that a court, where the government is not a party to the proceeding, where the party in whose interests a relinquishment | should operate is not instituting the proceedings, acquires jurisdiction to compel a performance of an act that in no sense could be made to operate to the benefit of the party seeking a decree?

Let us reason a little concerning this matter. This is a special statute, conferring a special privilege, which privilege accrues providing the party initiates a contest, pays the fees necessary to the prosecution of the contest, and successfully prosecutes the contest,-a privilege to enter upon the public domain, which, by reason of the successful contest, has again become public land and subject to entry; a right which is clearly a personal right; a right which the department by its decisions has determined cannot be transferred; a right which cannot be relinquished in the interests of any third | party. In other words, it is a prosecution initiated by an individual, prosecuted by the consent of the government, for which the government agrees that the party successfully contesting shall acquire a certain privilege. It goes no further. It has never sanctioned, in any decision that we have been able to find, the right of an individual to relinquish a claim which had accrued to him under the laws of the United States for the benefit of any individual. On the contrary, it has continuously held that by such a relinquishment the United States acquires the right to classify the land relinquished as a part of the public domain, and open it to any and all bona fide claimants.

The complaint in this case alleges that this was an agreement between the plaintiff and the defendant, whereby the defendant, upon certain conditions being performed by the plaintiff, was to initiate and prosecute a contest; and that when that contest was successfully prosecuted, and she had acquired the right to enter upon the land under the statute, then she would simply waive that right or relinquish the same to the government of the United States, and permit the plaintiff to enter upon and acquire the title to the same. It is but an indirect way of saying that she could, by that agreement, relinquish her right of entry to plaintiff himself; and certainly it appears from the record in this case that the court has gone so far by its decree in conformity with the prayer of the complaint, and adjudicated that the defendant must execute the relinquishment, and deliver the same to the plaintiff, who, when it may suit his convenience, will file the same in the local land-office, and thereupon initiate a homestead right by filing, in his own name or another person's, upon the land in question. It requires a remarkable stretch of the imagination, and a most extraordinary liberality of the con. struction of the statute in question, and a wide departure from the universally accepted ruling of the department, to admit that such a contract and such a decree could be enforced and upheld.

Counsel for defendant in error insisted that all that was required of the plaintiff

in error was that, having successfully con. tested the homestead entry of Bernard Lafler, she should do nothing. But she did do something. She went on and made an entry. True, it was in violation of her agreement, yet it was an entry made by virtue of a statute conferring upon her the personal privilege of so doing,-a privilege that she could not transfer; a privilege that she could not sell; a privilege that she could not agree to sell; and, after having so entered the land, the court by its decree in this case says, "You must make that relinquishment; you must deliver it to the plaintiff; you must keep off the land, and surrender what improvements, or practically surrender what improvements and what rights, have accrued to you by virtue of the land laws of the United States." We are satisfied that the court had no jurisdiction to enter the decree, and that the complaint does not state facts sufficient to constitute a cause of action. It is true there is no express prohibition of alienation of this preference right or privilege; yet we are satisfied that the court should refuse to enforce such a contract, not from any regard to the defendant in this case, but from motives of public policy; and, whether the contract be absolutely void or not, it is so clearly against the will and policy of the government that a court of equity ought not to attempt to enforce it. The judgment and decree of the court below must be reversed, and the cause remanded, with directions to dismiss the complaint and discharge the defendant.

BRIGHAM et al. v. JONES et al. (Supreme Court of Kansas. March 5, 1892.) ASSIGNMENT FOR BENEFIT OF CREDITORS-VALIDITY-RECEIVERS.

An instrument in writing executed by insolvent debtors, whereby they place all their property, consisting of a stock of general merchandise, in the exclusive possession of a third person, whom they style a trustee, and by the terms of such instrument give detailed directions as to how the business shall be conducted in the future, and provide for the payment of certain creditors pro rata, and that the remainder shall be returned to themselves, heirs, or assigns, is intended to and has the effect to leave the absolute control of their business in their own hands, and is absolutely void. An application on behalf of a judgment creditor to have the property of the insolvent debtors placed in the hands of a receiver ought to have been granted.

(Syllabus by Simpson, C.) Commissioners'

decision. Error from district court, Lyon county; CHARLES B. GRAVES, Judge.

J. W. Brigham & Co. recovered judgment against Jones & Everetts, and garnished D. W. Eastman to recover certain property belonging to defendants. The garnishee claimed the property as trustee under a written instrument. From a judgment discharging the garnishee, the plaintiffs bring error. Reversed.

J. G. Hutchinson, for plaintiffs in error. Cunningham & McCarty, for defendants in error.

SIMPSON, C. The plaintiffs in error, Brigham & Co., on the 3d day of May,

1888, at a term of the district court for Lyou county, recovered judgment against Jones & Everetts for $589.84 and costs, the full amount of which, and interest thereon, except $10, made on execution, remains unpaid. On the 23d day of October, 1888, the plaintiffs in error had an execution duly issued on said judgment, which was returned unsatisfied, and after its return an affidavit was filed, and an order of garnishment issued by the judge of said district court, ordering D. W. Eastman to appear before said judge, and make a full and complete disclosure of all property in his possession or under his control belonging to said Jones & Everetts, or any sum or sums that he was owing them, and in obedience to that order Eastman appeared before the judge sitting at chambers, and answered that he had in his possession $1,200 worth of merchandise, which he claims the right of possession of by reason of the following instrument, which was duly filed in the office of the register of deeds of Lyon county. This instrument is as follows: "Whereas, Jones & Everetts, a firm composed of G. P. Jones and E. W. Everetts, are indebted to the following named, in the following sums, to-wit: To the Citizens' Bank of Emporia, on seven different notes, in the total sum of eighteen hundred and ninety-seven and 44-100 dollars; to Thomas & Jones an account of about thirty dollars; to Robert Jeff an account of about thirty dollars; to Jones & Edwards one note of four hundred dollars; to G. W. Newman one note and account, t in the total sum of two hundred and fiftysix and 32-100 dollars. And whereas, much of the above indebtedness is now due, and said firm is unable to pay the same: Now, therefore, to secure the payment thereof, we, the said G. P. Jones and E. W. Everetts, composing the said firm of Jones & Everetts, do hereby assign, transfer, set over, and mortgage to D. W. Eastman, as trustee for and on behalf of the aforesaid creditors, all our stock of goods, wares, and merchandise of whatever nature and kind, and kept for sale in a certain twostory frame building belonging to said G. P. Jones, and situated in the town of Olpe, Lyon county, Kan., said goods consisting of groceries, tin-ware, queen'sware, boots, shoes, hats, caps, clothing, fancy goods, etc.; also all counters, showcases, shelving, lamps, stoves, and all other fixtures therein contained; also all notes and book-accounts belonging to said firm. And we hereby authorize and direct said trustee to take immediate and exclusive possession of said goods, fixtures, accounts, and notes, and to sell the same in regular course of business, or retail, or by public auction, or in bulk, at such price or prices as he shall deem best, in order to realize most out of said goods, -all to be sold for cash,-and to collect said accounts and notes, by suit if neces sary, and from the money realized to pay from time to time the sums herein before mentioned pro rata, until the same have been fully paid, together with all interest thereon; and, if anything remains, said trustee is to return the same to us, or our heirs or assigns. Said trustee is author

upon

ized to use such portion of the proceeds of the sale of said goods as shall be neces sary, not exceeding 50 per cent. thereof, in buying staple articles of merchandise that may be required to keep the said stock in merchantable condition, to enable him to sell out to the best advantage; he to keep a strict account of all receipts and disbursements, which accounts shall at all reasonable times be open to the inspection of all interested; said trustee to have the use of said store building for the purpose of a store until he shall have closed out such stock of goods. Witness our hands this 25th day of January, 1888. JONES & EVERETTS. G. P. JONES. E. W. EVERETTS." And he makes this further statement about what he has done, as trustee, in pursuance of and by virtue of the supposed authority conferred him by this instrument: From January 28, 1888, to January 7, 1889, he sold $2,765.35 worth of goods, only $1,175.85 of which amount he used in the payment of the debts named in the deed of assignment; and of the balance he used $1,310.02 in buying goods to put into the stock to sell ́ again, and $261.73 in other ways, as follows: To G. P. Jones, one of the assignors, he paid $140, for the rent of the building in which the stock was at the time of the assignment; $19.40 he paid for taxes; $42.63 he permitted Jones & Everetts to draw out on their own account, and for their own purpose; and $59.69 he has on hand. The whole amount of the indebtedness named in the deed of assignment, and which it was given to pay, is $2,615, and the aggregate sales have now amounted to $150.35 more than this amount, and there is $1,200 worth of goods yet remaining, and still only $1,175.85 of these debts have been paid. The plaintiffs in error moved the court to set aside the instrument as void, and appoint a receiver to take charge of this stock of goods and sell them, and apply the proceeds to the pay. ment of their judgment, and this the court refused to do, overruled the motion, dismissed the garnishment, and discharged the garnishee. The plaintiffs in error bring the case here for review.

We shall not attempt to classify the instrument in writing under which Eastman claims the possession of the property. Whether it may be technically an assignment or a chattel mortgage, the object, purpose, and effect of the instrument is to hinder and delay creditors. If the sole purpose had been, as claimed by the defendants in error, to prefer certain creditors, a straightforward chattel mortgage would answer all honest purposes; but we have here an instrument, executed by an insolvent firm, by the terms of which they seek to put all their property in the exclusive possession of a third person, whom they call a trustee, and give him directions in detail as to how the business shall be conducted in the future, provide how certain creditors shall be paid, and that the remainder shall be returned to themselves, their heirs or assigns. In other words, they seek to continue in the control and direction of their business, without regard to the rights of creditors not taken into their scheme. It seems to

We

PER CURIAM. It is so ordered; all the justices concurring.

(48 Kan. 296)

SMITH V. RUDD.

(Supreme Court of Kansas. Dec. 5, 1891.)1 QUITCLAIM DEED-INTEREST CONVEYED - NOTICE.

A party receiving a quitclaim deed for real estate is presumed to take it with notice of all outstanding interests and claims of which he could obtain knowledge by the exercise of a reasonable degree of diligence, in the examination of all of the public records affecting the title to the property included in such deed, and from inquiries. which he might make of persons whom the records show had redeemed the property from tax-sale and had paid subsequent taxes thereon, or were otherwise ostensibly interested in such property.

(Syllabus by Green, C.)

Commissioners' decision. Error from district court, Miami county; J. P. HIND. MAN, Judge.

Ejectment by H. B. Smith against Harriet C. Rudd. Judgment for defendant. Plaintiff brings error. Affirmed.

Sperry Baker, for plaintiff in error. Carroll & Sheldon, for defendant in error.

GREEN, C. This was an action in the nature of ejectment, brought by H. B. Smith in the district court of Miami county against Harriet C. Rudd to recover lots 13 and 14 in block 91, in Ellensville, an addition to Ossawatomie. The case was tried by the court, and the following findings of fact made: (1) That upon and before the 1st day of August, 1870, L. Hendrickson was the owner of the property in controversy, lots thirteen (13) and fourteen, (14,) in block ninety-one, (91,) in Ellensville, an addition to the town of Ossawatomie, in Miami county, Kansas. (2) That upon the 1st day of August, 1870, L. Hendrickson and wife conveyed said property to S. S. Outman, by warranty deed, for the sum of thirty dollars, which sum was a fair price for said property at that time. (3) That the deed from L. Hendrickson and wife to S. S. Outman was filed for record in the office of the register of deeds of Miami county, Kansas, and recorded on the 19th day of March, 1887. Said deed was acknowledged before H. B. Smith, a notary public of Miami county, Kansas, and who is now the plaintiff herein. Said deed was delivered to S. S. Outman by L. Hendrickson on the day it bears date, and L. Hendrickson, the 1 1 Rehearing denied March 5, 1892.

deed had been delivered to said S. S. Out. man, he left it with L. Hendrickson, to be by him filed for record, and soon after left the state, going to East St. Louis, Illinois, [to live;] and the said deed remained in the care of the said L. Hendrickson until he delivered it to A. W. Rudd at the request of said S. S. Outman, some time prior to the year 1879; and the said A. W. Rudd had charge of said deed from the time it was handed to him by said L. Hendrickson until the year 1879, as the agent of the said S. S. Õutman; and the said A. W. Rudd, in the year 1879, handed the deed to S. S. Outman, the grantee, who retained it in his own personal pos session from the year 1879 to the 19th day of March, 1887, without filing it for record. (4) The said S. S. Outman now resides in Linn county, Kansas, where he has resided ever since the year 1879. (5) The name of the said S. S. Outman was never entered upon the tax-rolls as the owner of said lots, or of either of them, prior to the year 1887. But for the year 1870, and each year thereafter until the year 1883, (excepting the years the property escaped taxa-tion,) the name of L. Hendrickson appeared upon the tax-rolls and assessment rolls as the owner of the said lots, and on the tax-roll and assessment roll of the year 1883 (excepting the years 1874 and 1879 and 1881, which years the property escaped taxation) the name of L. Hendrickson appeared upon the tax-rolls and assessment rolls as the owner of the said lots. And the sale-book in the office of the county treasurer shows that upon the 7th day of May, 1872, said lots were sold to Miami county for the delinquent taxes, and were redeemed from said sale by S. S. Outman in September, 1879; and the cash-book in the office of the county treasurer shows that A. W. Rudd paid the taxes on said lots for the years 1875 and 1876 and 1877, and that S. S. Outman paid the taxes on said lots for the years 1878 and 1880. (6) On the 27th day of November, 1883, L. Hendrickson and wife executed and delivered to Mary P. Smith (who was then and still is the wife of the plaintiff herein) a quitclaim deed for said lots, the consideration being ten dollars, paid by said Mary P. Smith. At that time the said lots had been sold to the county for delinquent taxes, and the amount paid to L. Hendrickson for said quitclaim deed, together with the delinquent taxes then on the lots, was a fair price for them at that time. The plaintiff, H. B. Smith, acted as the agent of his wife, Mary P. Smith, in negotiating the purchase of the property from L. Hendrickson. Neither H. B. Smith nor Mary P. Smith knew that L. Hendrickson had previously executed a deed to S. S. Outman for the property, at the time Mary P. Smith received the quitclaim deed from L. Hendrickson and wife, and paid him the ten dollars for the lots. But they believed at the time that she was getting a good title to the property, subject to the taxes. Neither of them examined the treasurer's sale-book, or knew that S. S. Outman had redeemed the property from the sale of May 7. 1872; but the said H. B. Smith, before the said Mary P. Smith re

est in the property,-notice sufficient, we think, to put a person upon inquiry. It was said in the case of Johnson v. Williams, 37 Kan. 182, 14 Pac. Rep. 537: “We would think that in all cases, however, where a purchaser takes a quitclaim deed he must be presumed to take it with notice of all outstanding equities and interests of which he could, by the exercise of any reasonable diligence, obtain notice from an examination of all records affecting the title to the property, and from all inquiries which he might make of persons in the possession of the property, or of persons paying taxes thereon, or of any person who might, from any record or from any knowledge which the purchaser might have, seemingly have some interest in the property. In nearly all cases between individuals, where land is sold or conveyed, and where there is no doubt about the title, a general warranty deed is given; and it is only in cases where there is a doubt concerning the title that only a quitclaim deed is given or received. Hence where a party takes a quitclaim deed, he knows he is taking a doubtful title, and is put upon inquiry as to the title. The same principle was adhered to in the case of Merrill v. Hutchinson, 45 Kan. 59, 25 Pac. Rep. 215. It is insisted that this case differs in principle from the case of Johnson v. Williams, supra, for the reason that the conveyance from Mary P. Smith to the plaintiff was not a quitclaim but a warranty deed. We fail to see the distinction. The plaintiff acted as the agent of his wife, Mary P. Smith, in buying the property from L. Hendrickson. She was bound by his knowledge concerning the transaction, and he accepted a deed to the lots from his wife, as the court found, "the better to enable him to sell them." We do not think the district court erred in its conclusion of law, and therefore recommend an affirmance of the judgment.

the company was, in case they should find in favor of the theory of the shipper.

2 In charging the jury as to the commonlaw liability of the company, the court treated it as an insurer of the animals transported against all loss or injury from whatever cause except the acts of God or the public enemy. In view of the testimony tending to show that the loss may have resulted from the intrinsic qualities and propensities of the live-stock transported, without the fault of the company, the court should have added a further exception, relieving the company from liability if they found the loss or injury was attributable to the nature and propensities of the animals themselves, and which the ordinary diligence of the company could not prevent.

3. Where the special questions submitted to the jury are evasively and unfairly answered, and some of the findings made thereon are unsupported by the testimony, it is the duty of the trial court, upon application, to grant a new trial. (Syllabus by the Court.)

Error from district court, Butler county; C. A. LELAND, Judge.

The facts fully appear in the following statement by JOHNSTON, J.:

This was an action brought by Edward Clark against the St. Louis & San Fran cisco Railway Company to recover dam. ages from the company for negligence in transporting a car-load of stock from Andover station, in Butler county, to Kansas City, Mo. It is alleged that the company entered into a contract with Clark to ship the stock from Andover to Kansas City, and in pursuance of the contract the company furnished a car to Clark at the station on March 30, 1888, and that Clark put into the car, in good, healthy condition, 60 head of fat hogs, which the company contracted to deliver in good condition at Kansas City; but that, in violation of its contract, it had only delivered 44 head of hogs; and that by reason of the negligence of the company in transporting the hogs, and its failure to perform its contract, and by its delay in transporting the same, and failure to deliver 16 of the hogs, the plaintiff

(48 Kan. 321, 329)

ST. LOUIS & S. F. RY. Co. v. CLARK. (Supreme Court of Kansas. Dec. 5, 1891.) NEGLIGENCE OF CARRIER-LIVE-STOCK SHIPMENTS -EVIDENCE OF CONTRACT-QUESTION FOR JURY -SUFFICIENCY OF FINDINGS-NEW TRIAL.

1. In an action to recover damages for the death of hogs which had been transported over the railroad, the shipper claimed and testified that an oral contract was made for transportation to a point beyond the line of the contracting company, in which there was no limitation of liability, and that the stock was shipped under that contract; that, after the stock was loaded, and had left the station, he signed a paper which he could not well read, and did not read, but which he supposed to be a receipt containing nothing inconsistent with the contract under which the stock was shipped. The company contended, and offered testimony to show, that the only contract made with the shipper was the written one embodied in the paper or bill of lading signed by the shipper, and which, to a great extent, limited the liability of the company for losses that might occur. Held, that the court was warranted in submitting to the jury the question of what constituted the contract of the parties, and also in defining what the common-law liability of

A trial was had with a jury, and a verdict was returned, awarding damages to Clark in the sum of $245.92. At the same time the jury returned into court the fol. lowing answers to special questions which had been submitted: (1) Was plaintiff's stock loaded in defendant's car at Andover station to be shipped over defendant's road to Cherryvale, and from Cherryvale, over the Southern Kansas Railroad, to Kansas City, Missouri? Answer. To Kansas City. (2) Who loaded the stock in defendant's car? A. Plaintiff and others. (3) Was the car in which said stock was put in good condition at the time the stock was loaded? A. Yes. (4) Did the car-load of stock consist of cattle and hogs? A. Yes. (5) How many head of hogs and how many cattle were in the car? A. 60 hogs and 4 cattle. (7) Was the car in which the stock was put a 28-foot car? A. A standard car. (8) Was Charles Nichols, the conductor, and Ed. Baker, brakeman, in charge of the train that contained said stock from Andover to Meodosha? A. The depositions so stated. (10) To what point on defendant's road was said stock to be shipped by defendant? A. Kansas City.