the principal on appeal to the Supreme Court to make the sureties parties.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1798-1805.] 2. FRAUD MISREPRESENTATION PROCURING TRANSFER.

A complaint showing that plaintiff and defendant were owners of certain interests in a mine that defendant represented to plaintif that a prospective purchaser was ready to buy the same at a certain price, whereby he induced plaintiff to convey his interest to defendant for the sum named; that at the time of making said representations the said proposed purchaser had offered and agreed to pay defendant for himself and associate owners of the property a mach larger sum than defendant had represented, but such fact was concealed from plaintiff, was sufficient to show a cause of action.

3. APPEAL AND ERROR-RECORD-EVIDENCE.

The rejection of evidence offered as a foundation for impeachment of another witness cannot be reviewed where the evidence is not in the record which will enable the court to determine the relevancy of the testimony rejected.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error. §§ 2897-2890 | 4. SAME.

The action of the court in refusing instructions relating to the effect of testimony cannot be reviewed where none of the testimony taken on the trial appears in the abstract.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 3. Appeal and Error, §§ 2933-2935.1 5. SAME-BRIEFS-WAIVER OF ERROR.

An assignment of error in relation to giving of instructions will be considered waived where such matters are not mentioned in the brief of counsel.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3. Appeal and Error, $$ 4256-4261.]

Appeal from District Court, El Paso County: Louis W. Cunningham, Judge.

Action by E. C. Campbell against Robert A. Christy. From a judgment for plaintiff. defendant appeals. Affirmed.

Vanatta & Woodruff and W. K. Brown. for appellant. H. McGarry, for appellee.

STEELE, J. Judgment was rendered in the district court of El Paso county against Robert A. Christy and the sureties upon a bond given to carry the case by appeal from the county to the district court. The defendant Christy prayed, and was allowed, a soparate appeal to the court of appeals: the other judgment debtors were not made parties in the court of appeals. A motion to dismiss the appeal was made, and denied with leave to renew on final hearing. Section 400 of Mills' Ann. Code authorizes a separate appeal, and provides that for the purposes of appeal the party appealing shall be permitted to use the names of all persons against whom judgment was rendered. if necessary. is urged that although one person may ap peal when a joint judgment is rendered, all persons against whom judgment was rendered should be made parties in the appellate court. The Code authorizes the use of the names of all such persons if necessary. No necessity for the use of the names of such persons appears to be present in this case; and the motion to dismiss the appeal will be denied.

It

The complaint sets forth, in substance, that the plaintiff was the owner of a onetenth interest in a certain mine in the Cripple Creek district; that the defendant was also the owner of an interest therein : that the defendant came to the plaintiff and informed him that a person whose identity he did not disclose was willing to buy the said lode for the sum of $3,000, $1,500 in cash, the balance to be paid in mining stock of the value of $1,500; that the defendant also stated to plaintiff that he was willing to sell his interest in said property upon the said terms and that he believed the other owners were also willing to sell on said basis; that the defendant represented that the said prospective purchaser was unwilling to pay more for the said property and that he, the defendant, believed the amount offered a fair price for the property and that no better price could be obtained therefor; that at the time of the making of said representations the said proposed purchaser had offered and agreed to pay the defendant, for himself and associate owners of said property, the sum of $4,500 cash therefor; all of whith the defendant well knew, but which he concealed from plaintiff; that the mining stock mentioned was of no value. which fact the defendant well knew; that the statements made by the defendant were false and were known by defendant to be false, and were made by him for the purpose of cheating and defrauding plaintiff : that relying upon said representations the plaintiff executed a deed to defendant for his interest in the property upon the terms proposed by defendant; that he received $150 in cash, but that said mining stock was never delivered to him; that thereafter the property was sold for the sum of $4,500 cash to the same person who had previously offered defendant said sum. The prayer is for judgment for $300, being one-tenth of the sum of $4,500 less $150. The complaint, we think, states a cause of action. None of the testimony taken on the trial appears in the abstract. The defendant recalled a witness for further cross-examination, and propounded one or two questions, answers to which the court did not receive. These questions and the objections, and the rulings of the court thereon, are copied from the bill of exceptions into the abstract. This was offered as a foundation, so it is said, for impeachment of one of plaintiff's witnesses, and error is assigned upon the ruling of the court rejecting the testimony; but as this is the only testimony before us, we cannot say whether it was relevant or not. and cannot, therefore, say that the court committed error.

The instructions offered by the defendant and refused and not given relate to the effect. of testimony, and, as the defendant has not copied into the abstract any portion of the bill of exceptions, except what we have mentioned, we cannot review the action of

the court in refusing the instructions. The court erred, it is said, in the giving of certain instructions. As the objections to these instructions are not mentioned in the brief of counsel, we conclude that the assignment of error in relation thereto has been abandoned. The jury assessed the plaintiff's damages at the sum of $300, being one-tenth of the amount received for the property less the amount the plaintiff received.

As no error has been pointed out, we must affirm the judgment.

The CHIEF JUSTICE and CAMPBELL, J., concur.

(74 Kan. 448)

SCOTT v. WILLIAMS. (Supreme Court of Kansas.

Oct. 6. 1906. Rehearing Denied Nov. 10, 1906.)

1. ADVERSE POSSESSION-WHAT 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 l'ossession, §§ 370-378.] 2. EVIDENCE-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 plaintiff brings error. Affirmed.

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

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 1882. 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

title has since rested. When the Scotts settled on this land, the cornerstone between sections 2 and 3 on the north line of the sections was not found. In 1878 Walton, a deputy county surveyor, undertook to survey a public road on the section line between these sections, and laid it along the east line of the strip in question, but the cornerstone was not found. In 1879, upon an agreement of the landowners in that region, a survey was made by Smith, the county surveyor, for the purpose of finding and establishing the corners and division lines, and he found the section line to be on the west side of the strip in question. Between these surveys there was left the strip in controversy, which was about 160 rods long, 4 or 5 rods wide at the south end, and about 12 rods wide at the north end. The following sketch will serve to indicate the location and extent of the tract:

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

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.

(74 Kan. 456)

KUHN v. NATIONAL BANK OF

HOLTON et al.

(Supreme Court of Kansas. Oct. 6. 1906. Rehearing 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, assumes 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

RIGHTS 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, §§ 958-960.]

3. VENDOR AND PURCHASER-BONA FIDE PurCHASERS RECORD AS NOTICE - TITLE ACQUIRED.

In such case the purchaser takes the legal title to the land subject to all liens 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, 88 474, 513.] (Syllabus by the Court.)

Error from District Court, Jackson County; C. F. Hurrel, Judge.

Action by W. D. Kuhn against the National Bank of Holton and E. S. Bateman. Judgment for defendants, and plaintiff brings error. Affirmed.

Kuhn, the plaintiff in error, having at the time no interest whatever in, or lien upon, the land, purchased a tract of land which was incumbered by three mortgages. At the time of the purchase, and for some time prior thereto, abstracts of two judgments rendered by a justice of the peace against Kuhn's grantor and in favor of the National Bank of Holton, had been on file in the district court of Jackson county, in which the land was located, and such judgments were liens upon the land in question. By his contract of purchase Kuhn assumed, and agreed to pay, the mortgages against the land, and all unpaid taxes thereon. Subsequently Kuhn paid one of the mortgages, procuring the money therefor principally by a loan which he secured by executing a new mortgage on the land. Subsequently Kuhn also paid the mortgage given by him to secure the loan, leaving only the two mortgages which he had assumed to pay and the two judgments as liens upon the land. Thereafter the National Bank of Holton, the owner of the two judgments, caused execution to be issued thereon, and the sheriff of said county, not finding goods or chattels of the judgment debtor to satisfy the executions, levied the same upon the land in question, and advertised the same for sale, subject only to the two unpaid mortgages, to pay said judg ments. Thereupon Kuhn brought this action in the district court of Jackson county to enjoin the bank and the sheriff from proceeding with said sale. A temporary injunction was granted during the pendency of the action, and in due time a trial was had before the court without a jury, and the temporary injunction was dissolved, a permanent injunction was refused, and judgment was rendered against the plaintiff. The plaintiff, Kuhn, brings the case here for review.

Hursh & Walton and John D. Myers, for plaintiff in error. Hayden & Hayden, for defendants in error.

SMITH, J. (after stating the facts). Two objections to the action of the court in this case are presented: (1) The exclusion of evidence offered to show that the plaintiff had no actual knowledge of the existence of the judgments or judgment liens on the land at the time he purchased it. (2) That, upon the facts, not the defendants, but the plaintiff was entitled to judgment.

If, as it has uniformly been decided, a purchaser of either real or personal property is bound to take notice of the facts affecting the title to the property, which the records

of the county show, and which records the statutes provide shall be public notice, then it is quite immaterial whether or not Kuhn had actual knowledge of the existence of the judgments. In the absence of conduct on the part of the person, who afterwards asserts the facts shown by the records to the prejudice of the purchaser, which prevents an examination of the records, or induces the purchaser not to make such examination, it is negligence for a purchaser of either real or personal property to make the purchase without ascertaining the facts shown by the records which may affect the title to be acquired. In the absence of such fraudulent conduct the purchaser will be presumed to have bought with knowledge of all the facts which the records at the time would have disclosed. Equity cannot be invoked to relieve one from the consequences of his own negligence. Hargis v. Robinson,

Kan. 686, 66 Pac. 988. If, then, as is to be presumed. Kuhn bought the land with knowledge that the three mortgages and two judgments were subsisting liens thereon, and he assumed and agreed to pay the mortgage debts, but ignored the judgment liens, is he entitled, having paid one mortgage, to be substituted to the position of the holder of the mortgage paid and to have the mortgage considered unpaid when an attempt is made to sell the land on execution to satisfy the judgments? If so, having paid the senior mortgage lien, could he not, in an action to foreclose the second mortgage, claim subrogation as to the first, or, having paid the first and second, could he not claim subrogation as to both in an action to foreclose the third? Sufficient answer it is to say that the equitable relief of subrogation was not designed to aid speculation, nor to relieve litigants from the consequences of their own negligence, ignorance, or mistakes of judgment. Hargis v. Robinson, supra. This equitable relief originated in the evident justice of substituting a surety, who has been compelled to pay the debt of his principal. to the place of the creditor as against other creditors affected by the transaction. It has, on principle, been extended to the relief of junior lien holders who, to protect their own interests, have been compelled to pay off prior liens, and to other cases where natural justice required its application, and where no violence was done to legal rights of others.

It is urged in behalf of plaintiff that at the time he bought the land in question it was of no greater value than the amount of the three mortgages and taxes due thereon. We are not cited to any evidence, and have scanned the record in vain to find evidence, in support of this assertion. Whether the land was worth more or less than the debts assumed, which constituted the only consideration for the purchase, is probably immaterial. At the time Kuhn made the purchase he had no interest therein to pro

tect. At the time he paid the Myers mortgage he did not stand in the relation of surety for its payment; by his contract he had made it his debt. He became the principal debtor and his grantor who executed the note and mortgage became the surety. Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765; Rouse v. Bartholomew, 51 Kan. 425, 32 Pac. 1088. We have not been cited to any authority, neither have we found any, supporting the proposition that an independent purchaser of real property incumbered with liens, who has no interest to protect therein and no other equitable claim, can assume the payment and pay such lien or liens as he may choose and claim subrogation as against all inferior liens save the cases of Darrough v. Bank, 125 Cal. 272, 57 Pac. 983, and Matzen v. Shaeffer, 65 Cal. 81, 3 Pac. 92. These cases do not appear to be in accord with the weight of authority nor with the accepted reason for granting this equitable relief and are disapproved. Young v. Morgan, 89 Ill. 199, does not appear to be in point as the land in question was a homestead at the time of the sale and the judgment creditor had no lien thereon, and the homesteader had a right to sell the land clear of creditor's claim. Plumb v. Bay, 18 Kan. 415, is cited in support of plaintiff's claim. In this case the mortgage paid by Plumb, the lien of which was preferred to an apparently prior judgment lien, was given for the purchase price of the land. In Bowling v. Garrett, 49 Kan. 504, 31 Pac. 135, 33 Am. St. Rep. 377, the purchaser had a mechanic's lien on the land to protect at the time he purchased it, and his equity for this and for a mortgage on the land which he assumed and agreed to pay as a part of the purchase price, and afterwards had in part paid, was preferred to the lien of a judgment of which there was no record, as it had not been rendered at the time of his purchase of the land, although, under the statutory rule relating to lis pendens, the lien of the judgment was prior to the mortgage lien.

The decisions of this court have been liberal in allowing subrogation where any equity required it and no legal right of others was encroached upon, but in no case does it appear the court has gone to the extent demanded in this case. Whether Kuhn would have purchased the land had the judgment liens been brought to his attention, assuming he had no knowledge of them, is a question of pure speculation as they were for small amounts. Being charged with the knowledge of these liens and having no interest to protect, he must be held to have simply stepped into his grantor's shoes, and that when he paid off a mortgage which was prior to the judgment lien it had the same effect as if the payment had been made by the grantor before he parted with his title.

The judgment of the district court is affirmed. All the Justices concurring.

(4 Cal. A. 276)

BASHORE v. MOONEY et al. (Civ. 217.) (Court of Appeal, Third District. California. Aug. 30, 1906.)

1. QUIETING TITLE-ISSUES AND PROOF. Though, in a suit to quiet title to an irrigation ditch, the complaint alleged plaintiff to be the owner of the ditch in fee, it did not preclude the court from finding a right or ownership in the nature of an easement.

2. WATERS AND WATER COURSES-IRRIGATION PRESCRIPTION.

One who constructed an irrigation ditch on the land of another might acquire title to the ditch by adverse use for the statutory period.

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, § 144.] 3. SAME.

One might acquire a prescriptive right to use an irrigation ditch to convey a limited quantity of water to his land, while another retained the right also to use the ditch for his own purposes to the extent of its remaining capacity.

[Ed. Note. For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, $$ 149, 150.]

4. SAME-ELEMENTS OF RIGHT.

In a suit to quiet title to an irrigation ditch, a finding that it had been used by the persons constructing it, openly, continuously, adversely to the titles of all others and under a claim of title exclusive of any other right. as their own, and notoriously and uninterruptedly for a period of more than five years, prior to the commencement of the action, and that they had paid all the taxes levied or assessed against the ditch, and the right of way therefor, sufficiently showed a prescriptive right.

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, § 150.] 5. SAME.

Where one constructed an irrigation ditch across the lands of another and used the ditch adversely for the statutory period, he was not prevented from acquiring a prescriptive right by the fact that he took the water for his ditch from another ditch instead of from a natural stream.

6. FRAUDS, STATUTE OF INTERESTS IN REAL ESTATE-IRRIGATION DITCHES.

A right of way for an irrigation ditch is an interest in real property within Code Civ. Proc. 1971, providing that no interest in real property can be created, assigned. etc., otherwise than by a conveyance in writing subscribed by the grantor, etc.

[Ed. Note. For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, § 84.]

7. WATERS AND WATER COURSES-PRESCRIPTION-EVIDence.

In a suit to quiet title to an irrigation ditch, evidence considered, and held sufficient to warrant a finding that plaintiff had acquired a prescriptive right to the ditch.

8. EVIDENCE-ADMISSIONS - OWNERSHIP

PROPERTY.

OF

Where, in a suit to quiet title to an irrigation ditch, plaintiff claimed that it had been so constructed and used over the lands of defendant by plaintiff's predecessor, and that plaintiff had a prescriptive right to it, it was proper to admit conversations between plaintiff and defendant, wherein plaintiff inquired as to the ownership of the ditch and defendant made no claim to it.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 771, 772.]