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proves that the defendant occupied and used the small piece of land, and also proves the value of the use and occupation of the entire tract, but does not prove the value of the use and occupation of the small piece of land used and occupied by the defendant, nor of any other portion of the large tract, and the jury render a verdict in favor of the plaintiff and against the defendant, assessing the plaintiff's damages at the value of the use and occupation of the entire tract, and judgment is rendered accordingly, held error.

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VALENTINE, J. This was an action, brought before a justice of the peace of Leavenworth county by David Atchison against the Missouri Pacific Railway Company, to recover $200, for the occupation and use by the defendant of a certain piece of land belonging to the plaintiff. The defendant answered in the justice's court denying the allegations of the plaintiff's bill of particulars, and alleging that the defendant itself owned the land, and had the rightful possession thereof. defendant also moved the court to certify the case to the district court upon the grounds that the title to the land, and also the boundaries thereof, were in dispute; and the justice sustained the second ground, and certified the case to the district court. After the case had been transmitted to the district court the defendant moved the district court to dismiss the same upon the grounds (1) that the justice of the peace had no jurisdiction of the action. for the reason that the action was merely trespass upon real estate, and where the damages demanded exceeded $100; (2) that the district court had no jurisdiction of the case, for the reason that the case had come to the district court only by being certified thereto by a justice of the peace, who had no jurisdiction. This motion was overruled by the district court, and the case was then tried before the court and a jury; and the jury rendered a general verdict in favor of the plaintiff and against the defendant, and assessed the plaintiff's damages at $200, and judgment was rendered accordingly; and to reverse this judgment, the defendant, as plaintiff in error, brings the case to this

court.

We think the justice of the peace had jurisdiction of the case. It is, perhaps, true that the defendant's possession and use of the plaintiff's property was a tort and a trespass, as, according to the plaintiff's bill of particulars, the defendant occupied the property without the consent of the plaintiff, and if the plaintiff's action had been brought only for the trespass the justice would not have had any jurisdiction to try the case; for a justice of the peace, in Kansas, has jurisdiction in actions for trespass upon real estate only where the damages demanded do not exceed $100. Justice's Act, § 6. But the plaintiff's action was not merely one for the

trespass. He, in effect, waived the trespass, and in fact sued for the value of the use and occupation of his property as upon an implied contract. In the case of Fanson v. Linsley, 20 Kan. 235, the following decision was made by this court: "(2) Whenever one person commits a wrong or tort against the estate of another with the intention of benefiting his own estate, the law will, at the election of the party injured, imply or presume a contract on the part of the wrongdoer to pay to the party injured the full value of all benefits resulting to such wrong-doer; and when the injured party elects to waive the tort his cause of action may be used as a set-off. (3) Where one person commits a wrong or tort against another without any intention of benefiting his own estate, and his own estate is not thereby benefited, the law will not imply or presume a contract on the part of such wrong-doer to pay for the resulting damages; and such cause of action cannot be used as a set-off." See, also, Hagaman v. Neitzel, 15 Kan. 384; McGonigle v. Atchison, 33 Kan. 726, 7 Pac. Rep. 550. See, also, section 20 of the act relating to landlords and tenants, which reads as follows: "Sec. 20. The occupant, without special contract, of any lands shall be liable for the rent to any person entitled thereto." Besides, when this case was taken from the justice of the peace to the district court, the district court took the case in the same manner as though it had been originally commenced in that court; and, even if we should call the occupation of the premiser by the defendant an absolute trespass upon the property, still the district court would have taken complete and ample jurisdiction of the case, and might have permitted the plaintiff to demand and recover damages for any amount which he might have been able to prove. Section 7 of the justice's act, which provides for certifying cases from a justice of the peace to the district court when "title or boundaries 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 will be seen from this that the district court, when a case is certified to it as this case was, in effect takes original jurisdiction of the case, and not appellate jurisdiction; and hence the case of Wagstaff v. Challiss, 31 Kan. 212, 1 Pac. Rep. 631, has no application to this case. See, also, in this connection, Shuster v. Finan, 19 Kan. 114; Miller v. Bogart, Id. 117; and Douglass v. Easter, 32 Kan. 496, 4 Pac. Rep. 1034. We think the jurisdiction of the district court, after the case was taken there, was as broad and ample as though the case had been originally commenced in that court.

The second claim of error is that the amount of the recovery is excessive. It appears that the plaintiff below owned a tract of land east of the defendant's railway, and between it and the Missouri river, 150 feet

long, north and south, and 70 feet wide, east and west. In his amended bill of particulars he alleged that the railway company had occupied and used a portion thereof 100 feet in length and 20 feet in width. On the trial he proved that the railway company had occupied and used a portion thereof 57 feet in length and 20 feet in width, or, in other words, nearly one-ninth of the entire tract. This small piece of ground the railway company had occupied and used for two years next preceding the commencement of this action, and the plaintiff claimed $200 damages therefor. On the trial he proved that the value of the use of the entire tract was $100 a year, or $200 for the use of the entire tract for the entire time for which the plaintiff sued; and he did not prove what the value of the use of the ground occupied by the railway company was, or what the value of the use of any other portion of ground out of the entire tract was. The verdict of the jury was in favor of the plaintiff, and they assessed his damages at $200; for which amount, with costs of suit, the court rendered judgment. Now, it is clear beyond all question that the plaintiff should not recover damages or compensation for the use of his entire tract of land when he did not in his pleadings claim for all, and when the railway company in fact occupied and used only a small portion thereof,-less than one-ninth thereof. Hence the verdict of the jury, and the judgment of the court below, were in this respect erroneous. Under the evidence, we have no means of equitably adjusting or apportioning the values of the use of the different portions of the entire tract, or of equitably determining what should be the amount of the recovery. Hence for this error the judgment of the court below must be reversed. Powers v. Clarkson, 11 Kan. 101. The judgment will be reversed, and cause remanded for a new trial. All the justices concurring.

(43 Kan. 446)

MILLER . MORRISON et al. (Supreme Court of Kansas. April 4, 1890.) ALIMONY JUDGMENT-SATISFACTION.

A decree of divorce was rendered, and the custody of a minor son was given to the mother, and the father was required to pay to the mother $300. Two hundred dollars of that amount was afterwards paid, and afterwards the father and mother entered into an agreement that if the father would take the care and custody of the minor son, that the mother would relieve him from the payment of the other $100 still remaining due and unpaid, and the father, in pursuance of such agreement, did take such son under his charge, and continued to support and maintain him. Held, that the agreement was valid, and that these transactions had the effect to pay, satisfy, and discharge the judgment for the remaining $100.

(Syllabus by the Court.)

Error from district court, Atchison county; SENECA HEATH, Judge pro tem.

This was an action brought in the district court of Atchison county by George H. Milier against Keturah V. Morrison and Frank

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E. Shaw, sheriff of Atchison county, to restrain the defendants from enforcing and collecting a certain judgment, and an execution issued thereon. Mrs. Morrison, who was formerly the wife of Miller, was the judgment creditor; Miller was the judgment debtor; and Shaw, who was the sheriff of Atchison county, had the execution in his hands, had already levied the same upon the property of Miller, and was advertising the property for sale. The case was tried before the court without a jury, and the court made special findings of fact and conclusions of law, which read as follows:

"FINDINGS OF FACT.

"(1) At the June term for 1885 of said court, in a case then pending in said court, wherein the above-named defendant Keturah Morrison, then Keturah Miller, wife of said George H. Miller, was plaintiff, and said George H. Miller was defendant, a decree of divorce divorcing said parties was rendered on the 30th day of June, 1885, on the crosspetition of the said George H. Miller, and by reason of the default [this should be another word] of the wife, said Keturah Miller, the decree granted to said Keturah Miller the custody of their son Harry Miller, then aged two (2) years, and to said George H. Miller the custody of their son Harvey Miller, then aged five (5) years, such custody in each case to continue until the further order of the court. No special provision was made for the support of either of the children, but the wife was awarded absolutely three hundred dollars ($300) as alimony, to be paid as follows: One hundred dollars ($100) in sixty (60) days, one hundred dollars ($100) in one (1) year, and one hundred dollars ($100) in two (2) years, and such alimony declared and adjudged to be a lien upon the property of the said George H. Miller, described in the petition in this action.

"(2) The first of said installments was paid when due. In February, 1886, said Keturah Miller told the plaintiff, Geo. H. Miller, (who had on several occasions since the divorce tried to induce her to give him the said child Harry Miller,) that if he would take the said child, and keep him with the other child, she would release him from the payment of the last installment, and, upon his agreement to do so, took, with the consent of said George H. Miller, both of said children to her home, about five miles dis tant from the home of said George H. Miller, and about five (5) days thereafter returned both of them to said Geo. H. Miller, who has since that time had the custody and full charge and control of said children, and has cared for and kept them at his own expense. There was no definite time agreed upon as to which said Geo. H. Miller was to keep said Harry Miller, but by the acts of the parties, and the circumstances succeeding and connected with the agreement, it is shown that both parties intended that the mother of said children should not thereafter have anything to do with the custody, care, nurt

ure, education, and support of said children. "(3) The second installment of said alimony was paid when due, and the last installment has not been paid by reason of the agreement between said plaintiff, George H. Miller, and said defendant Keturah Morrison."

"CONCLUSIONS OF LAW.

"(1) Said plaintiff, George H. Miller, is still liable for the payment of the last installment of said alimony.

"(2) The plaintiff is not entitled to the permanent injunction prayed for in this action."

Upon these findings and conclusions the court below rendered judgment in favor of the defendants, and against the plaintiff, and the plaintiff, as plaintiff in error, brings the case to this court for review.

Jackson & Royse, for plaintiff in error. J. T. Allensworth, for defendant in error.

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VALENTINE, J., (after stating the facts as above.) In this state, under all ordinary circumstances, the father and mother of minor children born in lawful wedlock have an equal and a joint right to the possession, custody, and control of their minor children, and neither has a superior right to the other. Const. Kan. art. 15, § 6; Act Relating to Guardians and Wards, § 1; State v. Jones, 16 Kan. 611. And, as a consequence of such equal and joint right, they are also under an equal and joint obligation to care for and to support and educate their minor children. Harris v. Harris, 5 Kan. 46, 50. In the case just cited, the following language is used: But this obligation rests equally upon the mother, and this whether it be regarded as a legal or natural duty. Originally it was a purely natural obligation, resting upon both parents alike. At an early period a sanction was added to this natural duty by St. 43 Eliz. c. 2, which directs that the father and mother, grandfather and grandmother, of poor impotent persons, shall maintain them, if of sufficient ability, as the quarter sessions shall direct.' 1 Bl. Com. 448. This statute being in aid of the common law, and to enforce a natural duty, is adopted in this state by statute. Comp. Laws 1862, p. 678. This statute makes it alike the duty of the mother, as of the father, to support their children, and applies only to those unable to support themselves, whether they be minors or not, and makes this duty dependent upon the ability of the ancestor to discharge it. Without this ability, there is no legal liability." It will be seen by an inspection of our constitution and statutes that the rules of the common law, with respect to the rights and duties of fathers and mothers with regard to their minor children, have been considerably changed and modified in Kansas. The tendency in Kansas has always been towards an exact equality among the sexes under the law. The tendency has been to place all adult persons, male and female, upon the same legal plane, so far as such a thing can be accomplished.

But while the rights of parents under the laws of Kansas to the custody and control of their minor children are exactly equal, yet neither has such an absolute right in this regard that it may not, under particular circumstances, or by contract, or by a decree of a court, be greatly modified or absolutely abrogated. Act Relating to Minors, § 5 el seq.; Civil Code, § 645; In re Bort, 25 Kan. 308; Chapsky v. Wood, 26 Kan. 650; Walrath v. Walrath, 27 Kan. 395; Strong v. Marcy, 33 Kan. 109, 5 Pac. Rep. 366; Chandler v. Dye, 37 Kan. 765, 15 Pac. Rep. 925. We suppose that it will be admitted that the obligation or duty of the plaintiff, Miller, to see that his son Harry should be properly supported and cared for, was not completely annulled by the decree rendered in the divorce case; but certainly by such decree his obligation to that effect was made only secondary, and that of his divorced wife, Keturah, was made primary. Indeed, as between the two, it was her duty alone to support, care for, and educate their son Harry. She obtained the right by such decree to Harry's custody and services, and that right carried with it the duty and obligation to support and maintain him. Mr. Bishop, in his work on Marriage and Divorce, has cited the following among other cases: Husband v. Husband, 67 Ind. 583; Pawling v. Willson, 13 Johns. 192; Finch v. Finch, 22 Conn. 411; Fitler v. Fitler, 33 Pa. St. 50; and then he uses the following language: "The true legal principle applicable to cases of this kind seems to be that the right to the services of the children and the obligation to maintain them go together; and, if the assignment of the custody to the wife extends to depriving the father of his claim to their services, then he cannot be compelled to maintain them otherwise than in pursuance of some statutory regulation. So where the court, granting the divorce and assigning the custody to the wife, makes, under authority of the statute, provision for their support out of the husband's estate, he would seem, within principles already mentioned, to be relieved from all further obligation." 2 Bish. Mar. & Div. § 557. We think the decree rendered in the divorce case, giving the custody of the son to the mother, virtually, as between the father and the mother, but without reference to the father's obligations to the son and to the public generally, relieved the father from all obligation to support and maintain his son, and cast the burden of such support upon the mother. In other words, as between the father and the mother, it became the mother's duty entirely. by such decree to support and maintain their son, and therefore there was ample and sufficient consideration for the agreement entered into between the father and the mother that, if the father would take the care and custody of the son, she would relieve him from the payment of the $100, still remaining due and unpaid on the judgment rendered in the divorce case; and as the father did take the son under his charge, and under

such agreement, and has continued to support and maintain him, we think the judgment for such $100 has been completely paid, satisfied, and discharged, and therefore that the father should not be further harassed and molested by any attempt to enforce the same. As tending strongly to support this view, see the case of Walrath v. Walrath, 27 Kan. 395. See, also, Chandler v. Dye, 37 Kan. 765, 15 Pac. Rep. 925. The judgment of the court below will be reversed, and cause remanded, with the order that judgment be rendered upon the findings of the court below, as prayed for in the plaintiff's petition. All the justices concurring.

(43 Kan. 590)

WILKINSON v. ELLIOTT et al. (Supreme Court of Kansas. April 4, 1890.) DIVORCE-ALIMONY-LIS PENDENS-HUSBAND AND

WIFE-CONVEYANCES.

1. Where the wife files a petition asking for a divorce and for alimony, in which she definitely described certain real estate of the husband, and prays that it may be set apart and decreed to her as permanent alimony, the doctrine of lis pendens will apply; and any one who purchases such property during the pendency of the action will be bound by the judgment subsequently rendered

therein.

2. Where a party temporarily hands a petition to the clerk of the district court, in order that he may place his file-marks thereon, and not for the purpose of allowing it to remain in official custody as a permanent record, and he does not ask for, or obtain, the issuance of a summons, but holds the petition in his own possession, away from the record, the action is not pending, within the meaning of the statute on lis pendens.

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as their homestead. The power of attorney was executed on February 19, 1883, and was recorded on February 22, 1883. After the settlement was made, Mrs. Wilkinson moved from the land to a house in the same neighborhood, where she resided for a short time; and she subsequently went from there to the home of her father. On May 25th of the same year, Alexander C. Wilkinson negotiated and sold the land to John B. Elliott, and under and by virtue of the power of attorney mentioned he conveyed her interest to the purchaser. The purchase price of the land was about $2,200, which was made up in part of a mortgage upon the land of $700, and also of a judgment and some tax-liens, which Elliott assumed. On May 21, 1883, Augusta L. Wilkinson, by her counsel, prepared a petition praying for a divorce from her husband on the ground of gross neglect of duty, and praying, also, that the real estate in controversy should be granted to her by the court as permanent alimony. The petition was presented to the clerk of the district court, who placed his file-marks thereon, when it was immediately thereafter taken by counsel for plaintiff in error from the court and the possession of the officer. There was præcipe for a summons filed, nor any summons issued, until May 25, 1883, and not then until after the conveyance to Elliott had been made. On the 24th day of May, and upon the application of Augusta L. Wilkinson, an order was granted by the district judge, at his chambers, restraining her husband from selling or disposing of this real estate during the pendency of the divorce proceedings. But this order was not filed in the district court until the 25th day of May, nor served until the following day; and the testimony of the defendant in error tends to show that neither the order nor the original petition which had been filed were returned to the district court until after the transfer of the real estate in controversy was made to Elliott. On May 20, 1885, a divorce was granted by the district court; and in the judgJOHNSTON, J. This was an action brought ment it was decreed that the land in controby Augusta L. Wilkinson against John B. versy should be given to Augusta L. WilkinElliott and Alexander C. Wilkinson, for the son as permanent alimony. Soon afterwards, purpose of canceling a certain deed convey-she brought the present action; and the dising a quarter section of land, which purported to have been executed by Wilkinson and the plaintiff to John B. Elliott on May 25, 1883, and to quiet the title to the land in her. Some of the leading facts in the case are that on February 19, 1883, the plaintiff and Alexander C. Wilkinson were then, and for a long time prior thereto had been, living together as husband and wife, and their family at that time consisted of six children. Some difficulty having arisen between them, they agreed to separate; and, in the settlement made between them, it was arranged that she should take a herd of cattle, and in turn should execute to him a power of attorney authorizing him to sell the real estate in controversy, the title to which stood in his name, and it had previously been occupied by them

3. The case of Munger v. Baldridge, 41 Kan. 236, 21 Pac. Rep. 159, holding that a married woman may appoint her husband, by power of attorney, as her agent to convey the inchoate interest which she holds in his real estate, followed. (Syllabus by the Court.)

Error from district court, Sedgwick county; T. B. WALL, Judge.

George, King & Schwinn, for plaintiff in error. Murray & Elliott, for defendant in

error.

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trict court, after a full hearing upon the evidence offered, made a general finding in favor of the defendants, and denied the plaintiff the relief asked for.

Two points are made against the judgment: First, that the power of attorney executed by Mrs. Wilkinson, authorizing the conveyance of the land, was void for the reason that she was a married woman, and was therefore incapable of thus conferring authority on her husband to convey the land in controversy; and, second, that the conveyance of the land to Elliott was made during the pendency of the action for divorce and alimony, and that, under the doctrine of lis pendens, Elliott took the conveyance subject to any judgment that might be rendered in that action.

In regard to the first question, it has already been determined by this court that "a married woman may appoint her husband, by power of attorney, as her agent to convey the inchoate interest which she holds in his real estate and an instrument duly executed by himself, and by him for her under such authority, is effectual to transfer such interest." Munger v. Baldridge, 41 Kan. 236, 21 Pac. Rep. 159. It is claimed that a different rule applies where the land attempted to be conveyed is a homestead, but this question we need not determine. After the settlement between Wilkinson and his wife, and before the conveyance to Elliott, they ceased to occupy the land as a homestead. There is some controversy in regard to whether the land retained the homestead character after the possession of the same had been surrendered, but, in view of the general findings of the court in favor of the defendants, we must assume that the homestead was voluntarily abandoned by them; and hence the case of Munger v. Baldridge is an applicable and controlling authority. The power of attorney was sufficient in form, and after execution was immediately placed on record. It still remains a matter of record, and there has been no attempt to revoke the same in the manner required by statute. Gen. St. 1889, par. 1133. There being no revocation, the power of attorney must, under the authority cited, be held valid and effectual.

The next inquiry is whether the doctrine of lis pendens applies in actions for divorce and alimony, and whether Elliott was a pendente lite purchaser. In her petition for divorce and alimony, Mrs. Wilkinson stated at length the grounds of divorce, the necessity of alimony for the support of herself and family, and that this land, particularly describing it, constituted the principal property of the defendant; and she prayed that the rents of the land should be paid to her, and that the land itself should be decreed to her as permanent alimony. The law provides that, when a divorce is granted to the wife on account of the fault of the husband, she shall be restored to all her lands which have not been disposed of, and shall be allowed such alimony out of her husband's real and personal property as the court shall think reasonable. Civil Code, § 646. The general rule is that one who purchases from a party to an action the subjectmatter of the litigation is bound by the judgment subsequently rendered. It is essential to the doctrine of lis pendens that the litigation should be about some specific thing to be affected by the result of the action, and that the particular property should be so described and pointed out by the proceedings as to give notice to the whole world that they intermeddle at their peril. Freem. Judgm. §§ 196, 197. It is contended that the doctrine has no application in actions for divorce and alimony, because the matter upon which the jurisdiction acts is the status of the parties, and not the disposition of the property. In our state,

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however, both questions may be the subject of litigation in the same action. If a divorce is asked on account of the fault of the husband, the wife may ask not only that all her own land may be restored to her that has not been disposed of, but may describe particular property belonging to the husband, and ask that the same may be set apart for her as permanent alimony. When this is done, the property is made the subject-matter of litigation, and is brought within the jurisdiction of the court, and any one who purchases the same should be bound by the judgment or decree thereafter rendered. If, in such an action, there was no specific property pointed out, but only a general prayer for alimony, the doctrine would not apply, for the reason that the alimony might be awarded out of either real or personal property; and, as no particular property was described and made the subject-matter of the litigation, no one could have notice that any particular property was involved. Although the courts are not in accord upon the question, the prevailing and better opinion is as stated by Bennett on Lis Pendens, § 99: "The primary object for which the suit is brought is not material, provided the court has jurisdiction of the property for secondary purposes; and so it would seem that where a bill for divorce and alimony is filed by the wife against the husband, and there is no special allegation in it pointing out any particular property which is sought to be charged with the payment of the alimony, there will be no lis pendens as to either real or personal property of the defendant. Such a case cannot be distinguished from those where the action is professedly in personam, and where the contention in the case is entirely independent of any particular property. The same results of the advantage to the public, the same argument founded upon public policy, would exist in the one class of cases as in the other. If, however, the bill should contain special allegations, should point out particular real or personal property, and, within the limits of the manifest jurisdiction and powers of the court to grant the relief, should seek to have alimony assigned out of such specific property, there would be constructive notice of the lis pendens." Powell v. Campbell, 20 Pac. Rep. 156; Brightman v. Brightman, 1 R. I. 112; Daniel v. Hodges, 87 N. C. 98. Ulrich v. Ulrich, 3 Mackey, 290; Tolerton v. Williard, 30 Ohio St. 579; Vanzant v. Vanzant, 23 Ill. 536; Draper v. Draper, 68 Ill. 22; Sapp v. Wightman, 103 III. 150.

The question remains, however, whether the action of divorce was so pending at the time the land was transferred as to make Elliott a purchaser pendente lite. The plaintiff had executed a power of attorney conferring authority on Wilkinson to convey the land. It was conveyed before Elliott had actual notice that a proceeding for divorce was begun or in contemplation, as we are bound to assume from the finding of the court. The petition for divorce was prepared and indorsed

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