subscrib

ed by the grantor, etc. equity required it and no legal right of others

[Ed. Note.--For cases in point, see vol. 23, was encroached upon, but in no case does it

Cent. Dig. Frauds, Statute of, $ 84.) appear the court has gone to the extent de

7. WATERS AND WATER COURSES-PRESCRIPmanded in this case. Whether Kuhn would

TION-EVIDENCE. have purchased the land had the judgment In a suit to quiet title to an irrigation liens been brought to his attention, assuming ditch, evidence considered, and held sufficient he had no knowledge of them, is a question

to warrant a finding that plaintiff had acquired

a prescriptive right to the ditch. of pure speculation as they were for small

8. EVIDENCE - ADMISSIONS - OWNERSHIP OF amounts. Being charged with the knowledge

PROPERTY. of these liens and having no interest to pro- Where, in a suit to quiet title to an irritect, he must be held to have simply stepped

gation ditch, plaintiff claimed that it had been into his grantor's shoes, and that when he

so constructed and used over the lands of de

fendant by plaintiff's predecessor, and that paid off a mortgage which was prior to the

plaintiff had a prescriptive right to it, it was judgment lien it had the same effect as if proper to admit conversations between plainthe payment had been made by the grantor tiff and defendant, wherein plaiutiff inquired before he parted with his title.

as to the ownership of the ditch and defendant

made no claim to it. The judgment of the district court is af

[Ed. Note. For cases in point, see vol. 20, firmed. All the Justices concurring

Cent. Dig. Evidence, 88 771, 772.)

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