(188 P.) sufficient to justify submitting to the jury, the question whether an agreement had been made by the former owners establishing the boundary as marked by the fence, irrespective of its correspondence with the line of the government survey. The plaintiff contends also that the court erred in submitting to the jury the question whether the defendant's title to the strip in controversy had become unassailable by reason of its having been held by adverse possession for more than 15 years. He asserts that, although it was shown that the defendant and his predecessors had for more than the limitation period occupied and claimed ownership of all the ground east of the fence, there was no evidence whatever that they had done so upon any other theory than that the fence stood upon the section line. The only testimony on this phase of the matter in addition to what has already been stated was to the effect that the defendant and his predecessors had occupied, used, and claimed up to the fence. In view of the entire record the court is of the opinion that the question of adverse possession was properly allowed to go to the jury. [5] 5. Several objections are made to the instructions. In referring to the period of limitation the trial court appears by inadvertence to have spoken of the action as having been begun on October 16, 1916, instead of October 16, 1915. No prejudice can have resulted, for the jury could not have found that the statutory period had expired between the dates named. Under the evidence, if the bar was available at the later date, it was equally so at the earlier. Another instruction which is complained of merely followed the third paragraph of the syllabus in Peterson v. Hollis, 90 Kan. 655, 136 Pac. 258, Ann. Cas. 1915B, 725. Other objections to the charge relate to matters already discussed. [6] 6. The plaintiff complains of the refusal of the court to give a requested instruction reading: "If * * during the 15 years, or any part thereof, next preceding the commencement of this action, the defendant, though in possession of the strip in controversy, intended only to claim to the true west boundary line of his quarter sections, then his possession was not hostile or adverse, and such possession gave him no title to the strip in controversy in this case." The rule there invoked is generally accepted (2 C. J. 139; 1 R. C. L. 732), and is followed in this jurisdiction. No question is raised as to its correctness, but the contention is made that the proposition involved is sufficiently covered by instructions that were given, reading thus: "You are instructed that if you believe from the evidence that the fence which is claimed by the defendant to have been established as a boundary line was placed and constructed by the parties owning or occupying the land on either side thereof by the agreement of the parties merely for the convenience of using and working the land, and not for the purpose of marking the boundaries, then neither party would be bound by the existence of the fence as established there as an agreed boundary line or by adverse possession of the lands in controversy." "You are instructed that, although you may believe from the evidence that the fence dividing the subdivisions of land now owned by the the true line, but that the defendant and his parties to this action was constructed west of grantors have been in possession of the tract of land now in dispute lying east of the fence for a period of more than 15 years next preceding the commencement of this action, yet if you believe from the evidence that such fence was constructed under an agreement as to the location of the true line with the intention intention of fixing a permanent boundary, but of placing it upon the true line, not with the simply locating it upon the true line, each party claiming up to the true line of said tracts, then you are instructed the occupancy of such disputed strip by the defendant or his grantors would not constitute adverse possession until after the defendant or his grantors had notified the plaintiff or the parties under whom he claims title to said disputed strip of land.” The first of these instructions hardly meets the issue, for it relates to a fence not intended to mark the boundary at all. While the language of the other is used with particular reference to the agreement, the court believes that it points out, sufficiently for the purposes of the case, the difference in effect between a claim of ownership up to a fence on the theory that it marks the true boundary, and such a claim made irrespective of that consideration. [7] 7. The plaintiff urges that the same reasons that led the court to grant a new trial with respect to the south portion of the strip in controversy applied with equal force to the north portion. There was some similarity in the evidence applicable to each portion, but there was also enough difference so that the court may reasonably have been satisfied with the verdict in the one case and not in the other. [8] 8. A new trial was asked on the ground of newly discovered evidence, which was that of three brothers of the defendant, each of whom from 1907 to 1910 had owned an undivided interest in the Chessmore land which he had acquired by inheritance. Each of them, on his deposition being taken gave a negative answer to the question whether he had ever claimed any ownership west of the true boundary line of the tract. As none of them was shown ever to have been in actual possession of the land, the testimony was not important. The judgment is affirmed. I will write him, and see what he says. As he won't give any more than the $3,200, if he takes the place I will expect a regular commission of five per cent. and two and one-half per cent., which will be $105, but will close the deal if I can at $100 for you." On September 15th the defendants telegraphed the plaintiff, and confirmed the telegram by letter that they would sell for $3,200 cash and pay $100 commission, the offer to be good until the 19th. On September 20th the plaintiff wired the defendants as follows: "My man failed to come. Rent your land." On September 27th the defendants wrote the Appeal from District Court, Decatur plaintiff regarding lease of the land, and said: County. Action by Justin T. Avery against Charles Baird and another to recover commissions for the sale of land. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions. L. H. Wilder, of Norton, New, Miller, Camack & Winger and Frank P. Barker, all of Kansas City, for appellants. J. P. Noble, of Oberlin, for appellee. BURCH, J. The action was one by a real estate agent to recover a commission for the sale of a tract of land. The plaintiff recovered, and the defendants appeal. The plaintiff pleaded that he sent the defendants the following telegram: “Think I can close deal on McKenzie quarter $3,100 cash net to you. Wire answer." The defendants replied as follows: "Will sell McKenzie quarter thirty-one hundred cash net to us." Pursuant to these telegrams, the plaintiff negotiated a sale of the land for $3,400, which the defendants received. The defendants refused to pay the plaintiff his claimed commission of $300, and the prayer was for judgment for that sum. The answer was that the plaintiff was agent for the defendants in negotiating the sale, and as such agent was guilty of fraud. The reply denied agency, under oath, and denied generally other allegations of the answer. "We shall leave the sale of this land in your hands, and any time you have a definite proposition for purchase of the same, trust you will let us know at once." On October 13th the telegrams set out in the petition were exchanged. The fact was that before sending the telegram, "Think I can close deal on McKenzie quarter $3,100 cash net to you," the plaintiff had already negotiated a sale for $3,400, and had given the purchaser a written contract of sale at that price, bearing the following signature: "Baird and Cochran, by their agent, Justin T. Avery." The plaintiff forwarded the contract to the defendants, which they approved and carried out with the purchaser. They objected, however, to paying the plaintiff a commission of $300, and insisted that in no event could they be liable for more than the At the trial the usual commission, $110. plaintiff admitted the sale had been negotiated before the telegrams of October 13th were exchanged. There is no fairly debatable question in the case. That the plaintiff was agent of the defendants was conclusively proved by his conduct in negotiating a sale of the land, and in signing the contract of sale as agent, before it occurred to him to trick his principals in the matter of the commission. Having negotiated the sale, it was his duty to give a faithful report of the facts, instead of resorting to the preliminary subterfuge disclosed by his uncandid telegram. Having violated this duty to his principals, the plaintiff forfeited his right to any commission. Jeffries v. Robbins, 66 Kan. 427, 71 Pac. 852; Deter V. Jackson, 76 Kan. 568, 92 Pac. 546. makes no difference that the defendants carried out the contract with the purchaser. The courts are closed to an action by the plaintiff for relief based on his own fraud. Krhut v. Phares, 80 Kan, 515, 103 Pac. 117: Ratliffe v. Cease, 100 Kan. 445, 164 Pac. 1091. The judgment of the district court is re note that you will accept $3,200 net for the versed, and the cause is remanded, with diMcKenzie quarter. I just received a letter from Mr. Feaster, and $3,200 is the best offer rection to enter judgment for the defendants. he has ever made, and I doubt whether he will take the land at that now, as he has made ar- JOHNSTON, MASON, PORTER, MARrangements to leave for Montana the 18th; but SHALL, and DAWSON, JJ., concurring. The facts are not disputed. In August the plaintiff wrote the defendants that he had an offer of $3,200 for the land, that $3,200 was a fair price, and that he would expect the usual commission in case of sale. The defendants said in reply they would sell for $3,400 net cash, or $3,500 net on time. Correspondence followed which related to sale of the land, and to renting it in case it could not be sold. On September 12th the plaintiff wrote the defendants as follows: "Your favor of the 10th received, and I It (188 P.) WEST, J. (dissenting). When the trans- title or interest in the land, and from this action between the plaintiff and the defend- decision defendants appeal. ants came to a close the latter knew all that the former knew when he sent the criticized telegram. Whatever information he had withheld was now fully in possession of the defendants, who then acted with their eyes wide open, and for them to say now that they should not pay the regular and ordinary commission because their agent had at a previous time undertaken Prior to May 21, 1895, the land had been the property of plaintiff's father, Oliver Martin. Shortly before that date he had been adjudged insane, and his wife, Mary E. Martin, appointed as his guardian. Upon application for the sale of the land, the probate court ordered a sale to be made, and the land was sold to the plaintiff for an adequate to mislead them consideration, and a deed in proper form was is about the same as for one to refuse now executed to him. It is conceded that all the to pay his grocer because at some former statutory steps taken were regular, unless time in history he charged him more than the failure of the record to disclose a notice 85 cents a dozen for eggs. A fraud that does not defraud, and much more an attempt that does not succeed-does not rise to the dignity of a defense to a debt not only owed but acknowledged. In my judgment the plaintiff should recover the usual commission. (106 Kan. 492) MARTIN v. MARTIN et al. (No. 22538.) (Supreme Court of Kansas. March 6, 1920.) (Syllabus by the Court.) INSANE PERSONS 71-GUARDIAN OF INSANE FOR SALE OF LANDS. The law in force prior to the enactment of chapter 247 of the Laws of 1907 (Gen. St. 1915, § 6109) did not require a guardian of the estate of an insane person to give notice of a hearing upon a petition for the sale of land to pay the debts of an insane person, or for the education and maintenance of his family, and where the records of the probate court disclosed that a sale of the land of the insane person was ordered and made in compliance with existing statutes, the failure of the record to show that a notice of a hearing upon the petition to sell was given did not invalidate the sale of the land or the title acquired under the guard ian's deed. of the time and place of the hearing of the petition for authority to sell the land is a defect. They do show a sale, and the confirmation of the sale by the probate court, and the approval of the probate judge is indorsed upon the deed. Shortly after the execution of the deed, and on May 23, 1895, it was placed on record, and the plaintiff has been in possession of the land since that time, a period of more than 24 years. Learning that the records in the probate court did not show a notice of the hearing upon the petition for a sale of the land, the plaintiff brought this action to quiet his title. Three of his brothers and sisters contested the action on the ground that the absence of a notice of a hearing upon the petition for sale avoided the sale and conveyance, and that therefore they had an interest in the land as tenants in common with plaintiff. Does the absence of a record showing notice of the hearing upon the petition to sell the land render the guardian's deed void, or impair the validity of plaintiff's title? Defendants contend that section 12 of chapter 247 of the Laws of 1907 (Gen. Stat. 1915, § 6109) requires that a guardian who petitions for the sale of the property of an insane person shall give notice of the hearing upon the petition, that this notice is jurisdictional, and that noncompliance with the requirement rendered the sale and conveyance void, and therefore subject to collateral attack. That statute does provide that notice Appeal from District Court, Washington of the hearing shall be given, but it was not County. Action to quiet title by John T. Martin against Oliver Martin and others. Judgment for plaintiff, and defendants appeal. Affirmed. Edgar Bennett and F. H. McFarland, both of Washington, Kan., for appellants. J. R. Hyland and Charles Smith, both of Washington, Kan., for appellee. JOHNSTON, J. In an action brought by John T. Martin, to quiet his title to a tract of land in Washington county, judgment was rendered in favor of the plaintiff, barring the answering defendants from claiming any enacted until 1907, and the sale in question was petitioned for, ordered, and made 12 years before that time. If the statute relied on had been in force when the sale was made, there would be some grounds for the contention made by defendants. However, the sale was made under sections 20, 21, and 23 of chapter 60 of the General Statutes of 1868, and that statute does not provide that notice of a hearing upon an application to sell land for the discharge of the debts of an insane person, or for the education and maintenance of his family, shall be given. Notice not being required by the statute, the absence of a recital in the record of the probate court that notice was given does not affect the validity of the proceedings or the guardian's For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sion of the land involved herein much longer The plaintiff has held the absolute possesthan 15 years, and, if there had been a defect in the proceedings, it would have been cured by the statute of limitations. deed that was executed. There was a peti-, thereto, whether it recites, or whether it fails tion, a hearing, an order of sale, a confirma- to recite, that jurisdiction has been acquired." tion of the sale, and compliance with every requirement of the statute then in force. Besides, the probate court is a court of general jurisdiction as to the estates of persons of unsound mind, and its judgments rank with those of the district court. It will therefore be presumed that the court acted within its jurisdiction, unless the record itself contains something which overcomes the presumption. Bank v. Security Co., 65 Kan. 642, 70 Pac. 646; Hager v. Wilson, 106 Kan. 127, 186 Pac. 974; 23 Cyc. 1083. It has been held that: "A collateral attack upon a judicial proceeding in a probate court, under which a sale of land was made by a guardian more than 15 years before, will not be favored." Bradford v. Larkin, 57 Kan. 90, 45 Pac. 69. Since the statute in force at that time did not require a notice of the hearing on a petition to sell the land of the insane person, and there being nothing in the record of the proceedings in the probate court showing the omission of any statutory requirement, or anything to show a lack of jurisdiction, its orders and judgments respecting the sale are not open to collateral attack. It was held in McClanahan v. West, 100 Mo. 309, 13 S. W. 674, cited in Bank v. Security Company, supra, that: "A domestic judgment, rendered by a court of general jurisdiction, cannot be impeached by the parties to it, merely because the record is silent as to the acquisition of jurisdiction. Such judgment is equally conclusive on the parties In view of the conclusions reached, the defendants cannot be regarded as tenants in common with plaintiff, and hence no attention need be given to the contentions on that proposition. The judgment is affirmed. WHITE v. BERKSON BROS. CLOAK & (Supreme Court of Kansas. March 6, 1920.) On motion for rehearing. Motion denied, and former opinion modified. For former opinion, see 187 Pac. 670. PER CURIAM. The motion for a rehearing is denied, but the opinion heretofore handed down is modified by striking out the last sentence thereof, in order to make it clear that the further proceedings are to be determined in the first instance by the trial court. (21 Ariz. 323) (188 P.) The federal Employers' Liability Act April 22, 1908 (Comp. St. §§ 8657-8665) applies only when both employer and employé are engaged in interstate commerce. 3. COURTS 97(5)-FEDERAL DECISIONS CONTROL AS TO WHETHER RAILWAY SERVANT WAS ENGAGED IN INTERSTATE COMMERCE. Decisions of the federal courts are controlling on the question of whether or not a railway servant was, when injured, engaged in interstate commerce, so that his rights as against his employer to recover for the injury would be controlled by federal Employers' Liability Act April 22, 1908 (Comp. St. §§ 8657-8665). 4. COMMERCE 27(8)-RAILWAY SERVANT INSTALLING ELECTRIC BLOCK SYSTEM ENGAGED IN "INTERSTATE COMMERCE." An employé of an interstate railroad was engaged in interstate commerce when installing an electric block signal system along the main line of the railroad, the purpose of the system being to protect trains carrying both interstate and intrastate commerce, the system being attached to or connected with the rails of the track, and liability for an injury received by the employé while so engaged is governed by federal Employers' Liability Act April 22, 1908 (Comp. St. §§ 8657-8665). [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] was in the employ of the defendant, El Paso & Southwestern Railroad Company, as foreman of a gang of men erecting signals along the right of way of the defendant. A plea in bar to the action was filed which stated that the defendant was a railroad corporation engaged in interstate commerce, and that the decedent was in the employment of the defendant and was engaged in interstate commerce work at the time he sustained the injuries resulting in his death. The court decided that under the facts proven the plea was well founded, and entered a judgment sustaining the plea, from which judgment the plaintiff appeals. [1] If the defendant was a railroad corporation engaged in interstate commerce and the decedent was in its employment engaged in interstate commerce work, the plaintiff cannot recover under the state Employers' Liability Law. It is well settled that, since Congress, by the act of 1908, took possession of the field of the employers' liability to employés in interstate transportation by rail, all state laws upon the subject are superseded. Employers' Liability Act U. S. April 22, 1908, c. 149, 35 Stat. at L. 65 (Comp. Stat. § 8657, 8 Fed. Stat. Anno. [2d Ed.] p. 1208); N. Y. C. R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 19180, 439, Ann. Cas. 1917D, 1139, 14 N. C. C. A. 680; N. Y. C. R. Co. v. Porter, 249 U. S. 168, 39 Sup. Ct. 88, 63 L. Ed. 536; So. Pac. Co. v. Indus. Acci. Comm., 251 U. S. 259, 40 Sup. Ct. 130, 64 L. Ed. Mr. Justice Van De Vanter, delivering the opinion of the court in Wabash R. Co. v. Hayes, 234 U. S. 86, 34 Sup. Ct. 729, 58 L. Ed. 1226, said: "Had the injury occurred in interstate commerce, as was alleged, the federal act undoubtedly would have been controlling, and a recovery could not have been had under the common or statute law of the state; in other words, the federal act would have been exclusive in its operation, not merely cumulative." Mondou v. N. Y., N. H. & H. R. Co., 223 U. S. 1, 53-55, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; St. L., etc., R. Co. v. Seale, 229 U. S. 156-158, 33 Sup. Ct. 651, 57 Appeal from Superior Court, Cochise Coun- L. Ed. 1129, Ann. Cas. 1914C, 156; N. C. R. ty; Alfred C. Lockwood, Judge. Co. v. Zachary, 232 U. S. 248, 256, 34 Sup. Action by Harriet A. Saxton against the David Benshimol, of Douglas, for appellant. Boyle & Pickett, of Douglas, for appellee. BAKER, J. This action was commenced under the state Employers' Liability Law (chapter 6, pars. 3153-3162, Civil Code 1913) by the plaintiff, Harriet A. Saxton, to recover damages for the death of her son, Roy V. Saxton, alleged to have occurred while he The court below found the facts to be: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |