Where a resident of Kansas between March and September brings into this state cattle which he has purchased elsewhere with money which he has already listed for taxation for that year in the city of his residence, such cattle are not subject to taxation under the provisions of the act (sections 7519-7521, Gen. St. 1901) providing in certain cases for the assessment and taxation of personal property brought into the state after the 1st of March.

(Syllabus by the Court.)

Error from District Court, Sumner County; C. L. Swarts, Judge.

Action by W. M. Ferguson against J. M. Lingenfelter, sheriff of Sumner county, and others. Judgment for plaintiff, and defendants bring error. Affirmed.

W. M. Rees, for plaintiff in error. W. W. Schwinn, for defendants in error.

MASON, J. W. M. Ferguson brought an action against the sheriff of Sumner county to enjoin the enforcement of a tax warrant issued against him by the treasurer of Butler county, and upon an agreed statement of facts was awarded an injunction. The sheriff prosecutes error.

As shown by the stipulation of the parties, these were the substantial facts out of which the controversy grew: During all of the year 1902 Ferguson was a resident of the city of Wellington, in Sumner county. In the spring of that year he duly listed with the city assessor all of his property which was subject to taxation in that county. In the following April he brought into Union township, Butler county, from Oklahoma, 852 head of cattle, which he had purchased in that territory of owners who had there listed them for taxation, and paid the taxes upon them for that year. The laws of Oklahoma require personal property to be listed for taxation on or before the 1st of March. Ferguson brought these cattle into Union township for the purpose of grazing, and they remained there during the grazing season of 1902. He told the township assessor that the cattle had been taxed in Oklahoma for that year, and that the taxes had been paid, and said that he would furnish proof or this; but he did not make any sworn statement in this regard to the assessor, or present to him any copy of records relating to the matter. The assessor, in September, returned the cattle for taxation in Butler

county. In February, 1903, Ferguson appeared before the board of commissioners of that county, and offered proof of the payment of taxes upon the cattle for the preceding year in Oklahoma, and asked the remission of tax charged against him. His request was refused, and the issuance of the tax warrant followed.

Sections 7519-7521 of the General Statutes of 1901 provide that under certain circumstances personal property brought into the state between March 1st and September 1st shall be assessed and taxed here for that year, unless it be shown in a prescribed manner that it has already been listed for taxation elsewhere. Two questions are here presented-whether the cattle referred to were, under the statute, taxable in this state in 1902, in the absence of a sufficient showing of their having been taxed elsewhere, and, if so, whether their owner made such a showing. In the view taken of the matter, it will be necessary to consider only the first of these questions. In Hull v. Johnston, 64 Kan. 170, 67 Pac. 548, it was held that, while this statute was in terms broad enough to require the taxation of all personal property brought into this state between March and September, which had not been taxed elsewhere for that year, it must be interpreted as intended to affect only such property as would otherwise escape its just share of the burden of taxation, and has no application to property brought into a county by a resident thereof after the 1st of March, where such resident had fully listed all of his property under the general laws. It is sought to find reasons for distinguishing that case from this in the facts that there one who did not reside in a city bought the cattle involved outside of the state with money raised by the giving of a mortgage upon personal property which he had already listed for taxation, and brought them to the county of his residence. The differences between these circumstances and those here presented do not affect the principle by which that case was controlled. It was there decided that the purpose of the statute was to provide a means for placing upon the tax roll property which received the protection of the laws of the state, and in fairness should bear a part of the expense of their administration, but which, under the general law, could not be reached, because never found in the state at the usual time for the listing of property for taxation. There is nothing in the record now under consideration to suggest that Ferguson was guilty of any shift or evasion in the matter. On the contrary, it is fairly to be gathered that he properly accounted to the taxing officers for the money with which the cattle were afterwards purchased; that he listed it for taxation, and paid taxes upon it for the year 1902, in Sumner county. Where foreign-owned property is sent into the state for a temporary purpose, and after several

months is removed without having contribut- | ed anything to the public revenue, a manifest wrong is committed. But where it comes in in exchange for other property or money upon which taxes have already been here assessed and paid, an entirely different situation is presented. The statute was not designed to exact a further payment from the resident purchaser in such a case. To do so would not be to correct an existing injustice, but to perpetrate a new one. Under the agreed facts Ferguson has paid to the public his fair share of taxes for 1902, based upon the amount of property he then owned. It happens that he paid it in Sumner county, where he lived, instead of in Butler county, where his cattle were kept, although the law (section 7509, Gen. St. 1901) provides that animals owned by the resident of a city shall be taxed where they are usually kept. This fact was due to the character of his property having been changed from money to live stock after the 1st of March. He was not liable to pay taxes in Butler county on the cattle under the general taxation act, because he did not own them on the 1st of March. And such liability was not imposed upon him by the special act already discuss-. ed, for the reason that the facts are not such as to invoke its operation.

The judgment is affirmed. All the Justices concurring.

(71 Kan. 158)

FOSTER LUMBER CO. v. HARLAN COUNTY BANK.

(Supreme Court of Kansas. March 11, 1905.) EQUITABLE MORTGAGE-STATUTE OF FRAUDSPRIORITIES-HOMESTEAD.

1. If a lender advance money for the purpose of buying a specific tract of land, upon the oral promise of the borrower to secure its repayment by a mortgage upon the property when title thereto is obtained, and, after the conveyance has been procured by the use of the money, the borrower refuse to execute the mortgage, equity will regard that as done which the borrower agreed should be done, and which ought to have been done, and will treat the transaction as creating an equitable mortgage upon the land in favor of the lender.

2. The lien so created is not obnoxious to the statute of frauds because it depends in part upon an oral promise.

3. Such a lien will be given precedence over a mortgage of the land taken by a party who has notice of the rights of the equitable mortgagee.

4. Such a lien is superior to the homestead rights of the borrower.

5. The petition in this case is held to state a cause of action.

(Syllabus by the Court.)

Error from District Court, Phillips County; A. C. T. Geiger, Judge.

Action by the Harlan County Bank against the Foster Lumber Company. Judgment for plaintiff, and defendant brings error. Affirmed.

L. H. Wilder, for plaintiff in error. John Everson, for defendant in error.

80 P.-4

BURCH, J. Arthur A. Underwood held a contract of purchase from the Lincoln Land Company of certain real estate, upon which there remained a balance due. He was also under obligations to various persons on account of the erection of a house and other improvements upon the property. For the purpose of paying the amount due on the land and procuring a deed of it, and for the purpose of discharging his obligations for improvements on the land, he borrowed $900 of the Harlan County National Bank. When the loan was made, he left his land contract with the bank, and authorized it to procure a deed of the property from the land company. At the same time he agreed orally with the bank that it should hold the contract, and then the deed, as security for the loan, until a formal written mortgage could be prepared, which he agreed to give. The bank paid the land company, obtained the deed, and paid out the remaining proceeds of the loan for the stipulated purposes. Underwood then refused to execute a mortgage to the bank, and mortgaged the property to the Foster Lumber Company. The lumber company, however, at the time it received its mortgage, had full knowledge of all the rights, claims, interests, and equities of the bank, and already had received $300 of the loan direct from the bank, on account of its claim for improvements. The land was the homestead of Underwood and his wife. In an action by the bank for the recovery of a balance due upon its loan, it claimed and was awarded a lien on the land superior to that of the lumber company under its mortgage. The lumber company seeks a reversal of that judgment by this proceeding in error.

It is claimed the transaction disclosed amounted to nothing more than a deposit of title deeds as security for a loan, and hence that no lien resulted. The bank, however, pleaded and proved, and the court found, that the deposit of the contract of sale was accompanied by an express oral agreement to give a mortgage. Such an agreement furnished a sufficient basis upon which, after performance by the bank, to found a lien, and is sufficient to take the case entirely out of the category of equitable mortgages aris ing from a deposit of title deeds merely.

It is further claimed that the bank, in its petition, relied upon the deposit of the land contract and the taking the deed from the land company as its security, and not upon the agreement to give a mortgage. The bank, however, simply pleaded the entire transaction as it actually occurred. The fact that the transaction may have included an attempt to create a lien by the deposit of title instruments does not alter or destroy the effect of the promise to give a mortgage. The bank's theory, in part, may have been. that the deposit of the contract, and the procuring of the deed to Underwood's land did give it a lien. It had the right to present

the question to the courts. But it did not thereby abandon the right to claim a lien by virtue of the express contract to give a mortgage, which it fully and plainly pleaded. The two claims are not inconsistent. Both have been urged. That of an equitable mortgage is sufficient to sustain the judgment of the district court, and no occasion arises to discuss the policy of the law of this state concerning the other. Having obtained the bank's money upon an agreement to give it a mortgage, Underwood should have executed and delivered the promised security. Equity treats that as done which a party, under his agreement, ought to have done. Elston v. Chamberlain, 41 Kan. 354, 361, 21 Pac. 259. And the court had no alternative but to apply the maxim in this case. 3 Pomeroy Eq. Jur. (2d Ed.) § 1237; 1 Jones on Mortgages (6th Ed.) § 163; 11 A. & E. Encycl. of L. (2d Ed) 125.

The fact that the agreement to give a mortgage was oral does not affect the validity of the bank's lien. It had fully performed its part of the agreement. "The doctrine of equitable mortgages is not limited to written instruments intended as mortgages, but which by reason of formal defects cannot have such operation without the aid of the court, but also to a very great variety of transactions to which equity attaches that character. It is not necessary that such transactions or agreements as to lands should be in writing, in order to take them out of the operation of the statute of frauds, for two reasons: First, because they are completely executed by at least one of the parties, and are no longer executory; and, secondly, because the statute, by its own terms, does not affect the power which courts of equity have always exercised to compel specific performance of such agreements." Sprague v. Cochran, 144 N. Y. 104, 113, 38 N. E. 1000, 1002. "That statute was enacted to provide as far as possible against the perpetration of frauds, and courts of equity never allow its provisions to be perverted and made instrumental in the accomplishment of fraud. They decree the specific execution of agreements where there has been a performance on the one side, because the refusal to perform on the other side is a fraud; and they will not permit the statute designed to prevent fraud to be made an engine of fraud. Md. Sav. Inst. v. Schroeder, 8 Gill & J. 93 [29 Am. Dec. 528]; Hamilton v. Jones, 3 Gill & J. 127; Artz and wife v. Grove, 21 Md. 456; Moale v. Buchanan, 11 Gill & J. 314." Cole v. Cole and wife, 41 Md. 301. See, also, Dean v. Anderson, 34 N. J. Eq. 496; Baker v. Baker, 2 S. D. 261, 49 N. W. 1064, 39 Am. St. Rep. 776; King v. Williams, 66 Ark. 333, 50 S. W. 695; 1 Jones on Mortgages (6th Ed.) § 164.

Besides this, it properly may be said that the lien actually decreed results from the operation of the law upon the entire conduct of the parties, and hence is, in terms, ex

cluded from the inhibition of the statute. "It is claimed by counsel for plaintiff in error, substantially, that an equitable lien on real estate, where it has any real existence, is an interest in land, and cannot be created merely by parol; that the statute of frauds (Gen. St. 1868, p. 505, § 5) prohibits such a thing. All of this we agree to, but still the statute of frauds does not attempt to prohibit the creation of equitable liens by operation of law, nor does any other statute. Stevens v. Chadwick, 10 Kan. 406, 15 Am. Rep. 340. Such a lien should, of course, be in accordance with the contract and understanding of the parties affected by it, but still it may sometimes result, by operation of law, from the transactions of the parties, almost wholly independent of the contract that may be made between them. It results, however, from the whole transaction, including all the contracts, agreements, and understandings of the parties, parol.or otherwise." Curtis v. Buckley, 14 Kan. 449, 456. In the case of Sprague v. Cochran, supra, it is said: "There can be no doubt, upon the authorities, that where one party advances money to another upon the faith of a verbal agreement by the latter to secure its payment by a mortgage upon certain lands, but which is never executed, or which, if executed, is so defective or informal as to fail in effectuating the purpose of its execution, equity will impress upon the land intended to be mortgaged a lien in favor of the creditor who advanced the money, for the security and satisfaction of his debt. This lien attaches upon the payment of the money, and, unless there is a waiver of it, express or implied, remains and may be enforced so long as the debt itself may be enforced. The whole doctrine of equitable mortgages is founded upon the cardinal maxim of equity which regards that as done which has been agreed to be done and ought to have been done. order to apply this maxim according to its true meaning, the court will treat the subjectmatter, as to collateral consequences and incidents, in the same manner as if the final acts contemplated by the parties had been executed exactly as they ought to have been." This being true, the situation of the parties at the time the lumber company took its mortgage was precisely the same as if the contemplated mortgage to the bank had actually been given, and notice to the lumber company of the bank's rights was equivalent to notice of a prior unrecorded mortgage. Under the recording acts, such instruments are valid between the parties and all persons having actual notice of them. N. W. Forwarding Co. v. Mahaffey, Slutz & Co., 36 Kan. 152, 12 Pac. 705. Hence the lien of the lumber company was necessarily inferior to that of the bank. Jones v. Lapham, 15 Kan. 540; 11 A. & E. Encycl. of L. (2d Ed.) 141.

*

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In

The position taken by the lumber company

in the court below and in this court is that the bank was not entitled to any lien whatever, in any sum. The attacks made upon the findings of fact and conclusions of law were directed to the complete annihilation of the equitable mortgage sought to be foreclosed. No effort has been made to exclude any of the items utilized in computing the amount of the lien, and the mortgage has been left to stand or fall as an entirety. If, therefore, any part of it be valid as against the claimed homestead character of the premises, the judgment cannot be disturbed. There can be no doubt but that, to the extent of the unpaid purchase price of the land, the bank's equitable mortgage was a purchase-money mortgage, and therefore valid without the consent of Mrs. Underwood, and notwithstanding the property was occupied as a homestead. Const. art. 15, § 9; Pratt v. Topeka Bank, 12 Kan. 570; Andrews v. Alcorn, 13 Kan. 351; Ayres v. Probasco, 14 Kan. 177; Nichols v. Overacker, 16 Kan. 54.

All other assignments of error have been examined and found to be unsubstantial. The judgment of the district court is affirmed. All the Justices concurring.

(71 Kan. 200)

STATE v. MILLER. (Supreme Court of Kansas. March 11, 1905.) STATUTORY RAPE-EVIDENCE-LEADING QUES

TIONS AGE OF PROSECUTRIX.

1. In a prosecution for statutory rape, where the prosecutrix has testified to intercourse with defendant, it was competent for her to testify that conception followed, that in due time a child was born, and that defendant was the father of the child.

[Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Rape, § 65.

2. How far leading questions are essential to the ends of justice must be left largely to the sound discretion of the trial court, and, unless there has been a clear abuse of such discretion, a reviewing court may not interfere.

3. It was competent for the prosecuting witness to testify as to her age, although her parents were present and gave testimony with respect to her age.

4. An entry in a family record of the age of a child, made by or at the instance of her father, is not admissible in evidence where he is alive and is a witness in the case.

(Syllabus by the Court.)

Appeal from District Court, Barton County; J. W. Brinckerhoff, Judge.

Phillip Miller was convicted of crime, and appeals. Reversed.

Osmond & Cole and D. A. Banta, for appellant. C. C. Coleman, Atty. Gen., and Jay F. Close, Asst. Atty. Gen. (James W. Clarke and Russell & Russell, of counsel), for the State.

JOHNSTON, C. J. Phillip Miller was convicted of the offense of rape committed upon Mollie Neidens, a girl under the age of 18 years. In his appeal he complains that Mol

lie was permitted to testify as to the birth and parentage of the child, the fruit of the illicit relation. Having testified to the intercourse, it was competent for her to state that conception followed, and that the defendant was the father of the child so begotten. State v. Walke (Kan.) 76 Pac. 408.

There is a complaint that leading questions were allowed in the examination of the prosecuting witness. This objection, if well founded, is hardly available, as the defendant has not pointed out to us the objectionable questions. The youth of the prosecutrix, her reluctance to testify, as well as her unfamiliarity with the English language, warranted considerable latitude in the allowance of leading questions. How far leading questions are essential to the ends of justice must be left largely to the sound discretion of the trial court, and, unless there has been a clear abuse of discretion, an appellate court may not interfere. In this instance we cannot say that there was an abuse of discretion.

Complaint is made that the prosecuting witness was permitted to testify as to her own age, when her parents were both present in court and gave testimony with respect to her age. Although the testimony of the father and mother with respect to the age of a person may be stronger, and entitled to greater weight, it is nevertheless well settled that one may testify as to his own age, and such force will be given to his testimony as the court or jury trying the case may think it is entitled to receive. State v. McClain, 49 Kan. 730, 31 Pac. 790; Hill v. Eldridge, 126 Mass. 234; West Virginia v. Cain, 9 W. Va. 559; Morrell v. Morgan, 65 Cal. 575, 4 Pac. 580; Central Railroad v. Coggin, 73 Ga. 689; State v. Best, 108 N. C. 747, 12 S. E. 907; 20 Cent. Dig. § 1202.

To show the age of the prosecutrix, there was received in evidence a translation of a copy of a parish record in Russia. This purported to give the ages of the members of the Neidens family and other matters of family history. The extract from the parish record was made by the pastor just before the family left Russia. It was made at the instance of John Neidens, the father of Mollie, and in his presence. The body of the extract was written in German, and the attached certificate made by the pastor was in Latin. So much of it as related to Mollie's age was received in evidence, and translated to the jury. The document was not certified, nor authenticated in such a way as to make it receivable as an official record. It was not offered or admitted, however, as a copy of the parish record, but was received as a family record. Was it admissible as a matter of pedigree or family history? It is argued that it is not the declaration of the Russian clergyman who made the document, but that, as it was made at the request and in the presence of Mr. Neidens, it was in fact his entry and his declaration. If it be granted

that it was his own act, still the entry and declaration was only secondary evidence, and is governed by the rules for the admission of such evidence. This class of evidence is admitted under certain restrictions because of necessity and the improbability of the evidence being false. On the ground of necessity it is received because the facts as to pedigree and relationship cannot be shown by living witnesses after the lapse of many years, and, if family reputation were not admissible, in many cases the real facts could not be established. The improbability of falsehood is that at the time the entries or statements are made those who made them are acquainted with the facts. They have no reason to distort them, and, if they did, their falsity could easily be detected and corrected at that time. In the admission of such entries or declarations there are limitations as to those who may make them, and also as to the character of the declarations. Judge Elliott, in his work on Evidence, classified the limitations as to the declarant as follows: "(1) The declarant must be dead; (2) the declarant must be a legal relative; and (3) there must be no desire actuating the declarant to make a false statement." And he makes the following classification as to the declaration: "(1) The declaration must be relevant to a matter of pedigree; (2) the information in the declaration must come from qualified persons; and (3) the declarations must be ante litem motam. But the declarations are not limited to any particular form." 1 Elliott on Evidence, §§ 364, 369. Treating Mr. Neidens as the declarantthe one who made the entry-his declarations are not available, as he was alive, and in court, and actually gave testimony in regard to his daughter's age. Entries in family Bibles and registers may be received to prove the age of children, but they are only secondary evidence, and are necessarily excluded when better evidence may be produced. In Robinson v. Blakely, 4 Rich. Law, 586, 55 Am. Dec. 703, it was held that a father's declarations or his entries of the birth of his children in a family register were not admissible in evidence where he is alive, and competent to testify. In Young v. Shulenberg, 165 N. Y. 385, 59 N. E. 385, 80 Am. St. Rep. 730, it was said that: "Pedigree is the history of family descent, which is transmitted from one generation to another by both oral and written declarations, and unless proved by hearsay evidence it cannot, in most instances, be proved at all. Hence declarations of deceased members of a family, made ante litem motam, are received to prove family relationship, including marriages, births, and deaths, and the facts necessarily resulting from those events. Before the declarations can be received, how

*

ever, as evidence of pedigree, it must appear that the person making them was a member of the family, and that he is dead, incompetent, or beyond the jurisdiction of the court." People v. Mayne, 118 Cal. 517, 50 Pac. 654, 62 Am. St. Rep. 256, was a conviction for rape upon a child under the age of 14 years. In support of testimony as to her age there was offered in evidence an entry in a family Bible, which was made by the mother, who was present at the trial, and gave testimony as to her daughter's age. It was held that: "An entry in a family Bible is but a declaration made out of court, and not under the sanction of an oath. It is hearsay evidence, and is not admissible where the person making it is alive, and capable of being examined as a witness in the case." There was a further holding that "a mother who has testified to the date of the birth of her child cannot be supported or corroborated by an entry of such date made by her in the family Bible." Greenleaf v. Railroad Co., 30 Iowa, 301, was an action to recover damages for personal injuries, and, as the age of the injured person was an element in determining the amount of damages, the plaintiff was permitted to show the date of birth from an entry in the family Bible. This ruling was held to be error upon the ground that it had not been shown that the person who made the entry was dead. Authorities of the same purport are Smith v. Brown, 8 Kan. 609; Shorten v. Judd, 56 Kan. 43, 42 Pac. 337, 54 Am. St. Rep. 587; State v. Snover, 63 N. J. Law, 382, 43 Atl. 1059; Campbell v. Wilson, 23 Tex. 253, 76 Am. Dec. 67; Smith v. Geer, 10 Tex. Civ. App. 252, 30 S. W. 1108; People v. Sheppard, 44 Hun, 565; Leggett v. Boyd, 3 Wend. 376; Dupoyster v. Gagani, 84 Ky. 403, 1 S. W. 652; 22 A. & E. Ency, of L. (2d Ed.) 644; 1 Greenleaf on Evidence, § 104; 1 Wharton on Evidence, § 208; Taylor on Evidence, § 641. The age of the prosecutrix was a very important feature of the prosecution. Although the greater part of the testimony appears to support the claim of the state as to her age, there was testimony tending to show that she was more than 18 years of age when the offense was committed, and also testimony which tended to contradict that given by herself as to her age. How much weight may have been given to the copy of the parish record cannot now be told. Being a part of a formal church record, made by the pastor of the church, more weight may have been given to it by the jury than to the testimony of living witnesses. At any rate, we are unable to say that it was without material effect or without prejudice.

The judgment must therefore be reversed, and the cause remanded for a new trial. All the Justices concurring.