and wife to him to secure a note executed by C. C. dies, and his wife is duly ap pointed administratrix of his estate. M., Mrs. C. as administratrix, and Mrs. C. for herself, commenced an action to declare the mortgage a forgery, and that it was not a lien on the land, and for other relief. A demurrer is filed to the petition, alleging a misjoinder of actions, and the overruling of this demurrer is held not to be error, as there is no misjoinder.

(Syllabus by Simpson, C.)

Commissioners' decision. Error to district court, Sumner county; JAMES A. RAY, Judge.

Action by J. C. Mathes and others, and Mami Cavitt as administratrix of the estate of Andrew J. Cavitt, deceased, against L. Keys, to procure the cancellation of a note and mortgage, and to quiet title. The defendant's demurrer to the petition was overruled, and he now brings error.

Orie Fitzgerald and James Lawrence, for plaintiff in error. Murray & Elliott, for defendants in error.

SIMPSON, C. A demurrer was overruled to the petition in this case, and whether that ruling was correct is the question. There were two causes of demurrer alleged: First, because several causes of action are improperly joined; second, because said petition does not state facts sufficient to constitute a cause of action.

The substantial averments of the petition are that on the thirtieth day of November, 1880, Andrew J. Cavitt was the owner of 160 acres of land in Sumner county, and on that day sold and conveyed the same to J. C. Mathes, by a deed containing general covenants of warranty; said conveyance executed by Andrew Cavitt and Mami Cavitt, his wife, by which conveyance they covenanted that their title was good and free and unincumbered, except as to a certain mortgage to one W. F. Irwin, dated September 1, 1879. The deed to Mathes from Cavitt and wife was filed for record on the fifteenth day of August, 1883, but Mathes took possession of the land on the thirtieth day of December, 1880, and has remained in the full possession and control ever since. There was recorded in the office of the register of deeds for Sumner county, on the second day of June, 1883, a paper purporting to be a mortgage on said land, executed by Andrew J. Cavitt and Mami Cavitt, his wife, to L. Keys, the plaintiff in error, on the first day of June, 1883, to secure a note executed by Cavitt to Keys for the sum of $186, made on the first day of June, 1883, due the first day of June, 1884, with interest at 12 per cent. per annum from maturity. It is alleged that this mortgage is a forgery; that Andrew J. Cavitt, in his life-time, and Mami Cavitt, his wife, never executed such a note or mortgage; that it is invalid, and not a lien on the land. The death of Andrew J. Cavitt is averred, and it is alleged that Mami Cavitt was duly appointed the administratrix of his estate. The prayer is that the note and mortgage be declared of no force or effect; that said mortgage be adjudged to be no lien on said land; that the title of Mathes be forever quieted against said Keys, and said mortgage; that Keys be decreed to deliver said note and mortgage, to be canceled; and for other relief.

1. The contention for the plaintiff in error is that the facts in this case, as pleaded, show that the causes of action are several, and not joint, and hence there is an improper joinder. Some tests have been established by this court in the case of Jeffers v. Forbes, 28 Kan. 174, that greatly aid in the determination of the questions involved in this case. One of them is the enunciation of the rule that, under section 35 of the Code, "it is not enough that all the plaintiffs should have an interest in the subject of the action; it is essential that they should all have an interest in obtaining the relief demanded." The inquiry, then, is, have these plaintiffs below a unity of action, and a unity in the relief demanded? If this can be affirmatively asserted, there is no misjoinder. So far as Mathes is concerned, his possession under his unrecorded

deed from Cavitt and wife would probably be a defense to the lien of the mortgage, if Keys attempted to enforce it against the land; and he has unquestionably the right to commence an action to determine the invalidity of the mortgage, so far as it effects his land. The conveyance from Cavitt and wife to Mathes contained a covenant against liens and incumbrances, and, if this covenant is broken by the existence of a mortgage to Keys, they are responsible to Mathes in damages for the breach. Cavitt is dead; his wife is administratrix of his estate. If Mathes had to commence such an action, it would be against the administratrix of Andrew J. Cavitt and Mami Cavitt. Such damages are to be paid out of the personal estate of the deceased; the judgment rendered for them would be the ordinary money judgment against the estate. Is a married woman liable on her covenants of warranty? If she is, she had the same interest in the result of the suit that Mathes would have, or that the estate of Andrew J. Cavitt would have. Mathes has a right to protect himself against the payment of this mortgage, because the land he bought was primarily pledged by its terms to its payment. Cavitt and wife had a right to protect themselves from the payment, because it was alleged they executed it, and hence were liable, and because its existence was a breach of their covenants to Mathes; so that it can be fairly said that there was a unity of action in behalf of all the defendants in error who instituted the suit. It is equally true that they could all be relieved by the same decree. A finding and decree that the mortgage was a forgery would divest the land of any pretended lien cast upon it by the recording of the mortgage, and would divest the estate of Cavitt, and Mrs. Cavitt personally, of any remaining liability to pay the note and mortgage, or to answer Mathes in damages. The case of Jeffers v. Forbes, so confidently relied upon, is one in which the widow and heirs of Jeffers made separate and distinct deeds to Forbes for their respective interests, as heirs at law, in the real estate of the husband and father, and then commenced a joint action to set their deeds aside, because obtained by Forbes by fraud and deceit. The court say: "The deed of the widow passed no title away from her children. That deed may stand or fall without in the least affecting any of the other conveyances. Suppose an action was brought to set aside the widow's deed alone; can it be claimed for a moment that the children would be necessary or proper parties to such an action?" Apply that test to the facts presented here, and suppose Keys had to commence an action for the foreclosure of his mortgage; who would be the necessary parties? Cavitt, who signed the note and mortgage as principal debtor, would have to be sued. He is dead, and it is clear Mami Cavitt, as administratrix of his estate, would be a necessary party. Mrs. Cavitt signed the mortgage, and she would have to be a party. Mathes owns the land, and is in the actual possession and control of it, and he is an absolutely necessary party, or the legal title could not be divested if a sale was necessary. If Cavitt had retained the legal title at his death, his heirs would have been necessary parties, but, as Mathes holds the legal title, Cavitt's heirs are not necessary or proper parties; so that it is clear that Mathes, the administratrix of the estate of Cavitt, and Mrs. Cavitt, would all be necessary parties in an action by Keys to foreclose the mortgage. This establishes unity of liability, and that can be anticipated by unity of action. The relief prayed for avoids liability by an adjudication that the mortgage is a forgery, not a lien on the legal estate held by Mathes; protects the covenants of Cavitt and wife; prevents a personal judgment against the estate of Cavitt; relieves Mrs. Cavitt from liability as one of the makers of the instrument, and does not lessen her distributive share as one of the heirs of her husband. The relief may not operate on all the plaintiffs below in the same degree, and yet it is common to all. They are each entitled to ask and receive the special relief prayed for. When the court adjudges the mortgage to be a forgery, all legal consequences of that adjudication follow, and result to the benefit of all these parties to the extent and degree to which

they are interested. Each are relieved from any and all liability incident to the mortgage.

2. The second claim is that the petition does not state a cause of action. It is not necessary to recite these facts again, for the inference is too plain, from what we have said concerning the first cause of demurrer, that the petition alleges a cause of action. It may not be stated as fully in detail, and with that precision of statement and averment so desirable in a pleading, but all the essential statements constituting a cause of action are embraced. There is no error in the ruling of the court below on the demurrer, and we recommend that the judgment be affirmed.

BY THE COURT. It is so ordered; all the justices concurring.

MISSOURI PAC. RY. Co. v. GOODRICH.

(Supreme Court of Kansas. January 7, 1888.)

1. TRIAL DEMURRER TO EVIDENCE-MOTION FOR NEW TRIAL.

Where a demurrer to the evidence is sustained, it is proper practice for the trial court to entertain a motion by the defeated party for a new trial.

2. SAME.

Where a demurrer to the evidence of the plaintiff is erroneously sustained, and the plaintiff files a motion for a new trial, the court should grant the same. (Syllabus by the Court.)

Error to district court, Atchison county; DAVID MARTIN, Judge. B. P. Waggener, for plaintiff in error. Tomlinson & Eaton, for defendant in error.

VALENTINE, J. This was an action brought by Charles H. Goodrich, administrator of the estate of William Olson, deceased, against the Missouri Pacific Railway Company, to recover for personal injuries received by Olson, and alleged to have been caused by the negligence of the railway company. A trial was had before the court and a jury, and, after the plaintiff had introduced all his evidence and rested, the defendant demurred to the evidence, upon the ground that it did not prove any cause of action; and the court below sustained the demurrer. Afterwards, and within proper time, the plaintiff filed a motion for a new trial, upon various grounds, which motion the court below sustained, and granted the new trial asked for; and this is the only ruling of which the plaintiff in error, defendant below, now complains. The plaintiff in error, defendant below, presents to this court two alleged errors, to-wit: (1) "The court below had no power to entertain a motion for a new trial after it had sustained a demurrer to the evidence and entered judgment. There is no authority given in the statute for such a proceeding." (2) "The court below erred in sustaining the motion for a new trial, because, of the pleadings and the evidence, the action of the court in sustaining the demurrer to the evidence was right." We think the court below had power to entertain the motion for a new trial. Such is proper practice. Indeed, unless a motion is made for a new trial, after a demurrer to evidence has been sustained, the supreme court could not consider any errors of law committed by the court during the trial. Gruble v. Ryus, 23 Kan. 195, 196; Pratt v. Kelley, 24 Kan. 111, 112. Neither do we think that the second point made by the plaintiff in error is tenable. A demurrer to evidence admits every fact and every conclusion which the evidence most favorable to the other party tends to prove. Christie v. Barnes, 33 Kan. 317, 318, 6 Pac. Rep. 599. And generally, where a new trial has been granted, the supreme court will require a much stronger case, before it will interfere and reverse, than where a new trial has been refused. City of Ottawa v. Washabaugh, 11 Kan. 124, 127. We think the court below erred in sustaining the demurrer to the evidence,

and, therefore, that it did not err in granting the new trial. We think it is not necessary to comment upon the evidence.

The judgment of the court below will be affirmed. (All the justices concurring.)

REILEY et al. v. HAYNES.

(Supreme Court of Kansas. January 7, 1888.)

1. REPLEVIN-WHEN ACTION MAINTAINABLE-AGAINST OFFICER.

An action of replevin can be maintained against an officer for the recovery of the possession of personal property that he holds by virtue of an order of delivery, previously issued in another action, provided the person who commences the second action is not a party to the first. The case of Gross v. Bogard, 18 Kan. 288, cited and approved.1

8. EVIDENCE-DECLARATIONS-RES GESTE.

Declarations by a party to the action, in possession of personal property, as to her ownership thereof, accompanying some principal fact which they serve to explain and qualify, are sometimes said to be a part of the res geste, but, as the admissibility of such declarations are an exception to the general rule that the declarations of a party are not competent evidence in his own behalf, they should only be allowed with all the limitations and restrictions imposed upon them."

3. TRIAL-OBJECTIONS TO EVIDENCE-REVIEW ON APPEAL.

The only way to have the improper answers of a witness to proper questions reviewed in this court is to move to strike out the answers, or so much thereof as are deemed to be improper, and take them from the consideration of the jury. (Syllabus by Simpson, C.)

Commissioners' decision. WARD HUTCHINSON, Judge.

Error to district court, Atchison county; ED

Noble & Bullen, for plaintiffs in error. Cooper & Cooper and Van Natta & Close, for defendant in error.

SIMPSON, C. The plaintiffs in error commenced an action of replevin in Republic county district court against James H. Haynes and George Schaaf for the recovery of the possession of certain specific personal property, alleging that they were entitled to the possession of said property by virtue of default in the terms and conditions of certain chattel mortgages executed by Haynes and Schaaf to them on said property. While this action was pending and undetermined, Martha J. Haynes, the wife of James H. Haynes, who claims to be the absolute owner of the property, commenced her action in replevin to recover the possession of the identical property from T. C. Reiley, the sheriff of the county, who held the property by virtue of the writ in the first action, and Richard Hunter, who was plaintiff in the first action, and to whom the chattel mortgages had been given. The case was tried to a jury at the June term, 1886, of the district court of Republic county, and there was a verdict and judgment for Mrs. Haynes for the recovery of the possession of the property, its value at the time of detention being found at $867.50,-and damages for detention, the sum of $290, and costs. A motion for a new trial

1At common law, where the parties are the same, replevin cannot be maintained for property in custodia legis. Railroad Co. v. Hamilton, 16 Fed. Rep. 181.

2 As to the admissibility of declarations as part of the res gestæ, see Patterson v. Railway Co., (Mich.) 19 N. W. Rep. 761; Merkle v. Bennington Tp., (Mich.) 24 N. W. Rep. 776; Armil v. Railroad Co., (Iowa,) 30 N. W. Rep. 42; Conlan v. Grace, (Minn.) Id. 880; Clunie v. Lumber Co., (Cal.) 7 Pac. Rep. 708; Edmunds v. Curtis, (Colo.) 9 Pac. Rep. 793; Durkee v. Railroad Co., (Cal.) Id. 99; Boxes of Opium v. U. S., 23 Fed. Rep. 367; Brown v. Kenyon, (Ind.) 9 N. E. Rep. 283; Porter v. Waltz, (Ind.) 8 N. E. Rep. 705; Express Co. v. Rawson, (Ind.) 6 N. E. Rep. 337; County of Tompkins v. Bristol, (N. Y.) 1 N. E. Rep. 878; Hallahan v. Railroad Co., (N. Y.) 6 N. E. Rep. 287; Citizens' Co. v. O'Brien, (Ill.) 8 N. E. Rep. 310; Mitchell v. Colglazier, (Ind.) 7 N. E. Rep. 199; Williamson v. Railroad Co., (Mass.) 10 N. E. Rep. 790; Insurance Co. v. La Pointe, (Ill.) 8 N. E. Rep. 353; Martin v. Railroad Co., (N. Y.) 9 N. E. Rep. 505; Railroad Co. v. Wood, (Ind.) 14 N. E. Rep. 572; Railroad Co. v. Moore, (Tex.) 6 S. W. Rep. 631; Bealor v. Hahn, (Pa.) 11 Atl. Rep. 776; Mayes v. Power, (Ga.) 4 S. E. Rep. 681.

was overruled, and the case is here with several assignments of error occurring during the trial.

1. The first is (and it is doubtful on the record whether it was ever raised and passed upon by the court below) that at the time of the commencement of this action the specific personal property was in the custody of the court, and that by the reason of that fact replevin at the suit of a third party would not lie. This identical question was passed upon by the court in the case of Gross v. Bogard, 18 Kan. 288, and, as Mrs. Haynes claims adversely to both her husband and Hunter, the decision controls this action. Mrs. Haynes can maintain this action in replevin against the officer and Hunter, at whose suit the former process issued, under which the sheriff claims possession.

2. The next proposition of counsel is that the evidence is not sufficient to entitle Mrs. Haynes to recover. If we should undertake to determine this question in a precise and formal manner, it would be the trial of issues of fact in this court. The jury and the trial court have determined that there was sufficient evidence to entitle her to a recovery. If there is any evidence to support the finding of the jury and the judgment of the court, it is sufficient here. We shall not weigh the evidence, or undertake to determine the credibility of the witnesses. There were no special findings required of the jury. The general instructions of the court to the jury were not excepted to, and the whole record of the proceedings denote that there was a free, fair, and full trial, with considerable latitude allowed in the introduction of evidence; so that we have no doubt but that both the court and jury were fully advised as to all the facts in the case.

3. It is said that the testimony of Mackay, Julius Beecher, Ole Beecher, A. C. McPherson and Charles Blackburn, or, rather, certain parts of it, ought not to have been permitted to go to the jury. They are statements of persons living in the neighborhood of Mrs. Haynes who had known her ever since she came to Republic county, who testified to the declarations of herself and her husband, when they first moved into the neighborhood, as to the ownership of this specific personal property. That she had always claimed to be the owner of it, had always said so. That it was generally understood in the neighborhood that she was the owner. That by reason of these things it was a matter of reputation, generally known, that she was the owner of the stock. Haynes was her second husband, and she owned the stock before her marriage to him. That these statements as to the ownership were made while the stock was in the possession of Mrs. Haynes; as well by her as by her husband. That she had borrowed money in town on the fact of her ownership. These facts all had a tendency to support her claim, and divest the jury of an impression that her claim of ownership was being used for the sole purpose of saving the property from a chattel mortgage executed by her husband. Declarations by a party in possession of personal property as to the ownership thereof, accompanying some principal fact which they serve to explain and qualify, are sometimes said to be a part of the res gesta. Stone v. Bird, 16 Kan. 488, and authorities cited. This case will be found to be very similar, in the particular features we are now considering, to the one at bar; and all the criticisms of Mr. Justice BREWER on the manner in which the objections to the evidence was presented in that case apply with equal force in this. The single issue in this case is, was Mrs. Haynes the owner, and entitled to the possession, of the property in suit? Her declarations while she was in possession of the property, made for successive years before this controversy arose, was some evidence to go to the jury, under the proper limitations and restrictions, in support of that issue. So the declarations of Haynes, with the same safeguards, might go in evidence, and those of George Schaaf are permissible, for they are both parties to the inquiry, represented by the sheriff; and their declarations in disparagement of their own title, and in support of that of Mr. Haynes while in possession and control of the property, can be