that entries of certain bonds issued to refund county warrants had been duly made, as also of the refunding bonds now in controversy; but there were no entries of railroad bonds issued in payment of subscriptions to the capital stock of the railroad companies before mentioned. The defendant also introduced, over the objection and exception of the plaintiff, the record of the proceedings in the case of Gallagher & Cowgill against Johnson and others, being the action to enjoin the commissioners and county clerk from issuing bonds to the Denver, Memphis & Atlantic Railway Company, in payment of the subscription to the capital stock of that company, from which it appears that on the 26th day of June, 1889, the action was dismissed by the plaintiff as to the railway company, and judgment entered overruling the demurrer of the defendants to the plaintiff's petition, granting a perpetual injunction against issuing the bonds. A like judgment was also shown in another action enjoining the issuance of bonds to the Chicago, Kansas & Western Railroad Company. Error is alleged in the admission of these judgments. It appears from the recitals in the entry of judgment in this case that the court gave much weight to these judgments, the court finding that the refunding bonds were "issued in violation of the order and decree of this court in the cases of Thomas Gallagher and Perry J. Cowgill vs. The Board of County Commissioners of Wichita County, Kansas, et al.; and the court finds that the orders of injunction issued by this court in those cases have never been vacated, but are, and have been since the

day of June, A. D. 1889,

in full force, and that the public records in Wichita county, Kansas, was notice to the world that the clerk and chairman of the board of county commissioners of Wichita county, Kansas, or the commissioners of said county and state, have not power to issue those bonds and coupons sued upon." This action was brought by the state, which was a stranger to the judgments admitted in evidence, and to which the court appears to have given controlling effect in the decision of this case. The injunction was not against the issuance of these bonds, but the original railroad bonds. The bonds from which the coupons sued on were clipped are negotiable in form, payable to bearer. It is not controverted that the school-fund commissioners bought them before due, for value, and without actual notice of the injunction proceedings. The judgments in those cases constitute no bar to the plaintiff's recovery, nor is it apparent that they were admissible for any purpose. In Carroll Co. v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, it was held that "the issuing of a temporary injunction, which was afterwards made permanent by a state court, restraining municipal officers from issuing municipal bonds, does not estop a bona fide

holder for value, who was not a party to the suit, from maintaining title to such bonds, issued after the temporary injunc tion." Judgments are admissible against strangers to them wherever it is material to show the fact that the judgment was rendered, and its effect on the rights of the parties to it, but not for the purpose of showing the existence of the state of facts on which it was based, or the legal consequences resulting from such facts. As to these, it is res inter alios acta, and without force. 1 Whart. Ev. § 823; Freem. Judgm. § 416.

The doctrine of lis pendens, under which all the world is required to take notice of certain classes of proceedings in courts of record affecting the title to property which is the subject of litigation, has no application to suits relating to negotiable instruments before maturity. Winston v. Westfeldt, 58 Am. Dec. 278; Freem. Judgm. § 194; County of Warren v. Marcy, 97 U. S. 76. Under these authorities, even if the injunction had been against issuing the very bonds in suit, it would have had no effect on the rights of the plaintiff. Much less can an injunction against the prior bonds be controlling in the decision of this case. It is not apparent that the fact that the injunctions were granted is material in this case. It does not prove either that the bonds were not outstanding at the time the injunction was granted, or that the defendants did not violate it. Proof of the rendition of a judg ment is not equivalent to proof of its execution. It may or may not be carried into effect. The error in the admission of these judgments is of prime importance, because the court appears to have given them controlling weight in the determination of the

case.

Various other considerations are urged by each party as of controlling force in its favor in this controversy, but the state of the record gives us no basis for directing a judgment in the case. It would seem to be an easy matter to show by clear and satisfactory proof the very important fact whether or not there were railroad bonds actually outstanding, for which the refunding bonds were exchanged, without leaving the matter to be determined from the recitals in the bonds, and inferences to be drawn from the public record. While not presented as a ground of error, inasmuch as the case is to be sent back for a new trial, we remark that the court was in error in holding that the burden of proof rested on the plaintiff. There was no denial under oath of the execution of the bonds and coupons in suit. There is nothing on the face of them to impeach their validity. The burden was on the defendant to show it. For error in the admission and rejection of evidence as above pointed out, the judgment must be reversed, and the case remanded for a new trial. All the justices concurring.

Under the facts in this case, it is held that the acts of a board of county commissioners, in entering into a 30-year lease of a building to be used as a court house, and in issuing county warrants in payment of the rental thereof in advance, were invalid, and the lease and warrants void.

(Syllabus by the Court.)

Error from district court, Haskell county; William E. Hutchison, Judge.

Action by Charles E. Webster against the board of county commissioners of Haskell county Judgment for defendant, and plaintiff brings error. Affirmed.

Milton Brown, for plaintiff in error. Hoskinson, for defendant in error.

A. J.

MILTON, J. Action by Charles E. Webster upon county warrants aggregating $1,340; the warrants being in the usual form, and each containing the words, "For lease of court house." Judgment in favor of the defendant board of county commissioners for costs. Webster brings the case here for review. Findings of fact and conclusions of law were made and filed by the trial court, as follows: "First. That on the 19th day of October, 1889, the board of county commissioners of Haskell county, Kan., issued to one C. W. Wadsworth county warrants in the sum of $1,340, the amount sued on in this action (together with an additional amount not sued on in this action), for rent of court house for the use of Haskell county for the term of thirty years from said 19th day of October, 1889, and that said warrants were regularly executed by the chairman of the board of county commissioners and county clerk, and duly registered by the county treasurer. Second. That said C. W. Wadsworth, immediately after the receipt of said warrants, and during the said month of October, 1889, sold, transferred, and delivered the same, for value received, to the plaintiff herein, and that the plaintiff is now the holder and owner thereof. Third. That in November, 1889, an action was brought in the name of the state of Kansas, on the relation of the county attorney of Haskell county, against the board of county commissioners of said county, and the county treasurer thereof, enjoining and restraining them from paying or refunding any of said warrants. Fourth. That on the 1st day of July, 1890, the said C. W. Wadsworth, by his warranty deed, for value received, conveyed to one Geo. T. Beatty the property which he had heretofore, to wit, on the 19th day of October, 1889, leased to the county for 30 years. Fifth. That on the 13th day of November, 1890, in the district court of said Haskell county, the injunction case heretofore referred to came on for hear

53 P.-34

ing, and, by leave of the court, the sald Geo. T. Beatty was permitted, on his own request, to be made a party defendant; and thereafter, on said day, the injunction was made perpetual against said defendants, the board of county commissioners and county treasurer, enjoining and restraining them from paying or refunding any of the said warrants sued on in this action. Sixth. That, from and after the date of the conveyance of the property referred to by Wadsworth to Beatty, the said Beatty has assumed and maintained full control and possession of the same, and rented it to the county for court-house and other county purposes, and received rents therefor." The

plaintiff duly excepted to each and every and all of the above findings of fact, and the exceptions were allowed.

The court concludes: "First. That said ac-. tion No. 179 is not res adjudicata, for the reason that the owner and holder of the warrants sued on was not a party to the action in which the injunction was granted. Second. That county warrants are nonnegotiable, and any defense which would be good against the payee of the warrants may be made against the present holder thereof. Salamanca Tp. v. Jasper Co., 22 Kan. 696; School Dist. v. Perkins, 21 Kan. 536. Third. That said warrants were issued without warrant or authority of law, and are invalid. Fourth. That said warrants were issued and are without consideration, and that the plaintiff herein, occupying the same position as if suit had been brought by the said Wadsworth, is, as Wadsworth would have been had he retained the warrants, estopped from claiming anything thereon by his action in appropriating to his own use the property which he had pretended to lease as a consideration therefor." The plaintiff duly excepted to the second, third, and fourth conclusions of law, and the exceptions were allowed.

The petition alleged that on October 19, 1889, while the board of county commissioners of Haskell county was in regular session, and at a time when the county had no county buildings, the said board entered into an agreement with one Wadsworth, the owner of a certain two-story building in the city of Santa Fé, the county seat, by which such building was leased for court-house and other county purposes for a period of 30 years from that date, and that on the same day the board of county commissioners issued the county warrants upon which this action is based, and one other warrant, to Wadsworth, in full payment of the agreed rental. The answer averred illegality in the whole transaction of leasing and in the warrants declared upon. It further averred that the warrants were absolutely without consideration, and that Wadsworth, on July 1, 1890, sold and transferred the leased property for which the warrants were issued to one George T. Beatty, by deed of warranty. and that since the execution of the deed Beatty had received from the county com

missioners, as rent for the property, the sum of $1,501. The answer also set forth the pleadings and the judgment in the injunction action mentioned in the foregoing findings. Beatty, who had been made a defendant at his own request in that action, was by the said judgment restored to all the rights in and to said property owned and had by the said C. W. Wadsworth prior to the making of said contract of lease. Neither Wadsworth nor Webster were made a party to the injunction action. The petition therein and the answer in the present action set forth the lease from Wadsworth, which consisted of his proposition to the board and an entry In the commissioners' record that the proposition was accepted. The proposition reads: "I hereby propose to lease to Haskell county, for county offices and court house, the two-story, 24x60 feet, frame building now used for county offices and court house, for a term of thirty years, with privilege of removing from the present location at any time, or privilege of remaining on lots 1, 2, 3, block 56, Santa Fé, Kansas, for five years from date, for the sum of sixteen hundred and forty ($1,640) dollars, payable in advance."

We think it is clear that the warrants are void. As Haskell county had no court house, the board of county commissioners could lawfully lease a building suitable for courthouse and other county purposes, but it could not lawfully pay the rental therefor in advance. Annual rental would be a proper part of the current expenses of a given year, and could be paid out of the general revenue of the county. Section 1887, Gen. St. 1889, provides that in each county an annual levy, "sufficient to defray all county charges and expenses incurred during such year," shall be made, and declares it to be unlawful for any board of county commissioners or county clerk to issue county warrants or orders in any one year to a greater amount than the amount of the county tax levied in one year to defray county charges and expenses. Another section limits the levy for current expenses for any one year to 1 per cent. upon the valuation of $5,000,000 or less. As bearing upon the proposition before us, see State v. Commissioners of Marion Co., 21 Kan, 419.

The invalidity of the warrants was shown by the record of the board of county commissioners, and Webster stood exactly in the place of Wadsworth in reference to such record.

Counsel for plaintiff in error contends that Webster was the equitable assignee of the lease to the building and of the possessory rights thereunder, by virtue of the transfer to him of the warrants, and that, as the county commissioners entered into possession of the property under the lease and gave no notice to Webster of any change of intention or relation in respect to the lease, the tenancy thereunder must be held to have

continued regardless of the conveyance by Wadsworth to Beatty of the lots upon which the leased building was situated. This is urged the more strongly for the reason that Webster was not made a party to the injunction action, and that there was no evidence showing that he consented to or had notice or knowledge of the conveyance. While the county commissioners were not authorized to lease the property for the period named in the lease, they were authorized, under the circumstances, to lease some building for county purposes for a reasonable time only, and to pay the rental as it fell due. We think the proceedings in the injunction action were sufficient to effectually terminate the lease, so far as the board of county commissioners was concerned. It did not require notice to Webster to render the warrants invalid, and he is not suing upon the lease. Independently of the lease, there was a liability on the part of the county commissioners to pay rent, as upon an implied contract, for the property while it was occupied for county purposes, and under proper pleadings Webster might have recovered the rental from the date of the lease until entry of the judgment in the injunction action. As this action is predicated upon the warrants, and not upon the contract, express or implied, to pay rent, it seems clear that the judgment of the trial court was correct, under the pleadings. It will therefore be affirmed. All the judges concurring.

(7 Kan. A. 754)

ALFORD et al. v. BUFORD & GEORGE IMPLEMENT CO.

(Court of Appeals of Kansas, Southern Department, W. D. June 20, 1898.)

COMPULSORY REFERENCE.

The issues raised by the pleadings in this case do not come within the provisions of section 292 of the Code of Civil Procedure, authorizing a compulsory reference.

(Syllabus by the Court.)

Error from district court, Pratt county; W. O. Bashore, Judge.

Action by the Buford & George Implement Company against F. G. Alford and others. Judgment for plaintiff, and defendants bring error. Reversed.

Alford & Alford, for plaintiffs in error. Thompson & Apt, for defendant in error.

DENNISON, P. J. The Buford & George Implement Company, a corporation, brought an action in the district court of Pratt county, Kan., to recover from F. G. Alford et al. upon several promissory notes. The answer of Alford et al. alleges: (1) An unverified general and special denial; (2) that they had delivered to the plaintiff certain notes as collateral security to the indebtedness set forth in its petition, a portion of which said notes were collected by said plaintiff, and that it

had not used due diligence in collecting the remainder; (3) an indebtedness of $144.80 upon an open account; (4) damages to the amount of $250 for breach of contract; (5) an indebtedness of $50 for commission. The reply alleges: (1) That a portion of the notes mentioned in the answer were given as collateral security for other notes than those sued on in this action, and that they were indorsed by the defendants to it, and immediately reindorsed to them for collection, and that a portion thereof was collected by the defendants and paid to the plaintiff, but that they refused to turn over the other notes or the proceeds thereof; (2) that other said notes are not listed correctly, and are duplicated, and set up several times; (3) an offer to return the remaining collateral notes upon the payment to plaintiff of the amount due it from defendants; (4) a general denial of all the allegations of the answer not admitted or specially pleaded to. The court ordered a reference over the objection of the defendants below, and the report of referee and judgment were against them, and they bring the case here for review.

The only question necessary to decide is whether the court erred in submitting the case to a referee, instead of a jury. The plaintiffs in error were entitled to a trial by a jury under section 266 of the Code of Civil Procedure. The issues raised by the pleadings in this case do not come within the provisions of section 292 of the Code of Civil Procedure, authorizing a compulsory reference. The judgment of the district court is reversed, and the cause remanded for a jury trial. All the judges concurring.

chased the mortgage from Montgomery. On September 6, 1892, at the sheriff's sale, Condon purchased the steers described in the mortgage. On September 17, 1892, he took possession of the horse in dispute, under and by virtue of his mortgage. This was three days after the note secured by the mortgage became due. On September 26, 1892, the plaintiff commenced this action to recover possession of the horse. The defendant, answered by general denial. At the trial the defendant, after the introduction of plaintiff's evidence, offered the note and mortgage in evidence, and rested his case. The plaintiff, in rebuttal, offered evidence to show that the mortgage had been satisfied by the sheriff's sale of the steers to Condon; that the value of the steers exceeded the mortgage debt. The court, after admitting the testimony, withdrew it from the consideration of the jury, and gave the following instruction "There is no evidence before you, gentlemen, that shows or tends to show that the note has ever been paid, or that it is not a valid claim as against plaintiff in this action. By the transfer of the note from J. B. Montgomery to C. M. Condon, C. M. Condon became the owner and holder of the chattel mortgage to secure the same, and entitled to all its benefits." We have carefully considered the testimony withdrawn from the consideration of the jury. It does not show or tend to show that the debt had been satisfied, and the giving of the instructions complained of was not error.

Other errors are complained of, but they are not sufficient to require a reversal of this case. The judgment of the district court is affirmed.

(7 Kan. App. 450)

MILLIKEN v. CONDON et al. (Court of Appeals of Kansas, Southern Department, E. D. June 15, 1898.) CHATTEL MORTGAGES-SATISFACTION. The purchase by an execution creditor at a sheriff's sale of mortgaged property for more than the mortgage debt (he also having purchased the mortgage) is not a satisfaction of the mortgage.

Error from district court, Labotte county; J. D. McCue, Judge.

Action by Alice Milliken against C. M. Condon and others. There was a judgment for defendants, and plaintiff brings error. Affirmed.

F. H. Atchinson, for plaintiff in error. Nelson Case, for defendants in error.

SCHOONOVER, J. Alice Milliken and J. H. Milliken, her husband, executed a chattel mortgage on eight head of steers, the horse in dispute in this action, and other property, to J. B. Montgomery. The defendant C. M. Condon had a judgment against John H. Milliken and others, upon which execution was issued, and the steers levied upon. While the levy was in force, Condon pur

Where a deed of assignment by an insolvent debtor for the benefit of his creditors was duly executed, delivered, and filed for record, and where at the same time a schedule of the assignor's liabilities was filed with the clerk of the district court, and such schedule was unverified, and remained for 60 days thereafter unverified, held, that the deed of assignment was inoperative, as against the holder of an unrecorded chattel mortgage, who began an action of replevin against the assignor and assignee, jointly, within three days after the filing of the deed.

(Syllabus by the Court.)

Error from district court, Franklin county; A. W. Benson, Judge.

Replevin by Amelia L. Hamblin against John L. Keith and another. Plaintiff had Afjudgment, and defendants bring error. firmed.

J. W. Deford and W. A. Deford, for plaintiffs in error. W. H. Clark and F. A. Waddle, for defendant in error.

MILTON, J. Action commenced May 4, 1893, by the defendant in error, as plaintiff, to replevin a stock of groceries, etc., then in the city of Ottawa, Kan., under two chattel mortgages executed by C. H. Senner. The first of these, dated December 22, 1892, and given to Mrs. A. S. Fales to secure a note of that date for $200, was filed for record May 3, 1893, and was on that day assigned by Mrs. Fales to Mrs. Amelia L. Hamblin, the defendant in error; and the second, dated January 23, 1893, was given to Mrs. Hamblin to secure a note for $550. The notes were due in 6 and 12 months from their respective dates, and were given by Senner on account of loans of money obtained from the mortgagees. This money was used by him in paying bills for goods, and otherwise in connection with his business. The mortgages contained the provisions usual to such instruments, except that in one Senner promised to "keep up said stock, and in good condition," and in the other agreed that, in case he should be in financial difficulty, he would notify the mortgagee, in order that she might file the mortgage for record. On May 2, 1893, Senner, owing debts aggregating about $1,400, executed a deed of assignment in the usual and proper form, by which he conveyed all his "lands and tenements, goods and chattels, notes, bonds, and accounts, and all property of every description belonging to said C. H. Senner, and liable for the payment of his debts," to J. L. Keith, assignee, in trust for the benefit of his creditors. The deed of assignment was recorded at 11 o'clock a. m. on the day of its execution, prior to the recording of either of the mortgages. The assignee took immediate possession of the goods. To plaintiff's petition the defendants, Keith and Senner, answered jointly, with a general denial of the allegation to the petition, and prayed judgment that the goods be returned to Keith. None of the pleadings in any wise intimate that Keith was, or purported to be, assignee, although that question seems to have engaged the attention of the trial court. After January 23, 1893, Senner purchased on credit from wholesale dealers nearly $600 worth of goods, and the accounts therefor remained unpaid at the date of the assignment. Besides these accounts and the debts secured by the mortgages, he owed less than $100. At the time the deed of assignment was filed, the assignor delivered to the clerk of the district court an unverified schedule of his liabilities; and it was not until July 2, 1893, that his affidavit was written thereon, verifying the same. At the date fixed for the creditors' meeting, no assignee was chosen; and on July 9, 1893, the district judge appointed Keith as assignee. He thereupon duly qualified, and has since pur ported to act as such assignee. After obtaining possession of the goods by replevin, the plaintiff sold the same for $400 in cash. The court concluded, as a matter of law,

that the assignment was void as to the creditors of the assignor, for the reason that it appeared the latter had fraudulently retained the accounts due him for goods sold, and also had kept some other property. As the findings made by the court indicate that the assignor's wrongful acts were without the knowledge or consent of the assignee, we think this conclusion hardly tenable on the grounds stated. The court also held that the mortgages, while void as to the creditors, were valid as between the par ties, and not subject to attack by the assignee, and that the plaintiff was at the commencement of the action entitled to the possession of the property in controversy. Judg. ment was accordingly entered for the plaintiff.

We think the judgment of the trial court must be sustained, but not upon the ground stated in the first conclusion of law. We prefer to base our decision upon the proposition that a deed of assignment for the benefit of creditors by an insolvent debtor is inoperative until a schedule of liabilities, prepared in substantial conformity with the terms of the statute, and duly verified, is filed by the assignor with the clerk of the district court in the proper county. We think the provisions of the law relating to assignments are in this respect mandatory, and that strict compliance with such provisions is essential to the validity of an assignment. Palmer v. McCarthy (Colo. App.) 31 Pac. 241; Beardsley v. Frame (Cal.) 24 Pac. 721; Mosconi v. Burchinell (Colo. App.) 43 Pac. 912; Landauer v. Conklin (S. D.) 54 N. W. 322; Bank v. Noe, 86 Tenn. 21, 5 S. W. 433.

We shall not consider questions 'beyond the requirements of the present case. We hold the assignment invalid so far as the property in controversy is concerned. Keith held the property at the commencement of this action for Senner, and not for Senner's creditors. No legal assignment had been made. Senner was in no position to dispute the validity of the plaintiff's mortgages. His creditors, with the exception of plaintiff below, are not parties to this action, nor does Keith represent them as a trustee. It is not necessary, therefore, to enter into a discussion concerning the validity of the mortgages. We think the conclusion of the trial court that the plaintiff was entitled to the possession of the property at the commencement of this action was proper, under the findings of fact. In Gagnon v. Brown, 47 Kan. 83, 27 Pac. 104, it is said: "It is immaterial whether the mortgagee took possession in invitum, or the mortgagor voluntarily put him in possession, if the act be done in pursuance of a condition contained in the mortgage. If a mortgagee takes possession of mortgaged property before any other right or lien attaches, his title under the mortgage is good against every body, if it was previously valid between the

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