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

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

tenth interest in a certain mine in the vol. 2, Appeal and Error, $$ 1798-180.5.

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

was also the owner of an interest therein ; TRANSFER.

A complaint showing that plaintiff an 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 plaintiif ! he did not disclose was willing to buy the that a prospective purchaser was ready to buy

said lode for the sum of $3,000, $1,500 in the same at a certain price, whereby he induced 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 saril of the value of $1,500; that the defendant representations the said proposed purchaser hail offered and agreed to pay defendint for himself

also stated to plaintiff that he was willing and associatr owners of the properti : maila

to sell his interest in said property upon the larger sum than defendant had represental, but said terms and that he believed the other such fact was concealed from plainrift, 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-VIDE SCE.

The rejection of evidence oflere:) :15 i found the said prospective purchaser was unwillation for impeachment of another pitness (an ing to pay more for the said property; and not be reviewed where the evideni'e 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.

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

no better price could be obtained therefor; vol. :), Appeal and Error, $8 2897-289: |

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

sentations the said proposed purchaser. hall The action of the court in refusing instruc offered and agreed to pay the defendant, tions relating to the effect 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; TEM. Note.--For cases in noint, see (nt. Dig.

all of whith the defendant well knew, but vol. 33, Appeal and Error, $$ 2933-29377

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 giving which fact the defendant well knew; that of instructions will be considered waiveal where such matters are not mentioned in the brief of

the statements made by the defendant were counsel.

false and were known by defendant to be [Ed. Note.-For cases in noint, see ('ont. Dig. false, and were made by him for the purvol. 3, Appeal and Error, SS 4256-261.)

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 fron,

think, states a cause of action. None 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. A 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 ap

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 when a 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, $$ 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.

$.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 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

Notwithstanding the Smith survey, the Scotts occupied and farmed the land 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. 133, 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, $S 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. 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 Bunk of

title to be acquired. In the absence of such Holton, 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,

roked to relieve one from the consequences the mortgages against the land, anil all un

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

6 Kan. 686, 06 Pac. 988. If, then, 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 mortgages and two (ured by executing a new mortgage on the

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

he assumed and agreeil 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, having 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

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

sidered unpaid 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 adrer

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 ceeiling 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, Supril. 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 refusell, and judgment was

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

affected by the transaction. It has, on prin

ciple, 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 matie the the title to the property, which the records 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. 423, 32 Pac. 1088. We have not been cited to any authority, neither have we fourd 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. 933, 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. 304, 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 Kuln 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 cliarged 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) BASHORD 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, 8 144.] 3. SAME.

One might acquire a prescriptive right to

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 RIGIIT.

In a suit to quiet title to an irrigation ditch, a finding that it had been used by the persons constructiug 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, susiciently 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, 8 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 OF PROPERTY.

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 plaiutiff 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.]

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