the rest of the community, such fact will not be sufficient to constitute a cause of action in favor of the party complaining. The loss to the public consists in the inconvenience in, or the obstruction to, the use of the highway for travel, differing in degree, but not in kind, according to the frequency of use which proximity of residence or peculiarity of occupation may impose. For this no individual can sue, but must resort to such public actions as are given by law."

To the same effect see Venard v. Cross, 8 Kan. 248, supra; Trosper v. Com'rs of Saline Co., 27 Kan. 391; Ruthstrom v. Peterson, 72 Kan. 679, 83 Pac. 825; Borton v. Mangus, 93 Kan. 719, 720, 145 Pac. 835, L. R. A. 1915D, 142.

In our opinion, the plaintiff has failed to bring himself within the rule so frequently declared in former decisions, and has not succeeded in showing that he sustains any peculiar injury or damage different from that suffered by the public; that the most that can be said is that he suffers to a greater extent the same kind of annoyance as does the public at large. It seems apparent that the view of other persons residing on the same side of the street must have been obstructed in the same way, though probably not to the same extent, as that of the plaintiff.

If the judgment can be sustained, then other suits of the same kind by persons suffering to a less extent the same annoyance could be successfully prosecuted. The avoidance of a multiplicity of actions was one of the reasons for the adoption of the rule denying to private individuals the right to maintain a suit to enjoin a nuisance which is public in its nature.

The judgment must be reversed, with direction to enter judgment for the defendant. All the Justices concurring.

(97 Kan. 77)

BLOUNT v. ÆTNA BUILDING & LOAN ASS'N. (No. 19831.) * (Supreme Court of Kansas. Jan. 8, 1916.)

and delivered to him when the mortgage was paid. Evidence was offered in support of the further defense that the correspondence be tween the plaintiff and the defendant misled the latter as to the particular mortgage the plaintif desired released. Held, it was error to take the case from the jury and to render judgment for the plaintiff.

312.]

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 930-941; Dec. Dig. 3. MORTGAGES 312-FAILURE TO RELEASE -ACTION FOR PENALTY-AMOUNT OF ATTORNEY'S FEES-QUESTION FOR JURY.

It was error for the court to refuse to submit to a jury the question of the amount of attorney's fees in such an action.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 930-941; Dec. Dig. 312.] Appeal from District Court, Montgomery County.

Action by Earl E. Blount against the Etna Building & Loan Association, a corporation. From judgment for plaintiff, defendant appeals. Reversed, and new trial

Sub

The real estate covered by the mortgage consists of two residence lots in the city of Coffeyville which belonged formerly to J. W. and Mary Blount, and upon which the defendant at different times made building loans. The first of these loans, which covered but one of the lots, was made in 1898, and was paid at maturity. On March 29, 1905, the defendant made another loan, covering both lots, which was paid in April, 1913. sequently, on October 27, 1913, J. W. and Mary Blount conveyed the property to the plaintiff, who is their son. The petition alleged that on October 28, 1913, the plaintiff through his attorney sent the defendant a registered letter, requesting that the mortgage made in March, 1905, be released of Notwithstanding the provisions of section 5202, Gen. St. 1909, which requires that when record, but that defendant had failed to a mortgage on real estate has been paid, the comply with the request within 30 days. mortgagee or his assignee shall cause satisfac- The petition prayed for the statutory penaltion thereof to be entered of record "without ty and attorney's fees. The answer containcharge," the parties may bind themselves by an agreement that the mortgagee shall execute and deliver a release when the mortgage is paid, which shall be recorded at the expense of the mortgagor.

(Syllabus by the Court.) 1. MORTGAGES 309-RELEASE-EXPENSE OF RECORDING.

ed a general denial, but alleged that the mortgage referred to in the petition was given to secure a loan made upon the written application of J. W. and Mary Blount, [Ed. Note. For other cases, see Mortgages, in which they agreed as part of the considerCent. Dig. §§ 864, 870, 899, 900, 902-905, 907-ation of the loan, that in case the mortgage 912; Dec. Dig. 309.] was paid before their stock in the association matured, they would pay for filing the In an action by the grantee of the mort-release of the mortgage, and that in fact gagor to recover the statutory penalty, the mort- the mortgage was paid before the maturity gagee interposed as a defense an agreement beof their stock. The answer also set out a tween the parties to the mortgage that the cost of recording the release should be paid by the copy of a second letter received by the demortgagor, and that a release had been executed fendant from plaintiff's attorney, dated

2. MORTGAGES 312-FAILURE TO RELEASE— ACTION FOR PENALTY-DEFENSE.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

entered of record without charge," and the statute further provides that any mortgagee or assignee who shall refuse or neglect to do so "shall be liable in damages to such mortgagor, or his grantee or heirs in the sum of one hundred dollars, together with a reasonable attorney's' fee," which may be recovered in a civil action. It appears that when the borrower received the release at or

November 8, 1913, which it was alleged led the defendant to understand and believe that the only mortgage plaintiff desired released was the one made in 1898, and in compliance with the request as defendant understood it, a release had been at once executed and forwarded by mail to plaintiff, which he accepted without any request that defendant pay for recording the same. At the trial plaintiff admitted that when the indebted-about the time the mortgage was paid in ness secured by the mortgage was paid in April, 1913, defendant executed and delivered to his father a release which his father handed to him October 27, 1913, when the title was conveyed to him, and that no demand til October, when he delivered it to the plainwas made on defendant to record a release until October 28, 1913. The letter of that date, after requesting information concerning an abstract of title to the property, concludes as follows:

*

"I also notice that the mortgage made by you on March 12, 1898, * * in the sum of four hundred dollars on lot six block four * * has not been released of record although the same has been paid. Please have the same released of record. I also notice that your mortgage under date of March 29th, 1905, given by J. W. Blount and wife Mary A. Blount in the sum of four hundred dollars covering lots five and six, block four, Gaverick's addition to the city of Coffeyville, Kansas, has not been released of record. Please have this mortgage released of record."

On October 30th, the defendant replied with a letter which, so far as it refers to the release, reads:

April, 1913, he accepted it with no question as to any duty resting upon defendant to record it or to advance the fee for recording it. On the contrary, he kept the release un

tiff along with the deed to the property. When the action was commenced, plaintiff had it in his possession and, according to the evidence, could have recorded it at the trifling expense of 30 cents. The statute, as well as one providing a similar penalty for neglecting to release a chattel mortgage, has been declared penal. Thomas v. Reynolds, 29 Kan. 304; Parkhurst v. National Bank, 53 Kan. 136, 35 Pac. 1116. Being penal, it must of course be construed strictly. 27 Cyc. 1426. This court has recognized certain conditions or limitations upon the strict and literal enforcement of its provisions. Thus, in the Parkhurst Case, supra, an instruction was approved which charged the jury that if defendant in refusing to release any of the mortgages acted in good faith and upon an honest belief that the same had not been paid, plaintiff could not recover the penalty. In the opinion it was said:

"In reply beg to advise that these mortgages were released by this association and the orig inal mortgage and notes were sent out at the time the loan was paid, all the mortgages re- "If the mortgagee refuses to satisfy the mortferred to in your letter have been released by gage from mere inadvertence, inattention, or inthis association and we presume the borrower difference, the penalty may be incurred. To be has failed to record them. Under our contract relieved from the penalty, there must be a real for loan the cost of recording release is borne controversy as to payment, and an honest doubt by the borrower but we would be glad to ex- concerning the same on the part of the mortecute such releases as are necessary to straight-gagee." Page 138 of 53 Kan., page 1117 of 35 en their title upon receipt of the abstract for Pac. our assistance.'

[2] From the pleadings and the letters On November 8, 1913, plaintiff's attorney written by the defendant to plaintiff's atreplied as follows:

"I herewith inclose the abstract to lot 6 block

4 Gaverick's addition to Coffeyville, together with a satisfaction of mortgage to be executed by the secretary of the company in order that this abstract may be brought down to date and the title to this property cleared of record. The mortgage that we wish released is shown on page nine of the abstract. Please handle this matter as promptly as possible and return the abstract to me. Yours truly." (Italics ours.) Four days later defendant returned the abstract, together with a release of the mortgage specifically mentioned in the last letter of plaintiff's attorney. Soon after the expiration of 30 days from the date of the first demand plaintiff brought this action.

torney, it can hardly be said that defendant was neglecting to satisfy the record through inadvertence, inattention, or indifference, or that it was not acting in good faith in the honest belief that under its contract with the borrowers its only duty in the premises

was to execute and deliver to them a sufficient release, and that the expense of recording it should be borne by them. The trial court, however, at the conclusion of the evidence, discharged the jury, and decided as a matter of law that no defense to the action had been established. This was error which requires reversal. Moreover, there was evidence to warrant the submission to the jury of another defense raised by the answer. If [1] The statute (section 5202 of the Gener- the letters written by plaintiff's attorney are al Statutes of 1909) provides that when any read together, there is at least some ground mortgage of real property has been paid, it for the inference that defendant was intenshall be the duty of the mortgagee or his | tionally lulled into the belief that all plainassignee, within 30 days after demand, to tiff desired was the execution of a release of cause satisfaction of such mortgage "to be the old mortgage. The statute of limita

tions barred an action to recover a penalty | judgment for plaintiffs, defendant appeals. for failure to record that release, and plain- Affirmed. tiff first obtained it and was satisfied to pay for recording it, and immediately sued to recover a penalty for failure to record the one to which the letter of November 8th makes no reference.

The judgment is reversed, and a new trial view of the fact that the land was sold at ordered. All the Justices concurring.

erty was worth $3,500, there was no contract that they should sell it at that price, and that the payment of commission was not made upon the condition that such a sale would be made.

The Jury upon sufficient testimony found that the oral contract made between the parties was substantially in accord with the testimony of the plaintiffs. The finding of the jury as well as the verdict appear to be abundantly supported by the testimony, and no substantial question of law is presented for consideration.

finding that the deeds under which John P. Hoffhine claims title were delivered.

The grantor had been married three times, and there were three sets of children. On December 3, 1888, he and Mrs. Hoffhine, stepmother to the children of the former marriages, agreed upon a separation. She was given the custody of her infant child and relinguished all her interest in the farm in consideration of the payment of $1,000. They went before a notary, where they executed and acknowledged a warranty deed conveying the farm to John P. Hoffhine, at that time a minor of about 19 years of age. Mrs. Hoffhine at the same time executed a quitclaim deed. Mr. Hoffhine paid her $700 in money, and gave her his note for $300, which

An instruction was asked by defendant based upon the theory of a partnership, but neither the pleadings nor the evidence warranted the submission of that question. The judgment of the district court will be was on the same day signed also by the son. affirmed. All the Justices concurring.

(97 Kan. 26)

ELLIOTT et al. v. HOFFHINE et al. (No. 19786.) (Supreme Court of Kansas. Jan. 8, 1916.)

(Syllabus by the Court.)

DEEDS 208-DELIVERY-PROOF.

A father executed and acknowledged a warranty deed conveying a farm to a minor son aged 19 years, and told the notary to keep the deed until he called for it, that he was not going to record it. Less than four weeks later during his last illness, he directed his brother and the grantee to get the deed and record it, which they did a few days afterward and following his death. During his illness he stated that he intended the grantee to have the farm because he believed his son, who was the eldest of the children, would keep the family together and pay off an existing incumbrance. Held sufficient to sustain a finding of the trial court that the deed was delivered.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 625-632; Dec. Dig. 208.]

Appeal from District Court, Washington, County.

Suit for partition by Ida May Elliott and others against William I. Hoffhine and others. From judgment for defendants, plaintiffs, appeal. Affirmed.

A. E. Lybolt, of Kansas City, Mo., and Edgar Bennett, of Washington, Kan., for appellants. J. R. Hyland, of Washington, Kan., for appellees.

PORTER, J. This is a suit for partition. The parties are children and heirs-at-law of John M. Hoffhine, who died intestate December 29, 1888, owning a farm of 160 acres, which he occupied with his family as a home. The plaintiffs appeal from a decree adjudging that defendant John P. Hoffhine, one of the sons of the deceased, owns the entire premises. The facts have been found separately by the trial court, and while plaintiffs have argued a member of questions, the only one which we think is necessary to consider is whether there was evidence to support the

After his father's death, which occurred a few weeks later, John paid his stepmother the note. The evidence to establish a delivery of the warranty deed was substantially as follows: When the notary had taken the acknowledgments he said the deed was ready to be recorded. The grantor said: "Well, you just keep it until I call for it; I am not going to record it." The notary then placed both deeds in his safe, where they remained until after Mr. Hoffhine's death, which occurred less than four weeks later. During his last sickness Mr. Hoffhine stated to different persons that he intended to convey the land to John, and that he thought John would be able to pay off the indebtedness and keep the family together. There was evidence, too, that a few days before his death he said to his brother: "You and John go and get those deeds and have them recorded." Immediately after his death, John and his uncle, to whom this statement was made, got the deeds from the notary and had them recorded.

lish a delivery of the deeds, it should be While not tending in any respect to estabsaid here that after the death of the father, the family remained on the farm, the younger children were kept in school, and all as

sisted in the usual farm work. John was the eldest and took charge of affairs. From the receipts of the place he paid the taxes and an old mortgage that existed on the farm, and kept the family together until the children came of age.

The general rules which control in determining what is necessary to constitute the delivery of a deed have so frequently been considered in recent cases that we shall not undertake to restate them nor to review the wilderness of cases involving the application of those rules to particular facts. As was said in Alward v. Lobingier, 87 Kan. 106, 123 Pac. 867, the general rules which govern in cases of this kind "do not admit of universal application," and "each case depends to some extent upon its own peculiar circumstances." Where manual delivery is relied upon, the conclusive test is whether the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 P.--15

cus, malt, vinous, fermented, or intoxicating
liquors, does not state an offense.
Liquors, Cent. Dig. §§ 230-233; Dec. Dig.
216.]

[Ed. Note.-For other cases, see Intoxicating

2. HABEAS CORPUS 30-RIGHT TO REMEDY -DEFECTIVE INFORMATION.

A writ of habeas corpus will not issue to release one from the custody of an officer who holds the petitioner under a warrant issued on an information which does not state any offense under the laws of this state, where by amendment the information can be made to state an ofof any kind of the court in which the informafense, and where the petitioner asks no relief tion is filed.

[Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. 30.] Original proceedings in habeas corpus by Ed McKenna. Writ denied.

er.

Ferguson & Dierks, of Wichita, for petition-
L. C. Kelley, of Newton, opposed.
MARSHALL, J. This is an original pro-

grantor relinguished "the right to the imme. diate control of the deed." 87 Kan. 108, 123 Pac. 868. If no further evidence of delivery had been offered except to show what occurred in the presence of the notary, the authorities cited by plaintiffs would tend strongly to support their contention. The direction to the notary not to record the deed but to hold it until the grantor called for it indicates that he had no intention at that time to relinquish the right to the immediate control of the instrument, but, on the contrary, that he intended to and did retain the right of control; that if at any time thereafter he had changed his mind, he could have called for the deed and destroyed it. But there was further testimony showing that a few days before his death he directed his brother to go and get the deed and record it. That this direction was not carried out until after his death does not affect the situation. There was at least evidence to support the trial court's finding to the effect that he had di-ceeding in habeas corpus. The petition for vested himself of all control over the instru- the writ alleges that the petitioner is rement and intended from that moment it strained of his liberty by the sheriff of Harshould pass out of his control, and if this vey county upon a warrant issued out of the district court of that county on an informais true there was a legal delivery. Besides, the grantee was his son and a minor, and tion filed in that court charging: all the circumstances of the case the father's statements during his illness, showing an intention to complete the conveyance so that the son should have the farm and keep the children together-were matters to which the trial court evidently gave due consideration. Since the title to the real estate passed immediately by the conveyances to John, the other questions urged by the plaintiffs go out of the case. His ownership is not affected by the character and extent of his possession, the knowledge or notice other members of the family had that he claimed title, or his absence from the state. The father saw fit to give the place to him upon considerations which were deemed sufficient, and, which are not open to inquiry.

"That on the 12th day of October, 1915, at the city of Newton, county of Harvey, and state of Kansas, said defendant, Ed McKenna, did then and there unlawfully sell and barter certain liqbeing an imitation of beer, having the color of uids, to wit, "Temp-Brew,' the said "Temp-Brew beer, foaming like beer, having a slight smell like beer, and that at the time of said sale the said Ed McKenna drew or pumped said 'Temp-Brew' from a cask or half barrel, and that said cask or half barrel resembled a beer keg, and that said "Temp-Brew,' when drawn from said cask or barrel into a glass, resembled beer."

[1] 1. The information is defective in that it does not charge that the liquors sold were either spirituous, malt, vinous, fermented, or intoxicating liquors. The addition of either one or all of these words to the information will make it sufficient to sustain a judgment of conviction. We have no statute prohibiting the sale of liquors that are imitations of beer, that have the color of beer, that foam like beer, that smell like beer, or that are sold in a manner similar to that in which beer is sold. An information under the intoxicating liquor law of this state must charge an offense named in the statute.

[2] 2. This court will not release, on habeas corpus, one who is held under a warrant issued on an information that does not charge any offense, before an application of any kind is presented to the court issuing the warrant. Many informations are defective and must be amended before the defendant can be properly placed on trial on the charge attempted to be set out therein, but habeas corpus is not the means resorted to for the purpose of protecting the defendant. Section 699 of the Code of Civil Procedure (Gen. St. 1909, § 6295) prohibits habeas corpus where the one applying for the writ is