ner [as] if such property had been feloniously stolen or taken within this state; and in any such cases, the larceny may be charged to have been committed, and may be indicted and punished, in any county into or through which such stolen property shall have been brought." The petitioners are charged with an offense against the state of Kansas by bringing stolen property into it. The Kansas authorities do not charge them with an offense against the territory of Oklahoma, but against the state of Kansas. When a complaint was made and a warrant issued for their arrest to answer for their infraction of Kansas laws, they were not in Kansas. They were in Oklahoma, having gone from Kansas after the alleged commission of crime in Kansas. "The term 'flee from justice,' in article 4, section 2, of the constitution of the United States, includes cases where a citizen of one state commits a crime in another state, and then returns home." Ex parte Swearingen, 13 S. C. 74. See, also, 7 Am. & Eng. Enc. Law, p. 646, § 23, and notes.

The counsel for the petitioners also contend that, because of the peculiar nature of the crime alleged to have been committed, the ordinary interpretation of the term "fugitive from justice" does not apply; that the qualifications contained in paragraph 2560 of the General Statutes of 1889 provide that a former conviction or acquittal for the same offense in another state, territory, or country shall be a bar to other or further proceedings against the accused. These two paragraphs, construed together, provide that a person may be convicted and punished for the larceny of property if he brings stolen property within the borders of the state, although the theft may have occurred outside of the state; but, if the person has been either convicted or acquitted of the larceny of the same property elsewhere, such conviction or acquittal is a bar to any other or further proceedings against him for the larceny of such property.

It is argued that a conviction or acquittal in Kansas is not, under the statutes of Oklahoma, a bar to another trial for the larceny of the same property in Oklahoma. The statutes of Oklahoma were not introduced in evidence, and are not stated in the agreed statement of facts. We must therefore presume that they are the same as our own statutes upon the same subject. See Scott v. Beard (Kan. App.) 47 Pac. 986, and cases there cited.

The counsel for the petitioners also contend that the application to the governor of Oklahoma was not made in good faith. Paragraph 3175 provides that the applicatlon must be "accompanied by sworn evidence that the party charged is a fugitive from justice, and that the application is made in good faith, for the punishment of crime, and not for the purpose of collecting a debt or pecuniary mulct, or of recovering

the alleged fugitive to a foreign jurisdiction, with a view there to serve him with civil process," etc. If the proper affidavit was not presented to the governor of Kansas, we are not advised of it. It does not ap pear whether or not the county attorney of Clark county or the governor of Kansas knew that the petitioners were arrested in Woodward county, Okl. We would suppose they did not know that such was the case, for the reason that if they had known that the original theft had occurred in Woodward county, Okl., and that the guilty parties had been apprehended and were under bonds to appear before the district court of that county to answer for the offense, they would have permitted Woodward county, Okl., to be to the expense of prosecuting, convicting, and caring for her own criminals, instead of burdening Clark county, Kan., with the expense thereof. However, if they had known these things, they could, if they had so desired, have proceeded in the same manner in which they did proceed.

It is claimed by the respondent that the action of Judge Dale, of the district court of Woodward county, Okl., in refusing to re lease the petitioners upon the habeas corpus proceedings prosecuted before him, is a waiver of the jurisdiction of the territory of Oklahoma over the persons of the petitioners. We cannot assent to this claim. However, the action of the governor of Oklahoma in honoring the requisition of the governor of Kansas is such a waiver.

It follows from what has already been said in this opinion that the petitioners, Charles Hess and Reuben Orr, were charged with having committed an offense against both Oklahoma Territory and the state of Kansas, and that Oklahoma Territory first obtained jurisdiction of the persons of the petitioners; that the executive of Oklahoma Territory waived such jurisdiction, and turned them over to the authorities of Kansas; and that they are now legally in the custody of George M. Grimes, respondent, as sheriff, to answer the charge made against them in Clark county, Kan. During the hearing of this application, the attorneys for the petitioners and the respondent agreed that $700 was an adequate amount of bail for each of the petitioners, and an order has already been made, pending this hearing, fixing the amount of bail to be required of each petitioner at said sum of $700. It is therefore ordered that the petitioners, Charles Hess and Reuben Orr, be, and they each are hereby, remanded to the custody of the respondent, George M. Grimes, sheriff of Clark county, Kan., to be held by him under the terms of the commitment now in his hands. It is further ordered that the said Charles Hess and Reuben Orr, or either of them, may be released from the custody of said sheriff upon executing and delivering to said sheriff a good and sufficient bond in the sum of

$700 for each petitioner, conditioned that they will appear on the first day of the next term of the district court of Clark county, Kan., to answer the charges alleged against them, and not depart the same without leave of the court first obtained. All the judges concurring.

(5 Kan. App. 374)

METZGER et al. v. BURNETT. (No. 199.) (Court of Appeals of Kansas, Northern Department, C. D. March 22, 1897.)

CREDITORS' SUITS

DENCE

JUDGMENT-EXECUTION-EVI

WITNESSES-COMPETENCY-
APPEAL-REVIEW.

1. In an action in the nature of a creditors' bill to set aside a fraudulent conveyance of real estate, and subject the land to the payment of the plaintiffs' judgment, it is not necessary that an execution upon the judgment be taken out prior to the commencement of said action.

2. A duly-attested copy of a journal entry of a judgment rendered in another county may be read in evidence without proof that the original cannot be produced.

3. Where an execution was admitted in evidence by the trial court, over objection, and no suggestion was made or attention called to the fact, if such fact existed, that the seal of the court did not appear thereon, this court will not consider the question, when raised here for the first time, by reference to the fact that no note is made of a seal in the record brought here.

4. A book offered in evidence, which contains but one entry made by the party producing the same, and that being simply and solely a memorandum of the transaction testified to by said witness, was properly refused to be admitted as evidence.

5. In an action to set aside a fraudulent conveyance, the wife of the party to whom the fraudulent conveyance was given is not a competent person to testify in relation to said transaction, although the grantor of said conveyance appears as a nominal party in the case. (Syllabus by the Court.)

Error from district court, Saline county; R. F. Thompson, Judge.

Action by E. C. Burnett against John S. Metzger and another. From a judgment for plaintiff, defendants bring error. Affirmed.

Z. C. Millikin, for plaintiffs in error. T. W. Bartley, for defendant in error.

WELLS, J. This was an action brought by the defendant in error (plaintiff below) to set aside and annul a certain mortgage and deed on real estate in the city of Salina, Kan., alleged to have been made with frauduent intent, to hinder and delay the plaintiff below in the collection of a certain judgment which he had obtained against John S. Metzger, and praying that such real estate be subjected to the payment of said judgment. The court below found the issues for the plaintiff, and the defendants below bring the case here for review. We will consider the errors alleged in the order presented by the brief of the plaintiffs in error.

Did the petition filed by the plaintiff in the court below state a cause of action? The petition recited a recovery of the judgment by the plaintiff against the defendant John S.

Metzger, in the district court of Ottawa county, Kan., on the 3d day of March, 1894, for $260.32 and costs; that execution was issued out of said court on said judgment, and returned by the sheriff wholly unsatisfied, for the want of goods or property of any kind; that on the 6th of March, 1894, the plaintiff caused a certified transcript of said judgment to be filed in the office of the clerk of the district court of Saline county, Kan., and that the same was duly recorded therein; that the plaintiff was a creditor of the defendant John S. Metzger on the 16th of November, 1893, on the claim on which said judgment was afterwards rendered, said suit then being pending in the district court of Ottawa county, Kan.; that on said date said John S. Metzger was the owner of the real estate described; that the defendant John S. Metzger, on the 16th day of November, 1893, made and executed and caused to be recorded a mortgage to the defendant Walter A. Metzger on the real estate therein described; that the mortgage was without consideration, and made solely for the purpose of defrauding creditors, particularly said plaintiff, and to hinder and delay them in the collection of their debts; that afterwards, on the 1st day of December, 1893, the defendant John S. Metzger executed and delivered to the defendant Walter A. Metzger a warranty deed for said real estate, and caused the same to be recorded; there was no actual consideration for said deed, and it was given solely for the purpose of defrauding creditors, and to hinder and delay them in the collection of their debts; that the defendant John S. Metzger had no other property from which the judgment could be collected, and, with the exception of the property so conveyed, he is insolvent, and unable to pay his debts.

The plaintiffs in error contend that, before an action to set aside a fraudulent conveyance can be instituted, an execution must issue, and be levied upon the property sought to be reached. This is not the law. We think the correct rule is laid down in 4 Am. & Eng. Enc. Law, p. 575: "That where lands, the legal title to which was in the debtor, have been fraudulently conveyed, it is enough to have a judgment, because the application to chancery is to remove obstructions which prevent a legal lien from operating upon the property." The same principle is laid down in Dunham v. Cox, 10 N. J. Eq. 437, found in 64 Am. Dec., on page 460, where the court, by Williamson, Ch., says: "When a creditor has by a judgment established his debt by the statute he acquires a lien upon all the real estate of his debtor to satisfy his debt. If the debtor has fraudulently conveyed away or incumbered his real estate, so as to interpose an obstacle which embarrasses the debtor in appropriating it by legal process in satisfaction of his debt, then the creditor may file his bill to remove out of the way such fraud

ulent conveyance or incumbrance. It is not necessary for him to take out execution upon his judgment. The judgment constitutes a lien upon the land, and there is no necessity of compelling him, as a mere matter of form, to incur the further expense at law of issuing an execution."

The plaintiffs in error complain that the court erred in admitting an attested copy of the journal entry of a judgment rendered in another county to be read in evidence, without proof that the original could not be produced. We see no error in this. Greenl. Ev. § 91, reads: "The rule rejecting secondary evidence is subject to some exceptions, grounded either on public convenience or on the nature of the facts to be proved. Thus, the contents of any record of a judicial court, and of entries in any other public books or registers, may be proved by an examined copy. This exception extends to all records and entries of a public nature, in books required by law to be kept, and is admitted because of the inconvenience to the public which the removal of such documents might occasion, especially if they were wanted in two places at the same time, and also because of the public char acter of the facts they contain, and the consequent facility of the detection of any fraud or error in the copy."

Complaint is also made that the trial court, over the objection of defendants, permitted plaintiff to introduce in evidence a pretended execution which he had caused to issue to the sheriff of Ottawa county, Kan., the contention being raised in this court for the first time that no seal appears upon the copy contained in the record brought here for review. Under the authority of Dexter v. Cochran, 17 Kan. 447, we do not think this claim could be sustained, even if the issuance of an execution was necessary, as it was not. We do not think this was error.

Complaint is also made of the refusal of the court to admit in evidence a book containing an entry in relation to the debt in controversy between the brothers, the only evidence in relation to which was the testimony of the party who produced it, substantially as follows: "This memoranda was made at or about the time it bears date. That is the book that I had. My father gave me that book many years ago. I always kept it. I made that entry into the book. I made those entries after I lent my brother the money. I have no other accounts that I remember of. That is the only thing that I remember putting in it. The other entries are not mine. I am positive I made those entries at the time I made the loan."

Finally, the plaintiffs in error claim the court below committed reversible error in excluding the deposition of Mrs. L. D. Metzger. This witness was the wife of the party to whom the deed claimed as fraudulent was given, and it is contended by the plaintiff's in error that she was competent to testify on

behalf of the defendant, not her husband. In 4 Am. & Eng. Enc. Law, 578, it is said: "It seems that, in suits brought against fraudulent alienees to avoid specific conveyances, the action is a proceeding in rem, and, as the debtor cannot be prejudiced by a decree, he need not be a party defendant." If this is true, then no evidence on his part was necessary or admissible. We think the evidence in the case was sufficient to warrant the judgment rendered, and that no reversible error appears upon the record. The judgment of the court will be affirmed. All the judges concurring.

(5 Kan. App. 346)

JOHNSON et al. v. ATWOOD. (Court of Appeals of Kansas, Northern Department, C. D. March 22, 1897.) APPEAL-REVIEW-RECORD

EXECUTION SALEAPPRAISEMENT OF REALTY.

1. The judgment rendered by the trial court is authorized by the findings. This court cannot inquire into the findings of fact, where the evidence is not contained in the record; the presumption is that the findings are in accordance with the evidence.

2. Section 28, c. 109, Laws 1893, repeals paragraphs 4550, 4551, Gen. St. 1889, and since that time no appraisement of real estate offered for sale under execution or order of sale is necessary.

(Syllabus by the Court.)

Error from district court, Cloud county; F. W. Sturges, Judge.

Motion to confirm sale of real estate. From the decision John Johnson and Mary Johnson bring error. Affirmed.

L. J. Craus, for plaintiff in error. Theo. Laing, for defendant in error.

MCELROY, J. This proceeding was brought to review the rulings and judgment of the district court of Cloud county upon a motion to confirm the sale of real estate. The petition in error is based upon a transcript instead of a case-made. The record does not contain the evidence. The execu tion was issued on the 5th day of August, 1893, and the property was sold thereunder on September 11th. By section 28, c. 109, Laws 1893, paragraphs 4550 and 4551, Gen. St., are expressly repealed. These are the only sections of our statutes that required or authorized the appraisement of ands of

fered for sale under execution, and

these

en

e

sections being repealed, no appraiseme nt was authorized at the time the execution in question was issued. The trial court made special findings of fact. The judgment dered by the trial court is authorized by t findings. We cannot inquire into the fin ings of fact, for the reason the evidence not before us. The presumption is that th findings are in accordance with the evidence The judgment is affirmed. All the judge

concur.

(5 Kan. App. 336)

TOWNSDIN v. TOWNSDIN. (Court of Appeals of Kansas, Northern Department, C. D. March 22, 1897.) FORCIBLE ENTRY AND DETAINER-CERTIFICATION TO DISTRICT COURT-LIMITATIONS.

1. Where an action of forcible entry and detainer is upon plea of title certified to the district court, it is not changed to an action for the recovery of real property; it merely changes the forum, but does not change the action.

2. The two years' limitation does not commence to run against a tenant from year to year until the service of notice to terminate the tenancy. Quære, had the defendant below "shown a clear, definite agreement and understanding between plaintiff and defendant's husband or herself, by which the defendant or her husband was to have the land in controversy,' said agreement extending over more than one year's duration, would the defendant have been entitled to recover thereon? (Syllabus by the Court.)

Error from district court, Cloud county; F. W. Sturges, Judge.

Action by Margaret Townsdin against Lizzie J. Townsdin. Judgment for plaintiff, and defendant brings error. Affirmed.

Theo. Laing and I. A. Rigby, for plaintiff in error. J. W. Sheafor, for defendant in er

ror.

WELLS, J. Defendant in error, Margaret Townsdin, on March 7, 1893, brought an action of forcible detainer, before a justice of the peace of Cloud county, Kan., against plaintiff in error, Lizzie J. Townsdin, alleging that said plaintiff in error was the tenant of defendant in error of a tract of land in said county, described in the complaint; that the tenancy had begun in 1880, by William H. Townsdin, the husband of Lizzie J. Townsdin, and had continued from year to year until April, 1889, when said William H. Townsdin died, leaving his widow, Lizzie J. Townsdin, in possession of said premises; she continued to occupy them until the fall of 1892, when a notice was given to terminate the tenancy from year to year, and on March 2, 1893, she was notified to quit, but, failing to do so, this suit was begun to recover possession of said premises. Lizzie J. Townsdin, the defendant below, filed her verified answer, in which she denied that she was the tenant of said plaintiff, Margaret Townsdin, but averred that she and her husband, William H. Townsdin, went into the possession of said land in 1880, and had ever since held it under an agreement between her husband, William H. Townsdin, and the plaintiff in said action, whereby, in consideration of the annual payment of $50 and taxes during the life of said Margaret Townsdin, the land was to belong to the said William H. Townsdin; that they made valuable and lasting improvements on said land under said contract, and that by virtue of said contract she and her son, William I. Townsdin, as the sole heirs at law of William H. Townsdin, deceased, were entitled to said premises. The case

was thereupon certified to the district court, under paragraph 4853, Gen. St. 1889, and was there tried before a jury. A verdict was found for the plaintiff, Margaret Townsdin, and judgment rendered thereon that she have restitution of the premises, and that she recover her costs. From this judgment proceedings in error are brought to this court. It appears from the evidence that William H. Townsdin, the husband of Lizzie J. Townsdin, was a son of the plaintiff below, Margaret Townsdin, and went upon and made his home on said land until his death, under some agreement or understanding, not in writing, with the plaintiff and her husband; and after his death his wife was permitted to remain until some family trouble arose, when proceedings were instituted to remove her therefrom.

The principal question in this case, as presented by the briefs for plaintiff and defendant in error, respectively, is: In an action of forcible detainer, brought originally in a justice court, and certified to the district court, under section 4853, can a judgment for dispossession be rendered against a defendant who claims title? Or as put by the plaintiff in error: "Will the action of forcible entry and detention lie, when the question of adverse title or interest is fairly raised by the pleadings and evidence? the plaintiff in error insisting that the action of forcible entry and detention will only lie where no question of title is raised." We do not think that this contention can be sustained. Section 7 of the "Justices' Act," which provides for certifying cases from a justice's court to the district court, where title or boundary of land is in dispute, provides "that when the case shall be taken to the district court, said case shall be docketed and thereafter proceeded with in the district court as if originally commenced therein." It would be a strange construction of law to hold that because a tenant saw fit to set up any pretended claim of title, without any reason or justice in fact, such claim of itself would defeat the action of forcible entry or forcible entry and detainer. This identical question was raised in the case of McNamara v. Culver, 22 Kan. 661. Brewer, J., rendering the opinion of the court in that case, says: "A final objection is that the defendant was refused a second trial, as is authorized in actions for the recovery of real property. In this action a sworn answer, setting up title, was filed, and thereupon the justice certified the case to the district court, where it was tried. The argument of counsel is, in substance, that, as the article in the General Statutes providing for proceedings in forcible entry and detainer applies only to the justice's, and not to district, courts, and as the provision for certifying cases to the district court declares that the case so docketed shall be proceeded with in the district court as if originally commenced therein, it must proceed as an action for the recovery of real

property, in which action two trials are a matter of right. We cannot agree with counsel. The action of forcible detainer is different from the action of ejectment, or for the recovery of real property, as it is styled in the Code. Evidence sustaining the latter will not necessarily sustain the former. More facts are required in the one than in the other. Now, the district court is one of general original jurisdiction. A provision for certifying the case from the justice to the district court changes the forum, but does not change the action. The same proof must be made in the latter as would have been required in the former court, and the same relief may be obtained. It it were not so, an unscrupulous tenant might hold possession in defiance of his landlord, and without giving any security for many months. We do not so understand the statute." See, also, Railway Co. v. Atchison, 43 Kan. 529, 23 Pac. 610.

The plaintiff in error also complains that the court below erred in refusing to give to the jury the three special instructions asked for. These instructions are all based upon the two-years statute of limitations, and we do not think that the position that this statute does not apply to a tenant from year to year, before the tenancy is terminated by notice to quit, needs any citation of authorities or argument.

Complaint is made, also, of instructions 3, 4, 5, 6, and 7, as given by the court; and we think that these instructions give substantially and fairly the contention of the respective parties, and there is nothing in any of them of which the plaintiff in error can complain. We doubt if the defendant would have been entitled to recover had she shown "a clear, definite agreement and understanding between plaintiff and defendant's husband or herself, as claimed by her"; the same not being in writing, and certainly extending over more than one year's duration, if any such agreement or understanding ever existed. See Gen. St. 1889, c. 43, § 5. There was certainly no error therein of which the plaintiff in error can complain. Taking all the evidence in this case, and giving it the construction most favorable to the plaintiff in error, we do not think it would show any color of title in her, or such a state of facts as would constitute any defense to the action of the plaintiff below. The judgment of the court below will be affirmed. All the judges concur.

(5 Kan. App. 303)

HALLAM v. HOFFMAN. (Court of Appeals of Kansas, Northern Department, C. D. March 22, 1897.) NEW TRIAL-FILING MOTION-ILLEGAL CONTRACT -ACTION FOR BREACH.

1. "Thereupon the defendant filed his motion for a new trial" means immediately after, and upon the same day of, the occurrence last before cited.

2. A., B., C., and D. enter into an agreement to prevent competition at a sheriff's sale of rea estate, under which A. is to bid off the land at a price not to exceed $4,000. It is then to be decided by chance which of the four is to have the land at $4,000, and the difference between the price it is bid in for and $4,000 is to be divided among the four. A. bid in the land at $3,510. The four then met, and drew lots for the land. It fell to B. C. then offered B. $4,200 for it, which was accepted, and C. paid B. $567.50, that sum being $200 bonus offered B., added to the difference between the sum the land was bid off for and $1,000, less C.'s share of said excess. B. immediately paid to A. and D. their share of said excess. The sale was set aside on account of such illegal combination. A. and B. refunded to C. the amounts of their profits in the transaction, but D. refused to do so, and C. brought a suit against B., setting up a parol purchase of the land, a payment of $567.50 thereon, the rescission of the contract of sale, and the failure to return $122.50 of said payment. Held, that such transactions were all connected, and grew immediately out of a contract that was illegal and contrary to public policy, and that no action can be founded there

on.

(Syllabus by the Court.)

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

Action by G. G. Hoffman against I. S. Hallam. Judgment for plaintiff. Defendant brings error. Reversed.

J. H. Mahan, for plaintiff in error. Stambaugh & Hurd, for defendant in error.

It

WELLS, J. I. S. Hallam, David Matteson, G. G. Hoffman, and J. P. Morley entered into an arrangement to prevent competition at a sheriff's sale of real estate, under which David Matteson was to bid off the land at a price not to exceed $4,000. was then to be decided by chance which of the four should have the land at the $4,000, and the difference between the price it was bid in for and the $4,000 was to be equally divided among the four. Matteson bid in the land at sheriff's sale at $3,510. The parties then met, and drew lots for the land, and it fell to Hallam, the plaintiff in error. Before separating, Hoffman, the defendant in error, and the plaintiff below, proposed that he would take the land at $4,200, which Hallam, under the advice of Matteson, with whom it developed at this point he had pooled his issues, accepted. Hallam then paid, by check, $567.50, that sum being the difference between the amount for which the land was bid off ($3,510) and $4,200, the sum at which Hallam had agreed to take it, less $122.50, Hoffman's one-fourth of the profits under the original contract. This sum was immediately divided up, Hallam and Matteson each receiving $122.50 in addition to the $200 bonus paid by Hoffman, and Morley getting $122.50, one-fourth of the $490. The sale was set aside on account of said illegal combination. Hallam and Matteson refunded to Hoffman their profits in the transaction, $445, but Morley refused to refund his $122.50. Thereafter this action was brought by Hoffman, in the district