cordia, within which such county-seat is situated, contains a large amount of other ter ritory. State v. Harwi, 36 Kan. 588, 14 Pac. Rep. 158; State v. Stevens, 40 Kan. 113 et seq., 19 Pac. Rep. 365. The question, then, is simply this: Are the acts of a county superintendent of public instruction, changing the boundary lines of an old school-district, and creating a new one, which acts are performed at his office within an incorporated city, within which the county-seat is situated, necessarily void because such acts are not performed within the exact portion of the city within which the county-seat was originally located? or may such acts be held to be valid, where they are in every other respect legal and regular? This case is entirely unlike the cases of Phillips v. Thralls, 26 Kan. 780; Wilcox v. Johnson, 34 Kan. 655, 9 Pac. Rep. 610; Railroad Co. v. Rice, 36 Kan. 593, 14 Pac. Rep. 229; for in those cases the officer not only failed to perform the duties of his office at the place where the law requires that he should perform them, but he performed them outside of his office, and outside of the territory within which he had any power or jurisdiction to perform them, and performed them within the territorial jurisdiction of other officers specifically empowered to perform them. In the present case the county superintendent did not go outside of his office to perform the acts complained of, nor did he go outside of his territorial jurisdiction to perform them, but he performed them within his office, and within his territorial jurisdiction. But a superintendent of public instruction is not confined to his office nor to the county-seat. He has jurisdiction with regard to schools and school-districts over his entire county, and may perform services with reference to schools and school-districts for the entire county, and he may perform many acts outside of his office, and outside of the countyseat. See section 2, above quoted. Thus he may visit each school in his county, and at the time exercise some jurisdiction over the same, and also over the school-board of such

and includes within its boundaries, not only all the above-mentioned territory, but also a large amount of other territory. Prior to May 1, 1885, and since, up to the present time, T. W. Roach was and has been the county superintendent of public instruction of Cloud county, and has been all the time receiving a salary of more than $600 per annum. About the middle of May, 1885, he removed his office from that part of the city of Concordia which was originally made the county-seat of Cloud county to another part of such city, and has kept his office at such other part of the city ever since. About November 21, 1885, the county superintendent created a new school-district in Cloud county, numbered 99, and incorporated in such new school-district a portion of the territory of the pre-existing school-district No. 50. All this was done legally and in a proper manner, except that the county superintendent in doing the work did not do the same at what was originally the county-seat of the county, nor was he at the time holding his office at what was originally the county-seat, but he did all such work at the place to which he had removed his office in May, 1885. He had no other office at that time. The principal question now presented, and the only one which we need to consider, is whether the acts of the county superintendent were and are illegal and void or not, for the reason that they were not performed within the limits of the original county-seat. Schooldistrict No. 50 claims that they are void, and it commenced this action against T. W. Roach, the county superintendent of public instruction of Cloud county and the other defendants, who are county officers of said county, to restrain and enjoin them from recognizing the existence of school-district No. 99, and from recognizing or attempting to enforce the aforesaid attempted change of the boundary lines of school-district No. 50, made by the county superintendent in November, 1885. The case was tried before the court below without a jury, and the court found the facts substantially as above stated, and found that the formation of school-dis-school-district; and he may do and perform trict No. 99, and the change of the boundary lines of school-district No. 50, were legal and valid, and rendered judgment in favor of the defendants, and against the plaintiff, for costs; and to reverse this judgment the plaintiff, as plaintiff in error, brings the case to this court.

Of course, the county superintendent of public instruction is required to hold his office at the county-seat. See act relating to counties and county officers, art. 15, § 172, and the act relating to schools, art. 2, § 2. And for the purposes of this case we shall assume that the county-seat of Cloud county still remains at the exact place where it was originally located in 1870, and that it does not include any other territory than was then included in it, although the city of Con

many other acts outside of his office, and away from the county-seat. Of course, if a county superintendent should go outside of his county, and into the jurisdiction of some other county superintendent, and there perform acts with reference to schools, we would think his acts would be void; but so long as he remains within his own county, and performs acts within his own office which relate to schools and school-districts within his own county, and which acts are no more irregular than the acts complained of in the present case, we would think such acts must be held to be valid when attacked in the collateral manner in which they are attacked in the present case. The judgment of the court below will be affirmed. All the justices concurring.

(41 Kan. 618)

SCHOOL-DIST. No. 63, WABAUNSEE COUNTY,
v. CHICAGO LUMBER Co., (two cases.)
(Supreme Court of Kansas. May 10, 1889.)

JUDGMENT-ENFORCEMENT.

1. A judgment, which is irregular, but not void, will not be set aside merely on a motion filed four years after the judgment was rendered; but such judgment will be enforced.

2. Where a separate judgment is rendered against each of two separate defendants it is immaterial, for the purpose of enforcing the judg. ment against one of the defendants, whether the judgment against the other defendant is void or valid.

(Syllabus by the Court.)

Error from district court, Wabaunsee county; R. B. SPILMAN, Judge.

E. H. Sanford, for plaintiff in error. Frank H. Foster, for defendant in error.

void, it being a money judgment in a proceeding to foreclose a mechanic's lien, and a money judgment against Martin, the contractor, without personal service. (2) The decree of foreclosure is against property not described in the plaintiff's statement for a mechanic's lien. (3) The petition was not sufficient in law to authorize a judgment thereon against the school-district. (4) The court had no jurisdiction over Martin, the contractor, and the judgment was void as against the school-district. (5) The schooldistrict did not authorize its attorneys to enter a general appearance to the action before Martin, the contractor, was made a party; and that their appearance was made inadvertently, and they were misled, caused by the approval by the trial judge of service by publication, when in fact there was no service on VALENTINE, J. On January 24, 1883, in Martin. (6) The school-district is aggrieved an action then pending in the district court by this verdict and judgment, and prejudiced of Wabaunsee county in which M. T. Green, thereby. (7) The district has a valid defense Frank Colpetzer, and Robert Pierce, who to the action." The plaintiff in error also were partners in business under the firm sets forth in its brief filed in this court its name of the Chicago Lumber Company, were various grounds for reversal in a much more the plaintiffs, and school district No. 63, of elaborate form than above, but they are too Wabaunsee county, Kan., and S. J. Martin voluminous to be copied into this opinion, were the defendants, a trial was had as be- and it is not necessary to copy them, for the tween the plaintiffs and the school-district, above gives their substance. If the judgment and a verdict and judgment were rendered in rendered on January 24, 1883, in favor of the favor of the plaintiffs and against the school- Chicago Lumber Company and against the district for the sum of $477.41, and such school-district is, upon the showing made to judgment was declared to be a lien upon lot the court below, void, then of course the court No. 28 in Ensign's addition to East Eskridge below erred in not sustaining the motion to in the county of Wabaunsee; and a judgment set aside such judgment, and also erred in was also rendered in favor of the plaintiffs granting a peremptory writ of mandamus to and against S. J. Martin upon a default for enforce the judgment; but, if such judgment the sum of $545.75, and for costs of suit. is not void, then no such error was committed. Within proper time the school-district filed a If the judgment is not void it is immaterial motion for a new trial, and this motion was now, and in this proceeding, how irregular it overruled on October 12, 1883. Afterwards may be. It is also immaterial whether the many proceedings were had with reference to judgment rendered in favor of the Chicago the case which are now immaterial, and which Lumber Company and against Martin is regwe shall not take the trouble to mention; but ular or irregular, valid or void. Martin is finally, and on June 15, 1887, the school-dis- not complaining. But neither judgment is trict filed a motion in the district court to set void. It may be that the judgment rendered aside and vacate the aforesaid judgment against the school-district is slightly irregular against itself. Afterwards, and on July 16, in form, but, if so, still the irregularity does 1887, an alternative writ of mandamus was not render it void. The judgment is neverallowed by the judge of the district court and theless to be enforced in accordance with the issued, ordering the school-district board to provisions of section 31, art. 4, c. 122, Laws levy a tax to pay said judgment, or to show 1876. Comp. Laws 1885, p. 827, par. 5492. cause why it should not do so. The school The judgment against Martin is also very irboard made return to this writ. On July 22, regular, and can affect him only so far as it 1887, the motion to set aside and vacate said has reference to the property mentioned in judgment and the issues tendered by the alter- the judgment. The court unquestionably native writ of mandamus and the return had jurisdiction of the school-district and of thereto were heard by the court and decided. the subject-matter of the action, and had the The court overruled the motion, and awarded right unquestionably to render against the a peremptory writ of mandamus; and, to re- district substantially the very judgment verse the order overruling the motion and which it did render against it. The property the judgment awarding the peremptory writ described in the judgment is lot No. 28 in of mandamus, the school-district, as plaintiff Ensign's addition to East Eskridge. The in error, and no one else, brings the case to property described in the mechanic's lien is this court, making the Chicago Lumber Com-described in precisely the same manner except pany, and no one else, the defendant in error. that the description leaves out the word The plaintiff in error sets forth in its brief "East." This, from anything appearing in filed in this court its various grounds for re- the case, can make no possible difference, as versal, as follows: "(1) The judgment was it was not shown that there was any other

from a person holding the duplicate receipt of the receiver of the land-office for land taken under the provisions of the homestead laws of the United States, is entitled to recover the possession of a part of the land described in the receiver's receipt from a party in possession, who claims it by virtue of a contract made with a homesteader prior to the time when the title was acquired from the govern-case was tried before the justice, then ap

pealed to the district court, and there decided against her. At the time this action was commenced, the protest of Weeks against her right to make final proof of the homestead was on file in the general land-office, and was W. P. undetermined. After obtaining the final reHar-ceipt, Mrs. Frisbie conveyed the acre of land in controversy to William A. White, who brings this action.

made; and hence Weeks acquired no right has the best right to take the land as a hometo the possession of the land by virtue of stead, takes it independently and for herself, such a promise by Frisbie. The utmost that and is not bound by any agreements her huscan be said in favor of Weeks is that he re- band made in his life-time respecting it. As ceived permission of Dr. Frisbie to occupy long as there is a dispute about the possession this acre of land; that his occupation was a of a tract of government land as a pre-emppermissive one, and even this is of very tion or homestead right, or as long as there doubtful validity. If it was intended to be is a contest over, or dispute about whether temporary, it might be sustained; if a per- the title to a tract of land has passed from manent occupancy was intended, whether the government, all such questions are priexclusive or subordinate to that of Frisbie, marily to be determined by the federal auit could not be sustained, in accordance with thorities; but when the title once passes the scope and effect of the decisions of this from the government all questions about court. It would be but a pretense. It would possession, and all subsequent questions call a sale permanent occupancy. It would about title, are for the determination of the violate the spirit, if not the letter, of the con- courts of the state within which the land is sitgressional homestead law. It may be safely uate. The usual duplicate receipt of the reasserted that Markham & Byers or Weeks ceiver of the land-office is declared by our statobtained no interest in the land, or no legal | ute to be proof of title equivalent to a patent right of occupancy of it, by these agreements with McCarty and Frisbie, that they could enforce, or that they could assert in defense to any action brought to dispossess them. See the very recent cases of Whittaker v. Pendola, 20 Pac. Rep. 680, decided by the supreme court of California, and Railway Co. v. Kennedy, 20 Pac. Rep. 696, decided by the supreme court of Colorado.

against all but the holder of an actual patent. Code, § 383. Mrs. Frisbie has such a receipt, and this provision of the Code cannot be evaded or suspended by proof of an agreement such as was entered into between Frisbie and Weeks, or by the assertion of a contest as to whether Mrs. Frisbie had the right to subject this quarter section to a homestead entry. We give the receipt the legal effect declared by the Code, and the inevitable result is, and must necessarily be, that the grantee of the holder of the receipt must prevail in an action to recover possession against those who rely on such defenses. We think the court instructed the jury right, and that all other alleged errors are immaterial. It is recommended that the judgment be affirmed.

2. It is said that this land was not subject | to homestead entry by Dr. Frisbie; that at the time he took possession of it he found Markham & Byers-the vendors of Weeks, who succeeded to all their rights-in the sole possession and exclusive occupancy of this acre of land; and as they were in possession, claiming an interest, and as he had agreed to recognize their rights, he did not take the land for his own exclusive benefit, as the act of congress requires, and hence PER CURIAM. It is so ordered; all the the rule laid down by the supreme court of justices concurring.

this case.

constitution.

(41 Kan. 630)

2. The territory detached from Edwards county in 1886, when the county of Kiowa was recreated, is liable, under chapter 142 of the Laws of 1873, and subject to taxation for the payment of the bridge bonds and the court-house and jail bonds which were issued in pursuance of a vote of the electors of Edwards county before that county was divided.

the United States in the cases of Atherton v. Fowler, 96 U. S. 513; Hosmer v. Wallace, 97 U. S. 575; Wirth v. Branson, 98 U. S. 118; Quinby v. Conlan, 104 U. S. 420; and STATE ex rel. ROBB, County Attorney, v. Mower v. Fletcher, 116 U. S. 380, 6 Sup. HORDEY, County Commissioner, et al. Ct. Rep. 409, applies. The rule announced (Supreme Court of Kansas. May 10, 1889.) in these cases is this: "That no right of DIVISION OF COUNTIES-CONSTITUTIONAL LAW. pre-emption can be established by a settle- 1. The act which destroyed the existence of ment and improvement on public land, where Kiowa county, and divided its territory between the claimant forcibly intruded upon the pos-e. 60,) is not repugnant to section 16, art. 2, of the Edwards and Comanche counties, (Laws 1875, session of one who has already settled upon and improved the land." These cases have no bearing upon the questions discussed in Weeks is not claiming an independent right as a homesteader to this acre of land. He claims in subordination to the rights of Dr. Frisbie. The theory of counsel for the plaintiffs in error must be that Mrs. Frisbie succeeded to the rights, and is bound by the agreements, of her husband in his life-time respecting this homestead. We think this is a mistaken view of the homestead act. She takes in her own right at the death of her husband, and not as his heir. If he had the legal right to obligate himself with respect to the possession of any portion 5. The liability for the debt attaches to the real of his homestead, and this is very doubtful, estate of the county as soon as the bonds are legal-all his agreements ceased with his death.ly authorized and issued, and the fact that the proceeds of the bonds have not been expended when The widow with adult children, who then the change of boundary lines is made will not ex

3. The provisions of the last-mentioned act are fairly embraced in its title, and are valid, and they apply where the detached territory is erected into a new county, the same as where it is attached to one already organized.

4. The fact that some of the territory may have been government land, and not taxable, when it was detached, will not relieve it from taxation in accordance with the rule of that act when it is no longer exempt.

empt the detached territory from bearing its pro- the taxes, and the clerk of that county did portionate share of the debt.

(Syllabus by the Court.)

not lawfully notify the clerk of the county of Kiowa of the action taken with respect to the levy, and did not lawfully request that the levy be made by the county of Kiowa, as al

Original proceeding in mandamus. W. H. Robb, for plaintiff. Geo. P. Rush and Johnson, Martin & Keeler, for defend-leged in the alternative writ.

ants.

The defend

ants finally aver that at the time of the passage of the act of February 11, 1886, the terJOHNSTON, J. This is a proceeding in ritory alleged to have been detached from the mandamus, originally brought in this court county of Edwards was public lands of the in the name of the state of Kansas, upon the United States, not occupied or settled upon relation of the county attorney of Edwards under the pre-emption, homestead, or other county to compel the county commissioners laws of the United States, and was thereand county clerk of Kiowa county to extend | fore not subject to taxation. a tax-levy upon certain territory in Kiowa The case was submitted upon an agreed county, which formerly formed a part of Ed- statement of facts, in which it was admitted wards county, to pay the interest on bonds that the refunding bonds mentioned were isof Edwards county, which were issued before sued to fund the outstanding debt of Edthe territory named was detached from Ed- wards county, and that neither the debt nor wards county and made a part of Kiowa the refunding bonds were ever authorized county. The alternative writ recites that and issued upon a vote of the electors of Edprior to the taking effect of the act of Febru- wards county; and the plaintiffs waive any ary 11, 1886, which recreated the county of claim against the territory in Kiowa county Kiowa, a portion of which was taken from upon these bonds, and it is agreed that the the county of Edwards, Edwards county had allegations in the alternative writ relating to issued $12,000 refunding bonds, bearing in- them shall be stricken out. The stipulation terest at 6 per cent., falling due July 1, 1908; further shows that on October 6, 1885, an $2,000 bridge bonds, bearing interest at 7 election was held for the purpose of votper cent., falling due July 5, 1901; $20,000 ing upon the question whether or not Edcourt-house and jail bonds, bearing interest wards county should issue $20,000 in bonds at 7 per cent., falling due in the year 1905; for the purpose of erecting a court-house and the interest on all of the bonds being pay-jail at the city of Kinsley, in Edwards counable annually. It is further stated that ty; and that a canvass of the vote was had these bonds were legally authorized by a vote on October 9, 1885, when it was found that of the people of Edwards county, were legal- a majority of 31 votes had been cast in favor ly issued, and had passed into the hands of of the proposition. After the canvass, and purchasers before the passage of the act of before the bonds were issued, some effort 1886. Further, it is alleged that in the year was made to enjoin the issuance of the bonds, 1887 the board of county commissioners of but no injunction was allowed, and the bonds Edwards county made a levy to meet the in-were thereupon issued. The court-house and terest on the bonds mentioned, as follows: jail, for the building of which the bonds To pay interest on refunding bonds, three- were issued, were not erected until after the fourths of a mill; on bridge bonds, one-tenth territory described in the writ was detached of a mill; on court-house and jail bonds, one from Edwards county. It is admitted that and one-half mills. It is then stated that on a large proportion of the territory detached or about August 2, 1887, the county clerk of from the county of Edwards by the erection Edwards county, under the direction of the of Kiowa county belonged to the governcounty commissioners of that county, noti- ment of the United States, and formed a part fied the clerk of Kiowa county of the action of the public domain, and was not settled of the board of county commissioners in upon at the time of the recreation of the making said levy, as provided by law, and county of Kiowa. It is further admitted requested that the same levy be made by the that the county clerk of Edwards county cercounty of Kiowa on the territory which was titied to the county clerk of Kiowa county detached frora the county of Edwards, but that the board of county commissioners of that the commissioners and clerk of Kiowa Edwards county had levied one-tenth of a county refused and neglected to make the mill for the payment of interest and sinking levy. The defendants, in their answer and fund upon bridge bonds, series No. 2, $2,000; return to the alternative writ, deny that any and one and one-half mills for the payment portion of the territory of Kiowa county ever of interest upon court-house and jail bonds, formed a part of Edwards county; or that $20,000; that the same was received by the the county commissioners of Edwards county county clerk of Kiowa county prior to the had authorized and issued the refunding institution of this proceeding and in time to bonds upon a vote of the electors of the coun- have made said levy. Kiowa county was ty. They allege that the court-house, jail, first established and its boundaries defined and bridge bonds were not legally issued, in 1868. Gen. St. c. 24, § 37. By an amendfor the reason that the elections authorizing ment of this act the boundaries of the county their issue were not legally held. They also were redefined in 1874. Laws 1874, c. 59, allege that the board of county commission-§ 2. In 1875, the territory constituting ers of Edwards county did not lawfully levy Kiowa county was divided between and in