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Kan.) ATCHISON, T. & S. F. R. CO. y. SCHWARZSCHILD & SULZBERGER CO.

591

alone against S. A. Steele. Clay B. Steele W. M. Whitelaw and F. S. Whitelaw, for was not a party to the actions, and it was not plaintiff in error. H. Whiteside and E. A. claimed therein that he either owned the Austin, for defendant in error. goods or owed the debts. He was not a party to the attachment proceedings, nor was he a PER CURIAM. We have reached the conparty in this controversy between the mort- clusion that the record does not present the gage and the attaching creditors. His fa

question mainly relied on by plaintiff in erther, J. W. Steele, who first instituted the ror. The amended petition alleges the conbusiness at Paola, and his mother, S. A. solidation of the Hutchinson, Oklahoma & Steele, in whose name the business was con- Gulf Railway Company with the Hutchinson ducted after the death of her husband, never & Southern in 1891. On the hearing of the lived at Parsons, and, so far as the record motion to revive, it was admitted on the part discloses, never had any connection, either di- of the railway company that it was a correctly or indirectly, with the business of Clayporation formed and organized as alleged in B. Steele at Parsons. Clay B. Steele states the plaintiff's petition. The exact date of that he acted as the agent of his mother in the consolidation is nowhere shown. We do the management of her business; and the at- not regard the statement of the judge in the taching creditors, in their business relations charge to the jury that the consolidation took with S. A. Steele, and in the litigation which place in 1890 as controlling. The question of they afterwards conducted, treated him also revivor had already been passed on by the as agent of S. A. Steele, rather than as pro- court, and was not a subject for the consideraprietor. The present claim that he was an tion of the jury. Error is not to be presumed owner is altogether inconsistent with their in the proceedings of the court, and the recformer claims, and with the pleadings and ord fails to affirmatively show that more than proceedings in this controversy. Upon no one year elapsed after the consolidation betheory was the evidence admissible, and the fore substitution of the Hutchinson & Southdragging in of the financial failures of Clay ern Railway Company in place of the HutchinB. Steele and his wife, the difficulties they son, Oklahoma & Gulf. The instruction on had with their creditors, and their personal which the second claim of error is predicated transactions at Parsons nine or ten years be- correctly states the law. Berry V. Railroad fore plaintiff's mortgages were given, was Co., 52 Kan. 759, 34 Pac. 805. There was prejudicial error.

abundant evidence to support a verdict for S. A. Steele had a right to prefer creditors, the amount awarded by the jury, and we find and under the law could pay or provide for no ground for interference in the award. The the payment of any bona fide claim due to Hat- judgment is affirmed. tie Steeie. There is considerable testimony tending to show that her claim was an honest one, and, if that proves to be correct, the

(58 Kan. 90) plaintiff committed no wrong in providing the

ATCHISON, T. & S. F. R. CO. means for payment, and at the same time se

SCHWARZSCHILD & SULZcuring the payment of what was actually due

BERGER CO. to him. The honesty of the claims and in-. tentions of the parties are matters for the de

(Supreme Court of Kansas. April 10, 1897.) termination of the jury, and, in view of the LEVY OF ATTACHMENTS - PRIORITIES PREFERconflicting testimony and the admission of that which was incompetent and prejudicial,

1. It is the duty of the sheriff to levy orders

of attachment upon the debtor's property in we think another trial of the case should be

the order in which he receives them, and, if a had. The judgment will, therefore, be re- levy under a junior order is first made, it will versed, and the cause remanded for a new not have preference over a senior order, but trial. All the justices concurring.

the levy will inure to the benefit of the creditors whose orders were first placed in the officer's hands,

2. A levy of the senior attachment upon oth(58 Kan. 813)

er property which was mortgaged to the extent

of its value will not deprive the senior creditor HUTCHINSON & S. R. CO. v. FAIR.

of the preference which the statute awards him. (Supreme Court of Kansas. April 10, 1897.) (Syllabus by the Court.) RAILROAD COMPANIES CONSOLIDATION - LIABILI- Error from Wyandotte county court; Henry Ties or CoxsOLIDATED COMPANY.

L. Alden, Judge. Where railroad companies are consolidat. ed under the statute, the consolidated company

Actions by the Schwarzschild & Sulzberger is answerable for torts of the old companies, in

Company against Frank E. Tyler and the the absence of evidence or stipulation to the Atchison, Topeka & Santa Fé Railroad Comcontrary,

pany against the same party. Levies of atError from district court, Reno county; F.

tachment were made. From an order distribL. Martin, Judge.

uting the fund realized, the railroad company Action by Thomas Fair against the Hutchin

brings error. Affirmed. son & Southern Railroad Company. Judg- A. A. Hurd and Mills, Smith & Hobbs, for ment for plaintiff. Defendant brings error. plaintiff in error. Miller & Morris, for defendAffirmed.

ants in error.

ENCES.

JOHNSTON, J. Involved in this case is 43 Kan. 436, 23 Pac. 598, practically deterthe question: Which one of two attaching mines the questions in this case. It was held creditors shall have the preference in the that, where several orders are issued against distribution of a fund derived from the sale the same defendant, and executed, the priority of attached property? On April 21, 1893, of levy is determined by the time of reception, the Schwarzschild & Sulzberger Company and not by the order of execution. The stat brought an action against Frank E. Tyler, ute prescribing the order of execution is held and obtained an order of attachment. The to be mandatory upon the officer, and that, it order was placed in the hands of the sheriff the sheriff disobeys the law, and attempts by at 6 o'clock p. m. of that day, who, 40 min- the levy of a later order to give it priority utes later, levied upon the personal property over a former one, the injured party is not of Tyler, appraised at $19,538.30. It was soon compelled to look to the sheriff for a remedy found that the property levied upon was mort- by amercement or other proceeding, but may gaged to secure a debt of $50,000. On the apply to the court, and obtain the preference next morning, at 5:40 o'clock, a levy was which the law gives to him. As the officer made under that order on real estate of the has no discretion as to the execution, the levy appraised value of $12,000, but which was of one of several orders in his possession on afterwards found to be covered by a mort- the debtor's property will be deemed to inure gage of $50,000. Three orders of attachment to the benefit of the attaching creditors in the were issued in other cases, and placed in the order of their priority. An attachment does hands of the sheriff, after which, and on not become a lien when it is issued, but when April 22, 1893, the Atchison, Topeka & Santa several are issued against the defendant, and Fé Railroad Company instituted an action placed in the hands of the sheriff, as in the against Tyler, and caused an attachment to present case, and an actual levy is made, a issue, which was placed in the hands of the lien then attaches as the law provides. The sheriff. At that time the sheriff had in his officer cannot by a declaration of levy under possession four orders of attachment pre- a junior attachment change the rule of the viously issued against the property of Tyler. law, or give priority over a senior order; and On the evening of the 22d of April, at the the court may require a return of the officer request of the railroad company, the attach- to be corrected, and may give the benefit to ment issued at its instance was levied upon the creditor whose order of attachment was the contents of four cars which were in the first delivered to the sheriff. The fact that yards of the company, and which it pointed the order obtained by the Schwarzschild & out to the sheriff, who, in his return, declar- Sulzberger Company was first levied upon ed that by virtue of that order he levied upon other property of considerable value will not the property. An inventory of the property affect the determination. That which was was made, and its value was appraised at levied upon appears to have been mortgaged $4,607.32. On the morning of April 24th, at to secure indebtedness which exceeded the the request of the Schwarzschild & Sulzber- appraised value of the property, and from ger Company, the sheriff declared a levy upon the return it appears that when the levies the same property. The property, being of a were made the officer had no actual notice or perishable character, was ordered by the knowledge of the existence of the mortgages. court to be sold, and was sold for $2,292, and If there was nothing left for seizure, or if the the controversy arises on the distribution of property levied upon was insufficient to satisthis fund. Upon the evidence the court found fy the claims of the senior creditors, they will that the Schwarzschild & Sulzberger Com- be deemed to be in the same position as if no pany was entitled to a preference, of which levy had been made, and to the extent of the ruling the railroad company complains.

deficiency had a right to demand of the junior Under our Code, orders of attachment are attaching creditors the preference which the entitled to priority of service in the order in statute awards them. We think the court which they are received. Civ. Code, $ 196. ruled correctly in fixing the priorities and in It is also provided that “different attachments distributing the proceeds. Larabee v. Parks, of the same property may be made by the supra; Gillig v. George C. Treadwell Co. (N. same officer, and one inventory and appraise- Y. App.) 42 N. E. 590; Pach v. Gilbert, 124 ment shall be sufficient, and it shall not be N. Y. 613, 27 N. E. 391; Callahan v. Hallonecessary to return the same with more than well, 2 Bay, 8. The judgment of the district one order.” Civ. Code, $ 203. It therefore court will be affirmed. All the justices conappears that when several orders against the curring. same defendant are placed in the hands of an officer for service, the statute, rather than the

(58 Kan. 86) discretion of the officer, fixes the priorities

GERMAN INS. CO. OF FREEPORT, ILL., and determines the rights of the claimants.

v. FIRST NAT. BANK OF BOON. The officer cannot, in such a case, by a mere

VILLE. N. Y. declaration, or the writing of a return upon a junior order and a return of an inventory and

(Supreme Court of Kansas. April 10, 1897.)

FOREIGN INSURANCE COMPANIES-Service Op PROappraisement therewith, give it priority over

CESS-JURISDICTION. an earlier order which he then holds in his

1. A foreign insurance company which mainpossession. The case of Larabee v. Parks, tains an agency in this state, in charge of agents

com

having general authority to receive premiums, agents. Section 53 of the Code provides: fill out, countersign, and issue policies of in

"If said defendant be a foreign insurance surance, furnished them by the company for that purpose, is subject to the jurisdiction of the

company, the action may be brought in any courts of this state, and service on the chief of- county where the cause, or some part thereficer of the agency is service on the company. of, arose.” It is urged that suits against a 2. Actions against foreign insurance

foreign insurance company can only be panies maintaining agencies in this state are not limited to suits on policies of insurance, but the

maintained on insurance contracts under courts have jurisdiction to enforce other con- these provisions of the statute; that both the tracts as well.

parties to this action are foreign corpora3. In an action against a foreign insurance company to charge it on its liability as a stock

tions; that the plaintiff's cause of action is holder in an insolvent domestic corporation, not based on any contract of insurance enservice of summons may be made on the chief tered into in this state; and that our courts officer of an agency in the county where the action is brought, and jurisdiction thereby ob

can acquire no jurisdiction over the defendtained to render a personal judgment against

ant without service of process on one of its the defendant,

principal officers. The old theory that a cor(Syllabus by the Court.)

poration resides only in the state of its creError from district court, Sha nee county;

ation no longer obtains. It is now held that Z. T. Hazen, Judge.

a corporation is present in any place where

it transacts its business, for the purpose of Action by the First National Bank of Boonville, N. Y., against the German Insurance

conferring jurisdiction on the courts, and Company of Freeport, Ill. From a judgment

that service of process may be made on its for plaintiff, defendant brings error.

Af

agents through whom, as its instruments, its

business is transacted. firmed.

The intangible cor

poration is held to be present wherever its Jetmore & Jetmore, for plaintiff in error. business is carried on, whether it be in the Rossington, Smith & Dallas and Clifford His- state where its charter was obtained, or in ted, for defendant in error.

any other sovereignty. St. Clair v. Cox, 106

U. S. 350, 1 Sup. Ct. 354. Groll & McKitALLEN, J. The First National Bank of trick represented the insurance company, as Boonville, N. Y., obtained a judgment in the its agents, at Topeka, with authority "to recircuit court of Shawnee county against the ceive applications for insurance, moneys for Western Investment Loan & Trust Company, premiums, to countersign, issue, and renew a Kansas corporation, for $2,300. Execution policies of insurance signed by the president, having been issued on the judgment, and re- and attested by the secretary.” They were turned unsatisfied, this action was brought furnished blank policies, signed by the presagainst the German Insurance Company of ident and secretary, which they were authorizFreeport, Ill., to charge it as a stockholder ed to fill out, to receive the premiums thereon, of the loan and trust company.

It was al- and, when countersigned and delivered, they leged in the petition that the insurance com- became valid and binding on the company. pany had duly subscribed for 50 shares of Such an agency, under the prior decisions of stock, of the par value of $50 each, on which this court, is a general agency. Insurance it had paid $2,000; that there remained un- Co. v. McLanathan, 11 Kan.'533; Insurance paid $500 on the subscription; and that the Co. v. Hogue, 41 Kan. 524, 21 Pac. 641; Indefendant was liable in the further sum of surance Co. v. Munger, 49 Kan. 178, 30 Pac. $2,500 under its statutory liability. A sum- 120. Unquestionably, the insurance compamons was issued and served on Joseph Groll ny was transacting business in Kansas, and and J. S. McKittrick, partners as Groll & the persons served were in charge of its of. McKittrick, managing agents of the defend- fice, and were the chief officers of the agenant, and chief officers of its agency at To- су. . It is sought to draw a distinction bepeka. The defendant appeared specially, tween actions on policies of insurance and and moved to set aside the summons and on other contracts; and, as a basis for the service thereof on various grounds. The mo- distinction, section 53, of the Code of Civil tion was overruled. The defendant made no Procedure, which authorizes an action to be further appearance in the case, and judg. | brought in any county where the cause of ment was thereupon rendered in favor of the action arose, and section 41 of chapter 50a of plaintiff for $2,500 and costs.

the General Statutes of 1889, which provides It is contended that the court had no ju- for service of process on the superintendent risdiction over the defendant, and that the of insurance, are cited. In the case of Inservice on Groll & McKittrick was void. Sec- surance Co. v. Mortimer, 52 Kan, 784, 35 Pac. tion 69 of the Code of Civil Procedure reads: 807, it was held that the different methods "Where the defendant is an incorporated in- of service on insurance companies are cumusurance company, and the action is brought | lative, and that service may be made on the in a county in which there is an agency chief officer of the agency in an action on a thereof, the service may be upon the chief policy of insurance. officer of such agency.” It is contended that The contention that the courts of this state Groll & McKittrick were not chief officers are limited in jurisdiction to actions on poliof an agency, within the meaning of the cies of insurance is not sound. Issuing such statute, but that they were mere soliciting policies and paying losses thereon is by no means the only business an insurance com- , the agent of the mortgage owner, for an expany may lawfully transact. It may law- tension of time of payment. Further time fully invest its money, employ agents, and was granted upon the condition of Steele excontract debts and obligations of various ecuting a deed of the land to Bowman as addikinds. There is certainly no valid reason tional security. Mr. Steele not having his Why our courts have less power to enforce deed from Mr. Teter at hand to record and to the payment of one obligation than another. follow with his own conveyance, procured Mr. Nor is it essential that the contract sought to Teter to execute a new deed to Mr. Bowman as be enforced should have been entered into in grantee, upon doing which the time of paythis state. The company resided here, as irent of the mortgage was extended. The deed well as in the state of Illinois, for the pur- from Teter to Bowman was recorded in a few pose of transacting the business for which it days after its execution. The making of an inwas created, and is as much subject to our strument of defeasance by Bowman to Steele laws and the jurisdiction of our courts as was agreed upon, but was never executed, inany other corporation carrying on business stead of doing which Mr. Bowman wrote Mr. here. The judgment is affirmed.

48 P.438

Steele as follows: "Topeka, Kansas, June 26, 1889. R. B. Steele, City-Dear Sir: After

writing up the memorandum, as we had talked (58 Kan. 56)

over when you were in, and talking it over DEIDERICK V. ALEXANDER.

with our attorney, we find that it would put (Supreme Court of Kansas. April 10, 1897.) ourselves in a very awkward position by acSTATUTE OF FRAUNS-LAND CONTRACTS-ESTOPPEL cepting this deed, and giving the proposed 'so DENY TITLE.

agreement; this last transaction being, in ef1. A contract entered into between a person fect, a new mortgage, rather than a deed, in desiring to purchase land and one who claims ownership of the same, which recites that title

case you should put the agreement of record, to such land is in a third person, and in which as you would have a right to do. Our attorcontract such claimant does not assume to act ney advises us that we have no written agreeas agent for such third person, but agrees only

ment; but we will have a verbal understandto procure from him a deed to such land, is not, under the statute of frauds, a contract of sale

ing with you that we will hold this property, by such third person, even though he knew of giving you an opportunity to sell it, and, and assented to the making of the same. should we find an opportunity to sell, giving

2. One who founds bis right to land upon an instrument which admits title in a certain per

you the benefit of it, until January 1st next, son, and which does not purport to be executed

but would not promise longer than that, as we by or on behalf of such person, is estopped in would prefer to return you the deed, and oban action of ejectment brought by a grantee of tain an absolute title under foreclosure, in such person to dispute his title and right of possession.

case payment is not made. Yours, truly, T. E. (Syllabus by the Court.)

Bowman & Co.” About 20 months thereafter,

Mr. Steele paid $130 to Mr. Bowman as inError from district court, Waba unsee coun

terest on the mortgage, and received from him ty; William Thomson, Judge.

the following letter receipt: “Topeka, Kansas, Ejectment by Adam George Alexander

March 4, 1891. R. B. Steele, Topeka, Kanagainst John P. Deiderick. From a judgment

sas-Dear Sir: We acknowledge receipt from for plaintiff, defendant brings error. Atlirm

you of note for $100 due in 10 months, signed ed.

by Robert and John Morrison; note for $82.50, A. H. Case and J. B. Barnes, for plaintiff in due December 1, 1890, signed by David A.

Wheeler & Switzer, for defendant in Boal; note for $120.00, due March 1, 1992, error.

signed by Frank Main; note for $150.00, due

December 1, 1890, signed by R. M. North. DOSTER, C. J. This action is ejectment, These various amounts will be credited to brought by the owner of the legal title against your account (Teter loan) as paid in. Yours, the owner of the equitable title. One Amos truly, T. E. Bowman & Co." Both Mr. Teter owned the land, and mortgagerl it to John Steele and Mr. Bowman were desirous of makW. Clark, who sold and assigned such mort- ing a sale of the land, and each was endeavorgage to T. E. Bowman, who in turn sold and ing to find a purchaser. December 5, 1892, assigned it to persons in the East, becoming Mr. Steele arranged the terms of a sale with their agent for its collection. Afterwards Mr. the plaintiff in error, and in the forenoon of Teter conveyed the land to R. B. Steele, who such day so informed Mr. Bowman, who thereassumed and agreed to pay the mortgage. Mr. upon gave his assent to the same, upon doing Steele took possession of the land, and claims which Steele and the plaintiff in error exto have since been continuously in its pos- ecuted between themselves the following consession until he gave the same up to the plain- tract: "Topeka, Kansas, December 5, 1892. tiff in error. Mr. Teter's deed to Mr. Steele Agreement betwee R. B. Steele, party of the was never recorded, and it is not clear from first part, and John P. Deiderick, party of the the evidence whether it was ever delivered, second part. Steele agrees to procure for but it appears at one time to have been in the Deiderick a good and sufficient warranty deed possession of a man named Reed. Mr. Steele, for the north half of the southeast quarter of being unable to pay interest on the mortgage section 25, town 11, range 12, in Wabaunsee as it matured, negotiated with Mr. Bowman, county, Kansas. Deiderick agrees to pay for

error.

the above land the sum of $2,030.00, in pay- selves. In that instrument Mr. Steele does ments as follows: To T. E. Bowman mort. not profess to be the owner of the land, but gage, $1,525.00, in payments as follows: $325 | explicitly admits such ownership to be in Mr. at end of second year, $300.00 at end of third Bowman. Both he and the plaintiff in error year, $400.00 at the end of fourth year, and expressly declare that, as between them, "it $300.00 at the end of fifth year, interest on is understood that title to said real estate is mortgage and notes to begin March 1, 1893; now in T. E. Bowman.” Mr. Steele, in such also to T. E. Bowman $350.00 cash; balance instrument, does not profess to be even Mr. to be paid to R. B. Steele in stock, as per Bowman's agent for sale, but undertakes only agreement,-that is, two two year old steers "to procure for Deiderick a good and sufficient and one yearling steer at $20 each, thiee two- warranty deed." In whomsoever the title to year old heifers at $15, two cows at $15 each, this land may have really existed, the one and two calves at $10 each; stock to be kept person, Mr. Steele, who claims it to be in him. by Deiderick until March 1, 1893, without ex- sell, likewise declares that such is not the pense to first party. It is understood that ti- case, but that it is in Mr. Bowman; and, whattle to said real estate is now in T. E. Bow- ever authority to sell the same Mr. Steele may man. Received on above contract $20.00 to have received from Mr. Bowman, he does not apply on above $350.00 cash, to T. E. Bow- undertake to exercise for him or on his behall, man. Interest on all back payments at 7 per but alone undertakes, as his own personal cent. [Signed] R. B. Steele. John Deid- agreement, to procure a deed for the land. erick.” Some time during the same day, Mr. Whatever the plaintiff in error may have been Bowman sold the land to the defendant in er- led to believe as to the person in whom the ror. In the afternoon of such day, after the title to this land was vested, all his riguts sale to the defendant in error, and after the thereto are based upon a contract in which he execution of the above-quoted agreement, Mr. expressly admits title in Mr. Bowman; and, Steele went to Mr. Bowman's office, and in whatever he may have been led to believe as the presence of Mr. Alexander again stated the to Mr. Steele's agency for Mr. Bowman, he fact of the sale made by him, and afterwards, takes no contract of sale from such agent, but but probably not until the succeeding day, takes only such agent's personal covenant to paid to Mr. Bowman $20 of the cash due him procure for him a deed to the land. Whaton such sale. At this time the deed from ever the previous conversations, understandBowman to Alexander had not been delivered, ings, and oral agreements between Steele au and, when delivered, it was in the form of a Bowman were, any and all such matters have conveyance of Bowman's interest only, and a now been merged into a written instrunet, warranty of title to said interest without spec- upon which plaintiff in error founds his rights, ifying the same, being therefore quite like a That instrument not only gives him his rights, quitclaim conveyance. The plaintiff in error at but circumscribes and limits the same as well, once took possession of the · land, which for and, under the settled legal principle, is the some time before had been occupied by a Mr. exclusive evidence of such rights. He can North, but whether as a tenant of Steele or base thereon no action, either for specific perBowman, or both jointly, is in dispute. The formance or otherwise, against Bowmap, be:bove are the material facts of the case, and cause, under the prohibitive terms of section upon the same the questions of legal right to 6 of the statute of frauds, "no action shall be the land and its possession arise. Upon the brought whereby to charge a party upon any part of the plaintiff in error it is claimed that contract for the sale of lands, tenements or the title to the land was in Mr. Steele, by vir- hereditaments, or any interest in or concerning tue of his purchase from Mr. Teter, and the them, unless the agreement upon which such unrecorded deed in the possession of Mr. action shall be brought, or some memorandum Reed; that the deed from Teter to Bowman or note thereof shall be in writing, and signed was intended for purposes of security collat- by the party to be charged therewith, or some eral to the mortgage, and not for the purpose other person thereunto by him or her lawfully of passing title, and that Mr. Bowman there. authorized." He can base no defense upon fore had no title which he could convey to this instrument to an action against himself the defendant in error. As between Steele by Mr. Bowman or his grantee because of the and Bowman, this is doubtless true, but it is further prohibitive terms of section 5 of the nowhere shown that Mr. Alexander knew that statute of frauds, which declares that: “No such was the case, or had knowledge of any leases, estates, or interests, of, in or out of fact which would charge him with notice of lands, exceeding one year in duration, shall the same, unless it be that his deed of special at any time hereafter be assigned or granted, sale and warranty and Mr. North's possession unless it be by deed or note in writing, signwere sufficient to put him upon inquiry. The ed by the party so assigning or granting the case, however, is not determinable upon the same, or their agents thereunto lawfully auquestion whether Mr. Steele was in fact the thorized by writing, or by act and operation legal owner, or Mr. Bowman the legal owner of law." An elaborate discussion of the quesor a mere mortgagee, or trustee for the mort- tion whether Mr. North, the occupant of the gagee. It is determinable upon the instru- land, was the tenant of Mr. Steele or Mr. ment of December 5th, which Mr. Steele and Bowman, has been made, and the law of the plaintiff in error executed between them- notice from possession of lands has been much

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