adopted by this court in the cases above cited.

It appears that while these warrants were outstanding the city treasurer collected and disbursed funds, in the payment of warrants subsequently issued, sufficient to have paid these. In view of this fact, it is contended that the statute commenced to run against the warrants in question at the time this fund was on hand, and, this having occurred more than five years prior to the time this action was commenced, the causes were barred, notwithstanding the city treasurer had denied, each time these warrants were presented, that there were funds in his hands which could be applied to their payment. We do not assent to this proposition. The treasurer, while acting within the scope of his office, was the agent of the city, and his misrepresentations as to the funds on hand, as between the plaintiffs in error and the city, were the misrepresentations of the city. There is no way by which the holder of outstanding obligations of a city may know whether there are funds on hand to discharge its obligations other than to apply to its treasurer. The law directs this course. A city cannot relieve itself of its debts by the misrepresentations or wrongful or fraudulent acts of its officers. This action was commenced on July 13, 1896, within five years from the time the warrants were last presented for payment, and payment refused for want of funds. The causes of action are not, therefore, barred by the statute of limitation.

These warrants were in small amounts, and were issued for the current expenses of the city, many of them for labor. It appears that the question of raising money to pay them was a subject of frequent consideration by the council, extending over two or three years, and that various methods were suggested, among others the issuance of bonds. No question of their invalidity was raised until the plaintiffs' cause of action on the debt was barred, and not until more than seven years after their issuance. Α city, in the exercise of its quasi private or corporate powers, is governed by the same rules, and is liable to the same extent, as private corporations. Freeman v. City of Chanute, 64 Kan. 66 Pac. 647; State v. Topeka Water Co., 61 Kan. 561, 60 Pac. 337; State v. Hunter, 38 Kan. 582, 17 Pac. 177; Maxmilian v. Mayor, etc., of City of New York, 62 N. Y. 164, 20 Am. Rep. 468.

And if, by the promises of payment or other misrepresentations, the city induced plaintiffs to hold these warrants until their action was barred on the debt, it is estopped to plead the invalidity of the warrants. It was admitted by the city that the warrants were signed by the then mayor and city clerk of said city, and that the city had received full consideration therefor. This made a prima facie case for the plaintiffs. If the warrants were irregularly issued or issued

without authority of law, the burden was upon the defendant city to affirmatively show these facts. This it undertook to do by introducing the city ordinance, book and the ordinances therein from 1 to 65, inclusive, except eight ordinances, which appear not to be in the book, and which were not offered in evidence. This did not meet the requirements. There is no proof that these eight ordinances did not include those which the city contended were never passed, and there is no proof that those introduced were all the ordinances, except the eight passed by the city. The city had the power to contract the debts for which the warrants were issued, and to issue warrants as evidence of such indebtedness. Every presumption is in favor of its having exercised that power in the manner prescribed by statute, and as it does not affirmatively appear that it was not so exercised the city failed to prove this defense.

The judgment of the court below is therefore reversed, and a new trial ordered. All the justices concurring.

In re BAILEY.

(64 Kan. 887)

(Supreme Court of Kansas, Division No. 2. March 8, 1902.)

ORDINANCE REPEAL.

An ordinance entitled "An ordinance to prohibit the sale of intoxicating liquors and to suppress places where intoxicating liquor is sold," and (section 2) making it unlawful to maintain or assist in maintaining any place where liquors are kept for the purpose of sale, was not repealed by a subsequent ordinance relating to the sale of liquors and prescribing penalties, where it contained no section similar to section 2 of the ordinance claimed to have been repealed, though it contained a section repealing all other ordinances in conflict therewith.

In the matter of the application of John Bailey for release on habeas corpus. Petitioner remanded.

Argued before SMITH, CUNNINGHAM, and GREENE, JJ.

David Ritchie, for applicant. F. H. Dunham and Geo. D. Abel, for respondent.

PER CURIAM. This is an original proceeding in habeas corpus. From the writ and return it appears that the petitioner was convicted upon his plea of guilty of violating section 2 of an ordinance of the city of Lincoln Center, Kan., entitled "An ordinance to prohibit the sale of intoxicating liquors and to prohibit and suppress places where intoxicating liquor is sold," and is now in custody in pursuance of a sentence under such conviction. By section 2 it was made unlawful to maintain, or aid, or assist, or abet in maintaining, any place in said city where intoxicating liquors were kept for the purpose of sale, barter, or giving away. The petitioner now claims that

con

this ordinance, which was numbered 113, was subsequently repealed by implication by the passage of ordinance No. 146. Ordinance 146 was entitled "An ordinance to regulate the sale of malt and other drinks, and prescribing penalties." By section 1 of this ordinance it was made unlawful to sell or give away various beverages therein enumerated, most of which were nonintoxicant, in less quantities than one gallon, or to allow the same to be drank at any stand, store, or other place of sale. It contained no section similar to section 2 of Ordinance 113, under which the petitioner was victed. In contained a section which repealed all other ordinances in conflict therewith, and by this repealing section the petitioner claims that Ordinance 113 was repealed; hence that he could not be convicted or punished thereunder. We do not favor the contention of the petitioner. Repeals by implication are not favored; and, before an existing law will be declared repealed by implication, the subsequent law must cover the same subject-matter, and have the same general purpose in view, and be so irreconcilable as that they cannot, by any possible mode of interpretation or construction, both be given force and effect. By the repealing clause in Ordinance 146 only such ordinances as were in conflict therewith were repealed. The fact that a former ordinance covered the same ground would not cause it to be repealed thereby. The two ordinances might stand side by side, effectuating the same purpose by different methods and penalties, even. We do not think that the provisions of the two ordinances are so in conflict as that they cannot stand together. The petitioner urges that Ordinance 113 was repealed by section 7, c. 232, Laws 1901. This claim is made in his brief, but is not set out in his petition for a writ of habeas corpus. We cannot, therefore, consider it.

The petitioner will be remanded.

(64 Kan. 580)

MacRAE v. KANSAS CITY PIANO CO.1 (Supreme Court of Kansas, Division No. 2. March 8, 1902.)

DEPOSITIONS-TIME FOR OBJECTIONS-EVI

DENCE-PUBLIC RECORDS.

1. An objection to a deposition because the notary taking the same did not attach to his certificate a United States revenue stamp is not an objection to its competency or relevancy, but to its authentication; and such objec tion, if good at all, must be made in writing, and filed with the clerk before the commencement of the trial. Sections 4811, 4812, Gen. St. 1901.

2. The records or files of a public office can be proven only by the originals, or certified copies thereof, as required by section 4820, Gen. St. 1901.

(Syllabus by the Court.)

Error from district court, Sedgwick county; D. M. Dale, Judge,

1 Rehearing denied April 17, 1902.

Action by the Kansas City Plano Company against J. D. MacRae. Judgment for plaintiff. Defendant brings error. Affirmed.

Argued before SMITH, CUNNINGHAM, and GREENE, JJ.

Sankey & Campbell, for plaintiff in error. Amidon & Conly, for defendant in error.

GREENE, J. This was a replevin action brought by defendant in error, a corporation organized under the laws of the state of Missouri, against plaintiff in error, in the district court of Sedgwick county, to recover the possession of a piano of which the plaintiff claimed to be the owner. The defense was that the plaintiff had sold the piano in question to one Mrs. Cronk wright, who then lived in Oklahoma, and that, under a tax warrant for unpaid taxes issued in said territory against Mrs. Cronkwright, the piano was sold to one Sullivan, who thereafter sold it to the defendant. Judgment was rendered for the plaintiff, and the defendant prosecuted proceedings in error.

The defendant in error moved to dismiss this cause for the reason that the case-made was not made and served within time. There is no merit in this motion, and it is overruled.

Outside the record, and independent of it, the plaintiff in error applies to this court, by motion, to vacate the judgment of the court below. This application is on the ground that, since the defendant in error commenced its action in the court below, it has been dissolved by the voluntary act of its stockholders. In support of such application, plaintiff in error quotes section 1018, 1 Rev. St. Mo. 1899, which provides: "The president or secretary of every domestic corporation in this state when it shall be dissolved is hereby required to file with the secretary of state an affidavit to that effect." Plaintiff also offers the following affidavit: "Geo. Bindbentel, secretary of the Kansas City Piano Company, being duly sworn, upon his oath states that said corporation was on the 7th day of February, 1898, by a majority of its stockholders, duly dissolved, and is no longer in existence. George Bindbentel, Sec'y." We are not informed what provisions the Missouri statute makes for winding up the business of a dissolved corporation, but we must presume their statute is like our own. Rogers v. Coates, 38 Kan. 232, 16 Pac. 463; Railway Co. v. Weaver, 35 Kan. 412, 11 Pac. 408, 57 Am. Rep. 176; Holthaus v. Farris, 24 Kan. 784; Speer V. Railway Co., 23 Kan. 572. Section 1312, Gen. St. 1901, provides: "Upon the dissolution of any corporation the presi dent and directors, or managers of the atfairs of the corporation, at the time of the dissolution, by whatever name they may be known in law, shall be trustees of the creditors and stockholders of such corporation, with full power to settle the affairs, collect

the outstanding debts and divide the monies and other property among the stockholders." The judgment in this case did not become void because the corporation became dissolved after the action was commenced or after judgment was rendered. Such judgment is an asset in the hands of the trustees of the corporation for the benefit of its creditors and stockholders. The application is there fore overruled.

The plaintiff in error complains that the court erred in overruling its objection to one of the depositions read by plaintiff below. The objection was that the notary before whom the deposition was taken did not attach to his certificate a revenue stamp, as required by section 14 of the revenue laws of 1898 (30 Stat. 455). The objection was made orally at the trial at the time the deposition was offered in evidence. Gen. St. 1901, c. 80, § 4811, reads: "Exceptions to depositions shall be in writing, specifying the grounds of objection, and filed with the papers in the case." Section 4812 provides: "No exceptions other than for incompetency or irrelevancy shall be regarded, unless made and filed before the commencement of the trial." Counsel for plaintiff in error urge that their objection was to its incompetency. With this we do not agree. The objection was not that the witness was incompetent to speak, or that the matter contained in the deposition was irrevelant, but that it was not properly authenticated, because the notary had not placed a revenue stamp upon his certificate. Such objection must be raised by motion, as required by section 4811, Gen. St. 1901.

The defendant below took the deposition of one Haynes for the purpose of proving certain statements made by Cronkwright contradictory of those made by him in his deposition. The court excluded one of the questions thus asked. This was not material error, as the witness afterwards answered the same question, and made the statement embodied in the question excluded by the court, which is that Cronkwright said fo him that the piano in question was delivered by plaintiff to Mrs. Cronkwright in lieu of one they had purchased from it, and which had proven unsatisfactory.

Another contention is that the court erred in refusing to let the witness Haynes testify to a statement made to him by Mrs. Cronkwright. Mrs. Cronkwright was not a party to this action; neither was she a witness. What she told Haynes in the absence of the defendant in error, after she had parted with the possession of the property in question, could not be given in evidence.

The court permitted the plaintiff, over the objection of defendant, made at the trial, to read the following question and answer in the deposition of Cronkwright: "To whom did that piano belong that you left there?" Referring to the piano in question.) "So far as I know, to the Kansas City Piano Com

pany." The objection was that the question called for a conclusion of the witness. An objection of this kind, to be available, must be made when the witness is being examined.

The court also refused to permit a witness to testify that he had sold this piano under an execution or tax warrant issued by the territory of Oklahoma for the unpaid taxes of Mrs. Cronkwright. This was not error. Such fact could only be proven by the original or a certified copy of the execution or warrant thus issued, with the return indorsed thereon. Gen. St. 1901, c. 80, § 4820.

Another alleged error is that the court excluded a personal property statement made by Mrs. Cronkwright to the tax assessor of Oklahoma of her personal property, in which she included this piano. This was properly excluded. It was a statement made by one who was not a party to the action or a witness in the case; and the statement was not made in the presence or with the knowledge of the plaintiff below.

There are many other alleged errors, none of which require special attention. The judgment of the court below is affirıned. All the Justices concurring.

(64 Kan. 539) SULLIVAN et ux. v. CITY OF WICHITA et al.1 (Supreme Court of Kansas, Division No. 1 March 8, 1902.)

ALIENATION OF HOMESTEAD-GRANT OF
EASEMENT EVIDENCE.

1. The joint consent of husband and wife to the alienation of their homestead, required by the constitution, need not be in writing, but may be evidenced by acts in pais, showing a concurrence between them in point of time and intent to the alienation.

2. An arbitration agreement, signed by a husband and wife on the one side and other persons on the other side, which describes the subject of the arbitration as the damages &c cruing and about to accrue to the homestead of the former on account of the erection of a water dam and the excavation of an aqueduct thereon by virtue of a "grant" made by the husband and wife, which agreement is followed by an award of damages and its payment, the building of the dam and the digging of the aqueduct at much labor and expense, all with the knowledge and consent of the husband and wife, and the use of the water easement for many years without objection by them, together constitute sufficient and satisfactory evidence of joint consent by the husband and wife to the alienation of an irrevocable grant of easement on and over their homestead. (Syllabus by the Court.)

Error from district court, Sedgwick county; D. M. Dale, Judge.

Action by Arthur Sullivan and wife against the city of Wichita and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Argued before DOSTER, C. J., and JOHN. STON, ELLIS, and POLLOCK, JJ.

Amidon & Conly and H. G. Ruggles, for plaintiffs in error. A. E. Helm and Smyth & Helm, for defendants in error.

1 Rehearing denied March 27, 1902

DOSTER, C. J. This was an action brought by Arthur and Agnes Sullivan, husband and wife, against the city of Wichita, for damages for erecting a water dam on the plaintiffs' homestead, and flooding a portion of it thereby, and for diverting water from it through an aqueduct or raceway. The defenses were several in number: First, a conveyance by plaintiffs to defendants' grantors of a right to erect and maintain the dam and waterway; second, estoppel on account of the erection of the one and the digging of the other by defendants' grantors at much labor and expense, to the plaintiffs' knowledge and consent; third, an arbitration with defendants' grantors of the damages resulting from the appropriation of the water easement, an award thereof, and its payment; fourth, adverse user of the easement for more than 15 years. A small judgment was rendered in plaintiffs' favor on account of the overflowing of their land by the recent raising of the dam to a greater height | than formerly built. The plaintiffs, however, claimed damages on account of the original act, but, being denied a recovery therefor, they have prosecuted error.

In November, 1873, one E. L. Wheeler and one L. G. Scheetz became possessed of an instrument of writing signed by the plaintiff Arthur Sullivan, and purporting to be signed by his wife, Agnes Sullivan. It was in the form of a deed, and, quoting its language, purported to have "granted, bargained, and conveyed, and by these presents do hereby grant, release, and convey, unto the said parties of the second part, and to their heirs and assigns, forever, the right to build and maintain a dam across the stream known as the Little Arkansas river at a point where said stream crosses the west line of the southeast quarter of the southwest quarter of section twenty-nine (29), in township twenty-six (26) south, range No. one east, in Sedgwick county, Kansas, and also the right to dig, excavate, and maintain an aqueduct or mill race not more than sixty feet wide running from said above-described point of location of said dam in a southeasterly direction to the section line running east and west between said section twenty-nine and said section thirty-two of said township, so that said race shall strike said section line not farther east than the quarter section line corner between said sections, and running thence east on said section line to the stream known as Chisholm creek, in said county, together with the right to enter upon said premises to erect, construct, operate, or repair said dam and mill race; to have and to hold the right and easement hereby granted unto the parties of the second part, their heirs, legal representatives, and assigns."

Mrs. Sullivan testified on the trial of the case that she never signed or in any wise consented to the above instrument of writing, and, despite one or two circumstances indicating to the contrary of her testimony,

it is probable she did not. Therefore the writing, viewed as a conveyance of the easement in question, will be laid out of consideration. However, in January, 1874, about two months after the purported execution of the above-quoted deed, both the Sullivans entered into an arbitration agreement in writing with the before-mentioned Wheeler and Scheetz, concerning the easement as a subject of controversy between them. In that agreement arbitrators were chosen, quoting its language, "to hear all the proofs and allegations of the parties of and concerning the amount of injury and damages accruing to the said parties of the first part, and to a certain tract of land of the parties of the first part accruing or about to accrue, and suffer (and which is hereinafter described) by virtue of a grant by the parties of the first part to the parties of the second part of a franchise, easement, privilege, and right to the parties of the second part to build, erect, and forever maintain a dam across the stream known as the Little Arkansas river, at or about eight rods up said stream from the point where said stream crosses the west line of the southeast quarter of the southwest quarter of section number twenty-nine (29), in township twenty-six (26) south, of range number one (1) east, in Sedgwick county, Kansas, and also the right to dig, excavate, and maintain an aqueduct or mill race not more than sixty (60) feet wide, running from said above-described point of location of said dam in a southeasterly direction to the section line running east and west between said section twenty-nine (29) and section thirty-two (32) of said township, so that said race shall strike said section line not further east than the quarter section corner between said sections, and running thence east on said section line to the stream known as Chisholm creek, in said county, together with the right to enter upon said premises to erect, construct, operate, or repair said dam, aqueduct, or mill race."

An arbitration was had pursuant to the foregoing agreement, an award was made in favor of the Sullivans, and paid. It will be observed that the agreement stated the subject of the arbitration to be the damages accruing to the Sullivans by virtue of a grant made by them to Wheeler and Scheetz to erect and maintain a dam and to excavate and maintain an aqueduct on certain land, the description of which is identical in words with those used in the purported deed before quoted. Wheeler and Scheetz soon thereafter entered on the land, and with the knowledge and consent of the Sullivans built the dam and dug the waterway. The Sullivans boarded some of the laborers engaged in doing the work, and Sullivan himself performed part of it. The easement was never abandoned, but has been maintained to the present time by the original owners and several successive grantees from them, and has now passed to the city of Wichita.

The city purchased it to use the water for flushing sewers and other purposes.

The above summarizes the main features of the case. There are, of course, portions of the record which to triors of the facts might cast doubt on some of the matters stated, but these were resolved against the plaintiffs by the general finding made in the court below. We are unable to perceive any error in the record.

One of the main contentions of the plaintiffs in error is that inasmuch as the deed to Wheeler and Scheetz, before quoted, was not signed by Mrs. Sullivan, there was not that joint consent of husband and wife which the constitution requires in order to the alienation of homestead interests. That is true. That paper did not evidence the joint consent of Sullivan and wife, but the arbitration agreement, the acceptance of the award, the entry into possession of Wheeler and Scheetz, the building of the dam, the digging of the aqueduct, the maintenance of possession and use of the easement, all with the knowledge and consent of both Sullivan and wife, did constitute a joint consent by them. The cost of the work done by Wheeler and Scheetz is probably stated in the evidence, but we have not searched through the voluminous record to find it, and ascertain the amount. The award of damages paid by them was $350, and we are entitled to assume as a matter of common knowledge that the cost of the work done to make the grant of the easement available was considerable. It has been held in this state that the joint consent of husband and wife to the alienation of the homestead is not, of necessity, to be given in writing. It may be given orally, and evidenced by acts in pais, and if so given and evidenced the homestead claimants will not be heard to deny it. That was distinctly so ruled in Perrine v. Mayberry, 37 Kan. 258, 15 Pac. 172. In that case a husband and wife were the equitable owners of a tract of land occupied by them as a homestead. They jointly, but orally, contracted with another to sell a portion of it, and to execute a deed to it when they should receive the legal title. They put him in possession of the portion stated, received from him the purchase money for it, and permitted him to make lasting and valuable improvements on it. When they received the legal title they refused to execute their agreement. It was held, in the closing words of the syllabus, that "a court of equity has the power to, and will enforce, a completion of the alienation, and a specific performance of the contract." In the closing paragraph of the opinion it was said: "Again, neither the statutes nor the constitution requires that the alienation of a homestead with the joint consent of the husband

and wife must be in writing. Of course, the joint consent must exist before any voluntary alienation of the homestead. In this case there was the express joint consent of the husband and wife. Const. art. 15, § 9; Comp. Laws 1879, c. 38, § 1. Upon that joint consent the purchase money was paid, possession was taken, lasting and valuable improvements were made. Mayberry cannot now be robbed of the fruit of his toil and outlays by the refusal of Mrs. Perrine to sign the deed."

The present case is a stronger one against the homestead claim than the one from which the above quotations are made. In this case there was that which 'approached very nearly to written joint consent. The arbitration agreement recited "a grant by the parties of the first part to the parties of the second part," and it stated the subject of the arbitration to be a claim of damages accruing by virtue of such grant. The difference in legal effect between a consent to the arbitration of the amount of consideration for the making of a grant and a consent to the grant itself, is not readily perceivable. If there be a difference it is one of evidence merely. The instrument of grant would be, of course, the most nearly conclusive in legal effect. Lacking that, a recital in another instrument of the making of the grant would be the next in order of cogency and weight. It would not be of itself conclusive, but when shown to have been made, and shown to have been acted on by both parties as though its recitals were true, it and the action taken on it, would furnish clear and satisfactory evidence of the consent which the homestead laws require.

A multitude of claims of error are made. Most of them are subsidiary and incidental to the one above discussed, and some others are of a minor and unsubstantial character. The court struck out certain paragraphs of the plaintiffs' reply. The court did right. Portions of the reply stricken out tendered issues of law instead of fact. Other portions plead a contract between the city and Arthur Sullivan, and a stipulation entered into during the progress of the case relative to a change of the pleadings and the form of the action. They were urged as estoppels, but they were not. Still another claim of error was that the easement in question was personal in its nature,-was a mere license to the first grantee, and did not pass by the subsequent conveyances. This is clearly untenable. It would subserve no useful purpose to explain the facts underlying these and other claims of error, and set forth the law pertaining to them. The one matter above discussed involves the principal question in the case.

The judgment of the court below is af firmed. All the justices concurring.