Justice FOLGER said: "It is plain from the fact of a separate valuation having been put by the parties upon the different subjects of the insurance that they looked upon them as distinct matters of contract. The effect of the separate valuation was to make them so. No matter how much value there might have been in any one of those subjects, even to the whole amount of the policy, had it been totally destroyed the defendants could not have been made liable to an amount greater than that named in the policy as the valuation of it. Thus it was, at the inception of the contract, distinguished from the other subjects of insurance, and the contract so made as to be capable of application to it alone. So, too, if but one of the subjects of insurance had been burned, the defendants (ceteris paribus) could not have avoided liability to pay for that up to the value put upon it; and, if not wholly destroyed, but so far damaged as to reach in deterioration the value put upon it in the policy, the defendants would have to pay that damage; and that subject would no longer form a part❘ of the general matter insured, and hence not a part of the continuing contract. Thus there would of necessity be a severance of the contract worked out by the operation of its own terms. Again, the principle in the case of a contract about several things, but with a single consideration in gross, is this: that we are not able to say that the party would have agreed for one, or for more than one, yet less than all, of them, without he could at the same time acquire a right to have them all. But our daily experience and observation shows that an insurance company is as ready to insure buildings without insuring the contents, and the contents without insuring the buildings, as to insure them together; so that that principle does not press so hard in considering such a contract as that before us. Besides, it is a rule that an agreement embracing several particulars, though made at one time, and about one affair, may yet have the nature and operation of several different contracts; as, when they admit of being separately executed and closed, as we have instanced just above, when the contract may be taken distributively, each subject being considered as forming the matter of a separate agreement after it is so closed. Per WASHINGTON, J., Perkins v. Hart, 11 Wheat. 237-251; Rodemer v. Hazlehurst, 9 Gill, 294. In our judgment, this rule applies fitly to the contract in hand. It admits of being separately executed and closed as to each of the separate subjects of insurance. When one species of the property insured is burned, the contract to insure as to that may be performed as to that alone. The insured has paid the premium. A fire doing damage to that subject, that damage may be paid for by the insurer, and that subject be thus put out of the contract, while it remains in fieri as to all the other subjects named in it. When there are sev. eral subjects of insurance, [there are 14 here,] separately valued, on which a gross sum is insured, not exceeding the aggregate of that valuation, for the insurance 99 of which a premium in gross is paid, it is easy to see what is the rate of premium on the whole valuation, and what is the amount of premium on each subject insured. This being so, it seems fanciful to say that, if the facts thus easily reached were stated in detail in the contract, it would be severable, while not being specifically spread out it is entire. See, also, as sustaining the doctrine that an insurance contract is divisible, and that a breach of the condition only affects the class of property which is the immediate subject of the act of incumbrance: Schuster v. Insurance Co., 102 N. Y. 261, 6 N. E. Rep. 406; Clark v. Insurance Co., 6 Cush. 342; Insurance Co. v. Spankneble, 52 Ill. 53: Knight v. Insurance Co., 26 Ohio St. 664; Koontz v. Insurance Co., 42 Mo. 126; Loehner v. Insurance Co., 17 Mo. 248; Insurance Co. v. Schreck, 27 Neb. 527, 43 N. W. Rep. 340; Insurance Co. v. Grimes, (Neb.) 50 N. W. Rep. 168. We are aware of the fact that a number of states have held that a contract of insurance is not divisible; but we think, where a separate valuation is fixed upon the different kinds of property insured, the better rule is to hold that the contract is severable, and not entire and indivisible. It follows from this view of the law in this case that the policy of insurance upon the dwelling-house for $800 should be held good. As to the personal property covered by the policy, we think the giving of the chattel mortgage avoided the policy upon the household furniture. We deem it unnecessary to notice the other assignments of error, as they do not affect the substantial rights of the plaintiff in error. It is recommended that the judgment of the district court be modified by striking out the $200 and interest computed thereon for the amount of the policy upon the personal property, and that the costs of this court be divided equally between the parties. PER CURIAM. It is so ordered; all the justices concurring. (48 Kan. 553) MENGER V. BOARD OF COUNTY COM'RS CF DOUGLAS COUNTY. (Supreme Court of Kansas. April 9, 1892.) SCHOOL LANDS-TAXATION - DELINQUENT SALE. School lands belonging to the state of Kansas are not subject to taxation, but, after their sale to individuals, they then become taxable; but prior to the amendment of the laws in 1879, if a purchaser of school lands from the state made default in the payment of any of the purchase money, he, ipso facto, forfeited all his right and interest in and to the land, and the land at once became school land again, belonging to the state, and not subject to taxation; an if while the land so belonged to the state it w39 taxed and sold for the taxes, both the tax and the sale were absolutely void, and the tax-sale purchaser afterwards, when the illegality was discovered, had the right to have all the taxes paid by him refunded. (Syllabus by the Court.) board of county commissioners of Douglas county, Kan., to recover for taxes paid at tax-sales, and subsequent taxes, costs, expenses, and statutory interest. Judgment for defendant. Plaintiff brings error. Reversed. Joseph E. Riggs and John Hutchings, for plaintiff in error. W. W. Nevison, for defendant in error. school lands, and on that day it was sold by the county treasurer, in the manner provided by law, to John F. Schott, who made the payments thereon to include March 25, 1872, and not afterwords, leaving a large part of the purchase money unpaid. On November 30, 1880, said land was again sold as school land by said County treasurer to another person, who has not made default. (4) The holder of said certificates duly paid the subsequent taxes, and made the assignment thereof to Anna G. M. Menger, as alleged in the petition, and tax-deeds, copies whereof are attached to the petition, were issued to the plaintiff thereon. (5) The purchaser of said lands at the several taxsales knew they had been public-school lands, but from the offer thereof for sale for taxes, and the assessment and taxation thereof, supposed they had been sold, and were no longer school lands. Soon after the deeds were made, the plaintiff learned of the sales by the treasurer as school lands herein before stated, and afterwards, VALENTINE, J. This was an action brought in the district court of Douglas County on August 15, 1887, by Anna G. M. Menger against the board of county commissioners of said county to recover for taxes paid at tax-sales, and subsequent taxes paid, and consequent costs and expenses and statutory interest; the contention of the plaintiff being that all such taxes and tax-sales were illegal, and that all the consideration for her payments had failed because of such illegality. The defendant answered, setting forth a general denial, and also pleading the two, three, and five years' statutes of limitations. The case was tried before the court with-to-wit, July, 1886, she presented a dulyout a jury, and the court made the following findings and conclusions of fact and law to-wit: "Findings of fact: (1) The lands described in the first cause of action in the petition (N. E. 4, S. 36, T. 14, R. 18) were assessed for taxation for the year 1876, and at the tax-sale of 1877 sold to C. A. Menger for said taxes then delinquent, and costs and penalties, and a tax-sale certificate issued accordingly. Prior to March 25, 1871, this was public-school land, under the provisions of section 1 of the constitution and section of the act of admission. On that day said land was sold as provided by law in such cases by the county treasurer to John F. Schott, who made the payments due thereon to March 25, 1872, and not thereafter, leaving a larger part of the purchase money unpaid. The same lands were again sold, as school lands, on October 25, 1879, by the county treasurer to another person, who has not yet made default. (2) The lands described in the second cause of action (the S. 1⁄2 of N. W1⁄4, sec. 36, T. 14, R. 17) were assessed for taxation, and taxes levied thereon for the year 1879 and at the tax-sales of 1880 sold to C. A. Menger for the taxes of 1879, then delinquent, and penalties and costs, and a tax-sale certificate issued accordingly. Prior to September 11, 1869, this was a part of said public school land, and was on that day sold, as provided by law, by the county treasurer to J. W. McWilliams, and payments made to include February 28, 1872, and not afterwards, leaving a large part of the purchase money unpaid. In June, 1881, the said quarter section was again sold by the county treasurer as school lands to another person, who has not made default. (3) The lands described in the third cause of action were assessed for taxation, and taxes levied thereon, for the year 1877, to-wit: The S. E. 4, sec. 36, T. 14, R. 18; and at the taxsales of 1878 said lands were sold to C. A. Menger for said taxes, then delinquent, and penalties and costs, and a tax-sale certificate issued accordingly prior to March 25, 1871. This was part of said public verified itemized account in writing of the amounts so paid on said sales, and afterwards on said certificates and the costs of said deed to the county board, and demanded the allowance and payment thereof, with interest as allowed by law when such refunding is made. This bill was considered by the board, and finally rejected at the July session, 1887; and thereupon this suit was brought August 15, 1887. (6) The plaintiff discovered the supposed illegality of said several taxsales, that is, that said lands had again been sold as school lands soon after said tax-deeds were issued, but the precise date of such discovery is not shown or alleged. (8) The said tax purchaser did not pay, or offer to pay, the installments due the state on said school lands, or in any manner comply, nor offer to comply, with the terms of the certificates of purchase there. tofore issued on the sale of the same as such school lands, nor did his assigns, the plaintiff, pay, or offer to pay, the same, or to comply with the terms of said certifi cates. (9) No notice of the default of said first purchasers at said school-land sales was ever given to or served upon the purchaser at said tax-sales, who was a resident of the county of Douglas. "Conclusions of law: (1) Said lands became taxable from the date of the first sales thereof as school lands, (Gen. St. 1868, § 14, p. 945; Laws 1876, § 14, art. 14, c. 122; Comp. Laws 1885, § 217. p. 851,) and were therefore subject to the taxes for which they were sold, unless the forfeiture for non-payment, provided in section 16, c. 122, Laws 1876, rendered such taxation void. See State v. Emmert, 19 Kan. 546. (2) When, after such forfeiture, the lands were regularly taxed and sold for the nonpayment of such taxes, and the tax purchaser pays the balance of the purchase money to the proper authorities, and receives a patent from the state, his title cannot be questioned by any private individual. The state did not assert the forfeiture until long after the tax purchase had been made, and never refused to receive from the Meugers the installments due on the school-land sale. These installments might have been accepted if offered, and the tax purchaser would have acquired thereby just the rights that he contracted for. Baker v. Newland, 25 Kan. 25. (3) The tax purchaser, having had a reasonable opportunity to make these payments before the second sales of the property as school land, and not having done or offered to do so, cannot now recover the amounts paid on the tax-sale, and judgment must be rendered for the defendant. will be reversed, and cause remanded for further proceedings. All the justices concurring. (48 Kan, 503) GREENLEES V. ROCHE. (Supreme Court of Kansas. April 9, 1892.) VENDOR ANd Vendee-STATUTE OF FRAUDS. Where a contract for the purchase and sale of real estate is made, and the vendor executes a title-bond for the conveyance of the property to the vendee, and the vendee, with the consent of the vendor, accepts the title-bond, takes possession of the real estate, exercises acts of ownership over it, and pays a portion of the purchase money, the vendor may afterwards, when the remainder of the purchase money becomes due, maintain an action therefor against the vendee, notwithstanding the statute of frauds. The acts of the vendor, in connection with those of the vendee, are sufficient in such a case to take the con. tract out of the statute of frauds, and to make it binding upon both parties. (Syllabus by the Court.) Error from district court, Lane county; V. H. GRINSTEAD, Judge. Action by Maurice Roche against J. R. Greenlees to recover an alleged balance due on the sale of certain real estate, and to sell the real estate to satisfy such claim. A demurrer to the petition was overruled, and defendant brings error. Affirmed. B. H. Tracy and C. D. Pilsbury, for plaintiff in error. T. J. Womack, for defendant in error. Upon these findings and conclusions the court below rendered judgment in favor of the defendant, and against the plaintiff, for costs; and the plaintiff, as plaintiff in error, brings the case to this court for review. It will be seen that the only ground upon which the court below held that the plaintiff could not recover the amount of the taxes paid by her and her assignors was that the lands upon which such taxes were levied were, at the time of the levy and afterwards, subject to taxation, and the taxes were valid. Is this view of the law correct? It must be remembered that the lands taxed in this case were originally school lands, and therefore not at that time subject to taxation. They were all sold, however, as school lands, to individuals, prior to the year 1872, and then became taxable. But the purchasers, after the year 1872, failed to pay the installments of the purchase money coming due upon them, and they thereby forfeited ipso facto, instantly and absolutely, all their interests in and to the lands. State v. Emmert, 19 Kan. 546; Flint v. Commissioners, 43 Kan. 656, 23 Pac. Rep. 1048. By these defaults the lands at once became school lands again, belonging to the state, and not subject to taxation. In the last case above cited, which was decided on May 10, 1890, it was held as follows: "School lands sold in 1869, to be paid for in ten annual installments, followed by default in 1873, became at once ipso facto forfeited to the state, and a sale thereof for taxes in 1874 was void; and, when the illegality of such sale was ascertained, the purchaser at said tax-sale had a right to have such purchase money and taxes paid subsequently, but before ascertaining the invalidity of such sale, refunded, with interest thereon. Syllabus." This was the law prior to the time when The only question which has been preany of these lands were sold as school sented either to the court below or to this lands, and at least up to March 2, 1879, court is whether the petition of the plainwhen the law was amended. See Gen. St. tiff below stated facts sufficient to take 1868, c. 94, §§ 14, 16; Laws 1876, c. 122, art. the contract made by the parties for the 14, §§ 14, 16. The taxes, therefore, levied sale and purchase of the real estate out of upon these lands after the year 1872, and the statute of frauds. The contract was, up to the year 1879, while they were school of course, only an executory one, relating lands, and while they belonged to the to the purchase, sale, and conveyance of state, were absolutely void; and the pur- certain real estate upon certain terms and chasers at the tax-sales in the years 1877, conditions, and was not an executed con1878, and 1880, for such taxes, obtained no tract of purchase and sale; and, as it was interest in the lands whatever. All such signed only by the vendor, and not by the taxes which the tax-sale purchasers paid vendee, the vendor cannot maintain an at the times of the tax-sales and subse. action upon it against the vendee unless qently were absolutely void. The decis. there are still other facts, extraneous to ion by the trial court in this case was ren- the contract, but taking place because dered before the decision in the case of thereof, which will take the contract out Flint v. Commissioners was rendered by of the statute of frauds. Guthrie v. Anthis court. Following the last-mentioned, derson, 47 Kan. 383, 28 Pac. Rep. 164. The decision, the judgment of the court below | facts alleged in the plaintiff's petition and VALENTINE, J. This was an action brought in the district court of Lane county on January 14, 1889, by Maurice Roche against J. R. Greenlees to recover a judgment for $1,350, an alleged balance due on the sale of certain real estate, with interest, and to sell the real estate to satisfy such judgment. The original foundation for the action was a certain title-bond stipulating for the conveyance of such real estate by Roche to Greenlees upon certain terms and conditions, which bond was signed only by Roche. This bond was attached to and made a part of the plaintiff's petition. The defendant demurred to such petition upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer the court overruled, and for the reversal of this ruling the defendant, as plaintiff in error, has brought the case to this court. The was, when the bond was executed, his own relied on by him to take the case out of the statute of frauds are the following: Roche, the vendor, executed the bond, signed his name to it, delivered it to the vendee, Greenlees, who accepted the same, paid the vendor $450 of the purchase money for the property to be conveyed, accepted and received the possession of the property, exercised acts of ownership over it, placed it in the hands of several realestate agents for sale, and agreed that if it should be sold he would execute warranty deeds to the purchasers for the premises; and he is still in the possession of the bond, holding it as a valid and existing obligation against the plaintiff, and is still in the exclusive possession of the property, exercising acts of absolute ownership over it; and all this the plaintiff, as vendor, permits the vendee to do, and claims only the remainder of the pur chase money, and a lien upon the land therefor, and tenders to the vendee a good and sufficient warranty deed for the land in compliance with the terms of the bond, and asks that the land shall be sold for the purpose of satisfying the remainder of the purchase money. Are all or any of these things sufficient as a part performance of the original contract to take the case out of the statute of frauds? acts of part performance must be those of the plaintiff, who in this case is the vendor. 8 Amer. & Eng. Enc. Law, 740; Browne, St. Frauds, § 453. They need not, however, be the acts of the plaintiff alone or exclusively, but they may in some cases be his acts in connection with the acts of the defendant; and they need not in all cases be acts of commission, but they may in some cases be acts of permission. They must, however, be acts done or permitted by the plaintiff, which he would not have done or permitted except for the contract. The question then arises, what acts of part performance to take the case out of the statute of frauds can be attributed to the plaintiff as his acts? For, as before stated, the exclusive acts of the defendant, independent of the plain-examined, and held, that the petition of the plaintiff's acts, in and of themselves alone, cannot be considered. The acts of the plaintiff for this purpose are these: He executed the bond to the defendant compelling himself to convey the property to the defendant whenever the defendant should comply with the conditions of the bond; and, time not being of the essence of the contract, the bond is still valid and binding upon the plaintiff. He permitted the defendant to take the exclusive pos session of the property under this bond, and to exercise acts of absolute ownership over it from the time when the bond was first executed, which was on May 10, 1887, up to the commencement of this action, which was on January 14, 1889, and he still permits the defendant to have the exclusive possession of the property, and to exercise such acts of ownership over it. All these acts were done and permitted because of the contract, and they certainly would not have been done or permitted except for the contract. They were acts for the benefit of the defendant, and in derogation of the plaintiff's unquestioned right of absolute dominion over what (48 Kan. 480) COGSHALL et al. v. PITTSBURGH ROLLER- (Supreme Court of Kansas. April 9, 1892.) APPEAL-REVIEW OF CONFLICTING EVIDENCE-ACTION ON CONTRACT-EVIDENCE. 1. The pleadings, evidence, and proceedings tiff below clearly stated a cause of action, and the evidence tending to prove the plaintiff's case clearly proved a cause of action; and that, after a trial and a verdict and judgment in favor of the plaintiff, and after the case has been brought to the supreme court, the supreme court cannot consider contradictory or conflicting evidence, as in such a case the questions as to what the evidence proved and what it disproved were questions solely for the jury and the trial court. 2. The trial court did not err in refusing to permit the following question, propounded by the defendants to one of the defendants as a witness, to be answered, to-wit, "Did you ever accept this proposition of his?" The defendants should have asked their own witness, who was also a party, only what was said and what was done, and then let the witness state the facts, and not merely his conclusions. 3. Other matters considered, and held, that no material error was committed by the trial court. (Syllabus by the Court.) Error from district court, Crawford county; GEORGE CHANDLER, Judge. Action by the Pittsburgh Roller-Milling Company against W. H. Cogshall and C.. S. Henning, partners doing business under the firm name of Cogshall & Henning, to VALENTINE, J. This was an action brought in the district court of Crawford county on March 1, 1888, by the Pittsburgh Roller-Milling Company against W. H. Cogsball and C. S. Henning, partners doing business under the firm name of Cogshall & Henning, to recover for an alleged breach of a contract to sell and deliver 10 car-loads of corn at Cherokee, in Crawford county. A trial was had before the court and a jury, and the jury found generally in favor of the plaintiff and against the defendants, and assessed the plaintiff's damages at $247.50, and the court rendered judgment accordingly; and the defendants, as plaintiffs in error, have brought the case to this court for review. Errors are assigned in this court as follows: (1) The said court erred in overruling the defendants' demurrer to the petition of the plaintiff, which demurrer should have been sustained by the court for the reason therein set forth and for the ground thereof. (2) The court erred in overruling the demurrer of the defendants to the evidence of the plaintiff, as said demurrer should have been sustained for the causes therein set forth and the grounds thereof. (3) The court erred in overruling the defendants' motion for a new trial, which motion should have been sustained for the reasons therein set forth, and upon each and every ground thereof." The grounds upon which the defendants' motion for a new trial was based are as follows: (1) For error in the assessment of the amount of the recovery, said amount of recovery being too large. (2) Because the verdict is not sustained by sufficient evidence. (3) Because the verdict is contrary to law. (4) For error of law occurring at the trial, and excepted to by the defendants at the time." In this court it is claimed that the petition of the plaintiff below did not state facts sufficient to constitute a cause of action; that the evidence introduced on the trial did not 、prove any cause of action; that the court below erred in the admission and exclusion of evidence; and that the verdict is excessive. There is really so little ground for any claim of material error that we scarcely know what to say. The petition of the plaintiff below clearly stated a cause of action, and the evidence tending to prove the plaintiff's case clearly proved a cause of action. But probably the principal cause for complaint is this: There was much contradictory evidence, and the evidence of the defendants appears from the record brought to this court to be fully as strong and convincing as that of the plaintiff. These matters, however, we cannot consider. As to what the evidence proves and what it disproves, where there is a conflict, are questions solely for the jury and the trial court, and the jury and the trial court, that see the witnesses and hear them testify, are much better qualified to determine these questions than we are. Some slight errors were committed during the trial, but not one of them, or all of them together, would authorize a reversal of the judgment of the court below. They were slight and immaterial. Some of the supposed errors, however, of which the plaintiffs in error, defendants below, complain, are not errors at all. For instance, it was not error for the court below to refuse to permit the following question, propounded by the defendants to the defendant Henning, to be answered, to-wit, "Did you ever accept this proposition of his?" The defendants should have asked their own witness, who was also a party, only what was said and what was done, and then let him state the facts, and not merely conclusions. It was shown, however, by the testimony of this same witness, that he did not accept the proposition; but it was also shown on the other side by the testimony of the plaintiff below that he did. It is now claimed that the verdict of the jury is excessive. This claim was, perhaps, not fairly made in the court below. But, treating it as having been specifically made in that court, and overruled, then, did the court commit such an error by overruling it as will require a reversal or modification of its judgment by this court? The defendants below agreed to furnish 10 cars of shelled corn at Cherokee. They furnished one car, and then failed and refused to furnish the remainder,-the nine other cars,-claiming that they never agreed, and were under no obligation, to furnish more than one car. They were to furnish the corn on the cars at the price of 34 cents per bushel, which was about the market price at the time of the agreement; but corn immediately advanced in price. It is supposed by the defendant in error, plaintiff below, that the verdict of the jury was rendered upon the following theory: Each car would hold about 550 bushels of shelled corn, or the 9 cars would hold about 4,950 bushels, and the jury estimated the price of the corn when it should have been delivered at about 39 cents per bushel, and allowed as damages about 5 cents per bushel. The evidence tended to show that some cars would hold more and some less than 550 bushels of shelled corn, but that cars of average capacity would hold about that amount; and the evidence also tended to show that at about the time when this corn was to be delivered the price went up as high as 38 cents per bushel on the street, and that it would have taken 3 or 4 cents more per bushel to have shelled it and put it into the cars according to the contract, which would have made it cost from 41 to 42 cents per bushel on the cars. The jury probably allowed for the corn at the rate of 39 cents per bushel, although this is not definitely shown. The jury may have estimated the cars as holding more than 550 bushels, and the corn worth less than 39 cents per bushel. We have considered all that counsel for the plaintiffs in error have said with respect to the different kinds of corn, the different kinds of value, the fluctuations in the prices of corn at Cherokee, and the causes for such fluctuations, the |