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Error from District Court, Cowley Coun- 83, 22 Pac. 988. It is also settled that a ty; C. L. Swarts, Judge.

judgment without notice is a nullity and Action by William M. Taylor against Caro- open to attack collaterally. Rogers v. Clemline L. Crapster. Judgment for plaintiff, and mans, supra; Kelso V. Norton (Kan.) 87 defendant brings error. Reversed.

Pac. 184. The statute which prescribes the

kind and manner of notice to be given in Hackney & Lafferty, for plaintiff in error.

such cases is found in section 2992, Gen. G. H. Buckman and Grant Stafford, for de

St. 1905, which reads: “The court shall refendant in error.

quire notice of the petition, and of the time

and place of hearing the same, to be given GRAVES, J. This action was commenced

for such length of time and in such manner in the district court of Cowley county, by as the court may see proper." The order the defendant in error, May 14, 1903, to made by the court in this case reads: “It quiet his title to the real estate in contro- is ordered that said petition come on for versy. The plaintiffs in error claim to own

final hearing on the 20th day of October, A. the land, and in a cross-petition have asked

D. 1883, at the hour of 10 o'clock a. m., at for possession thereof and a judgment against the probate courtroom in the county aforethe defendant in error for rents and profits.

said, the said day being one of the days of Soranus L. Brettun, from whom all parties the October, 1883, term of said court, and claim title, owned the land in question, and

that said executors notify the heirs at law at his death disposed of the same by will.

and all others interested in the pendency He devised a life estate therein to his

of said petition, and the time and place set widow and two grandchildren, Brettun

for the hearing thereof (and, unless the conCrapster and Caroline L. Crapster, with re

trary be made to appear, an order will be mainder in fee to the children of his said granted for such sale), by causing to be grandchildren. The plaintiffs in error, Caro

served personally upon Brettun Crapster and line L. Crapster and Bretta V. Crapster, are

Louis C. Bangs, sole heirs at law (besides minor children of said Brettun Crapster, and

said executors of said decedent, and both of Milton A. Bangs, Margaret E. Bangs, Ruth

said heirs being residents of Cowley County, T. Bangs, and Phyllis G. Bangs are minor

Kansas), a true copy of their petition herechildren of Caroline L. Crapster, who mar

in filed, together with notice in writing of ried A. C. Bangs. October 11, 1883, the ex

the time and place where the same will be ecutors of the will of Soranus L. Brettun,

heard. Service to be had at least three filed a petition in the probate court, ask

days prior to the time herein appointed for ing for an order to sell the real estate in

such hearing in said county." The order controversy for the purpose of paying the debts of the testator. The order was granted,

approving service of notice reads: "It is

found that the heirs at law of said decedent November 9, 1883, the lands sold thereunder

hare been served with a true copy of said and conveyed by the executors to one Kerns,

petition and notice of the time when the who sold to the defendant in error, and his title depends upon the validity of said sale.

same would be heard; service being acknowlAt the time the executors filed their pe

edged on the back of said original petition

by Brettun Crapster and Louis Bangs, the tition to sell, the plaintiff in error Milton A.

other heirs being the executors of said esBangs was about two months old. His co

tate, and said notice being in conformity to plaintiffs were all born since that time. No

the order of this court heretofore in that notice was given to Milton A. Bangs of the

behalf made and is good and sufficient." petition or proceedings to sell. No guardian

It will be seen that, while the court orderor other person was served with notice as his representative, and no person appeared in

ed notice to be served upon the heirs at law his behalf; in fact, it was not supposed at

and all persons interested, it specifically the time that he had any right or interest designated the testator's grandchildren, Bretin the land.

tun Crapster and Mrs. Bangs, as the sole It is claimed by the plaintiffs in error that

heirs at law, ignoring entirely the interests of this failure to notify the infant, either per

this infant. Notice was served upon Mrs. sonally or otherwise, made the sale and Bangs, the mother of Milton A. Bangs, but conveyance under which the defendant in er- such notice did not inform her that the rights ror holds void as against the rights of the

of her children would be in any manner plaintiffs in error. Whether such sale is affected by the proceeding. It only called valid or not is the only question presented. her attention to her own interests therein. It is settled law in this state that the sale If she had been served with a notice as the of real estate in the probate court by ex- guardian of her child, a different question ecutors or administrators for the payment would be presented. When it is remembered of debts is an adversary proceeding, and no that the parents of this child knew of the tice to the owner of the land to be sold is pendency of these proceedings, it seems like jurisdictional. Mickel v. Hicks, 19 Kan. a useless formality to serve notice upon the 578, 21 Am. Rep. 161; Fudge v. Fudge, babe in his mother's arms. At the same 23 Kan, 418; Rogers v. Clemmans, 20 Kan. time, this babe, though helpless, had the legal 527; Co, K. & N. Ry. Co. v. Cook, 43 Kan. | capacity to be, and was, the owner of the fee-simple title to the land about to be BURCH, J. John Yentzer of Seneca counfold. His interests might have been best con- ty, Ohio, died leaving a will which was duly served by resisting the sale; but he was un- probated at his domicile, and which contains able to determine what his rights were, or the following provision: “I give and devise how they might be protected. Courts have to my daughter Elizabeth Yambert eleven always been especially careful and vigilant in hundred dollars aside of what she has alprotecting the property rights of infants, and ready received and I appoint my sons Jacob the extreme youth and helplessness of this Yentzer and Benjamin Yentzer after my plaintiff in error, at the time of this sale, death to purchase with the above eleven hunwas sufficient to furnish a strong appeal to dred dollars a home for the above named the conscience of the court to interpose in Elizabeth Yambert, to be for her use durhis behalf, at least to the extent of providing her life and after her death the property ing him with a competent guardian who to fall to her children." Benjamin Yentzer would see that his interests were protected. was appointed executor of the will. In 1878 Nothing of this kind, however, was done. he deeded to Elizabeth Yambert the land in The babe's rights were ignored. It is a controversy by a deed containing the folfundamental and universal rule of law that lowing recitals: “This deed made in complino person can be judicially divested of any ance and accompanied by a copy of the property rights without notice thereof and last will and testament of John Yentzer late an opportunity to be heard, and this rule ap- of Seneca county, Ohio, deceased heretofore plies to old and young alike. In the case of on the 14th day of November A. D. 1876. Galpin v. Page, 18 Wall. (U. S.) 350, 21 Admitted to probate court, and now on recL. Ed. 959, it is said: “It is a rule as old ord in said probate court of which by as the law that no one shall be personally Benjamin Yentzer his executor and in combound until he has had his day in court, pliance with item four (4) of said will, by which is meant until he has been duly does convey as specified in said deed to the cited to appear and has been afforded an said Elizabeth Yambert to be for her opportunity to be heard. Judgment with- use during her life and after her death out such citation and opportunity wants all the property to fall to her heirs forever. the attributes of a judicial determination.

* * * To have and to hold the same to It is judicial usurpation and oppression, and the only proper use of the said Elizabeth never can be upheld where justice is justly Yambert to be for her use during her life administered.” The rights of this plaintiff and after her death the property to fall to in error Milton A. Bangs have been dis- her heirs forever.” This deed was filed for regarded. They were not even considered. record in the county where the land lies on Therefore the sale complained of is void.

March 7, 1885. Afterward one Durland acThe judgment of the district court is re- quired tax deeds of the property. In March, versed. All the Justices concurring.

18899, Elizabeth Yambert gave a general warranty deed of the land to Laura E. Lohmul

ler in consideration of $1,000 and support (74 Kan. 751)

for the remainder of her life. After that LOHMULLER v. MOSFER et al.

Laura Lohmuller paid taxes on the premises. (Supreme Court of Kansas. Dec. 8, 1906.)

She is a grandchild of Elizabeth Yambert, WILLS-CONSTRUCTION ABSOLUTE DEVISE.

but her mother, Saloma Michaels, daughter A provision in a will as follows: "I give of Elizabeth Yambert, died before the death and devise to my daughter Elizabeth Yambert of John Yentzer occurred. After the coneleven hundred dollars aside of what she has already received and I appoint my sons Jacob

veyance to Laura E. Lohmuller Durland Yentzer and Benjamin Yentzer after my death

quitclaimed to her. Elizabeth Yambert died to puchase with the above eleven hundred in 1902, leaving five children. Two of them dollars a home for the above-named Elizabeth

conveyed their interests in the property to Yambert, to be for her use during her life

William Coates. In an action for partition and after her death the property to fall to her children”-does not express an absolute

brought in 1904 Coates was awarded twoand unconditional gift of the sum of money fifths of the land and the three children who named to Elizabeth Yambert, but requires its

had not conveyed, one-fifth each. Laura E. investment in real estate for her use during her life with remainder in fee to her children.

Lohmuller was allowed a lien for taxes. [Ed. Note.-For cases in point, see Cent. Dig.

The court found that Benjamin Yentzer and vol. 49, Wills, $8 1379-1385.]

Elizabeth Yambert intended that the deed (Syllabus by the Court.)

of 1878 should carry out the purpose express

ed in the will and intended that it should Error from District Court, Nemaha Coun

follow the wording of the will but that the ty; Wm. I. Stuart, Judge.

word “heirs” was inserted by mistake inAction by Emma Mosher and others

stead of the word "children”; hence the deed against Laura E. Lohmuller. Judgment for

was ordered to be reformed. Laura E. Lohplaintiffs, and defendant brings error. Af

muller complains of this judgment. firmed.

The chief controversy relates to the interWells & Wells, for plaintiff in

, error. pretation of the will. It is said that Elizabeth Emery & Emery and P. L, Burlingame, for Yambert was given $1,100 absolutely and undefendants in error,

conditionally, that this clear bequest cannot be cut down by what follows; and that the the will sent prospective purchasers of the attempt to limit her interest in land pur- | land to the will to ascertain the true scope chased with her own money was nugatory.

of the deed. Under these circumstances any The rule of law relied upon by the plaintiff | grantee of Elizabeth Yambert took with noin error is well understood. It has been tice to the extent of her rights, and there stated in various ways. The form used in was no need of reforming the deed. Any the note to the case of McIsaac v. Beaton (37 errör in that respect could not be prejudicial. Can. Sur. Ct.) 3 Am. & Eng. Ann. Cas. 615, After Laura E. Lohmuller had purchased is probably as satisfactory as any. "A clear the life estate in the land, her acquisition of devise or bequest will not be cut down by the Durland tax titles merely redeemed the other expressions or clauses contained in land from taxes. The words “fall to her chilthe will which do not, with reasonable cer- dren" in the will create by inartistic phrase a tainty, indicate the intention of the testator remainder in fee, the word "children" being a to cut it down." The authorities are collated word of purchase. in the note referred to. See Williams v. Mc- The facts found by the district court are Kinney, 34 Kan. 514, 9 Pac. 265; McNutt v. sustained by the evidence, and its judgment McComb, 61 Kan. 25, 58 Pac. 965; Safe De- is affirmed. All the Justices concurring. posit Co. v. Stick, 61 Kan. 474, 59 Pac. 1082. Applying the rule to the will in question it immediately becomes manifest that the

(74 Kan. 715) words following the first indication of a

MIRICK V. SUCHY. gift are not ambiguous, nor are they direc

BARRY V. SAME. tory merely, or precatory, or inferential in their intent. They are unequivocal, of equal

(Supreme Court of Kansas. Dec. 8, 1906.) authority with those going before, and so in

PARENT AND CHILD-TORTS OF CHILD-LIA

BILITY OF FATHER. separably conjoined with those which precede

In an action against a father for damages that the expression of the testator's com- resulting from the setting out of a fire by his prehensive thought is not complete until the minor sons, it is not a sufficient allegation of end of the sentence is reached. The testator

the parent's liability to allege that the sons,

"while they were engaged in his [the father's] desired to add to what his daughter had al

business and for his benefit, and working for ready received. He set aside $1,100 for the him, purposely, carelessly, and negligently set out purpose. He gave that much more to her a fire.” It is necessary to allege, in substance, but not as cash. His sons Jacob and Ben

if done in the absence of the father and without

his direction, that the setting out of the fire jamin were to take the money and buy a was a service being rendered for the father, home for her. This home was to be for her or resulting from an act done in such service; use and benefit during her life: after her

in other words, that the fire was set out or

caused by an act within the scope of the emdeath the property so purchased to fall to

ployment, her children. The purpose is as unmistak- [Ed. Note.-For cases in point, see Cent. Dig. able as if in stiff legal phraseology he had vol. 37, Parent and Child. $$ 146, 147.] appointed trustees, had ordered $1,100 in (Syllabus by the Court.) cash from liis estate to be paid to them, had ordered them to invest that sum in real es

Error from District Court, Rush County; tate, suitable for a home for Elizabeth, and

Chas. E. Lobdell, Judge. then had charged the land so to be acquired

Actions by B. E. Mirick against John Suchy with an estate to her for life, with renainder

and by R. C. Barry against John Suchy. in fee to her children. It is impossible to

Judgments for defendant, and plaintiffs bring say that Elizabeth was to take $1,100 in cash

error. Affirmed. to spend as she pleased, or that, if her broth- Each of the above cases was commenced in ers purchased a home for her with the mon- the district court of Rush county on a petiey, she might, whenever she wished, deed it tion which is substantially the same as the away, as a gift or for a price, in fee simple other, except as to the name of the plaintiff, absolute. The case, therefore, is not one of the description and value of the property ala clear bequest, against which subsequent leged to have been destroyed by the fire, and expressions may not prevail, and the rule in- the amount of judgment prayed for. The voked is not controlling.

common defendant filed a general demurrer Other questions presented are less difficult to the petition in each action. The demurrers of solution. It is nothing to Laura E. Loh- were sustained by the court, each plaintiff muller that only one of the trustees carried elected to stand on his petition, and judgment out the provisions of the will, or that, in the was rendered against him for costs. Each execution of the trust, a consideration pass- plaintiff, as plaintiff in error, brings his case ed, the beneficiary having been satisfied. The to this court for a review of the ruling, and real estate in question did not belong to the all parties agree to submit the cases together testator and title to it did not pass by his as one. After a proper description of his will; hence it was not necessary that the property alleged to have been destroyed by will be recorded in Nemaha county.

the fire, and setting forth the value thereof, The conveyance to Elizabeth Yambert ex- the petition in Barry's case, omitting the pressly limited her interest in the land to a prayer for relief and the signatures, is as life estate, and the reference in the deed to follows: "That on the said 30th day of March, 1905, Joe Suchy and John Suchy, Jr., | have been necessary to enable them to build uninor sons of the said defendant John Suchy, the fence. The argument is good; not so and under the age of 21 years, who resided the petition. Had the petition alleged that it at home with their father, and who worked became necessary to remove rubbish or brush for him and were under his care, manage- | by burning it before the fence could be built, ment, and control, while engaged in the busi- and for that purpose the sons built the fire ness of their father, the said minor sons, and negligently allowed it to escape and working for his interests and for his benefit spread upon the plaintiff's premises, etc., the on his farm, situated in said Pleasantdale missing link would probably have been suptownship, in Rush county, Kansas, some dis- | plied. The liability of a parent for the act of tance from where the plaintiff's property a minor son rests upon the same basic facts hereinbefore described was located, while as the liability of a master for the acts of engaged in repairing a fence on the farm his servant, and does not result from the fact owned by their father, the said defendant, of the tort or act being purposely or willfullly while they were engaged in his business and done, but from its being done in doing the for his benefit, and working for him, purpose- master's or parent's business. If the act ly, carelessly, and negligently set out a fire complained of is the setting out of a fire, on their father's farm, and through their it is not a sufficient pleading of liability that failure and neglect in setting out the said the servant or child was engaged in the busifire, and in not taking proper care and means ness of the master or parent; but it must to control the said fire which they had will- appear that the setting of the fire was a part fully, purposely, carelessly, and negligently of that business, or resulted from some act set out on their father's farm, the said fire done in the performance of such business. spread from their father's farm to the real The act must be the result of doing the busiestate owned by the said plaintiff, and de- ness of the master or parent, and not an indestroyed all of the aforesaid property belong- | pendent act done in a cessation, even momenting to the plaintiff, and of the value of ary, of such business while engaged therein. $870.50.”

Hudson v. Railway Co., 16 Kan. 470; 38 Am,

St. Rep. 370, note; Am. & Eng. Encyc, of H. L. Anderson and G. R. McKee, for

Law, 1057. plaintiff in error. S. I. Hale, for defendant

The judgments are affirmed. All the Jusin error.

tices concurring.

SMITH, J. (after stating the facts). Do the facts as stated render the defendant, the father of the boys, liable for the damage re sulting from the fire? The trial court, we think correctly, answered, "No." It is conceded that the father is not liable for tlie tortious act of his sons by reason simply of the relationship, nor by reason of their minority, nor because they lived at home with him and worked for him and were under his care, management, and control. It is contended, however, that the further allegation that "the minor sons [naming them), * * * while engaged in repairing a fence on the farm owned by their father, the defendant, while they were engaged in his business and for his benefit, and working for him, purposely, carelessly, and negligently set out a fire, * * and in not taking proper care and means to control the said fire,” does state facts which render the father liable. An essential ingredient of liability is lacking, viz.: That the setting out of the fire was within the scope of their employment; that the setting out of the fire was the act of the father, by his sons as his agents, in the same sense as was the building of the fence by them his act. No connection is shown between the father's work of building the fence and the act of setting out the fire. Had it been alleged that, while building a fence for their father, the sons shot the plaintiff's horse, the lack of connection between the two acts would only be more apparent.

It is urged that the setting of the fire may

(38 Colo. 398) COLORADO LUMBER, LAND & IMPROVE

MENT CO. v. DUSTIN et al.
(Supreme Court of Colorado. Dec. 3, 1906.)
FRAUDS, STATUTE OF - Who MAY INVOKE
STATUTE.

Where plaintiff performed services for defendant under an oral contract whereby he was to be paid in land, he could not invoke the statute of frauds, and recover judgment on an implied assumpsit, notwithstanding that defendant was willing to perform specifically.

Appeal from El Paso County Court; James A. Orr, Judge.

Action by F. W. Dustin and another against the Colorado Lumber, Land & Improvement Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

This action was originally brought before a justice of the peace by Charles Clark to recover for certain work performed by him for appellant. From a judgment in its favor for costs, an appeal was taken to the county court. In that court the appellees were substituted as plaintiffs. The cause was tried to a jury. There was no dispute as to the performance of the work or its value, the only question in dispute being as to the contract under which the services were reidered. The defendant, upon the trial, offered to prove an oral agreement with Clark, whereby he was to receive land in part payment for his services. Upon objection or plaintiffs, the court refused to permit Mr. Mc- formed under such a contract, he cannot reFarlane, the manager of the company, to cover for what he has done, unless the other testify in regard to the terms of this agree- party insist upon the statute, and refuse to ment, whereupon the defendant made a perform. This is too obviously just to reformal offer to prove "an oral contract with quire comment, and to disregard it would the plaintiff whereby plaintiff was to per- do violence to every leading principle. The form certain services and the defendant was contract cannot be considered void so long to give him land in payment for them, the as he, for the protection of whose rights choice of the land to be made by the plain- the statute is made, is willing to treat and tiff at his option; and that the defendant, consider the contract good.” Under this stands ready and willing to perform its part obviously just rule, the defendant should of the contract." This offer was rejected, have been permitted to introduce the eviand thereupon the court instructed the jury dence offered, and to show, if it could, that to return a verdict in favor of plaintiffs för the plaintiffs were not entitled to recover a the sum of $87.25. A motion for a new trial money judgment for the services rendered. was overruled, and judgment rendered for The error of the court in excluding the that amount. To reverse this judgment, the

evidence offered by the defendant necessicompany brings this case here on appeal. tates a reversal of the judgment.

Reversed. Sheafor & Dolman, for appellant.

GABBERT, C. J., and BAILEY, J., concur. GODDARD, J. (after stating the facts). The question for our determination is whether the court erred in excluding testimony tending to prove the oral agreement relied on

(38 Colo. 115) by defendant to defeat a recovery of the

CRAIG et al. v. A. LESCIIEN & SONS

ROPE CO. money judgment for services rendered in pursuance of

such agreement; in other (Supreme Court of Colorado. Dec. 3, 1906.) words, whether the plaintiffs were entitled

1. APPEAL--REVERSAL PLEADINGS-AMENDto invoke the statute of frauds to avoid the MENT. obligations of the oral agreement under

It having been determined on a prior ap

peal that evidence offered by defendant to which the labor was performed, and recover

prove an estoppel against plaintiff was inadtherefor upon an implied assumpsit, notwith- missible in the absence of a piea, defendants standing the defendant is willing to carry out were not entitled to amend their answer by the agreement on its part.

pleading such estoppel, where no application

for leave to so amend was made until the close We think it is clear that this may not be

of the testimony on retrial. done. The party to be charged may avail 2. CORPORATIONS - FOREIGN CORPORATIONS — himself, if he so elect, of the protection of

DOING BUSINESS WITHIN STATE-RIGHT TO

SUE. the statute, if its requirements have not been

Laws 1897, p. 157, c. 51, providing that complied with, as a defense to an action upon

no foreign corporation shall have or exercise an executory oral contract, or he may waive any corporate powers or be permitted to do the protection of the statute, in which event

business within the state until the required fee the contract would be perfectly good against

shall have been paid, did not prohibit a foreign

corporation from suing to protect its property him. But a third party cannot escape his or other rights, or from acquiring personal obligations growing out of such a contract property in the state until such fees had been by denying the obligation of the contract on

paid.

[Ed. Note.-For cases in point, see Cent. Dig. the party to be charged thereby. Browne on

vol. 12, Corporations, $8 2527, 2544.] the Statute of Frauds (5th Ed.) $ 135. It

3. TRIAL - INSTRUCTIONS-APPLICABILITY TO has been uniformly held that where a party

EVIDENCE. has rendered services, or paid money, in con- Where, in an action to recover property sideration of an oral contract for purchase | levied on, defendants failed to deny that the of land, he cannot rescind such contract and

property was of the value of $2,500, as alleged

in the complaint, and the proof showed that it recover for such services, or the money paid,

was worth more than that sum, the court was unless the other party insists upon the stat- justified in charging that such was its value. uta, and refuses to perform it on his part.

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 46, Trial, $$ 432-434.] Among the numerous authorities to this effect, see the following: Shaw v. Shaw, 6 Vt.

Appeal from District Court, Teller County; 69; Philbrook v. Belknap, 6 Vt. 383; Ab

William P. Seeds, Judge. bott v. Draper, 4 Denio (N. Y.) 51; Crabtree

Action by the A. Leschen & Sons Rope y. Welles, 19 Ill. 55; Cobb v. Hall, 29 Vt.

Company against W. E. Craig and another. 510, 70 Am. Dec. 432; Day V. Wilson, 83

From a judgment in favor of plaintiff, deInd. 403, 43 Am. Rep. 76; Coughlin v. Knowl

fendants appeal. Affirmed. es, 7 Metc. (Mass.) 57, 39 Am. Dec. 759; Gammon v. Butler, 48 Me. 341. In Shaw v.

R. G. Withers, for appellants. Chas. ButShaw, supra, it is said: "The statute ap

ler, for appellee. plies only to executory contracts, not to those in whole or ini material part executed. BAILEY; J. This action was brought in Therefore, when one party has partly per

1898. The first trial resulted in a judgment

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