"The court further finds that the cause of action involved in this case and the verdict of the jury rendered herein was on an obligation contracted for the erection of improvements on defendant John Haughton's home described in plaintiff's petition." be regarded as an innocent purchaser. Lee | day, after reciting the ruling on the motion, v. Bermingham, 30 Kan. 312, 1 Pac. 73. But continues: the intervener in this case cannot be accorded that standing. There was testimony that she was represented in the matter by her husband, who knew of the existence of the contract. Moreover, the petition in the action on which the sale was based recited that the machine company claimed a lien under a chattel mortgage. The evidence justified a finding, which the trial court must be deemed to have made, that the property was bought with notice of the machine company's rights. The judgment is affirmed. All the Justices concurring. WICHITA ACETYLENE MFG. CO. v. HAUGHTON et al. (No. 20008.) (Supreme Court of Kansas. March 11, 1916.) (Syllabus by the Court.) 1. APPEAL AND ERROR 873(2)-SCOPE OF REVIEW-RULINGS OF TRIAL COURT. Rulings of the trial court cannot be reviewed in an appeal which was perfected before they were made. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3460; Dec. Dig. 873(2).] 2. JUDGMENT 219-JOURNAL ENTRY-CON STRUCTION-HOMESTEAD. ment. The remainder of the entry recites merely a money judgment for the amount of the verdict. On February 19, 1915, the defendant appealed from the judgment. [1] 1. It appears that after the appeal was taken (no stay bond having been given) an execution was issued, upon which the property referred to has been sold, the sale having been confirmed on July 7, 1915. The defendant complains of the confirmation of the sale, but, if that ruling would otherwise be open to review, it is not a proper subject of consideration in this proceeding, because it was made after the present appeal was perfected. 4 Enc. L. & P. 330. [2] 2. The only other matter complained of is the inclusion in the entry of judgment of the words quoted in the foregoing statement. The plaintiff contends that they constitute no part of the judgment itself, but a mere finding of fact, which is not open to examination here, because no motion was made in the district court with regard to it. Language of a journal entry to the effect In view of the entire record we think the that the obligation sued on was found to have been contracted for the erection of improvements words referred to must be regarded as reon a home held to show a judgment that the cording the decision of the court upon a homestead was not exempt from sale for its pay-question of law affecting the means open [Ed. Note.-For other cases, see Judgment, and therefore as being a substantial part of for the enforcement of the plaintiff's claim, Cent. Dig. §§ 397-399; Dec. Dig. 219.] 3. HOMESTEAD 97-EXEMPTION-IMPROVE- the judgment rendered. The pleadings and. MENTS "FOR ERECTION OF IMPROVEMENTS." instructions, as well as the evidence, show The provision of the Constitution that no that, while the material for the purpose was property shall be exempt from sale for the pay- delivered to the defendant, the lighting plant ment of obligations contracted for the erection of improvements thereon does not apply to a never was installed; the generator was nevclaim for material furnished for the improve- er set up, never placed upon a foundation; ment of a homestead, but not actually used for nor were the fixtures attached. The cause of that purpose. action pleaded was based upon the refusal of the defendant to allow the installation. On the undisputed facts the material did not become a part of the realty. Machine Co. v. Mill Co., 155 Pac. 1077, decided at this sitting. In this situation the language in question is fairly to be construed as a declaration as a matter of law that the debt to be enforced was one contracted for the erection of im [Ed. Note. For other cases, see Homestead, Cent. Dig. § 154; Dec. Dig. 97.] Appeal from District Court, Greenwood County. Action by the Wichita Acetylene Manufacturing Company against John Haughton and another. From judgment for plaintiff, the defendant named appeals. Modified. Samuel & Hartley, of Emporia, for appel-provements on the defendant's homestead, lant. Foulke, Matson & Wall, of Wichita, and Lew E. Clogston and Robert H. Clogston, both of Eureka, for appellee. MASON, J. The Wichita Acetylene Manufacturing Company sued John Haughton for the price of a lighting plant, including its installation. The defendant denied liability. A jury trial resulted in a verdict against him on October 28, 1914. A motion for a new trial was overruled on November 27, 1914, at which time judgment was rendered. The journal entry of the proceedings on that That within the meaning of the exception on that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes challenge on appeal without having been attacked in the trial court. Com'rs of Wyandotte Co. v. Arnold, 49 Kan. 279, 30 Pac. 486. [3] 3. Whether the decision was correctly made depends upon the construction of the language of the constitutional provision. Read literally, it might cover such a case as the present; for in a sense an obligation may be contracted for the erection of improvements which are never in fact made. But the accepted rule is to construe an exception to the exemption with some strictness. 21 Cyc. 518. Our statute gives a mechanic's lien to one who furnishes material "for the erection" of improvements on real estate. Civ. Code, § 649 (Gen. St. 1909, 8 6244). This is held to apply only where the material actually becomes a part of the realty, although somewhat similar statutes have been given a different construction elsewhere. Lumber Co. v. Douglas, 89 Kan. 308, 131 Pac. 563, 44 L. R. A. (N. S.) 843. If any distinction is to be made, a provision limiting the homestead right should be more strictly construed than one giving a lien to materialmen. We conclude that a homestead may not be sold to satisfy a judgment for materials furnished for its improvement unless they were actually used for that purpose. The judgment will be modified by striking from it the language quoted, leaving it as one merely for the recovery of money; the question of exemption not being determined. All the Justices concurring. ENGLISH v. SANBORN et al. (No. 19739.) (Supreme Court of Kansas. March 11, 1916.) (Syllabus by the Court.) 1. MORTGAGES 28- CREATION OF LIEN HUSBAND AND WIFE. One who had given a chattel mortgage on certain property to secure a note, and had agreed to replace this with one executed by himself and wife, used the same property to secure a loan to complete payment for a farm, and then promised his debtor to give him a mortgage on the farm, executed by himself and wife, but gave him only a mortgage signed by himself and not acknowledged, the wife refusing to join, but she, with her husband enjoying the fruits of such exchange of security. The only defense pleaded to plaintiff's action to subject the land to the lien of his debt was a general denial. Held, that as between these parties the land is subject to such lien. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 44, 56-58, 153; Dec. Dig. 28.1 2. VENDOR AND PURCHASER 245 BONA FIDE PURCHASERS QUESTION FOR JURYEVIDENCE. The husband and wife conveyed the land two days before this suit was begun, but the grantees did not record their deed until some time after service had been made. The evidence as to such grantees being innocent purchasers examined, and held to have been such as to entitle plaintiff to its submission to the jury under proper instructions. [Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. 245.] Appeal from District Court, Greenwood County. Action by T. J. English against H. A. Sanborn and another. From judgment for deReversed and fendants, plaintiff appeals. remanded. Howard J. Hodgson, of Eureka, for appellant. WEST, J. The plaintiff sued to have a certain mortgage declared a first lien on the land involved herein and to have such land sold and his indebtedness paid out of the proceeds. A demurrer to his evidence was sustained and he appeals. The plaintiff owned a farm in Rice county on which the defendants, Sanborn and wife, were tenants. In February, 1913, Sanborn, having contracted to purchase a farm in Greenwood county, had a settlement with the plaintiff by which it appeared that he owed him $1,300, for which he was to give a note due in two years secured by chattel mortgage on all the horses and mules then owned by Sanborn, which was to be executed by himself and wife. He alone executed such mortgage, retaining a duplicate to be executed by himself and wife and then to supersede the one signed by himself alone, after the removal to Greenwood county and an opportunity to ascertain and insert the location of the property to be covered by such duplicate. Upon arriving in Greenwood county Sanborn found that he needed $1,600 to complete payment for and obtain possession of the land for which he had contracted. He and his wife thereupon mortgaged to a bank at Eureka the property, which had already been mortgaged by Sanborn to English, to obtain the $1,600 which was used in paying the balance of the purchase price on the land. Sanborn then advised English that he was willing to give him a mortgage on the farm, and it was afterwards agreed between them that English should prepare and transmit a new note and mortgage on the farm to be executed by Sanborn and wife and returned to English, but upon the receipt of such papers Sanborn returned them signed by himself without acknowledgment and without signature of his wife. Afterwards Sanborn stated to English's attorney, to whom the papers had been forwarded, that after his wife got less nervous and after his mother-in-law had left, the papers would be executed and acknowledged by himself and wife and delivered according to the agreement. This was not done. A August 14, 1913, English filed his petition in this action and service of summons was made on the defendants the next day. deed conveying the Greenwood county land from Sanborn and wife bearing date of August 12, 1913, its acknowledgment bearing the same date, to O. W. Hall and E. J. Nelson was filed for record on the 19th day of September, 1913. It is claimed that in exchange for this Greenwood county land owned by Sanborn, Hall was to purchase a tract of land from one Sutton, about 15 acres, and also a quarter-section and convey to one Bradley for the land which Hall was to have Bradley convey to Sanborn's wife. Also that before August 12, 1913, Hall had made the arrangement with Bradley to have his deed left in a bank at Ft. Scott; that Hall's deed to Sutton was not acknowledged until August 15, 1913, the day after the petition in this case was filed; and that the deeds to Hall and Bradley were delivered on September 10, 1913. It is contended by the plaintiff that as between him and the Sanborns his mortgage was a lien upon the Greenwood county land, and it is stated that the trial court in its rulings so held. Also that there was testimony which should have gone to the jury on the question whether Hall and Nelson purchased in good faith. Nelson admitted upon the stand that he had received $300 for making the deal, and that he acted as agent for Sanborn; that neither he and Hall nor the Sanborns examined the title to the lands exchanged, although he claimed he was familiar with them already; that he would not say that his name was not put in the deed after its execution, and he admitted that it was afterwards that the instrument was made to state that he and Hall owned equal shares in the land described. Nelson had acted as agent for the vendor when Sanborn purchased the Greenwood county land. He denied having any notice or knowlege of the claims of English. It is urged that even if Nelson and Hall purchased without notice of the claim of English, they did not record their deed until after the pendency of this suit, and therefore cannot be heard to deny his rights. v. Wallace, 147 Ala. 243, 41 South. 304; King v. Williams, 66 Ark. 333, 50 S. W. 695; Carter v. Holman, 60 Mo. 498; Martin v. Nixon, 92 Mo. 26, 4 S. W. 503; Dulaney v. Willis, 95 Va. 606, 29 S. E. 324, 64 Am. St. Rep. 815; Jones on Mortgages, §§ 162-166. [2] Under all the circumstances shown there are strong equitable reasons why plaintiff's lien should attach also as against Mrs. Sanborn, both she and her husband being content with a general denial of plaintiff's petition and both having enjoyed the fruits of the wrongful change of security. See Foster v. Bank, 71 Kan. 163, 80 Pac. 49, 114 Am. St. Rep. 470, 6 Ann. Cas. 44. This being so, the testimony as to the bona fides of the purchase by Nelson and Hall should have been submitted to the jury for its consideration under proper instructions, the dates of the various instruments and their delivery and acknowledgment, the shifting of title from Sanborn to his wife, the relation of Nelson to the transactions and the conduct of all the parties being such that fairminded men might reach different conclusions. The question of Nelson and Hall being purchasers pendente lite, as suggested, is worthy of very careful consideration when all the evidence shall have been received, but under the present state of the record it is not deemed necessary or proper for determination now. The judgment is reversed, and the cause remanded for further proceedings. All the Justices concurring. NEW et al. v. SMITH et al. (No. 20358.) (Supreme Court of Kansas. March 11, 1916.) (Syllabus by the Court.) 1. LIMITATION OF ACTIONS 63 OCCUPATION-SET-OFF. USE AND When a defendant has wrongfully withheld possession of plaintiff's farm for many years, but lowed a claim for mortgages paid by him, the who on the broadest principles of equity is alplaintiff may set up a claim for the reasonable rental value of the farm to meet defendant's claim, and the statute of limitations is no bar to such claim for rents and profits, following section 102 of the Civil Code (Gen. St. 1909, § 5695). [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 343; Dec. Dig. 63.] 2. APPEAL AND ERROR 1142-DECISION [1] The answer of the defendants, Sanborn and wife, was a general denial; that of Nelson and Hall an assertion of the title and denial of notice. The demurrer was sustained as to Nelson and Hall, also as to Sanborn and wife, the court finding that the debt was not yet due, and the action was dismissed as to them without prejudice. While as between English and the Sanborns the former did not literally furnish a part of the purchase price of the Greenwood county land, still by their conduct in using as a basis of credit the property which had already been mortgaged and agreed to be mortgaged to him they deprived him of recourse thereto to secure his debt and certainly under the pleadings so far as Sanborn is concerned the mortgage signed by him is binding upon him. Foster v. Bank, 71 Kan. 158, 80 Pac. 49, 114 Am. St. Rep. 470, 6 Ann. Cas. 44; Charpie v. Stout, 88 Kan. 318, 128 Pac. 396; Bisby v. Quinby, 92 Kan. 86, 140 Pac. 635; 27 Cyc. 976; 8 M. A. L. 300; Markham | County. PROTRACTED LITIGATION. When a lawsuit has been in court for 14 years, during which time it has been appealed to the Supreme Court five times, it is imperative that some broad general principles of law and equity be rigorously applied, and the litigation brought to a close, and final judgment ordered. This rule applied here. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4477, 4478; Dec. Dig. 1142.] Appeal from District Court, Greenwood For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Action by Emelia New and Robert H. Clogs- | 13; that the instant cause had not accrued ton, the latter as trustee of Emelia New, a within 2 years, nor within 3 years, nor withconvict, against J. A. Smith and another. From the judgment, plaintiffs and defendant Smith appeal. Modified and affirmed. John Stowell, of Seneca, Clogston & Clogston, of Eureka, A. E. Crane, of Atchison, and Woodburn Bros., of Holton, for plaintiffs. H. J. Hodgson, of Eureka, and T. A. Kramer, of El Dorado, for defendant Smith. DAWSON, J. This is the fifth time this case has been before this court. New V. Smith, 68 Kan. 807, 74 Pac. 610; New v. Smith, 73 Kan. 174, 84 Pac. 1030; New v. Smith, 86 Kan. 1, 119 Pac. 380; New v. Smith, 94 Kan. 6, 145 Pac. 880, L. R. A. 1915F, 771. It would serve no good purpose to restate the details of the litigation. The curious and the studious may refer to its earlier chapters in the reports of this court. It is chiefly a lawsuit for the recovery of a farm. When the case arose, the plaintiff was a prisoner in the penitentiary for the murder of her husband. Her life sentence was commuted by Governor Leedy, and some years ago she received a pardon from Governor Hoch. This lawsuit has become a public nuisance, and it must be concluded. The last time it was here the court, in the hope of terminating this controversy, suggested how it might be done. It was held that, although the plaintiff was entitled to the recovery of her farm, the defendant had an equitable claim for mortgages paid by him, and that, if there was a claim for rents and profits, pleadings pertaining thereto might be filed, the amount ascertained, and the litigation closed. in 5 years, nor within 15 years; that he had paid off a mortgage on one quarter section for $325 in December, 1898, and another mortgage on the same quarter section for $682.37 in March, 1907, and that he paid off still another mortgage on an additional 80 acres of the farm for $444.70 in March, 1907; that he had expended certain sums for the maintenance and improvement of the property; that he had paid the taxes for 1898 and succeeding years; and that he did not know what rents had been collected, and could not make an accounting thereof. The court found that the fair and reasonable rental value of the farm was $325 per annum, being $200 for the quarter section and $125 for the additional 80 acres. Findings of fact and conclusions of law were made by the trial court, but too extended for repetition here. Both parties appeal, with long assignments of errors. matters is to consider very briefly what has The most practical way to deal with these already been determined in this case. In the first appeal decided in 1903, the pleadings were in question, and, while they were held to be defective, the petition attempted to state a cause of action in ejectment, a cause of action for relief on the ground of fraud, and for the rents and profits then accrued. The action had been be gun on April 2, 1901. This data is gleaned from the files of this court. In the second appeal, decided in 1906, the petition was again the subject of criticism, but it continued to urge a cause of action in ejectment and for rents and profits. But In the third appeal, decided in 1911, the petition still recited a cause of action in ejectment, but claimed nothing for rents and profits, unless that be assumed from the prayer for "all other proper relief." among the many defenses set up in the answer, filed January 21, 1908, nothing was mentioned concerning the mortgages paid by defendant. That defense, or equitable claim, had not yet been raised, although one of the mortgages had been paid in 1898, nearly 10 years before, and the other two had been paid about 10 months before the answer was filed. This court held that, while the action sounded in ejectment, it was in essence an action for relief on the ground of fraud. When the case was remanded to the district court, a so-called supplemental petition was filed claiming rents and profits for the years 1898 to 1910, inclusive, another and separate action having theretofore been filed for the rents for the years 1911, 1912, and 1913, asking for an accounting, and, if an accounting could not be had, that she be awarded the reasonable value of the rents, and that so much thereof as necessary be applied to the satisfaction of the mortgages paid by defendant, and for further equitable relief, etc. To this a technical demurrer was filed, as if the broad principles of equity had nothing to do with the case-those very principles which had been applied by this court most generously in defendant's behalf to refund to him the amount of the mortgages paid off In the fourth appeal, decided in 1915, the notwithstanding he was a trespasser ab initio, petition was substantially the same as in the having acquired possession of Mrs. New's third appeal, and the answer was simply a farm in January, 1898, from one who had general denial except as to an admission of defrauded her of it, with defendant's con- defendant's possession of the premises. While structive or actual notice of the fraud, as this was all that was technically necessary has been heretofore adjudicated. The demur- to raise every possible defense, it is worthy rer set up a denial of jurisdiction, another of note that defendant's claim for mortgages action pending, no cause of action, and im- paid by him was first raised in the oral proper joinder. The demurrer was overruled. statement of his counsel at the trial in May, Defendant then answered, setting up the ac- 1913, over 12 years after this lawsuit was the district court, affirming plaintiff's judg- | This equitably entitled her to claim rents ment for the recovery of her farm, but grant- and profits for all the years she was disposing to defendant an equitable claim, some- sessed. The Code says: what akin to that of a mortgagee in possession, for the payment of the mortgages by him during the years when he wrongfully held the plaintiff's property. [1] The district court found that the reasonable rents of the quarter section far exceeded the mortgages and taxes paid thereon by defendant, and allowed them to be set off against each other, and no further. Civ. Code, § 102 (Gen. St. 1909, § 5695). For no very logical reason apparent to us a somewhat different consideration was given to the status of the additional 80 acres. Perhaps this was on the ground that, although the 80 acres was an integral part of the farm, and although the defendant had wrongfully held the possession thereof for all these years, he acquired a colorable right in equity to hold the 80 acres in March, 1907, by paying off the mortgage on it which altered his situation as a trespasser-his status for the preceding 9 years. It was apparently on this theory that by the trial court's mathematical computations, which we will not analyze, a balance of $70.59 was still due to defendant before plaintiff would be let into possession of the 80 acres. Apparently no consideration or allowance was accorded to plaintiff for the reasonable rental use of the 80 acres for the first 9 years of defendant's wrongful possession. It ought to be apparent that defendant's contentions as to the statute of limitations have no place in this lawsuit. In the early years of the litigation the plaintiff's petitions, however crude and in need of the amendments made from time to time, persisted in a claim for rents and profits. True, the specific claim therefor was dropped as the years went by and as the case went from court to court; but it should be borne in mind that the lawsuit was a dozen years old before she was called upon to meet defendant's claim for mortgages paid. And in fairness and equity it must be borne in mind also that the reasonable rents and profits of the farm, always equitably due to plaintiff, were invariably equal to and aggregated more than enough to meet the mortgages, taxes, repairs, and improvements made by defendant. So it is not a very unreasonable contention made by plaintiff's counsel when they urge that all of defendant's expenditures were made with moneys equitably belonging to plaintiff. "When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or set-off could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of limitations; but the two demands must be deemed compensated so far as they equal each other." Civ. Code, § 102 (Gen. St. 1909, § 5695). She should, of course, have dismissed the separate action for the rents for the years 1911, 1912, and 1913, and amended her petition setting up all the rents due her. And yet that would have availed her but little, seeing that the rents which she did claim from 1898 to 1910 were more than sufficient to compensate defendant for the mortgages, interest, taxes, and farm expenses, and she was not permitted to recover the surplus. This, of course, was according to law, for the bar of the three years statute on the recovery of rents and profits (Civ. Code, § 17, subd. 2 [Gen. St. 1909, § 5610]; Gatton v. Tolley, 22 Kan. 679) would only be taken down in her favor to meet the defendant's cross-demands so far as they equalled each other (Civ. Code, § 102 [Gen. St. 1909, § 5695]). It does follow, however, that since her claim for the rents of 1911, 1912, and 1913, could have been presented and adjudicated here, and, if adjudicated here, it would have only served as a set-off to the mortgages, and as we have seen the mortgages were sufficiently met by the rents which she did set up, and because this cause covering this general matter has proceeded to judgment, the claim for the rents for the years 1911, 1912, and 1913, may be deemed to be abandoned. We recognize that what we say touching this last proposition is not squarely before the court; but it was pleaded; it was recognized by the court in its findings, and we are urged to say what we think about it; and, owing to the extraordinary duration of this litigation, and still persisting in the hope of concluding this controversy as expressed by Mr. Justice West in the last appeal, we suggest that the case touching the rents and profits for the years 1911, 1912, and 1913 be dismissed. [2] Some criticism is made touching the apportionment of the costs in the district court. The court exercised its best judgment, and we do not see any serious occasion or any very tangible basis for our interWhen the plaintiff recovered judgment in ference. The costs of this appeal will be dithe district court for the possession of the vided, and the judgment modified by setting farm in May, 1913, she very naturally filed aside the finding that $70.59 is still due dea new action for the rents and profits for the fendant on the mortgage covering the 80 3 preceding years, on the assumption that she acres paid in 1907, with instructions to find was barred by the statute of limitations from that it has likewise been met and satisfied claiming rents for the 13 earlier years. But by the rents which he has been permitted this court held that she must reimburse the to keep; and, thus modified, the judgment defendant for the mortgages paid by him. is affirmed. All the Justices concurring. |