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lease, The lease is of the familiar kind , and mineral, by giving the other five-eighths porgranting the right to enter on described land, tion of all production of oil, gas, and minerals explore for oil and gas, and if oil and gas be to such drillers as may be so hired, unless re

sponsible drillers may be secured to develop said found in paying quantities to operate and quarter section for less than a five-eighths porproduce. The decisions of this court are too tion of the production, in which case the extra numerous to require citation, that instru- profit at all times shall be divided equally into ments of that character are not leases in the and william H. Brush are to receive one half,

two equal portions, and said George W. Cox strict sense. The term "lease" is applied to and the subscribers hereto are to receive the them merely through habit and for conveni- other half. No contract for developing shall ence. They create no estate in land, but be let except that a well be drilled at least to

a depth of twenty-seven hundred fifty (2,750) merely a kind of license. In the case of Oil feet, unless oil or gas is found in paying quantiCo. v. McEvoy, 75 Kan, 515, 89 Pac. 1048, it ties at a less depth. was said they create an incorporeal heredita- The subscribers hereto are at all times to ment; that is, a right growing out of, or con- amounts set opposite their names and paid in cerning, or annexed to, a corporeal thing, bears to the total sum of thirty-two hundred but not the substance of the thing itself. In ($3,200) dollars subscribed. the case of Robinson v. Smalley, 102 Kan. hereto shall have equal powers and interest with

"At all times the total number of subscribers 842, 171 Pac. 1155 (opinion filed April 6, 1918), said George W. Cox and William H. Brush in this nomenclature was approved and applied. managing and transacting business with ref

In this instance the right granted was ex- erence to said lease." clusive to the grantees, and it is said this [2] The court found that the relationship fact changed the nature of the grant. The between the parties constituted a mining circumstance that the grantors precluded partnership. The court was in error. Minthemselves from making other leases does not ing partnerships are indulged between cochange the thing the grantees acquired from owners only when they actually engage in one of an incorporeal to one of a corporeal working the property. Before actual operanature.

tions begin, and after actual operations cease, Besides what has been said, it is unneces- they are simply cotenants, unless, of course, sary that property constituting the subject an ordinary partnership has been formed. 3 matter of a receivership be within the juris- Lindley on Mines (3d Ed.) $ 796, and followdiction of the court, provided the parties in ing sections. interest be subject to the control of the court. [3] It is said the order appointing the reIn this instance the court acquired jurisdic-ceiver was erroneous because based on the tion of the persons of the defendants by per- finding of a mining partnership. The conclusonal service and by an answer to the merits, sion does not follow from the premise. and it would have made no difference if the While the parties are merely cotenants of an property had been land. High on Receivers incorporeal hereditament, the evidence was (4th Ed.) 8 44.

that they have reached an impasse. They Cox and Brush negotiated for the lease, cannot agree with respect to their rights, or which provided the lessors should receive the management of the property, or a disposione-eighth of the mineral produced. Cox and tion of it. There is no reason why a court of Brush took the lease in their own names. equity should not solve the situation, and Huston and his associates contributed $3,200 meanwhile a receiver to hold the lease, proto the enterprise. Huston and his associates tect the property, and perform other funcsigned a contract relating to the matter, and tions, is a proper and justifiable auxiliary. there was evidence that Cox and Brush were The judgment of the district court is afto sign, but refused to do so after the lease firmed. All the Justices concurring. was procured. Material portions of the contract follow:

(103 Kan. 46) "This agreement is further made with the NELSON et al. v. HOSKINSON et al. understanding that the money hereto subscribed

(No. 21271.) is to be used in conjunction with procuring one certain lease which George W. Cox and William

(Supreme Court of Kansas. May 11, 1918.) H. Brush are obtaining on the northeast quarter (44) of section twenty-six (26), township twenty

(Syllabus by the Court.) five (25), range four (4), containing one hundred ACTION 45(1)—MORTGAGES Ew504-PABsixty (160) acres more or less. The parties TIES 25-FORECLOSURE INJUNCTION subscribing hereto are to receive one-eighth of PETITION. all oil, gas, or minerals produced on said quar- The petition examined, and held to state a ter section, for furnishing said thirty-two hun- cause of action to enjoin the foreclosure sale dred ($3,200) dollars as a bonus in securing said therein mentioned; no misjoinder of causes or lease." The owners of said land are to receive parties appearing. one-eighth of all oil, gas, and mineral produced on said quarter section; said George W. Cox

Appeal from District Court, Wyandotte and William H. Brush are to receive one-eighth County. of all oil, gas, or mineral produced on said quar- Action by Ida N. Nelson and husband ter section; and said George W. Cox and Wil- against Jennie Hoskinson, Benham C. Nelliam H. Brush and parties subscribed hereto or which may subscribe hereto are to hire par- son, L. J. Mason and R. L. Hinch, Sheriff of ties to develop said quarter section for oil, gas, Wyandotte County, Kan. Demurrer to

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
172 P.-63

amended petition sustained, and plaintiffs ap , mer arrangement, the defendant is taking peal. Modified and remanded.

advantage of the breach of her own agreeJ. M. Mason, of Kansas City, for appel. ment. In Hentig v. Sweet, 27 Kan. 172, an lants. 0. H. Barker and H. H. McCluer, accommodation indorser who was liable upon both of Kansas City, Mo., for appellees.

a promissory note then in litigation made a

payment after its maturity to the holder, and WEST, J. To the amended petition at- al hundred dollars in addition upon his prom

at the request of the plaintiff paid him severtempting to set up five causes of action for ise to credit the amounts with the claim and damages, for injunction, and to quiet title, take judgment for only the balance. The ina demurrer was sustained, and the plaintiffs dorser, relying upon such promise, made no appeal. The story in substance is that the defense, but the plaintiff took judgment for plaintiff Ida M. Nelson was the owner of cer- the full amount. It was held that as an untain lots on which she gave a mortgage for $4,666 to J. M. Hoskinson, at whose direc- in depriving the indorser of his just credits

fair and unconscionable advantage was taken tion it was executed to his wife, the defend he had a right to stay by injunction, the colant Jennie Hoskinson; there was a provision that the lots covered could be sold by lection of the remainder of the judgment aftthe payment on the mortgage of a certain er paying all except that for which he was price for each front foot; that six months entitled to credit. On the strength of this

decision and the authorities therein cited before the note fell due Hoskinson made a provision on another basis, and a new mort the plaintiffs have a right to enjoin the sale

under the judgment of foreclosure until the gage for $6,345 was executed, and a new arrangement made about the price to be paid the defendant Jennie Hoskinson.

alleged wrongs shall have been righted by and credited for each front foot sold; that certain releases were to be executed and defendant, as he was the one ordered tờ

It was proper to make the sheriff a party placed in escrow, but were not so deposited; make the sale. No rule of code pleading was that Hoskinson died leaving everything to the defendant Jennie Hoskinson, as his as

violated by naming Benham C. Nelson as a signee, she having full knowledge of all the party defendant and suggesting that he bear equities of the plaintiffs; that Hoskinson his portion of the cost of the litigation. had refused to release the lots which the Should he not see fit to defend or assert his plaintiff had sold and failed to give credit own rights, the plaintiffs should be permitted therefor; that the defendant Jennie Hoskin- to protect themselves from the effect of the

alleged improper inclusion of his lots. son, when about to foreclose, induced the

Various allegations of damages and . nuplaintiffs to believe that, if they would not defend, she would continue the arrangement conduct in many respects not already noticed

merous complaints of John M. Hoskinson's substantially as it had been, but proceeded to take judgment, although one of the plain-have been considered, but the only result tiffs had at that time been declared a bank- we are able to reach is that the pleading rupt and discharged from any liability on the states a cause of action which if proved will note; that Jennie Hoskinson flatly refused authorize the trial court merely to enjoin the to perform her contract. It was alleged that sale until such conditions are brought about one Benham C. Nelson had bought certain as may render it equitable and proper to carlots which were not included in the second ry it out. mortgage and “had been released from all

To this extent only the judgment is modprior mortgages,” but were attached and sola ified, and the cause remanded for further under a deficiency judgment against the Nel proceedings in accordance herewith. All the sons on another note from which W. S. Nel

Justices concurring. son had been discharged in bankruptcy; that certain other lots bought by Benham C. Nel

(103 Kan. 44) son subject to the terms of the second mort- SEVERY STATE BANK V. HOYT. gage which were to be released upon pay.

(No. 21266.) ment of a certain price for each front foot

(Supreme Court of Kansas. May 11, 1918.) were included in the foreclosure, and Benham C. Nelson was given no opportunity to

(Syllabus by the Court.) redeem without paying the entire judgment; 1. PRINCIPAL AND SURETY 109_RENEWAL that unless this relief be afforded Benham

NOTE-SURETY-LIABILITY,

A surety for a comaker signed a note as C. Nelson the plaintiffs might be called up-maker. The principal obtained a renewal by on to respond under the covenants of their presenting to the holder a note signed by him. deeds to him. It was prayed that he be pro- The surety's signature was forged. The holder

self and purporting to be signed by the surety. tected and allowed to redeem, and that the sued the principal and the surety in separate acsale under foreclosure be enjoined, and the tions on the renewal note. The actions were title of the plaintiffs to the land be quieted. issue presented to the jury for its determina

consolidated and tried together. The only If, as alleged, the failure to defend was tion was whether or not the signatures to the caused by the promise to continue the for- | renewal note were forged. The jury found &

general verdict against the principal and in fa- , surrendered to the principal debtors, and vor of the surety. The holder then sued the that the new note of the principal debtors surety on the original note, which had been can: had been accepted, on which judgment had celed and delivered to the principal when the renewal note was given. Held, judgment was been rendered. The note disclosed that the properly rendered against the surety.

defendant was a maker, and his liability to

the plaintiff was that of maker, although (Additional Syllabus by Editorial Staff.)

his relation to his comakers was that of 2. PRINCIPAL AND SURETY 145 (2) JUDGo surety. Bank v. Jeltz, 101 Kan. 537, 167 Pac.

MENT-RES JUDICATA ACTION AGAINST
SURETY.

1067. Stamping the note paid and surrenderA judgment in a holder's action against ing it did not discharge it, and no agreement principal and surety on the issue as to forging that the new note should be taken in payment of the surety's name in a renewal note rendered in favor of the surety was not res judicata of the old one was pleaded or proved. Bank in the holder's action against the surety on the v. Cooper, 99 Kan. 731, 162 Pac. 1169. original canceled note.

The new note when taken supposedly bore Appeal from District Court, Elk County.

the defendant's signature. The judgment Action by the Severy State Bank against which the defendant pleaded established the G. N. Hoyt. Judgment for plaintiff, and de- fact that his signature had been forged to the fendant appeals. Affirmed.

new note. Under these circumstances, the

fact that the new note was accepted by the Sheedy & Stryker, of Fredonia, for appel plaintiff did not discharge the old one. This lant. A. F. Sims, of Howard, and F. S. Jack

proposition was conceded by the party whose son, of Topeka, for appellee.

signature had been forged in the case of

Bank v. Jeltz, supra, and is sustained by BURCH, J. The action was one to recover

cases found in case notes, 13 L R. A. (N. S.) on a promissory note. The plaintiff prevail- | 205, and 16 L. R. A. (N. S.) 343. ed, and the defendant appeals.

The fact that judgment against the princiIn 1912 F. M. Seimers and L. C. Seimers, pal debtors was rendered on the renewal as principals, and the defendant, as surety, note does not concern the plaintiff. Both executed and delivered to the plaintiff their notes were for the same indebtedness, and the promissory note, for a consideration not now plaintiff is entitled to establish its claim in dispute. The note was not paid at maturi

against all persons obligated to pay. ty, and in 1913 the plaintiff accepted a renew

The defendant argues that the plaintiff al note for the sum due, signed by the prin- split his cause of action. This is not true. cipals and purporting to be signed by the de. The rule against splitting causes of action apfendant. The old note was stamped paid and plies to separate actions against the same delivered to the principals. The renewal note was not paid at maturity, and the plaintiff person to enforce fractions of the same obli

gation. It does not apply to separate actions brought two actions for the amount due, one

on different causes of action. against the principals and one against the

The judgment of the district court is afdefendant. Apparently, the defendant was firmed. All the Justices concurring. sued separately because he was a nonresident, and it was necessary to proceed against him by attachment. The defendant appear

(103 Kan. 31) ed, and the actions were consolidated and AVERY et al. v. HOWELL. (No. 21058.) tried together. The defense in each case was (Supreme Court of Kansas. May 11, 1918.) that the signatures appearing on the note

(Syllabus by the Court.) were not genuine. Judgment was rendered

COMPROMISE AND SETTLEMENT 15(2)—EFagainst the principals and in favor of the

FECT- LIABILITY TO THIRD PARTY. present defendant. The plaintiff then sued A defendant in an action without merit may the defendant on the original note, with the compromise the litigation without making himresult stated.

self liable in any way to any third party. [2] The main defense was that of res judi Appeal from District Court, Gray County. cata. While the verdict in the former suit On rehearing. Petition for rehearing dewas a general verdict in favor of the de- nied. fendant, the pleadings and the instructions, For former opinion, see 102 Kan, 527, 171 introduced in evidence in the present action, Pac. 628. show that the sole issue determined was the genuineness of the signature to the renewal MARSHALL, J. In a petition for a renote. The present action is on a different hearing, the plaintiffs earnestly contend that note, which the defendant admitted he signed, the principal proposition argued by them and consequently the defense of res judicata was overlooked by the court in Avery et al.

In was not sustained. Stroup v. Pepper, 69 Kan. v. Howell, 102 Kan. 527, 171 Pac. 628. 241, 76 Pac. 825.

their brief, the plaintiffs urged that: [1] Another defense was that the defend

“The court erred in taking from the jury the

evidence of the settlement of the specific perant was an “accommodation indorser," that formance suit brought by Hanna against dethe note sued on had been marked paid and fendants, and in not holding that the settlement

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of such suit was a waiver of all defenses to ceded, a judgment may properly be entered plaintiffs' claim for a commission."

against such creditor in favor of the other crediThis court refused to reverse the judg-tors for the sums due them from the debtor in ment on account of the withdrawal of the conformity with the terms of the assignment evidence of the settlement, but did not say Appeal from District Court, Kiowa County. anything about the trial court's not holding Action by Tim Rich and others against M. that the settlement of the suit was waiver C. Snyder and others. Judgment agai deof all defenses to the plaintiffs' commission. fendant named, and he appeals. Affirmed. By' compromising the action commenced by John D. Beck, of Greensburg, for appelD. H. Hanna, the defendants did not render lant. C. H. Bissitt and 0. G. Underwood, themselves liable to the plaintiffs for the both of Greensburg, for appellees. payment of any commission. By compromising the litigation, the defendants did not

DAWSON, J. The plaintiffs were the asadmit either the justice of Hanna's claim, or that they were liable thereon. They may

signees of an insurance policy for $200. The have paid $150 to get rid of a vexatious law- insured, R. W. Farris, who had suffered a suit when they knew that they could pre- satisfy debts due for work and labor. The

fire loss, assigned the policy to them to vail by fighting. To hold the defendants

insurance company sent the money to pay the liable for the commission which the plaintiff's seek to recover would be to discour-fre loss to its local agent, F. W. Roberts, age settling litigation, The policy of

and the defendant, M. C. Snyder, sued Farris the law should be, and is, to encourage Roberts. Snyder knew that the policy bad

and garnished the money in the hands of compromises. When they are made the

theretofore been assigned to plaintiffs; and rights of third parties are not in any way affected thereby. The plaintiffs' right to re- ings, but were not made parties thereto.

plaintiffs knew of the garnishment proceedcover commission from the defendants can. Snyder obtained judgment, and the money not be based on the settlement of the action

was paid over to him. Thereupon plaintiffs commenced by Hanna. The plaintiffs cite Davis v. Roseberry, 95 Kan. 411, 148 Pac. brought this action against Snyder and the 629; Parker v. Estabrook, 68 N. H. 349, 44 other parties concerned, and obtained judgAtl. 484; Willson v. Crawford, 61 Tex. Civ. due them from Farris, and for the satis

ment against Snyder for the exact amounts App. 580, 130 S. W. 227; Foster v. Holbrook- faction of which sums Farris had assigned Armstrong Iron Co., 158 Wis. 447, 149 N.

the policy to them. W. 148; Kirkland v. Berry, 136 S. W. 832.

[1, 2] Just what error in this judgment is None of the cases cited is controlling in the present action. In Davis v. Roseberry, It is said that the action brought was equi

urged by defendant is not easily discernible. supra, the landowner voluntarily accepted table in its nature, and that an adequate $500 in lieu of other performance of a bind- remedy at law would have answered the ing contract. In the present action the con

purpose. Notwithstanding our Code has tract was not binding, and the $150 was not abolished the ancient distinctions and forms paid in lieu of performance.

of actions at law and of suits in equity, and The judgment of affirmance is adhered to, has provided one form of action—a civil and the petition for a rehearing is denied.

action-in lieu thereof, fundamental differAll the Justices concurring.

ences in actions sometimes do exist, but we

do not discern how any such differences at(103 Kan. 116)

fect the case at bar. The facts were all RICH et al. v. ROBERTS et al. (No. 21534.) pleaded. The parties were all before the

court, and their true relationship was (Supreme Court of Kansas. May 11, 1918.) proper subject of judicial inquiry. The gar

nishment did not lawfully operate on so much (Syllabus by the Court.)

of the proceeds of the policy as had already 1. GARNISHMENT Om51-ASSIGNED PROPERTY. Rule followed that a garnishment only

been assigned to plaintiffs. Hall v. Terra reaches the property which actually belongs Cotta Co., 97 Kan. 103, 154 Pac. 210, L. R. A. to the debtor, and does not lawfully reach that 1916D, 361. Having gotten possession of the which the debtor has already assigned in good proceeds of the insurance policy when he faith to other creditors.

knew it had been assigned to plaintiffs, Sny2. TRUSTS 104 – PROCEEDS OF INSURANCE

POLICY - ASSIGNMENT – RIGHTS OF CREDI. der became, in law, a trustee thereof for TORS.

plaintiffs' benefit. He must therefore band Where a creditor in a garnishment proceed-over to plaintiffs their due. There is no seming gets possession of the proceeds of an insurance policy which had already been lawfully blance of error in this judgment. It is not assigned to other creditors, he holds such pro-conceivable that some different form of acceeds as trustee for the benefit of such other tion or different procedure properly invoked creditors; and, in an action where all parties concerned are brought into court and all the could have brought about a different result. pertinent facts are pleaded and proved or con- Affirmed. All the Justices concurring.

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(103 Kan. 169)

county commissioners had advertised for WASHBURN et al. v. BOARD OF COM'RS bids for doing the work, when a new ac

OF SHAWNEE COUNTY. (No. 21948.) tion was brought to enjoin it by an owner (Supreme Court of Kansas. May 18, 1918.) of land in the benefit district and a resident

of the township who is liable for taxes on (Syllabus by the Court.)

property elsewhere in the county. The plain1. HIGIWAYS 122 – IMPROVEMENT - AP- tiffs were denied relief and appeal. PORTIONMENT OF COSTS STATUTE.

[1] 1. They contend that it was beyond the Where proceedings for the improvement of 2 highway are begun under a statute providing power of the Legislature to change the disthat one-fourth of the cost shall be paid by the tribution of the cost of the improvement afttownship and the remainder charged against er the petition therefor had been signed and the land in a benefit district, it is competent acted upon. We regard the contention as for the Legislature thereafter to change the distribution so that the cost shall fall one not well founded. The owners of the land fourth on the township, one-half on the county, within the benefit district were not prejudic. and the remainder upon the land in the benefit ed by the alteration, because their burden district. The owner of the specially benefited land is not prejudiced, for his burden is light was diminished. The taxpayers of the townened, and the general taxpayers of the county ship were not affected as such. The taxhave no legal ground of complaint, because it payers of the county have no legal basis for is within the discretion of the Legislature to complaint, for it was competent for the Legimpose any part of the cost of a highway upon islature to impose upon the county any part the county. 2. HIGHWAYS 122_IMPROVEMENT-APPOR- of the cost of the highway. 2 Cooley on TIONMENT OF COSTS-STATUTE-NOTICE. Taxation, 1203-1205. See, also, State v.

In such a statute no provision is necessary County of Shawnee, 28 Kan. 431. It is true, for notice to the owners of property other than land in the benefit district, for as to them the

some of the petitioners might possibly have tax is general, or, if it is regarded as special, been opposed to the road if they had known they are conceived as having notice through that half of the expense was to be borne by their representatives in the Legislature; that the county. But as the Legislature could body having itself determined the apportionment have dispensed with the petition altogether of the burden. 3. HIGHWAYS 109_PUBLIC IMPROVEMENT

in the first place, it could do so at a later „PETITION FOR ROADWAY-CALL FOR BIDS- date as well. 12 C. 1091. VARIANCE.

[2] 2. The plaintiffs argue that the statA call for bids for the construction of "aute is invalid under the rule that “before hard surface road of bituminous macadam'" shows no departure from the requirements of a special taxes can be made a fixed and per. petition for a roadway of "crushed stone or ma- manent charge upon the property of such incadam with a top surface of Bermudez asphalt, dividuals, they must have notice, with an or other asphalt equally as good, employing opportunity ... to contest the validity what is known as the 'penetration' method."

and fairness of such taxes." Gilmore, CounAppeal from District Court, Shawnee ty Clerk, v. Hentig, 33 Kan. 156, 5 Pac. 781. County.

Provision is made for notice to the owners Action by F. M. Washburn and others of land in the benefit district. . Section 6. against the Board of County Commissioners As to other taxpayers, the tax is a general of Shawnee County. Judgment for defend- one. But if it be regarded as special, the ant, and plaintiffs appeal. Affirmed.

property owner is regarded as having notice James A. Troutman, of Topeka, for appel. and hearing through his representatives in lants. Hugh T. Fisher, of Topeka, for ap- the Legislature, inasmuch as that body has pellee.

itself directly determined the apportionment

of the burden, without committing any essenMASON, J. Prior to 1917, proceedings Railroad Co. v. Abilene, 78 Kan. 820, 826,

tial feature thereof to an inferior tribunal. were begun for the improvement of a high- 98 Pac. 224; 1 Taxation by Assessment, Page way under a statute providing that one & Jones, 8 123; Judson on Taxation (2d Ed.) fourth of the cost should be paid by the township, and that the remainder should be $ 418. So far as relates to the valuation of charged against the land in a benefit district. his property, the taxpayer has the benefit of Gen. Stat. 1915, 88 8815-8826. By reason of the notice and hearing provided by the statlitigation which resulted in confirming the ute relating to general taxation. validity of the steps already taken (Steven

[3] 3. The petition asked for the improve son v. Shawnee County, 98 Kan. 671, 704, ment of the highway "by constructing a road159 Pac. 5), the work was delayed, and in the way

* * using stone or macadam with meantime the statute was amended (Laws of a top surface of Bermudez asphalt, or other 1917, c. 265): the amendment being specifi. asphalt equally as good, employing what is cally made applicable to roads theretofore known as the 'penetration method.' The petitioned for (section 14). In the new stato notice to contractors asks for bids "for the ute the distribution of the cost was changed constructing of a hard surface road of 'biso that the township should bear one-fourth, tuminous macadam'

as called for the county one-half, and the land in the ben- in the plans and specifications efit district the remainder. Section 6. The on file in the office of the county clerk.” The

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

now

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