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title; and taken as a whole, and together with | minate until the defendants took possession the other instructions, which were pretty full, and also liberal towards the defendants, and considered with the evidence in the case and the findings of the jury, we are inclined to think there is no such error disclosed as would warrant a reversal of the judgment in the case. There is no further specific error pointed out in plaintiff's brief in the instructions. An examination of all the instructions given and refused does not, we think, disclose error sufficient to authorize this court to interfere with the result of the trial in the court below.

The next complaint is that the verdict is not sustained by sufficient evidence. We think it is. Waller had the land assessed to himself in 1859. He paid the taxes in 1860 for the year 1859. The lots were under fence, and were being cultivated by him as early as 1861 or 1862. He continued to cultivate the land, and to have it fenced,

| of the lots and fenced them; and we are not prepared to say that they are not justified under the evidence in so finding. However that may be, we think there is evidence sufficient to justify the jury in finding that John Waller and his grantees had open and adverse possession of the lots for more than 15 years, and that the plaintiff below was entitled to recover the possession of which he had been deprived. Cartwright v. McFadden, 24 Kan. 662; Gilmore v. Norton, 10 Kan. 492; Campbell v. Coonradt, 22 Kan. 704. We recommend that the judgment of the district court be affirmed.

PER CURIAM. It is so ordered.

VALENTINE and JOHNSTON, JJ., concur

ring.

but not in all stated in the opinion.
HORTON, C. J. I concur in the syllabus,

(43 Kan. 484)

until 1873, and there is some evidence by young Waller that they were under some fence as late as his leaving for Missouri, aftHAVENS et al. v. DRAKE. er the death of his father, in 1875. In 1875 (Supreme Court of Kansas. April 4, 1890.) Waller willed the property to his wife, which PARTITION-PETITION-NOTICE-SERVICE ON INwill was almost immediately probated, and soon after his widow deeded the property to Annie B. Wood, disclosing acts of ownership

FANT.

1. Where a petition for the partition of real estate was filed with the clerk of the district court

of the proper county in vacation, while chapter 162, Comp. Laws 1862, relating to partition was in force, and the petition was followed up by the notice prescribed by the provisions of that chapter,

matter, and of the parties to the action.

2. Under the provisions of section 3, c. 162, Comp. Laws 1862, the notice in a partition action was required to be at least "forty days previously to the term of the court next after the filing of the petition." Where the petition, under the provisions of said chapter 162, was filed more than 40 days previously to the term of the court rendering the judgment, and notice to answer was served more than 40 days previously to the term of the court rendering the judgment, but only 38 days were given in the notice in which to answer, and where the judgment was not rendered until more than 40 days after the notice was served, held, that the judgment rendered upon the notice is not voic The defect, if any, is voidable only.

and control over the land that tend to show continual possession thereof. In 1879 and 1880 a sidewalk was placed along said lots, and a retaining wall built in front of them.id, that the court had jurisdiction of the subjectThe evidence is not entirely clear as to who paid for making the walk, but there is evidence of Anderson that he consented for Woods that the parties anxious for the walk should build it, and he would see that they were paid for it. It was built, and the best evidence on the subject was that it was built for the Woods. The city did not build it. After the death of Waller his widow paid the taxes on the lots, and his grantees continued to pay them down to the plaintiff below, and he has paid them since he purchased the lots. No one pretends to have been in possession of the lots, except Waller and those claiming under him, from the time he took possession down to the time they were taken possession of and fenced by defendants below, in 1886. We think the record discloses evidence to sustain the verdict of the jury and all the special findings. Counsel complain that the jury say possession commenced in 1860, and has not terminated legally. By the use of the term “legally” we think the jury meant to say that the possession taken by John Waller in 1860 had continued in him, and those who claimed under him, down to the time when the defendants below took possession of the lots and fenced them, and that such possession would have continued still had the defendants not wrongfully deprived him of it. What the jury may have thought about the manner in which the possession of the plaintiff below terminated is immaterial; but it is evident they thought, under the evidence, the possession of plaintiff below did not ter

8. Under section 3, c. 162, Comp. Laws 1862, relating to the partition of real estate, the persona notice to be given in an action for partition was required to be "in writing, to each and every person concerned, their agent or attorney. Where service in such an action was made upon an infant two years of age, whose father was dead, by delivering a certified copy of the written notice to the mother, having the charge and custody of the infant, in the presence of the infant, for said infant, and also by delivering a certified copy of the notice to the mother of the infant as his natural guardian, and where this was followed up by the appointment in the district court of a guardian ad litem for the infant, and where, subsequently, the regularly appointed and qualified guardian of the infant paid the infant's share of costs in the partition action, held, that the judgment rendered on such service upon the infant is valid, and binding upon him and his grantee.

(Syllabus by the Court.)

Error from district court, Bourbon county; C. O. FRENCH, Judge.

On August 20, 1886, C. F. Drake commenced his action against J. D. Havens, and in his petition alleged as follows: "That he is the owner of, and in the possession of, the

following described real estate situated in
Bourbon county, Kan., to-wit, lot No. nine,
(9,) in block No. one hundred and three, (103,)
in the city of Fort Scott. The plaintiff fur-
ther states that the defendant claims an in- |
terest in said real estate adverse to the plain-
tiff's, the exact nature of which claim of the
defendant is not known to the plaintiff; but
the plaintiff alleges that the claim of defend-
ant, whatever it may be, is subordinate and
inferior to that of the plaintiff. Wherefore,
plaintiff prays that the said pretended inter-
est of defendant in said real estate may be
determined, and the same be declared invalid,
and of no force and effect as against the es-
tate, interest, and ownership of the plaintiff
therein." Havens filed an answer admitting
that Drake was in possession of the property,
but alleged that he was the owner of an un-
divided one-half interest therein as the gran-
tee of John E. Himoe, the sole heir of John
E. Himoe, deceased, who, he alleged, prior
to his death, was a joint owner with one A.
R. Clark of the lot. Upon her application,
Mrs. Hattie Ida Cheney was made a party
defendant, and filed an answer claiming an
undivided three-sixteenths of the lot as the
surviving heir of her mother, Ida M. Ander-
son, who prior to her death had been the wife
of John E. Himoe, Sr. She afterwards in-
termarried with R. C. Anderson. Upon the
trial the court rendered the following judg-
ment: "This day this cause came on for hear-
ing. The plaintiff, C. F. Drake, appeared
by his attorneys, J. D. McCleverty and A. A.
Harris; the defendant J. D. Havens appeared
by E. M. Hulett, his attorney. The defend-
ant Hattie Ida Cheney appeared by her at-
torneys, W. W. Martin and P. J. Coston.
And thereupon the court proceeded to hear
the cause, and, after having heard all the ev-
idence and the argument of counsel, and be-
ing fully advised in the premises, doth find
the issues in favor of the plaintiff, and against
both of the defendants, and doth find that
the plaintiff is entitled to have his title quieted
to the real estate mentioned in the pleadings,
to-wit, lot No. nine, (9,) in block No. one
hundred and three, (103,) in the city of Fort
Scott, Bourbon county, Kan., as against any
claim, title, or interest therein of the defend-
ants, or either of them, and that the defend-
ants, or either of them, are not entitled to
have said real estate partitioned between
them and the plaintiff. Wherefore, it is con-
sidered, ordered, and adjudged that the title
of said real estate herein before mentioned be
quieted in the plaintiff, and that he hold, oc-
cupy, and possess the same free and clear of
any claim, title, or interest of the defendants
therein, or either of them, and that the de-
fendants, or either of them, do not have any
partitions of said real estate against the plain-
tiff. It is further considered, ordered, and
adjudged that the sheriff of this county make
a deed to the said real estate to the plaintiff,
and that the plaintiff recover of the defend-
ants his costs herein expended, for which ex-
ecution may issue. And to each finding of

fact and conclusion of law, and to the judgment, the defendants each excepted." The defendants bring the case here.

E. M. Hulett, P. J Coston, and W. W. Martin, for plaintiffs in error. A. A. Harris and J. D. McClecerty, for defendant in error.

HORTON, C. J., (after stating the facts as above.) This was an action in the court below, instituted by C. F. Drake against J. D. Havens, to quiet title to lot 9, in block 103, in the city of Fort Scott. Subsequently, upon her own application, Hattie Ida Cheney was made a defendant. C. F. Drake alleged in his petition that he was the owner of, and in the possession of, the lot described in his petition. J. D. Havens answered that he was the owner of an undivided one-half of the lot as the grantee of John E. Himoe, the heir of John E. Himoe, Sr., deceased. Hattie Ida Cheney answered that she was the owner of an undivided three-sixteenths of the lot as the heir of her mother, Ida Anderson, formerly the widow of John E. Himoe, Sr., deceased. The court made a general finding in favor of C. F. Drake, and granted the prayer of his petition. The defendants below bring this case to this court.

Drake has been for some years in possession of the lot, and has made lasting and valuable improvements thereon, of the value of $6,000. The answers admitted Drake's possession. Prior to 1864, John E. Himoe, Sr., and A. P. Clark, were the joint owners of the lot. Some time in 1864, Himoe died, leaving his widow, Ida Himoe, and John Himoe, an infant, his only heirs. On July 28, 1866, A. P. Clark commenced proceedings against Ida Himoe and John Himoe, infant, for partition of the lot in controversy, and also lot 11, in block 103. On the day that A. P. Clark filed his petition for partition, the clerk of the court issued a notice to the defendants, Ida Himoe and her infant child, John Himoe, setting forth the substance of the petition. This was directed to the sheriff. The sheriff's return of service upon the notice is as follows:

"Received July 28th, 1866, and on the 4th day of August, 1866, I served this notice by delivering to Ida Himoe a copy of the same, duly certified, with all the indorsements thereon, and on John Himoe, infant, by delivering to Ida Himoe, in the presence of the infant, John Himoe, a duly-certified copy of this notice, and also a duly-certified copy to Ida Himoe as natural guardian of the said John Himoe, infant, all in Bourbon county, Kansas.

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October term of the court for 1866, judg- | to each and every person concerned, their ment was rendered for the plaintiff, and partition ordered as prayed for. On the 4th day of October, 1866, the commissioners appointed to divide the property reported it was impracticable to do so, and returned its appraised valuation at $700. On the 11th day of October, 1866, the court rendered judgment decreeing the fee-simple title in lots 9 and 11, to A. P. Clark, he having elected to take the property at its appraised value. The court further ordered that Clark pay to Ida Himoe, and to the guardian of John Himoe, infant, $175 each, as their proportion of the appraised value of the lots. The costs were divided.

If the judgment in the partition action of A. P. Clark divested the defendants of all title to the lot in controversy, it is conceded that the judgment of the district court in this case must be affirmed; but the defendants contest the validity of the proceedings in that case. The errors complained of are as follows: First, the admission in evidence of the record in the case of partition of A. P. Clark v. Ida Himoe and John Himoe; and, second, the admission of the deposition of Clark, in which he testified he paid Ida Himoe and R. C. Anderson, guardian of John Himoe, infant, their proportion of the appraised value of the lots described in the partition action. The contention is that, under the provisions of chapter 162, Comp. Laws, 1862, Clark should have presented his petition to the district court of Bourbon county in term-time, and that the service of notice was insufficient, because the defendants had only 38 days in which to plead, and therefore that the court had no jurisdiction of the subject-matter or the parties; and, further, it is contended that there was no service upon John Himoe, infant, and for that reason all the proceedings are void.

The portion of the statute relating to the filing of the petition and the giving of notice was as follows: "Sec. 2. That any person or persons entitled to partition of his, her, or their estate or estates, under this act, may file his, her, or their petition in the district court, praying that partition of such estate or estates may be made, which petition shall set forth the nature of the title of the defendant, the tract or tracts of land, the tenements or hereditaments, of which partition is demanded, and, also the name or names, and place of residence, of each joint tenant, coparcener, or tenant in common, with such demandant, if they shall be known to such demandant; and if, on examination, it shall appear to the court that the demandant hath a legal right to any part of such estate or estates, the court shall proceed, in the term in which such petition may be filed, to order a partition to be made in the manner prescribed by the provisions of this act.

Sec. 3.

That the demandant in any petition shall give notice in some newspaper in general circulation in each county where the land lies, or shall give personal notice in writing,

agent or attorney, at least forty days previously to the term of the court next after the filing of his petition, setting forth the pendency and demand thereof. Sec. 4. That whenever it shall appear to the court that due notice hath been given as aforesaid, and no sufficient reason shall appear why partition should not be made, the court shall proceed to order the partition in favor of such demandant or all parties in interest, and shall issue their writ directed to the sheriff of their county, or, in case the estate or estates of which partition is sought shall be situate in more than one county, then to the sheriff of either of the counties in which the estates may be, commanding him, that, by the oaths of three judicious and disinterested freeholders of the vicinity, to be named by said court, he cause to be set off and divided to the demandant, or each party in interest, in said petition, such part and proportion of such estate or estates as the court shall have ordered." In view of the provisions of these sections, the partition proceedings are not void because of the failure to file the petition during term-time, or for insufficient notice. While the statute provides that "the court shall proceed, in the term in which such petition may be filed, to order partition," and also refers to the filing of the petition in the court, yet, as section 3 requires that notice shall be given “at least forty days previously to the term of the court next after the filing of the petition," it is clear that if a petition is filed in vacation, and notice is given thereof, as required by section 3, the court has jurisdiction both of the subject-matter and of the parties to the action. The petition was filed July 28, 1866,-more than 40 days before the convening of the October term of the court for 1866, at which the decree was entered. Service was made on the 4th day of August, 1866. The court had the petition before it at the time of the judgment; and, even if the defendants should have been given 40 days to answer, instead of 38, this, at most, is a voidable defect. It is not a defect that makes the judgment void. Judgment was not rendered until more than 40 days after service upon the defendants. Dutton v. Hobson, 7 Kan. 196; Armstrong v. Grant, Id. 285; Simcock v. Bank, 14 Kan. 529.

The

As to the service made upon John Himoe, infant, it appears that at the date of such service, he was only two years of age. boy's father was dead, and his mother was his natural custodian and guardian. Two duly-certified copies were delivered to the mother by the sheriff, in the presence of the infant. One copy was for John Himoe, the infant, and the other copy was for Ida Himoe as his natural guardian. Section 3 of chapter 162 provided that personal notice, in writing, should be given "to each and every person concerned, their agent or attorney." Section 14, Id., further provided "that the guardian or guardians of any minor heir or

heirs shall be empowered, on behalf of their ward or wards, to do and perform any act, matter, or thing respecting the partition of any estate or estates under this act, and to elect, on behalf of such ward or wards, to take said estate or estates, when the same cannot be divided without injury, as mentioned in the eighth section of this act, and make payments therefor on behalf of said ward or wards; and such acts and things done by said guardian or guardians shall be as valid in law as if the same had been done by such ward or wards after his, her, or their arrival at full age." The service upon John Himoe, infant, as stated, was followed up by the appointment in the court of a guardian ad litem for him. The appearance docket also shows that the duly appointed and qualified guardian of John Himoe, on February 15, 1868, paid to the clerk of the district court $4.05 as Himoe's share of the costs in the case. Clearly nothing more could have been done than was done to bring to John Himoe's notice the commencement of the action, or to more fully protect his rights and interests in the property. Rights of majority were conferred on John Himoe January 19, 1882. This action was commenced August 20, 1886; and Havens, who claims as grantee of John Himoe, filed his answer September 27, 1886. More than two years had expired after John Himoe had the rights of majority conferred upon him before the alleged title of Havens was presented in the court. Under these circumstances, we must hold that the judgment in the partition action, as to John Himoe, cannot now be attacked as void for want of service. Robb v. Lessee of Irwin, 15 Ohio, 699; Delashmutt v. Parrent, 39 Kan. 548, 18 Pac. Rep. 712.

It is immaterial whether the deposition of Clark was competent as testimony or not. The deposition tended to prove that Ida Himoe and the guardian of John Himoe were paid their portion of the appraised value of the lots in accordance with the judgment. The judgment, as rendered, gave to A. P. Clark the fee-simple title of lot 9. If, in this form, it was irregular, it certainly was not void. The court had jurisdiction of the subject-matter and of the parties; and, as that judgment is not here for review or reversal, for all the purposes of this case it must be considered valid and binding. After the judgment of the 11th of October, 1866, Ida Himoe-afterwards Ida Anderson-had no title to the lot in controversy. As Mrs. Cheney, the daughter of Mrs. Himoe, was not born until 1869, of course she cannot claim any title or interest in the property.

The point made that no title passed to Clark, because the sheriff had not made him a deed, is not tenable. He certainly obtained the equitable title to the property by the judgment, if nothing more. Head v. Daniels, 38 Kan. 1, 15 Pac. Rep. 911.

The court committed no error in admitting as testimony the record in the case of Clark v. Ida Himoe et al., and in rendering judg

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CHENEY et al. v. RICHARDS. (Supreme Court of Kansas. April 4, 1890.) Error from district court, Bourbon county; C. O. FRENCH, Judge.

P. J. Coston and W. W. Martin, for plaintiffs in error. A. A. Harris, for defendant in error.

PER CURIAM. Under the authority of the case of Havens v. Drake, ante, 621, (just decided,) the judgment of the district court will be affirmed.

VALENTINE, J., not sitting, nor taking any part in HORTON, C. J., and JOHNSTON, J., concurring.

the decision.

(43 Kan. 451)

PHINNEY V. BRONSON et al. (Supreme Court of Kansas. April 4, 1890.) MASTER AND SERVANT-ACTION FOR WAGES-EVIDENCE.

1. In a controversy as to whether work done by a civil engineer towards the construction of a railroad was performed for, and to be paid by, the railroad company, or by certain individuals, the pay-rolls made out by such engineer in the name of the company, showing the payment of certain sums of money to himself and others engaged in the work, are competent evidence, as tending to prove that the company, and not the individuals, was his debtor.

2. Where a person claims to have been employed for a stated time at a stipulated salary per mouth, and sues to recover for services rendered under such employment, and the defendant denies any liability, he may offer testimony tending to show that the plaintiff was at the same time engaged in the services of another.

3. A general charge given by the court to the jury having fairly presented the propositions involved, the failure of the court to instruct as to a phase of the case upon which an instruction might have been given, but which was not requested, is not a ground for reversal.

4. The evidence in the case held to be sufficient to sustain the verdict of the jury. (Syllabus by the Court.)

Error from district court, Bourbon county; C. O. FRENCH, Judge.

Hill & Chenault, for plaintiff in error. Ware, Biddle & Cory and W. C. Webb, for defendant in error.

JOHNSTON, J. G. B. Phinney brought this action against Ira D. Bronson and A. M. Ayers to recover $566.97, alleged to be due him for work and labor as a civil engineer, and for money paid out and expended by him for the benefit of defendants. Verdict and judgment were given in favor of the defendants, and the plaintiff contends here that the court erred in the admission of testimony and in charging the jury. Phinney was a civil engineer, and was elected chief engineer of the Kansas & Nebraska Central Railroad Company, and the work done by him was upon a proposed railroad running from Fort Scott to Topeka. That some work was performed by Phinney is conceded, but it was claimed by the defendants that he performed

the services for the railroad company, and was to look only to the railroad company for his compensation. The plaintiff states in his argument that "the real issue, as made below, was whether Phinney had an individual contract with Bronson and Ayers, and was to receive his pay from them, or whether he was too look to the Kansas & Nebraska Central Railroad Company for his pay." This issue was submitted to the jury upon the evi. dence, and was determined in favor of the defendants, and the evidence is quite sufficient to sustain the verdict.

A review of the testimony is unnecessary, and would be unprofitable. Error is assigned on the admission in evidence of certain payrolls made out in the name of the railroad company, showing the payment of certain sums of money to Phinney and other workmen. They were made out and signed by Phinney, and indorsed thereon is written: “We, the undersigned, hereby acknowledge that we have this day received of Ira Bronson the several amounts set opposite our names hereto respectively, to be applied towards the amount due us from the Kansas & Nebraska Central Railroad Company." The plaintiff, having made out these pay-rolls, in which it was made to appear that the claim existed against the railroad company, and having acknowledged that the money received from Bronson was to be applied on the amount due him from the railroad company, they were certainly competent as tending to show that his contract was with the railroad company, and that that company was his debtor, instead of the defendants.

An objection is also made to the admission in evidence of certain city warrants and bills for services rendered by Phinney to the city of Fort Scott. The plaintiff claimed that he was working for the defendants at a stipulated sum per month, and, so far as this testimony tended to show that he was in the service of another at the same time for which he claimed compensation from the defendants, it was material and competent. The defendants had filed a general denial, and any proof showing no liability, or which would reduce the amount claimed by the plaintiff, was properly admitted. The principal issue in the case, of course, was whether the company was liable or the defendants; and this having been determined in favor of the defendants, renders this testimony immaterial.

It is also claimed that the court erred in admitting evidence tending to show that there were two railroad companies in existence at that time planning to build railroads between Fort Scott and Topeka. Such a question was asked and allowed, but no answer was given, and hence there is no ground for complaint.

In the charge of the court the propositions involved in the controversy were very clearly placed before the jury. They were advised that, if the plaintiff contracted origiv.23P.no.1G-40

nally with the railroad company to work for it, and it was understood that the railroad company was to be responsible for the compensation, then the defendants were not liaable for the work done under the contract. And in that connection the court further said: "If you should find that Phinney was elected chief engineer of the railroad company to perform the services he did perform, irrespective of any contract with Bronson, but simply looking to the railroad company for his pay, then he would not be entitled to recover in this action unless Bronson and Ayers, defendants, had obligated themselves in some way to him, in writing, for the services which he did perform." This instruction simply advised the jury that the liability of the defendants arose, if at all, either upon the original promise, or by a contract in writing to pay the debt of the company; and it states a correct principle of law. It is true we find no testimony in the record tending to show any written assumption by the defendants of the company's indebtedness, and hence what was said relating to their written obligation may be regarded as immaterial.

The main issue of the case in regard to whether there was an original promise by the defendants has been determined by the finding of the jury, and therefore the charge of the court upon the other branch of the case may be laid out of consideration. It is contended that some phases of the law respecting what constitutes an original promise was not presented to the jury in the charge of the court. A sufficient answer to this claim is that no other or additional instructions were requested by the plaintiff, and failing to make such request, he has no cause of complaint. Douglass v. Geiler, 32 Kan. 499, 4 Pac. Rep. 1039; State v. Pfefferle, 36 Kan. 90, 12 Pac. Rep. 406.

Without stopping to inquire whether other instructions would have been applicable or proper, we think that under the evidence the case was fairly submitted to the jury by the general charge. The other matters referred to by counsel are not deemned of sufficient importance to require consideration. Judg. ment of the district court will be affirmed. All the justices concurring.

(43 Kan. 464)

KNOTE v. CALDWELL et al. (Supreme Court of Kansas. April 4, 1890.) TAX-DEEDS-DESCRIPTION-ADDITION TO TOWN.

Where a tax-deed describes the property conveyed as "Lot No. seventy-seven, (77,) Main street, in E. L. Lower's addition to the town of El Dorado, situated in the county of Butler and state of Kansas," and the evidence shows that Lower filed in the office of the register of deeds three different maps or plats of his addition or additions, each including and showing the property as described in the tax-deed, and the first map does not name or number the addition, and the second map names it "E. L. Lower's Second Addition," and the third map is substantially the same as the second map, and the certificate attached to the second map shows that the second map was filed partially to correct and supply an omission in the first map,

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