maining property of the firm, and convert it into money, or that the sheriff be directed to sell it, or some method be adopted, as may be agreed upon by the parties or directed by the court, in order that all the assets of the firm may be converted into cash, and then judgment rendered as the law and evidence may warrant. From the record brought here the taxation of the costs is now important to the parties, and we therefore suggest that, in actions of this nature, the question of costs lies entirely within the sound discretion of the by some substantial evidence. The plaintiff objected to the judgment of the court, for the reason it was not supported by the report and findings of the referee, and to the taxation of all the costs against him. It appears from the findings that the plaintiff had drawn out more than his share of the cash proceeds of the firm, but there was still left in the defendant's hands a considerable amount of property,—a horse, two lots in the city of Hiawatha, accounts, judgments, and a large number of notes. The referee found, as a conclusion of law concerning this prop-court. Section 591, Civil Code; Hottenstein erty, that each party was entitled to a one-half interest therein. No order was asked for by either party, after the referee's report was filed, to have a receiver appointed, or that the sheriff be directed to sell the property, or any other method suggested by which this property could be turned into money, and the affairs of the firin closed. Simply a judgment was rendered against the plaintiff for $38.42 and the costs of suit. This judgment was erroneous, and not authorized by the findings. The report itself shows, as we have suggested, that there was still in the hands of the defendant a considerable amount of property belonging to the partnership. If it had been converted into money, it is altogether probable that, instead of having overdrawn, the plaintiff might have had something to his credit in the hands of the defendant. Until this was disposed of, there should certainly have been no personal judgment for money only against the plaintiff. The plaintiff in his petition complains that the defendant refused to settle with him, and had failed to use diligence in collecting the debts of the firm. For all that these findings show, the defendant might have collected many more of the notes and accounts, and disposed of the other property for cash. If, instead of collecting nearly $8,000, he had only collected $6,000, and there had remained in his hands $2,000 worth of good notes, then a judgment against plaintiff upon the theory upon which this judgment was rendered would have been for a large amount; while, on the other hand, if by using a little more activity he had collected $100 more than he did, then the judgment, instead of being against plaintiff for the amount named, would have been in his favor. In other words, the more careless and negligent he might have been in the winding up of the business under their agreement, the more favorable the judgment would have been for him, and the more faithful and diligent he might have been, the greater probability of a judgment against him. This would have been placing a premium upon negligence, and a penalty upon diligence. The law does not tolerate such practice. For this error in disregarding in the judgment the property of the firm in the hands of the defendant, and the taxation of all the costs against the plaintiff, we recommend that the case be remanded for further proceedings, and suggest that either a receiver be appointed to take charge of the re v. Conrad, 9 Kan. 436. There is nothing in the findings of the referee which would indicate that all the costs should be taxed against the plaintiff. There is nothing to show that he wished to unnecessarily prolong this litigation, or in any way obstruct the due course of procedure, nor is there anything that shows that he dealt fraudulently with defendant. The trial court, being acquainted with all the surroundings of this action and its trial before the referee, is in a position to use its discretion wisely, either in taxing all the costs against either one of the parties, or dividing them in such proport.on as inay seem right and equitable. We recommend that the case be reversed. PER CURIAM. It is so ordered; all the justices concurring. (43 Kan. 138) CURTIS et al. v. BOARD OF EDUCATION. 1. A deed of conveyance was executed by the owner of a certain lot situated within a certain school-district, conveying the lot in fee and forever to the members of the school board, and to "their successors in office, for the erection of a school-house thereon, and for no other purposes, and afterwards that portion of the school-district within which the lot was situated was severed from the remainder of the school-district, and placed within the corporate limits of an incorporated city. Held, that the school officers of such city became and are the "successors in office" of the officers of the school-district. 2. In such a case the conveyance did not create an estate merely upon condition either precedent or subsequent; but the words, "for the erection of a school-house thereon, and for no other purposes," constituted only a limitation upon the manner in which the property should be used. 3. Conditions subsequent, which render estates already vested liable to be forfeited, are never favored in law; and no deed will be construed as creating such a condition unless the language to that effect is so clear that no room is left for any other construction. (Syllabus by the Court.) Error from superior court, Shawnee county; W. C. WEBB, Judge. Charles Curtis and A. H. Case, for plain. tiffs in error. Douthitt, Jones & Mason, for defendant in error. VALENTINE, J. This was an action brought by Permelia Curtis, William H. Curtis, and Orrin A. Curtis against the board of education of the city of Topeka to have & for feiture declared of the defendant's title, whatever it might be, to lot No. 91 on Kansas avenue, originally in the town of Eugene, but now in the city of Topeka, on the north side of the Kansas river, and to have the title to such real estate declared to be in the plaintiffs. The case was tried before the court without a jury, and the court made special findings and conclusions of fact and law, and rendered judgment in favor of the defendant and against the plaintiffs for costs of suit; and the plaintiffs, as plaintiffs in error, bring the case to this court for review. used it continuously for school purposes up to 1881 or 1882, with the possible exception of the period from 1869 up to 1873. In 1867 the school board of the city of Topeka constructed a new school-house on the property, which remained thereon until June 16, 1882, when it was sold and removed. In March, 1873, the aforesaid William Curtis died, leaving the plaintiffs in this action as his sole heirs; the aforesaid Permelia Curtis being his widow. On April 2, 1873, the school-district No. 45 sold and conveyed by a quitclaim deed the property in controversy to the present defendant for the sum of $400. On June 16, 1882, the school-house on said property was sold and removed therefrom as aforesaid. During that year and the next year the defendant offered the property for sale for the purpose of procuring money to build a new On tered into a contract with C. L. Haywood to The facts of the case appear to be substantially as follows: On August 31, 1866, and prior thereto, William Curtis owned the property now in controversy, and with his wife, Permelia Curtis, conveyed the same, by a certain warranty deed, to school-district No. 45, of Shawnee county, Kan., which school-school-house elsewhere, and early in 1883 endistrict included all the territory of the town of Eugene, and much other territory, which deed, omitting some of the formal parts and the signatures and acknowledgment, reads as follows: "This indenture, made this 31st day of August, 1866, between William Curtis and Permelia Curtis, his wife, of the county of Shawnee and the state of Kansas, of the first part, and A. Rambo and B. F. Vanhorn, as school board of district No. 45 of the county of Shawnee and state of Kansas, witnesseth: That the said parties of the first part, in consideration of one dollar to them duly paid, have bargained and sold, and by these presents do grant and convey, to the said parties of the second part, their successors in office, for the erection of a schoolhouse thereon, and for no other purposes, lot number 91, Kansas avenue, in the town of Eugene, Shawnee county, state of Kansas, with the appurtenances, and all the estate, title, and interest of the said parties of the first part therein; and the said parties of the first part do hereby covenant and agree with the said parties of the second part that at the time of the delivery hereof the said parties of the first part were the lawful owners of the premises above granted, and seised thereof in fee-simple absolute, and that they will warrant and defend the above-granted prem-ficers of school-district No. 45 to the board ises in the peaceable possession of the said parties of the second part and their successors forever." In the execution of this deed a printed blank was used, but the foregoing words in italics were and are in writing. This deed was duly recorded on September 4, 1866. The officers of the school-district immediately took the possession of the property conveyed, erected a school-house thereon, and maintained a school therein up to April 11, 1867, when that portion of the schooldistrict which was known as the "Town of Eugene" was severed from the remaining portion of the school-district and was annexed to and incorporated within the city of Topeka, which city was then school-district No. 23; and immediately afterwards the school officers of the city of Topeka took the possession of the property and continuously held the possession thereof until May 5, 1883, and We think, upon the foregoing facts, the members of the board of education of the city of Topeka are, properly speaking and in law, the "successors in office" of the members of the school board of school-district No. 45, with respect to the property in controversy, and, as such successors in office, are entitled to all the rights and privileges with respect to such property as the school officers of schooldistrict No. 45 would have under the same circumstances, if the property still remained within the territorial boundaries of school officers of school-district No. 45; and therefore the deed executed by the school of of education of the city of Topeka can have no practical effect or force in this case. It is useless, for what it attempted to effect had already been effected. It was probably equitable for the school board of the city of Topeka to pay to school-district No. 45 the sum of $400 for the property acquired by the city school-district from school-district No. 45. Yet neither the payment of such sum of money, nor the aforesaid deed of conveyance from school-district No. 45 to the city school-district, can affect any question involved in this case. That the city of Topeka, as represented by its board of education, is a school-district, see the case of Knowles v. Board, 33 Kan. 692, 7 Pac. Rep. 561. But, if the school officers of the city of Topeka are not the successors in office of the school officers of school-district No. 45, for the purposes of this property, and if the school-district of the city of Topeka, for that reason, is, and has been all the time since April 11, 1867, holding the property in controversy illegally, and as trespassers, and adversely to the rights of the plaintiffs, then the 15-years statute of limitations has barred the plaintiff's present action, for the school-district of the city of Topeka has held and controlled the property in controversy from April 11, 1867, up to May 5, 1883, over 16 years, continuously, and before the commencement of this action. With the exception of a certain condition or limitation hereafter to be mentioned, everything pertaining to the property in controversy, fee and all, was conveyed by Curtis and wife to the school officers of school-district No. 45, and to their successors in office, "forever." That condition was and is as follows: The property was conveyed "for the erection of a school-house thereon, and for no other purposes." We have quoted the condition or limitation literally, and it is all contained in the above-quoted words. It is claimed by the plaintiffs that by these words a school-house was not only to be erected upon the property in controversy, but also that such school-house, or some other schoolhouse, should be maintained thereon forever, and that a school should be maintained in such school-house forever. To this extent we are inclined to agree with the plaintiffs. But they further claim that by these words only an estate upon condition subsequent was created, and that for any breach of such condition, as by failing to erect a school-house on the property, or to afterwards maintain the same, or to maintain a school upon the property, a forfeiture of the title would ensue, and that the title would revert back, and become vested in the grantors or their heirs; | or, at least, that the grantors or their heirs might, for any breach of the supposed condition, re-enter the premises, and reinvest themselves with the title. Whether this claim is correct or not is the principal question in this case. On the other hand, the defendant claims that the foregoing words constitute at most only a limitation upon the manner in which the property should be used, and also claims that, even if such words should be held to constitute a condition either precedent or subsequent, still that the condition was fulfilled and performed when the first school-house was erected on the property, in 1866, by school-district No. 45, citing as authority for this claim the cases of Mead v. Ballard, 7 Wall. 290, and Taylor v. Binford, 37 Ohio St. 262. We are inclined to agree with the defendant that the foregoing words constitute only a limitation upon the manner in which the property in controversy should be used, and do not constitute either a condition precedent or subsequent, upon which only the estate is held. They in effect create a covenant that the property shall be used in a particular way; and the property has never, in fact, been used in any other way since the deed was executed, except by the plaintiffs themselves. There are no words in the deed stating that the estate was or should be conveyed "upon condition," or that it might be "forfeited" under any circumstances whatever, or that the estate might under any circumstances "revert" to the grantors or their heirs, or that they might under any circumstances ever have the right to "re-enter" the premises. Nor was the estate conveyed or to be continued in existence upon any such terms as "provided,” or “if” something in the future should be done or not done, or happen or not happen. Indeed, there is nothing sufficiently strong in any part of the deed, or in the whole of the deed, to indicate that the estate was conveyed, or intended to be conveyed, upon any condition, either precedent or subsequent; but, taking the whole of the deed together, it shows that an absolute estate in fee-simple, and the whole of the estate, was intended to be conveyed and was conveyed, and was to continue in the grantees, the school officers of school-district No. 45, and their successors in office, "forever," the property to be used, however, only for school purposes. The authorities are uniform that estates upon condition subsequent, which, after having been fully vested, may be defeated by a breach of the condition, are never favored in law, and that no deed will be construed to create such an estate unless the language to that effect is so clear that no room is left for any other construction. 2 Devlin, Deeds, 970 et seq., and cases there cited. And, as illustrations generally of the disfavor with which conditions subsequent are considered by the courts, and as having some application to this case, see the following cases: Packard v. Ames, 16 Gray, 327; Rawson v. School-District, 7 Allen, 125; Chapin v. Harris, 8 Allen, 594; Sohier v. Trinity Church, 109 Mass. 1; Laberee v. Carleton, 53 Me. 211; Emerson v. Simpson, 43 N. H. 475; Wier v. Simmons, 55 Wis. 637, 13 N. W. Rep. 873; Mills v. Seminary, 58 Wis. 135, 15 N. W. Rep. 133; Stanley v. Colt, 5 Wall. 119. We think the property in controversy belongs to the school-district of the city of Topeka, to be used for school purposes only. If it should ever be used for any other purpose, then any person injured thereby would have his action for damages, or his action to enjoin the parties from so using it; and possibly circumstances might occur, or be brought into existence, under which the courts would hold that the title to the property had been forfeited, but no such case is presented in the present action. The judgment of the court below will be affirmed; all the justices concurring. (43 Kan. 216) MCCLELLAN v. KRALL. (Supreme Court of Kansas. Jeb. 8, 1890.) LANDLORD AND TENANT-PURCHASER OF CROP AT EXECUTION SALE. H. rented a farm from M. for a term of three years from March 1, 1884, the rent to be payable in money at stated times. Failing to pay the rent for the first year when due, M. obtained a judgment against him on December 27, 1884, and caused an execution to be levied on a crop of winter wheat growing upon the rented land, and at the execution sale, held on January 9, 1885, the crop was purchased by K., to whom the judgment of M. had been assigned the day prior to the sale. M., by notice to and agreement with H., terminated the tenancy on March 1, 1885, and then sought to charge K., the purchaser at judicial sale, for the value of the use and occupation of the land on which the crop was growing from March 1, 1885, until the crop was ripened and removed. Held, that K. did not become a tenant of M., or liable for any rent, but was entitled to ingress and egress over the land for the purpose of harvesting and removing the crop within a reasonable time after the same became ripe, without incurring any liability to the plaintiff for the value of the use and occupation of the land while the crop was ripening. (Syllabus by the Court.) liable for rent, but he was entitled to ingress and egress over the land for the purpose of harvesting the crop when it became ripe. He was entitled to a reasonable time after the crop ripened to harvest and remove the same, and this without any liability to the plaintiff for the use and the occupation of the land while the crop was ripening. Brittain v. McKay, 35 Amer. Dec. 738; Coombs v Jordan, 3 Bland, 284; Craddock v. Riddlesbarger, 2 Dana, 205; Raventas v. Green, 57 Cal. 254; Hartwell v. Bissell, 17 Johns. 128: Smith v. Tritt, 28 Amer. Dec. 565; Whipple v. Foot, 2 Johns. 418; 4 Amer. & Eng. Cyclop. Law, 893, and cases cited. There was no use or occupation of the prem Error from district court, Atchison county; ises by Krall beyond what was proper and DAVID MARTIN, Judge. Jackson & Royse, for plaintiff in error. A. F. Martin, for defendant in error. JOHNSTON, J. This is an action to recover $200 for the use and occupation of 40 acres of land from the 1st day of March, 1885, to the 24 day of June, 1885, when the action was instituted. Plaintiff, who was the owner of a farm, leased it to one Henke for a period of three years from March 1, 1884, at an annual rental of $475, payable at stated times. The rent for 1884 not being paid according to agreement, plaintiff began two suits against Henke to recover the rent, and judgments therein were obtained on December 27, 1884. Two days later the plaintiff caused an execution to be levied upon 40 acres of wheat which had been sown by Henke, and was growing upon the rented farm, which, after being advertised, was sold, on January 9, 1885, to the defendant, Frank Krall. On January 8, 1885, the plaintiff sold and transferred his interest in the judgments to Krall, and took his notes in payment for the same. In December, 1884, the plaintiff notified Henke that he must surrender the possession of the farm on March 1, 1885, which was done, and the farm was leased to another from that date, with the exception of the 40 acres on which the wheat was standing. Plaintiff insists that he is entitled to recover from the purchaser of the crop the use of the land from the 1st of March, 1885, until the crop was harvested, but the district court held otherwise. The raling was correct. The relation of landlord and tenant did not exist between McClellan and Krall, and there was no contract that Krall should pay any part of the rent, or for the use of the land for any time. He was a purchaser at a judicial sale, and acquired the interest of both McClellan and his tenant in the crop purchased. McClellan had a lien on the crop growing on his premises for the rent of 1884. To enforce that lien, he caused the levy and sale of the growing crop sown that year by Henke. Under these circumstances, Krall was clothed with the interest or title of the landlord as well as with that of the tenant. By purchasing at such a sale Krall did not become a tenant or necessary. In fact, he was never upon the land but once, and then only for a few minutes. If the purchaser at the judicial sale had failed to harvest and remove the crop within a reasonable time after it ripened, some liability might have arisen against him; but, as this action was brought before the harvest season, there certainly was no unreasonable delay by Krall, and can be no liability against him. It appears from the plaintiff's evidence that the crop was so badly injured and frozen as to be practically valueless, and was therefore abandoned by Krall; and this probably accounts for the premature action of the plaintiff in bringing this suit. The purchase of the judgments against Henke the day prior to the sale will not change the rule or affect Krall's liability. The plaintiff caused the levy to be made on the crop, the sale to be advertised, and Krall, having become a purchaser at such sale, is entitled to a reasonable opportunity to take possession of the crop when it was in a condition to take, without incurring any liability to the party who caused the levy and sale of the crop for the use of the ground on which it grew. The judgment of the district court will be affirmed; all the justices concurring. (43 Kan. 195) STATE ex rel. BRADFORD, Attorney Gen. eral, v. BOARD OF COUNTY COMMISSIONERS et al. (Supreme Court of Kansas. Feb. 8, 1890.) APPEAL-SUFFICIENCY OF EVIDENCE-RECORD. Where the ruling of a district judge upon an application for a temporary injunction is brought to the supreme court on a case made, the question of whether the testimony was sufficient to sustain the application cannot be reviewed, unless there is in the case made itself a statement or showing that it contains all the testimony offered on the application. (Syllabus by the Court.) Error from district court, Harper county; J. T. HERRICK, Judge. S. B. Bradford, Atty. Gen., Sam S. Sisson, Finch & Finch, and Webb & Webb, for relator. Shepard, Grove & Shepard, for defendants in error. JOHNSTON, J. This was an action brought by the state, on the relation of the attorney whether the decision is sustained by the evidence is not before us. Brown v. Johnson, 14 Kan. 377; Moody v. Arthur, 16 Kan. 419; Greenwood v. Bean, 20 Kan. 240; Winstead v. Standeford, 21 Kan. 270; Muscott v. Hanna, 26 Kan. 770; Eddy v. Weaver, 37 Kan. 540, 15 Pac. Rep. 492; Railroad Co. v. Grimes, 38 Kan. 241, 16 Pac. Rep. 472; Insurance Co. v. Hogue, 41 Kan. 524, 21 Pac. Rep. 641; Hill v. Bank, 42 Kan. 22 Pac. Rep. 324. In the absence of a statement in the case general, against the county commissioners, the county clerk, and county treasurer of Harper county, alleging that the county commissioners were proceeding, in violation of law, to construct and build a permanent county building without submitting the question to a vote of the electors, and receiving their sanction, and had awarded contracts involving an expenditure largely exceeding $1,000 without advertising for bids, or having any plans or specifications prepared of the proposed improvement, and without any pub-made, or of an equivalent showing therein lic letting, as the law requires. It was fur- that the testimony is all preserved, we canther alleged that a portion of the work had not at this stage of the litigation, and in this been completed, and county warrants issued proceeding, say that the action of the officers therefor, which the county treasurer would was illegal, or that the evidence was insuffipay unless restrained by the court. The cient to sustain the ruling of the district prayer of the petition was that the board of judge. Judgment affirmed; all the justices county commissioners be enjoined from pro- concurring. ceeding further with the construction until authority was given by a vote of the electors, as the law prescribes; that the county clerk be restrained from issuing any county warrants in that behalf; and the county treasurer restrained from paying any such warrants which might have been, or should thereafter be, issued. Upon presentation of the verified petition, on October 17, 1887, the district judge granted a restraining order, and fixed the hearing for a temporary injunction on the 19th, at which time the parties appeared, and the hearing was begun and continued until the 21st, when the case was taken under advisement. The district judge announced his decision on the 24th of October, 1887, denying the application for a temporary injunc tion. The case was at once removed to this court, and it is now contended that, under the evidence, the district judge should have granted the temporary injunction. There was considerable testimony offered at the hearing, the greater part of which was oral, and the defendants now insist that the testimony cannot be reviewed, as the record does not contain, or purport to contain, all that was introduced. This objection precludes an examination of the real point in controversy between the parties. The question of whether the improvement or addition to the courthouse which was being constructed was of such a character as to be regarded as a permanent county building, which could not be constructed without an approving vote of the electors of the county, as was decided in State v. Commissioners, 21 Kan. 419, or whether it was to be regarded as a mere repair or improvement of an already existing court-house, constructed in good faith, as decided in State v. Harrison, 24 Kan. 268, depends upon the testimony; and neither these nor any of the questions submitted to the district court can be determined here, unless the whole testimony is before us. There is no statement or showing in the case made brought to this court that it contains all the evidence submitted to the judge. There is a statement to that effect in the certificate attached to the case made: but, as has been repeatedly held, | this is insufficient, and hence the question of (43 Kan. 185) ST. LOUIS, FT. S. & W. R. Co. v. McAU- (Supreme Court of Kansas. Feb. 8, 1890.) EMINENT DOMAIN - DAMAGES-EVIDENCE-VERDICT-SPECIAL FINDINGS. 1. Upon an appeal from the award of commissioners in a condemnation proceeding, the special findings of fact of the jury, stating the damages allowed to the land-owner against the railroad company, control the general verdict. 2. Where a part of a farm is taken for railroad purposes, inconvenience to the farm, and danger from fire to buildings, fences, timber, or crops upon the remainder, may properly be considered in estimating the depreciation in the value of the property. the depreciation in value of the whole tract of 3. Where the jury specially find the amount of land by reason of the construction of the railroad through a part of it, such sum must necessarily include the elements of damages causing such depreciation, like inconvenience, and danger from fire. (Syllabus by the Court.) Error from district court, Harvey county; L. HOUK, Judge. On the 22d day of March, 1886, the district judge of Harvey county appointed three commissioners to condemn a right of way through that county for the St. Louis, Ft. Scott & Wichita Railroad Company. In the discharge of their duties the commissioners condemned a strip of land through the E. of the S. W. 40 of the N. E of section 6, township 23, range 1 E., belonging to Timothy McAuliff, and awarded McAuliff for the land taken, and for damages to the land not taken, the sum of $110. He appealed from the award of the commissioners, and on March 1, 1887, filed a petition claiming as his damages the sum of $1,500, with interest thereon from the 24th day of March, 1886. Subsequently the railroad company filed its answer, deny. ing that McAuliff was the owner of the premises through which the right of way had been laid out, and also denying that he was entitled to any damages whatever. To this answer McAuliff filed his reply; and on the 10th of June, 1887, trial was had before the court with a jury. The jury returned a verdict for McAuliff, and assessed the amount of his recovery at $295.05. The jury also |