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lot fronting on HI street as shown by the plat is 49 feet in length and the west line 37 feet. As stated above, the side lines of the lots in question are not joined on the river front. In the year 1905 Benn and wife conveyed to the plaintiffs in this action a strip of land lying between the southerly boundary of this plat and the government meander line. If H street should extend to the meander line, the strip of land claimed by the plaintiffs lies within the street, but if the street does not extend beyond the southerly boundary of the adjacent lots as indicated on the plat, the title of the plaintiffs is complete. This action was brought by the plaintiffs against the city of Aberdeen to quiet their title to the strip of land last described. The court gave judgment according to the prayer of the complaint, and from that judgment, the city appeals.

It is not contended that there was any dedication of H street beyond the confines of the plat, and if the street terminates at the southerly-most point of the adjacent lots abutting thereon, as indicated by the official plat, the judgment is correct and must be affirmed. If on the other hand, the plat and the lots abutting on II street extend back to the government meander line, notwithstanding the survey and the plat to the contrary, it is only reasonable to hold that the street likewise extends to the meander line and the judgment should be reversed.

uel Benn was called as witness on the part of the respondents and testified that a considerable portion of the river bank above the meander line had been washed away at the time he filed his plat; that he was in doubt as to the validity of his title below the line of ordinary high tide, and for that reason did not extend the plat beyond the bank of the river as it existed at the time the plat was filed. It was further shown that the parties who filed the plat conveyed the lots bordering on the river front shortly thereafter, and in every instance, conveyed the strip of land lying between the lots as indicated on the plat and the meander line by separate instrument or description. This testimony was objected to as incompetent and immaterial. The testimony was perhaps competent for the purpose of showing the Intention of the parties in filing the plat and the contemporaneous construction they placed upon it, but this question we do not deem it necessary to decide. No doubt where land is conveyed described as bounded by, or upon, or as running to, or along the sea, or shore or bank of a river or stream, the grant carries the entire estate of the grantor, whether limited by high or low water mark, or by the thread of the stream; but that rule has no application in this case. The lots are particularly described on the plat and the plat itself makes no reference to the river. Of course the plat and the extrinsic evidence disclose the fact that the river flows in close proximity to the platted land, but there is nothing

to indicate that the river was or was not intended to be the boundary line of the plat or lots. The lots on the river front abutting on II street were staked out on the ground as extending back 49 and 50 feet respectively from River street, and were so indicated on the plat filed. If we must go back by construction 35 or 40 feet farther to the meander line, simply because the parties filing the plat had title to that point, there is no reason why we should not extend them still farther across the adjacent tide lands, if the parties filing the plat had title thereto.

We are satisfied that the plat and the streets indicated thereon do not extend beyond the stakes placed along the river bank as indicated on the official plat, and the judgment is accordingly affirmed.

MOUNT, C. J., and FULLERTON, HADLEY, CROW, ROOT, and DUNBAR, JJ., concur.

(74 Kan. 208)

JOHNSTON v. MARRIAGE. (Supreme Court of Kansas. July 6, 1906.) Petition for rehearing. Denied. For former opinion, see 86 Pac. 461.

MASON, J. In the opinion heretofore written in this case it was stated that the record did not show that it contained all the instructions that were given, and two assignments of error were disposed of wholly or in part upon this ground. In a motion for a rehearing the plaintiff in error contends that, although an express recital to that effect is wanting, a fair inference can be drawn from the record that it does contain all the instructions, and this contention proves to be correct. The assignments involved have therefore been re-examined in the light of this fact.

The other arguments presented in the motion, especially those with regard to the rejection of certain evidence, have also been carefully considered, and the conclusion is reached that, while the questions discussed are not free from doubt, no such error is shown as to justify a reversal of the judg ment.

The motion is accordingly overruled.

(74 Kan. 437)

VAN DUSEN TOPEKA WOOLEN
MILL CO.

(Supreme Court of Kansas. Oct. 6, 1906 1. ADMINISTRATORS-COMPROMISE OF CLAIMS An administrator has no authority to a cept less than its full amount ir satisfaction of a demand that accrued in the lifetime of his decedent, except by consent of the probate court. Atna Life Ins. Co. v. Swayze, 1 Pac. 36, 30 Kan. 118, followed.

[Ed. Note. For cases in point, see vɔl. 22, Cent. Dig. Executors and Administrators, §§ 384-392.1

2. SAME-SET-OFF.

In a suit by an administrator to collect a debt due to an insolvent estate, a claim which accrued in the lifetime of the decedent, and which the defendant has purchased at a discount since his death, cannot be used as an offset.

[Ed. Note.-For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, §§ 1702, 1703.]

3. JUDGMENT-COLLATERAL ATTACK.

An order of the probate court allowing a claim against the estate of a decedent is not open to a collateral attack, upon the ground that the statute of limitations had run against such claim before its allowance.

[Ed. Note.-For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 849; vol. 30, Cent. Dig. Judgment, § 914.]

(Syllabus by the Court.)

Error from District Court, Shawnee County; A. W. Dana, Judge.

Action by W. H. Van Dusen against the Topeka Woolen Mill Company. Judgment for defendant, and plaintiff brings error. Reversed.

Austin & Hungate, for plaintiff in error. Wm. F. Schoch, for defendant in error.

MASON, J. On September 26, 1898, a decree was rendered by the district court of Shawnee county declaring and marshaling a number of liens against a piece of real estate, which was ordered to be sold for their payment. Among those liens was one for $494.65, awarded to Sarah E. Weidler, as the administratrix of the estate of Wilhelm Weidler, deceased, based upon a right that had accrued in the lifetime of such decedent. Afterward the Topeka Woolen Mill Company acquired title to the real estate affected, and bought up all the liens excepting that of the Weidler estate. It claimed that it had also compromised and satisfied that one, and therefore asked that an order be made directing the sheriff, instead of selling the property, to make a conveyance to the company. Such an order was accordingly made; but, as the claim that the Weidler lien had been satisfied was disputed, the sheriff's deed was directed to be made, and was made, subject to whatever rights the Weidler estate might have, as should thereafter be determined. On September 9, 1903, W. H. Van Dusen, having procured from the administratrix an assignment purporting to transfer the lien to him, began an action against the company to have it declared and enforced. Upon a trial a judgment was rendered for the defendant, from which the plaintiff prosecutes

error.

The defendant in error suggests various theories upon which the decision may have been based; and, as there is nothing in the record to disclose upon which of them the trial court in fact proceeded, it will be necessary to examine each. It contends that the decree granting the administratrix a lien was not such a judgment as would support an independent action. No good ground is ap

parent for the contention.

The decree was a final determination of the rights of the various parties, providing for a sale of the property and the disposition of the proceeds. As it originally stood there was no occasion for suing upon it; but when the court ordered that the sheriff, instead of selling the property, should deed it to the mill company, subject to the disputed rights of the Weidler estate, a new action became the natural and appropriate, if not the only, means of determining the question so reserved. The statute of limitations was invoked by the defendant, perhaps because the substance of the decree of September 26, 1898, had been announced on the 6th of that month. The judgment rendered on the 26th, however, was complete in itself, and can be regarded as originating a right capable of enforcement by action. In the brief of defendant in error it is claimed that the plaintiff did not satisfactorily prove that the lien had been assigned to him by the administratrix, and oral testimony is cited as bearing on the question. No such issue was involved. A written assignment was pleaded, and its execution was admitted, because not denied under oath. The testimony referred to related to an entirely different matter.

The undisputed facts, therefore, establish a prima facie case for the plaintiff, and he was entitled to recover, unless the evidence relied upon by the defendant, if accepted as true, showed an affirmative defense. This evidence, although contradicted in important particulars, may, for present purposes, be deemed to have shown this state of facts: Representatives of the mill company entered into negotiations with the attorney of the administratrix, as a result of which it was agreed that the claim against the real estate should be compromised and satisfied by the payment of $200. This sum was accordingly paid to the attorney. The administratrix took no part in the arrangement, and the probate court made no order concerning it. No release of the lien was executed then or later; the attorney of the administratrix stating that he could not get the matter fixed up at once, because he could not reach his client. As security against any failure to carry out the agreement, however, he procured an assignment to be made to the mill company of a judgment for $959.89, which had been rendered against Wilhelm Weidler in his lifetime and which had been revived and allowed as a demand of the fourth class against the estate. He represented that this judgment was superior to any other claim against the estate, and could be used as a set-off against the lien or judgment which the company desired to have discharged. At this time no other claim had been exhibited against the estate, but later two were presented and allowed as demands of the second class; one for $325 in favor of the attorney of the administratrix, and

the other for $228 in favor of W. II. Van Dusen, the present plaintiff. Upon these Upon these facts the defendant contends, first, that the claim against its property was extinguished; and, second, that, if this is not the case, then it was entitled to set off against this claim the demand against the estate which had been assigned to it.

The first contention fails, because the compromise, even if acquiesced in by the administratrix, could not become effective without the approval of the probate court. Etna Life Ins. Co. v. Swayze, 30 Kan. 118, 1 Pac. 36. The second also fails. The estate was insolvent; the lien in question being its only asset. The mill company could not avoid the payment of the debt it owed to the administratrix by buying at a discount after the death of the decedent a claim against his estate which accrued in his lifetime. Biscoe v. Moore, 12 Ark. (7 Eng.) 77; Cook v. Lovell, 11 Iowa, 81; Schmidt v. Crafts, 2 Brev. (S. C.) 266: Mitchell v. Rucker, 22 Tex. 66; Happsoldt's Adm'rs v. Jones, Harp. (S. C.) (S. C.) 109; 2 Woerner, American Law of Administration, p. 828. § 389. It is argued that to permit the offset could prejudice no one but the holders of the two claims which had been allowed as demands of the second class; that one of these claims-that of the attorney of the administratrix-should be excluded from consideration upon principles of equitable estoppel, and that the other should be ignored because it showed upon its face that the statute of limitations had run against it before it was presented to the probate court. The challenge of the attorney's claim need not be considered, for that directed against the other one is manifestly bad. The allowance of the demand was, in effect, a judgment, and the question of the statute of limitations cannot be raised in a collateral attack upon it.

It follows that the judgment must be reversed, and the cause remanded for further proceedings in accordance with the views here expressed. All the Justices concurring.

(74 Kan. 476)

BLEAKLEY v. SMART, Judge. (Supreme Court of Kansas. Oct. 6, 1906.) 1. HABEAS CORPUS-RIGHT OF APPEAL.

An appeal will lie from a judgment of the district court in habeas corpus proceedings determining the rights of conflicting claimants to the custody of a child.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Habeas Corpus, §§ 102-106.] 2. MANDAMUS-REFUSAL OF STAY.

Where the district court refuses, on proper application, to grant a defeated party in a civil action a stay of proceedings under chapter 322, p. 539, Laws 1905 (Gen. St. 1905, § 5502), and after the Supreme Court has granted a stay of proceedings on the judgment refuses to act upon a motion for a new trial pending in the

action, mandamus will lie to compel the judge of such court to act upon the motion. [Ed. Note. For cases in point, see vol. 33, Cent. Dig. Mandamus, § 97.1

(Syllabus by the Court.)

Application of Charlotte E. Bleakley for writ of mandamus to Charles A. Smart, judge of the Fourth judicial district. Writ granted.

This is an original action in mandamus brought against the judge of the district court of Douglas county to obtain from him a ruling upon a motion for a new trial. The controversy involves what has become known as the "Incubator Baby Case." The history of the events ending in the refusal of the district court to act upon the motion for a new trial is as follows: Charlotte E. Bleakley, claiming to be the mother of Edith Bleakley, an infant exhibited as one of the "incubator babies" at the St. Louis World's Fair, brought proceedings in habeas corpus before the Honorable Emery C. Graves, circuit judge at Rock Island, Ill. A judgment was rendered in her favor on July 14, 1905, against Mr. and Mrs. Barclay. husband and wife, in which that court found that the infant, Edith, is the daughter of said Charlotte E. Bleakley and J. J. Bleakley, and was born February 15, 1904. It was further adjudged that Charlotte E. Bleakley was a fit person to have the custody and control of the child, and that it was for the best interest and welfare of the child that she be given to her mother, and that a certain deed of adoption, executed by Charlotte E. Bleakley to the Barclays, by the terms of which the Barclays claimed to be entitled to her possession and custody, be set aside and canceled as void. The Barclays were ordered to deliver possession of the child to Mrs. Bleakley, who afterwards returned with it to her home in Lawrence, Kan. About two months later, on September 5, 1905, the Barclays brought proceedings in habeas corpus in the district court of Douglas county, setting up that they were citizens of Rock Island county, Ill., and that the child, Edith, was unlawfully restrained of her liberty by reason of a judgment of the circuit court of Rock Island county, which judgment they alleged was obtained by Charlotte E. Bleakley on account of her falsely and fraudulently pretending to be the child's mother, and setting up in general terms the Illinois judgment, and averring that the relators had first learned the truth in reference to the child's parentage a short time previous to the making of their application. Mrs. Bleakley moved to quash the writ upon the ground that it was an attempt by collateral attack to impeach a final judgment of a court of competent jurisdiction; and that to do so would amount to a refusal to give full faith and credit to the judicial proceed

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ings of another state, and because the petition of the Barclays failed to allege that any change had taken place in the condition and surroundings of the child since the former judgment. The motion to quash being denied, a return to the writ was made, setting up in full the record of the Illinois judgment, and, in addition, the same grounds of defense relied upon in the motion. At the trial the district court decided that the proceedings in Illinois were not res judicata, and that the only question involved in the Illinois case was the question of the validity of the deed of adoption, and on January 25th, after a hearing lasting more than a week, adjudged that Charlotte E. Bleakley was not the mother of the child, that the relators were entitled to her care and custody, and that it was for her best interest that she should be given into their care and control. It was adjudged that the child should be delivered immediately to the Barclays, upon their execution of a bond to the respondent in the sum of $4,000, conditioned that the relators should produce the child within the court's jurisdiction in case the Supreme Court should modify, vacate, or reverse the decree of the district court. special execution was directed to issue commanding the sheriff to forthwith enforce the decree, and turn over the child to the relators. Thereupon Mrs. Bleakley filed a tion for leave to give a bond to stay proceedings, under Laws 1905, p. 539. c. 322. until the case could be brought to this court. The court denied her motion and refused to fix the amount of a supersedeas bond or to permit her to give one. She then filed a motion for a new trial, but this motion the court continued until the next term. then renewed her application for leave to give a bond to stay proceedings, pending an appeal, which was again denied. Exceptions were saved to the several rulings of the court. During all these proceedings Mrs. Bleakley was present with the child, but at 4:30 o'clock in the afternoon, when her last application for a stay was refused, she left the courtroom, taking the child with her. A half hour later the Barclays filed their $4,000 bond and the special execution was issued and placed in the hands of the sheriff. In the meantime Mrs. Bleakley had disappeared, and it afterwards developed that she had taken a train and gone with the child to Moline, Ill., the home of the Barclays, and in the county where the judgment in her favor had been rendered. On February 17, 1906, a verified motion was presented to the district court on behalf of the Barclays, reciting the facts in regard to the removal of the child from the jurisdiction of the court, and asking that Mrs. Bleakley be required to bring herself and the child within the jurisdiction of the court. or, in default, that she be adjudged guilty of contempt, and that her motion for a new trial be stricken from the files. On

March 3, 1906, the court heard the motion and adjudged that Mrs. Bleakley by her action in willfully removing the child from the court's jurisdiction was then, and from the 25th day of January had been continuously, in open contempt of court. It was ordered that the motion for a new trial be set for hearing on the 30th day of March and would be heard on that day, providing Mrs. Bleakley produced the child in open court at that time, but that, in default of so doing, the motion to strike from the files would be sustained. In the meantime a transcript of the proceedings was brought to the Supreme Court, together with a petition in error, and this court on March 21st granted a supersedeas, staying the issuance of any execution upon the judgment upon a bond in the sum of $500, which was duly filed and approved. On March 30th Mrs. Bleakley filed a petition in the district court of Douglas county to modify the journal entry of March 3d, setting up the granting of the supersedeas by the Supreme Court, and asking to be permitted to purge herself of contempt and to be allowed to argue her motion for a new trial. All of these motions were by the court denied, the court holding that Mrs. Bleakley was still in contempt of court, and that inasmuch as it appeared that since the judgment and order of March 3d she was then prosecuting proceedings in er ror in the Supreme Court, and inasmuch as the Supreme Court had assumed jurisdiction of the cause and was then exercising it, the court declined to hear her application. Again, on April 21st, at the next term of the district court, the attorneys for Mrs. Bleakley made another attempt to have the court hear her petition to modify the order of March 3d and to be permitted to save their exceptions to the ruling of the court, which applications were refused, the court declining to state whether the motion for a new trial was or was not still upon the docket, or to make any order with reference to the The court stated: "I simply say what I have said before, that so long as the respondent in this case is in contempt. keeps the child beyond the jurisdiction of the court, and is prosecuting an appeal in error in the Supreme Court, I will decline to act upon any motion or application of hers." Thereupon these proceedings in mandamus were begun to compel the judge of the district court to act upon the motion for a new trial.

E. F. Ware. W. B. Brownell, and J. Q. A. Norton (Gleed, Ware & Gleed, of counsel), for plaintiff. J. H. Atwood and Bishop & Mitchell, for defendant.

PORTER. J. (after stating the facts). Numerous contentions are made in regard to the principles of law which it is said are involved in this controversy. Only a few of them in our view need be decided.

1. It is contended by defendant that the

judgment of the district court is not appealable, and that therefore this court was without authority to grant a supersedeas staying execution of the judgment, and lacks jurisdiction to order the court below to act upon the motion for a new trial. It is said that no motion for a new trial was proper; that the district court has concurrent jurisdiction with the Supreme Court in habeas corpus; that no provision is made by statute authorizing an appeal from a judgment or decision in habeas corpus; and that the weight of authority is to the effect that, independent of any statutory provision, an appeal will not lie. Manifestly the question whether this court may review a judgment or decision of the district court in habeas corpus is primarily involved. Great conflict of opinion exists upon the question whether a judgment in habeas corpus is appealable. Many courts hold that, in the absence of statutory provision, where the action is strictly one to obtain the release of a person who claims to be illegally restrained of his liberty, no appeal lies. Other courts recognize a distinction which sometimes necessarily arises by reason of the nature and scope of the decision, and have held that in that class of habeas corpus proceedings, where the right to the custody of a minor child is the thing determined, an appeal will lie. The action is said to partake of the nature of a private suit, in which the public has no concern. The rights of the parties are determined as in any civil action, and, being a civil action, the right to appeal follows.

Defendant relies upon the decision in Re King, 66 Kan. 695, 72 Pac. 263. In that case we declined to regard a former judgment by another court in habeas corpus for the custody of a child as absolutely conclusive and binding upon this court. The controlling consideration, however, is expressly declared to be that of the welfare of the child. It is there said: "We agree that, so far as such a proceeding is to be considered as a mere trial of conflicting private rights, there is no reason in the nature of things why the doctrine of estoppel by former adjudication should not apply. * When

a court in a proper proceeding, wherein conflicting claims to the right to the custody of a child are litigated, takes the custody from the parents and bestows it upon some other person, the legal right of the parent is to that extent extinguished, and the new custodian has in that respect the same right formerly held by the parents. The parents may not dispute such right nor relitigate it, except upon a new state of facts. But the court has the same power to change the custody as against the new custodian as it had originally against the parents." In re Hamilton was decided at the same term. 66 Kan. 754, 71 Pac. 817. The exact question there was whether a former judgment in habeas corpus determining the custody of a child was res judicata, and the distinction be

tween that and ordinary habeas corpus proceedings was recognized. The court uses this language: "After a careful examination of the authorities we are inclined to the opinion that in cases of this character, where the controversy arises over the custody of a child, the real issue is one between private parties contesting a question of private right, under the form of habeas corpus proceedings, in which there arises no question of personal liberty, and in consequence all matters in issue arising upon the same state of facts determined in the prior proceeding should be regarded as settled and concluded." It is said in Freeman on Judgments (4th Ed.) § 1324: "The principle of res judicata is also applicable to proceedings on habeas corpus, so far at least as they involve an inquiry into and a determination of the rights of conflicting claimants to the custody of minor children. The

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principle of public.policy requiring the application of the doctrines of estoppel to judicial proceedings, in order to secure the repose of society, are as imperatively demanded in the cases of private individuals contesting private rights under the form of proceedings in habeas corpus as if the litigation were conducted in any other form." In re King, supra, is not in conflict with this, nor with the doctrine in Re Hamilton, supra. It merely adds the modification that this court will consider the best interest of the child as always paramount to the rights of contending claimants, and will not be bound by the hard and fast rule adopted by some courts, to the effect that it must first be made to appear that a change in the condictions surrounding the child has occurred since the former adjudication.

A well-considered case directly in point is State, Baird Pros., v. Baird & Torrey. 19 N. J. Eq. 481. There it was decided that an appeal in such a case will lie, notwithstanding the proceedings were by habeas corpus, and that while in technical strictness the office of the writ is simply to remove unlawful restraint, and where this is the only purpose the right to appeal was a debatable question, it is said that in habeas corpus for the custody of a child the petition takes a wider scope and invokes the exercise of that power of the court which is quasi parental. It was held that the court in such a case acts under its general jurisdiction of the affairs of infants, and not by force of its more limited jurisdiction by proceedings in habeas corpus. See, also, In re Sueden, 105 Mich. 61, 62 N. W. 1009, 55 Am. St. Rep. 435; 9 Encycl. P. & P. 1071; 15 A. & E. Encycl. Law, 213; 5 Current Law, 1619, tit. "Habeas Corpus," § 8; Mahon v. People, 218 Ill. 171, 75 N. E. 768; Cormack v. Marshall, 211 Ill. 519, 71 N. E. 1077, 67 L. R. A. 787; People ex rel. Lawrence v. Brady, 56 N. Y. 182; People v. Court of Appeals, 27 Colo. 405, 61 Pac. 592, 51 L. R. A. 105. In the latter case the Colorado

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