of the grantee to enjoy the easement would be no more significant in its bearing upon his rights than the neglect to enjoy the freehold to which the easement was appurtenant." To the same effect are Riehle v. Heulings, 38 N. J. Eq. 20; Lindeman v. Lindsey, 69 Pa. St. 93. There is no evidence in the record of any act of the plaintiffs inconsistent with the right of the defendants and their grantors until the strip was fenced up at the end. Even this could hardly be said to amount to such a hostile assertion of right adverse to the defendants as would set the statute of limitations running against their deed. The defendants neither had nor claimed to have, by virtue of the deed to Mrs. Mather, the full title to the land. They were under no obligation to use the easement until they desired to do so, nor were they bound to take any action to protect their rights so long as there was no occupancy of the land inconsistent with them. While the deed from Mrs. Mather to Hoag does not specifically mention the right of way, it grants the land and appurtenances thereto. There is no question that this easement was appurtenant to the land, and passed to the grantee of Mrs. Mather. The judgment is reversed, with direction to enter judgment, on the special findings and undisputed facts of the case, in favor of the defendants. All the justices concurring.

(55 Kan. 78)

PENNELL et al. v. FELCH. (Supreme Court of Kansas. April 6, 1895.) PARTITION-RES JUDICATA-APPEAL-PRESUMP

TIONS.

1. In an action of partition, where the title to land and the right to divide and dispose of

the same in severalty are put in issue or might

have been litigated therein, the judgment rendered is binding upon all the parties to the proceeding and those holding under them, as to such issues.

2. In the absence of the testimony, or of a special finding upon a material question in the case, it will be presumed that the facts disclosed in evidence were such as to support the general finding and judgment of the court. (Syllabus by the Court.)

Error from district court, Doniphan county; R. C. Bassett, Trial Judge.

Action by Hattie C. Felch against Charles Pennell and others, to recover land. Plaintiff had judgment, and defendants bring error. Affirmed.

S. L. Ryan, for plaintiffs in error. Albert Perry, C. D. Walker, and J. L. Berry, for defendant in error.

JOHNSTON, J. This was an action to recover a 40-acre tract of land in Doniphan county, which is a part of a body of land purchased in 1859 and 1860 for persons who, before that time, had been the slaves of Joshua Pennell, of North Carolina. In 1855 Joshua Pennell made a will by which he gave to all of his slaves their freedom; and he directed that his executor, Joshua Winkler, should re

move them to one of the free states, and purchase for them stock, implements, and utensils needed for farming, and procure for them some land, the title of which should be settled in such way that the emancipated slaves and their children and issue should "have a common use and benefit of the said land during the time they may live on it; but if any of them shall remove from said land, and cease to live upon it, then in that case the right and title of such of them as shall remove and cease to live upon it shall be determined, and he, she, or they shall no longer hold right to any part of said land." A fund was set apart, with which the executor was to purchase the land, and also pay the expenses of the removal of the emancipated slaves to the free state. Shortly after the making of the will, Joshua Pennell died in North Carolina, leaving eight slaves, emancipated by the will, who were generally known by the name of the testator, a part of whom were removed to Kansas, in accordance with the directions of the will, and some of them sold themselves back into slavery, while others declined to avail themselves of the provisions of the will, and never came to Kansas. In 1869 a partition suit was brought in the district court of Doniphan county, in which all of the Pennells who were named in the will, and who had been brought to Kansas, were parties. In that proceeding the land which was purchased for them, and upon which they had resided until that time, was partitioned among them, and the parties to the proceeding took possession of the portions respectively assigned to them in severalty, and thereafter occupied the same. Under this proceeding, Augustus Pennell obtained the land in controversy in this action, and afterwards, in 1877, upon a mortgage given

by him and his wife, a judgment of foreclosure

was rendered, under which the land was appraised and sold. The purchaser at the sheriff's sale took possession of the land, which was continued until January 8, 1881, when it was conveyed to the plaintiff below, who remained in possession of the land for a time; but subsequently some of the Pennells gained possession of the land, and hence she commenced this action, naming as parties Charles Pennell, Newton Pennell, and Felix Pennell, as well as several other parties who disclaimed, or were dismissed from the action. The trial court found that the plaintiff was entitled to the possession of the land, and also gave judgment against Charles, Newton, and Felix Pennell for $105, for the rents and profits of the land during the time they were in possession of the same.

It is manifest that the rights of the parties under the will and under the purchase of land made for the Pennells by the executor were adjusted and determined in the partition suit in 1870. That proceeding involved an interpretation of the will, and the kind of title acquired under the will, and the conveyances that were executed. The judgment in that action is conclusive upon the parties thereto,

not only as to the matters actually determined, but also as to every other matter which might have been litigated and decided in the action. All of the plaintiffs in error in this case were parties to that proceeding, except Felix Pennell. He is a son of Sophronia Pennell, who was a party to the proceeding, and to whom a share of the land was allotted, The record does not affirmatively show that he was a party, nor does it show that he had been born when the partition was made. The testimony is not here, and the findings are silent upon that subject. In this state of the record the general finding will be treated as a finding of every special thing necessary to sustain the judgment, and is conclusive in this court on all doubtful or disputed questions of fact. We cannot assume the existence of facts that would impair the validity of the judgment, but should rather presume the facts to be such as are not inconsistent with those specially found, and yet will sustain the judgment that was given. It does not appear that any request was made for other and more specific findings, and none of those given can be said to be inconsistent with the judgment. Kellogg v. Bissantz, 51 Kan. 418, 32 Pac. 1090. The land in controversy was allotted, and each of the parties has received the share apportioned to him. The acceptance and disposition of the share so allotted estops any of such parties from questioning the adjudication and division that was made of the property. The judgment of the district court must therefore be affirmed. All the justices concurring.

(55 Kan. 82)

FRANKHAUSER v. EDWARDS. (Supreme Court of Kansas. April 6, 1895.) Error from district court, Osage county; William Thomson, Judge.

Action between N. Frankhauser and Myra A. Edwards. From the judgment rendered, Frankhauser brings error. Affirmed.

Pleasant & Pleasant and R. C. Heizer, for plaintiff in error. B. F. Hendrix and Ellis Lewis, for defendant in error.

PER CURIAM. We find no error in the record in this case, nor anything requiring especial mention. As the case of McNamara v. Culver, 22 Kan. 661, declares the law applicable to the facts appearing in this record, the judgment is affirmed.

(55 Kan. 86)

LACY v. COMSTOCK et al. (Supreme Court of Kansas. April 6, 1895.)

DEED-CONSTRUCTION OF RESERVATIONS.

Where R. conditionally gave a tract of land to a relative by an instrument which reserved to R. not only the rents, issues, and profits of the land while he lived, but which also reserved to him the right to dispose of the land during his lifetime, it was competent for him thereafter to bequeath to another relative the use of the land, and the rents and profits of the same, for a period of time extending two years after his death.

(Syllabus by the Court.)

Error from district court, Washington county; F. W. Sturges, Judge.

Action by Lyman Lacy, Jr., to recover from A. L. Comstock, as executor of the estate of Bernard Rodgers, rent money for the use of land previously purchased by him. Defendants had judgment, and plaintiff brings error. Affirmed. On July 5, 1887, Bernard Rodgers owned a tract of land and rented the same for three years from March 1, 18SS, at an annual rental of $200, for which three promissory notes were executed by the tenants and delivered to Rodgers. On December 27, 1887, Bernard Rodgers gave a portion of the land to his son, Charles D. Rodgers, by an instrument of which the following is a copy: "The grantor, Barnett Rodgers, also known as Bernard Rodgers, a widower, now of the city of Havana, in the county of Mason and the state of Illinois, for and in consideration of one dollar and for mutual love and affection, in hand paid, conveys and warrants to Charles D. Rodgers, of said city of Havana, of the county of Mason and the state of Illinois, the following described real estate, to wit: The southwest quarter of the northeast quarter, and the northeast quarter of the southeast quarter, both in section thirty-two (32), town four (4) south, range five (5) east, containing in all 80 acres, more or less, including all improvements and buildings of every nature and kind in or upon the same. The grantor herein reserves, however, all the rents, issues, and profits arising from said premises during the lifetime of him, the said grantor, and also the privilege and right to dispose of said premises by deed, during his lifetime. In all other respects this deed of conveyance is absolute. Situated in the county of Washington, in the state of Kansas; hereby releasing and waiving all right under and by virtue of the homestead exemption laws of said state. Dated this 27th day of December, A. D. 1887. Barnett Rodgers." This instrument was acknowledged, and also filed for record with the register of deeds. On February 23, 1889, Bernard Rodgers died testate, and A. L., Comstock was duly appointed as the executor of his last will and testament. His will, among other bequests, contained the following provision: "Also that my daughter, Ellen Morrissey, have the rent of my farm for three years, 1888, 1889, and 1890, two hundred dollars each year, after paying the above legacies and my funeral expenses, and all other just debts." On February 28, 1889, Charles D. Rodgers conveyed the land given to him by Bernard Rodgers in his lifetime to persons who on March 1, 1890, conveyed the same to Lyman Lacy, Jr. The parties to whom the land was rented used and occupied the premises under the lease, and had paid two of the rent notes before the commencement of the action. Comstock, as executor, collected the note due March 1, 1890, for $200, which he has in his possession; and he also holds, as such executor, the last rent note, due March 1, 1891. At the death of Bernard

Rodgers these notes were in possession of and were taken charge of by the executor as a part of the personal estate. All of the legacies mentioned in the will have been fully paid by the executor. Upon these facts the district court ruled that Lacy was entitled to no part of the rent money for which he had sued, and gave judgment in favor of the defendants. The plaintiff brings the case here for review.

Omar Powell, for plaintiff in error. Joseph G. Lowe, for defendants in error.

JOHNSTON, J. (after stating the facts). It is contended that the instrument by which Bernard Rodgers conditionally gave 80 acres of land to Charles D. Rodgers operated as a conveyance of the land in praesenti, and that as the use or issues and profits are incidental, and follow the land, Charles D. Rodgers and his grantee are entitled to the rents of the same, or at least to so much of the rents as accrued after the death of Bernard Rodgers. The instrument, as will be seen, is not an absolute conveyance. Bernard Rodgers not only reserved the rents, issues, and profits arising from the land while he lived, but he also reserved to himself the right to dispose of the land during his lifetime. It is plain that the transfer was not to be effective until his death, and it is urged with much plausibility that the instrument is testamentary in its character. Reed v. Hazleton, 37 Kan. 321, 15 Pac. 177; Hazleton v. Reed, 46 Kan. 73, 26 Pac. 450. But, whether it is or not, it is manifest that the purpose of the grantor was to reserve the title to and dominion over the land while he lived. It was his own property, and he was at liberty to give it upon such terms and conditions as his judgment and desires might prescribe. As was his right, he reserved to himself the use of the land, and also the control and disposition of the same. It was competent for him to have transferred the entire interest in the land by gift, grant, or bequest, and certainly he had ample power to make a like transfer of the use or rents arising from the same. While the title and dominion of the property remained in him, he bequeathed to his daughter the rent of the farm for the three years for which it had been leased. This act was certainly within the reserved power of Bernard Rodgers, and sufficient, under any view, to give to the daughter the use of the land and the rent notes which had been given for the years mentioned. We think the conclusion of the trial court was just and correct, and therefore its judgment will be affirmed. All the justices concurring.

(55 Kan. 94)

LITTLE v. BLISS.

(Supreme Court of Kansas.

April 6, 1895.) REPLEVIN-ACTION ON BOND-DAMAGES. 1. Upon the dismissal of a replevin action at the costs of the plaintiff, if the defendant does v.39P.no.10-65

not seek a trial and judgment under the provisions of section 184 of the Civil Code, he is not thereby precluded of his full remedy upon the bond.

2. Where the bond in a replevin action, executed by the plaintiff with sureties, provides that the plaintiff "shall duly prosecute the action," the defendant is entitled to recover all the damages he has sustained, upon a breach of that condition.

3. The amount of damages in an action on a replevin bond depends materially on the right of the plaintiff to the property. If the plaintiff in a replevin action fails to prosecute the same, and it is not determined in that case that the right of possession of the property belongs to the defendant, then, in an action on the bond, if it appears that the plaintiff (defendant in replevin) had no title or right of possession to the property when the replevin action was commenced and dismissed, he has sustained only nominal damages, and can recover only such damages.

(Syllabus by the Court.)

Error from district court, Wyandotte county; O. L. Miller, Judge.

Action by W. H. Bliss against A. W. Little. Plaintiff had judgment, and defendant brings error. Reversed.

W. H. Bliss commenced his action against A. W. Little on the 28th day of July, 1890, alleging in his petition that on August 21, 1889, he was the owner and in peaceable possession of certain personal property; that Cornelia Mackey, falsely pretending he was indebted to her in a large sum, to wit, $237, and that the same was secured by mortgage on the property, on August 21, 1889, demanded possession of the same from him, which he refused to comply with; that thereupon she commenced an action in replevin against him, in the district court of Wyandotte county, for the possession of the property; that she and defendant executed a replevin bond in the usual form; that the property was taken from him by the sheriff, and delivered to Mrs. Mackey; that the action stood regularly for trial; that on December 16, 1889, it was dismissed for want of prosecution, Mrs. Mackey not appearing; that judgment was rendered against her for the costs; that, since the action was dismissed, Mrs. Mackey has not returned the property to him, nor paid him the value thereof, and praying judgment for $4,039, with costs. On August 18, 1890, defendant answered the petition, denying each and every allegation not expressly admitted. The answer admitted, however, the execution of the replevin bond; that the action brought by Mrs. Mackey was dismissed by the court in the absence of herself and her attorneys, and that judgment was rendered against her for costs; that she did not return the property, nor pay the value thereof. And the allegation was added that she had paid all the costs, and that neither the title to the property nor the right of possession was adjudicated in her action, nor any return of the Defendant furproperty awarded to Bliss. ther alleged in his answer that Bliss, on April 8, 1889, for value received, executed and delivered his promissory note to Mrs. Mackey,

payable one month after date, in the sum of $237, with interest thereon from maturity at the rate of 10 per cent. per annum; that the note was executed in and payable at Kansas City, in the state of Missouri; that a copy of the note was attached to the answer, as a part thereof; that, to secure the payment of the note, Bliss mortgaged to Mrs. Mackey all of the personal property mentioned in the petition; that a copy of the mortgage was attached to the answer, as a part thereof; that the mortgage provided, if the indebtedness should not be paid according to the terms of the note, Mrs. Mackey might take possession of the mortgaged property, and remove and sell the same, in any manner she should think fit, and, out of the proceeds, pay the amount then due on the note, $45, attorney's fees, and all necessary costs of taking and caring for the property. It was also alleged that on August 21, 1889, the mortgage indebtedness was past due; that Bliss then owed Mrs. Mackey thereon $237, with interest from July 8, 1889; that Mrs. Mackey on August 21, 1889, and several times prior and subsequent to July 8, 1889, demanded of Bliss the possession of the property, which he refused, and that by reason of the premises she was, at the date of the commencement of the replevin action, entitled to the possession of the property, to sell and dispose of it to satisfy the mortgage indebtedness and expense of sale; that the replevin action was based on the note and mortgage; that, after obtaining possession of the property in the replevin action, Mrs. Mackey caused the same to be sold, under and by virtue of the chattel mortgage, for the best price that could be obtained in Kansas City; and that the same brought $198 only. There were other allegations in the answer, relating to the dismissal of the replevin action, and abandonment by Bliss of his demand in the action for trial of right of property, or for any order for return to him of the property. Plaintiff filed no reply to this answer, because, as stated by his attorney on the trial, he did not consider a reply necessary. Trial had November 7, 1890, before the court, with a jury. The jury returned a general verdict for the plaintiff for $154.34, and also special findings of fact. The defendant moved the court to render judgment in his favor, upon the pleadings and special findings, for nominal damages only. This motion was overruled. Defendant filed his motion to set aside the judgment, for various grounds therein stated, which was also overruled. Subsequently judgment was rendered upon the verdict for the plaintiff for $154.34. The defendant excepted, and brings the case here. Muckle & Winn, for plaintiff in error. Hale & Fife, for defendant in error.

HORTON, C. J. (after stating the facts). Upon the trial it was conceded, and the jury

were instructed, that the note and mortgage were executed by W. H. Bliss to Mrs. C. Mackey on the 8th of April, 1890. The note was for $237, payable May 8, 1889, with 10 per cent. interest after maturity. The mortgage to secure the note contained the following provisions: "The party of the first part [W. H. Bliss] hereby agrees to keep the property constantly insured for the benefit of the second party [Mrs. Mackey]; and if the note, or any part of the same, or any interest thereon, shall not be paid according to the terms thereof, or if the goods and chattels, or any of them, shall not, in the opinion of the party of the second part, be properly cared for, or shall, in the opinion of the party of the second part, become deteriorated or damaged, or if the same, or any part thereof, shall be removed or sold, or any interest therein be in any manner disposed of, or any attempt be made to remove or sell the same, or any part thereof, by the party of the first part, or any other person, or if any one shall levy on said goods and chattels, or any part thereof, then and in any of the above events all of the note not then paid shall become immediately due and payable, and the party of the second part, or her heirs, executors, administrators, assigns, or authorized agents, may enter upon the premises where the goods and chattels may be found, and take possession of the same, and may remove, sell, and dispose of all the property, or any part thereof, in any manner they shall think fit, without notice to any one, and, out of the proceeds thereof, pay the amount then due on the note, together with $45 attorney's fees, and shall also pay out of the proceeds of the sale all the necessary costs incurred in pursuing, searching for, taking, removing, keeping, storing, and selling the property, and may pay all the liens thereon having precedence over this mortgage, and shall pay the remainder, if any, to the party of the first part, or his legal representatives." The jury allowed Bliss, as the value of the property, $273. They found there was due Mrs. Mackey, when the replevin suit was commenced, $129.09. Under the instructions of the court, they deducted this $129.09 from $273, leaving $143.91, to which they added interest thereon at the rate of 6 per cent. per annum from August 22, 1889; making $154.34, the amount of the general verdict.

Under the conceded facts and the findings of the jury, when Mrs. Mackey brought her action, on the 21st of August, 1889, to recover possession of the goods and chattels in controversy, she was entitled, under her mortgage, to the possession of the same. On December 16, 1889, when the replevin action was called for trial, Mrs. Mackey was also entitled, under her mortgage, to the possession of the property. It appears, when the case was called, W. H. Bliss was present by his attorney, but neither Mrs. Mackey nor her attorneys appeared. Thereupon the case was dismissed, and the costs taxed to her. These

Bliss

she paid. When the replevin action was dismissed, Bliss, under the provisions of section 184, Civ. Code, might have demanded that the court proceed to inquire into the right of property, and the right of his possession thereto. This was not done. The replevin case was not tried upon its merits. failed to claim a return of the property, and only a judgment for costs was rendered. Notwithstanding the dismissal, Bliss was not precluded of his full remedy upon the bond. One of the conditions of the bond was that the plaintiff "shall duly prosecute the action." This is a separate and independent condition. Upon breach of that condition, Bliss was entitled to recover all the damages he had sustained. Manning v. Manning, 26 Kan. 98. As Bliss was indebted to Mrs. Mackey upon his note, secured by the mortgage, for about $130, she was entitled to the possession of the property at the time her action was dismissed. The amount of damages in an action on a replevin bond, must depend materially upon the right of the plaintiff bringing his action to the property. But, as it appears the plaintiff had no legal title or right of possession to the property, he sustained no actual damages by the refusal of Mrs. Mackey to deliver the same to him. Cobbey on the Law of Replevin states the rule thus: "Where the defendant had no title, he can only recover nominal damages on the bond. action by the obligees against the obligors in a replevin bond, where the title to the property was not determined in the replevin action, and the title thereto and the right of possession are in a person other than the obligees, they are only entitled to nominal damages." Section 1355. Brookover v. Esterly, 12 Kan. 149; Wells, Repl. p. 254, § 458; 2 Suth. Dam. 46; Smith v. Waiting, 100 Mass. 122.

In an

On August 6, 1890, the defendant below offered, in writing, to confess judgment for one dollar and costs. As plaintiff was entitled to judgment on the bond for nominal damages only, he can recover no costs since the date of that offer. It ought to be observed that the plaintiff below has not appeared in this court by brief or otherwise. Judgment of the district court will be reversed, and the cause remanded, with direction to that court to render judgment upon the findings of fact in favor of plaintiff below for one dollar, and the costs accruing to August 6, 1890. The subsequent costs will be taxed against him. the justices concurring.

(55 Kan. 100)

All

sidered as a part of such case made unless it is actually incorporated therein. (Syllabus by the Court.)

Error from district court, Cloud county; F. W. Sturges, Judge.

Action by George L. Parkhurst against the First National Bank of Clyde. There was judgment for defendant, and plaintiff brings error. Affirmed.

Kennett, Peck & Matson, for plaintiff in er ror. Pulsifer & Alexander, for defendant in

error.

JOHNSTON, J. George L. Parkhurst brought an action against the First National Bank of Clyde, Kan., alleging that he was the owner of certain personal property which he had advertised to be sold at public auction on February 15, 1889, and that when the prospective purchasers had assembled, and the sale was about to proceed, the defendant bank, by its agents, appeared and warned said purchasers that the bank was the owner or had mortgages upon the property advertised to be sold, and that Parkhurst had no right to sell the same, and that those who purchased the property would acquire no title thereto. It was alleged that this interference prevented the sale of a large part of the property, and that that which was sold was disposed of at a much lower price than it would have sold for but for the action of the defendant. The defendant bank admits attending upon the sale and warning purchasers of its interest in the property, claiming that it held mortgages upon the same which were unpaid. A further defense was that in a former action brought by Parkhurst against the bank to recover penalties for a refusal to discharge the chattel mortgages held by the bank covering the same property which the bank warned prospective purchasers at the public sale was covered by its mortgages, in which action the bank recovered a verdict and judgment against Parkhurst. It is claimed that in that action it was fully litigated and determined -First, that Parkhurst was not the owner of the property in controversy; and, second, that the mortgages held by the bank then were unpaid. The trial court sustained the defense of res adjudicata, and directed a verdict in favor of the defendant. An exception was taken to this ruling, and the cause has been brought here for review.

The defendant insists that the record in the case is so defective that the rulings of the trial court upon the question of res adjudicata cannot be reviewed. From the record it appears that all of the proceedings in the first case were introduced in evidence in this case, for the purpose of showing what had been adjudicated in the former case, but no part of such proceedings have been incorporated in the case made before us. An attempt was made to bring them to the at tention of this court by reference to another cause between the same parties in the su