might, at the request of such person, cause | tition, and we therefore recommend that the the land severally held to be allotted by patent | judgment be reversed. PER CURIAM. It is so ordered; all the justices concurring. KELLY. (43 Кап. 741) (Supreme Court of Kansas. May 10, 1890.) INSURANCE GOODS HELD ON COMMISSION. having in his possession a stock of goods, some of Where an agricultural implement dealer, which are his own, and some are held by him for sale on commission, obtains insurance thereon in his own name, and no fraudulent concealment or other fraudulent intent is alleged, the policy is not necessarily void; and, under the circumstances of this case, he may recover the value of his own goods destroyed by fire, not exceeding the amount of his policy. in fee-simple, with power of alienation. In 1886, to carry out the provisions of this treaty, congress passed an act to provide for the settlement of the estates of deceased Kickapoo Indians in the state of Kansas, and for other purposes. Section 2 of said act reads as fol- ST. PAUL FIRE & MARINE INS. Co. v. lows: "That, where allottees under the aforesaid treaty shall have died, or shall hereafter decease, leaving heirs surviving them, and without having obtained patents for lands allotted to them in accordance with the provisions of said treaty, the secretary of the interior shall cause patents in fee-simple to issue for the lands so allotted, in the names of the original allottees, and such allottees shall be regarded, for the purpose of a careful and just settlement of their estates, as citizens of the United States and of the state of Kansas; and it shall be competent for the proper courts to take charge of the settlement of their estates under all the forms, and in accordance with the laws of the state of Kansas, as in the case of other citizens deceased; and, where there are children of allottees left orphans, guardians for such orphans may be appointed by the probate court of the county in which such orphans may reside, and such guardians shall give bonds, to be approved by the said court, for the proper care of the person and property of such orphans as provided by law." Under this act of congress the right to a patent became complete in the allottee. Nothing more remained to be done but the ministerial duty of the proper officer of the government to issue a patent, and by this act this duty was made imperative. 66 Mr. Justice FIELD, in the case of Stark v. Starrs, 6 Wall. 418, says: "The right to a patent once vested is treated by the government, when dealing with the public lands, as equivalent to a patent issued. When in fact the patent does issue, it relates back to the inception of the right of the patentee, so far as it may be necessary to cut off intervening claimants." We think, under this treaty and the act of congress of 1886, the title to the land in controversy was fixed in the heirs of Ke-o-tick, the deceased allottee, whoever they may be. In the case of Langdeau v. Hanes, 21 Wall. 530, the court says: A legislative confirmation of a claim to land is a recognition of the validity of such claim, and operates as effectually as a grant or quitclaim from the government. * * * If the claim be to land with defined boundaries, or capable of identification, the legislative confirmation perfects the title to the particular tract, and a subsequent patent is only documentary evidence of that title." This same doctrine was enunciated in the case of Oliver v. Forbes, 17 Kan. 124; and this treaty, and the act of congress under consideration, have received the construction which we have adopted in the case of Briggs v. Wash-puk-qua, 37 Fed. Rep. 135, by the United States circuit court for the district of Kansas. The court below erred in sustaining the demurrer to the plaintiffs' pe (Syllabus by Strang, C.) Commissioners' decision. Error from district court, Marshall county; E. HUTCHINSON, Judge. Calderhead & Patterson, for plaintiff in error. J. A. Broughten, for defendant in error. STRANG, C. March 13, 1886, T. C. Kelly was engaged in selling agricultural implements, wagons, buggies, and other articles usually kept and sold in connection therewith, at Marysville, Marshall county, and on that day obtained from the plaintiff a policy of insurance indemnifying him against loss or damage by fire on his stock of goods, in the sum of $1,500. He had other insurance, of $1,000, on said stock, and also $500 on his building in which his business was carried on, and his goods stored. December 2, 1886, his building and stock were destroyed by fire. December 30, 1886, Kelly made and served his proof of loss upon the company, and, on its refusal to pay his loss, on May 11, 1887, commenced his action in the court below to recover the amount of his policy. September 21st thereafter, his petition was amended, and on October 28th the company answered by general denial, and on the 28th day of December thereafter the case was tried by the court and a jury. Verdict for the plaintiff for the face of said policy and interest. amounting to $1,587.50. Motion to set aside the verdict and judgment, and for a new trial. Motion overruled, and exceptions saved by the defendant below, who brings the case here, and assigns the following errors for reversal: "(1) Court erred in overruling the demurrer of the defendant below to the petition of the plaintiff below; (2) court erred in overruling the demurrer to the evidence of the plaintiff below; (3) court erred in overruling the motion of the defendant below for leave to amend its answer to conform to the facts proven; (4) court erred in refusing to give to the jury the instruction asked by defendant be low; (5) court erred in refusing to set aside the verdict of the jury on the ground that the amount of the judgment recovered was too great; (6) court erred in refusing to set aside the verdict of the jury on the ground of the gross misconduct of the jury and the prevailing party; (7) court erred in submitting to the jury, in the second instruction, the question of the legal effect of the evidence as to the contract of Deere, Mansur & Co." It is alleged in support of the objection to the petition that the plaintiff therein pleads -First, ownership in the property destroyed; and, secondly, a special insurable interest therein. The allegation in the petition is that the plaintiff is the owner of the goods insured, destroyed by the fire, and had an insurable interest therein. Plaintiff claims that the clause, "and had an insurable interest therein," modifies the former allegation of ownership, leaving the petition, in legal effect, with but the allegation that the plaintiff had an insurable interest in the goods destroyed, and then argues that such an allegation is but a legal conclusion, and therefore the plaintiff states no fact which shows he had a right to recover for the loss of the goods destroyed. We do not think that a fair construction of the petition. There is nothing upon the face of the petition that indicates that the plaintiff intended to assert distinct kinds or degrees of interest in the property destroyed, as ownership, and an insurable interest less than ownership. Having alleged ownership, it was useless to allege, as an incident of such ownership, an insurable interest, because ownership carries with it insurable interest; and yet that is all that the plaintiff seems to have intended. We look upon the words "and had an insurable interest therein" as mere surplusage. This conclusion answers the next objection, that if, with the words “and had an insurable interest therein," in said petition, it states any interest by the plaintiff in the property insured, such interest so alleged is an interest less than ownership; and as the policy, which is a part of the petition, does not assume to insure any interest in said property less than ownership, the petition, therefore, does not state a cause of action. The next assignment asserts that the court erred in overruling the demurrer of the defendant below to the evidence of the plaintiff below. The ground of this assignment is that the testimony offered by plaintiff below proved that the property insured was not the property of T. C. Kelly, but was the property of several distinct firms, and consigned to him for sale on commission. An examination of the evidence in the record discloses that four witnesses produced by the plaintiff below-Kelly himself; Fuller, a member of the firm of Deere, Mansur & Co., and manager thereof; their book-keeper, George A. Parker; and their salesman, P. H. Braceall testified that the goods obtained from Deere, Mansur & Co. were purchased by Kelly, and were his goods. The books of Deere, Mansur & Co., which were produced in evidence, show the goods shipped by them to Kelly were sold and charged to Kelly. The bulk of all the goods in the Kelly stock at the time of the fire were from this company; and the goods charged up as destroyed in the proof of loss of plaintiff below were nearly all Deere, Mansur & Co. goods. It follows from the testimony of the witnesses named that there was evidence, and a good deal of it, tending to prove that the goods insured, and for the loss of which Kelly claimed the right to recover, were his property. It is true there is something in the evidence looking in the other direction, and tending, perhaps, to prove that the goods were commission goods. It is the law of this court that, on a demurrer to the evidence of the plaintiff, the trial court cannot weigh conflicting testimony; that being the province of the jury. Bequillard v. Bartlett, 19 Kan. 382; Wolf v. Washer, 32 Kan. 533, 4 Pac. Rep. 1036. Where the testimony tends to support all the material allegations arising under the pleadings, it is the duty of the court to overrule a demurrer to the evidence. Railway Co. v. Couse, 17 Kan. 571; Jansen v. City of Atchison, 16 Kan. 358; Waterson v. Rogers, 21 Kan. 529. But the plaintiff alleges that, if a portion of the goods covered by an insurance policy is not the property of the insured, though some of them are, the policy is fraudulent and void in toto; that at least some of the goods covered by the policy in this case, and included in the proof of loss, were commission goods, and not the property of the insured; and therefore the policy was void, and the demurrer ought to have been sustained. There was no written application for insurance in this case. There is no allegation or proof of any fraudulent concealment, or other fraudulent intention, on the part of the insured, when he obtained his insurance. He had a stock of goods in his possession, the most of which were his own, but a part of them were held for sale on commission. He made an oral application for insurance, and nothing was said about the ownership of the goods except in a general way, by asking for insurance on his stock. On the trial of the case the plaintiff below made no claim for any goods held by him on commission. The fact that Kelly held some goods for sale on commission could not interfere with his right to insure his own goods. The character' of the goods rendered it an easy matter to distinguish between his own and those held for sale on commission. Nor do we think, in the absence of any fraudulent intention in connection therewith, the fact that a small amount of commission goods were included in Kelly's proof of loss should affect his right of recovery for his own goods lost, up to the amount of the policy. Under the circumstances of this case as disclosed by the evidence, we do not think anything existed that rendered the policy void. Third, the plaintiff says the court erred in not permitting it to amend its answer to conform to the facts proven. The allegation of error in this assignment is based upon the solute purchase and sale, but informed the jury tha: whether there was an absolute sale of the goods by Deere, Mansur & Co. depend idea that the evidence showed the goods insured to be commission goods. The verdict of the jury settled this error when they found that the goods were the property of Kelly.ed upon the intention of the parties to said With such a finding, the object of the amendment asked for was done away with, and so there is no error in this assignment. contracts, and left the jury to determine the intention of the parties from all the evidence. We see no error in this. We recommend that the judgment of the court below be affirmed. PER CURIAM. It is so ordered; all the justices concurring. Fourth, the court erred in refusing to give to the jury the instruction asked by the defendant. Our remarks in relation to the al legation of error by the court in overruling the demurrer of the defendant to the plaintiff's evidence also apply to this assignment. We do not think, under the circumstances of this case, the court would have been justified FLINT v. BOARD COUNTY COM'RS JACKSON in giving the instruction asked by the defendant; and therefore the refusal to give it is not error. Fifth, the court erred in refusing to set aside the verdict of the jury on the ground that the amount of the judgment recovered by the plaintiff below was too great. Whether the judgment, under the evidence in the case, was too great, was a question for the jury. The jury found that the plaintiff's loss, for which he had not been paid by the other company having a risk on the same goods, was the full amount of the policy in suit. We think such a finding could be made under the evidence, and therefore we may not say it was error on the part of the court to approve such finding, and refuse to set the verdict aside. COUNTY. (43 Kan. 656) (Supreme Court of Kansas. May 10, 1890.) TAX-SALES-FORFEITED SCHOOL LANDS. School land sold in 1869, to be paid for in 10 annual installments, followed by default in 1873, became, at once, ipso facto forfeited to the state, and a sale thereof for taxes in 1874 was void; and, when the illegality of such sale was ascertained, the purchaser at said tax-sale had a right to have such purchase money and taxes paid subsequently, but, before ascertaining the invalidity of such sale, refunded, with interest thereon. (Syllabus by Strang, C.) Commissioners' decision. Error from district court, Jackson county; ROBERT CROZIER, Judge. Fabius M. Clarke and James H. Lowell, for plaintiff in error. R. G. Robinson, for defendant in error. Plaintiff alleges that the court erred in refusing to set aside the verdict of the jury on STRANG, C. November 10, 1869, L. F. the ground of misconduct of the jury. It is Hubbard purchased from the state the N. W. said by counsel for plaintiff below that the of section 36, township 6, range 13, Jackevidence on the question heard on the mo- son county, Kan., to be paid for in ten antion for new trial is not all here. We think nual payments, and made three annual paythere is enough here to show that the alleged ments thereon, after which he ceased to misconduct of the jury did not in any way meet the payments, and was in default from prejudice the defendant. The meeting be- November 10, 1873. After the sale to Hubtween the jurors and Kelly at the Catholic bard, the land was assessed for taxation, and, fair was a mere casual coming together. It the tax of 1873 not having been paid, the land was not by design. Kelly did not invite the was sold in May, 1874, for the taxes of 1873, jurors into the building where the fair was and the plaintiff became the owner of the being held. One of the jurors invited him tax-sale certificate. The plaintiff paid the and others, and when in there it was a juror taxes on said land for 1874, '75, '76, and '77, that set up the drinks. There were but two in addition to the taxes of 1873, paid by purglasses of beer taken by any one, and that chase of the tax-sale certificate. In 1878 he was 24 hours before the jury retired to con- failed to pay the taxes, and in 1879 the land sider the case. There was nothing said was again sold for taxes, and the plaintiff about the case by any one at the time. It again became the purchaser of the tax-sale was not even mentioned, and the jurors make certificate. After this it was discovered that affidavits that they did not even think of the the land was the property of the state during case while together at the fair. The jurors all the time the plaintiff had been paying also make affidavit that the fact of their tak- taxes thereon, and was not, therefore, proping a glass or two of beer with Kelly in no erly taxable, and the plaintiff got no title at wise affected their judgment or decision in the several tax-sales. He then presented a the case. bill of the taxes paid by him, with interest thereon, to the board of county commissioners, and asked them to refund him the amount thereof, under section 146, Tax Law, (Comp. Laws 1885,) tendering a quitclaim deed at the same time for the land. The commissioners refused to return the money to plaintiff, and from their judgment or refusal he appealed to the district court, where the case was tried, and a judgment rendered We therefore think the court committed no error in refusing to set aside the verdict of the jury on this ground. Lastly, the plaintiff says the court erred in submitting to the jury, in the second instruction, the question of the legal effect of the evidence as to the contract with Deere, Mansur & Co. The court instructed the jury that the contracts between Kelly and Deere, Mansur & Co. wore in form contracts of ab seen none of these provisions are for the protection of the purchaser at tax-sale, but sole in his favor for the sum of $22.55, with interest from September 2, 1879, at 10 per cent., and the further sum of $2.45, and in-ly for the protection of the state. It may be terest at 10 per cent. from June 11, 1883, being the amount of taxes for 1878, with interest, and the costs of tax-deed made June 11, 1883, and interest on same; but refusing to allow the plaintiff anything for the taxes of 1873, '74, '75. '76, and '77. From such judgment the plaintiff, who was plaintiff below, comes here, seeking to have the judgment of the court below reversed; and alleges as error that the court erred, under the pleadings and evidence, in not giving him judgment for the taxes of 1873, '74, '75, '76, and '77, and interest thereon. We think the plaintiff is right in his contention. He paid such taxes under the mistaken belief that he acquired some interest in said land by his purchase at tax-sale in 1874, and, when it was discovered that he got nothing under said sale, section 146, above mentioned, authorized and required the board of county commissioners to refund to him the money paid, with interest thereon. The defendant alleges that the plaintiff should not recover the money back because by his purchase at the tax-sale he became subrogated to the rights of Hubbard, and as a consequence could have paid the amount unpaid on Hubbard's certificate of purchase, and demanded a patent for the land; and not having done so, and thus protected himself, he cannot ask the taxes refunded to him; and cites section 14, c. 94, Gen. St. 1868, and other authorities. We do not think the section applies. Hubbard made default in November, 1873. His entire interest in the land was immediately forfeited. The title to the land at once, by operation of law, again became vested in the state. Section 16, c. 94, Gen. St. 1868; State v. Emmert, 19 Kan. 546. That being the case, there were no existing rights in Hubbard in relation to said land to which the plaintiff could be subrogated. If Hubbard had not defaulted in his payments to the state, but had failed to pay the taxes on the land, and the land had been sold for taxes, and the plaintiff had become the purchaser at the tax-sale, then the plain- | tiff would have been subrogated to the rights of Hubbard; and under section 14, c. 94, Gen. St. 1868, the plaintiff, subject to the conditions of the original certificate of purchase and the bond of said purchaser, could have completed the payments of the original purchaser, and demanded a patent. In such case there would be no question of forfeiture. And section 14, above referred to, never contemplated any forfeiture. That section simply provides against waste; for the taxation of the land when sold; and for the sale of the land for taxes; and then provides for the protection of the state in case the land is sold for taxes, by declaring that the purchaser at tax-sale shall be subject to the conditions of the original certificate of sale and purchase, and the bond given by the purchaser in connection with the purchase. It will be | conceded, however, that, under the law in relation to tax-sales, the purchaser at such a tax-sale gets all the interest, and is subrogated to all the rights, of the original purchaser. When, however, as in this case, the original purchaser has made default, and the land, with all his rights thereto, is forfeited under section 16 of said chapter 94, Gen. St. 1868, and a tax-sale of said land occurs afterwards, there is nothing left in the original purchaser for the tax-sale purchaser to succeed to, and nothing upon which he can base a right to pay out on the original sale certificate and demand a patent. The land is absolutely forfeited to the state, and the state has a right, and it is its duty, to appraise and sell it anew. We have examined the position of the defendant in relation to a waiver on the part of the state of the forfeiture of the land by Hubbard, and the cases cited in support of such position. We do not think there was a waiver in this case, nor do we think there is anything in the cases cited that supports the theory of waiver claimed in this case. Hubbard purchased in 1869. He defaulted in his payments November, 1873. Such default, by force of the statute, ipso facto worked a forfeiture of the land, and the statute does not authorize a waiver. The land then belonged to the state from that time on until reappraised and sold. Being the land of the state, the tax for which it was sold in 1884 was illegal, and the sale thereon invalid. The plaintiff should have the purchase money at such tax-sale refunded; and, having paid the taxes for 1874, '75, '76, and '77, upon the strength of the said sale and tax-sale certificate thus obtained, those taxes should also be refunded to him. We therefore recommend that the case be remanded to the trial court, with instructions to modify the judgment for the plaintiff by adding thereto the amount paid by plaintiff on the tax-sale of 1874, and interest thereon; the cost of the tax-deed of 1877, and interest thereon; and the amount of the taxes paid in 1874, '75, '76, and '77, and interest thereon. PER CURIAM. It is so ordered; all the justices concurring. (43 Kan. 718) PULSIFER et al. v. PADDOCK et al. (Supreme Court of Kansas. May 10, 1890.) DEEDS-CANCELLATION-Undue InfluENCE-EVI DENCE. 1. R., a widower, nearly 70 years of age, having several grown-up sons and daughters, and being possessed of $1,100 of personal property, and a tract of land of the value of $4,000 to $5,000, executed a will directing, upon his death, that his real and personal property be converted into morey, and, after the payment of his funeral charges, expenses, etc., the proceeds be divided among his children, share and share alike, with the exception that his oldest daughter should receive $400 in addition to her share, and a grandson to receive $120. About two years afterwards, while staying with Mrs. P., one of his married daughters, he was taken sick, and in a few weeks died. Before his death, but while he was sick, and physically and mentally in a feeble condition, he executed a conveyance of all of his real estate to Mrs. P., his daughter, for the nominal consideration of $2,500, but no money or other consideration was paid; and the daughter claims the land was intended to be a gift to her from her father. Soon after the death of her father, Mrs. P. conveyed the land without consideration to Mrs. B., her own daughter, with the understanding that she would convey the land to any person she requested. Held that, in an action brought by the executor and the other children of R. against Mrs. P. to cancel the deed from the father, the burden of proof was upon the daughter, Mrs. P., to clearly establish the perfect good faith of the transaction. 2. An examination of the record in this case shows sufficient testimony to sustain the judgment of the trial court canceling the deed from R., the father, to Mrs. P., the daughter, upon the ground that it was obtained fraudulently. (Syllabus by the Court.) pose of aiding said Mary J. Paddock to defraud the plaintiffs out of their rights in the aforesaid land. That said David Robertson died on or about the 10th day of January, 1886, after having made a will which was duly probated by the probate judge of said county on the 10th day of February, 1886, and in which it is provided that the executor thereof shall sell all of the real estate of the defendant, and convert the same into money. Wherefore, plaintiffs pray judgment that said · pretended deed be set aside, and for such other and further relief as they may be entitled to." On March 16, 1886, the defendants filed an answer containing a general denial only. Trial was had at the October term of the court for 1887, without a jury. The court made a general finding in favor of the plaintiffs that the deed from David Robertson to Mary J. Paddock, and the deed from Mary J. Paddock, and Error from district court, Cloud county; Thomas Paddock to Alice Bourgeois, for the E. HUTCHINSON, Judge. On the 11th day of February, 1886, Park B. Pulsifer, as administrator with the will annexed of David Robertson, deceased, John Robertson, Isabel Temple, and Mattie Ellis, filed their petition against Mary J. Paddock and Alice Bourgeois, Anna Mealey, Margaret Reid, David Robertson, and Jessey Snowey, which, omitting caption, is as follows: "Plaintiffs say that on the 11th day of February, 1886, the plaintiff Park B. Pulsifer was duly appointed and qualified, and letters of administration were granted to him, as administrator with the will annexed of the estate of David Robertson, theretofore deceased, by the probate court of Cloud county, Kan. That said David Robertson was the owner during his life-time of the north-west quarter of section thirty-two, (32,) township five (5) south, range one (1) west, in Cloud county, Kan. That on or about the 25th day of November, 1885, the defendant Mary J. Paddock, by fraud, misrepresentation, undue influence, and deceit, obtained from said David Robertson what purports to be a warranty deed of the aforesaid premises to her. That, at the time of the execution of the pretended deed as aforesaid, said David Robertson was in failing health of body, and was in such a feeble and weak state of mind as to be utterly incapable of transacting business, and that said pretended deed was obtained without any consideration whatever being paid therefor, and without the consent of said David Robertson. On or about the 5th day of February, 1886, defendant Mary J. Paddock, and Thomas Paddock, her husband, pretended to convey to defendant Alice Bourgeois the aforesaid land by deed recorded in the office of the register of deeds of said county on February 8, 1886; but the plaintiffs allege that said Alice Bourgeois took said deed without any consideration whatever being paid by her, or anyone for her, well knowing all the facts herein set forth as to the invalidity of the title of the defendant Mary J. Paddock; and such pretended sale and conveyance to said Alice Bourgeois is a sham, intended only for the pur land in controversy, be annulled, canceled, and held for naught. Subsequently judgment was rendered in favor of the plaintiffs and against the defendants upon the general finding. The defendants Mary J. Paddock and Alice Bourgeois excepted, and bring the case here. B. R. Anderson and J. W. Sheafor, for plaintiffs in error. Kennett & Peck, L. J. Crans, and Hugh Alexander, for defendants in error. HORTON, C. J., (after stating the facts as above.) David Robertson died at the home of his married daughter, Mrs. Mary J. Paddock, in Cloud county, in this state, on January 10, 1886, aged about 70. His wife died many years before. He had been suffering from paralysis nearly two years. He left surviving him several children. At the time of his death, he owned $1,100 of notes. A few weeks before his death, he had the legal title to, and was in the possession of, the N. W. of section 32, township 5, range 1, in Cloud county. Robertson executed a will on the 22d day of October, 1883. It was admitted to probate on the 9th of February, 1886. He directed in his will that his real and personal property be converted into money, and, after the payment of his funeral charges, expenses, etc., the proceeds to be divided among his children, share and share alike, with the exception that his oldest daughter, Mrs. Isabel Temple, should receive $400 in addition to her share, and the grandson, David Reid, should receive $120. During the years of 1883, 1884, and a part of 1885, he lived in Cloud county most of the time, with Mrs. Isabel Temple, as one of the family. Some time in the summer or fall of 1885, he left Mrs. Temple's, and went to Mrs. Mary J. Paddock's. Before leaving Mrs. Temple's, he told her he was going down to his farm, to set out some shade trees, and stay with his daughter Mary. Early in November, 1885, he was taken sick, and never recovered. Mrs. Temple called at her sister's every two or three weeks to see her father. When she called he was very feeble. He could not work, |