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Error from District Court, Cowley Coun- | 83, 22 Pac. 988. It is also settled that a ty; C. L. Swarts, Judge.

judgment without notice is a nullity and Action by William M. Taylor against Caro- open to attack collaterally. Rogers v. Clemline L. Crapster. Judgment for plaintiff, and mans, supra; Kelso v. Norton (Kan.) 87 defendant brings error. Reversed.

Pac. 184. The statute which prescribes the

kind and manner of notice to be given in Hackney & Lafferty, for plaintiff in error.

such cases is found in section 2992, Gen. G. H. Buckman and Grant Stafford, for de

St. 1905, which reads: "The court shall refendant in error.

quire notice of the petition, and of the time

and place of hearing the same, to be given GRAVES, J. This action was commenced for such length of time and in such manner in the district court of Cowley county, by as the court may see proper." The order the defendant in error, May 14, 1903, to made by the court in this case reads: "It quiet his title to the real estate in contro

is ordered that said petition come on for The plaintiffs in error claim to own

final hearing on the 20th day of October, A. the land, and in a cross-petition have asked

D. 1883, at the hour of 10 o'clock a. m., at for possession thereof and a judgment against

the probate courtroom in the county aforethe defendant in error for rents and profits. said, the said day being one of the days of Soranus L. Brettun, from whom all parties

the October, 1883, term of said court, and claim title, owned the land in question, and that said executors notify the heirs at law at his death disposed of the same by will. and all others interested in the pendency He devised a life estate therein to his

of said petition, and the time and place set widow and two grandchildren, Brettun

for the hearing thereof (and, unless the conCrapster and Caroline L. Crapster, with re

trary be made to appear, an order will be mainder in fee to the children of his said | granted for such sale), by causing to be grandchildren. The plaintiffs in error, Caro

served personally upon Brettun Crapster and line L. Crapster and Bretta V. Crapster, are

Louis C. Bangs, sole heirs at law (besides minor children of said Brettun Crapster, and

said executors of said decedent, and both of Milton A. Bangs, Margaret E. Bangs, Ruth

said heirs being residents of Cowley County, T. Bangs, and Phyllis G. Bangs are minor

Kansas), a true copy of their petition herechildren of Caroline L. Crapster, who mar

in filed, together with notice in writing of ried A. C. Bangs. October 11, 1883, the ex

the time and place where the same will be ecutors of the will of Soranus L. Brettun,

heard. Service to be had at least three filed a petition in the probate court, ask

days prior to the time herein appointed for ing for an order to sell the real estate in

such hearing in said county." The order controversy for the purpose of paying the debts of the testator. The order was granted,

approving service of notice reads: "It is

found that the heirs at law of said decedent November 9, 1883, the lands sold thereunder

have been served with a true copy of said and conveyed by the executors to one Kerns,

petition and notice of the time when the who sold to the defendant in error, and his

same would be heard; service being acknowltitle depends upon the validity of said sale. At the time the executors filed their pe

edged on the back of said original petition

by Brettun Crapster and Louis Bangs, the tition to sell, the plaintiff in error Milton A.

other heirs being the executors of said esBangs was about two months old. His co

tate, and said notice being in conformity to plaintiffs were all born since that time. No

the order of this court heretofore in that notice was given to Milton A. Bangs of the

behalf made and is good and sufficient." petition or proceedings to sell. No guardian or other person was served with notice as

It will be seen that, while the court orderhis representative, and no person appeared in

ed notice to be served upon the heirs at law his behalf; in fact, it was not supposed at

and all persons interested, it specifically the time that he had any right or interest designated the testator's grandchildren, Bretin the land.

tun Crapster and Mrs. Bangs, as the sole It is claimed by the plaintiffs in error that

heirs at law, ignoring entirely the interests of this failure to notify the infant, either per- this infant. Notice was served upon Mrs. sonally or otherwise, made the sale and Bangs, the mother of Milton A. Bangs, but conveyance under which the defendant in er- such notice did not inform her that the rights ror holds void as against the rights of the

of her children would be in any manner plaintiffs in error. Whether such sale is affected by the proceeding. It only called valid or not is the only question presented. her attention to her own interests therein. It is settled law in this state that the sale If she had been served with a notice as the of real estate in the probate court by ex- guardian of her child, a different question ecutors or administrators for the payment would be presented. When it is remembered of debts is an adversary proceeding, and no that the parents of this child knew of the tice to the owner of the land to be sold is pendency of these proceedings, it seems like jurisdictional. Mickel v. Hicks, 19 Kan. a useless formality to serve notice upon the 578, 21 Am. Rep. 161; Fudge v. Fudge, babe in his mother's arms. At the same 23 Kan, 418; Rogers v. Clemmans, 26 Kan. time, this babe, though helpless, had the legal 527; C., K. & N. Ry. Co. v. Cook, 43 Kan. capacity to be, and was, the owner of the

fee-simple title to the land about to be fold. His interests might have been best conserved by resisting the sale; but he was unable to determine what his rights were, or how they might be protected. Courts have always been especially careful and vigilant in protecting the property rights of infants, and the extreme youth and helplessness of this plaintiff in error, at the time of this sale, was sufficient to furnish a strong appeal to the conscience of the court to interpose in his behalf, at least to the extent of providing him with a competent guardian who would see that his interests were protected. Nothing of this kind, however, was done. The babe's rights were ignored. It is a fundamental and universal rule of law that no person can be judicially divested of any property rights without notice thereof and an opportunity to be heard, and this rule applies to old and young alike. In the case of Galpin v. Page, 18 Wall. (U. S.) 350, 21 L. Ed. 959, it is said: “It is a rule as old as the law that no one shall be personally bound until he has had his day in court, by which is meant until he has been duly cited to appear and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination. It is judicial usurpation and oppression, and never can be upheld where justice is justly administered.” The rights of this plaintiff in error Milton A. Bangs have been disregarded. They were not even considered. Therefore the sale complained of is void.

The judgment of the district court is reversed. All the Justices concurring.



BURCH, J. John Yentzer of Seneca county, Ohio, died leaving a will which was duly probated at his domicile, and which contains the following provision: "I give and devise to my daughter Elizabeth Yambert eleven hundred dollars aside of what she has already received and I appoint my sons Jacob Yentzer and Benjamin Yentzer after my death to purchase with the above eleven hundred dollars a home for the above named Elizabeth Yambert, to be for her use during her life and after her death the property to fall to her children." Benjamin Yentzer

. was appointed executor of the will. In 1878 he deeded to Elizabeth Yambert the land in controversy by a deed containing the following recitals: "This deed made in compliance and accompanied by a copy of the last will and testament of John Yentzer late of Seneca county, Ohio, deceased heretofore on the 14th day of November A. D. 1876. Admitted to probate court, and now on record in said probate court of which by Benjamin Yentzer his executor and in compliance with item four (4) of said will, does convey as specified in said deed to the said Elizabeth Yambert to be for her use during her life and after her death the property to fall to her heirs forever.

* To have and to hold the same to the only proper use of the said Elizabeth Yambert to be for her use during her life and after her death the property to fall to her heirs forever.” This deed was filed for record in the county where the land lies on March 7, 1885. Afterward one Durland acquired tax deeds of the property. In March, 1889, Elizabeth Yambert gave a general warranty deed of the land to Laura E. Lohmuller in consideration of $1,000 and support for the remainder of her life. After that Laura Lohmuller paid taxes on the premises. She is a grandchild of Elizabeth Yambert, but her mother, Saloma Michaels, daughter of Elizabeth Yambert, died before the death of John Yentzer occurred. After the conveyance to Laura E. Lohmuller Durland quitclaimed to her. Elizabeth Yambert died in 1902, leaving five children. Two of them conveyed their interests in the property to William Coates. In an action for partition brought in 1904 Coates was awarded twofifths of the land and the three children who had not conveyed, one-fifth each. Laura E. Lohmuller was allowed a lien for taxes. The court found that Benjamin Yentzer and Elizabeth Yambert intended that the deed of 1878 should carry out the purpose expressed in the will and intended that it should follow the wording of the will but that the word "heirs" was inserted by mistake instead of the word "children"; hence the deed was ordered to be reformed. Laura E. Lohmuller complains of this judgment.

The chief controversy relates to the interpretation of the will. It is said that Elizabeth Yambert was given $1,100 absolutely and unconditionally, that this clear bequest cannot

(74 Kan. 751)

LOHMULLER V. MOSHER et al. (Supreme Court of Kansas. Dec. 8, 1906.) WILLS-CONSTRUCTION ABSOLUTE DEVISE.

A provision in a will as follows: “I give and devise to my daughter Elizabeth Yambert eleven hundred dollars aside of what she has already received and I appoint my sons Jacob Yentzer and Benjamin Yentzer after my death to puchase with the above eleven hundred dollars a home for the above-named Elizabeth Yambert, to be for her use during her life and after her death the property to fall to her children"-does not express an absolute and unconditional gift of the sum of money named to Elizabeth Yambert, but requires its investment in real estate for her use during her life with remainder in fee to her children.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, $8 1379-1385.] (Syllabus by the Court.)

Error from District Court, Nemaha County; Wm. I. Stuart, Judge.

Action by Emma Mosher and others against Laura E. Lohmuller. Judgment for plaintiffs, and defendant brings error. Affirmed.

Wells & Wells, for plaintiff in error. Emery & Emery and P. L, Burlingame, for defendants in error,

be cut down by what follows; and that the the will sent prospective purchasers of the attempt to limit her interest in land pur- | land to the will to ascertain the true scope chased with her own money was nugatory. of the deed. Under these circumstances any The rule of law relied upon by the plaintiff grantee of Elizabeth Yambert took with noin error is well understood. It has been tice to the extent of her rights, and there stated in various ways. The form used in was no need of reforming the deed. Any the note to the case of McIsaac v. Beaton (37 error in that respect could not be prejudicial. Can. Sur. Ct.) 3 Am. & Eng. Ann. Cas. 615, After Laura E. Lohmuller had purchased is probably as satisfactory as any. "A clear the life estate in the land, her acquisition of devise or bequest will not be cut down by the Durland tax titles merely redeemed the other expressions or clauses contained in land from taxes. The words “fall to her chilthe will which do not, with reasonable cer- dren" in the will create by inartistic phrase a tainty, indicate the intention of the testator remainder in fee, the word "children" being a to cut it down." The authorities are collated word of purchase. in the note referred to. See Williams v. MC- The facts found by the district court are Kinney, 34 Kan. 514, 9 Pac. 265; McNutt v. sustained by the evidence, and its judgment McComb, 61 Kan. 25, 58 Pac. 965; Safe De- is affirmed. All the Justices concurring. posit Co. v. Stick, 61 Kan. 474, 59 Pac. 1082. Applying the rule to the will in question it immediately becomes becomes manifest that the

(74 Kan. 715) words following the first indication of a

MIRICK V. SUCHY. gift are not ambiguous, nor are they direc

BARRY V. SAME. tory merely, or precatory, or inferential in their intent. They are unequivocal, of equal

(Supreme Court of Kansas. Dec. 8, 1906.) authority with those going before, and so in

PARENT AND CHILD-TORTS OF CHILD-LIAseparably conjoined with those which precede


In an action against a father for damages that the expression of the testator's com- resulting from the setting out of a fire by his prehensive thought is not complete until the

minor sons, it is not a sufficient allegation of end of the sentence is reached. The testator

the parent's liability to allege that the sons,

"while they were engaged in his [the father's desired to add to what his daughter had al

business and for his benefit, and working for ready received. He set aside $1,100 for the him, purposely, carelessly, and negligently set out purpose. He gave that much more to her

a fire." It is necessary to allege, in substance,

if done in the absence of the father and without but not as cash. His sons Jacob and Ben

his direction, that the setting out of the fire jamin were to take the money and buy a

a service being rendered for the father, home for her. This home was to be for her or resulting from an act done in such service; use and benefit during her life: after her

in other words, that the fire was set out or

caused by an act within the scope of the emdeath the property so purchased to fall to ployment. her children. The purpose is as unmistak- [Ed. Note.-For cases in point, see Cent. Dig. able as if in stiff legal phraseology he had vol. 37, Parent and Child. $$ 146, 147.] appointed trustees, had ordered $1,100 in (Syllabus by the Court.) cash from liis estate to be paid to them, had ordered them to invest that sum in real es

Error from District Court, Rush County ; tate, suitable for a home for Elizabeth, and

Chas. E. Lobdell, Judge. then had charged the land so to be acquired

Actions by B. E. Mirick against John Suchy with an estate to her for life, with renainder

and by R. C. Barry against John Suchy. in fee to her children. It is impossible to

Judgments for defendant, and plaintiffs bring say that Elizabeth was to take $1,100 in cash

error. Affirmed. to spend as she pleased, or that, if her broth- Each of the above cases was commenced in ers purchased a home for her with the mon- the district court of Rush county on a petiey, she might, whenever she wished, deed it tion which is substantially the same as the away, as a gift or for a price, in fee simple other, except as to the name of the plaintiff, absolute. The case, therefore, is not one of the description and value of the property ala clear bequest, against which subsequent leged to have been destroyed by the fire, and expressions may not prevail, and the rule in- the amount of judgment prayed for. The voked is not controlling.

common defendant filed a general demurrer Other questions presented are less difficult to the petition in each action. The demurrers of solution. It is nothing to Laura E. Loh- were sustained by the court, each plaintiff muller that only one of the trustees carried elected to stand on his petition, and judgment out the provisions of the will, or that, in the was rendered against him for costs. Each execution of the trust, a consideration pass- plaintiff, as plaintiff in error, brings his case ed, the beneficiary having been satisfied. The to this court for a review of the ruling, and real estate in question did not belong to the all parties agree to submit the cases together testator and title to it did not pass by his as one. After a proper description of his will; hence it was not necessary that the property alleged to have been destroyed by' will be recorded in Nemaha county.

the fire, and setting forth the value thereof, The conveyance to Elizabeth Yambert ex- the petition in Barry's case, omitting the pressly limited her interest in the land to a prayer for relief and the signatures, is as life estate, and the reference in the deed to follows: “That on the said 30th day of


Barch, 1905, Joe Suchy and John Suchy, Jr., | have been necessary to enable them to build minor sons of the said defendant John Suchy, the fence. The argument is good; not so and under the age of 21 years, who resided the petition. Had the petition alleged that it at home with their father, and who worked became necessary to remove rubbish or brush for him and were under his care, manage- by burning it before the fence could be built, ment, and control, while engaged in the busi- and for that purpose the sons built the fire ness of their father, the said minor sons, and negligently allowed it to escape and working for his interests and for his benefit spread upon the plaintiff's premises, etc., the on his farm, situated in said Pleasantdale missing link would probably have been suptownship, in Rush county, Kansas, some dis- | plied.

plied. The liability of a parent for the act of tance from where the plaintiff's property a minor son rests upon the same basic facts hereinbefore described was located, while as the liability of a master for the acts of engaged in repairing a fence on the farm his servant, and does not result from the fact owned by their father, the said defendant, of the tort or act being purposely or willfullly while they were engaged in his business and done, but from its being done in doing the for his benefit, and working for him, purpose- master's or parent's business. If the act ly, carelessly, and negligently set out a fire complained of is the setting out of a fire, on their father's farm, and through their it is not a sufficient pleading of liability that failure and neglect in setting out the said the servant or child was engaged in the busifire, and in not taking proper care and means ness of the master or parent; but it must to control the said fire which they had will- appear that the setting of the fire was a part fully, purposely, carelessly, and negligently of that business, or resulted from some act set out on their father's farm, the said fire done in the performance of such business. spread from their father's farm to the real The act must be the result of doing the busiestate owned by the said plaintiff, and de- ness of the master or parent, and not an indestroyed all of the aforesaid property belong- | pendent act done in a cessation, even momenting to the plaintiff, and of the value of ary, of such business while engaged therein. $870.50.”

Hudson v. Railway Co., 16 Kan. 470; 38 Am,

St. Rep. 370, note; Am. & Eng. Encyc. of H. L. Anderson and G. R. McKee, for

Law, 1057. plaintiff in error. S. I. Hale, for defendant

The judgments are affirmed. All the Jus

. in error.

tices concurring.

SMITH, J. (after stating the facts). Do the facts as stated render the defendant, the

(38 Colo. 398) father of the boys, liable for the damage re

COLORADO LUMBER, LAND & IMPROVEsulting from the fire? The trial court, we

MENT CO. V. DUSTIN et al. think correctly, answered, “No.” It is con

(Supreme Court of Colorado. Dec. 3, 1906.) ceded that the father is not liable for tlie

FRAUDS, STATUTE OF – WHO MAY INVOKE tortious act of his sons by reason simply of STATUTE. the relationship, nor by reason

by reason of their Where plaintiff performed services for deminority, nor because they lived at home

fendant under an oral contract whereby he was with him and worked for him and were under

to be paid in land, he could not invoke the stat

ute of frauds, and recover judgment on an imhis care, management, and control. It is

plied assumpsit, notwithstanding that defendant contended, however, that the further allega- was willing to perform specifically. tion that "the minor sons [naming them), * * * while engaged in repairing a fence

Appeal from El Paso County Court; James

A. Orr, Judge. on the farm owned by their father, the de

Action by F. W. Dustin

W. Dustin and another fendant, while they were engaged in his busi

against the Colorado Lumber, Land & Imness and for his benefit, and working for him, purposely, carelessly, and negligently set out provement Company. From a judgment in a fire, * * * and in not taking proper

Refavor of plaintiffs, defendant appeals.

versed. care and means to control the said fire,” does state facts which render the father liable. This action was originally brought before An essential ingredient of liability is lacking, a justice of the peace by Charles Clark to viz.: That the setting out of the fire was recover for certain work performed by him within the scope of their employment; that for appellant. From a judgment in its favor the setting out of the fire was the act of the for costs, an appeal was taken to the counfather, by his sons as his agents, in the same ty court. In that court the appellees were sense as was the building of the fence by substituted as plaintiffs. The cause was them his act. No connection is shown be- tried to a jury. There was no dispute as to tween the father's work of building the fence the performance of the work or its value, and the act of setting out the fire. Had it the only question in dispute being as to the been alleged that, while building a fence for contract under which the services were reitheir father, the sons shot the plaintiff's dered. The defendant, upon the trial, ofhorse, the lack of connection between the fered to prove an oral agreement with Clark, two acts would only be more apparent.

whereby he was to receive land in part payIt is urged that the setting of the fire mayment for his services. Upon objection or plaintiffs, the court refused to permit Mr. Mc- formed under such a contract, he cannot reFarlane, the manager of the company, to cover for what he has done, unless the other testify in regard to the terms of this agree- party insist upon the statute, and refuse to ment, whereupon the defendant made a perform. This is too obviously just to reformal offer to prove "an oral contract with quire comment, and to disregard it would the plaintiff whereby plaintiff was to per- do violence to every leading principle. The form certain services and the defendant was contract cannot be considered void so long to give him land in payment for them, the as he, for the protection of whose rights choice of the land to be made by the plain the statute is made, is willing to treat and tiff at his option; and that the defendant

and that the defendant, consider the contract good.” Under this stands ready and willing to perform its part obviously just rule, the defendant should of the contract.” This offer was rejected, have been permitted to introduce the eviand thereupon the court instructed the jury dence offered, and to show, if it could, that to return a verdict in favor of plaintiffs för the plaintiffs were not entitled to recover a the sum of $87.25. A motion for a new trial money judgment for the services rendered. was overruled, and judgment rendered for The error of the court in excluding the that amount. To reverse this judgment, the

evidence offered by the defendant necessicompany brings this case here on appeal.

tates a reversal of the judgment.

Reversed. Sheafor & Dolman, for appellant.

GABBERT, C. J., and BAILEY, J., concur. GODDARD, J. (after stating the facts). The question for our determination is whether the court erred in excluding testimony tending to prove the oral agreement relied on

(38 Colo. 115) by defendant to defeat à recovery of the


ROPE CO. money judgment for services rendered in pursuance of such agreement; in other (Supreme Court of Colorado. Dec. 3, 1906.) words, whether the plaintiffs were entitled 1. APPEAL--REVERSAL - PLEADINGS-AMEND

to invoke the statute of frauds to avoid the MENT. obligations of the oral agreement under

It having been determined on a prior ap

peal that evidence offered by defendant to which the labor was performed, and recover

prove an estoppel against plaintiff was inadtherefor upon an implied assumpsit, notwith- missible in the absence of a piea, defendants standing the defendant is willing to carry out were not entitled to amend their answer by the agreement on its part.

pleading such estoppel, where no application

for leave to so amend was made until the close We think it is clear that this may not be

of the testimony on retrial. done. The party to be charged may avail 2. CORPORATIONS - FOREIGN CORPORATIONS — himself, if he so elect, of the protection of DOING BUSINESS WITHIN STATE-RIGHT TO

SUE. the statute, if its requirements have not been

Laws 1897, p. 157, c. 51, providing that complied with, as a defense to an action upon

no foreign corporation shall have or exercise an executory oral contract, or he may waive any corporate powers or be permitted to do the protection of the statute, in which event business within the state until the required fee the contract would be perfectly good against

shall have been paid, did not prohibit a foreign

corporation from suing to protect its property him. But a third party cannot escape his or other rights, or from acquiring personal obligations growing out of such a contract property in the state until such fees had been by denying the obligation of the contract on

paid. the party to be charged thereby. Browne on

[Ed. Note.--For cases in point, see Cent. Dig.

vol. 12, Corporations, $82527, 2544.] the Statute of Frauds (5th Ed.) $ 135. It

3. TRIAL INSTRUCTIONS APPLICABILITY TO has been uniformly held that where a party

EVIDENCE. has rendered services, or paid money, in con- Where, in an action to recover property sideration of an oral contract for purchase levied on, defendants failed to deny that the of land, he cannot rescind such contract and

property was of the value of $2,500, as alleged

in the complaint, and the proof showed that it recover for such services, or the money paid,

was worth more than that sum, the court was unless the other party insists upon the stat- justified in charging that such was its value. ute, and refuses to perform it on his part. [Ed. Note.-For cases in point, see Cent. Dig.

vol. 46, Trial, $$ 432-434.] Among the numerous authorities to this effect, see the following: Shaw v. Shaw, 6 Vt.

Appeal from District Court, Teller County; 69; Philbrook v. Belknap, 6 Vt. 383; Ab

William P. Seeds, Judge. bott v. Draper, 4 Denio (N. Y.) 51; Crabtree

Action by the A. Leschen & Sons Rope y. Welles, 19 Ill. 55; Cobb v. Hall, 29 Vt.

Company against W. E. Craig and another. 310, 70 Am. Dec. 432; Day V. Wilson, 83

From a judgment in favor of plaintiff, deInd. 463, 43 Am. Rep. 76; Coughlin v. Knowl

fendants appeal. Affirmed. es, 7 Metc. (lass.) 57, 39 Am. Dec. 759; Gammon y. Butler, 48 Me. 341. In Shaw v.

R. G. Withers, for appellants. Chas. ButShaw, supra, it is said: "The statute ap

ler, for appellee. plies only to executory contracts, not to those in whole or ini material part executed. BAILEY; J. This action was brought in Therefore, when one party has partly per- 1898. The first trial resulted in a judgment

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