the cause, and is not a part of the record unless made so by a bill of exceptions. Patee v. Parkinson, 18 Kan. 465; Myers v. Wheelock, 60 Kan. 747, 57 Pac. 956; Woolverton v. Johnson, 69 Kan. 708, 77 Pac. 559. The plaintiff in error not having preserved the agreed statement of facts in the record, it is not before us for our consideration.

The judgment must therefore be affirmed.

(74 Kan. 873)

STATE v. BAILEY.

(Supreme Court of Kansas. Oct. 6, 1906.) 1. INFORMATION-ELECTION BETWEEN COUNTS

-ABANDONMENT OF COUNT.

Where an information charges defendant in several counts, with the illegal sale of liquor, and in an additional count with the maintenance of a place where liquor was unlawfully sold, the prosecution on the nuisance count is not abandoned where the state, on being required to elect on what evidence it would rely for a conviction on the various counts, files a statement of such election, without mention of the nuisance count; the election having reference only to the counts charging specific sales.

[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Indictment and Information. § 432.1 2. SAME APPEAL RECORD REJECTION OF EVIDENCE.

The record not showing the contents of documents offered in evidence, and described as government liquor licenses. rejection thereof cannot be reviewed.

3. SAME-EVIDENCE-COMPETENCY-DECLARATIONS OF THIRD PERSON.

Testimony that witness heard a third person say he was the owner of the place that defendant was charged with keeping is not competent in behalf of defendant.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law. § 950.]

Appeal from District Court, Linn County; Walter L. Simons, Judge.

W. E. Bailey was convicted of maintaining a liquor nuisance, and appeals. Affirmed.

John C. Cannon, J. W. Poore, and J. I. Sheppard, for appellant. C. C. Coleman, Atty. Gen., John O. Morse, and James D. Snoddy, for the State.

PER CURIAM. W. E. Bailey was prosecuted under an information charging him in several counts with the illegal sale of intoxicating liquor, and, in an additional count, with the maintenance of a place where liquor was unlawfully sold. He was convicted only upon the nuisance count. Upon appeal, he contends that, inasmuch as the state, on being required to elect upon what evidence it would rely for a conviction upon the various counts, filed a written statement of such election in which no mention was made of the nuisance count, the prosecution upon that account was thereby abandoned. The contention is not good. The election had reference only to those counts charging specific sales. On the trial the defendant offered in evidence two documents described as government liquor licenses, and complaint is now made of their rejection. The record does not

show the contents of the documents, so that no review of the ruling is possible, but it is not apparent how the defendant could have been in any way prejudiced by it. Complaint is also made of the refusal of the trial court to allow a witness to testify that he had heard one Blair say that he was the owner of the place. This would have been competent evidence against Blair if he had been on trial, but was not competent when offered in behalf of Bailey.

The judgment is affirmed.

Ex parte SMITH.

(74 Kan. 452)

(Supreme Court of Kansas. Oct. 6, 1906. Rehearing Denied Oct. 31, 1906.) DIVORCE-DECREE-IMPEACHMENT-ALIMONY.

If, in an action for divorce and alimony, the plaintiff be granted a divorce, but, through the fraud of the defendant, the judgment makes no provision for alimony, the judgment may be impeached for fraud as in other cases, and proper alimony may be awarded without disturbing the decree for divorce.

[Ed. Note. For cases in point, see vol. 17, Cent. Dig. Divorce, $$ 536, 691-696.] (Syllabus by the Court.)

In the matter of the application of Thomas B. Smith for a writ of habeas corpus. Petitioner remanded.

T. A. Moxcey and Waggener, Doster & Orr, for petitioner. J. L. Berry and C. D. Walker, for respondent.

BURCH, J. Ida K. Smith as plaintiff procured a judgment of divorce against her husband, the present petitioner, which contained a recital that all questions relating to alimony, suit money, attorney's fees, costs and expenses of suit, and advancements of money had been amicably settled between the parties. Therefore no judgment other than as described was rendered concerning the subjects of the settlement. Afterward the plaintiff instituted proceedings for a modification of the judgment respecting matters involved in the settlement, alleging that plaintiff's assent to the arrangement had been procured by false and fraudulent representations of the petitioner and his attorney. The court found against certain of the charges of fraud, but sustained others, and modified the judgment by awarding the plaintiff alimony, fixing the time and manner in which it should be paid and taxing the petitioner with the costs of the divorce suit. For disobedience of the judgment as modified the petitioner was cited for contempt. His defense was want of jurisdiction in the court to change the original decree, and financial inability to pay. The court found against him on the question of fact, ruled against him on the question of law, and committed him to jail. In this application for a discharge the district court's conclusion respecting the petitioner's ability to pay at the time the order of imprisonment

was made cannot be reviewed, and if his financial situation has undergone subsequent inhibitive change he should present the facts to the court which deprived him of his liberty. The only question for determination, therefore, is the validity of the judgment which the petitioner failed to satisfy.

The petitioner builds his argument upon certain general statements of the law contained in decisions of this court true in themselves, but having no application to the facts of his own case. His premises are found in Mitchell v. Mitchell, 20 Kan. 665; Lewis v. Lewis, 15 Kan. 181; Roe v. Roe, 52 Kan. 724, 35 Pac. 808, 39 Am. St. Rep. 367; and Johnston v. Johnston, 54 Kan. 726, 39 Pac. 725. In Mitchell v. Mitchell the judgment fixed the amount of alimony to be paid. Afterward, in a suit brought for that purpose, the district court modified the judgment on the ground the financial misfortunes of the defendant had rendered him unable to pay. In reviewing the case this court said: "Alimony allowed to a wife on a decree for divorce from the bonds of matrimony by reason of the fault or aggression of the husband, under the statute in this state, is to be based upon the circumstances of the parties at the time of the divorce, and is not to be modified by subsequent changes in these circumstances. The court has no power, on subsequent application showing circumstances thereafter arising, to increase or diminish the allowance given in the original judgment." In Lewis v. Lewis a decree of divorce barred the defendant of all rights in the plaintiff's property. In a subsequent suit the service upon which this judgment was based was attacked and held to be invalid. Therefore the court opened the decree and made a new or der respecting the property rights of the parties. In a proceeding in error this court held the service to be good, and concluded as follows: "Where the decree of divorce contained no other order concerning property than one barring defendant of all right and interest in the property of plaintiff, held, that this order must stand with the decree, and, the decree being undisturbed, the order could not be set aside." In the case of Roe v. Roe this court said: "The final judgment in an action granting a divorce settles all property rights of the parties and is a bar to an action afterward brought by either party to determine the question of alimony, or any property rights which might have been settled by such judgment.". And in the case of Johnston v. Johnston it is remarked that "the divorce and the adjustment of property interests are not to be regarded as transpiring at different times, but as contemporaneous." From these quotations it is said to follow that the district court had no power to grant relief against the vicious judgment it had been induced to render. The cases cited were all well decided, but they do not in any way fortify the stability of a

judgment relating to alimony which has been procured by fraud.

In her petition for divorce Mrs. Smith prayed for alimony. She made it an issue in the case. The decree granted no alimony and was binding upon her to the same extent as if her claim had been expressly denied. The judgment gave the reason for its failure to pronounce further upon the subject, and concluded the parties as other final judgments bind other litigants. But this judgment, which deprived the plaintiff of an enforceable court order for adequate alimony, was procured by fraud. Therefore it was impeachable for fraud like other judgments so affected. There is no distinction in this respect between judgments in divorce cases and judgments in other cases. The defendant's dishonesty having left its mark upon that portion of the judgment only which undertook to respond to the plaintiff's claim for alimony, that portion alone needed purging. The provision divorcing the parties was not tainted and there was no reason for disturbing it. If the reason for attacking the judgment had been furnished by some fact which touched upon the court's authority to proceed at all, the judgment would have stood or would have fallen as an entirety as in the Lewis Case. But for the petitioner's fraud there would have been a contemporaneous adjustment of all the rights of the parties as contemplated by the Johnston Case. The court did not grant relief upon any change of circumstance or condition after judgment, as in the Mitchell Case. It merely did what would have been done but for the petitioner's deceit. If the plaintiff had altogether neglected to seek a determination of her right to alimony, as in the Roe Case, she would have been remediless. But, having sought a righteous adjudication of the matter at the proper time, and having been circumvented by the petitioner's machinations, the district court still had the power to do justice.

The petitioner is remanded. All the Justices concur.

(149 Cal. 662)

WESTERN UNION TELEGRAPH CO. v. MODESTO IRRIGATION CO. et al.

(Sac. 1,408.)

(Supreme Court of California. Aug. 31, 1906.) 1. WATERS AND WATER COURSES-IRRIGATION DISTRICTS ASSESSMENTS TELEGRAPH

LINES.

An irrigation district, organized under St. 1887, p. 29, c. 34, authorizing the assessment of all the real property in the district for its revenue purposes, cannot assess the poles and wires of a telegraph company placed on the land of a railway company under a contract reserving them as the personal property of the telegraph company, as they are not real property within such provision. 2. SAME.

Under Pol. Code, §§ 3617, 3663, defining real estate for taxable purposes as land including the improvements, except telegraph lines,

which shall be assessed as personalty, and Bridgeford Act (St. 1897, p. 267, c. 189) § 39, providing that, on refusal of the directors to make the assessments in irrigation districts, the assessment made by the county assessor and the state board of equalization shall be the basis of assessment, an irrigation district cannot assess for revenue purpose the poles and wires of a telegraph company placed on the land of a railway company under a contract reserving such property as personalty..

In Bank. Appeal from Superior Court, Stanislaus County; L. W. Fulkerth, Judge. Action by the Western Union Telegraph Company against the Modesto Irrigation Company and others to determine the validity of an irrigation assessment. From a judgment for defendants, plaintiff appeals. Judgment reversed, and the superior court directed to render judgment for plaintiff.

Brown & Wells, R. B. Carpenter, and Alexander H. Van Cott, for appellant. Dennett & Walthall, for respondents.

MCFARLAND, J. The plaintiff is a wellknown corporation organized under the laws of the state of New York, engaged in the business of telegraphy, having certain franchises, rights, and privileges granted by the government of the United States, and having many telegraph lines in California, and in other parts of the United States and adjoining countries. The defendant the Modesto Irrigation Company is an irrigation district organized in July, 1887, under an act of the Legislature of this state providing for the organization of irrigation districts, approved March 7, 1887 (St. 1887, p. 29, c. 34), and generally known as the "Wright Act," and it has ever since continued its existence as such district under said acts and acts amendatory thereof and supplemental thereto. The other defendants are directors of said irrigation district. The plaintiff is, and at the times mentioned in the complaint was, the owner of certain property, consisting of poles, wires, and other appliances, constituting 91⁄2 miles of one of its telegraph lines, which runs over a right of way of a certain railroad corporation known as the "Southern Pacific Company" within the boundaries of the said Modesto irrigation district. The plaintiff put its said 91⁄2 miles of poles, wires, etc., under a written contract with the said railroad which expressly declared that the poles, wires, etc., constituting said 91⁄2 miles of telegraph line "shall be and remain the personal property of said plaintiff." In 1904 the defendants caused the said 911⁄2 miles of poles, etc., to be assessed at the value of $1,100 as property taxable for the purpose of raising revenue for said irrigation district. Thereupon the plaintiff brought this suit to have determined the validity of said assessment, as it was authorized to do by section 69 of an act to provide for the organization of irrigation districts, approved March 31, 1897 (St. 1897, p. 276, c. 189), and generally known as the "Bridgeford Act." The case was tried with

out a jury and upon a stipulated state of facts, and the court rendered judgment for defendants. From this judgment plaintiff appeals.

There is no contest as to the facts in the case, which are substantially as above stated. The only question is whether the said property of plaintiff is legally assessable and taxable by the irrigation district. The main purpose of the statutes providing for irrigation districts is to enable owners of land that may be made more productive of vegetable growth by irrigation, and which are "susceptible of irrigation from a common source." to organize so as to more effectually accomplish such irrigation; and there is, therefore, some room for the alleged absurdity of irrigating the poles and wires of a telegraph line. But we will assume that such property is within the taxing power of the district if the letter of the law necessarily includes it. The statute under which the defendant was organized provides that for the purpose of revenue the assessor must assess "all of the real property within the district" (St. 1887, p. 37, § 18); and it is conceded, or, at least, it is the law, that no personal property can be subjected to taxation for such purpose. Said section provides that the assessor must prepare an assessment book, with headings, in which must be listed "all such property"; that is, all real property. One of the headings is "Land by Township, Range," etc., or "by Metes and Bounds or Other Sufficient Description," and the "Improvements Thereon." Another is "City and Town Lots, *** with the Improvements Thereon." Under another heading there must be stated the cash value of the improvements on the land, whether city land or other lands, and also the "Cash Value of the Improvements of the Real Estate Assessed to Persons Other Than the Owners of the Real Estate." However, in providing for the enforcement of the payment of taxes, the statute seems to refer to land alone; as, for instance, by section 26, in the case of delinquency, the collector must add certain penalties to "each lot, tract, or piece of land." and in the event of sale for delinquency he must commence the sale at the head of the list of property and continue the sale in the numerical order of "the lots, or blocks": and by section 27 he must sell to the person who will take "the least quantity of the land," and he must give to the purchaser a certificate containing a "description of the land sold"; and by section 30 it is provided that if no redemption be made the collector must make a deed to the purchaser, which shall convey to him the absolute title "to the land described therein." (These provisions are substantially the same as those contained upon the same subjects in the Bridgeford act.) It is therefore doubtful whether it is the intent of the law to enforce any tax upon mere "improvements," except as a part of the land improved, and whether the cash

value of the improvements is not required merely to show the value of the land as enhanced by the improvements; and it is doubtful if the sale for delinquency of "an improvement," as distinct from the land, is contemplated. Plaintiff also contends that the right of way of the railroad company is not real property within the meaning of the statutes here relied on, and, further, that, even if it were, the poles, wires, etc., are not an "improvement," but really a burden. We notice these points because they are urged, but we do not think it necessary to pass upon them definitely because we think that the poles, wires, etc., are not assessable for the reason that they are not real property, but only personal property.

There is no doubt that articles of personal property owned by one person may be attached to land owned by another without becoming a part of the realty and without losing their character as personal property. For instance, trade fixtures annexed to land by tenants do not become part of the freehold even without any special agreement. And the general rule is that the intention of the parties determines the character of the annexed chattels and that they remain personal property if that be the intention of the parties when they are attached. This rule applies to third parties acquiring an interest in the land-as mortgagees, grantees, etc.-except where the mode of annexation is such that the attached property loses its character as personal property, as where it could not be removed without destroying it, or where it is necessary to the support or safety of that to which it is attached. In Hendy v. Dinkerhoff. 57 Cal. 3. 40 Am. Rep. 107, the court say: "It is well settled, as said by the Court of Appeals of New York, in Tifft v. Horton, 53 N. Y. 380. 13 Am. Rep. 537, 'that chattels may be annexed to the real estate and still retain their character as personal property.' See Voorhees v. McGinnis. 48 N. Y. 278, and cases there cited. Of the various circumstances which may determine whether in any case this character is or is not retained, the intention with which they are annexed is one; and if the intention is that they shall not, by annexation, become a part of the freehold, as a general rule they will not. The limitation to this is where the subject or mode of annexation is such that the attributes of personal property cannot be predicated of the thing in controversy (Ford v. Cobb, 20 N. Y. 344), as when the property could not be removed without practically destroying it, or where it or part of it is essential to the support of that to which it is attached." See, also, Tifft v. Horton, 53 N. Y. 380, 13 Am. Rep. 537: Memphis. etc., v. State, 6 Cold. (Tenn.) 311. 98 Am. Dec. 452; Chelsea Waterworks v. Bowley. 17 Q. B. 359; and Wiggins v. Ohio, 142 U. S. 415, 12 Sup: Ct. 188, 35 L.

Ed. 1055. In the case at bar the poles, wires, etc., were easily removable and are in no sense essential to the support of that to which they are attached. We think, therefore, that they are not real property within the meaning of the irrigation law, but are personal property, not assessable for the revenue purposes of the district.

2. Moreover, we think that, for the purpose of the revenue to the district, the definitions of real property and personal property in the general revenue and taxation laws of the state as found in the Political Code, must prevail. They relate to the same subject as the revenue part of the law covering irrigation districts. Indeed it is expressly provided in section 39 of the Bridgeford act (St. 1897, p. 267, c. 189) that "in case of the neglect or refusal of the board of directors to cause such assessments and levies to be made, as in this act provided, then the assessment of property made by the county assessor and state board of equalization shall be adopted, and it shall be the basis of assessment for the district." Now, in section 3617 of the Political Code real estate is defined, for taxable purposes, as land including various kinds of interests therein, and "improvements" and it is declared that "the term 'improvements' includes all buildings, structures, fixtures, fences, and improvements erected upon or affixed to land, except telephone and telegraph lines"; and in section 3663 of said Code it is provided that telegraph and telephone lines shall be "assessed as personal property by the assessor of the county." Considering these provisions of the general law touching assessment and taxation, we do not think that the respondent is in a position to ignore the character of personal property given to the poles, wires, etc., of appellant by the contract between it and the railroad company on whose right of way they were placed.

The judgment appealed from is reversed, and the superior court is directed to render judgment for plaintiff as prayed for in its complaint.

We concur: SHAW, J.; HENSHAW, J.

We concur on the ground last stated. SLOSS, J.; ANGELLOTTI, J.

BEATTY, C. J. (concurring). It has been assumed by both parties to this action and by the court that it is authorized by the terms of the Bridgeford act. I think it more than doubtful whether the provisions of sections 68, 69, of that act (St. 1897, p. 276, c. 189) were ever intended, or can be construed, to authorize an action to determine the validity of the assessment of particular property to an individual taxpayer. But, waiving that question, I concur in the judgment, and in the opinion as to the matters discussed.

(149 Cal. 613)

WHITE v. SAGE. (Sac. 1,380.) (Supreme Court of California. Aug. 30, 1906.) 1. SPECIFIC PERFORMANCE-COMPLAINT.

A complaint setting out a contract of sale of land by plaintiff to defendant, averring tender of deed by plaintiff, accompanied by demand for payment of price, refusal of defendant to pay, that plaintiff is the owner in fee and ready and willing to convey; that he has a lien, as vendor, for the price, and asking judgment for the balance of purchase money; that defendant be given a reasonable time to pay the same; and that, in default of such payment, defendant's interest in the land be sold, the proceeds applied on the amount due, defendant's rights to the land foreclosed, and execution be awarded against defendant's other property for any balance after such application of the proceeds is one for specific performance.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Specific Performance, §§ 356, 357.] 2. SAME ALLEGATIONS AS TO CONSIDERATION. A complaint by the vendor for specific performance of a contract of sale, merely alleging the contract price, without showing that the consideration of defendant's contract to buy was adequate, or that as to him the contract was just and reasonable, in the absence of which facts Civ. Code, § 3391, provides that a contract cannot be specifically enforced against a party, is insufficient.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Specific Performance, § 358.] 3. SAME-JUDGMENT-FINDINGS.

Failure to find the value of the land is ground for reversal of a judgment for specific performance of a contract to buy land.

Department 1. Appeal from Superior Court, Kings County; M. L. Short, Judge.

Action by S. J. White against W. A. Sage. Judgment for plaintiff. Defendant appeals. Reversed, with directions.

Frank McGowan and Elmer Westlake, for appellant. F. B. Brown and Dixon L. Phillips, for respondent.

SHAW, J. The defendant, Sage, appeals from a judgment in favor of the plaintiff.

The complaint is by the vendor in an executory agreement for the sale of land to enforce the performance of the contract by the vendee. It sets out the contract, a tender by the plaintiff accompanied by a demand for payment of the price, and the refusal of the defendant to pay, avers that the plaintiff is the owner in fee and is ready and willing to convey, and that he has a lien, as vendor, for the price, upon the defendant's equitable interest under the contract, and asks for judgment against the defendant for the balance of the purchase money unpaid. that defendant be given a reasonable time, to be fixed by the court, within which to pay the same, and that, in default of such payment, the defendant's interest in the land be sold, the proceeds applied on the amount adjudged due. that defendant's rights to the land be thereupon foreclosed, and for judg ment and execution against the other property of the defendant for any balance of the price remaining unpaid after the application thereon of the proceeds of said sale. It is 87 P.-13

clearly a suit of the character formerly cognizable in equity alone to enforce the specific performance of a contract, and is an appeal to the equity jurisdiction of the court. Sparks v. Hess, 15 Cal. 194; Glock v. Howard, 123 Cal. 1, 55 Pac. 713, 43 L. R. A. 199, 69 Am. St. Rep. 17. A demurrer to the complaint on the ground that it does not state facts sufficient to state a cause of action was overruled by the court.

We think the complaint was insufficient, and that the demurrer should have been sustained. By the contract sought to be enforced, which was executed on July 28, 1903, White agreed to sell and convey to Sage 80 acres of land for the sum of $11,000, and Sage agreed to buy the same at said price, paid $10 down, and promised to pay the remainder of $10,990 on or before August 15, 1903. There is no allegation that the land was worth the price agreed to be paid, nor any allegation whatever as to its value, nor any averment that the price is adequate or in fair proportion to the value of the land, nor that Sage ever had possession of the land nor of any other facts going to show that the consideration of the contract of Sage to buy the land was adequate, or that, as to him, it is just and reasonable. For want of such showing the complaint must be held insuflicient to authorize a court of equity to enforce performance.

Civ. Code, § 3391, declares that "specific performance cannot be enforced against a party to a contract in any of the following cases: (1) If he has not received an adequate consideration for the contract; (2) if it is not, as to him, just and reasonable; (3) if his assent was obtained by the misrepresentation, concealment, circumvention or unfair practices of any party to whom performance would become due under the contract." In Bruck v. Tucker. 42 Cal. 353, upon this point the court said: "The agreement alleged must be one which in all its features appeals to the judicial discretion as being fit to be enforced in specie-as having been obtained without any intermixture of unfairness. Hence, if it appear that the bargain, though obligatory in point of mere law, and one not to be set aside in equity, is, nevertheless, a hard bargain, the court will not relieve. Of such a bargain Lord Hardwicke said: The constant rule of the court is not to carry it into execution.' The same view was asserted by the chancellor in Seymour v. Delancey, 6 Johns. Ch. (N. Y.) 222, where the value which the complainant was to pay was, by the estimate of the court, a little less than one-half that of the estate bargained for." In Prince v. Lamb, 128 Cal. 128, 60 Pac. 692, the same principle was approved, and it was said: "These principles are not restricted to contracts for the conveyance of land, but they apply in all cases where the equitable jurisdiction of the court is invoked to enforce the specific per