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The plaintiff assigns three grounds of error: First, in sustaining the objection to evidence. The case was tried upon the theory that the plaintiff had guarantied to the defendant an average corn crop, and not only that he should have an average crop, but that he should have a price equivalent to the usual market price of corn when there was a failure of crop. The plaintiff, for the purpose of reducing these unusual damages to the utmost, attempted to show by the evidence that the defendant had more corn from the crop, in fact, than he admitted having had. This evidence was excluded, and, upon the theory upon which the case was tried, it was error to exclude this evidence. This applies to the first and second assignments of error.

. The third assignment of error is that the court erred in its measure of damages under the contract "to stand one-half of the loss in case of failure of crop by reason by drought or hail." The court instructed the jury as follows: "The words are ambiguous in themselves, and cannot be interpreted without an explanation of their meaning. You should therefore construe them in accordance with the true intent of the parties at the time of making the contract. If the words mean that plaintiff was to lose one-half the rent in case of a failure of crops by reason of hail or drought, and if it is proven by the greater weight of evidence that there was a failure of crops for such cause, then plaintiff should recover one-half the amount appearing due upon said note; but if the words, interpreted according to the intent of the parties, mean that plaintiff was to stand one-half the loss of a crop if occasioned by drought or hail, and it is proven by the greater weight of evidence that there was a failure for such reason, then you should allow defendant onehalf the difference in value between what was raised on the farm and a fair average crop, not exceeding the sum of $300. Ascertain the difference between such sum and the amount appearing to be due upon the note, and render your verdict in favor of the person in whose favor you find the balance." The measure of damages adopted by the court in the trial of the case is without warrant of law. Such speculative damages are never allowed. If it was intended that this promise or covenant should apply to a loss occasioned by a failure of the crops, then the loss would be the rent, and expenditures of labor, money, and property by the defendant in his efforts to raise crops. In any event, it could not be one-half of an average crop of corn or oats, measured by the price of such commodity in a season when there was a failure. It cannot be said that the plaintiff was an insurer that the defendant would raise a crop. The measure of damages adopted by the court is so uncertain, depends upon so many contingencies, is so remote and conjectural, that, under the rules of law in relation to damages for breach of

contract, it cannot be allowed as a measure of damages.

The showing for a new trial upon the ground of newly-discovered evidence was ample, and the court should have allowed the same. The principal issue of fact involved in the case, to which evidence was directed, was as to whether, by the promise of the plaintiff to stand one-half of the loss, he meant it to apply exclusively to rent, as contended for by the plaintiff, or whether he meant it to apply to such other damages as the defendant might be occasioned by his loss of crops by reason of drought or hail. The court assumed that this was an issue triable by the jury, and, in the absence of the written contract, we must assume that its action in this respect was correct. The only evidence before the court and jury as to what was really intended by this promise was the statements of the respective parties plaintiff and defendant. The newly-discovered evidence was statements made by the defendant to four different persons, at four different times, directly contrary to his contention on the trial, and to the effect as contended for by the plaintiff. These statements were made, according to the showing, soon after the contract of lease was entered into. That it was discovered after the former trial, there is no contention. It is, however, contended that the showing does not disclose that the plaintiff used such diligence as he might have used to learn that these witnesses were possessed of this knowledge. It is, however, clear, by the showing, that the plaintiff had no reason to suppose that either of those witnesses possessed the knowledge disclosed by the showing made. The evidence is material to this issue, and goes to the merits of the controversy. It is not cumulative. It is reasonable to say that it ought to produce, at another trial, an opposite result. The judgment of the court is reversed and the case remanded, with directions to the lower court to award a new trial. All the judges concurring.

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are embodied in such special findings as have already been found by the jury.

(Syllabus by the Court.)

Error from district court, Dickinson county; James Humphrey, Judge.

Action by Lydia A. Wilson against James S. Smith, sheriff, and others. Verdict for plaintiff, and from an order denying a new trial defendants bring error. Affirmed.

Stambaugh & Hurd, for plaintiffs in error. J. H. Mahan and O. F. Mead, for defendant in error.

MCELROY, J. This was an action in replevin brought by Lydia A. Wilson, as plaintiff, against James S. Smith, sheriff, John Johntz, A. W. Rice, D. R. Gordon, T. H. Malott, and W. B. Giles, co-partners as Malott & Co., defendants, for the recovery of certain personal property, consisting of steers, cattle, hogs, horses, and farm implements, and for damages sustained by the plaintiff by reason of defendants' wrongful taking and detention thereof. The property in controversy had been seized by the sheriff upon an execution issued in a case in which said Malott & Co. were plaintiffs, and Thomas J. Wilson, the husband of Lydia A. Wilson, was defendant. Said property was taken as the property of Thomas J. Wilson. The said Lydia A. Wilson claimed to be the owner and entitled to the immediate possession of such property, and commenced this action for possession thereof and for damages for the detention. The answer of the defendants was a general denial. The case was tried upon the petition and answer. The trial was had by the court and jury. The jury returned a general verdict in favor of the plaintiff, and against the defendants, for the possession of the property, and assessed her damages at $103.36. Eighteen special findings were submitted at the request of the defend. ants. Motion for new trial denied. Plaintiffs in error bring the case here for review.

It appears from the record in this case that Lydia A. Wilson was married to Thomas J. Wilson, in Ohio, about 1870; that prior to her marriage her father gave her $500, and at his death left her an interest in a tract of land, which was afterwards sold for $1,500. After her marriage with Thomas J. Wilson, she loaned her husband these sums of money, and took two notes for the same, one for $500, and one for $1,500, bearing interest at 8 per cent., due and payable on demand. Afterwards the Wilsons removed from Ohio to the state of Kausas. The husband carried on the business of farming and stock raising, and in 1888 he was financially involved, and in August of that year Lydia A. Wilson demanded and procured a settlement of her claims. Her demands with interest, amounted at that time to something over $4,000; and, in payment thereof, the husband conveyed to her some real estate, and sold to her some personal property, including 100 head of steers. The plaintiffs in error contend that the property in controversy is the same property, or the proceeds of the

same, which Lydia A. Wilson procured from her husband, and that the sale made to her by her husband at that time was for the purpose of hindering, delaying, and defrauding the creditors of said Wilson, and that said property is therefore subject to said execution, as the property of said husband.

Complaint is made that the trial court erred in admitting the evidence of Thomas J. Wilson, husband of the plaintiff below, as to matters other than those with respect to which he claimed to be acting as her agent. The principal questions and answers complained of are preliminary questions, and could not have prejudiced the rights of plaintiffs in error. We believe, upon the whole examination of this witness, that the court committed no error in regard to the admission of his testimony.

Again, complaint is made that the trial court erred in refusing to admit evidence offered by the defendants below to prove admissions of Thomas J. Wilson with respect to his intentions and purposes in transferring his property to the plaintiff, his wife. This was in regard to the transfer or sale of property to his wife in August, 1888, and is founded upon the ruling of the trial court in rejecting the evidence of Samuel G. Reed as to a conversation had with Thomas J. Wilson at Kansas City, in the winter of 1888. During the examination of said witness, defendants below asked: "Now, I will ask you if you had a conversation there at Kansas City, with Wilson, about these Gilliland notes and his indebtedness upon them, and with respect to transfer of his property to his wife." To this question the plaintiff objected, and the objection was sustained. This forms the basis of the complaint in regard to the rejection of evidence by the trial court. The record shows that these steers were sold and delivered by Thomas J. Wilson to his wife, Lydia A. Wilson, in August, 1888, and that shortly after that time she sold and delivered the same to Reed & Baxter; that Reed & Baxter fed the same for several months, and shipped to Kansas City. Thomas J. Wilson was in Kansas City at the time these steers were sold by Reed & Baxter, during the winter of 1888. These statements that Wilson made tending to impeach the title of Mrs. Wilson were made months after he had parted with the title and possession of the property, and the court properly sustained the objection.

Our attention is called to the case of Kurtz v. Miller, 26 Kan. 317. We do not believe that this case is applicable to the case under consideration. In that case the court says: "A further matter for consideration is this: The court, over the objection of the plaintiff, admitted in evidence several letters written by her father. These letters were written about the same time of the sale, and were not directly in reference to it, but written to his various creditors, with explanations of his nonpayment and statement of his plans for the future. They were admitted, as ruled by the court, for the single purpose of showing the intent with

which the vendor acted in the sale. For this they were competent, and the court committed no error in admitting them. In order to vitiate this sale, it was necessary to show the vendor made it with fraudulent intent, and the fraudulent intent is disclosed by his words, as well as by his deeds." It will be seen that the grounds upon which the court admitted this evidence these letters-were that they were written about the time of the sale; that they were written so near to the time of the sale that they were a part of the res gestæ. But in the case under consideration the evidence sought to be introduced was declarations made by the vendor several months after he had sold and parted with the possession of the property. We do not think these declaraions were competent. The supreme court has said, in the case of Scheble v. Jordan, 30 Kan. 353, 1 Pac. 121: "The defendants were permitted to prove the declarations of Mrs. Robinson, made after she had parted with the title and delivered the possession of the property, and declarations making against the title she had attempted to convey. This is manifestly error. In Sumner v. Cook, 12 Kan. 165, we said with reference to a similar declaration: "It was admissible only as a declaration by the vendor of defendant's qualifying his title. Such a declaration, to become evidence, must have been made by that vendor while holding possession. A declaration before he receives, as well as one after he parted with, his interest, is admissible."

The fifth, sixth, ninth, eleventh, and twelfth assignments of error are based upon the special findings of fact as returned by the jury. In order to understand fully the errors here complained of, it will be necessary to set out a portion of the findings of fact as returned by the jury, to wit: "(1) Did Thomas J. Wilson transfer, convey, and mortgage substantially all of his property, both personal and real, that was not already mortgaged, and that was not exempt by law to the plaintiff? Ans. No. (2) In the year 1888, did Thomas J. Wilson owe the plaintiff a bona fide debt? Ans. Yes. (3) If you answer interrogatory No. 2 in the affirmative, how much did Thomas J. Wilson owe the plaintiff? Ans. The $1,500 and $500 notes, and int. from date of same. (4) What was the value of all the property transferred and conveyed, and the mortgage or mortgages given by Thomas J. Wilson to the plaintiff, at the time of such transfer, conveyance, or mortgage? Ans. We figure $4,000 transferred property. (5) Did Thomas J. Wilson transfer, convey, and mortgage his property to plaintiff, intending to hinder, delay, or defraud his creditors? Ans. No; we think not. (6) Did plaintiff take a transfer, conveyance, and mortgage from Thomas J. Wilson of and upon his property, intending to aid Thomas J. Wilson to hinder, delay, or defraud his other creditors? Ans. No. (7) Did plaintiff know that Thomas J. Wilson, at the time he transferred, conveyed, and mort

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gaged his property to her, intended by so doing to hinder, delay, or defraud his other creditors? Ans. No; we think not. (8) Were the circumstances surrounding the parties and the transaction at the time Thomas J. Wilson conveyed, transferred, and mortgaged his property to the plaintiff such as would put a prudent person upon inquiry as to Thomas J. Wilson's good faith in the transaction? Ans. No; we think not. (9) What was the value of the cattle and corn transferred by T. J. Wilson to his wife in August, 1888? Ans. Cattle, $2,000. Bill of sale does not show transfer of corn. Corn not transferred. (10) At the time T. J. Wilson made the transfer of his property to his wife, was it a part of his object to place his property beyond the reach of the holders of the Gilliland notes? Ans. We do not know. We are unable to determine. (11) If you answer the last question 'Yes,' state whether Lydia A. Wilson, at the time of the transfer, had knowledge of such object on the part of T. J. Wilson. Ans. We do not know. We are unable to determine. (12) Was the auction sale under the Dunlap chattel mortgage made for the purpose of transferring the title to the mortgaged property from T. J. Wilson to his wife? Ans. No."

Complaint is made that the first, fourth, and ninth special findings of fact by the jury are contrary to, and not supported by, the evidence. An examination of the evidence shows that these findings were based upon conflicting evidence, and the jury had competent evidence upon which to base the same. In regard to the ninth special finding, we do not see how the jury could have answered this question differently than they did. The plaintiffs in error, in their brief, say: "Some time between the 24th of August, the month of September, or October, that is to say, between the time when the cattle and land was transferred to Lydia A. Wilson by her husband and the sale to Reed & Baxter,-he transferred to her 108 acres of corn, worth $6 an acre; in all worth $1,080." Thus, the defendants in the court below contend that the sale of corn did not occur in August, 1888, and here they complain that the jury found that the corn was not sold in August, 1888. The jury have found what the defendants in the court below claimed, and we think the jury were correct in their findings.

In regard to the twelfth special finding by the jury, we have examined the evidence, and believe that the same is supported by the evidence in the case.

We now pass to the consideration of the tenth and eleventh special findings of fact. These special findings the jury failed to answer. They are as follows: "(10) At the time T. J. Wilson made the transfer of his property to his wife, was it a part of his object to place his property beyond the reach of the holders of the Gilliland notes? Ans We do not know. We are unable to deter

mine. (11) If you answer the last question 'Yes,' state whether Lydia A. Wilson, at the time of the transfer, had knowledge of such object on the part of T. J. Wilson. Ans. We do not know. We are unable to determine." It will be seen from an examination of these that No. 11 does not call for an answer unless No. 10 is answered "Yes." No. 10 having not been answered, the jury were not requested to answer No. 11. An examination of the special findings No. 5, 6, 7, and 8 shows that No. 10 and No. 11 had already been answered by the jury. It will be seen from an examination of these special findings that Nos. 10 and 11 were fully answered therein. It was therefore proper and right that the court should withdraw from the consideration of the jury Nos. 10 and 11, and a failure to require the jury to answer them amounted simply to the court's withdrawing them from the consideration of the jury. This, we think, was proper and right for the court to do. In the case of City of Wyandotte v. Gibson, 25 Kan. 243, our supreme court say upon this question: "We pass to the final matter. It is the only one that has given us any worry or trouble. Several questions were submitted to the jury besides the general verdict. They answered many of these questions, but some they failed to answer. Nevertheless, the court, over the objection of the defendant, received the verdict and the answers returned, without insisting upon answers to the questions not answered. Now, that a party has a right to have special questions submitted and answered has been repeatedly affirmed. Bent v. Philbrick, 16 Kan. 190; Morrow v. Commissioners, 21 Kan. 484; Railroad Co. v. Rice, 10 Kan. 426. But this right is not one which enables him to determine what are material facts, and what questions must be answered. He may present any number of questions for submission, as any number of instructions; but it is the duty of the court to determine what, in the one case, shall be submitted, as, in the other, what shall be given; and the court, by declining to compel the answer to any specific questions, withdraws them from the jury; and this the court may do if, in so doing, no material question is deprived of a specific answer. Sometimes the answer to one question renders unnecessary and improper an answer to another." Under this authority, we feel confidant that the court committed no error in refusing to compel the jury to answer Nos. 10 and 11. It therefore follows that the trial court committed no error in overruling the motion for a new trial. We have examined the record and evidence very carefully, and are satistied that the trial court committed no reversible error. The judgment will be aftirmed.

MAHAN, P. J., having been of counsel, not sitting. WELLS, J., concurring.

(5 Kan. App. 285) GOODMAN et al. v. MALCOM et al. (Court of Appeals of Kansas, Northern Department, C. D. March 22, 1897.) DEEDS DELIVERY-LIFE TENANCY-FORFEITURERIGHTS OF REMAINDER-MAN-RECEIVERS-HUSBAND AND WIFE-MARITAL RIGHTS-FRAUD-ESTOPPEL-LANDLORD AND TENANT-RECOVERY OF POSSESSION-HOMESTEAD-RES JUDICATA.

1. Causing a deed made by a father to his minor children to be recorded is a sufficient delivery in law to pass the title to the infant grantees, and a subsequent destruction of the deed by a third party will not divest the title thus conveyed or reinvest it in the original grantor. 2. The making of a conveyance purporting to convey the fee by a life tenant does not work a forfeiture of the life tenancy.

3. The conveyance of 200 acres of land by a father to his four minor children, and retaining 80 acres, in contemplation of a second marriage, and especially where all of the improvements are upon the 80 acres retained, is not in itself a fraud upon the marital right of a second wife.

4. The defendant in this suit could not deny the execution and delivery of the deed under which the plaintiffs assert title, and at the same time claim the benefit of the life estate created thereby to the husband.

5. If a tenant distinctly repudiates bis landlord's title, and asserts one in himself, the tenant's holding becomes adverse and wrongful, and entitles the landlord to an action to recover the land.

6. A homestead right may be impressed upon lands held as an estate for life, but such homestead right cannot be greater in extent than the title upon which it rests.

7. A remainder-man has a right to have a receiver appointed against the tenant for life, who permits the estate to be sold for taxes, to receive the rents and profits to redeem the land from such tax sale; and such right is not a mere matter of discretion of the court, and it is error to refuse it.

8. Under the issue joined in this case upon the pleadings the plaintiffs had the right to insist upon a determination by the court of the validity of the title under which they claimed the land, and it was error for the court to refuse to make such determination.

9. In an action to recover real estate for partition thereof, where the title set up is denied, and the making and delivery of a deed alleged in the petition is denied under oath, a judgment of dismissal generally is a bar to a subsequent action having the same object in view.

(Syllabus by the Court.)

Error from district court, Geary county; James Humphrey, Judge.

Action by Hulda Goodman and others against Henry Clyde Malcom and others to vacate a deed, forfeit a life estate, and obtain the appointment of a receiver, and to recover possession of the land, and for a partition thereof. From a judgment for defendants, plaintiffs bring error. Reversed.

Thos. Dever, for plaintiffs in error. Humphrey & Laundy, for defendants in er

ror.

MAHAN, P. J. The plaintiffs brought suit in the district court of Geary county, alleging: That their father, Jeremiah Malcom, conveyed to them, June 22, 1877, certain lots of land in Geary county, and to

their sister Jane Malcom, deceased, setting out a copy of the deed. That their sister Jane died in infancy, without issue, and unmarried, and that the father, Jeremiah Malcom, took the undivided one-fourth interest by descent upon the decease of the said Jane. The land so conveyed comprised about 198 acres. By the terms of the deed the said Jeremiah Malcom, who, at the time of the making thereof, was a widower, reserved a life estate in said land to himself, and afterwards intermarried with the defendant Luan Malcom. After said marriage the plaintiffs and said defendants Jeremiah and Luan Malcom mortgaged said land to the defendant Provident Loan & Trust Company to secure the sum of $1,200 borrowed by the said Jeremiah for his own use, and that on the 18th day of June, 1892, for the purpose of repaying said loan, the plaintiffs and their father, Jeremiah, and their stepmother, Luan, joined in a deed conveying to one Brown about 50 acres of said land, and that the money was used to discharge the indebtedness of the said Jeremiah. It was agreed between them that the land so conveyed should be the entire interest that Jeremiah inherited from his daughter Jane. That the father remained in possession of the land, receiving the rents and profits under said reservation of a life estate until the year 1893. That the rents and profits were of the value of $200 per annum. That about the month of June, 1893, Jeremiah made another deed, conveying all of said land in fee to the infant son of Jeremiah and Luan, to wit, Henry Clyde Malcom, and immediately upon the making of said conveyance abandoned the land, absconded, and his whereabouts became and are yet unknown to the plaintiffs. That in 1891 the land was sold for unpaid taxes of 1890, and that the taxes for 1891, 1892, and 1893, are yet unpaid, and that a tax deed would become due to the purchaser in September, 1894, after the beginning of this suit. That the amount of the delinquent taxes was $163.53. That, since the departure of the father, the defendant Luan Malcom has been in possession and receiving the rents and profits of the land. The plaintiffs claim in their petition that by reason of permitting said land to be forfeited for taxes, and by reason of the making of the conveyance to Henry Clyde Malcom of a fee-simple title to said land by reason of his abandonment of said land, the life estate had become forfeited and extinguished, and claim that the plaintiffs were the owners of the entire estate remaining in the land not theretofore conveyed by them jointly, to wit, about 148 acres, and that their estate had become absolute, and that they were entitled to the possession and the rent and profits of the land. In a second count of the petition they claim to be the legal and equitable owners of the land as tenants in common, and that they are entitled to the

immediate possession of the land, and that the defendants Luan Malcom and Henry Clyde Malcom are wrongfully and unlawfully in possession of the land, and unlawfully keep the plaintiffs out of the possession. They pray, first, for possession; that the Provident Loan & Trust Company may be required to establish and set up such right as it may have in the property; that the deed executed by Jeremiah to the infant Henry Clyde be vacated, and set aside, so far as it affects the land in controversy; that the life estate of Jeremiah be decreed to be forfeited and extinguished; that the land be partitioned among the parties as their respective interests may appear, and that the defendants should, if they be found to have no interest therein, be barred from asserting any claim thereto; that a receiver be appointed during the pendency of the action, to take charge of the land, collect the rents, and redeem the land from tax sale, and preserve the estate for the benefit of the parties interested.

Luan Malcom, answering the petition, denies that the deed set out in the first count of the petition was ever executed or delivered by the said Jeremiah Malcom. But as to the second cause of action she denies each and every allegation contained therein except as expressly admitted thereafter; avers that she was the wife of the defendant Jeremiah prior to the 20th day of June, 1893, and has ever since been such wife; admits that the taxes were not paid since the year 1890; that the premises were sold for taxes in the month of September, 1891; that a tax deed will be due in the month of September. 1894, unless the premises are redeemed. She says she has been making arrangements to redeem the land, and believes that she will be able to procure the funds for such purpose before September. She alleges that the premises are the homestead of herself and the said Jeremiah, and were prior to the 20th day of June, 1893, and have been ever since, and that they have been occupied by the family of the said Jeremiah long prior to the 20th day of June, 1893; that when Jeremiah departed he left her in possession of the premises, with direction and authority to keep and manage them for the benefit of herself and family; that she now retains possession by virtue of being the wife of the said Jeremiah, and that Jeremiah is the owner in fee simple. For a third defense she alleges that she was married to Jeremiah on the 22d day of June, 1877; that prior to and at the time of the marriage Jeremiah promised her, as an inducement to enter into the marriage relation with him, that all of the real estate then owned by him should thereafter be owned and held by her and the said Jeremiah in common, and that she married him upon this consideration; that on said 22d day of January, disregarding his promise, he made this deed to the plaintiffs,

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