revenue fund cannot exceed 10 mills on the dollar in any one year. The mere fact that a judgment has been rendered for the amount due for water supplied does not confer upon the city any greater power, or authorize it to levy a special tax in excess of 10 mills on the dollar to pay such expense.

(Syllabus by the Court.)

Error from district court, Republic county; F. W. Sturges, Judge.

Suit by the Chicago, Rock Island & Pacific Railway Company against R. T. Stanfield, treasurer of Republic county, Kan., and others. There was a decree for defendants, and plaintiff brings error. Reversed.

M. A. Low and W. F. Evans, for plaintiff in error. B. T. Bullen and E. W. Wagener, for defendants in error.

MCELROY, J. This action was brought by the Chicago, Rock Island & Pacific Railway Company against R. T. Stanfield, treasurer, R. B. Ward, sheriff of Republic county, and the city of Belleville, defendants in error, for the purpose of enjoining the collection of certain taxes amounting to $280.06, levied and assessed by the city of Belleville against the property of plaintiff. On the trial the court found for the defendants, and vacated the temporary injunction. The railroad company moved for a new trial, which was denied, and now presents the case to this court for review.

The case was tried on an agreed state of facts, which shows: That the city of Belleville, a city of the second class, levied taxes for the year 1896 on the property of the plaintiff, and on all attachable property in the city, on each dollar thereof: For general revenue purposes, 5 mills; for interest on bonds, 3 mills; for streets and alleys, 2 mills; for judgments, 16 mills. That the taxes levied on the property of the plaintiff for the year 1896 amount to the following sums: For general revenue purposes, $127.30; for interest on bonds, $76.36; for streets and alleys, $50.92; for judgments, $407.36. The plaintiff paid all the taxes except the sum of $280.06 of the amount levied to pay two judgments rendered against the city of Belleville for water rentals. The judgments were rendered on May 7 and October 9, 1896. There is nothing in the record to show that the amount due for water rentals accrued during the year 1896.

There are numerous assignments of error, all of which can be considered together, as they involve the same question. Are water rentals of a city of the second class to be paid out of the general revenue fund, which must be raised by a levy, "not to exceed ten mills on the dollar in any one year"? If this question should be answered in the affirmative, the judgment of the lower court must be reversed, and the collection of the taxes enjoined; for the agreed statement of facts shows that the plaintiff, at the proper time, paid to said city, for general revenue purposes, a sum equal to a levy of 10 mills

on the dollar for the year 1896. In Stewart v. Kansas Town Co., 50 Kan. 553, 32 Pac. 121, and Stewart v. Adams, 50 Kan. 560, 32 Pac. 122, it is held that supplies of water and light are among the daily necessities of a city, and fall within the class of expenses which are to be paid out of the general revenue funds. See, also, Clay Co. v. McAleer, 115 U. S. 616, 6 Sup. Ct. 199. If the city of Belleville had the power to levy the taxes in question, it must be found in paragraph 788, Gen. St. 1889, which provides that cities of the second class "are authorized and empowered to enact ordinances for the following purposes, in addition to the other powers granted by law: First. To levy and collect taxes for general revenue purposes not to exceed ten mills on the dollar in any one year." It will be observed that this paragraph limits the levy for general revenue purposes to 10 mills on the dollar "in any one year." The fact that the indebtedness for water rentals has been reduced to judgment does not change the rule, or confer upon the city any greater power, or authorize it to levy a tax in excess of 10 mills on the dollar. The judgment must be reversed, and, as there is no dispute as to the facts, the trial court is directed to make the injunction perpetual. All the judges concurring.

1. The receiver of an insolvent bank is the real party in interest on an appeal where the rights of the bank are involved.

2. A certificate by the clerk in proceedings in error that the foregoing is a full, true, and correct transcript of the record in the above-entitled cause as far as the motion or petition of the plaintiff in error is concerned is defective, in that it does not certify the transcript to be a full, true, and correct copy of the record and proceedings in the cause.

Error from district court, Cloud county; F. W. Sturges, Judge.

Action between the Metropolitan National Bank and the Republican Valley Bank (F. H. Butler, receiver). From a judgment for the Republican Valley Bank (F. H. Butler, receiver), the Metropolitan National Bank brings error. Motion to dismiss proceedings in error denied.

C. W. Van Demark, for plaintiff in error. Pulsifer & Alexander, for defendant in error.

PER CURIAM. The defendant in error moves the dismissal of the proceedings in error in this case for two reasons. The first is, necessary parties are omitted from the proceedings; and, second, that the record is insufficient to give the court jurisdiction.

There is nothing appearing upon the record by which we can say that there are any

parties omitted who are necessary, under the rule established by the supreme court and this court, to give this court jurisdiction to review the judgment. In the case of an insolvent bank in the hands of a receiver, the receiver is the real party in interest. He represents the creditors. The bank itself is before the court, its appearance having been entered by counsel.

The second objection is a more serious one. The certificate of the clerk says "that the foregoing is a full, true, and correct transcript of the record in the above-entitled cause so far as the motion or petition of the Metropolitan National Bank is concerned." The uniform rule established by the supreme court and this court is that the certificate must be that the transcript is a full, true, and correct transcript or copy of the record and proceedings in the cause unqualified. The certificate is defective, in that the clerk undertakes to certify what papers or what portion of the record is necessary for this court to have before it to determine the questions involved. The judgment upon which error is predicated was rendered on the 28th day of January, 1898, and the petition in error was filed in this court on the 17th day of April, 1898; so that the record may be completed if incomplete, or, if complete, the certificate of the clerk may be corrected to conform to the facts. If the record shall be corrected as above indicated within 30 days from the filing of this opinion, then the motion to dismiss will be denied; otherwise, it will be sustained. All the judges concurring.

GOLLOBER v. LINDNER et al. (Court of Appeals of Kansas, Northern Department, C. D. June 20, 1898.) DEMURRER TO EVIDENCE.

Where there is no evidence to sustain the cause of action, or where the evidence fails to prove any material issue, a demurrer to the evidence may be sustained.

Error from district court, Clay county; R. B. Spilman, Judge.

Action by N. Gollober against E. L. Lindner and others. From a judgment for defendants, plaintiff brings error. Affirmed.

Harkness, Dawes & Davis and B. B. Tuttle, for plaintiff in error. F. L. Williams, for defendants in error.

PER CURIAM. This action was brought by Gollober against E. L. Lindner, William Sharpe, and the Farmers' & Merchants' Bank. The plaintiff alleged in his petition: (1) The corporate existence of the Farmers' & Merchants' Bank with William Sharpe as president, E. L. Lindner as cashier. (2) That on November 24, 1894, E. D. Moore executed

and delivered to the plaintiff his promissory note in the sum of $460, on which was due $250.91. (3) That Moore was a retail dealer at Clay Center, largely indebted to wholesale merchants, and insolvent; that on the 24th day of November, 1894, the defendants, acting for themselves and as managing officers of the bank, and pretending to act as agents for Kate Lindner, T. F. Morgan, and T. F. Morgan as executor, entered into conspiracy with Moore whereby it does agree that Moore should execute notes to the bank and other persons designated, and that Moore should give chattel mortgages to secure the notes, equal to the value of the stock of merchandise, surrender possession of the mortgaged property to the defendants, for the purpose of cheating and defrauding the creditors of Moore, and for the purpose of fraudulently appropriating the property to the use of the defendants; that, pursuant to such fraudulent conspiracy, Moore executed and delivered sundry notes to the defendants, aggregating $3,772.70, which notes were secured by chattel mortgages; the defendants recorded the mortgages, and took possession of the property; that the notes and mortgage exceeded the aggregate actual indebtedness by at least $1,000, which fact was well known to all of the defendants; that, in pursuance of the conspiracy, the defendants caused the mortgaged property to be sold to Lindner for the sum of $4,000, and pretended that the debts and expenses incident thereto exceeded that amount. E. D. Moore died intestate and insolvent on January 28, 1895. The answer of the defendants was (1) a general denial; (2) res adjudicata. A trial was had before the court and jury. The defendants interposed a demurrer to the evidence, which was sustained. The plaintiff excepted, and presents the case to this court for review, and alleges (1) that the court erred in sustaining the demurrer; (2) that the court erred in overruling the motion for a new trial.

The only question presented is on the action of the court in sustaining the demurrer. When there is any evidence on the trial that tends to sustain the plaintiff's cause of action, it is the duty of the trial court to submit the case to the jury; but if there is no such evidence, or if the evidence fails to prove any of the material issues in the case, the trial court may sustain a demurrer to the evidence. We have examined the record, and the evidence does not prove, nor tend to prove, any unlawful conspiracy; that any of the mortgages were for an amount in excess of the real indebtedness existing; nor that any of the defendants committed any act tending to defraud the plaintiff or any of the creditors of Moore. We are unable to find any evidence in the record that tends to show the damage complained of arose by reason of any wrongful act of the defendants. The judgment is therefore affirmed.

The collection of a tax will not be enjoined on the ground of a merely excessive or unequal assessment, where no principle of law is violated in making the assessment, and the complaint is of an error of judgment only. In such case, the remedy is provided for by statute in the board of equalization.

Wells, J., dissenting.
(Syllabus by the Court.)

Error from district court, Lincoln county; W. G. Eastland, Judge.

Suit by A. F. Bryant against the board of county commissioners of Lincoln county and another. There was a decree for plaintiff, and defendants bring error. Reversed.

F. H. Dunham and David Ritchie, for plaintiffs in error. Geo. D. Abel, E. A. McFarland, and C. B. Daughters, for defendant in error.

MAHAN, P. J. The defendant in error brought an action against the board of commissioners and the county treasurer of Lincoln county to enjoin the collection of a part of the taxes levied upon his property in the city of Lincoln Center, charging that the board of commissioners, sitting as a board of equalization, had fraudulently, corruptly, and oppressively placed an excessive valuation on his property. A temporary injunction was allowed by the probate court, and upon the hearing was made perpetual. There is no evidence in the record of any corruption. There is no pretense upon the part of either the defendant in error or counsel that there was any fraud or corruption, but a mere mistake as to the value of the property, or, rather, a disagreement between the board of commissioners and the defendant in error as to the value of the property. The assessment complained of was made in the year 1894. The assessors for the county of Lincoln for that year, by agreement, assessed all of the property at what they assumed to be its actual cash value. The board of commissioners, as a board of equalization, reduced this assessment so as to correspond, as nearly as they could ascertain, with the assessed valuation of property in other counties in the state. The principal contention is that in doing this the board of equalization reduced the property outside of the city of Lincoln Center a greater per cent. than they did in the city. This is explained by the evidence of the commissioners that the property in the city was assessed by the city assessor at an estimated cash value lower in proportion than the property outside the city, and consequently was entitled to a less reduction, in order to make it correspond with the property in other counties. So that there is nothing upon which to base an in

Junction, but a mere difference in judgment as to the value of the property. However, the court, in its findings, bases the perpetual injunction upon the fact that, during the subsequent year of 1895, the board did reduce this and all other property on a particular street, and this property in particular $1,000, which is the basis or amount upon which the defendant in error desired to pay taxes for the year 1894. There is clearly no ground for an injunction. The tax was legal. The proceedings of the board were regular. Due notice was given of the equalization for the year 1894. The defendant in error appeared before the board, and obtained a reduction, in addition to that made by the commissioners upon their own motion, of $1,000 upon his property. Mr. Justice Cooley, in his admirable work on Taxation, at page 528, says: "But for a merely excessive or unequal assessment, where no principle of law is violated in making it, and the complaint is an error of judgment only, the sole remedy is an application for an abatement, either to the assessors or to such statutory board as has been provided for hearing it. If fraud is charged, equity may interfere, but equity has no jurisdiction, under its general powers, to correct a merely unequal or unjust assessment when there is a statutory board that may do so." This statement of the law admirably fits the facts in this case. The judgment of the court is without authority of law, and is reversed, and the case is remanded to the court below, with directions to dismiss the plaintiff's petition.

MOORE v. CHICAGO, R. I. & P. RY. CO. (Court of Appeals of Kansas, Northern Department, C. D. April 11, 1898.) STATUTE OF FRAUDS PAROL CONTRACT -PERFORMANCE-INJUNCTION.

The provision of a parol contract respecting an interest in real estate is taken out of the operation of the statute of frauds by full performance, and in such case injunction is an appropriate remedy to prevent the destruction of an easement so created.

(Syllabus by the Court.)

Error from district court, Republic county; F. W. Sturges, Judge.

Suit by John Moore against the Chicago, Rock Island & Pacific Railway Company. There was a decree in favor of defendant, and plaintiff brings error. Reversed, with directions..

B. T. Bullen, for plaintiff in error. M. A. Low and W. F. Evans, for defendant in error.

MAHAN, P. J. The plaintiff sought to enjoin the defendant from closing up a passageway under its track and over its right

of way on his farm. He claimed an easement of right of way under the track from one side of his farm to the other; that he reserved this easement at the time he deeded to the defendant its right of way over his farm; that by mistake, or through connivance of the agent of the defendant company with whom he negotiated regarding the right of way, and who drew the deed at the time, the reservation was omitted from the deed, and the agreement upon the part of the defendant to maintain a passage through its fill under the track; that the defendant did, notwithstanding this omission from the deed, construct the passage immediately upon the building of the railway, and maintained it ever since for his use, and ever since the construction of the road in 1887 permitted him to use it openly and notoriously until about the time of the commencement of this action, when the defendant closed up the passage by moving its line of fence, theretofore constructed so as to afford passage, and by beginning to fill up the space with earth. The plaintiff supported this contention by the evidence of two witnesses aside from his own testimony, and the evidence is clear and emphatic and uncontradicted that the agent of the defendant company did contract in the first instance, as a part of the consideration for the right of way, that the defendant company would, if possible, build and maintain a crossing in the ravine on the plaintiff's farm to afford passage back and forth from his farm house to his barn and stock yards under its track, and that pursuant to this agreement the engineer in charge of the construction of the work did locate the bridge at this particular point under the direction of the plaintiff, and did construct the same, and did build their fences along the line of the right of way in such a manner as to allow the plaintiff passage through under the track, and did maintain it so until about the time of the commencement of this suit; that the agent of the defendant company, at the time of the negotiations for the purchase of the right of way, prepared the deed, and pretended to the plaintiff that he had inserted therein this reservation and agreement to construct and maintain the passage under the track for the use of the plaintiff in passing from one part of his farm to the other; that, but for this agreement, the plaintiff would not have deeded the right of way,-would not have executed and delivered the deed; the plaintiff's land through which the railroad runs and through which the right of way was deeded at the time spoken of is a quarter of a mile wide and a mile long, and the right of way extends through this land lengthwise, separating it into two long, narrow fragments; that a part of his improvements is on one side of the right of way and a part on the other, and that it is necessary for him to pass back and forth daily, and often many times during the day. The evidence discloses the fact

that the plaintiff reduced his claim for damages to his farm and value of the land taken for the right of way from $2,500 to $800 on account of this crossing; that this agreement to construct and maintain this crossing was urged upon the plaintiff as a reason why he should so concede this reduction. | Notwithstanding the evidence was clear of the plaintiff's right, that he had performed all of his part of the contract, that the defendant had performed its part in paying the $800, and had likewise performed that part in relation to the construction of the passage for the right of way, and had permitted the free use of it for eight years or more, the court found against the plaintiff, dissolved the temporary injunction theretofore issued, and rendered judgment against the plaintiff for costs.

The plaintiff assigns as error that the judgment is contrary to the facts as clearly established by the evidence, and that the judg ment is contrary to law. That the judgment is contrary to the facts established by the evidence, is clear beyond a doubt. Defendant in error first insists that the record does not disclose that more than $100 in value is involved in the controversy, and that, therefore, this court has no jurisdiction to entertain the plaintiff's petition in error. We formerly denied a motion of the defendant in error to dismiss this case upon the same ground, and we are satisfied with our ruling on that motion. 53 Pac. 1132. They concede that they were proceeding to fill up this opening under the track when they were compelled to discontinue the work by the injunction granted in the case, contending that before beginning the work they built a surface crossing for the defendant over their line and right of way. They contend further that this opening that was called a crossing by the plaintiff is nothing more than the space between the piling of the bridge constituting a part of the track. They further contend that the evidence and contention of the plaintiff as to what the reservation was is so indefinite and uncertain that no action can be maintained thereon. While the remedy sought is in the nature of an action for specific performance of a contract, it is not that. The defendant had performed its contract. It is immaterial about the manner of its performIt was satisfactory to the plaintiff. It now seeks to deprive him of this right-of this valuable easement-by entirely destroying it. It is not necessary that we should determine, as counsel contend, just what size the opening in the embankment or roadbed should be,-how wide, how high,-if it was sufficient to answer the purpose of the plaintiff, and comply with the contract; and this it apparently did to the satisfaction of both parties until the defendant saw fit, to its own advantage, to repudiate it, and destroy the right,-take away the easement. Counsel contend, further, that it is indefinite and uncertain, because the evidence does not

ance.

disclose by whom the crossing should be maintained. In this counsel are mistaken. The evidence does show clearly that at the time it was the contract that the company should maintain the opening in its roadbed,the very essence of the easement,-and the court is not called upon, nor is it necessary, to supply any of these supposed defects or uncertainties. It is further contended that by the terms of the contract it is indefinite and uncertain as to the length or duration of this right of easement. The evidence is not indefinite or uncertain upon this. It became an appurtenance to the land under its very terms and conditions,-such an easement as a purchaser was bound to notice and respect.

The argument of the counsel for the defendant is that the plaintiff is seeking the specific performance of a contract; but, as above suggested, this is not true in fact, although it is, in effect, enforcing the continued performance of a contract, or rather restraining the defendant from repudiating its contract, and destroying a right, and at the same time retaining all the benefits it had obtained under the contract on its part. Counsel for the defendant further contend that the plaintiff is not entitled to the relief asked, because he did not pray in his petition for a reformation of the deed, and that no relief can be given him without a reformation of the deed, and in support of this they cite Cornell v. Railroad Co., 25 Kan. 613. The only principle decided in that case is that the terms of a written contract cannot be varied or extended by parol evidence. It does not support the contention of counsel that relief cannot be granted the plaintiff without a prayer in his petition asking that the contract be reformed. Indeed, it was not necessary that such a prayer should be in the petition if the facts alleged warranted such relief; nor would it be necessary, in order to afford the relief to which the plaintiff was entitled, that the court should first decree a reformation of the contract. Mr. Story, in his work on Equity Jurisprudence (section 330), in discussing this question, says: "Hence, in a variety of cases, where from fraud, imposition, or mistake, a contract of this sort has not been reduced to writing, but has been suffered to rest in confidence or in parol communications between the parties, courts of equity will enforce it against the party guilty of a breach of confidence, who attempts to shelter himself behind the provisions of the statute." The allusion to the statute is to the statute of frauds and perjuries, behind which the defendant seeks to shelter itself in this case. In section 437, Justice Story again says: "We have thus gone over the principal grounds in which courts of equity grant relief in matters of accident, mistake, and fraud. In all these cases it may be truly asserted that the remedy and relief administered in courts of equity are, in general, more complete, adequate, and perfect than they can be at common law. The remedy is more complete, adequate, and

perfect because equity uses instruments and proofs not accessible at law; such as injunction operating to prevent future injustice. *** Thus, if a deed is fraudulently obtained without consideration, or for an inadequate consideration; or if by fraud, accident, or mistake, a deed is framed contrary to the intention of the parties in their contract on the subject, the forms of proceeding in the courts of common law will not admit of such investigation of the matter in those courts as will enable them to do justice. * And if it finally appears that the deed has been improperly obtained, or that it is contrary to the intention of the parties in their contract, these courts will, in the first case, compel a delivery and cancellation of the deed. * * * In the second case, they will either rectify the deed according to the intention of the parties, or they will restrain the use of it in the points in which it has been framed contrary to or it has gone beyond their intention in the original contract."

Counsel for the defendant again contend that this deed, being the contract of the parties reduced to writing, cannot be enlarged or changed by parol evidence, as was held in the case of Cornell v. Railroad Co., supra. But it is no longer an open question that, where fraud or mistake is alleged, that it may be shown by parol evidence, and, if clearly shown, courts have adequate power to grant relief. Defendant contends further, in connection with the same matter, that, inasmuch as the defendant, the Rock Island Railway Company, was not the owner of the land at the time this right of way was purchased, but is the successor in interest of the company that constructed the road, it is a bona fide purchaser for value, and cannot be affected by this contract resting in parol; and the fact that the plaintiff was in the possession and use of this easement, openly and notoriously, was not sufficient to give it notice. The evidence sufficiently discloses the fact that the defendant company does not occupy the position of bona fide purchaser for value without notice of the plaintiff's rights.

The contention of counsel for defendant, under the second paragraph of their brief, is that the contract, not being in writing, and not being signed by the party to be charged therewith, is clearly within the statute of frauds and cannot be enforced. The contract was an entire one. The reservation of the easement and the covenant to maintain the same for the use of the plaintiff was a part of the contract under which the defendant acquired its right of way. That contract has been fully performed by both parties, and performance takes a case out of the operation of the statute. It does not lie in the mouth of the defendant to contend now, having received the full benefit of the contract, that the burdens of it shall not be performed by it. This is one of the