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

Supporting the rule that the statute of limitations must be presented to the trial court are the following: United States v. Cook, 84 U. S. (17 Wall.) 168, 21 L. Ed. 538; Biddinger v. Com'r of Police, 245 U. S. 128, 135, 38 S. Ct. 41, 62 L. Ed. 193; and Ex parte Blake, 155 Cal. 586, 102 P. 269, 18 Ann.

Cas. 815. It follows that the defense of the statute of limitations should have been presented to the trial court before the plea of guilty was entered.

The petitioner is remanded to the custody of the respondent to comply with the judgment of the district court.

All the Justices concurring.

STATE v. RICHARDSON et al. (No. 25806.) (Supreme Court of Kansas. Nov. 8, 1924.)

(Syllabus by the Court.)

1. Nuisance 84-Evidence held to sustain judgment enjoining liquor, gambling, and bawdy house nuisance.

In an action to enjoin the keeping of a common nuisance, the evidence examined and held sufficient to support the judgment.

2. Error not shown.

entering a permanent injunction.

The evidence showed that the defendant

Richardson was the owner of the premises; that he had there conducted a rooming house for colored people for more than two years; that a number of people had been arrested on the premises for being intoxicated and disturbing the peace; others had been arrested and convicted for gambling on the premises; that some 'half dozen young colored women had rooms there for which they were paying $3 per week, and with no visible women to the number of 15 or 20 sometimes means of support; that colored men and congregated on the premises visiting those that were rooming there; that the police were frequently called there to make arrests or to quiet disturbances; that the young women who had rooms were frequently seen in front of the place with the appearance of advertising their business; that a young colored man shot another while in the room of a colored woman who roomed there; that the man who did the shooting. pleaded guilty to the charge of assault with intent to kill, and was sentenced to the penitentiary; that this colored woman who was notoriously known as "Stingaree" continued to room there with Richardson's consent and approval; that Richardson and his wife 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.

Appeal from District Court, Montgomery County; Joseph W. Holdren, Judge.

Action by the State against Charles Richardson and others. From a judgment for plaintiff, defendants appeal. Affirmed.

P. L. Courtright, of Independence, for appellants.

Charles B. Griffith, Atty. Gen., and B. W. Berg, Co. Atty., W. B. Grant, Asst. Co. Atty., and Chas. D. Shukers, City Atty., all of Independence, for the State.

HOPKINS, J. The state obtained an injunction against the defendants under a petition charging them with keeping a place where persons were permitted to resort for the purpose of drinking intoxicating liquors, for the purpose of gambling, where women and men were permitted to resort for the purpose of having illicit intercourse, and keeping a house of assignation and prostitution. The defendants appeal.

that one James McNeal and a colored woman named Tolliver occupied adjoining and connecting rooms for more than a year with Richardson's knowledge and consent, and that the door between the rooms was usually open; that these parties used the rooms so indiscriminately that others who visited there were confused as to which room be

longed to the woman and which to the man; that six men were arrested in one of the all of whom were convicted in police court, upstairs rooms charged with shooting craps; and upon appeal to the district court were again convicted of gambling; that in another room six men were arrested charged with playing poker for money, and the keeper of the room, James McNeal, was convicted of running a gambling room; that McNeal appealed to the district court, thereafter dismissed his appeal, and paid his fine in police court.

[2] The defendants contend that the numerous and sundry infractions of the law above briefly narrated, were not committed 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 injuretion was granted at the be- avoid the occurrence of such wrongful acts ginning of the 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

(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 Kan. 159, 160 P. 1145, and say that:

"In order to make a case against the defendants it was necessary for the state to allege and prove that the nuisance was maintained with the knowledge, permission, and consent of the defendants."

MARSHALL, J. The plaintiff commenced this action to recover the possession of real property, to recover rents for wrongful withholding the real property, and to recover damages. Judgment was rendered against Susan H. Seaverns in favor of the plaintiff for the recovery of the real propSusan H. SeavThe cited case does not sustain defend-erty and for rent for its use. erns appeals. ant's contention. In the opinion it was said: "The defendants insist that the testimony did not prove that a nuisance had been kept or maintained by them. It was not necessary to prove that they had kept or maintained the nuisance. It was sufficient if the evidence proved that the nuisance had been kept and maintained with the knowledge, permission, or consent of the defendants." 99 Kan. 161, 160 P. 1146.

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IMMELL v. SEAVERNS et al. (No. 24836.) (Supreme Court of Kansas. Nov. 8, 1924.)

(Syllabus by the Court.)

I. Vendor and purchaser 299(4)—Forfelture of purchaser's rights under contract not Inequitable, where adverse possession set up in vendor's action for possession, and no offer to pay balance of purchase price.

It is not inequitable to forfeit the rights of one who purchases real property of which he is in possession under a lease, pays a substantial part of the purchase price, and retains possession of the property under a contract which provides for the forfeiture of all the purchaser's rights thereunder if further payments for the property are not promptly made, where, in an action by the vendor to recover possession of the property, the purchaser sets up a claim of adverse possession for more than 15 years, and does not offer to pay the remainder of the purchase price.

2. Adverse possession 63 (5) Possession under executory contract of purchase subordinate and not adverse to rights of vendor or those holding under him.

The possession of real property under an executory contract of purchase is in subordination and not adverse to the rights of the vendor or those holding under him.

On August 1, 1905, Susan H. Seaverns contracted with the Marysville Land Company for the purchase of the real property in controversy, and in part payment then conveyed to defendant E. R. Fulton other real property valued at $1,600, and agreed to pay the remainder of the purchase price, $1,790.70, in five equal annual installments of $358.14 each, together with interest at the rate of 6 per cent. and agreed to pay all taxes assessed against the land. The contract, which was in writing, made time the essence thereof, and provided that, if payments were not promptly made, the contract and all rights thereunder acquired by the purchaser The first installment should be forfeited. with the interest was not paid when due, but was paid in the fall of the following year, 1907. No other payment has been made under the contract. Susan H. Seaverns paid taxes on the land amounting to $283.36. The Marysville Land Company paid other taxes amounting to $290.22. Years afterward, in 1917 and later, in efforts to obtain payment of the balance of the purchase price, different members of the Marysville Land Company had correspondence and negotia

tions with Susan H. Seaverns. In those efforts she attempted to obtain a settlement by paying $2,000, which the Marysville Land Company declined to accept; there being much more than that amount due at that time.

The petition alleged that the Marysville Land Company was a partnership composed of defendants E. R. Fuston, F. G. Powell, and other persons whose names were unknown to the plaintiff. From the evidence it appeared that E. R. Fulton was interested in the Marysville Land Company; that at the time the contract for the sale of the land was made E. R. Fulton held the legal, recorded title thereto; that Susan H. Seaverns 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.

Action by H. H. Immell against Susan H. Seaverns and others. From judgment for plaintiff, the named defendant appeals. Af

firmed.

after; that some of the correspondence and negotiations between those representing the Marysville Land Company and Susan H.

Seaverns was had between E. R. Fulton and Susan H. Seaverns; and that the plaintiff 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

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

petition consisted of a general denial, but I purchase of land is not adverse as to his venadmitted that she was in possession of the dor." land, The court, at the conclusion of the evidence, instructed the jury to find for the plaintiff. By stipulation it had been agreed that, if the plaintiff recovered possession of the land, he should have judgment for $97.60. Judgment was rendered for the plaintiff 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, because she has paid more than $2,000 under the contract. More than 14 years intervened between the last payment under the contract and the commencement of this action on March 14, 1921. After more than 10 years from the making of the contract, she desired a settlement by making a payment of $2,000, which was much less than the amount due at that time including interest and taxes. Since 1907 she has not attempted to comply with the terms of her contract. She did not tender into court the amount due under the contract, and does not now say she will pay it. If she desires to retain the land, she should comply with her contract. Instead of offering to pay what is due under the contract she claims that she has possession of the land adverse to the plaintiff, and that the plaintiff cannot maintain this action because it is barred by the 15-year statute of limitations. She thus attempts to repudiate her contract and hold adversely to it. If she had so desired, she might have been permitted to comply with her contract and keep the land, but she has attempted to repudiate the contract and hold the land. She thus compels a forfeiture of her rights under the contract.

Warvelle on Vendors (2d Ed.) 231; 2 Tiffany
See, also, 1 R. C. L. 750; 2 C. J. 151; 1
on Real Property (2d Ed.) 2010; 3 Wash-
burn on Real Property (6th Ed.) § 1908.

The judgment is affirmed.
All the Justices concurring.

RUCKER et al. v. HAGAR et al. (No. 25385.) (Supreme Court of Kansas. Nov. 8, 1924.)

(Syllabus by the Court.)

Limitation of actions 100 (2)-Action for breach of statutory warranties of person negotiating note held action on contract to which law tolling limitations until fraud discovered inapplicable.

An action to enforce liability for breach of the statutory warranties of a person who negotiates a promissory note by delivery is an action on contract, to which the provision of the Civil Code that a cause of action for relief on the ground of fraud shall not be deemed to have accrued until discovery of the fraud has no application.

Appeal from District Court, Jackson County; M. A. Bender, Judge.

Action by Bert Rucker and another against
James W. Hagar and others, in which James
T. Rafter was also made party defendant.
From judgment in favor of defendant Rafter,
Affirmed.
plaintiffs appeal.

Guy L. Hursh and J. M. Stark, both of
Topeka, for appellants.

A. E. Crane, of Topeka, and E. D. Woodburn, 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 her rights, if her rights have not been forfeited?

In 1 A. L. R. 1329, is a note on "adverse possession as against vendor by one who enters under executory contract." In that note is found the following:

"The vendee under an executory contract of sale enters into possession under, and without hostility to, his vendor. Hostility being one of the elements necessary to adverse possession, it follows that the vendee's possession is not adverse. Accordingly, it is the general rulewhich, however, as subsequently shown, frequently yields when additional circumstances appear that the possession taken by a vendee under an executory written contract for the

by the statute of limitations.

The note was given on October 14, 1913, and was payable four years after date. The makers were James W. Hagar and Lucy A. Hagar, and the payee was David H. Hagar, When offered in evidence, the note bore the following indorsement:

"It is distinctly understood that I, D. H. Hagar, hereby assign this note and mortgage to [Bert Rucker], without recourse on me. And the makers of this note and mortgage shall not be held beyond the value here described. "[Signed]

David H. Hagar."

The action was commenced against the makers and indorser on October 11, 1922. On December 9, 1922, James T. Rafter was

(230 P.)

made a party defendant. The petition contained three causes of action. The first was directed against the makers. The allegations relating to the title of plaintiffs were: That before maturity the payee negotiated the note to Rafter, with the indorsement up on it copied above, except that the name of the indorsee was not inserted in the blank left for that purpose; that before maturity Rafter sold and delivered the note to Rucker, and inserted Rucker's name in the indorsement and that afterwards Rucker sold

a half interest in the note to Stark. By reference these allegations were carried into the second and third causes of action. The

second cause of action was directed against
the payee as indorser. The allegations were:
That on the day suit was commenced David
H. Hagar informed plaintiffs he had given

no consideration for the note, never had it
in his possession or disposed of it, and his
signature as indorser was a forgery; that,
if Hagar's statements were not true, they
were fraudulent; that before the statements
were made plaintiffs had no knowledge of
any facts which would impair validity of
the note or render title to it defective; and
that Hagar was liable on the statutory war-
ranties. The allegations of notice were car-
ried into the third cause of action, which
was directed against Rafter.
charged that, if Hagar's statements were
true, Rafter had knowledge of the facts;
that the sale and delivery of the note by
Rafter, bearing a forged indorsement, was
fraudulent; and that Rafter concealed the
forgery from Rucker. The third cause of

Plaintiffs

rants: (1) That the instrument is genuine and in all respects what it purports to be; (2) that he has a good title to it; (3) that all prior parties had capacity to contract; (4) that he pair the validity of the instrument or render has no knowledge of any fact which would imit valueless; but when the negotiation is by delivery only, the warranty extends in favor of no holder other than the immediate transferee." R. S. 52-606.

The action therefore is on these warranties. They were breached as soon as made, and a cause of action immediately accrued. They were made before maturity of the note. Rafter was not sued until more

than five years after the note matured, and whether the five-year statute or the threeyear statute governs (R. S. 60-306, first, second), the action was barred.

Plaintiffs say the warranties contained in the Negotiable Instruments Law are warranties against fraud, and under the exception contained in the statute of limitations (R. S. 60-306, third), they could sue on the contract of warranty within two years after discovery of the fraud. The action is not one for damages for fraud. No misrepresentation of any kind was charged in the petition. The act charged was negotiation of the note, and the allegation was that by his act Rafter made the warranties specified. Warranty sounds in contract, fraud sounds in tort, and liability predicated on breach of warranty is contract and not tort liability. The assertion that plaintiffs could sue on the contract of warranty within two years after discovery of the fraud must mean that they could sue on the contract of 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 conment thereon were genuine and what they pur-Sequently does not state the law. The subported 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 concluthe 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, at 10 per cent. per annum."

action then continued as follows:

*

Plaintiffs say in their brief, as they were bound to say in view of the nature of their pleading, that they seek to charge Rafter with liability on this note. The Negotiable Insruments Law contains the following provision:

"No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. * R. S. 52-218.

The only express provision applicable to the case, at the one which the pleaders clearly had in mind when the petition was framed, is the following:

"Every person negotiating an instrument by delivery, or by a qualified indorsement, war

"The provision in subdivision 3 of section 18 of the Civil Code (Gen. Stat. 1901, § 4446) that a cause of action for relief on the ground of fraud shall not be deemed to have accrued

until the discovery of the fraud, has no application to an action founded on contract."

While the statement suffers under critical analysis, it is customary to say that, when money or property has been obtained by fraud, there is an implied contract to make the injured party whole. This fiction of a contract will not, however, give the injured party privilege to sue on the contract after action for relief on the ground of fraud is barred.

Orozem v. McNeill, 103 Kan. 429, 175 P. 633, 3 A. L. R. 1598. The warranty of one who transfers a negotiable instrument by delivery is as much a contract that enumerated facts in relation to the paper are as

163—Ex

promised as if the warranty were written | 2. Executors and administrators
upon the instrument and were signed by the
warrantor. In case of breach of warranty
liability arises from the fact the contract
was broken, from the fact the things promis-
ed were not as promised, and not from the
quality of the breach, whether tainted with
fraud or otherwise. Therefore, according to
the principle applied in the Orozem Case, County; John C. Hogin, Judge.

ecutor cannot make valid sale of personalty
to himself as agent of third party.

An executor of an estate cannot make a valid sale to himself, as agent of a third party, of personal property in his possession, as

when the essence of an action is breach of warranty, the fact that the breach may have a tortious aspect will not make the statute of limitations relating to actions for relief on the ground of fraud applicable.

Plaintiffs advance an argument difficult to follow, to the effect that they have a right to Rafter's indorsement (R. S. 52-420), and, because they have that right, Rafter is liable on the note as indorser. The argument fails for several reasons. Rafter was sued as warrantor, and in no other capacity, and plaintiffs cannot mend their hold in this court. If the indorsement on the note was forged, Rafter was not "the holder of an instrument payable to his order," within the meaning of R. S. 52-420. If the indorsement on the note was not forged, the indorsement was a qualified indorsement in blank, the instrument was payable to bearer, was transferable by delivery (R. S. 52–405), and plaintiffs were not entitled to Rafter's indorsement. If plaintiffs were entitled to Rafter's indorsement, the indorsement and liability upon it would relate to the time of transfer, and action to enforce the liability was barred by the statute of limitations when Rafter

was sued.

Plaintiffs criticize the rule that a petition which discloses on its face that the action is barred by the statute of limitations is demurrable on the ground the petition does not state a cause of action. Whether sound or unsound, the rule has prevailed too long to be judicially discarded now.

The judgment of the district court is affirmed.

All the Justices concurring.

ROSSMAN v. CHRISTENSON et al. 25224.)

executor.

Appeal from District Court, Washington

Action by D. C. Rossman, executor of the last will and testament of Ellen E. Little, deceased, against William Christenson and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Edgar Bennett, of Washington, Kan., for appellants.

A. J. Freeborn and Frank C. Baldwin, both of Washington, Kan., for appellee.

The

HOPKINS, J. The action was one to recover possession of a note and mortgage. Plaintiff prevailed, and defendants appeal. The plaintiff and E. A. Hood were executors of the estate of Ellen E. Little, deceased. Hood was the cashier of the Greenleaf State Bank of Greenleaf, Kan. plaintiff was a farmer living about 30 miles her death, owned a note and mortgage given by Margaret Hoover in the sum of $1,000. This note and mortgage, as a part of the assets of the Ellen E. Little estate, came in

therefrom.

Ellen E. Little, at the time of

to the hands of her executor. For convenience it was kept at the Greenleaf State

Bank.

The defendants William Christenson and

Sophia Christenson were brother and sister residing on a farm near Greenleaf. They

conducted their business at the Greenleaf

State Bank, where they had a safety deposit There were two keys to the box, one in the box in which they kept papers and securities. possession of the Christensons, the other in the possession of the bank. A note and 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 (No. to the credit of the Christenson account, 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.)

1. Executors and administrators 160-Executor without authority to dispose of personal property, except as provided by statute.

The executor of an estate has no authority to dispose of personal property in his possession as such executor, except in accordance with the provisions and restrictions of the

statutes.

ed a credit of $1,000 to the account of the Ellen E. Little estate on the books of the bank. January, 1922, Hood died, and an examination of the affairs of the Ellen E. Little estate disclosed a shortage of over $5,000 in addition to the Hoover note and mortgage. Shortly thereafter the Christensons found in their safety deposit box the Hoover note and mortgage of $1,000. It bore this indorsement:

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