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charge on habeas corpus; but there is author-, was not sufficient to warrant the court in ity to the contrary.”

entering a permanent injunction.

The evidence showed that the defendant Supporting the rule that the statute of Richardson was the owner of the premises ; limitations must be presented to the trial that he had there conducted a rooming house court are the following: United States v. for colored people for more than two years; Cook, 84 U. S. (17 Wall.) 168, 21 L. Ed. 538; that a number of people had been arrested Biddinger v. Com'r of Police

, 245 U. S. 128, on the premises for being intoxicated and 135, 38 S. Ct. 41, 62 L. Ed. 193; and Ex

disturbing the peace; others had been arparte Blake, 155 Cal. 586, 102 P. 269, 18 ann. rested and convicted for gambling on the Cas. 815. It follows that the defense of the

premises; that some 'half dozen young colstatute of limitations should have been pre-ored women had rooms there for which they sented to the trial court before the plea of

were paying $3 per week, and with no visible guilty was entered. The petitioner is remanded to the custody women to the number of 15 or 20 sometimes

means of support; that colored men and of the respondent to comply with the judg

congregated on the premises visiting those ment of the district court.

that were rooming there; that the police All the Justices concurring.

were frequently called there to make arrests or to quiet disturbances; that the young women who had rooms were frequent

ly seen in front of the place with the apSTATE V. RICHARDSON et al. (No. 25806.) pearance of advertising their business; that

a young colored man shot another while in (Supreme Court of Kansas. Nov. 8, 1924.)

the room of a colored woman who roomed (Syllabus by the Court.)

there; that the man who did the shooting. 1. Nuisance 84-Evidence held to sustain pleaded guilty to the charge of assault with judgment enjoining liquor, gambling, and intent to kill, and was sentenced to the penbawdy house nuisance.

itentiary; that this colored woman who was In an action to enjoin the keeping of a com- notoriously known as “Stingaree" continued mon nuisance, the evidence examined and held to room there with Richardson's consent and sufficient to support the judgment.

approval; that Richardson and his wife 2. Error not shown.

lived upstairs in rooms adjoining 12 other *Various other assignments of error held not rooms occupied by these men and women; to be well founded.

that one James McNeal and a colored wo

man named Tolliver occupied adjoining and Appeal from District Court, Montgomery connecting rooms for more than a year with County; Joseph W. Holdren, Judge.

Richardson's knowledge and consent, and Action by the State against Charles Rich- that the door between the rooms was usualardson and others. From a judgment for ly open; that these parties used the rooms plaintiff, defendants appeal. Affirmed. so indiscriminately that others who visited P. L. Courtright, of Independence, for ap- longed to the woman and which to the man;

there were confused as to which room bepellants.

Charles B. Griffith, Atty. Gen., and B. w. that six men were arrested in one of the Berg, Co. Atty., W. B. Grant, Asst. Co. Atty., all of whom were convicted in police court,

upstairs rooms charged with shooting craps ; and Chas. D. Shukers, City Atty., all of and upon appeal to the district court were Independence, for the State.

again convicted of gambling; that in an

other room six men were arrested charged HOPKINS, J. The state obtained an in- with playing poker for money, and the keepjunction against the defendants under a pe er of the room, James McNeal, was convicttition charging them with keeping a place ed of running a gambling room; that Mcwhere persons were permitted to resort for Neal appealed to the district court, therethe purpose of drinking intoxicating liquors, after dismissed his appeal, and paid his for the purpose of gambling, where women fine in police court. and men were permitted to resort for the [2] The defendants contend that the nupurpose of having illicit intercourse, and merous and sundry infractions of the law keeping a house of assigpation and prostitu- above briefly narrated, were not committed tion. The defendants appeal.

with the permission of the defendants; that [1] The action was filed jointly by the the defendants used all reasonable and lawstate and the city of Independence. A tem- ful means in their power to prevent and porary injurction was granted at the be- avoid the occurrence of such wrongful acts ginning of th action. Trial was had on the about or near their premises. It would serve 30th of April, 1924, and the injunction made no useful purpose to set out or analyze the permanent. The appeal appears to be tak- testimony of the various witnesses. It is en largely on the ground that the evidence / sufficient to say that, notwithstanding the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

was

(230 P.) denials and protestations of the defendants, Clement L. Wilson, of Tribune, and Guy there was abundant evidence to support the L. Hursh, of Topeka, for appellee. judgment of the trial court. The defendants rely on the case of State v. Glass, 99 MARSHALL, J. The plaintiff commenced Kan, 159, 160 P. 1145, and say that:

this action to recover the possession of real "In order to make a case against the defend- property, to recover rents for wrongful ants it was necessary for the state to allege withholding the real property, and to reand prove that the nuisance was maintained cover damages. Judgment was rendered with the knowledge, permission, and consent of against Susan H. Seaverns in favor of the the defendants."

plaintiff for the recovery of the real propThe cited case does not sustain defend- erty and for rent for its use. Susan H, Seavant's contention. In the opinion it was said: erns appeals.

On August 1, 1905, Susan H. Seaverns con"The defendants insist that the testimony did tracted with the Marysville Land Company not prove that a nuisance had been kept or for the purchase of the real property in conmaintained by them. It was not necessary to prove that they had kept or maintained the troversy, and in part payment then conveyed puisance. It was sufficient if the evidence to defendant E. R. Fulton other real propproved that the nuisance had been kept and erty valued at $1,600, and agreed to pay the maintained with the knowledge, permission, or remainder of the purchase price, $1,790.70, consent of the defendants," 99 Kan. 161, 160 in five equal annual installments of $358.14 P. 1146.

each, together with interest at the rate of The record presents no error.

6 per cent. and agreed to pay all taxes assessThe judg

ed against the land. The contract, which ment is affirmed.

in writing, made time the essence All the Justices concurring.

thereof, and provided that, if payments were not promptly made, the contract and all rights thereunder acquired by the purchaser

The first installment IMMELL V. SEAVERNS et al. (No. 24836.) should be forfeited.

with the interest was not paid when due, (Supreme Court of Kansas. Nov. 8, 1924.) but was paid in the fall of the following

year, 1907.

No other payment has been (Syllabus by the Court.)

made under the contract. Susan H. Seaverns 1. Vendor and purchaser w299(4)-Forfel. paid taxes on the land amounting to $283.36. ture of purchaser's rights under contract not The Marysville Land Company paid other Inequitabie, where adverse possession set up taxes amounting to $290.22. Years afterin vendor's action for possession, and no of

ward, in 1917 and later, in efforts to obtain fer to pay balance of purchase price. It is not inequitable to forfeit the rights different members of the Marysville Land

payment of the balance of the purchase price, of one who purchases real property of which he is in possession under a lease, pays a sub- Company had correspondence and negotiastantial part of the purchase price, and re

tions with Susan H. Seaverns. In those tains possession of the property under

efforts she attempted to obtain a settlement tract which provides for the forfeiture of all by paying $2,000, which the Marysville Land the purchaser's rights thereunder if further Company declined to accept; there being payments for the property are not promptly much more than that amount due at that made, where, in an action by the vendor to re-time. cover possession of the property, the purchas

The petition alleged that the Marysville er sets up a claim of adverse possession for Land Company was a partnership composed more than 15 years, and does not offer to pay of defendants E. R. Fuston, F. G. Powell, the remainder of the purchase price.

and other persons whose names were un2. Adverse possession on 63(5) - Possession known to the plaintiff. From the evidence

undor executory contract of purchase subor- it appeared that E. R. Fulton was interestdinate and not adverse to rights of vendor ed in the Marysville Land Company; that or those holding under him.

at the time the contract for the sale of the The possession of real property under an executory contract of purchase is in subordi- | land was made E. R. Fulton held the legal, nation and not adverse to the rights of the recorded title thereto; that Susan H. Seaverns vendor or those holding under him,

as lessee was in possession of the land at

the time she contracted to purchase it and Appeal from District Court, Greeley Coun- remained continuously in possession therety; Roscoe H. Wilson, Judge.

after; that some of the correspondence and

negotiations between those representing the Action by H. H. Immell against Susan H. Marysville Land Company and Susan H. Seaverns and others. From judgment for

Seaverns was had between E. R. Fulton plaintiff, the named defendant appeals. Af- and Susan H, Seaverns; and that the plainfirmed.

tiff derived his title through W. E. Ward R. C. Postlethwaite, of Mankato, and w. by a deed executed by E. R. Fulton and wife. M, Glenn, of Tribune, for appellant.

The answer of Susan H. Seaverns to the em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

con

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petition consisted of a general denial, but, purchase of land is not adverse as to his ven-
admitted that she was in possession of the dor.”
land, The court, at the conclusion of the

See, also, 1 R. C. L. 750; 2 C. J. 151; 1
evidence, instructed the jury to find for the Warvelle on Vendors (20 Ed.) 231; 2 Tiffany
plaintiff. By stipulation it had been agreed on Real Property (20 Ed.) 2010; 3 Wash.
that, if the plaintiff recovered possession of burn on Real Property (6th Ed.) 8 1908.
the land, he should have judgment for $97.-

The judgment is ailirmed. 60. Judgment was rendered for the plain

All the Justices concurring. tiff for that amount.

[1] 1, Susan H. Seaverns argues that it would be inequitable to permit a forfeiture of her rights to the land under the contract, RUCKER et al. v. HAGAR et al. (No. 25385.) because she has paid more than $2,000 under the contract. More than 14 years interven- (Supreme Court of Kansas. Nov. 8, 1924.) ed between the last payment under the con

(Syllabus by the Court.) tract and the commencement of this action on March 14, 1921. After more than 10 years Limitation of actions en 100(2)-Action for from the ma ing of the contract, she desired

breach of statutory warranties of person nea settlement by making a payment of $2,000,

gotiating note held action on contract to which

law tolling limitations until fraud discovered which was much less than the amount due

inapplicable. at that time including interest and taxes.

An action to enforce liability for breach of Since 1907 she has not attempted to comply the statutory warranties of a person who newith the terms of her contract. She did not gotiates a promissory note by delivery is an tender into court the amount due under the action on contract, to which the provision of contract, and does not now say she will pay the Civil Code that a cause of action for relief it. If she desires to retain the land, she on the ground of fraud shall not be deemed to should comply with her contract. Instead have accrued until discovery of the fraud has of offering to pay what is due under the con no application. tract she claims that she has possession of the land adverse to the plaintiff, and that

Appeal from District Court, Jackson Counthe plaintiff cannot maintain this action be-ty; M. A. Bender, Judge. cause it is barred by the 15-year statute of Action by Bert Rucker and another against limitations. She thus attempts to repudiate James W. Hagar and others, in which James her contract and hold adversely to it. IL T. Rafter was also made party defendant. she had so desired, she might have been per- From judgment in favor of defendant Rafter, mitted to comply with her contract and keep plaintiffs appeal. Affirmed. the land, but sbe has attempted to repudiate

Guy L. Hursh and J. M. Stark, both of the contract and hold the land. She thus Topeka, for appellants. compels a forfeiture of her rights under the

A. E, Crane, of Topeka, and E. D. Woodcontract.

burn, of Holton, for appellee. [2] 2. Susan H. Seaverns urges that her possession of the land is adverse to E. R.

BURCH, J. The action was one by the Fulton and the plaintiff; that, at the time holders of a promissory note to recover from of the commencement of the action, she had a person who had negotiated the note by been in such adverse possession for more delivery, and whose name did not appear upthan 15 years; and that the action was for on it. A demurrer to the petition was susthat reason barred by the statute of limita- tained, on the ground it did not state a tions. Can she set up a claim of possession cause of action, and plaintiffs appeal. The adverse to that of the plaintiff who holds un- question is whether the action was barred der E. R. Fulton subordinate, however, to by the statute of limitations, her rights, if her rights have not been for

The note was given on October 14, 1913, feited ? In 1 A. L. R. 1329, is a note on "adverse makers were James W. Hagar and Lucy A.

and was payable four years after date. The possession as aguinst vendor by one who Hagar, and the payee was David H. Hagar, enters under executory contract.” In that when offered in evidence, the note bore the note is found the following:

following indorsement: "The vendee under an executory contract of "It is distinctly understood that I, D. H. bale enters into possession under, and without Hagar, hereby assign this note and mortgage to hostility to, his vendor. Hostility being one of [Bert Rucker], without recourse on me. And the elements necessary to adverse possession, the makers of this note and mortgage shall not it follows that the vendee's possession is not be held beyond the value here described. adverse. Aurordingly, it is the general rule “[Signed]

David H. Hagar." which, hower ar, as subsequently shown, frequently yields when additional circumstances The action was commenced against the appear-that the possession taken by a vendee makers and indorser on October 11, 1922. under an executory written contract for the On December 9, 1922, James T. Rafter was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(230 P.)
made a party defendant. The petition con rants: (1) That the instrument is genuine and
tained three causes of action. The first was in all respects what it purports to be; (2) that
directed against the makers. The allega- he has a good title to it; (3) that all prior
tions relating to the title of plaintiffs were:

parties had capacity to contract; (4) that he
That before maturity the payee negotiated pair the validity of the instrument or render

bas no knowledge of any fact which would im-
the note to Rafter, with the indorsement up-it valueless; but when the negotiation is by
on it copied above, except that the name delivery only, the warranty extends in favor
of the indorsee was not inserted in the blank of no holder other than the immediate trans-
left for that purpose; that before maturity feree." R. S. 52–606.
Rafter sold and delivered the note to Rucker,

The action therefore is on these war-
and inserted Rucker's name in the indorse-

ranties,
ment: and that afterwards Rucker sold

They were breached as soon
a half interest in the note to Stark. By made, and a cause of action immediately
reference these allegations were carried into accrued. They were made before maturity of
the second and third causes of action. The the note. Rafter was not sued until more
second cause of action was directed against whether the five-year statute or the three-

than five years after the note matured, and
the payee as indorser. The allegations were:
That on the day suit was commenced David year statute governs (R. S. 60–306, first, sec

ond), the action was barred.
H. Hagar informed plaintiffs he had given
no consideration for the note, never had it

Plaintiffs say the warranties contained in
in his possession or disposed of it, and his the Negotiable Instruments Law are war-
signature as indorser was a forgery; that, ranties against fraud, and under the ex-
if Hagar's statements were not true, they ception contained in the statute of limita-
were fraudulent; that before the statements tions (R. S. 60–306, third), they could sue
were made plaintiffs had no knowledge of on the contract of warranty within two years
any facts which would impair validity of after discovery of the fraud. The action is
the note or render title to it defective; and not one for damages for fraud. No misrep-
that Hagar was liable on the statutory war-

resentation of any kind was charged in the ranties. The allegations of notice were car- petition. The act charged was negotiation ried into the third cause of action, which of the note, and the allegation was that by was directed against Rafter. Plaintiffs

his act Rafter made the warranties specicharged that, if Hagar's statements were

fied. Warranty sounds in contract, fraud true, Rafter had knowledge of the facts; sounds in tort, and liability predicated on that the sale and delivery of the note by breach of warranty is contract and not tort Rafter, bearing a forged indorsement, was liability. The assertion that plaintiffs could fraudulent; and that Rafter concealed the sue on the contract of warranty within two forgery from Rucker. The third cause of years after discovery of the fraud must action then continued as follows:

mean that they could sue on the contract

warranty within two years after dis-
"That the defendant Rafter warranted by
his said acts that said note and the indorse covery of the breach of warranty, and con-
ment thereon were genuine and what they pur- sequently does not state the law. The sub-
ported to be; that he had good title thereto, ject received careful consideration in the
and that he had no knowledge of any fact which case of Railway Co. v. Grain Co., 68 Kan.
would impair the validity of said note or ren- 585, 75 P. 1051, 1 Ann. Cas. 639. The case
der it valueless;

that by reason of was argued twice, and the court's conclu-
the breach of any of the aforesaid warranties sion was stated in the second paragraph of
these plaintiffs are entitled to recover from de- the syllabus as follows:
fendant James Rafter the said sum of $5,150,
with interest thereon from October 14, 1913,

“The provision in subdivision 3 of section 18
at 10 per cent. per annum."

of the Civil Code (Gen. Stat. 1901, § 4446)

that a cause of action for relief on the ground Plaintiff's say in their brief, as they were

of fraud shall not be deemed to have accrued bound to say in view of the nature of their until the discovery of the fraud, has no appleading, that they seek to charge Rafter plication to an action founded on contract." with liability on this note. The Negotiable While the statement suffers under critical Insruments Law contains the following pro- analysis, it is customary to say that, when

money or property has been obtained by "No person is liable on the instrument whose fraud, there is an implied contract to make signature does not appear thereon, except as the injured party whole. This fiction of a herein otherwise expressly provided. *

contract will not, however, give the injured R. S. 52–218.

party privilege to sue on the contract after

action for relief on the ground of fraud is
The only express provision applicable to barred.
the casc, ai | the one which the pleaders Orozem v. MeNeill, 103 Kan. 429, 175 P.
clearly had in mind when the petition was 633, 3 A. L. R. 1598. The warranty of one
framed, is the following:

who transfers a negotiable instrument by
"Every person negotiating an instrument by delivery is as much a contract that enumerat-
delivery, or by a qualified indorsement, war-led facts in relation to the paper are as

vision :

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an "The plaintiff and E. A. Hood were execu

promised as if the warranty were written 12. Executors and administrators 163-Exupon the instrument and were signed by the ecutor cannot make valid sale of personalty warrantor. In case of breach of warranty

to himself as agent of third party. liability arises from the fact the contract An executor of an estate cannot make a was broken, from the fact the things promis- valid sale to himself, as agent of a third pared were not as promised, and not from the ty, of personal property in his possession, as quality of the breach, whether tainted with

executor. fraud or otherwise. Therefore, according to the principle applied in the Orozem Case, County; John C. Hogin, Judge.

Appeal from District Court, Washington when the essence of an action is breach of warranty, the fact that the breach may have Action by D. C. Rossman, executor of the a tortious aspect will not make the statute last will and testament of Ellen E. Little, of limitations relating to actions for relief deceased, against William Christenson and on the ground of fraud applicable.

others. From a judgment for plaintiff, dePlaintiffs advance an argument difficult to fendants appeal. Affirmed. follow, to the effect that they have a right

Edgar Bennett, of Washington, Kan., for to Rafter's indorsement (R. S. 52–420), and, appellants. because they have that right, Rafter is liable A. J. Freeborn and Frank O. Baldwin, on the note as indorser. The argument fails both of Washington, Kan., for appellee. for several reasons. Rafter was sued as warrantor, and 'in no other capacity, and

HOPKINS, J. The action was one to replaintiffs cannot mend their hold in this

cover possession of a note and mortgage. court. If the indorsement on the note was Plaintiff prevailed, and defendants appeal. forged, Rafter was not "the holder of an instrument payable to his order," within the tors of the estate of Ellen E. Little, demeaning of R. S. 52-420. If the indorsement ceased. Hood was the cashier of the Greenon the note was not forged, the indorsement leaf State Bank of Greenleaf, Kan. The was a qualified indorsement in blank, the plaintiff was a farmer living about 30 miles instrument was payable to bearer, was trans- therefrom. Ellen E. Little, at the time of ferable by delivery (R. S. 52–405), and plain- her death, owned a note and mortgage given tiffs were not entitled to Rafter's indorse- by Margaret Hoover in the sum of $1,000. ment. If plaintiff's were entitled to Rafter's This note and mortgage, as a part of the indorsement, the indorsement and liability assets of the Ellen E. Little estate, came inupon it would relate to the time of transfer, and action to enforce the liability was barred to the hands of her executor. For convenby the statute of limitations when Rafter ience it was kept at the Greenleaf State

Bank, was sued.

The defendants William Christenson and Plaintiffs criticize the rule that a petition which discloses on its face that the action Sophia Christenson were brother and sister is barred by the statute of limitations is de residing on a farm near Greenleaf. They

conducted their business at the Greenleaf murrable on the ground the petition does State Bank, where they had a safety deposit not state a cause of action. Whether sound or unsound, the rule has prevailed too long There were two keys to the box, one in the

box in which they kept papers and securities. to be judicially discarded now.

The judgment of the district court is af- possession of the Christensons, the other in firmed.

the possession of the bank. A note and All the Justices concurring.

mortgage in the sum of $1,500, payable to William Christenson, executed by one Mehrman, was kept by the Christensons in their box. On July 14, 1921, Mehrman paid this note, together with $37.50 accrued interest,

to Hood. Hood placed $537.50 of the amount ROSSMAN V. CHRISTENSON et al. (No. to the credit of the Christenson account, 25224.)

and made out a deposit slip for $1,000 for

the estate of Ellen E. Little. In accordance (Supreme Court of Kansas. Nov. 8, 1924.) with such deposit slip, the bookkeeper enter(Syllabus by the Court.)

ed a credit of $1,000 to the account of the

Ellen E. Little estate on the books of the 1. Executors and administrators en 160-Ex- bank. ecutor without authority to dispose of per examination of the affairs of the Ellen E.

January, 1922, Hood died, and an sonal property, except as provided by stat- Little estate disclosed a shortage of over ute.

The exerutor of an estate has no author- $5,000 in addition to the Hoover note and ity to dispose of personal property in his pos

mortgage. Shortly thereafter the Christensession as sucn executor, except in accordance sons found in their safety deposit box the with the provisions and restrictions of the Hoover note and mortgage of $1,000. It bore

this indorsement:

statutes.

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