action, there would have been some foundation for such a belief, but as he was not, the element of mutuality that is characteristic of estoppel is wanting.

Other allegations of the petition furnish a very good reason why Halsey should direct this quarter of land to be sold to satisfy the balance of the Dennistown judgment. It is stated that Halsey had a note for $18,000 against Mills, secured by other real estate owned by Mills in Leavenworth county; that after Mills' death this mortgage was assigned by Halsey to Dennistown, and an action for the foreclosure commenced in the district court of Leavenworth county. The mortgaged premises did not sell for a sufficient sum to satisfy the judgment, an execution was issued for the balance, and the quarter section of land sold. This petition does not allege that the assignment of Halsey to Dennistown was only colorable, and made with the intent and for the purpose of having this land sold, and thus depriving the plaintiff in error, Van Vliet, from subjecting it to the payment of his judgment; but does allege that there was an assignment of the note and mortgage to Dennistown. In the absence of any claim to the contrary, it must be assumed that the assignment was in good faith, and for a valuable consideration, and that, to prevent recourse on him, Halsey could have this land sold for the benefit of Dennistown, to pay him in full, and to relieve Halsey of any liability on the assignment.

This land was bid off to Dennistown, the sale confirmed, and a sheriff's deed made to him on the fifth day of January, 1875; and at that time, by the decision of this court, the plaintiff in error had no lien on the land, and his judgment had not been revived against the administrator of Mills. Under the state of facts alleged in the petition, showing that the title to this land had passed to and been vested in Dennistown, with no allegations respecting him as participating in any attempt to deprive the plaintiff in error from enforcing his judgment by the sale of this land, with his heirs at law parties to this action, and made so probably for this purpose, and yet not charged through their ancestors with notice or knowledge, how could the court grant the prayer for relief? The plaintiff in error also alleges that Halsey made a general assignment for the benefit of his creditors, on the fifth day of March, 1876, and that he filed an inventory under oath of his property, and a schedule of all debts to him, verified by his oath. There was no mention of this land in his inventory, and no reference to the debt Mills owed him in the schedule. Accepting the other facts recited in the petition as true, being admitted by the demurrer, they furnish a complete answer to all allegations. They recite the assignment of the note and mortgage for $18,000 by Halsey to Dennistown long before this assignment for the benefit of the creditors is made, and this is all the indebtedness by Mills to Halsey that is described. They recite the sale of this particular quarter section of land on the Dennistown judgment by the direction and consent of Halsey; and thus the petition shows that the statement made by Halsey, both in his inventory and schedule, was in exact accordance with the facts recited.

It is claimed in the brief of counsel for plaintiff in error that the action is one to set aside a fraudulent conveyance made by Mills to Halsey of the land described; but there is not a single allegation in the petition that authorizes even an inference that this was the intention of the pleader. On the contrary, the petition distinctly avers that the conveyance was made for the consideration and on the promise of Robert Halsey to pay the incumbrances and liens on the lands of Mills in Leavenworth county.

If we should adopt the theory that the sale to Mills by Halsey, and the assignment of the mortgage by Halsey to Dennistown, the foreclosure by Dennistown, and the subsequent sale of this land to pay the unsatisfied balance of the judgment in the foreclosure action, were but parts and parcels of a general plan to cover the property of Mills for his benefit, or the benefit of

his heirs, there is no such statement of facts recited as would authorize a judgment to that effect.

There are many different views that can be taken of the various statements in this petition, and much speculation as to what was intended; but it does not state a cause of action against any one or all the defendants in error, but, on the contrary, it does state that the land that is sought to be subjected to the payment of the demand of the plaintiff in error Van Vliet, against the estate of Madison Mills, has been sold at a judicial sale long before the commencement of this action.

We do not doubt the power of a court of equity to reach the property of a debtor, justly applicable to the payment of his debts, however elaborately it may be covered over with conveyances, decrees, or judicial sales, all made and procured to avoid payment of such demands; but the exercise of such a power must first be invoked by the statement of such facts as will constitute a cause of action against all persons who are parties to such a transaction. There is no view to be taken of this petition wherein it states a cause of action, and with this conclusion there is no necessity for a discussion of other questions raised on the argument. We see no error in the ruling in the district court of Leavenworth county, sustaining the demurrer, and therefore recommend that it be affirmed.

BY THE COURT. It is so ordered; all the justices concurring.

(37 Kan. 75)

RANSOM V. GETTY.

(Supreme Court of Kansas. July 9, 1887.)

1. BAILMENT-LIABILITY OF BAILEE.

Where a bill of particulars alleges that defendant contracted to take good care of a horse and colt of plaintiff intrusted to his keeping, it will be held that such pleading states a contract for only ordinary care; and, where said bill of particu lars further states that said mare and colt sickened and died for want of proper care and attention, it is error to admit evidence, over objection of defendant, of a contract for special and extra care of said mare and colt. It is also error for the court to instruct the jury under such pleadings and evidence, over the objection of the defendant, what the duty of the defendant would have been, if they should find that special and extra care had been contracted for.

2. SAME.

Where an instruction is given by the court not applicable to the evidence introduced, and contains an inference that defendant has been guilty of fraud in his contract with plaintiff, which inference is wholly unsupported by evidence, such instruction is misleading and erroneous.

(Syllabus by Holt, C.)

Error from district court, Ellsworth county,

Garver & Bond, for plaintiff in error. Lloyd & Evans, for defendant in

error.

HOLT, C. This case was first tried before a justice of the peace and a jury, and a verdict and judgment for plaintiff in error for $66. Defendant in error (plaintiff below) appealed to the Ellsworth county district court, where the case was again tried to a jury at the October term, 1885. Verdict for plaintiff for $80, and judgment thereon. Motion for a new trial overruled. The defendant below is plaintiff in error. This action grew out of the following facts: In the year 1884 plaintiff placed his mare and colt in the possession of the defendant, for the purpose of breeding the mare to a horse of the defendant. About the first of August, the same year, the mare and colt were taken sick, and both died while in the possession of the defendant. Plaintiff claims that they died for want of proper care and attention, and brought suit against the defendant. The defendant answers by a general denial, and also asks judgment against the plaintiff for the care and keeping

of the mare and colt. Plaintiff makes four assignments of error. consider only a part of them.

We shall

The plaintiff, in his bill of particulars, in which his cause of action was formally stated at some length, claims that the contract between himself and defendant was that he should take good care of said mare and colt, and return them to plaintiff in good condition. He further alleges that defendant neglected said mare and colt, and by reason of such neglect they sickened and died. Testimony was introduced, over the objection of the defendant, showing that plaintiff stipulated for special and extra care of said mare and colt on the part of the defendant. The instructions to the jury by the court were upon the theory that the defendant had introduced evidence showing that he had contracted to give more than ordinary care to the animals while in his possession. The findings of fact by the jury also seemed to follow the same theory. The first question answered was: "Did the defendant agree to take more than ordinary care of the mare and colt?" "Answer. Yes." The second question was: "If above is answered yes, state what care was contracted for?" "Answer. Good care." While we believe that ordinary care is good care, and a claim in the bill of particulars that the defendant contracted to give good care to the mare and colt of the plaintiff was simply an allegation that it was a contract for ordinary care, yet it is evident from the questions answered that the jury, at least, made a distinction between ordinary care and good care. They very naturally made that mistake under the instructions of the court, and the manner of introducing the evidence, a portion of which was offered to show that a greater degree of care than ordinary care was agreed upon between the parties in the keeping of the mare. Such evidence ought not to have been admitted under the pleadings. There were a number of instructions given on the theory that more than ordinary care was contracted for. They were erroneous.

The defendant also complains of special instruction number 4 given by the court to the jury. The instruction is as follows: "Should you believe from the evidence that before the mare and colt were taken by defendant, that there was distemper or other disease among the horses or colts of the defendant, and that such fact was not communicated to the plaintiff, and that, by reason of such disease being communicated to the colt, it became sick, and by reason of such sickness it died, and also caused the death of the mother by its not sucking the mother, and that disease was of a dangerous and contagious kind, then the court instructs you that it was a fraud for the defendant not to inform the plaintiff of such facts, if the same were known to defendant, or if the defendant, by the exercise of reasonable diligence, would have known the same; and the failure of the defendant so to do would be negligence, if you find that from such failure the plaintiff has sustained a loss." We believe that instruction is misleading, and not applicable to the facts in the case. There was nothing either in the pleadings in this action, nor the evidence as it appears in the record brought here, that would suggest an instruction relating to fraud, much less justify or warrant such a one; and taken in connection with the other part of the instruction, and the testimony bearing upon the question of the distemper among the horses of the defendant, we think it was erroneous. The contract was made by plaintiff and defendant in June, and the horses were taken there almost immediately thereafter. The plaintiff states that the horses and colts of the defendant had had the distemper, the disease of which the colt died, in the spring previous, while the defendant testified that the disease had been among his colts the fall and winter before. There is no testimony showing that for a considerable length of time prior thereto there had been any distemper at all among the horses of defendant. There is nothing in the evidence in this case that would indicate that it was the duty of defendant to have said anything about the distemper that had been among his colts some time previous, much less could

any fraud have possibly been inferred from his silence on that subject. There is no allegation in the bill of particulars that the mare died from the distemper, and the fact that she did die because the colt was sick with the distemper was not the necessary and natural result of such sickness of the colt. The plaintiff, as a matter of fact, does allege that the mare died "wholly by reason of the carelessness and neglect of said defendant." The mare died, as the evidence introduced tends to show, because her milk gathered in her bags, causing them to cake, on account of the colt being unable to suckle the mare because the distemper affected his throat, and because the defendant neglected to give her proper care. It is certainly reasonable to believe that the instruction complained of would, under the evidence, confuse and mislead the jury. It is recommended that the judgment of the court below be reversed, and cause remanded.

BY THE COURT. It is so ordered; all the justices concurring.

(37 Kan. 104)

JUDGMENT-VACATION.

SPERRING v. HUDSON.

(Supreme Court of Kansas. July 9, 1887.)

A judgment was obtained upon service by publication alone. Subsequently, the defendant applied, under section 77 of the Code, to open up the judgment, and be let in to defend. The application was allowed, and upon the final trial judgment was rendered in favor of the defendant and against the plaintiff. The plaintiff prosecuted his writ of error to the supreme court, claiming that the application and order to open the judgment were made after the lapse of three years, and therefore too late. He attached to his petition in error only a copy of the entries upon the journal of the district court. These entries show that the final action in opening the original judgment was taken by the district court after the lapse of three years from the date of the judgment; but the court recited in the journal "that the defendant gave due and legal notice to the plaintiff of his intention to make his application," and also recited "that three years had not elapsed since the judgment was rendered." The application of the defendant and the notice given by him to the plaintiff were wholly omitted from the record. Held that, upon the record so presented, it does not clearly appear that the application and notice of the defendant were not filed and served within three years from the date of the original judgment. Therefore it cannot be said that the order of the district court is erro

neous.

(Syllabus by the Court.)

Error from district court, Greenwood county.

E. A. Barber and R. C. Summers, for plaintiff in error. Z. Harlan, for defendant in error.

HORTON, C. J. On May 4, 1882, the plaintiff obtained in the district court of Greenwood county a judgment against the defendant quieting his title to certain real estate in that county. The only service made was by publication, and there was no appearance on the part of the defendant. Afterwards the defendant filed his application to have the judgment opened, and that he be permitted to defend. This application came up for hearing at the May term of the district court for 1885, and the court made the following order: "Now, on this sixth day of May, 1885, the second day of the May, 1885, term of this court, comes the said defendant, W. H. Hudson, by his attorney, Z. Harlan, and by motion makes application to have the judgment heretofore, to-wit, on the fourth day of May, 1882, and at the May, 1882, term of this court rendered and entered in this action, opened, and to be let in to defend; and, it appearing to the court that three years have not yet elapsed since said judgment was rendered, and that the same was rendered against the defendant without other service than by publication in a newspaper, and it further appearing to the court here that the said defendant has given due and legal notice to the said plaintiff of his intention to make said application at this time, and it

further appearing to the satisfaction of the court, by afidavit and otherwise, that during the pendency of this action the said defendant had no actual notice thereof in time to appear in said court and make his defense, and the said defendant having filed a full answer to the plaintiff's petition in said action, and it appearing from said answer that the said defendant has a just, legal, and sufficient defense to said action, it is therefore ordered and adjudged by the court that the judgment heretofore, to-wit, on the fourth day of May, 1882, and at the May, 1882, term of this court, rendered and entered herein in favor of said plaintiff and against said defendant, be, and the same is hereby, opened, and the said defendant let in to defend, and it is further ordered that the said plaintiff demur or reply to said answer on or before the twenty-second day of May, 1885."

Subsequently the plaintiff filed a motion to vacate and set aside the order of May 6, 1885, but this motion was overruled, and thereupon the plaintiff obtained leave to file a reply to the answer of the defendant on or before June 20, 1885. At the trial upon the merits on September 7, 1885, the judgment of May 4, 1882, was vacated, and judgment rendered in favor of the defendant for costs. The plaintiff excepted, and brings the case here. He alleges that neither the application of the defendant to have the judgment opened, nor the order of the district court opening the judgment, were made within three years after the date of the judgment of May 4, 1882.

The record in this court is in such a condition that we cannot consider the merits of the question presented. There has been no transcript filed in this court of all the proceedings of the district court, and the proceeding is not brought here upon a case made. The only certificate to the transcript is as

follows:

"I, W. S. Robinson, clerk of the district court within and for the county of Greenwood, state of Kansas, do hereby certify that the above and foregoing contains a true, complete, and full copy of the entries on journal records in the above-entitled cause now in my office. [Seal.]

"W. S. ROBINSON, Clerk, Dist. Court." The application of the defendant, and the notice given by him to the plaintiff, are omitted from the record, but the court makes a finding in the journal entry as follows: "That the said defendant has given due and legal notice to the said plaintiff of his intention to make said application at this time;" and in the journal entry it is also recited "that three years have not yet elapsed since the judgment of May 4, 1882, was rendered." It was decided, in Albright v. Warkentin, 31 Kan. 442, 2 Pac. Rep. 614, that where the application is made in time, and, on account of certain proceedings had, no final action is taken by the court to open the judgment, such delay does not necessarily deprive the defendant of his right to have the judgment opened. The record, defective as it is, shows that some proceeding in the case was pending on December 24, 1884, and that a continuance of the matter then pending was had, upon the application of the defendant, until the May term of the court for 1885. To do justice to both parties the provisions of section 77 of the Code should be construed in no technical way, but fairly and reasonably. So, also, the journal entries should be construed to uphold, if possible, the order of the district court. Not being able to say from the record as presented that the original application and notice were not filed and served within the time, the judgment of the district court will be affirmed.

(All the justices concurring.)