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the cause, and is not a part of the record un- , show the contents of the documents, so that less made so by a bill of exceptions. Patee no review of the ruling is possible, but it is v. Parkinson, 18 Kan. 465; Myers v. Whee- not apparent how the defendant could have lock, 60 Kan. 747, 57 Pac. 956; Woolverton v. been in any way prejudiced by it. Complaint Johnson, 69 Kan, 708, 77 Pac. 559. The is also made of the refusal of the trial court plaintiff in error not having preserved the to allow a witness to testify that he had agreed statement of facts in the record, it is heard one Blair say that he was the owner not before us for our consideration.

of the place. This would have been compeThe judgment must therefore be affirmed. tent evidence against Blair if he had been

on trial, but was not competent when offered

in behalf of Bailey. (Kar. 873)

The judgment is affirmed. STATE . BAILEY. (Supreme Court of Kansas. Oct. 6, 1906.)

(74 Kan. 452) 1. INFORMATION-ELECTION BETWEEN COUNTS -IBANDOYMENT OF COUNT.

Ex parte SMITH. Where an information charges defendant (Supreme Court of Kansas. Oct. 6, 1906. in several counts, with the illegal sale of liquor,

Rehearing Denied Oct. 31, 1906.) and in an additional count with the maintenance DIVORCE-DECREE—IMPEACHMENT-ALIMONY. of a place where liquor was unlawfully sold, the prosecution on the nuisance count is not

If, in an action for divorce and alimony, abandoned where the state, on Leing required

the plaintiff be granted a divorce, but, through to elect on what evidence it would rely for a

the fraud of the defendant, the judgment makes conviction on the various counts, files a state

no provision for alimony, the judgment may be ment of such election, without mention of the

impeached for fraud as in other cases, and propnuisance count; the election having reference

er alimony may be awarded without disturbing only to the counts charging specific sales.

the decree for divorce. [Ed. Note.For cases in point, see vol. 27,

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Indictment and Information, $ 4:32.

Cent. Dig. Divorce, $8536, 691-696.] 2. SAME – APPEAL - RECORD - REJECTION OF

(Syllabus by the Court.) EVIDENCE.

In the matter of the application of Thomas The record not showing the contents of documents offered in evidence, and described as

B. Smith for a writ of habeas corpus. Petigovernment liquor licenses, rejection thereof tioner remanded. cannot be reviewed. 3. SAME-EVIDENCE-COMPETENCY-DECLARA

T. A. Moxcey and Waggener, Doster & Orr, TIONS OF THIRD PERSON.

for petitioner. J. L. Berry and C. D. WalkTestimony that witness heard a third per er, for respondent. son say he was the owner of the place that defendant was charged with keeping is not competent in behalf of defendant.

BURCH, J. Ida K. Smith as plaintiff [Ed. Note.-For cases in point, see rol. 14,

procured a judgment of divorce against her Cent. Dig. Criminal Law, $ 950.]

husband, the present petitioner, which con

tained a recital that all questions relating Appeal from District Court, Linn County ;

to alimony, suit money, attorney's fees, costs Walter L. Simons, Judge.

and expenses of suit, and advancements of W. E. Bailey was convicted of maintaining money had been amicably settled between the a liquor nuisance, and appeals. Affirmed.

parties. Therefore no judgment other than John C. Cannon, J. W. Poore, and J. I. as described was rendered concerning the Sheppard, for appellant. C. C. Coleman, subjects of the settlement. Afterward the Atty. Gen., John O. Morse, and James D. | plaintiff instituted proceedings for a modifiSnoddy, for the State.

cation of the judgment respecting matters

involved in the settlement, alleging that PER CURIAM. W. E. Bailey was prose- plaintiff's assent to the arrangement had cuted under an information charging him in been procured by false and fraudulent repseveral counts with the illegal sale of intoxi resentations of the petitioner and his attorcating liquor, and, in an additional count, ney. The court found against certain of with the maintenance of a place where liquor the charges of fraud, but sustained others, was unlawfully sold. He was convicted only and modified the judgment by awarding the upon the nuisance count. Upon appeal, he plaintiff alimony, fixing the time and mancontends that, inasmuch as the state, on be ner in which it should be paid and taxing ing required to elect upon what evidence it the petitioner with the costs of the divorce would rely for a conviction upon the various suit. For disobedience of the judgment as counts, filed a written statement of such elec modified the petitioner was cited for contion in which no mention was made of the tempt. His defense was want of jurisdiction nuisance count, the prosecution upon that in the court to change the original decree, account was thereby abandoned. The con and financial inability to pay. The court tention is not good. The election had refer found against him on the question of fact, ence only to those counts charging specific ruled against him on the question of law, sales. On the trial the defendant offered in and committed him to jail. In this applicaevidence two documents described as govern- | tion for a discharge the district court's conment liquor licenses, and complaint is now clusion respecting the petitioner's ability to made of their rejection. The record does not pay at the time the order of imprisonment

was made cannot be reviewed, and if his judgment relating to alimony which has been financial situation has undergone subsequent procured by fraud. inhibitive change he should present the facts In her petition for divorce Mrs. Smith to the court which deprived him of his liber prayed for alimony. She made it an issue ty. The only question for determination, in the case. The decree granted no alimony therefore, is the validity of the judgment and was binding upon her to the same exwhich the petitioner failed to satisfy.

tent as if her claim had been expressly deThe petitioner builds his argument upon nied. The judgment gave the reason for certain general statements of the law con its failure to pronounce further upon the tained in decisions of this court true in subject, and concluded the parties as other themselves, but having no application to the final judgments bind other litigants. But facts of his own case. His premises are this judgment, which deprived the plaintiff found in Mitchell v. Mitchell, 20 Kan. 665; of an enforceable court order for adequate Lewis v. Lewis, 15 Kan. 181; Roe v. Roe, alimony, was procured by fraud. Therefore 52 Kan. 724, 35 Pac. 808, 39 Am. St. Rep. it was impeachable for fraud like other judg367; and Johnston v. Johnston, 51 Kan. 726, ments so affected. There is no distinction 39 Pac. 725. In Mitchell V. Mitchell the in this respect between judgments in divorce judgment fixed the amount of alimony to cases and judgments in other cases. The he paid. Afterward, in a suit brought for defendant's dishonesty having left its mark that purpose, the district court modified the upon that portion of the judgment only which judgment on the ground the financial mis undertook to respond to the plaintiff's claim fortunes of the defendant bad rendered him for alimony, that portion alone needed purunable to pay. In reviewing the case this ging. The provision divorcing the parties court said: "Alimony allowed to a wife on was not tainted and there was no reason for at decree for divorce from the bonds of disturbing it. If the reason for attacking matrimony by reason of the fault or aggres the judgment had been furnished by some sion of the husband, under the statute in fact which touched upon the court's authority this state, is to be based upon the circum to proceed at all, the judgment would have stances of the parties at the time of the stood or would have fallen as an entirety diivorce, and is not to be modified by subse as in the Lewis Case. But for the petitionquent changes in these circumstances. The er's fraud there would have been a contemcourt has no power, on subsequent applica poraneous adjustment of all the rights of tion showing circumstances thereafter aris the parties as contemplated by the Johnston ing, to increase or diminish the allowance Case. The court did not grant relief upon viven in the original judgment." In Lewis any change of circumstance or condition aftV. Lewis a decree of divorce barred the de er judgment, as in the Mitchell Case. It fendant of all rights in the plaintiff's prop- merely did what would have been done but erty. In a subsequent suit the service upon for the petitioner's deceit. If the plaintiff which this judgment was based was attack had altogether neglected to seek a determied and held to be invalid. Therefore the nation of her right to alimony, as in the Roe (ourt opened the decree and made a new or Case, she would have been remediless. But, der respecting the property rights of the having sought a righteous adjudication of parties. In a proceeding in error this court the matter at the proper time, and having held the service to be good, and concluded been circumvented by the petitioner's machas follows: “Where the decree of divorce inations, the district court still had the (ontained no other order concerning property power to do justice. than one barring defendant of all right and. The petitioner is remanded. All the Jusinterest in the property of plaintiff, held, tices concur. that this order must stand with the decree, and, the decree being undisturbed, the order

(119 Cal. 662) could not be set aside.” In the case of Roe v. Roe this court said: "The final judgment

WESTERN UNION TELEGRAPH CO. V.

MODESTO IRRIGATION CO. et al. in an action granting a divorce settles all

(Sac. 1,408.) property rights of the parties and is a bar to an action afterward brought by either (Supreme Court of California. Aug. 31, 1906.) party to determine the question of alimony, 1. WATERS AND WATER COURSES-IRRIGATION or any property rights which might have DISTRICTS ASSESSMENTS TELEGRAPH been settled by such judgment.”. And in the

LINES.

An irrigation district, organized under St. case of Johnston v. Johnston it is remarked

1987, p. 29, c. 34, authorizing the assessment of that "the divorce and the adjustment of all the real property in the district for its revproperty interests are not to be regarded as enue purposes, cannot assess the poles and transpiring at different times, but as con

wires of a telegraph company placed on the

land of a railway company under a contract temporaneous." From these quotations it reserving them as the personal property of the is said to follow that the district court had telegraph company, as they are not real propno power to grant relief against the vicious erty within such provision. judgment it had been induced to render. The

2. SAME.

Under Pol. Code, $8 3617, 3663, defining, cases cited were all well decided, but they do

real estate for taxable purposes as land includnot in any way fortify the stability of a ing the improvements, except telegraph lines,

which shall be assessed as personalty, and out a jury and upon a stipulated state of Bridgeford Act (St. 1897, p. 267, c. 189) § 39,

facts, and the court rendered judgment for providing that, on refusal of the directors to make the assessments in irrigation districts,

defendants. From this judgment plaintiff apthe assessment made by the county assessor and peals. the state board of equalization shall be the basis There is no contest as to the facts in the of assessment, an irrigation district cannot as

case, which are substantially as above stated. sess for revenue purpose the poles and wires of a telegraph company placed on the land of a

The only question is whether the said proprailway company under a contract reserving erty of plaintiff is legally assessable and taxsuch property as personalty..

able by the irrigation district. The main purIn Bank. Appeal from Superior Court,

pose of the statutes providing for irrigation Stanislaus County; L. W. Fulkerth, Judge.

districts is to enable owners of land that Action by the Western Union Telegraph may be made more productive of vegetable Company against the Modesto Irrigation Com

growth by irrigation, and which are "susceppany and others to determine the validity

tible of irrigation from a common source," of an irrigation assessment. From a judg

to organize so as to more effectually accomment for defendants, plaintiff appeals. Judg plish such irrigation; and there is, therement reversed, and the superior court direct

fore, some room for the alleged absurdity of ed to render judgment for plaintiff.

irrigating the poles and wires of a telegraph

line. But we will assume that such property Brown & Wells, R. B. Carpenter, and Alex

is within the taxing power of the district ander H. Van Cott, for appellant. Dennett

if the letter of the law necessarily includes & Walthall, for respondents.

it. The statute under which the defendant

was organized provides that for the purpose MCFARLAND, J. The plaintiff is a well of revenue the assessor must assess "all of known corporation organized under the laws

the real property within the district" (St. of the state of New York, engaged in the 1887, p. 37, § 18); and it is conceded, or, at business of telegraphy, having certain fran least, it is the law, that no personal propchises, rights, and privileges granted by the erty can be subjected to taxation for such government of the United States, and having purpose. Said section provides that the asmany telegraph lines in California, and in

sessor must prepare an assessment book, with other parts of the United States and adjoin headings, in which must be listed "all such ing countries. The defendant the Modesto property"; that is, all real property. One Irrigation Company is an irrigation district of the headings is "Land by Township, organized in July, 1887, under an act of the Range," etc., or "by Metes and Bounds or Legislature of this state providing for the Other Sufficient Description,” and the “Imorganization of irrigation districts, approved provements Thereon.” Another is "City and March 7, 1887 (St. 1887, p. 29, c. 34), and Town Lots, * * * with the Improvegenerally known as the "Wright Act,” and it ments Thereon." Under another heading has ever since continued its existence as such there must be stated the cash value of the district under said acts and acts amendatory improvements on the land, whether city land thereof and supplemental thereto. The other or other lands, and also the "Cash Value of defendants are directors of said irrigation the Improvements of the Real Estate Asdistrict. The plaintiff is, and at the times sessed to Persons Other Than the Owners of mentioned in the complaint was, the owner of the Real Estate." However, in providing for certain property, consisting of poles, wires, the enforcement of the payment of taxes, the and other appliances, constituting 91.7 miles statute seems to refer to land alone; as, for of one of its telegraph lines, which runs instance, by section 26, in the case of deover a right of way of a certain railroad linquency, the collector must add certain corporation known as the “Southern Pacific penalties to "each lot, tract, or piece of land,” Company” within the boundaries of the said and in the event of sale for delinquency he Modesto irrigation district. The plaintiff put

The plaintiff put must commence the sale at the head of the its said 912 miles of poles, wires, etc., under list of property and continue the sale in a written contract with the said railroad the numerical order of "the lots, or blocks" ; which expressly declared that the poles, wires, and by section 27 he must sell to the person etc., constituting said 912 miles of telegraph who will take “the least quantity of the land," line "shall be and remain the personal prop and he must give to the purchaser a certifierty of said plaintiff.” In 1904 the defend cate containing a “description of the land ants caused the said 912 miles of poles, etc., sold"; and by section 30 it is provided that to be assessed at the value of $1,100 as prop if no redemption be made the collector must erty taxable for the purpose of raising rev make a deed to the purchaser, which shall enue for said irrigation district. Thereupon convey to him the absolute title "to the land the plaintiff brought this suit to have deter described therein." (These provisions are mined the validity of said assessment, as it substantially the same as those contained was authorized to do by section 69 of an act upon the same subjects in the Bridgeford to provide for the organization of irrigation act.) It is therefore doubtful whether it is districts, approved March 31, 1897 (St. 1897, the intent of the law to enforce any tax p. 276, c. 189), and generally known as the upon mere "improvements," except as a part "Bridgeford Act." The case was tried with of the land improved, and whether the cash

value of the improvements is not required Ed. 1055. In the case at bar the poles, wires, , merely to show the value of the land as etc., were easily removable and are in no enhanced by the improvements; and it is sense essential to the support of that to which doubtful if the sale for delinquency of "an they are attached. We think, therefore, that improvement," as distinct from the land, is they are not real property within the meaning contemplated. Plaintiff also contends that of the irrigation law, but are personal propthe right of way of the railroad company erty, not assessable for the revenue purposes is not real property within the meaning of of the district. the statutes bere relied on, and, further, that, 2. Moreover, we think that, for the purpose even if it were, the poles, wires, etc., are of the revenue to the district, the definitions not an "improvement," but really a burden. of real property and personal property in the We notice these points because they are general revenue and taxation laws of the urged, but we do not think it necessary to state as found in the Political Code, must pass upon them definitely because we think prevail. They relate to the same subject that the poles, wires, etc., are not assessable as the revenue part of the law covering irfor the reason that they are not real prop rigation districts. Indeed it is expressly proerty, but only personal property.

vided in section 39 of the Bridgeford act (St. There is no doubt that articles of personal 1897, p. 267, C. 189) that “in case of the property owned by one person may be at neglect or refusal of the board of directors tached to land owned by another without to cause such assessments and levies to be becoming a part of the realty and without les made, as in this act provided, then the ing their character as personal property. For assessment of property made by the county instance, trade fixtures annexed to land by assessor and state board of equalization shall tenants do not become part of the freehold be adopted, and it shall be the basis of assesseven without any special agreement. And ment for the district." Now, in section 3617 the sileral rule is that the intention of the of the Political Code real estate is defined, parties de ermines the character of the an for taxable purposes, as land including varinesee chattels and that they remain personal ous kinds of interests therein, and "improvereperty if that be the intention of the par ments' and it is declared that “the terin ties when they are attached. This rule ap 'improvements includes all buildings, strucplies to third parties acquiring an interest in tures, fixtures, fences, and improvements the land has mortgagecs, grantees, etc.-ex erected upon or affixed to land, except tele(opt where the mode of annexation is such phone and telegraph lines"; and in section that the attached property loses its character 3663 of said Code it is provided that telegraph as personal property, as where it could not and telephone lines shall be "assessed as be removed without destroying it, or where it personal property by the assessor of the is nessary to the support or safety of that county." Considering these provisions of the to which it is attached. In IIendy v. Dinker general law touching assessment and taxahoff. 57 (al. 3, 40 Am. Rep. 107, the court tion, we do not think that the respondent is say: "It is well settled, as said by the Court in a position to ignore the character of perof Appeals of New York, in Tifft r. Horton, 53 sonal property given to the poles, wires, etc., N. Y. 380, 13 Am. Rep. 537, that chattels of appellant by the contract between it and may be annexed to the real estate and still the railroad company on whose right of way retain their character as personal property.' | they were placed. See Voorhees v. McGinnis, 48 N. Y. 278, and The judgment appealed from is reversed, cases there cited. Of the various circum and the superior court is directed to render stances which may determine whether in any judgment for plaintiff as prayed for in its case this character is or is not retained, the complaint. intention with which they are annexed is one; and if the intention is that they shall not, by

We concur: SHAW, J.;

SHAW, J.; HENSHAW, J. annexation, become a part of the freehold, as

We concur on the ground last stated. a general rule they will not. The limitation

SLOSS, J.; ANGELLOTTI, J. to this is where the subject or mode of annexation is such that the attributes of person BEATTY, C. J. (concurring). It has been al property cannot be predicated of the thing assumed by both parties to this action and in controversy (Ford v. Cobb, 20 N. Y. 314), by the court that it is authorized by the as when the property could not be removed terms of the Bridgeford act. I think it more without practically destroying it, or where than doubtful whether the provisions of secit or part of it is essential to the support tions 68, 69, of that act (St. 1897, p. 276, C. of that to which it is attached.” See, also, 189) were ever intended, or can be construed, Tifft v. Horton, 53 N. Y. 380, 13 Am. Rep. to authorize an action to determine the valid537; Memphis, etc., v. State, 6 Cold. (Tenn:) ity of the assessment of particular property to 311, 98 Am. Dec. 452; Chelsea Waterworks an individual taxpayer. But, waiving that V. Bowley. 17 Q. B. 359; and Wiggins V. question, I concur in the judgment, and in Obio, 142 U. S. 415, 12 Sup: Ct. 188, 35 L. the opinion as to the matters discussed.

(149 Cal. 613)

clearly a suit of the character formerly cogWHITE v. SAGE. (Sac. 1,380.)

nizable in equity alone to enforce the specific (Supreme Court of California. Aug. 30, 1906.)

performance of a contract, and is an appeal 1. SPECIFIC PERFORMANCE-COMPLAINT.

the equity jurisdiction of the court. A complaint setting out a contract of sale Sparks v. Hess, 15 Cal. 191; Glock v. Howof land by plaintiff to defendant, averring tender ard, 123 Cal. 1, 55 Pac. 713, 43 L. R. A. of deed by plaintiff, accompanied by demand for payment of price, refusal of defendant to

199, 69 Am. St. Rep. 17. A demurrer to the pay, that plaintiff is the owner in fre and complaint on the ground that it does not ready and willing to convey; that he has a lion, state facts sufficient to state a cause of as vendor, for the price, and asking judgment

action was overruled by the court. for the balance of purchase money ; that defendant be given a reasonable time to pay the

We think the complaint was insufficient, same; and that, in default of such payment, and that the demurrer should have been susdefendant's interest in the land be soll, the

taineil. By the contract sought to be enproceeds applied on the amount due, defendant's rights to the land foreclosed, and execution be

forced, which was executed on July 28, 1903, awarded against defendant's other property for

White agreed to sell and convey to Sage So any balance after such application of the pro acres of land for the sum of $11,000, and ceeds-is one for specific performance.

Sage agreed to buy the same at said price, [Ed. Yote. For cases in point, see vol. 11, Cent. Dig. Specific Performance, $$ 356, 3.77.]

paid $10 down, and promised to pay the

remainder of $10,990 on or before August 2. SAME-ALLEGATIONS AS TO CONSIDERATION. A complaint by the vendor for specific

15, 1903. There is no allegation that the performance of a contract of sale, merely al land was worth the price agreed to be paid, leging the contract price, without showing that nor any illegation whaterer as to its value, the consideration of defendant's contract to buy was adequate, or that as to him the con

nor any averment that the price is adequate tract was just and reasonable, in the absence

or in fair proportion to the value of the land, of which facts Civ. Code, $ 3391, provides that nor that Sage ever had possession of the a contract cannot be specifically enforced against

land nor of any other facts going to show a party, is insufficient. [Ed. Note.-For cases in point, see rol. 44,

that the consideration of the contract of Cent. Dig. Specific Performance, $ 358.]

Sage to buy the land was adequate, or that, 3. SAMEJUDGMENT-FINDINGS.

as to him, it is just and reasonable. For Failure to find the value of the land is want of such showing the complaint must ground for reversal of a judgment for specific be held insuficient to authorize a court of performance of a contract to buy land.

equity to enforce performance. Department 1.

1. Appeal from Superior Civ. Code, $ 3391, declares that "specific Court, Kings County; M. L. Short, Juilge. performance cannot be enforced against a

Action by S. J. White against W. A. Sage. party to al contract in any of the following Juigment for plaintiff. Defendant appeals. cases: (1) If he has not received an adequate Reversed, with directions.

consideration for the contract; (2) if it is Frank McGowan and Elmer Westlake, for

not, as to him, just and reasonable; (3) if appellant. F. B. Brown and Dixon L.

his assent was obtained by the misrepresenPhillips, for respondent.

tation, concealment, circumvention or unfair practices of any party to whom performance

In SHAW, J. The defendant, Sage, appeals

would become due under the contract." from a judgment in favor of the plaintiff.

Bruck v. Tucker. 12 Cal. 353, upon this The complaint is by the vendor in in

point the court said: "The agreement alexecutory agreement for the sale of land to leged must be one which in all its features enforce the performance of the contract by

appeals to the judicial discretion as being the vendee. It sets out the contract, a

fit to be enforced in specie--as having been tender by the plaintiff accompanied by a de

obtained without any intermixture of unfairmand for payment of the price, and the re

Hence, if it appear that the bargain, fusal of the defendant to pay, avers that the though obligatory in point of mere law, and plaintiff is the owner in fee and is ready

one not to be set aside in equity, is, neverand willing to convey, and that he has a lien,

theless, hard bargain, the court will not as vendor, for the price, upon the defendant's

relieve. Of such a bargain Lord Hardwicke equitable interest under the contract, and said: "The constant rule of the court is asks for judgment against the defendant for not to carry it into execution. The same the balance of the purchase money unpaid, view was asserted by the chancellor in Seythat defendant be given a reasonable time, mour v. Delancey, 6 Johns. Ch. (N. Y.) 222, to be fixed by the court, within which to pay

where the value which the complainant was the same, and that, in default of such pay to pay was, by the estimate of the court, a ment, the defendant's interest in the land be little less than one-half that of the estate sold, the proceeds applied on the amount ad bargained for.” In Prince v. Lamb, 128 judged due, that defendant's rights to the Cal. 128, 60 Pac. 692, the same principle land be thereupon foreclosed, and for judg. was approved, and it was said: “These ment and execution against the other proper principles are not restricted to contracts for ty of the defendant for any balance of the the conveyance of land, but they apply in all price remaining unpaid after the application cases where the equitable jurisdiction of the thereon of the proceeds of said sale. It is court is invoked to enforce the specific per

87 P.13

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