Page images
PDF
EPUB

and was not able to help or take care of himself. During his sickness it was thought necessary, on account of his sufferings, to administer to him large quantities of whisky and morphine.

On the 25th of November, 1885, David Robertson executed to his daughter Mrs. Mary J. Paddock a deed for the tract of land in dispute; and on the 5th of February, 1886, Mrs. Paddock and her husband conveyed the land to her daughter, Mrs. Alice Bourgeois. The land is worth from $4,000 to $5,000. No consideration was paid by Mrs. Paddock to her father for the conveyance. When Mrs. Bourgeois received the deed, she agreed to convey the land to any person her mother should request. In order that it might appear that a money consideration passed for the deed from Mrs. Paddock to Mrs. Bourgeois, Dr. Bourgeois, her husband, obtained the use of $500 for a few days from a bank. This was handed to Mrs. Paddock, but soon after returned to Dr. Bourgeois, and by him to the bank again. Mrs. Paddock claims that she sold the land to Mrs. Bourgeois for $2,600, and was paid that sum for it; but, upon the finding of the court, we must assume that this is not true. In the brief for defendants below, it seems to be conceded that Mrs. Bourgeois was not a bona fide purchaser of the land. The brief states: "If it is a fact that Mrs. Paddock, after being frightened by the houndings of these people, at last made a sham sale to Mrs. Bourgeois of the farm, this is an evidence of weak ness rather than of fraud." This action was brought to set aside and cancel the two deeds,

-one from David Robertson to his daughter Mrs. Mary J. Paddock, and the other from Mrs. Paddock and her husband to Mrs. Bourgeois. The contention is that there was no evidence before the trial court tending to show the deed to Mrs. Paddock was procured by fraud, and, as the court canceled the deed upon the ground that it was obtained fraudulently, that the judgment is wholly unsupported by any evidence.

In such a case as this, the burden of establishing the perfect fairness and equity of the conveyance to Mrs. Paddock was thrown upon her, in view of her father's age, sickness, and feebleness of mind, and the close relation of the parties. Confidence was necessarily reposed in Mrs. Paddock. If that confidence was abused in procuring the deed, the trial court very justly set it aside. The deed purports upon its face to have been executed for $2,500 “cash in hand paid." This is much less than the value of the land. It is admitted by Mrs. Paddock that she paid nothing for the deed; and, if she obtained it from her father upon the promise to pay $2,500 in money or in notes, without intending to pay for the same, or if she did not have the means of paying what she agreed to pay, this would be indicative of actual fraud upon her part. She claims, however, that her father gave her the land, and intended to give her the land, without any con

sideration being paid. If this were true, Mrs. Paddock should have clearly established the perfect good faith of the transaction. Story states the rule thus: "All contracts and conveyances whereby benefits are secured by children to their parents are objects of jealousy; and, if they are not entered into with scrupulous good faith, and are not reasonable under the circumstances, they will be set aside, unless third persons have acquired an interest under them, especially where the original purposes for which they have been obtained are perverted or used as a mere cover." 1 Story, Eq. Jur. § 309. The father, David Robertson, at the date of the deed, was in his second childhood. There. fore the entire relation of the parties was reversed; the father had become the child, and the daughter had control of the father. Considering the influence and infirmities under which Robertson labored; the fact that Mrs. Paddock had his entire confidence; that the deed transferred to her, without any consideration, all of his real estate, and thereby deprived his other children of any possible interest therein, there is ample evidence to sustain the judgment. Certainly, we cannot disturb it upon the ground that it is not supported by any evidence.

*

In Tracey v. Sacket, 1 Ohio St. 54, it is said: "Actual fraud * * ** was not essentially necessary in order to set aside the contract in equity. * * * The acts and contracts of persons who are of weak understandings, and who are therefore liable to imposition, will be held void * * if the nature of the act or contract justify the conclusion that the party has not exercised a deliberate judgment, but that he has been imposed upon, circumvented, or overcome by cunning, artifice, or undue influence." In Jacox v. Jacox, 40 Mich. 473, it is decided that "an equitable wardship arises where a son takes charge of his father's affairs in the belief that the latter is incompetent to manage them, and the father passively submits." In Highberger v. Stiffler, 21 Md. 338, it is held that where a parent, through extreme age and infirmity, has become childish, and depends upon her son for advice in all her affairs, contracts made by her in his favor are subject to the same strict scrutiny given to contracts of children in favor of their parents. "In such cases it is not necessary to prove the actual exercise of overweening influence, misrepresentation, importunity, or fraud aliunde the act complained of." In Martin v. Martin, 1 Heisk. 644, Chief Justice NICHOLSON, in delivering the opinion, used the following language: "But when to this is added that the father was far advanced in years, was greatly enfeebled in body and mind, actually verging upon mental incapacity, and was greatly troubled and uneasy in his mind, and that the son and agent uses his influence in procuring a deed which secures to himself more than two-thirds of his father's entire estate, and to his brother the residue, to the total exclusion of two sisters

and several grandchildren, the law raises the presumption of fraud; and this presumption can only be overturned by clear and satisfactory proof that the son and agent dealt with entire fairness and good faith in the transaction. It is incumbent on him to show affirmatively that his father comprehended fully the purport and effect of the conveyances, and that he executed them freely and understandingly, knowing that he thereby divested himself of the absolute title of the lands." See, also, Tracey v. Sacket, 59 Amer. Dec. 615, and the cases cited; Yeamans v. James, 27 Kan. 195; Wills v. Wood, 28 Kan. 400; 2 Pom. Eq. Jur. § 951.

It

[blocks in formation]

(Syllabus by the Court.)

Error from district court, Wabaunsee county; R. B. SPILLMAN, Judge.

On the 26th day of August, 1885, Charles P. Deatherage and William I. Ewart, under the firm name of Deatherage & Ewart, commenced their action against Eli Henderson et al., upon an account for lumber and build

leged lien. On December 16, 1885, a trial was had by the court, and judgment given in favor of Henderson, denying plaintiffs' lien. This judgment was reversed at the July term of this court for 1887, and the cause re

Rep. 474. The new trial was had on October 22, 1887. The jury returned the following special findings of fact: "Was the lumber for which plaintiffs claim a lien sold by them on the general credit of George A. Woods alone, without intending to obtain any security by virtue of a mechanic's lien, if their claim should not be paid by Woods? Answer. Yes. (2) Was George A. Woods the agent of plaintiffs for the purpose of collecting the amount due for the lumber? A. Yes."

Complaint is made because the deposition of Thomas Paddock was permitted to be reading materials, and also to enforce their alin evidence. Paddock was the divorced husband of Mrs. Mary J. Paddock. The objections to this deposition are not tenable. was taken in New York city while the district court of Cloud county was in session. This is not a sufficient reason for rejecting a depo-manded for a new trial. 37 Kan. 63, 14 Pac. sition. Northrup v. Hottenstein, 38 Kan. 263, 16 Pac. Rep. 445; Railway Co. v. Morse, 38 Kan. 271, 16 Pac. Rep. 452. The deposition was offered as testimony against Mrs. Alice Bourgeois only. It was competent as to her, if incompetent against Mrs. Paddock. The deposition recited that Thomas Paddock was formerly the husband of Mrs. Mary J. Paddock, hence there was no error in rejecting the evidence offered to prove this fact. Again, the motion to suppress and the objections to the deposition were made jointly by Mrs. Paddock and Mrs. Bourgeois. Their motions were for the exclusion of the whole of the deposition. If any portion of a deposition objected to is competent, the court is not obliged, upon a motion to exclude the whole, to separate and exclude the part that is incompetent only. Greer v. Higgins, 20 Kan. 420; Gano v. Wells, 36 Kan. 688, 14 Pac. Rep. 251; Smythe v. Parsons, 37 Kan. 79, 14 Pac. Rep. 444. The evidence offered to impeach Mr. Paddock was properly rejected, because no foundation was laid by calling his attention to the matters attempted to be proved. Greer v. Higgins, supra. The judgment of the district court will be allirmed. All the justices concurring.

(43 Kan. 684)

DEATHERAGE et al. v. HENDERSON et al.
(Supreme Court of Kansas. May 10, 1890.)
MECHANICS' LIENS-SUBCONTRACTORS-STATEMENT
-SERVICE ON OWNER.

1. A judgment rendered upon the special findings of a jury, which are inconsistent and conflicting, and against the great preponderance of the evidence, is erroneous.

2. The mere fact that lumber used in a building is furnished to the contractor on his credit is not a waiver or an extinguishment of the subcontractor's lien therefor.

3. Under section 631 of the Civil Code, in force in 1885, the subcontractor had a reasonable time, after the filing of his statement for a mechanic's lien, within which to furnish a copy thereof to the owner or agent of the premises, and such copy need not necessarily have been furnished within 60 days after the completion of the building, but

The court made and filed the following findings of fact: "(1) That in the month of March, 1885, defendant George A. Woods agreed with defendant Eli Henderson to furnish him certain lumber to be used by Henderson in the erection of a building on lots owned by Henderson in Harveyville, Kan. (2) That said Woods purchased said lumber, which he had agreed to furnish to Henderson, from the plaintiff, at Kansas City, Mo., and said lumber was shipped by plaintiffs to said Woods on a car with other lumber, but in a separate lot, marked E. H.,' and that plaintiffs were general lumber merchants at Kansas City, Mo. (3) That the value of said lumber so sold by plaintiffs to said Woods was at the time of shipment, April, 1885, $144.91, and the same has not been paid to plaintiff by said Woods or any other person. (4) That said Henderson took said lumber from the car on which it was shipped at Harveyville, Kan., on the 10th day of April, 1885, and afterwards used all of it in the erection of a building on lots 7 and 8, in block 5, in Harveyville, Kan., the same being the building he was intending to erect for which said Woods agreed to furnish the lumber. (5) That said building was completed on the 16th day of May, 1885. (6) That Henderson paid Woods in full for said lumber at the time he received it, to-wit, April 10, 1885, by giving Woods credit for the amount of the bill on an account owing by Woods to him, commencing in December,

1883. (7) That on the 14th day of July, 1885, plaintiffs filed in the office of the clerk of the district court of Wabaunsee county a statement for a subcontractor's lien according to law against said Henderson, and said building and lots on which it was erected. (8) That on the 25th day of July, 1885, plaintiffs caused to be delivered to Henderson personally a copy of said statement for a subcontractor's lien. (9) That when Woods agreed to furnish said lumber to Henderson he knew that Woods would procure same from some other person and place, and that when plaintiffs sold said lumber to Woods they knew and understood that it was being procured by Woods to be used by some other person on the erection of a building on or near Harveyville, Kan. (10) That, at the time of the purchase of said lumber from George A. Woods, Henderson did not know where the lumber was to be procured by Woods, nor from whom."

Subsequently the court made and filed the following conclusions of law: "(1) That plaintiffs are entitled to recover from George A. Woods the sum of one hundred and fortyfour dollars and ninety-one cents, ($144.91,) with interest thereon from the 20th day of March, 1885. (2) That plaintiffs are not entitled to a lien upon the real estate described in the petition and the building erected thereon by Henderson." Judgment was entered upon the conclusions of law in favor of Henderson and against the plaintiffs, again denying plaintiffs' claim for any lien. The plaintiffs excepted, and bring the case here. Botsford & Williams, for plaintiffs in error. Hazen & Isenhart, for defendant in error.

HORTON, C. J., (after stating the facts as above.) This was an action in the court below by Deatherage & Ewart to recover $144.91 for lumber, and to enforce a subcontractor's lien for the same. They claim that George A. Woods was the contractor, and Eli Henderson the owner, of the building and premises. The lumber was purchased in April, 1885, and used by Henderson in the erection of a building on lots 7 and 8, in block 5, in Harveyville, in this state. The building was completed on the 16th day of May, 1885. Α statement for a subcontractor's lien was filed on the 14th day of July, 1885. A copy of the statement was furnished to Henderson, the owner of the premises, on the 25th of July, 1885. In determining whether Deatherage & Ewart are entitled to a lien, the provisions of the Civil Code relating to liens of mechanics and others, in force in 1885, control. Comp. Laws 1885, art. 27, p. 685. trial court rendered judgment against George A. Woods for the sum of $144.91, with interest, but decided that the plaintiffs were not entitled to a lien upon the building and premises owned by Henderson. This case has been to this court before, and is reported in 37 Kan. 63, 14 Pac. Rep. 474. The only question involved upon the former hearing was whether the plaintiffs' statement for a mechanic's

The

lien was sufficient. This court held the statement sufficient, and therefore ordered a new trial. Upon the second trial, the following questions were submitted to the jury: "(1) Was the lumber for which plaintiffs claim a lien sold by them on the general credit of George A. Woods alone, without intending to obtain any security by virtue of a mechanic's lien, if their claim should not be paid by Woods? Answer. Yes. (2) Was George A. Woods the agent of plaintiffs for the purpose of collecting the amount due for the lumber? A. Yes."

It is clearly apparent that the trial court decided against the lien of plaintiffs on account of these findings. But for the findings of the jury, a judgment enforcing the lien of plaintiffs should have been entered upon the findings of fact of the trial judge. The findings, however, of the jury, do not justify any judgment. They are conflicting with each other, and the evidence to sustain them is wholly unsatisfactory. Ewart, one of the plaintiffs, testified that in making all sales, both in Missouri and in Kansas, on bills of this kind, his firm did so with the knowledge that they had the right to a mechanic's lien, provided the parties were not good. Where materials are furnished and placed in a building, if there be nothing showing a different intention, a jury would be warranted in finding that they were furnished to be used in such building. So, if it appear that materials furnished were used in the erection of the building on which a lien is claimed, unless it is shown that they were intended for another purpose, it will be presumed that they had been contracted for to be used in the building. Power v. McCord, 36 Ill. 214; Martin v. Eversal, Id. 222. Under the statute, the mere fact that the materials were furnished on the credit of Woods would not be an extinguishment or waiver of the plaintiff's lien. Sodini v. Winter, 32 Md. 130. But it was decided by this court in Weaver v. Sells, 10 Kan. 609, that if a material-man furnished lumber to a person with the understanding that it should be sold again as merchandise; if he should furnish it upon the personal credit of the vendee alone, without intending or expecting to obtain any security by virtue of a mechanic's lien,—it would hardly be claimed that a mechanic's lien would be created, even though the vendee might afterwards use the lumber in erecting a building. The right to the lien must be created at the time or before the material is furnished. It cannot be created afterwards. It is the furnishing of the material under a contract, with the intention and understanding that it shall be used in erecting the building, that creates the lien. If the plaintiffs furnished the lumber exclusively on the credit of Woods, and without intending to have any lien, then, of course, Woods was not their agent in selling the lumber to Henderson, nor could he be their agent for the purpose of collecting from Henderson the amount due plaintiffs for the lumber. In

view of the conflicting findings, all that we can do is to reverse the judgment, and order a new trial. Section 559, Civil Code.

Counsel for the defendant claim that, as the copy of the lien was not served until after the expiration of 60 days from the completion of the building, plaintiffs have no lien. They say "that the lien must not only be filed within the sixty days, but the copy of the lien must be served within the sixty days; that all things necessary to be done to perfect the lien must be done within the sixty days; that the serving of the copy of the lien is as imperative as the filing; that, under the mechanic's lien law, the party claiming the lien must show he has complied with all the requirements of the statute, and within the time fixed; that at the end of sixty days his lien must be completed in all respects, for after that time he can do nothing to perfect his lien; in other words, that the validity of the lien must be determined at the end of the sixty days, and, if anything is left undone at that time, then no valid lien exists." We do not concur in these views. Section 631, art. 27, p. 685, Comp. Laws 1885, reads: "Any person who shall furnish any such material or perform such labor under a subcontract with the contractor, wishing to avail himself of the act, shall file a statement of the amount due him from such contractor for the labor performed, or the material, fixtures, or machinery furnished, and a description of the property upon [to] which the same were done, [applied,] within sixty days after the completion of the buildings, improvements, or repairs, | or the furnishing or putting up of fixtures or machinery, or the performing of such labor, in a book kept by the clerk of the district court for that purpose, and furnish a copy thereof to the owner or agent of the premises, which book shall be ruled off into separate columns, with heads as follows: When Filed,' Name of Contractor,' Name of Claimant,'Amount Claimed,' and Description of Property;' and the proper entry shall be made under each of such heads; and the district clerk shall be entitled to a fee of twenty-five cents for making such entries; and, if the contractor does not pay such person or subcontractor for the same, such subcontractor or person shall have a lien for the amount due, for such labor or material, on such lot or lots, from the same time, and to the same extent, and in the same manner, and to the same extent, as such original contractor."

[ocr errors]

days within which to file his statement, it would have been impossible for him, in many cases, to furnish a copy thereof to the owner or agent of the premises within the 60 days, if his statement was not filed until the last day. A more reasonable construction of the statute would be to give the subcontractor a reasonable time, after filing his lien, to furnish a copy thereof to the owner or agent of the premises. What would be a reasonable time must be determined by the court or jury trying the case under the attending circumstances. But the subcontractor must be diligent in serving his notice after filing his lien. Sections 630, 631, 633, and 636 of the Civil Code, relating to mechanics' liens, in 1885, were repealed by chapter 168, Sess. Laws 1889; and section 632 of the Civil Code, as now in force, gives express directions for the mode of the service of a subcontractor's notice upon the owner of the premises. St. 1889, par. 4735.

Gen.

One other matter deserves a word of comment. The court committed error in permitting Henderson to prove that he paid Woods for the lumber by giving credit on an old account due from Woods to him. If it were the intention of the plaintiffs to sell their | lumber to Woods upon his personal credit exclusively, and without any lien, then this evidence had nothing to do with the case. If the plaintiffs have, under the statute, a lien for their material, then Henderson had no power to satisfy their claim by giving Woods credit on an old account due from him, even if Woods was the agent of plaintiffs for the purpose of collecting their bill for the lumber. Scully v. Dodge, 40 Kan. 395, 19 Pac. Rep. 807; Organ Co. v. Lasley, 40 Kan. 521, 20 Pac. Rep. 228. The judgment of the district court will be reversed, and the cause remanded for a new trial. All the justices concurring.

(43 Kan. 691)

DEATHERAGE et al. v. HowENSTEIN. (Supreme Court of Kansas. May 10, 1890.) Error from district court, Wabaunsee county; R. B. SPILLMAN, Judge.

Bottsford & Williams, for plaintiffs in error. Hazen & Isenhart, for defendant in error.

HORTON, C. J. This case was submitted to this court at the same time of the case of Deatherage v. Henderson, ante, 1052, (just decided.) All the questions involved in this case were also involved in that case. Therefore, upon the authority of that case, the judgment of the district court will be reversed, and the cause remanded for a new trial. All the justices concurring.

Statutes relating to liens for mechanics and material-men should be liberally construed so as to protect, as far as possible, within the terms of the statute, the rights and equities of STATE ex rel. ATTORNEY GENERAL . SUL

such persons. If the construction be given as contended for, in many cases the liens of mechanics and material-men could not be perfected. The statute in force in 1885 gave a subcontractor, furnishing material or performing labor, 60 days after the completion of the building to file his statement for a lien. If such a contractor had all of the 60

LIVAN et al.

(44 Kan. 43)

(Supreme Court of Kansas. May 10, 1890.) COUNTY-SEAT-LOCATION-ELECTION-CORRUPTION.

In an election for the permanent location of a county seat, when the evidence discloses the fact that a large number of the votes cast for the successful candidate were procured through bribery, fraud, and corruption of the partisans of such candidate, said votes should be rejected, if they can

[blocks in formation]

L. B. Kellogg, Atty. Gen., Taylor, Jones & Taylor, and Rhoades, McCartney & Wise, for the State. W. E. Hutchinson and Webb & Webb, for defendants.

GREEN, C. This is an original action, commenced in this court by the attorney general, in the name of the state, to compel the defendants, who are county officers of Grant county, to remove their offices from the city of Ulysses to Appomattox, on the ground that the latter place received a majority of the legal votes cast at an election held in said county, for the permanent location of the county-seat, on the 16th day of October, 1888. The pleadings show, in this case, that the county of Grant was duly organized and apportioned into five townships, in which election precincts were designated in each township, said townships being named, respectively, Lincoln, Sherman, Sheridan, Howard, and Thomas; that Ulysses was the temporary county-seat; that on the 16th day of October, 1888, an election was held in each of the precincts in said county for the election of certain county and township officers, and for the permanent location of the county-seat of said county; that returns were duly made to the board of county commissioners, and on the 19th day of October, 1888, said returns were canvassed, with the following result as to the location of the county-seat in each of the townships named:

[blocks in formation]

seat were bribed and paid to cast their ballots; that, in the voting precinct of Howard, 93 voters who cast their ballots for Ulysses as the permanent county-seat were bribed; that, in the voting precinct of Thomas, in said county, 49 voters were bribed to cast their ballots for Ulysses as the permanent county-seat. And, further, that 12 votes cast in favor of Ulysses as the permanent county-seat in Thomas township were cast by persons not bona fide residents of said county; that, in the township of Sherman, 41 of the registered voters of the county banded and organized themselves together, with officers and written rules, for the express purpose of casting their ballots, as a unit, for the town for permanent county-seat which, through its citizens or otherwise, would pay and give them the largest property consideration, and they, being unable to sell or dispose of their votes, cast their votes for the town of Shockey, in said county, to the number of 41. It is further charged that in the township of Thomas, in said county, a large number of the registered voters, to the number of 31, banded and organized themselves together for the same purpose, and, being unable to sell said organization, voted for Golden, in said county, as the permanent county-seat. The relator further charges that the town of Ulysses, through its legally-constituted officers, and a body of persons who owned large property interests in said town, bribed a large number of voters for the purpose of locating the said County-seat at said town; that the town of Appomattox received a majority of all the legal votes cast at the election as permanent county-seat of Grant county.

To determine the various questions involved in this case, and the validity of the vote cast in the several precincts, we shall consider the election in each of the townships named.

1. Lincoln township cast 318 votes for Ulysses, and 118 votes for Appomattox. In this township the two rival towns were situated about three miles and one-half apart. The evidence shows that, during the months of July, August, and September, 1888, parties commenced coming to Ulysses and Appomattox from different portions of the country, and remained there until after the election; that they lodged in houses furnished by parties interested in Ulysses, and a large number of them were supported without expense to themselves; these people came apparently for no other purpose than to participate in this county-seat election; that, during their stay there, they had no regular employment, and that rations were issued to them almost daily up to the date of the election; that efforts were made to sell their votes to the rival town companies, but without apparent success until the day of the election; that, on the morning of the election in question, the election board was organized by

-That the board of county commissioners then and there declared Ulysses elected and chosen as the permanent county-seat of Grant county. It is charged by the relator that the town of Ulysses was not at such election legally chosen as such permanent county-seat of said county by the legal, affirmative votes of a majority of the qualified voters of said county voting at said election; that, in the election precinct of Lincoln, 211 voters who cast their ballot at said election for the location of the permanent county-seat at Ulysses were bribed; that 133 votes cast at said election in Lincoln township were fraudulent and void, having been cast by persons not bona fide residents of the county; that, in the precinct of Sherman, in said county, 19 voters who cast their ballots at said election for Ulysses were bribed and paid; that, in the voting pre-placing one judge friendly to Appomattox on cinct of Sheridan, 39 voters who cast their ballots for Ulysses as the permanent county

the board, and two friendly to Ulysses. The evidence shows that a large number of depu

« PreviousContinue »