presumed that the legislature would intentionally exempt crops raised by the labor of the owner of the land, and at the same time subject to execution those raised by a tenant entitled to a share, only, for his labors. However much we may disapprove of the policy of the law, we are constrained to hold that the growing wheat attached in this case was subject to levy, and to affirm the judgment. All the justices concurring.

(52 Kan. 371) NORWEGIAN PLOW CO. v. MUNGER et al. (Supreme Court of Kansas. Dec. 9, 1893.) ACTION ON NOTE-EVIDENCE-NOTICE OF EQUITABLE DEFENSE.

1. Immaterial errors, not prejudicial to the rights of the defeated party, are no ground for a new trial.

2. Where a banker doing business in this state, having in his charge collections for a corporation located at Dubuque, Iowa, corresponds through the mails with such corporation about the notes and orders in his hands for collection, and in reply to his letters receives through the mails, from Dubuque, Iowa, answers to his letters purporting to come from the company, and dictated by its secretary, but written with a typewriter, held, such letters were properly received as prima facie evidence, as having come from the company.

3. A corporation which receives a note, before its maturity, from a person acting as its agent, and having attached thereto the following memorandum: "Accept order on Borders Town Company, and turn note over to J. J. Munger," is charged with notice of the equities of the makers, who agreed with the person acting for the company that, upon the delivery of an order of the town company of the amount of the note, the note was to be returned to the makers.

(Syllabus by the Court.)

Error from district court, Finney county; A. J. Abbott, Judge.

Action on a promissory note by the Norwegian Plow Company against John J. Munger and Charles S. Desky. There was judgment for defendant Munger, and plaintiff brings error. Affirmed.

The other facts fully appear in the following statement by HORTON, C. J.

This was an action brought on the 20th day of December, 1888, by the Norwegian Plow Company, upon a promissory note for $325, due 30 days after date, executed by John J. Munger and Charles S. Desky to one J. J. Johnson, and by him indorsed to the Norwegian Plow Company. Munger answered, admitting that he signed the paper sued on, with following memorandum ΟΙ indorsement upon the note: "Accept order on Borders Town Company, and turn note over to J. J. Munger," but denied that there was any consideration for his signing or delivering the same, and set up that the note was given in lieu of an order to be issued by the Borders Town Company, and to be delivered in lieu of the note. The trial was had before the court without a jury, and upon the findings of facts and conclusions of law the court rendered

judgment in favor of Munger, and against the plow company, from which judgment this appeal is prosecuted by the company.

H. R. Boyd, for plaintiff in error. Hopkins & Hoskinson, for defendants in error.

HORTON, C. J., (after stating the facts.) Numerous errors are alleged, but, as many of them are trivial and unimportant, we refor to three only.

1. It is insisted that the trial court erred in permitting agency to be shown by the declarations of Mr. Bish, an alleged agent. This was in no wise prejudicial, because, although Mr. Bish was the assistant cashier of the First National Bank at Garden City, yet he is the party who received the note from Johnson, the payee, in the presence of John J. Munger, with the following memorandum or indorsement attached thereto: "Accept order on Borders Town Company, and turn note over to J. J. Munger." Whether he was agent of the Norwegian Plow Company is immaterial. He acted as such agent, and the company received the note with the memorandum attached. Therefore, it accepted the note with full notice of the conditions upon which it was given.

2. It is next insisted that the trial court erred in admitting in evidence two letters from the Norwegian Plow Company. It appears from the record that Mr. Patton was officially connected with the First National Bank at Garden City, and that, as an officer of the bank, he had collections to make for the company. He corresponded through the mails with that company, which was located at Dubuque, Iowa, relative to the $325 warrant or order of the Borders Town Company referred to in the memorandum. In answer he received the letters by mail purporting to come from the company, and dictated by C. W. Mitchell, as the secretary of the company, but written with a typewriter. Under these circumstances, there was a sufficient identification of the letters to permit them to be introduced as prima facie evidence.

3. It is further insisted that the tender of $325 and interest, in an order of the Borders Town Company, was not sufficient for a return of the note. The note was dated November 3, 1887. It was due 30 days after date. This action was commenced on the 20th of December, 1888. Some time in January, 1889, in accordance with the memorandum on the note, an order of the Borders Town Company was offered to take up the note. When the answer was filed, on the 15th of May, 1889, this tender was renewed, and the order of the Borders Town Company deposited in court for the plaintiff. It was decided in Logan v. Hartwell, 5 Kan. 649: "Where an answer admits a certain amount to be due the plaintiff, and where the sum is paid into court upon the filing thereof, and where, upon the trial, the plaintiff does not show himself to be entitled to a greater

amount, judgment should be rendered for plaintiff for only the costs accruing up to the filing of the answer." The trial court made the following findings of fact: "The note copied in the petition was executed by the defendants on the 3d day of November, 1887. The note was executed by Munger and Desky to secure the plaintiff until an order on the Borders Town Company could be procured. The Borders Town Company was the party beneficially interested. The note and the memorandum of the contemporaneous agreement were executed at the same time. The note remained in possession of the Norwegian Plow Company until the order from the Borders Town Company was procured and tendered in exchange, according to the agreement evidenced by the memorandum. The indorsement on the note (the memorandum) was, in substance, "Accept order on Borders Town Company, and turn note over to J. J Munger." The agreement which was evidenced by this indorsement was, in substance: "That the note should be held by Mr. Bish until the order could be procured, and was then to be turned over to Mr. Munger on the tendering of such order." The note never went into innocent hands. Defendant Munger was not indebted to John Johnson, in any sum whatever, at the time of giving the note in question. Although the order of the Borders Town Company was not tendered until after the commencement of this action, yet, upon the findings of fact supported by the evidence, the plow company was not entitled to anything but that order, and the costs accruing up to the tender. It seems, however, that the attention of the court below was not directed to the question of costs, and no motion was made to retax the costs. The judgment, therefore, of the district court, will be affirmed. All the justices concurring.

(52 Kan. 358) McCORMICK HARVESTING MACH. CO. v. LEWIS.

(Supreme Court of Kansas. Dec. 9, 1893.) CONDITIONAL SALE-WHEN TITLE PASSES.

A sale of property was made upon credit, and a note taken from the vendee, which contained a stipulation that the title to the property for which it was given should remain in the vendor until the note was paid; and afterwards the vendor, recognizing title in the vendee, applied for and obtained from the vendee a mortgage upon the same property to secure the payment of the note. Held, that the parties thereby elected to treat the sale as absolute, and that the ownership of the property was in the vendee, subject to the mortgage lien which he had given.

(Syllabus by the Court.)

Error from district court, Russell county; A. L. Voorhis, Judge pro tem.

Action on a promissory note by the McCormick Harvesting Machine Company against

Nathan Lewis. There was judgment for de fendant, and plaintiff brings error. Reversed.

H. L. Pestana, for plaintiff in error. H. G. Laing, for defendant in error.

JOHNSTON, J. This was an action upon a promissory note for $310.11, given by Nathan Lewis to the McCormick Harvesting Machine Company for a binder. The note contained a stipulation that the title to the binder would not pass to Lewis until the note and interest were paid in full. The machine had been purchased several years before, and the note in question was in renewal of one previously given. Two days after the note was executed, Lewis, at the request of the company, executed to it a chattel mortgage upon the binder and other property to secure the payment of the note. The note was not paid at maturity, and a short time afterwards, possession of the mortgaged property was taken by the company under the mortgage, and some, if not all, of it was sold at public sale. Lewis defends against a recovery upon the note, insisting that, by a condition which it contained, he never obtained the ownership of the property or anything else for the note, and hence had nothing to mortgage or convey. The stipulation in the note reserving title in the company evinced an intention of both parties to treat the sale as conditional, rather than absolute. If nothing more appeared, it would necessarily be held that a conditional sale was intended, and that the ownership of the property had never passed from the company. The possession of the property was in Lewis, and it was compe tent for the parties to treat the sale as absolute, and that the title had vested in the purchaser. Their action is wholly inconsistent with ownership in the company. Lewis assumed to have title by mortgaging the same to the company, and in applying for and accepting the mortgage the company recognized such title. The validity of the mortgage was subsequently recognized by Lewis when he purchased back at the mortgage sale a portion of the property which he had mortgaged. Under this view the company was entitled to recover all that remained unpaid upon the note. Proper credits should be given for the proceeds of the mortgaged property. There is some dispute in the testimony as to the sale of the property and the amount realized thereon. For this reason we are unable to direct the judgment that should be entered. If the parties are unable to agree what the credits should be, a new trial will be necessary. The judgment will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. All the justices concurring.

C. obtained a tax deed, which was defective, conveying a tract of wild land situate in a new and sparsely-settled region, most of which was prairie, and the remainder timber land. For three years during his ownership, the land was uncultivated, and there were no fences or permanent improvements thereon, but he leased it to others, from which to cut hay. Large quantities of hay were cut and stacked thereon, and there is evidence that the prairie land was best adapted and could be more prof. itably used for this purpose than any other; and, further, that such land in that vicinity was similarly used. He engaged others to guard the land from trespass, and to protect the timber; while he employed still others to eut timber thereon, and deliver the wood to him. These things were done in good faith by C. as acts of ownership, and with a view of taking and holding possession of the land. His claim of title was open and public, and no one disputed his possession or right of possession. He paid all the taxes charged against the land until he conveyed it to G., who at once entered and resided upon the land, where he made improvements of a substantial character. G. paid the taxes every year, and his possession was not challenged until more than 16 years after C. began to exercise control and dominion over it. An action by other claimants was begun against G., who claimed title by adverse possession for the statutory period of limitation. Held, that there was sufficient evidence of adverse possession to carry the case to the jury, and that the action of the court in directing a verdict in favor of the plaintiffs was reversible error.

(Syllabus by the Court.)

Error from district court, Chase county; Frank Doster, Judge.

Action by William D. Spillman and others against Robert W. Guinn to recover land. Plaintiffs had judgment, and defendant brings error. Reversed.

Redden & Schumacher, for plaintiff in error. Gillett & Sadler, for defendants in er

ror.

JOHNSTON, J. This was an action by William D. Spillman, Margaret Spillman, Fannie J. Hickey, Ella Greer, and Joseph W. Robertson, heirs of N. J. Spillman, deceased, to recover from Robert W. Guinn a 240-acre tract of land in Butler county. The claim of title of the plaintiffs below was based on patents from the United States, one of which was dated April 1, 1861, and the other May 1, 1862, both of which had been issued upon entries made with bounty land warrants assigned to N. J. Spillman. After the decease of Spillman, his widow, Mary Ann Spillman, who became administratrix of the estate of the deceased, located the warrants, and the government granted the lands to her as administratrix of the estate, and to her heirs and assigns. Guinn rested his claim of title upon a sale of the land for taxes in 1869, to the county of Butler; an assignment of the interest of the county to W. J. Cameron, J. D. Connor, and W. S. Fenno, upon the pay

ment by them of all the taxes and charges existing against the land to the time of assignment; a tax deed executed by the county clerk of Butler county on May 5, 1872, to Cameron, Connor, and Fenno; a conveyance from Connor and Fenno to W. J. Cameron, dated April 18, 1874; and a conveyance by warranty deed from W. J. Cameron and wife to Robert Guinn, dated February 12, 1875,-together with the claim of actual, open, continuous, and exclusive possession of the land by the grantors of the tax deed, and those holding under them, from 1872, until August 28, 1888, when this action was commenced. At the trial, the plaintiffs below introduced an exemplification of the records of the general land office showing the acquirement, assignment, and location of the land warrants, and the issuance of the patents.

Some objections were made to the admission of their testimony, but we see nothing substantial in them. The principal and controlling question in the case is as to the character of the possession of the land by Guinn and his grantors, and whether it is such as will give title at the end of the statutory limitation. After the testimony relating to the possession was introduced, the court held it to be insufficient, and took the case from the jury, by directing a verdict in favor of the plaintiff below. It appears to be conceded that the tax deed to Cameron and his associates, and which constitutes color of title in favor of Guinn, was defective and invalid. The question we have to decide, then, is, whether the testimony offered by Guinn, and against which there was little counter proof, tended to sustain the claim of adverse possession for the requisite length of time. The possession of Guinn from the time of his purchase was undoubtedly actual, notorious, and exclusive. He paid full consideration for the land; continuously resided upon it; made improvements of a substantial character, such as the construction of a house, barn, and corrals, building fences, breaking prairie; and, further, he paid the taxes levied against it from the time of his purchase till the commencement of the action. Neither the plaintiffs nor any one else questioned his right nor disturbed his possession. There can be no doubt that his possession was adverse, but, as it continued less than 15 years, the character of the possession of those under whom he holds becomes important in determining whether, when coupled with his own, it is sufficient to give him title. There is testimony that W. J. Cameron had charge and control of the land on behalf of himself and associates until they conveyed to him. It was known as the "Cameron Land," and he was recognized as the owner by persons living in the vicinity. In 1872 he leased the land to one Thompson, who made hay from all parts of the prairie land which was suitable for haying, and stacked the hay upon the land. There was a growth of timber on

a portion of the land, and Thompson was employed to guard the timber land, and prevent any one from trespassing thereon or from cutting timber. In the fall of that year he granted to one Rose the privilege of cutting some wood from the timber land. In 1873 Cameron granted to one Bauman the right to cut grass on the land for that and the subsequent year. He made hay on all the land that was fit for haying in both years, and stacked the hay upon the land. He cut about 200 tons in 1873; and the subsequent year, being a dry year, only about 40 tons were obtained from the land. In 1872, Rose, in accordance with his employment, cut timber upon the land, and delivered a portion of it to Cameron. In 1873, Cameron engaged one Jackson to guard the timber land, and he states that, while it was conceded to be Cameron's land, one person was detected taking wood therefrom, who afterwards settled with Cameron for that which had been taken. Another neighbor, named Bishop, whose land adjoined that of Cameron's, was placed in charge of the timber for one year; and it appears that all the parties so employed did protect the timber, and prevent the intrusion of trespassers upon the land. The acts of Cameron in leasing the land, cutting and stacking hay thereon, and the cutting and protection of the timber, as well as the guarding of the land from trespass, were all done for the purpose of taking possession of the land, and to assert ownership and dominion over it. No one interfered with his possession, nor disputed his claim of title, during this time. He frequently went upon the land, and took parties upon it with a view of selling it. He paid the taxes levied against it for the years 1872, 1873, and 1874, and since that time the taxes have been paid by Guinn. In those years that region of country was sparsely settled, and there is testimony to the effect that the land in the vicinity was largely unoccupied and untilled. It was then regarded that it could be more profitably used for grazing or the cutting of hay thereon. The land was not inclosed during Cameron's ownership, but the herd law had been adopted in that county in 1872, and the order has continued in force since that time.

The court, after hearing this evidence, determined that it did not tend to sustain the claim of adverse possession, and therefore refused to submit it to the jury. Was there sutficient evidence to take the case to the jury? We may lay aside any conflicting testimony, as the court had nothing to do with that. If the evidence, though weak, fairly tended to sustain the claim of adverse possession, the court was required to submit it to the consideration and judgment of the jury. The action of the court in directIng the verdict cannot be sustained unless it can be said that, admitting every fact proven in favor of Guinn, and every fact which the jury might fairly and legally infer from the

evidence favorable to him, still he failed to make out some one or more of the material facts of his claim. Measuring the evidence in accordance with this well-known rule, we think Guinn was entitled to have the case submitted to the jury. When the acts of ownership and possession are considered in connection with the condition of the country, the purposes for which such land was adapted, and the fact that it was used and treated much the same as were the adjoining lands of other owners, and used in the most profitable manner then in vogue, we cannot say that the possession was not adverse. We think the claim of absolute title, the undisputed control, the leasing, guarding, and protecting of the land, the cutting and stacking of hay thereon, the care and cutting of the timber, and the payment of taxes, tended to establish open, exclusive, and adverse possession. It seems to have been the theory of counsel that, because Cameron had not cultivated, inclosed, or erected permanent improvements upon the land, there was nothing to indicate an attempt to found a hostile title by possession. None of these things are absolutely essential in order to establish title by adverse possession. In Gilmore v. Norton, 10 Kan. 506, it was held that it is not necessary that a person should always be actually upon real estate, nor that he should actually reside thereon, neither that there should be any improvements upon the property, in order that he may be in the actual possession of the same. There may be an actual possession of uninclosed, unimproved land. No rule of general application as to what will constitute adverse possession can be safely laid down, as much necessarily depends upon the character and situation of the land, and the uses to which it is adapted; and so it is frequently said that the rule requiring actual and visible occupancy should be more strictly construed in an old and well-settled country, where the land is improved, than in a new country, where the land is only partially improved. Gildehaus v. Whiting, 39 Kan. 706, 18 Pac. 916, is much relied on by defendants in error as an authority to show that the facts in this case do not constitute adverse possession. It was there held that the recording of a conveyance by a grantor who had no title, the payment of taxes for a number of years by the grantee, and a public claim of title to vacant lots, was not conclusive evidence of an adverse holding and of ownership. It was strongly urged in that case that, although the lots were vacant, these acts of ownership were sufficient to establish an adverse possession; but the court was unable to yield its assent to that view, not because those acts were not some evidence of ownership and possession, but rather because the trial court had held that, under the circumstances, they were insufficient to constitute adverse possession. If the finding of the

trial court in that case had been to the contrary, a different result might have been reached in this court. That case, however, recognizes that some of the facts existing in this case constitute evidence of possession and ownership which would require a submission to the jury. In that case, and those therein cited, it is held that the payment of taxes is prima facie evidence of ownership, and that where the land claimed is subjected to the will and dominion of the claimant, manifested in some appropriate manner, residence upon the property is not essential, and that in such case an inclosure is unnecessary. In the case of grazing land, in a grazing country, herding sheep upon it would seem to be an appropriate use, according to the locality and quality of the property. Accordingly, we find that in two cases pasturage of cattle within an inclosure was held to be sufficient against intruders, and it was held that pasture without an inclosure was sufficient, the cattle being confined to the land by herders. Webber v. Clarke, 74 Cal. 11, 15 Pac. 434, and cases there cited. See. also, the following authorities, cited and commented on in Gildehaus v. Whiting, supra: Ellicott v. Pearl, 10 Pet. 412; Ewing v. Burnet, 11 Pet. 41; Langworthy v. Myers, 4 Iowa, 18; Draper v. Shoot, 25 Mo. 191; Ludlow v. McBride, 3 Ohio St. 241. In a recent case, involving facts somewhat similar to those in the present case, this court sustained the finding of adverse possession. Goodman v. Nichols, 44 Kan. 22, 23 Pac. 957. In Curtis v. Campbell, 54 Mich. 340, 20 N. W. 69, it was held that "an owner of out lots, which he does not fence or cultivate, may establish an adverse possession by cutting grass and timber, ditching, paying general and special taxes, and openly and notoriously claiming and using the land." See, also, Sparrow v. Hovey, 44 Mich. 63, 6 N. W. 93. In Lantry v. Parker, (Neb.) 55 N. W. 962, it is said that "the protection of grass during the growing season, and the cutting, curing, and disposal of the hay at the proper periods, constitute actual possession in the defendant, especially when taken in connection with his using it in like manner as the surrounding land and his acts to prevent its use by others." In Finn v. Land Co., (Wis.) 40 N. W. 209, it was held that where plaintiff went upon the land a number of times every year, to see whether trespass was being committed thereon, to look over the timber, and to run out lines on which to build roads to get out some of the timber, and that the roads were built, and timber was cut, during each winter, to be used for fence rails and firewood on plaintiff's farm, which adjoined the land, and for other purposes, and where his occupancy during the winters was not accidental, but was open, notorious, and continuous, and in the usual manner that timber lands were occupied, the possession was adverse, and that the land was at no time "vacant" or

“unoccupied," within the meaning of the statute. In Clement v. Perry, 34 Iowa, 564, it was held that, "where a person claiming land exercises acts of ownership over it by the use of it for the purposes to which it is adapted, his possession will be regarded as actual and adverse. So held in respect to uninclosed timber land on which the person claiming to be the owner cut wood and timber for ordinary purposes during the period of his ownership." In Forey v. Bigelow, 56 Iowa, 381, 9 N. W. 313, it was decided, "where lands are open and uninclosed, but it appeared that defendant, and those under whom he claimed, had for more than ten years claimed and exercised the exclusive right to cut timber and grass therefrom, and had at various times sold the right to cut grass to others, that such possession was effectual as actual inclosure of the land." In the same line, see Murray v. Hudson, (Mich.) 32 N. W. 889; Cooper v. Morris, (N. J. Err. & App.) 7 Atl. 427; Fisher v. Bennehoff, 121 Ill. 426, 13 N. E. 150; Stephenson v. Wilson, 50 Wis. 95, 6 N. W. 240; Baum v. Shooting Club, (N. C.) 2 S. E. 673. These authorities strongly sustain our view that there was sufficient evidence to carry the case to the jury, and from which the jury might have found adverse possession from 1872, such as would confer title upon Guinn. Whether this evidence would have been satisfactory to this court upon that question as an original question it is unnecessary to determine. For the present, the only inquiry is whether it was sufficient to require a submission of the same to the jury. We are clearly of opinion that it was, and hence we are unable to sustain the ruling of the court. In view of the conclusion that we have reached, the other questions suggested need not be decided. The judgment of the district court will be reversed, and the cause remanded for another trial. All the justices concurring.

1. A ruling of the trial court, not prejudicial to the party complaining, cannot be regarded as reversible error.

2. Where a dwelling house is insured, and the policy by mistake misdescribes the land on which the house is situated, this will not of itself affect the risk, or render the policy void; and it is not necessary to reform the policy, in case of a loss, to recover thereon.

3. The cases of Sullivan v. Insurance Co., 8 Pac. 112, 34 Kan. 170, and Insurance Co. v. Gray, 23 Pac. 637, 43 Kan. 497, followed.

4. A provision in an insurance policy against future incumbrances without the consent of the secretary of the insurance company, indorsed thereon, is not broken, where the property is already mortgaged at the time of the application for the insurance and the