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road company did construct its railroad freight depot, and had a building, which it across the lands, and did erect two build- did not use, for a passenger depot, that it ings, one suitable for a passenger depot, and has fulfilled its contract? The contract says the other suitable for a freight depot, in it shall do both. It has, then, as much accordance with the requirements of the con- right to withhold both as The fact tract, and within the time limited. It also that the company has constructed side tracks, appears that the freight depot was used for roundhouse, stock yards, water tank, and the purpose for which it was designed from various other buildings, for its own conventhe time of its construction. The court fur- ience and accommodation, found in detail ther finds that “from the time of comple- by the trial court, has no tendency whatevtion of said passenger depot up to the com- er to show a compliance with the contract, mencement of this action it was not kept whatever equitable considerations may arise open for the accommodation of passengers, from them. The contract of the railroad and, although there was a stove in the mid- company converts the estate passed by the dle or office room, no fire was kept in it, ex- deed into one on conditions subsequent. The cept occasionally, and during part of the continuance of the railroad company's estate time the stovepipe was down. Temporary depends on its performance of the conditions, plank seats were left in the waiting room and it is not necessary for the court to inon completion of the building, but they were quire as to the damage resulting to the removed at some time, which does not dis- plaintiff from the nonperformance of the tinctly appear. Passengers awaiting trains conditions, for, the parties having stipulatstood or sat upon the depot platform, the ed that the estate shall revert in case of a projecting roof at the side or end affording breach of the conditions, the plaintiffs cansome shelter from snow and rain, but some- not be driven to an action for damages for times they would go into the office room of each recurring breach of the covenant. The the freight depot, where a fire was kept question is, have the conditions been substanwhen the weather required it, and the freight | tially complied with? The court finds facts depot room was always unlocked, except showing that that requiring the maintenance when employés were absent at meals, or tem- of a passenger depot has not been so fulporarily on business, and no passengers were

filled. excluded from said room, although there was May the plaintiffs, then, maintain ejectno sign or notice posted to show that it was ment to recover the land? By the common intended for the accommodation of passen- law, advantage of a breach of a condition gers, and the only seating arrangements were subsequent, working a forfeiture of an estwo or three chairs. No passenger or freight tate, could only be taken by formal entry, traffic was ever refused at South Topeka.” on the principle that it required as solemn No tickets were kept on sale at the passenger an act to defeat as to create an estate. 2 depot until about 10 days before the com- Washb. Real Prop. 14. But in this state mencement of the trial in the district court, there is no such thing as livery of seisin, in which appears from the record to have been the common-law sense. Estates are created on the 25th of November, 1889. No bag- by written instruments. Delivery of possesgage was checked, and, in fact, none of sion of lands is, of course, a circumstance the ordinary facilities afforded by a passen- of some weight in determining questions of ger depot were provided by the railway com- title. Under our statute, a party having pany. The building designed for a passen- either a legal or an equitable title may mainger depot might, so far as the accommo- tain an action for the recovery of real propdation of the public was concerned, have erty. Simpson v. Boring, 16 Kan. 248. No been called anything else as well as a pas- formal entry is necessary here as a condition senger depot. A barn from which the pub-precedent to the bringing of an action of lic were excluded, if surrounded by a plat- ejectment. Recent authorities are to the form and wide eaves, would have answered effect that an ordinary action of ejectment the same purpose. The findings further answers all purposes of a common-law enshow that the building at the corner of try. Tied. Real Prop. $ 277. The condition Adams and Fifth streets was the only one in on which the grant was made being lawful, fact used for a passenger depot prior to the and one which the parties had a right to commencement of this action. Can this be agree upon, must be enforced on the demand held to be a substantial compliance on the of the plaintiffs. Clarke v. Town of Brookpart of the railroad company with its con- field, 81 Mo. 503; Jeffery v. Graham, 61 Tex. tract? Clearly it cannot. The substantial 481; Richter v. Richter, 111 Ind. 456, 12 N. advantages which would have accrued to E. 690; Heywood v. Association (Cal.) 11 Ritchie and his heirs from a passenger depot, Pac. 246; Railway v. Hood, 66 Ind. 580; Perat which tickets were sold, baggage check- in Co. v. Prindle, 61 Wis. 301, 21 N. W. 25+; ed, information given, passengers sheltered Railroad Co. v. Covington, 2 Bush, 526; and accommodated while waiting for trains, Railway Co. v. Griffeth (Ky.) 17 S. W. 277; with all the other usual and ordinary con- Horner v. Railway Co., 38 Wis. 165; Wilson veniences for the public, were denied and v. Wilson, 86 Ind. 472; Railway Co. v. Cowithheld from them. Can the railroad compa- burn, 91 Ind. 557; O'Brien v. Wetherell, 14 ny say, because it built and maintained a ! Kan. 616

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It is strenuously insisted that the plats improvements as a part of the realty! While filed by the Ritchies operated as a dedica- the law enforces the lawful contracts of tion of the lands for railroad purposes. To parties, and even gives effect to forfeitures, this, however, we cannot assent, for several equity gives relief against the hardships inreasons.

cident to such forfeitures in very many cases. (1) A dedication of land can only be made It is a universal rule that the instrument by the person who is the owner of the land creating the forfeiture will be strictly conat the time the dedication is made. Boerner strued, and that its terms will never be exv. McKillip, 52 Kan. 508, 35 Pac. 5. The tended by construction. Wier v. Railroad legal title to this land was in the railroad Co., 40 Kan. 130, 19 Pac. 316. The general company at the time these plats were filed. doctrine of equity on this subject is thus The land having been conveyed on conditions stated in Pom. Eq. Jur. $ 381: “The general subsequent, the title of the company was doctrine was finally settled that wherever not divested until the grantor or his heirs a penalty or forfeiture is inserted merely to claimed a forfeiture. The railroad company secure the payment of money or the performhad nothing to do with the execution of the ance of some act, or the enjoyment of some plat; hence no statutory dedication was right or benefit, equity regards such pay. made.

ment, performance, or enjoyment as the real (2) While the location of the tracks and and principal intent of the instrument, and depot buildings of the defendant are shown the penalty or forfeiture as merely an acon the map, and in a space not platted into cessory, and will therefore relieve the debtor lots, where the depots are shown to be locat- party from such penalty or forfeiture whened, the words “K. N. & D. Depot Grounds" ever the actual damages sustained by the credappear, only the boundaries of the tract on itor party can be adequately compensated." the side next the city of Topeka are shown In this case the damages resulting to the on the map. No eastern boundary whatever grantors from a failure of the grantee to is indicated, nor are streets indicated through comply with the conditions of their contract the lands covered by the deed to the rail- for a given period of time are not suscepti. road company, except by dotted lines. No ble of accurate measurement. How much distances on any boundary of the tract are the plaintiffs might have been benefited by given.

the maintenance and use of a passenger de(3) While the streets and alleys are ex- pot prior to the commencement of this suit pressly dedicated to public uses, there is is, of necessity, a matter of opinion and nothing written on the plats indicating a speculation, rather than accurate computapurpose to dedicate any lands to railroad tion. The parties by their contract have uses. All that can be said in any way to said that the estate granted shall revert to indicate such a purpose is the fact that the the grantor in case of a failure to perform locations of the tracks and buildings are the conditions. The estate granted was the marked on the plat. We think this could bare land, and that estate, we think, rebe done with perfect safety and propriety, verts to the heirs of the grantor. The railbecause the tracks and buildings were al- road tracks, roundhouse, depot buildings, ready there, and the plats merely show what etc., were not granted by the deed, but have was visible to the eye on the ground and been constructed by the grantee. The values their locations with reference to the balance of the various improvements made by the of the property. The lands in controversy railroad company are not stated in the findhaving been conveyed on valid conditions ings. The defendant, being a railway corsubsequent, and there having been a sub- poration, has a right to condemn these lands, stantial breach of those conditions, the plain- or so much thereof as is necessary for its tiffs may maintain ejectment for the recov- use, but, ir case of such condemnation, ery of the lands. It only remains to con- would be required to make full payment sider what order this court should make therefor. In this case the defendants have on the facts presented by the record. The not filed any pleading praying relief from petition alleges that the plaintiffs are the the effects of the forfeiture, but as the plainowners, both in law and equity, of the lands tiffs allege an equitable estate, and as the in controversy, and that they are entitled rules of pleading in actions of this kind unto the possession thereof, and asks judg- der the Code are extremely liberal, we do ment for their recovery. The answer is a not feel at liberty to direct a judgment to general denial. The facts developed at the be entered on the special findings, which trial, and stated in the findings of the court, would be inequitable. The filing of the show that the plaintiffs seek to enforce the piat by Ritchie, and of the subsequent one forfeiture of the estate granted by John by his heirs, is some evidence that, up to Ritchie, deceased, and wife, to the Kansas, that time, the plaintiffs had not insisted on a Nebraska & Dakota Railway Company. The forfeiture; but the findings of fact show that findings also show that the railway com- the nonuser of the depot building continued pany took possession under the deed, and after the filing of the plats, up to and after thereafter constructed many valuable im- the time of the commencement of this action, provements, which are still on the land. Are A waiver on the part of the plaintiffs of past the plaintiffs also entitled to recover these breaches of the condition cannot be construed into a walver of all right to future ob- tiff at the present time is a resident of servance and performance of it. The right Shawnee county, Kan.; that she has resided to a forfeiture was first insisted on and in said county and state for more than one brought to the knowledge of the defendants year last past, and plaintiff further says that by the commencement of this action. We from the time of her marriage to the defendthink the rights of the parties should be de- ant she has at all times treated him in an termined as of that date; that, under the affectionate manner, as a kind and loving facts as disclosed by the record and the wife; that the defendant, without any cause findings of the court, the plaintiffs were en- or provocation on the part of the plaintiff, titled to recover the specific property, or its has treated her with extreme cruelty; that value, measured as of that date; but if the he has sworn at and cursed her in the presdefendants desire to maintain a railroad ence of her friends and acquaintances; that across the lands, and to continue the use he has frequently called her a damned dirty thereof for railroad purposes, they should Dutch bitch; that his conduct has been such be permitted to retain the land, and also that she has lost her health, and that it is the improvements they have constructed impossible for her to longer live with him as thereon, on payment of the value of the his wife; and plaintiff says that the defendland, computed as of the date of the com- ant, without any cause on the part of the mencement of this action, with interest since plaintiff, did in the month of August, 1893, that time, without any charge on account of commence to pay attention to a certain lewd improvements made by the defendants there- woman by the name of Ella McFadden, and on. Cohen v. Railroad Co., 34 Kan. 158, 8 that from that time to the present he has at Pac. 138. There are no findings in the rec- divers times been guilty of committing adulord showing what this value was, nor has tery with the said woman." The petition the defendant indicated its desire to retain further alleged, among other things, that aftand pay for the land. The incompleteness er the 10th of February, 1893, the defendof the findings renders it necessary to direct ant paid plaintiff $600 from moneys collecta new trial of the action. The judgment ed by him from an insurance association; is therefore reversed for further proceed- that the defendant has collected from the ings, in accordance with the views above ex- Atchison, Topeka & Santa Fé Railroad Compressed. All the justices concurring.

pany $5,000 by way of compensation for injuries received by him while in the employ

of the company; and that, under an agree(54 Kan. 726)

ment between plaintiff and defendant, plainJOHNSTON V. JOHNSTON (two cases).

tiff is entitled to one-half of that amount. (Supreme Court of Kansas. March 9, 1895.) Plaintiff asked “that a restraining order be ActiOx For DIVORCE-PERMANENT ALIMONY- granted her by the district court, restraining DISPOSITION OF PROPERTY.

and enjoining the defendant from assigning, 1. Where an action is brought for divorce and alimony, alimony may be allowed as an inci

drawing, receiving, or in any way disposing dent to the divorce; and where the parties are in

of the money due to him, now in the hands of equal wrong, and a divorce is refused, the court the Atchison, Topeka & Santa Fé Railroad may make an order for the control and disposi- Company, or in the hands of any other pertion of the property of the parties, or either of them, as may seem proper.

son, corporation, or firm, or in the hands of 2. Where an action is brought for divorce

the receivers of the said railroad company, and alimony, and upon application of the plain- and that he be restrained from selling, transtiff the action for the divorce is continued for ferring, or disposing of any money, rights, trial, it is error for the court to render judgment for permanent alimony only. In such a case,

or property of any kind during the pendency permanent alimony is an incident to the divorce, of this action. The plaintiff prayed that she and should not be finally heard and determined

be granted a divorce from the defendant; while the action for divorce is pending. The divorce and the adjustment of property interests

that the bonds of matrimony heretofore exare not to be regarded as transpiring at differ- | isting between the parties to this suit be disent times, but as contemporaneous.

solved; that she have and recover of and (Syllabus by the Court.)

from the defendant five hundred dollars as Appeal and error from district court, Shaw. alimony pending the prosecution of this suit; nee county; X. T. Hazen, Judge.

and that she be awarded the sum of five Action by Eva L. Johnston against William thousand dollars as alimony in this action, L. Johnston. There was a judgment against together with attorney's fees, costs of this defendant for permanent alimony, and an suit, and all other proper relief." At the order directing his imprisonment for con- time of the filing of the petition a restraining tempt in failing to pay such alimony, and he order against the defendant was allowed as appeals and brings error. Reversed.

prayed for. Personal service of summons On the 15th of March, 1891, Eva L. John- was had on the defendant, and the restrainston commenced her action against the de- ing order, which was issued against the defendant, William L. Johnston, and alleged, fendant from disposing of his property, was among other things, that “the parties to this served at the same time. On the 25th of action are husband and wife; that they were April, 1894, the case was called for trial, the married at Diamondville, in the state of defendant being in default. The journal enPennsylvania, on July 2, 1890; that the plain- try of the trial recites that “this cause being submitted to the court by the plaintiff and for a new trial. Upon the hearing of these by the default of said defendant, and evi- motions defendant claimed that he employed dence being introduced, and the court, be- an attorney to attend to his case, and that ing fully satisfied in the premises, does, on the attorney had neglected to do so. On July application of the plaintiff, continue said 13, 1894, the defendant filed his answer to the cause as to a divorce for further hearing plaintiff's petition, containing a general de and determination; and upon said petition, nial. The case is still pending in the disand the evidence thereunder as for alimony, trict court upon the pleadings so filed. The finds for the plaintiff, and against the defend- defendant appeals to this court. He has also ant.” The court rendered the following judge filed his petition in error, and by agreement of ment: “It is therefore ordered and decreed the parties both cases were considered tothat said defendant pay to this plaintiff the gether. sum of $3,000 as her alimony immediately,

Waggener, Martin & Orr and W. P. Wagand that said plaintiff do have and recover

gener, for appellant. Edwin A. Austin and of and from said defendant the said sum of

H. L. Armstrong, for appellee. $3,000, and costs of suit taxed at $18.05, for which let execution issue. And it is further

HORTON, C. J. (after stating the facts). ordered and decreed that, if said defend

This was an action brought by Eva L. Johnant fail or neglect to pay to the plaintiff the

ston against William L. Johnston for divorce sum of money as herein decreed, an attach

and alimony. When the case was called for ment Issue for said defendant, directed to trial, on application of the plaintiff, the acthe sheriff of Shawnee county, commanding

tion, so far as it sought a divorce from the him to attach the person of said defendant, defendant, was continued for trial, and the and bring him before this court, and that he

case for divorce is still pending upon the peti. show cause why he should not be committed tion and answer, but the court proceeded, for contempt. And it is further ordered that,

in the absence of the defendant, to hear the if default be made in the payment of the case for alimony only, and rendered judg. sum of money provided for in this decree,

ment against the defendant, and in favor of and an attachment issue as herein provided, the plaintiff, for $3,000, with costs taxed at the court may, on the hearing of such attach

$18.05, and directed execution. The judg. ment, make such further orders or decree

ment was not only a persoual one against the herein as may at the time be proper." On defendant, which he was required to pay the 28th of April, 1894, upon application of Immediately, but subsequently he was arthe plaintiff, an attachment was issued for the rested and imprisoned for failing to pay the defendant, requiring him to show cause why same. The judgment cannot be regarded as he should not be committed for contempt in having been rendered for temporary alimony failing to comply with the decree of the

or the expenses of the suit. In the petition court rendered on the 25th of April, 1894. $500 only was asked for alimony pendente Subsequently the defendant was arrested, To the suggestion that the judgment and brought into court, and on the 9th of is not a final order, it is sufficient to remark June, 1894, the court made the following or- that after it was rendered the defendant had der: "It is by the court ordered that the de- no alternative but immediate payment, imfendant herein appear in court on the 26th prisonment, or appeal. It will not avail day of June, 1894, at 2 o'clock p. m., and that him, so far as this judgment is concerned, he give bond in the sum of two thousand if the court makes "a further order or dedollars, conditioned according to law, for cree" in the case, if execution may issue his appearance at that time, and that said

and be shall be imprisoned. If this judg. bond and sureties be approved by the clerk ment cannot be reviewed, then any judgment of this court.” On the 26th of June, 1994, the rendered upon the merits of a case, and comparties appeared, and, with the consent of mitting a defendant to jail until he pays the court, the further hearing in the case was the amount thereof, is conclusive, and bepostponed until the 3d of July, 1894. On yond the review of the appellate courts, until the 20 day of July, 1894, the plaintiff appear- it is satisfied by payment or imprisonment. ed in court by her attorneys, and, with the Civ. Code, $8 542, 543. Upon the petition, if consent of the court, remitted $1,000 of the the whole case had been regularly tried upjudgment for alimony rendered on April on its merits, permanent alimony might have 25, 1891. On the 3d day of July, 1894, the been allowed as an incident to the divorce, court found the defendant guilty of contempt or if, upon the trial, the parties appeared to "for failing, refusing, and neglecting to com- be in equal wrong, the court might, for good ply with the order of the court made on the cause, have made an equitable order for the 25th of April, 1894.” Thereupon the court di- control and disposition of the property. Civ. rected that the defendant be committed to Code, $$ 639, 646; Birdzell v. Birdzell, 33 the jail of Shawnee county until he comply Kan. 133, 6 Pac. 561; Busenbark v. Busenwith the order made on the 25th of April, bark, 33 Kan. 572, 7 Pac. 245. “When & di1894, as modified on the 2d of July, 1891. vorce shall be granted by reason of the fault Subsequently motions were filed by the de- or aggression of the husband, the wife shall fendant for vacating the decree of the court be restored to her maiden name if she s allowing alimony to the plaintiff, and also 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, 8 616. Alimony may be allowed in a separate action without a di

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. 312: "The divorce, and the adjustment of property interests, are not to be regarded as transpiring at different times, but as cotemporaneous.” Damon 7. 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, $$ 613, 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.

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.

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 inntil 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; 0. 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

(55 Kan. 17)



1. Where a corporation is heavily indebted to its officers and stocklolders, and such oflicers

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