Deering v. Boyle. instance, when the law under which a contract is made authorizes property to be sold on execution to the highest bidder it will be presumed that the parties contracted that it should be so sold (if sold at all), and a law afterward passed requiring that it should be appraised and sold for not less than two-thirds of its appraised value, is a law impairing the obligation of such contract, and it is therefore void. McCracken v. Hayward, 2 How. 608; Willard v. Longstreet, 2 Doug. (Mich.) 172; Rawler v. Hooker, 21 Ind. 144, and cases there cited. And generally, the law in force at the time the contract is made is the law which governs in the sale of property sold on execution to satisfy a judgment rendered on such contract. Harrison v. Stipp, 8 Blackf. 455. Also a law passed after a contract has been made staying judgment or execution on such contract is generally held to be void, on the ground that it prevents the creditor from seizing the debtor's property to satisfy the debt, as soon as the parties are presumed to have contracted that it might be so seized. Bumgarden v. The Circuit Court, 4 Mo. 50; Blair v. Williams, 4 Litt. (Ky.) 34; Hasbrouck v. Shipman, 16 Wis. 296; Bunn v. Gorgas, 41 Penn. St. 441; Stevens v. Andrews, 31 Mo. 205; Burt v. Williams, 24 Ark. 91. So also and for the same reason, a law passed after a contract has been made giving to the debtor the right to redeem his property from a sale on execution, or extending the time for such redemption, has been held void. Thorne v. San Francisco, 4 Cal. 127, 139 to 142. But we think we have already furnished sufficient illustrations to show that whenever a man contracts, he contracts with reference to all his property (not exempt), unless he otherwise express it in his contract. The decisions that we have referred to and many others which we might refer to could never have been made if such were not the law. See also Mc Cormick v. Holbrook, 22 Iowa, 487. He contracts with reference to his property in this way He makes his contract; the law provides what shall be done with his property if he does not perform the same; he knows or is presumed to know the law, and to make it a part of his contract. For instance, suppose he gives a promissory note. His contract will then be in legal effect as follows: "One year after date, for value received, I promise to pay A. B., or order, one hundred dollars, with interest. But if I do not so pay the same, then I further agree, in accordance with the present law, that said A. B., or his assignee, may sue me, obtain a judgment for that amount, have an execution Bruce v. Luke. issued and levied on my property, and have the same sold to satisfy said execution." This is a married man's contract with reference to his property. A married woman may, under said section 2 of the married woman's act, contract "in the same manner, to the same extent and with like effect," with reference to her property. We do not think that the said answer of the said defendant stated a good defense to the plaintiff's action. Therefore the demurrer to the answer was properly sustained, and the decision of the court below is affirmed. A person having no title or interest in a certain tract of land, executed a deed thereof without covenants of seizin or warranty, using as words of convey. ance the words, "grants, bargains, sell, aliens, releases, quitclaims and conveys." Afterward the grantor acquired title to the land and conveyed it to defendant, who purchased with knowledge of plaintiff's deed. Held, that the deed to plaintiff was a quitclaim deed, and that the grantor's after-acquired title did not inure to the benefit of plaintiff. REPLEVIN by Bruce to recover possession of 4,000 railroad ties, and 150 cords of wood, cut from a certain tract of land to which both parties claimed title from one Johnnycake. The other facts are stated in the opinion. The judgment below was for the defendant, and the plaintiff brought error. Nelson Cobb, for plaintiff in error. M. B. Newman and S. A Cobb, for defendant in error. VALENTINE, J. This was an action of replevin brought by the plaintiff in error, Charles Bruce, against the defendant in error, Jacob Luke, for the recovery of certain railroad ties and cordwood Bruce v. Luke. cut on a certain piece of land of which Bruce claimed to be the owner, but of which Luke was in possession and also claimed to be the owner. Passing over all the preliminary or minor questions which might be raised in the case, we are asked to decide this question only: Who is the owner of the land? In deciding this question there are certain incidental questions which it will not be necessary for us now to consider, for they have already been considered and settled in this court in the case of Simpson v. Greeley, 8 Kan. 586. Some of the principles underlying some of these incidental questions were considered and settled in the case of Douglas Co. v. U. P. Rly. Co., 5 id. 615. See also Baker v. Gee, 1 Wall. 333. On the 11th of March, 1867, Isaac Johnnycake executed and delivered a deed of conveyance for the land now in dispute to Kate L. Simpson. The land at this time belonged to the United States (Simpson v. Greeley, supra). On the 17th of October, 1867, the purchase-money was paid to the United States, and on the 26th of the same month the patent was issued by the government to Alexander Caldwell. On the 9th of January, 1868, Caldwell executed and delivered a deed of conveyance for said land to Johnnycake. On the 4th of May, 1868, Kate L. Simpson and her husband executed and delivered a deed of conveyance for said land to Bruce; and on the 5th of January, 1869, Johnnycake executed and delivered a deed of conveyance for said land to Luke-Luke having full notice of all the prior deeds. At the time that Johnnycake executed the deed of conveyance to Kate L. Simpson, he had no interest in the land that could be conveyed; and the only question now is, whether the after-acquired interest which he received from Caldwell inured to the benefit of Mrs. Simpson. At the time the deed from Johnnycake to Mrs. Simpson was executed, the following statute was in force: "SEC. 4. Where a deed purports to convey a greater interest than De grantor was at the time possessed of, any after-acquired interest such grantor, to the extent of that which the deed purports to convey, inures to the benefit of the grantee." Comp. Laws, 354. This deed does not purport to convey any particular interest or estate, nor does it anywhere assert or state that Johnnycake was possessed of any particular interest or estate which he could convey; nor is there any covenant of any kind or description whatever any where to be found in said deed. The deed, as we think, clearly Bruce v. Luke. shows upon its face that it was intended to be only a quitclaim deed of a present and existing but unascertained, unknown, indefinite and uncertain interest. The deed in substance is as follows: "For and in consideration of the sum of one dollar, and other valuable considerations in lawful money of the United States," Johnnycake "grants, bargains, sells, aliens, releases, quitclaims and conveys "unto Kate L. Simpson, the land in controversy, "together with all the improvements, ways, easements, rights, privileges and appurtenances to the same, belonging, or in anywise appertaining, and all remainders, reversions, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand, either at law or in equity, or otherwise howsoever of the said " Johnnycake, "in to, or out of said premises." The two cases referred to by counsel for plaintiff from the Illinois reports are not applicable. The case of De Wolf v. Haydn, 24 Ill. 525, was decided under a peculiar statute of Illinois, and the law as there laid down is clearly not the law where such a statute does not exist. The case of King v. Gilson's Adm'r, 32 Ill. 348, was a decision in Illinois, construing an Iowa statute precisely like ours (section 4, Comp. Laws, 354), but the decision, or at least the reasoning of the court, was evidently very much affected by their own local laws, and by the hardship of that particular case. The case, however, differs widely from this. The deed in that case used words "grant, bargain and sell" only, and did not use the words "release and quitclaim;" nor did that deed use any of many other words which are used in this, which tends to show that this was intended to be only a quitclaim deed. That deed also contained the following covenants, which this deed does not contain, to wit: "That the grantors were well seized, and had good right to sell and convey; that the premises were free from incumbrance, and the grantee, his heirs or assigns, should enjoy the quiet and peaceable possession thereof." 32 Ill. 350, 351. A deed containing the words "granted, bargained, sold and quitclaimed," is only a quitclaim deed; and the grantor in the same, who had no title to the land at the time he executed the deed, is not estopped from afterward acquiring the title as against his grantee. McCrackin v. Wright, 14 Johns. 194; Jackson v. Hubble, 1 Cow. 616; and the same with reference to the words "bargain, sell, release, quitclaim and convey;" Gibson v. Chouteau's Heirs, 39 Mo. 536, 566. See also note to Doe v. Oliver, 2 Smith's Lead. Cases (6th Am. ed.), 709, and cases there cited. Kansas Pacific Railway Company v. Nichols. After a careful consideration of the subject we are of the opinion that a deed, such as executed by Johnnycake to Mrs. Simpson, does not estop the grantor, who, at the time of executing the same, had no title to or interest in the land mentioned in the deed from afterward acquiring title to or interest in said land as against the grantee, and that the after-acquired title or interest will not inure to the benefit of the grantee. KINGMAN, C. J., concurring. BREWER, J., did not sit in the case. The judgment of the court below is affirmed. KANSAS PACIFIC RAILWAY COMPANY V. NICHOLS. (9 Kans. 235.) Common carriers-responsibility of as carriers of animals. A railroad company, receiving cattle or live stock to be transported over its road from one place to another, assumes all the responsibility of common carriers, except so far as such responsibility may be modified by special contract. (See note, p. 500). ACTION by Nichols, Kennedy & Co. to recover damages for cattle lost and injured through the negligence of the defendant's railway company. The petition alleged that the defendant was a "common carrier of cattle and freight for hire;" that plaintiff had shipped a lot of cattle over defendant's road from Abilene to State Line; and "that while said cattle were in the care, custody and keeping of said defendant they so carelessly, negligently and improperly conducted themselves in regard to the same that said cattle were turned at large and escaped." The answer was a general denial. The plaintiff had judgment on a verdict and the defendant brought error. J. P. Usher, E. W. Dennis and Wallace Pratt, for plaintiff in error. Thacher & Banks, for defendant in error. |