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road company did construct its railroad across the lands, and did erect two buildings, one suitable for a passenger depot, and the other suitable for a freight depot, in accordance with the requirements of the contract, and within the time limited. It also appears that the freight depot was used for the purpose for which it was designed from the time of its construction. The court further finds that "from the time of completion of said passenger depot up to the commencement of this action it was not kept open for the accommodation of passengers, and, although there was a stove in the middle or office room, no fire was kept in it, except occasionally, and during part of the time the stovepipe was down. Temporary plank seats were left in the waiting room on completion of the building, but they were removed at some time, which does not distinctly appear.

Passengers awaiting trains

stood or sat upon the depot platform, the projecting roof at the side or end affording some shelter from snow and rain, but sometimes they would go into the office room of the freight depot, where a fire was kept | when the weather required it, and the freight depot room was always unlocked, except when employés were absent at meals, or temporarily on business, and no passengers were excluded from said room, although there was no sign or notice posted to show that it was intended for the accommodation of passengers, and the only seating arrangements were two or three chairs. No passenger or freight traffic was ever refused at South Topeka." No tickets were kept on sale at the passenger depot until about 10 days before the commencement of the trial in the district court, which appears from the record to have been on the 25th of November, 1889. No baggage was checked, and, in fact, none of the ordinary facilities afforded by a passenger depot were provided by the railway company. The building designed for a passenger depot might, so far as the accommodation of the public was concerned, have been called anything else as well as a passenger depot. A barn from which the public were excluded, if surrounded by a platform and wide eaves, would have answered the same purpose. The findings further show that the building at the corner of Adams and Fifth streets was the only one in fact used for a passenger depot prior to the commencement of this action. Can this be held to be a substantial compliance on the part of the railroad company with its contract? Clearly it cannot. The substantial advantages which would have accrued to Ritchie and his heirs from a passenger depot, at which tickets were sold, baggage checked, information given, passengers sheltered and accommodated while waiting for trains, with all the other usual and ordinary conveniences for the public, were denied and withheld from them. Can the railroad company say, because it built and maintained a

freight depot, and had a building, which it did not use, for a passenger depot, that it has fulfilled its contract? The contract says it shall do both. It has, then, as much right to withhold both as one. The fact that the company has constructed side tracks, roundhouse, stock yards, water tank, and various other buildings, for its own convenience and accommodation, found in detail by the trial court, has no tendency whatever to show a compliance with the contract, whatever equitable considerations may arise from them. The contract of the railroad company converts the estate passed by the deed into one on conditions subsequent. The continuance of the railroad company's estate depends on its performance of the conditions, and it is not necessary for the court to inquire as to the damage resulting to the plaintiff from the nonperformance of the conditions, for, the parties having stipulated that the estate shall revert in case of a breach of the conditions, the plaintiffs cannot be driven to an action for damages for each recurring breach of the covenant. The question is, have the conditions been substantially complied with? The court finds facts showing that that requiring the maintenance of a passenger depot has not been so fulfilled.

May the plaintiffs, then, maintain ejectment to recover the land? By the common law, advantage of a breach of a condition subsequent, working a forfeiture of an estate, could only be taken by formal entry, on the principle that it required as solemn an act to defeat as to create an estate. 2 Washb. Real Prop. 14. But in this state there is no such thing as livery of seisin, in the common-law sense. Estates are created by written instruments. Delivery of possession of lands is, of course, a circumstance of some weight in determining questions of title. Under our statute, a party having either a legal or an equitable title may maintain an action for the recovery of real property. Simpson v. Boring, 16 Kan. 248. No formal entry is necessary here as a condition precedent to the bringing of an action of ejectment. Recent authorities are to the effect that an ordinary action of ejectment answers all purposes of a common-law entry. Tied. Real Prop. § 277. The condition on which the grant was made being lawful, and one which the parties had a right to agree upon, must be enforced on the demand of the plaintiffs. Clarke v. Town of Brookfield, 81 Mo. 503; Jeffery v. Graham, 61 Tex. 481; Richter v. Richter, 111 Ind. 456, 12 N. E. 690; Heywood v. Association (Cal.) 11 Pac. 246; Railway v. Hood, 66 Ind. 580; Pepin Co. v. Prindle, 61 Wis. 301, 21 N. W. 254; Railroad Co. v. Covington, 2 Bush, 526; Railway Co. v. Griffeth (Ky.) 17 S. W. 277; Horner v. Railway Co., 38 Wis. 165; Wilson v. Wilson, 86 Ind. 472; Railway Co. v. Coburn, 91 Ind. 557; O'Brien v. Wetherell, 14 Kan. 616

It is strenuously insisted that the plats filed by the Ritchies operated as a dedication of the lands for railroad purposes. To this, however, we cannot assent, for several

reasons.

(1) A dedication of land can only be made by the person who is the owner of the land at the time the dedication is made. Boerner

v. McKillip, 52 Kan. 508, 35 Pac. 5. The legal title to this land was in the railroad company at the time these plats were filed. The land having been conveyed on conditions subsequent, the title of the company was not divested until the grantor or his heirs claimed a forfeiture. The railroad company had nothing to do with the execution of the plat; hence no statutory dedication was made.

(2) While the location of the tracks and depot buildings of the defendant are shown on the map, and in a space not platted into lots, where the depots are shown to be located, the words "K. N. & D. Depot Grounds" appear, only the boundaries of the tract on the side next the city of Topeka are shown on the map. No eastern boundary whatever is indicated, nor are streets indicated through the lands covered by the deed to the railroad company, except by dotted lines. No distances on any boundary of the tract are given.

(3) While the streets and alleys are expressly dedicated to public uses, there is nothing written on the plats indicating a purpose to dedicate any lands to railroad uses. All that can be said in any way to indicate such a purpose is the fact that the locations of the tracks and buildings are marked on the plat. We think this could be done with perfect safety and propriety, because the tracks and buildings were already there, and the plats merely show what was visible to the eye on the ground and their locations with reference to the balance of the property. The lands in controversy having been conveyed on valid conditions subsequent, and there having been a substantial breach of those conditions, the plaintiffs may maintain ejectment for the recovery of the lands. It only remains to consider what order this court should make on the facts presented by the record. The petition alleges that the plaintiffs are the owners, both in law and equity, of the lands in controversy, and that they are entitled to the possession thereof, and asks judgment for their recovery. The answer is a general denial. The facts developed at the trial, and stated in the findings of the court, show that the plaintiff's seek to enforce the forfeiture of the estate granted by John Ritchie, deceased, and wife, to the Kansas, Nebraska & Dakota Railway Company. The findings also show that the railway company took possession under the deed, and thereafter constructed many valuable improvements, which are still on the land. Are the plaintiffs also entitled to recover these

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improvements as a part of the realty" While the law enforces the lawful contracts of parties, and even gives effect to forfeitures, equity gives relief against the hardships incident to such forfeitures in very many cases. It is a universal rule that the instrument creating the forfeiture will be strictly construed, and that its terms will never be extended by construction. Wier v. Railroad Co., 40 Kan. 130, 19 Pac. 316. The general doctrine of equity on this subject is thus stated in Pom. Eq. Jur. § 381: "The general doctrine was finally settled that wherever a penalty or forfeiture is inserted merely to secure the payment of money or the performance of some act, or the enjoyment of some right or benefit, equity regards such payment, performance, or enjoyment as the real and principal intent of the instrument, and the penalty or forfeiture as merely an accessory, and will therefore relieve the debtor party from such penalty or forfeiture whenever the actual damages sustained by the creditor party can be adequately compensated.” In this case the damages resulting to the grantors from a failure of the grantee to comply with the conditions of their contract for a given period of time are not susceptible of accurate measurement. How much the plaintiffs might have been benefited by the maintenance and use of a passenger depot prior to the commencement of this suit is, of necessity, a matter of opinion and speculation, rather than accurate computation. The parties by their contract have said that the estate granted shall revert to the grantor in case of a failure to perform the conditions. The estate granted was the bare land, and that estate, we think, reverts to the heirs of the grantor.

The railroad tracks, roundhouse, depot buildings, etc., were not granted by the deed, but have been constructed by the grantee. The values of the various improvements made by the railroad company are not stated in the findings. The defendant, being a railway corporation, has a right to condemn these lands, or so much thereof as is necessary for its use, but, in case of such condemnation, would be required to make full payment therefor. In this case the defendants have not filed any pleading praying relief from the effects of the forfeiture, but as the plaintiff's allege an equitable estate, and as the rules of pleading in actions of this kind under the Code are extremely liberal, we do not feel at liberty to direct a judgment to be entered on the special findings, which would be inequitable. The filing of the plat by Ritchie, and of the subsequent one by his heirs, is some evidence that, up to that time, the plaintiffs had not insisted on a forfeiture; but the findings of fact show that the nonuser of the depot building continued after the filing of the plats, up to and after the time of the commencement of this action. A waiver on the part of the plaintiffs of past breaches of the condition cannot be con

strued into a waiver of all right to future observance and performance of it. The right to a forfeiture was first insisted on and brought to the knowledge of the defendants by the commencement of this action. We think the rights of the parties should be determined as of that date; that, under the facts as disclosed by the record and the findings of the court, the plaintiffs were entitled to recover the specific property, or its value, measured as of that date; but if the defendants desire to maintain a railroad across the lands, and to continue the use thereof for railroad purposes, they should be permitted to retain the land, and also the improvements they have constructed thereon, on payment of the value of the land, computed as of the date of the commencement of this action, with interest since that time, without any charge on account of improvements made by the defendants thereon. Cohen v. Railroad Co., 34 Kan. 158, 8 Pac. 138. There are no findings in the record showing what this value was, nor has the defendant indicated its desire to retain and pay for the land. The incompleteness of the findings renders it necessary to direct a new trial of the action. The judgment is therefore reversed for further proceedings, in accordance with the views above expressed. All the justices concurring.

(54 Kan. 726)

JOHNSTON v. JOHNSTON (two cases). (Supreme Court of Kansas. March 9, 1895.) ACTION FOR DIVORCE-PERMANENT ALIMONYDISPOSITION OF PROPERTY.

1. Where an action is brought for divorce and alimony, alimony may be allowed as an incident to the divorce; and where the parties are in equal wrong, and a divorce is refused, the court may make an order for the control and disposition of the property of the parties, or either of them, as may seem proper.

2. Where an action is brought for divorce and alimony, and upon application of the plaintiff the action for the divorce is continued for trial, it is error for the court to render judgment for permanent alimony only. In such a case, permanent alimony is an incident to the divorce, and should not be finally heard and determined while the action for divorce is pending. The divorce and the adjustment of property interests are not to be regarded as transpiring at different times, but as contemporaneous.

(Syllabus by the Court.)

Appeal and error from district court, Shawnee county; X. T. Hazen, Judge.

Action by Eva L. Johnston against William L. Johnston. There was a judgment against defendant for permanent alimony, and an order directing his imprisonment for contempt in failing to pay such alimony, and he appeals and brings error. Reversed.

On the 15th of March, 1894, Eva L. Johnston commenced her action against the defendant, William L. Johnston, and alleged, among other things, that "the parties to this action are husband and wife; that they were married at Diamondville, in the state of Pennsylvania, on July 2, 1890; that the plain

tiff at the present time is a resident of Shawnee county, Kan.; that she has resided in said county and state for more than one year last past, and plaintiff further says that from the time of her marriage to the defendant she has at all times treated him in an affectionate manner, as a kind and loving wife; that the defendant, without any cause or provocation on the part of the plaintiff, has treated her with extreme cruelty; that he has sworn at and cursed her in the presence of her friends and acquaintances; that he has frequently called her a damned dirty Dutch bitch; that his conduct has been such that she has lost her health, and that it is impossible for her to longer live with him as his wife; and plaintiff says that the defendant, without any cause on the part of the plaintiff, did in the month of August, 1893, commence to pay attention to a certain lewd woman by the name of Ella McFadden, and that from that time to the present he has at divers times been guilty of committing adultery with the said woman." The petition further alleged, among other things, that after the 10th of February, 1893, the defendant paid plaintiff $600 from moneys collected by him from an insurance association; that the defendant has collected from the Atchison, Topeka & Santa Fé Railroad Company $5,000 by way of compensation for injuries received by him while in the employ of the company; and that, under an agreement between plaintiff and defendant, plaintiff is entitled to one-half of that amount. Plaintiff asked "that a restraining order be granted her by the district court, restraining and enjoining the defendant from assigning, drawing, receiving, or in any way disposing of the money due to him, now in the hands of the Atchison, Topeka & Santa Fé Railroad Company, or in the hands of any other person, corporation, or firm, or in the hands of the receivers of the said railroad company, and that he be restrained from selling, transferring, or disposing of any money, rights, or property of any kind during the pendency of this action. The plaintiff prayed that she be granted a divorce from the defendant; that the bonds of matrimony heretofore existing between the parties to this suit be dissolved; that she have and recover of and from the defendant five hundred dollars as alimony pending the prosecution of this suit; and that she be awarded the sum of five thousand dollars as alimony in this action, together with attorney's fees, costs of this suit, and all other proper relief." At the time of the filing of the petition a restraining order against the defendant was allowed as prayed for. Personal service of summons was had on the defendant, and the restraining order, which was issued against the defendant from disposing of his property, was served at the same time. On the 25th of April, 1894, the case was called for trial, the defendant being in default. The journal entry of the trial recites that "this cause being

for a new trial. Upon the hearing of these motions defendant claimed that he employed an attorney to attend to his case, and that the attorney had neglected to do so. On July 13, 1894, the defendant filed his answer to the plaintiff's petition, containing a general denial. The case is still pending in the district court upon the pleadings so filed. The defendant appeals to this court. He has also

the parties both cases were considered together.

Waggener, Martin & Orr and W. P. Waggener, for appellant. Edwin A. Austin and H. L. Armstrong, for appellee.

submitted to the court by the plaintiff and by the default of said defendant, and evidence being introduced, and the court, being fully satisfied in the premises, does, on application of the plaintiff, continue said cause as to a divorce for further hearing and determination; and upon said petition, and the evidence thereunder as for alimony, finds for the plaintiff, and against the defendant." The court rendered the following judg-filed his petition in error, and by agreement of ment: "It is therefore ordered and decreed that said defendant pay to this plaintiff the sum of $3,000 as her alimony immediately, and that said plaintiff do have and recover of and from said defendant the said sum of $3,000, and costs of suit taxed at $18.05, for which let execution issue. And it is further ordered and decreed that, if said defendant fail or neglect to pay to the plaintiff the sum of money as herein decreed, an attachment issue for said defendant, directed to the sheriff of Shawnee county, commanding him to attach the person of said defendant, and bring him before this court, and that he show cause why he should not be committed for contempt. And it is further ordered that, if default be made in the payment of the sum of money provided for in this decree, and an attachment issue as herein provided, the court may, on the hearing of such attachment, make such further orders or decree herein as may at the time be proper." On the 28th of April, 1894, upon application of the plaintiff, an attachment was issued for the defendant, requiring him to show cause why he should not be committed for contempt in failing to comply with the decree of the court rendered on the 25th of April, 1894. Subsequently the defendant was arrested, and brought into court, and on the 9th of June, 1894, the court made the following order: "It is by the court ordered that the defendant herein appear in court on the 26th day of June, 1894, at 2 o'clock p. m., and that he give bond in the sum of two thousand dollars, conditioned according to law, for his appearance at that time, and that said bond and sureties be approved by the clerk of this court." On the 26th of June, 1894, the parties appeared, and, with the consent of the court, the further hearing in the case was postponed until the 3d of July, 1894. Ou the 2d day of July, 1894, the plaintiff appeared in court by her attorneys, and, with the consent of the court, remitted $1,000 of the judgment for alimony rendered on April 25, 1894. On the 3d day of July, 1894, the court found the defendant guilty of contempt "for failing, refusing, and neglecting to comply with the order of the court made on the 25th of April, 1894." Thereupon the court directed that the defendant be committed to the jail of Shawnee county until he comply with the order made on the 25th of April, 1894, as modified on the 2d of July, 1894. Subsequently motions were filed by the defendant for vacating the decree of the court allowing alimony to the plaintiff, and also

HORTON, C. J. (after stating the facts). This was an action brought by Eva L. Johnston against William L. Johnston for divorce and alimony. When the case was called for trial, on application of the plaintiff, the action, so far as it sought a divorce from the defendant, was continued for trial, and the case for divorce is still pending upon the petition and answer, but the court proceeded, in the absence of the defendant, to hear the case for alimony only, and rendered judgment against the defendant, and in favor of the plaintiff, for $3,000, with costs taxed at $18.05, and directed execution. The judgment was not only a personal one against the defendant, which he was required to pay Immediately, but subsequently he was arrested and imprisoned for failing to pay the same. The judgment cannot be regarded as having been rendered for temporary alimony or the expenses of the suit. In the petition $500 only was asked for alimony pendente lite. To the suggestion that the judgment is not a final order, it is sufficient to remark that after it was rendered the defendant had no alternative but immediate payment, imprisonment, or appeal. It will not avail him, so far as this judgment is concerned, if the court makes "a further order or decree" in the case, if execution may issue and be shall be imprisoned. If this judgment cannot be reviewed, then any judgment rendered upon the merits of a case, and committing a defendant to jail until he pays the amount thereof, is conclusive, and beyond the review of the appellate courts, until it is satisfied by payment or imprisonment. Civ. Code, §§ 542, 543. Upon the petition, if the whole case had been regularly tried upon its merits, permanent alimony might have been allowed as an incident to the divorce, or if, upon the trial, the parties appeared to be in equal wrong, the court might, for good cause, have made an equitable order for the control and disposition of the property. Civ. Code, §§ 639, 646; Birdzell v. Birdzell, 33 Kan. 433, 6 Pac. 561; Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245. "When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden name if she so desires, and also to all the property, lands,

tenements, hereditaments owned by her before her marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony out of the uusband's real and personal property as the court shall think reasonable." Civ. Code, § 646. Alimony may be allowed in a separate action without a divorce. Civ. Code, § 649; Jenness v. Cutler, 12 Kan. 517; Somers v. Somers, 39 Kan. 132, 17 Pac. 841. But this action was not brought under section 649, and, when the case was tried and determined, the petition was not reframed under that section, nor was the action for divorce dismissed. That is still pending for trial. When the case was called for trial, under the allegations of the petition, alimony was only an incident to a divorce. The principal cause of action was continued, and the incident tried and determined. As was observed by Mr. Justice Brewer, speaking for the court in Brandon v. Brandon, 14 Kan. 342: "The divorce, and the adjustment of property interests, are not to be regarded as transpiring at different times, but as cotemporaneous." Damon v. Damon, 28 Wis. 514; Clark v. Burke (Wis.) 27 N. W. 22. In this case, before the divorce was granted, and while the action for divorce was pending, an adjustment of the property interests of the parties was decreed. The petition for the divorce and the answer have not yet been disposed of. The issues thereon are for trial. The court committed error in continuing, at the instance of the plaintiff, the action for divorce, and then proceeding to hear and determine the amount of permanent alimony. Upon the pleadings, the question of permanent alimony should have been deferred until the divorce had been granted or refused. Civ. Code, §§ 643, 646. The suggestion that the judgment for permanent alimony cannot be reviewed, because, owing to the absence of the defendant and his attorney at the trial, no exception was taken, is without force. The error complained of is apparent upon the record, and may be examined. Koehler v. Ball, 2 Kan. 160; Lender v. Caldwell, 4 Kan. 339; Wilson v. Tuller, 9 Kan. 176; Wood v. Nicolson, 43 Kan. 461, 23 Pac. 587; Ritchie v. Railroad Co. (just decided) 39 Pac. 718. The judgment of the district court will be reversed. The defendant will be discharged, and the cause remanded for further proceedings in accordance with the views herein expressed.

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and stockholders enter into an agreement to discontinue business, and divide and distribute the entire capital and assets of the corporation among themselves in payment of the indebtedness which they hold against the corporation; and when, in accordance with the agreement, they have wound up the business, and distributed the assets, and there remains a large indebtedness unprovided for,-the transaction will be deemed to be invalid as to any excluded creditor. In such case the property and assets of the corporation will be deemed to be held in trust for the payment of the debts of the corporation, and any excluded creditor will be entitled to pursue it into the hands of any member of the corporation or other person who has taken the same with full knowledge of the facts; and if it has passed out of their hands they may be compelled to account to such creditors, and to contribute pro rata towards the payment of the unpaid debts of the corporation to the extent of the fund so misapplied.

2. Directors and managers of a corporation who are creditors of the same are not permitted, in closing up the business of the corporation, to make any agreement or arrangement by which they shall secure to themselves a preference or advantage over other creditors.

3. Where trust property has been conveyed to another, the trust cannot be enforced against the property itself without making the one to whom it was conveyed a party to the action; but his presence is not indispensable where it is sought to compel the one who wrongfully received and transferred the property to account for the fund so received and misapplied by him.

4. Where there appears to be a defect of parties upon the face of the petition, the defendant may demur thereto upon that ground; and where the petition does not disclose the defect the objection may be taken by answer: but if no objection is taken either by demurrer or answer the defendant is deemed to have waived the

same.

5. Before an action upon a judgment in favor of a corporation had become barred by the statute of limitations, a receiver of the corporation was appointed, with power to take possession of all the property and to collect all claims and demands due to the same, who brought an action upon the same judgment, which remained pending until the receiver was discharged. Held, that the statute of limitations did not run during the pendency of the action brought by the receiver.

6. A judgment of the United States circuit court for the district of Kansas occupies the same footing as a judgment of the state court, and may be made the basis of a creditor's bill or other like equitable action in the state court, brought to protect the rights of creditors in a trust fund which has been wrongfully appropriated or misapplied.

7. Where a case made is settled and signed without notice to one of the parties, the attempted settlement is a nullity; but the invalid effort to settle does not prevent the judge from settling and signing the same case, at any time within the period allowed by law, upon a notice duly given to the parties upon whom the case was served.

(Syllabus by the Court.)

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

Action by the Chicago & Atchison Bridge Company against George Fowler to enforce a judgment. Judgment for defendant, and plaintiff brings error. Reversed.

On January 26, 1889, the Chicago & Atchison Bridge Company brought an action against the Anglo-American Packing & Provision Company, George Fowler, Alexander Muir, and Arthur Booth. In the petition it

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