plaintiff or defendant, or that several causes of action have been improperly united. When the attention of the court is intended to be directed to any of these specified grounds for demurrer, it must be directed as specified by statute. The next contention is that the covenants of the mortgage were contrary to public policy, and also in restraint of alienation. We do not think there is any alienation in this mortgage at all. It is true that where an estate is conveyed in fee simple a proviso that the grantee shall not convey, or shall not convey without the consent of the grantor, is held to be void as a restraint upon alienation, because it is repugnant to the estate which has been created by the debt for the benefit of the grantee. But no estate was created by this mortgage. The title to the land, both legal and equitable, remained in the mortgagor. We have examined the cases cited by the respondent, upon which he so confidently relies, and we do not think they are in point at all. The principal case-and one in which the authorities are collated-is De Peyster v. Michael, 6 N. Y. 467. In that case there was a lease of lands in fee, and, in addition to the annual rent, the lessor reserved to himself, his heirs and assigns, the right to purchase the premises in case the lessee, his heirs, etc., should choose to sell on paying three-quarters of the price demanded. the lessee covenanting to make the first offer to the lessor, his heirs, etc., on those terms; but, in case the offer should be declined, then the lessor reserved to himself, his heirs. etc., one-fourth part of all moneys which should arise from the selling, renting, or disposing of the lands by the lessee, his heirs or assigns, when and as often as the same should be sold, rented, or disposed of, with the condition that in case of a sale or other transfer without the payment of such onefourth to the lessor, his heirs or assigns, the sale or transfer should be void, and the premises should revert to the lessor, his heirs and assigns, who might then re-enter upon the premises, and repossess and enjoy the same as of his former estate; and it was held that a reservation of the quarter sales and the condition and right of re-entry upon default of their payment were void. But the case and the arguments advanced and cases cited show conclusively that the doctrine contended for could not be applied to the conditions specified in this mortgage. The mortgagors are not prevented from selling this property. No restrictions are entailed upon it. But the effect of the stipulation or condition expressed simply is that, if it is alienated or abandoned, or not used for the purposes for which the money was loaned, the mortgage becomes due; and, if a sale were made, it would simply be made subject to the mortgage. It is also contended that the mortgage is contrary to public policy for the further reason that it provided that the debt should be 53 P.-43 come due if the church should cease to be connected with the general assembly; that this is a restraint upon religious belief, and a court of equity should not uphold such contract. We do not see any merit in this contention. There is no restraint here upon any one's religious belief. The board of church erection has a right to invest its money for the promotion and benefit of the Presbyterian churches in the United States, if it sees fit so to do. Presumably low rates of interest and liberal time are given by this association for the purpose of promoting the interests of the church, and favorable conditions are obtained which could not be obtained from any one else; and there is nothing wrong or intolerant or against public policy in sustaining conditions which would prevent their money from inuring to the benefit of secular business. If conditions like these cannot be enforced, then church edifices, which the society has been instrumental in building, might be used for dance houses, theaters, drinking saloons, and for other businesses which are not only foreign to the object of the promotors, but in direct opposition to their principles. The third objection is that the mortgage was void because the time when the debt was to become due was vague, uncertain, and indefinite. We think this is a provision of the mortgage which the mortgagor cannot take advantage of. Jones, Chat. Mortg. §§ 11831185. Where the debt is made payable upon the happening of a contingency, and no time for payment is mentioned in the mortgage, the mortgage is good. Fetrow v. Merriwether, 53 Ill. 275; Bank v. Price, 8 Ohio St. 299; 3 Pom. Eq. Jur. § 1188. It is, in the fourth place, contended by the respondent that no breach of the conditions of the mortgage has been shown, and that, consequently, a foreclosure could not be had. A number of authorities are cited by both appellant and respondent as to when the legal title passes, and as to whether the legal title to land passes upon the sale or upon the confirmation of sale. It was said by this court in some of the cases cited, notably Hays v. Bank, 10 Wash. 573, 39 Pac. 98, that the discussion of the title proposition was a discussion of a theory, and did not affect the practical questions in that case; and so we think concerning that technical question here. This mortgage provides that, in case the mortgaged premises be alienated, or be abandoned as a house of worship, by the party of the first part, except for the building or purchase of a better one, the mortgage should become due, and that the mortgagee shall have power to foreclose the same. The complaint alleges that this property was sold under an execution issued out of the superior court to the defendant Walter Morgan, and that the sale was confirmed; that Walter Morgan & Co. have closed the door of the church; that the church has been dispossessed of said premises by a writ of assistance issued out of the court, and that the said Walter Morgan was thereby put in possession of the premises. It seems to us that within the spirit of the contract this was an alienation. The church had refused or failed to pay its legal obligations. The law, in the enforcement of those obligations, dispossessed it, and in legal contemplation, and for the purpose of construing this mortgage and giving effect to the intention and purposes of the mortgagor, the possession which was given to Morgan must be held to be a possession given by act of the mortgagee. We think that plainly there was a breach of the covenants of the mortgage, and that the court erred in sustaining the demurrer to the complaint. The judgment will be reversed. SCOTT, C. J., and GORDON and REAVIS, JJ., concur. ANDERS, J., did not sit in this case. (7 Kan. App. 170) REED v. MARPLE, Justice of the Peace, et al. (Court of Appeals of Kansas, Northern Department, E. D. July 8, 1898.) JUSTICE OF THE PEACE-CHANGE OF VENUE. Under section 76, Code Civ. Proc., "Before Justices" (paragraph 4926, Gen. St. 1889), a justice of the peace before whom an application for a change of venue is pending has the authority to summarily determine the legal competency of the other justices of the peace of the same township to try said cause, so as to give jurisdiction to a justice of an adjoining township, to whom he transfers the case, to proceed and try the issues therein. (Syllabus by the Court.) Error from circuit court, Shawnee county; J. B. Johnson, Judge. Action by Joseph Reed against J. H. Marple, justice of the peace, and another. Judgment for defendants, and plaintiff brings error. Affirmed. J. B. Billard, one of the defendants in error, sued Joseph Reed, the plaintiff in error, in the justice's court of F. M. Grover, a justice of the peace of the city of Topeka. Upon an application of Reed for a change of venue, Justice Grover transferred the case to the defendant in error J. H. Marple, a justice of the peace of an adjoining township in said county, and the cause was docketed by said Marple for trial. A motion by Reed was filed, and overruled, asking said Justice Marple to dismiss said cause for the reason that he had no jurisdiction to hear the same, as there were two other justices besides said Grover in Topeka who were legally competent to try said cause, whereupon this action was brought in the circuit court of said county to prohibit said Justice Marple, and said plaintiff, Billard, from proceeding with the trial of said cause. Upon a trial said court found for the defendants Marple and Billard, and judgment was rendered in their favor, and against said Reed. To reverse this, the case is brought to this court. E. E. Chesney and E. G. Wilson, for plaintiff in error. C. A. Starbird, for defendants in error. WELLS, J. (after stating the facts). The primary contention of the plaintiff in error is that a justice of the peace before whom an application for a change of venue is pending cannot try and determine the legal competency of another justice of the same township to try said cause. In this we think the plaintiff in error is mistaken. Section 76 of the Justices' Code (paragraph 4926, Gen. St. 1889), under which this change was made. reads as follows: "If the place of the trial be changed on account of the bias or prejudice of the justice, or of his being a material witness in the cause, such cause shall be transferred for trial before some other justice of the peace of the same township, if there be one there legally competent to try such cause; if there be no such justice within such township, or if such change oe granted on account of the bias or prejudice of the citizens of such township against such party the case shall be taken to some justice in an adjoining township of the same county." This clearly presupposes the authority of the justice to determine "if there be one there legally competent to try such cause," and, if he has such authority, the erroneous exercise of it does not prevent the justice to whom the case is sent from acquiring jurisdiction thereof. Any other conclusion would defeat the object of the law. As an illustration: There are three justices in a township. An action is brought before No. 1. The defendant takes a change of venue to No. 2. The plaintiff then, under the authority of Herbert v. Beathard, 26 Kan. 746, applies for another change. But justice No. 3 is the husband of the plaintiff, as is well known to all the parties. But justice No. 2 has no authority to try and determine the legal competency of No. 3 to try the case, and so, of course, must send it to him. Then, assuming that the defendant has a right to a second change of venue, he makes application; must not No. 3, under the application of the same rule, send it back to No. 1? As was held in Barnhart v. Davis, 30 Kan. 524, 2 Pac. 634, "The justice may in some cases exercise judicial discretion by determining what justice he will send it to." An erroneous exercise of that discretion, or an erroneous exercise of judgment as to the disqualification of other justices, will not defeat the jurisdiction of the one to whom it is sent. We do not find anything in the other contentions of the plaintiff in error that can in any manner affect the jurisdiction of said Marple to try said cause, or that requires any special consideration. The judgment of the court below will be affirmed; and the said J. H. Marple, justice of the peace, or his successor in office, is directed, within 60 days after the entering of the mandate herein in the court below, to set a day and date for the hearing of said cause at his office, giving each party five days' notice in writing thereof, and that thereafter said case be proceeded with, so far as practicable, the same as if this action had not been brought. BURDGE, Sheriff, v. KILCHNER et al. (Court of Appeals of Kansas, Northern Department, E. D. July 8, 1898.) APPEAL-RECORD. 1. An assignment of error as to the admission or exclusion of evidence, to be available on appeal, should set out the evidence, or at least make reference to the record so as to indicate what the evidence is. 2. A verdict, on conflicting evidence, based on a finding as to the bona fides of a conveyance, will not be disturbed on appeal. Error from district court, Shawnee county; Z. T. Hazen, Judge. Action by W. J. Kilchner and another against D. N. Burdge, as sheriff. There was a judgment for plaintiffs, and defendant brings error. Affirmed. Rossington, Smith & Dallas and E. G. Wilson, for plaintiff in error. Wm. R. Hazen, for defendants in error. PER CURIAM. Defendants in error sued plaintiff in error to recover the value of a stock of drugs unlawfully seized by the plaintiff in error as sheriff of Shawnee county, and unlawfully disposed of by him as the property of one Burkett, upon an attachment issued in a cause against Burkett. There was a verdict for $560; a special finding that the value of the property at the time it was wrongfully taken was $460. A motion was made by defendant for a new trial, which was denied upon the plaintiff entering a remittitur of $90, and thereupon judgment was entered for $470. The case was begun on the 13th of November, 1894. The verdict was returned on the 27th of April, 1895. The judgment was entered the 20th of May, 1895. There are five assignments of error. The first is that the court admitted improper evidence on behalf of the plaintiffs. This evidence is not set out, as required by the rule of this court, nor is there a reference to the record in any manner indicating what the evidence is. In the argument of counsel it is suggested that a witness offered in behalf of the plaintiffs for the purpose of proving the value of the goods at the time they were seized by the sheriff was permitted to use a paper called the "National Druggist" for the purpose of refreshing his memory, and it is contended that that was in violation of law. Whether or not it was, it was immaterial, as the witness did not testify to the value of any of the goods whatever. The second assignment of error is that the court excluded proper and material evidence offered by the defendant. This evidence is not set out, nor is there any reference what ever to the record directing our attention to it. The third assignment is that the court overruled the motion of the plaintiff in error for a new trial. No error having been pointed out during the progress of the trial upon which to base the motion, it was not error to deny it. The fourth assignment of error is that the verdict of the jury and judgment of the court are not supported by sufficient evidence. The argument is that the weight of the evidence showed that the transfer of the stock of goods by Burkett to Kilchner & Mackey was fraudulent, was without fair and adequate consideration, and was void as to the creditors of Burkett. There was evidence upon both sides of this question, and the jury might have found in support of the contention of the plaintiff in error, but they did not. It was peculiarly their province to determine this fact, and they determined it against the plaintiff in error, upon the evidence offered by the plaintiffs. The fifth assignment of error is that the verdict of the jury is excessive. It is true that the verdict of the jury was in excess of the amount that the plaintiffs could recover under the finding of the jury as to the value of the goods at the time seized, but this error was corrected by the court, upon the argument of the motion for a new trial, by the remittitur of this excess. It is true tha there was $10 added to the value of the goods, but this is a little less than the interest to which the plaintiffs were entitled, under the findings of the jury, in addition to the value of the goods. No reason, appearing why the judgment of the trial court should be disturbed, it is affirmed. All the judges concurring. GARVEY et al. v. WESTERN UNION (Court of Appeals of Kansas, Northern Depart- Where one of three joint judgment debtors dies, a proceeding in error cannot be prosecuted without reviving the proceedings by the substitution of his administratrix. Error from district court, Shawnee county; Z. T. Hazen, Judge. Action by the Western Union Telegraph Company against H. O. Garvey and others, partners as Garvey, Holliday & Co. There was a judgment for plaintiff, and defendants Dismissed. bring error. C. K. Holliday, Jr., Morton & Clark, and H. C. Safford, for plaintiffs in error. Rossington, Smith & Dallas and Clifford Histed, for defendant in error. PER CURIAM. On July 2, 1894, the de fendant in error, the plaintiff in the court below, recovered a judgment against H. O. Garvey, T. J. Kellam, and C. K. Holliday, Jr., partners as Garvey, Holliday & Co., for the sum of $459.37 and costs, and to reverse this judgment the case was brought here upon a petition in error. The defendant in error moves to dismiss the proceedings for the reason that one of the plaintiffs in error, T. J. Kellam, died on February 4, 1896; that an administratrix of his estate was duly appointed on February 29, 1896; and that these proceedings have never been revived. Foilowing the decision in the case of Ballinger v. Redhead, 1 Kan. App. 434, 40 Pac 828, this motion will be sustained, and said proceeding is dismissed. (8 Kan. App. 54) HOHL v. REED et al. (Court of Appeals of Kansas, Northern Department, E. D. July 8, 1898.) MORTGAGES-FORECLOSURE-COMPLAINTS-NOTESINDORSEMENTS-LIMITATIONS. 1. A complaint against the grantees of mortgaged premises to foreclose the mortgage, alleging a subsisting cause of action on a note against the mortgagor, the execution of the mortgage when mortgagor was the owner in fee of the property, and that defendants claim an interest as remote grantees of mortgagor, states a cause of action, notwithstanding it is not specifically alleged that defendants' claim was junior and inferior to plaintiff's claim under the mortgage. 2. A complaint against the grantees of mortgagor to foreclose a mortgage, setting forth the note secured, in compliance with Code, § 123, providing that a complaint on a note is sufficient where it sets forth a copy, with the credits and indorsements thereon, and states the amount due, with interest, states a cause of action for foreclosure against such grantees, though it does not state a cause of action on the note against them, where it appears from the indorsements on said note that the action thereon is not barred against the mortgagor, and the indorsements are not denied by the answer, since Civ. Code, § 108, provides that allegations of indorsements shall be taken as true, unless the denial shall be verified by the adverse party. Error from district court, Wyandotte county; Henry L. Alden, Judge. Action by Rosalia Hohl against Addie B. Reed and her husband. There was a judgment on the pleadings for defendants, and plaintiff brings error. Reversed. Hutchings & Keplinger, for plaintiff in error. F. E. & J. A. Smith and Wm. J. Fuller, for defendants in error. PER CURIAM. Plaintiff in error sued the defendants in error to foreclose a mortgage made by one John A. McDonald. McDonald was not made a party to the suit. The petition alleges the making of the note and mortgage by McDonald; that at the time McDonald was the owner and in possession of the mortgaged premises; that the defendants, Reed and wife, "claim some title or interest in said property under and through the guarantees of the said John A. McDonald." The petition further alleges default in the payments of interest, taxes, and principal, and asks for a foreclosure of the mortgage. The note and mortgage are attached to the petition as exhibits, and made a part thereof. The note is dated October 15, 1886, and by its terms is due two years after date. The following indorsements appear upon the note: "Received this Apr. 15th, '87, on the within note, $55.00 (int.)." "Received on the within this 15th of October, 1887." "Rec'd on within this April 15, 1888, fifty-five dollars interest." "Received this 15th April, 1889, on the within, as six months' interest ($55), fifty-five dollars." "Received on the within this 5 April, '90, $55.00 for int., 6 mos., to Oct. 15, '89." "Rec'd on the within this 11th Feby. '91, $55.00, six months' interest, to 15th April, 1890." "Received on within, Feby. 4, 1891, $55.00, being six months' int., to Oct. 15, 1890." "Received on the within $55.00, Sept. 18, 1891, six months' int., to Apr. 15, 1891." "Rec'd on the within $55.00, May 12, 1892, 6 months' interest, to Oct. 15, 1891." "Rec'd on the within note this 17th, '92, to April 15, 1892, C. H. Carpenter, Agt." "Received, July 11, 1893, six months' interest on this note, to Oct. 15, 1892, of C. H. Carpenter, Agent." This action was begun July 10, 1895. The defendants answered-First, a general denial; second, that they are advised that the note and mortgage were executed as alleged, but decline to admit it specifically, and deny that such is the fact until the same is produced in court for their inspection; third, they admit that they are the owners in fee simple and in possession of the property set forth and described in plaintiff's petition, and deny that the note and mortgage are a lien in any manner upon the property, or that they or their property are in any wise held therefor; fourth, a former recovery and sale of the property, and an extinguishment of the mortgage thereby; fifth, reiterating their plea of former recovery and merger of the cause of action in judgment, they allege that the action is barred on the judgment by a one-year statute of limitations, being section 433 of the Code; sixth, that John A. McDonald, or his heirs and legal representatives, are necessary parties defendant; seventh, that McDonald died in May, 1889, leaving a wife and four minor children, that the note and mortgage were never presented to the administrator of the estate of John A. McDonald, and that the same are barred by the three-year statute of limitations, being section 81, c. 37, Gen. St. 1868. To this the plaintiff replied, denying the matters alleged by way of defense; admitting that the defendants claimed title to the property described in her petition, and were in possession of the same; but reiterates her averment that the defendants took said premises by deed of conveyance executed to Addie B. Reed by the grantees of John A. McDonald, who made the mortgage described in the pe tition, and further alleging that such pos session and title is junior and subject to the lien of said mortgage. After this reply was filed the defendants filed their motion for judgment upon the pleadings, which was lowed by the court, and the defendants had judgment for costs. It appears from the record that this motion was submitted without argument, and was decided in the absence of the plaintiff and her counsel. Afterwards a motion for a new trial was filed in due time, and denied by the court. The assignments of error are that the court erred in sustaining the motion for judgment upon the pleadings, and erred in denying the plaintiff's motion for a new trial. The questions presented are two: First. Did the pleadings, as a whole, disclose a cause of action in favor of the plaintiff and against the defendants? And, second, does it appear from the petition that, if ever a cause of action existed in favor of the plaintiff and against the defendants, as grantees of McDonald, was it barred by the five-year statute of limitations? It will be observed that at no time was this plea of the five-year statute of limitations urged by the defendants, either in their answer or by way of argument, prior to this proceeding in error. It is contended in behalf of the plaintiff in error that the petition, answer, and reply disclose a good cause of action. We are of the opinion that we need not resort either to the answer or to the reply to reach this conclusion. The petition alleges a subsisting cause of action upon the plaintiff's promissory note against McDonald. It alleges the making of the mortgage to secure the debt, and that at the time McDonald made the mortgage he was the owner in fee simple and possessed of the estate. To make the Reeds necessary parties defendant, it is alleged that they claim an interest in the property which they took by conveyance from the grantees of McDonald, the mortgagor. It is contended that it is nowhere alleged, either specifically or by implication, that this claim was junior and inferior to the claim of the plaintiff under her mortgage. We are unable to perceive how John A. McDonald, being the owner of the estate in fee and in possession, could part with his estate to his grantees, and his grantees thereafter part with the estate by conveyance to the Reeds, without creating a junior and inferior claim to the mortgage. Hence their presence, as defendants, in order to enable the plaintiff to foreclose her mortgage, is a necessity. A cause of action for the purpose of foreclosure was alleged against them, and upon this ground it was error for the court to sustain the motion for judgment upon the pleadings. Upon the other question the court was likewise in error. Section 123 of the Code adopts the Ohio short form of petition upon a promissory note. This was an action upon a promissory note. The foreclosure of * the mortgage was an incident thereto. Section 123, Id., says: "It shall be sufficient for a party to give a copy of the account or instrument, with all credits, and the indorsements thereon, and to state that there is due to him, on such account or instrument, from the adverse party, a specified sum, which he claims, with interest." This was done. It was not necessary, in order to charge the Reeds,-that is, to state a cause of action for foreclosure against them,-that the allegations of the petition should also disclose a cause of action on the note against them. If a cause of action existed against John A. McDonald, their remote grantor, it was sufficient. In Pears v. Wilson, 23 Kan. 346, the facts of which are the same as in the present case, the court held that it appeared from the petition that the action was not barred by the statute of limitations. The court, speaking through Justice Valentine, says: "The court below held that the plaintiff's note and mortgage were barred by the statute of limitations, and, as between him and Leu, rendered judgment accordingly. In this we think the court below erred. Section 108 of the Civil Code provides that, 'in all actions, allegations of the execution of written instruments and indorsements thereon * shall be taken as true, unless the denial of the same shall be verified by an affidavit of the party, his agent or attorney.' Now, no allegation of the petition concerning said indorsements on said promissory note was put in issue by any denial verified by an affidavit, and hence all said allegations and said indorsements must be taken as true; and everything that these indorsements will reasonably prove must also be taken as true, unless the contrary is shown to be true. Thus, it must be taken as true that on June 1, 1872, a payment of $100 was made on plaintiff's said note and mortgage, and on April 2, 1874, another payment of $50 was made on the note. See Greenl. Ev. §§ 121, 122. And, as men seldom pay debts unless they are liable to pay them, it must also be presumed that these payments were made by said John D. Wilson, who was liable on the note, or by himself and wife, who were jointly liable on the mortgage. Indeed, it will generally be presumed where a payment is shown to have been made, but where it is not shown who made it, that the party who is under legal obligation to make the same made it. Scholey v. Walsby, Peake, 24. It would be so much outside of the ordinary course of things-so unnatural-that any other person should make the payments that no presumption or supposition of that kind could be indulged in for a moment; and, presuming that Wilson, or Wilson and wife, made said payments, as the same are indorsed on said note, then neither said note nor mortgage was ever barred by any statute of limitations, not even as to the defendant Leu." The defendant Leu in the case referred to occupied |