judgment creditor, and when the judgment was recovered, the company agreed to end the litigation, and also to put in the cattle-guard, and to pay the judgment, less a stated sum, within 30 days; in which event the judgment creditor was to accept the sum so agreed on in full payment of the judgment and costs. Held, that the time within which the cattle-guard was to be constructed, and the payment to be made, were the important elements of the agreement, and that, as the company failed to comply with these conditions, the judgment creditor was at liberty to enforce by execution the full payment of the judgment as rendered.

2. ERROR, WRIT OF-WHEN DEEMED TO BE COMMENced.

A proceeding in error is not deemed to be commenced by the mere filing of a petition in error.

3. EXECUTION-VALIDITY-AMOUNT.

An execution which on its face commands the officer to make the full amount of the judgment rendered when a payment had been made thereon will not for that reason be quashed where the payment made is credited on the back of the execution. (Syllabus by the Court.)

Error to district court, Greenwood county; CHARLES B. GRAVES, Judge. Proceeding in error for the reversal of an order overruling a motion to quash an execution. W. Rierson brought an action against the St. Louis & San Francisco Railway Company to recover damages sustained by reason of the railway company failing to construct a cattle-guard where the railway entered his premises; and on December 10, 1884, he recovered a judgment of $144.30 as damages, and his costs taxed at $118. The parties then entered into a contract by the terms of which the railway company agreed to pay Rierson the judgment in full, and all of the costs, except $37.50, within 30 days thereafter; and the railway company further agreed to put in a suitable cattle-guard where the railway entered Rierson's premises, within the same length of time; and also agreed that the case should not be taken to the supreme court. The railway company did not put in the cattle-guard within 30 days, nor until April 16, 1885. On the ninth day of February, 1885, the railway company had not paid any portion of the judgment, and Rierson caused an execution to issue in due form to the sheriff of the county, which was received by him. Soon after the execution was received, the railway company filed a transcript of the judgment in the cause in the supreme court, but directed that no summons in error should issue. Some months after that, Rierson, by his counsel, appeared and had the case docketed and dismissed, the railway company not resisting the motion therefor. On March 2, 1885, the railway company paid to the sheriff $225.05, which was sufficient to pay all of said judgment and costs except the sum of $37.50. The sheriff delivered the money so received to the clerk, and the same was applied to the costs in said action, and the remaining portion thereof was paid to Rierson, to-wit, $85. On March 31, 1886, the plaintiff caused an alias execution to be issued to the sheriff commanding him to collect the judgment and costs. The execution was regular on its face, and it commanded the officers to make the full amount of the judgment and costs without reciting any payment; but upon the back of the execution there were indorsed the words: "Credit, $225.05. March 2, 1885." On the tenth day of April, 1885, and while the sheriff had the alias execution in his hands, the defendant filed in the district court a motion to quash and set aside the execution upon the grounds—First, that the judgment had been fully paid and discharged by the railway company prior to the issuance of the execution; second, because the execution was issued without authority of law, and is void; third, because there is no judgment existing against said defendant in favor of the plaintiff as a basis of said execution. The motion was heard on the twenty-seventh day of May, 1885, and overruled, to which ruling of the court the defendant excepted.

Kirpatrick & Vestal, and John O'Day, for plaintiff in error. D. B. Fuller, for defendant in error.

JOHNSON, J., (after stating the facts as above.) None of the grounds upon which the motion to quash was based are sufficient. The so-called compro

mise agreement was a conditional one. Rierson agreed to remit $37.50 of the judgment which he had recovered, provided the railway company paid the balance of the judgment within 30 days, and constructed a cattle-guard within the same period. The failure of the company to build the cattle-guard, and thus complete the inclosure of defendant in error, caused the damage upon which the judgment was founded. From the nature of things, the time of payment and of the construction of the cattle-guard were the important elements of the agreement, but the company failed in respect to both. The judgment and costs, less the $37.50, was not paid in 30 days, nor until an execution had been issued, and the payment was then made to the officer who held the execution. The cattle-guard was not constructed at the time agreed upon, nor had it been built when the alias execution was issued, and the motion to quash was filed. The company having failed to observe these conditions, it was proper for Rierson to enforce the judgment as rendered.

The act of counsel for Rierson in causing the petition in error which said railway company had filed in the supreme court to be dismissed is of no consequence, and is not a waiver of the non-compliance of the railway company with the conditions imposed. No proceeding in error was actually instituted. To commence the proceeding, a summons should have been issued or a waiver of summons filed. No summons was issued, or waiver filed; but, instead of taking these steps, it appears that the counsel for the railway company, when the petition in error was filed, directed the clerk of the court not to issue a summons thereon.

The last point made is that the alias execution is invalid because it commanded the sheriff to make the whole amount of judgment and costs, notwithstanding the fact that $225.05 of the judgment had been paid. On its face there was such a command. But indorsed on the back of the execution there was a credit of the amount actually paid. Even if the execution had issued for too large an amount, the proper practice would have been a motion to set aside as to the excess rather than a motion to quash the execution. Bogle v. Bloom, 36 Kan. 512, 13 Pac. Rep. 793.

The order of the district court was correct, and will be affirmed. (All the justices concurring.)

(38 Kan. 263)

NORTHRUP v. HOTTENSTEIN et al.

(Supreme Court of Kansas. January 7, 1888.)

1. DEPOSITIONS-TAKING DURING TERM of Court.

A deposition may legally be taken during a term of the court, in a case set for trial at such term, although the court may be continuously is session during the

term.

2. MORTGAGE-VALIDITY-FRAUD-MISTAKE.

Where K. fraudulently obtains from H., and puts on record, a deed of conveyance for land, and then, without consideration, conveys a portion thereof to W., and afterwards, through a mistake, mortgages to N. that portion of the land previously conveyed to W., the parties at the time intending that the mortgage should cover another piece of land, and not the one in fact mortgaged, and the deed to W. is filed for record before the mortgage to N.; and afterwards H., in an action against K. and W. and others, but not against N., procures a judgment and decree setting aside the deeds to K. and W., and declaring H. to be the owner of the land; and afterwards N. commences an action to foreclose his mortgage, not upon the land intended to be mortgaged, but upon the land actually described in his mortgage, making K., and H. and others parties to the action; held, under the foregoing facts, that H. may successfully defend against such action.

3. SAME EVIDENCE.

And further held in such action, that H. may prove the fraud of K., and her rights, notwithstanding the deeds to K. and W., by proving the original negotiations be tween herself and K., whereby her deed to K. was fraudulently obtained, and may

prove the final judgment rendered in her favor against K. and W., although such negotiations may involve conversations had in the absence of N., and although N. was not a party to the action in which such judgment was rendered. (Syllabus by the Court.)

Error to district court, Allen county; L. STILLWELL, Judge.

Knight & Foust, for plaintiff in error. G. A. Amos and L. W. Keplinger, for defendant in error.

VALENTINE, J. This was an action brought by L. L. Northrup, on September 13, 1884, in the district court of Allen county, against Luther J. Keeney, Maria H. Keeney, the New England Mortgage Security Company, F. W. Dunton, and Mary E. Hottenstein, to foreclose a mortgage executed to the plaintiff by Luther J. Keeney and his wife, Maria H. Keeney, for certain real estate situated in said county. Mrs. Hottenstein filed an answer to the plaintiff's petition, and the plaintiff demurred to the answer upon the ground that it did not state facts sufficient to constitute any defense to his action. The demurrer was overruled. The plaintiff then replied to Mrs. Hottenstein's answer, by filing a general denial, and upon these pleadings the case was tried before the court without a jury; and the court made special findings and conclusions of fact and law; and upon such findings and conclusions rendered judgment in favor of Mrs. Hottenstein, and against the plaintiff; and to reverse this judgment, the plaintiff, as plaintiff in error, brings the case to this court. What proceedings were had with reference to the other defendants is not shown, nor is it material so far as the controversy between the plaintiff and Mrs. Hottenstein is concerned.

The first question meriting consideration is whether the district court erred or not in overruling a motion of the plaintiff to suppress the deposition of the witness B. O. Davidson. It appears from the record that the court convened on June 15, 1885, and that this case was set for trial on June 17, 1885. The case was not tried on that day, however, nor until July 7, 1885; but why the trial was postponed, or whether the case was again set for trial for a subsequent day, is not shown. On June 26, 1885, notice was served by Mrs. Hottenstein's counsel upon the plaintiff's counsel, to take depositions in the case on June 30, 1885, at Wyandotte, Kansas. Service of this notice was acknowledged, and all objections to the official character of the officer before whom the depositions were to be taken were waived by the plaintiff's counsel. On June 30, 1885, and in pursuance of the aforesaid notice, the deposition of B. O. Davidson was taken at Wyandotte; but neither the plaintiff nor his counsel made any appearance, and the deposition was taken in their absence. On July 1, 1885, this deposition was filed in the case in the district court; and on July 6, 1885, the plaintiff filed a motion to suppress the same, which motion reads as follows: “And now comes plaintiff, by Knight & Foust, attorneys, and moves the court to suppress the deposition of B. O. Davidson, taken herein on the part of Mary E. Hottenstein, one of the defendants, for the following reasons, viz.: Because the notice to take depositions was served on plaintiff's counsel on the twenty-sixth day of June, 1885,-the district court of Allen county then being in session, having commenced in regular June session on the fifteenth day of June, 1885, and having (except Sundays) been continuously since then in session; that the above stated action being on bar-docket of said term, and fixed for June 17, 1885, and having been continued from preceding term by the defendant Hottenstein; and plaintiff's counsel being resident members of the bar of Allen county district court, and having causes in the bar-docket for trial, that precluded them, or either of them, from attending at the time and place named in the notice to take depositions, as will be seen by the affidavit of R. II. Knight hereto attached, marked Exhibit A,' and made a part hereof." This motion was overruled on the same day. On the next day, July 7, 1885, the case was called for trial, and

was tried before the court without a jury, with the result aforesaid. The tes timony contained in this deposition was material; and if the court below erred in refusing to suppress it, the judgment of the court below should be reversed. The substantial question is whether a deposition may properly be taken during a term of court, and while the court is in session. We think this question must be answered in the affirmative. The statute does not prohibit the taking of depositions during term-time, nor for any of the other reasons set forth in the plaintiff's motion, and in many cases it is absolutely necessary to take depositions during the term. In some counties in this state the court is in continuous session from the beginning of one term to the beginning of the next, and there is no vacation during which depositions could be taken, and in some cases the witness' health or physical condition might be such that he could not attend the sessions of the court, and, unless his deposition were taken immediately, and during the term, his testimony might be forever lost. We can see how the privilege given to parties of taking depositions during the term of the court might be abused, but in such a case the court would have ample power to correct such abuse. Generally, the court could continue the case, and give the aggrieved party time to procure other testimony, or to take the further deposition of the same witness or witnesses as upon cross-examination; and in some rare cases the court might suppress the deposition. Trial courts have ample power to prevent advantages being taken by unjustifiable tricks; and the supreme court will sustain them in the exercise of such power. We think the motion in the present case to suppress the deposition was properly overruled. The plaintiff had ample opportunity to procure testimony to disprove what was stated in the deposition, provided it was not true; or to ask for a continuance, if the testimony was a surprise to him. The plaintiff himself was a witness at the trial, and he knew whether the statements contained in the deposition were true or not, and might have testified with reference to the matter, if he had so chosen.

The next question to be considered, and the most important one, is whether, under the facts of the case, as shown by the pleadings, the evidence, and the findings of the court, Mrs. Hottenstein had a good defense to the plaintiff's foreclosure suit. The facts, briefly stated, are substantially as follows: On July 17, 1882, and prior thereto, Mrs. Hottenstein owned the west half of section 27, township 25, range 18, in Allen county, and on that day conveyed the same by warranty deed to Luther J. Keeney. This deed was recorded on July 21, 1882, and Keeney immediately took the possession of the property under the deed. On September 13, 1882, Keeney and wife, by warranty deed, conveyed the north-west quarter of said section 27 to Matilda Ware. On September 18, 1882, Keeney and wife mortgaged this same quarter section of land to L. L. Northrup. On September 26, 1882, at 9 o'clock in the morning, the deed to Matilda Ware was deposited with the register of deeds for record; and on the same day, at 3 o'clock in the afternoon, Northrup's mortgage was deposited with the register of deeds for record. On October 10, 1882, Mrs. Hottenstein commenced an action in the district court of Allen county against Keeney, Matilda Ware, and others for the purpose of having her deed to Keeney, and Keeney's deed to Ware, canceled, and of having it determined that she, Mrs. Hottenstein, was the owner of the land which she conveyed to Keeney. Northrup was not a party to that suit. On March 16, 1883, judgment was rendered in her favor; and the said deeds to Keeney and Ware were set aside, and Mrs. Hottenstein was declared to be the owner of the property. On September 13, 1884, this present foreclosure action was commenced by Northrup. On July 7, 1885, a trial was had before the court without a jury, as aforesaid; and on November 14, 1885, the court made spe cial findings of fact and conclusions of law, and rendered judgment thereon in favor of Mrs. Hottenstein, and against Northrup. It was settled in the former case, and is settled in this case, that the deed from Mrs. Hottenstein

to Keeney was obtained fraudulently, and without consideration, and that the deed from Keeney to Matilda Ware was executed without consideration, and, therefore, that Mrs. Hottenstein continued to be the equitable owner of the land, notwithstanding said deeds. At the time when Keeney executed the deed to Matilda Ware, Northrup was not a creditor of Keeney's, and it is not shown that the deed from Keeney to Ware was executed with any intention of defrauding Northrup, or of defrauding any other person, unless it was Mrs. Hottenstein. When the mortgage was executed by Keeney to Northrup, it was not the intention of the parties that the mortgage should cover the quarter section of land which it was made in fact to cover, but it was the intention of the parties that it should cover another and a different quarter section of land; and it was made to cover the quarter section which it did in fact cover, through a mistake. What quarter section it was intended that the mortgage should cover is not shown. At the time when Northrup's mortgage was executed, he had no knowledge or notice of the existence of the deed from Keeney to Matilda Ware; nor is it shown that Matilda Ware had, at the time when her deed was filed for record, any notice of Northrup's mortgage.

In this state it is provided, with reference to instruments in writing affecting real estate. as follows: "Sec. 21. No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record." Comp. Laws 1885, c. 22, (Conveyance Act.) § 21. It will be seen that the foregoing statute applies both to Northrup's mortgage and to Ware's deed, and neither would be valid as against the other until one of them should be deposited with the register of deeds for record, and the one deposited first would become valid first. Ware's deed was deposited first, and therefore takes precedence over Northrup's mortgage. Upon the foregoing facts, the question arises: Who is entitled to recover in this action,-Northrup on his mortgage, or Mrs. Hottenstein as the absolute owner of the property? We are inclined to think that Mrs. Hottenstein should recover, and, therefore, that the judgment of the court below is correct. When Northrup's mortgage was executed, he had no intention of obtaining a mortgage upon the quarter section of land now in dispute, and therefore was not in any manner misled by any act or omission of Mrs. Hottenstein, or Keeney, or Matilda Ware, with respect to this land. He was not misled by anything placed upon or omitted from the records of the county, or by anything which he may have found upon the records. With his intentions and expectations it was a matter of total indifference to him whether this quarter section of land belonged to Keeney or to some one else, or whether it was incumbered or not; and it was in fact greatly incumbered. He supposed he was getting a mortgage upon another piece of land. When he obtained his mortgage, Keeney did not have any title to this land, either legal or equitable. The equitable title thereto was wholly in Mrs. Hottenstein, and the legal title thereto was in Matilda Ware. Keeney had no interest in the land to mortgage, and therefore could mortgage nothing in it, nor give any lien upon it. But suppose that because of the condition of the records, and under section 21 of the conveyance act Northrup, at the time of the execution of the mortgage, and by his mortgage, obtained some possible lien upon some possible interest in the land, still, until his mortgage was recorded, his lien was valid only as between himself and Keeney. The unrecorded mortgage was invalid as to all others; and before the mortgage was recorded, all Keeney's interest, all that he had at the time of the execution of the mortgage or before, had passed from him to Matilda Ware, by the recording of her deed; leaving no possible interest in Keeney for Northrup's mortgage to operate upon when it was recorded. As before stated, there is no evidence tending to show that at the time when Ware's deed or Northrup's mortgage was executed, Keeney or Ware had any intention of defrauding Northrup, or any one else, unless it was Mrs. Hottenstein. Northrup was