of the instrument, and regard it as a present, deed, directed the scrivener to deliver it operative, and binding conveyance? Appeal from District Court, Cheyenne County. Action to quiet title by Eva Donaldson against John Brewer. Judgment for defendant and plaintiff appeals. Affirmed. J. L. Finley, of St. Francis, and J. P. Noble, of Oberlin, for appellant. E. E. Kite, of St. Francis, and E. F. Murphy, of Goodland, for appellee. JOHNSTON, C. J. Action to quiet title to a tract of land, in which judgment was given against the plaintiff, who appeals. Eva Donaldson, the plaintiff, executed a deed purporting to convey a tract of land in Cheyenne county to the defendant, John Brewer, a half-brother of the plaintiff, and whether or not there was a delivery of the instrument is the question which divides the parties. The mother of the plaintiff, Mrs. Brewer, died owning personal property and real estate. Before her death she had arranged for the preparation of a will giving her personal property in equal shares to the plaintiff and defendant, her stepson, who had been residing with Mrs. Brewer, and also to give him the tract of real estate in question; but she died before the will was executed. The plaintiff, who was the only heir of her mother, had been residing with her husband in Wyoming for two or three years before the death of her mother. The defendant, not being an heir of Mrs. Brewer, acquired no interest in her estate; but, within a day or two after her mother's death, the plaintiff expressed a purpose to carry out the wish of her mother and proceeded to do so by transferring to the defendant one-half of the personal property. She also informed him that, as it appeared to have been her mother's purpose to give him the tract of land involved, she would give effect to that purpose by a conveyance of the land to the defendant. Subsequently she procured a deed to be prepared and afterwards executed it and formally acknowledged its execution. There is a dispute in the testimony as to the directions given by her to the scrivener ia respect to the delivery of the deed. She testified that after signing it the instrument was left with the scrivener for some writing or indorsement thereon, and at the same time she discussed with him whether he should forward it to her husband in Wyo ming for signature or she should do so herself, telling him that her purpose was to transfer the land if her husband would give his consent to the transfer, and not otherwise. She testified that the defendant brought the instrument to her on the day it was executed, and shortly afterwards she sent it to her husband, who declined to sign it, and for that reason the deed had never been delivered. On the other hand, there is the testimony of several witnesses to the effect that the plaintiff, after executing the There is to the defendant; that within a few hours [1-3] We have here only a question of Plaintiff insists that, as the transfer claimed by the defendant is a gift, the proof of delivery should be stronger and more convincing than in case of a purchase on a consideration. It is claimed by defendant that the payment of certain charges against the estate of Mrs. Brewer and the land, paid by him with the knowledge and consent of plaintiff, constituted a sufficient consideration; but, treating the transfer as a pure donation, it must still be held that the evidence was sufficient to support the finding and judgment of the court. Granting that a higher character of proof was necessary, it was the province of the court to determine whether it was sufficiently clear and convincing to prove a delivery of the gift. The fact that there was strong contradictory evidence cannot overthrow the finding of the trial court based, as we have seen, on evidence which of itself established the to have the order set aside upon the ground fact of delivery. that he had since ascertained that his anJudgment affirmed. All the Justices con- swer was not true. He alleged that it had curring. (103 Kan. 604) been made upon the theory that Schell had transferred a meat market to him for a consideration of $650 on which a cash pay JEWELL V. SCHELL (ELLIS, Garnishee). ment of $100 was made, and that he had learned since his answer was given that the meat market was covered by a chattel mortgage; that Schell had no right to sell or not in fact indebted to Schell in any sum. deliver the property to him; and that he was There was a further allegation that the plaintiff himself had sold the meat market to the defendant and procured the latter to A garnishee who purchased property from the defendant, leaving a balance of the purchase price unpaid, believing that the defendant owned the property, and had the right to trans-mortgage the property giving the proceeds fer it when in fact he had previously disposed to plaintiff in part payment of the property of it, made answer in response to the garnish- sold, and that plaintiff not only knew of the ment summons that he was indebted to the de- mortgage, but also well knew that by reason fendant for the balance of the purchase price, of the mortgage the garnishee was not in and an order directing the payment of the money into the court was accordingly made. fact indebted to the defendant in any sum, Shortly afterwards, the garnishee learned that and with this knowledge plaintiff allowed and the defendant had previously mortgaged and led the garnishee to believe that there were disposed of the property, and that consequently he was not indebted to the defendant, and no claims against the property. The garfurther learned that plaintiff had procured the nishee states that he was unacquainted with defendant to mortgage the property and had re- garnishment proceedings; and, on the advice ceived and applied the proceeds of it upon another account, and therefore knew that the of the clerk of the district court, he made the garnishee had not acquired the property and original answer as to his indebtedness; that was not indebted for it, and that knowing these he acted in good faith when he gave the misthings plaintiff had led and allowed the gar- taken answer, believing that a complete nishee to believe that the defendant had the transfer of the property had been made to right to transfer the property. Held, on an application promptly made by the garnishee, him, and, when he learned of the mistake that there were sufficient grounds to warrant and the facts as to the fraud of the plaintiff, the court in setting aside the order on the gar- he promptly moved to set the order aside. nishee and in allowing him to correct his answer so as to state the actual facts as to his The plaintiff demurred to the petition of the indebtedness to the defendant. garnishee asking for the vacation of the order, and, it being overruled, the plaintiff appeals. 2. GARNISHMENT 105-RIGHTS OF PLAIN TIFF. The plaintiff can have no greater rights as against the garnishee than the defendant has, and, where it appears that the garnishee was not in fact indebted to the defendant when the process was served, the plaintiff can claim nothing from him. Appeal from District Court, Sherman County. De Action by J. M. Jewell against H. C. Schell, with garnishment against Frank Ellis. murrer to garnishee's petition to vacate order to pay money into court overruled, and plaintiff appeals. Affirmed. C. C. Perdieu, of Goodland, for appellant. Frank J. Horton, of Goodland, for appellees. [1, 2] It is contended that the grounds stated in the petition did not warrant the court in vacating the order. The averments show clearly enough that the garnishee was mistaken in his original answer. He naturally supposed that the defendant had the right to transfer the meat market to him, and that, having only paid $100 on the property, he was indebted to defendant for the balance. The plaintiff understood that the property had been mortgaged, as he had procured the mortgage to be made and had applied the proceeds of it upon a claim he had against the defendant. He allowed the garnishee to think that he was acquiring the ownership of the property and was indebted JOHNSTON, C. J. This proceeding was to the defendant when he knew of the mortbrought to set aside a garnishment order. guge and that there was in fact no debt. No J. M. Jewell instituted an action for the re- equities arose in favor of the plaintiff by covery of money from H. C. Schell and caus- reason of the answer and order. Upon learned a summons of garnishment to be served ing the facts, the garnishee moved promptly, on Frank Ellis, who appeared and answered and no one was prejudiced by the erroneous that he was indebted to Schell in the sum of answer or the order based on it. In vacating $558. Upon this answer the court ordered the order and allowing a correct answer, the garnishee to pay into court out of the the court did no more than to allow the money in his hands belonging to Schell a truth to be told. If the order is treated as sum sufficient to pay plaintiff's judgment a judgment, it was properly opened up and against defendant, being $539. Shortly aft- vacated. There was not only the mistake of erwards, the garnishee appeared and asked the garnishee, but there was the misrepre ous facts and circumstances tended to prove that defendant compelled the boy to assist him in driving the father's cows to the defendant's corral. Such an invasion of the boy's freedom was itself an assault. 3 Cooley's Blackstone, 1200. sentation and fraud of the plaintiff as plead- [a gun and a whip was admitted; and varied, and these warranted the ruling that was made. On the merits of the controversy, the plaintiff had no greater rights against the garnishee than the defendant had. He was not entitled to any more than the garnishee owed to the defendant when process was served upon him. D. P. Johnson v. J. A. Brant et al., 38 Kan. 754, 17 Pac. 794; Rock Island Lumber & Manufacturing Co. v. Equitable Trust & Investment Co., as Garnishee, et al., 54 Kan. 124, 37 Pac. 983; Rich v. Roberts, 103 Kan. 116, 172 Pac. 996. The evidence examined, and held sufficient to support a conviction for assault. Appeal from District Court, Scott County. Julian Coyle was convicted of an assault, and he appeals. Affirmed. A. C. Banta, of Great Bend, and Leo T. Gibbens, of Scott City, for appellant. S. M. Brewster, Atty. Gen., and H. A. Russell, of Scott City, for the State. DAWSON, J. The defendant was convicted of making an assault on a boy. On the assumption that the boy's father was permitting his cattle to eat defendant's feed, de fendant went out one morning, armed with a shotgun and a whip, and compelled the boy, a lad of 11 years, to assist him in driving the cattle to his (defendant's) corral. Defendant was charged, not only with an assault upon the boy, but with having made a "gun play" the same morning upon the boy's father and sister. The jury ignored the charge based upon the assault on the father, and likewise the charge of assault upon the sister. As to those charges, no verdict was rendered, and neither party objected to this omission. The case is too clear for discussion, the record discloses no error, and the judgment is affirmed. All the Justices concurring. (103 Kan. 659) HERMAN v. GARDNER et al. (No. 21533.) When a party to an action deliberately puts himself in default, so far as he is concerned, the action may be tried and judgment may be rendered at any time thereafter. Appeal from District Court, Finney County. Action by John W. Herman against Samuel S. Gardner and others. Judgment for certain defendants, and plaintiff appeals. Af firmed. W. C. Pearce, of Garden City, and C. M. Williams, of Hutchinson, for appellant. Fred J. Evans, of Garden City, and Roscoe Wilson, of Hutchinson, for appellees. MARSHALL, J. The plaintiff, John W. Herman, appeals from an order refusing to set aside a judgment rendered against him. In March, 1912, judgment was rendered in favor of the plaintiff and against the defendants, including J. F. Anderson (now deceased) and Mary V. Anderson, quieting title in the plaintiff to certain real property in Finney county. Service was by publication, and judgment was rendered by default. In August, 1914, J. F. Anderson filed his motion to open the judgment and be permitted to defend. That motion was allowed on March 15, 1915, and J. F. Anderson then filed his answer and cross-petition. Anderson asked for judgment against the plaintiff in the sum of $10,000. The plaintiff asked, and was given, 30 days in which to plead to the answer and cross-petition. On May 10, 1915, the court, on the motion of the plaintiff, set Defendant contends that the evidence to aside the order giving him 30 days to plead. support his conviction of assault upon the The plaintiff then announced in open court boy was insufficient. The boy testified plain- that he intended to appeal to the Supreme ly, simply, and positively that defendant Court from the order opening the judgment pointed the shotgun at him and ordered him quieting title in his favor. That appeal was to help turn the cows towards defendant's afterward taken. On July 28, 1915, judgcorral. That alone would be sufficient, if the ment was rendered against the plaintiff and jury saw fit to believe it, and if their ver- in favor of J. F. Anderson for $4,000. The dict had the approval of the trial judge. 3 judgment recites that the plaintiff failed to Cyc. 1022, 1025; 40 Cyc. 871. Here, however, answer, reply, or otherwise plead to the anthere were some corroborative circumstances. swer and cross-petition of defendant J. F. The father testified that he heard his son Anderson; that the plaintiff did not appear crying. The fact that the defendant carried on the trial, either in person or by attorney; and that J. F. Anderson introduced his evi- [ dence and rested. On September 15, 1915, the plaintiff filed his motion to vacate the latter judgment on the ground of irregularity in obtaining the same, and on the further ground that the judgment was rendered before the action regularly stood for trial. When the plaintiff procured the order setting aside the order granting 30 days to plead to the answer and cross-petition, the trial of the cause was, on Anderson's application, continued until the next adjourned term of the court. The plaintiff's motion to set aside the judgment against him alleged: "That trial of the issues in this case on the 10th day of May, 1915, was continued until the next ensuing adjourned session of said court. That an adjourned session of said court after May 10, 1915, was held on June 30, 1915, but this cause was not called for trial, nor in any manner presented to the court, nor was it continued for trial to any other adjourned session of the court. That at said adjourned session, on said June 30, 1915, local counsel for said Anderson, Mr. Fred J. Evans, was present in court, as was also W. C. Pearce, local counsel for said plaintiff, but the said defendant Anderson took no steps toward bringing said cause to trial at that time, there being nothing done in said cause on June 30th. Counsel for defendant Herman was of the impression and believed that said case would not be called for trial until the next regular term of said court. That afterwards, and on July 28, 1915, another brief adjourned session of said court took place. That said plaintiff and said Anderson were both nonresidents of this county, and were neither one present at said session. That said W. C. Pearce was present at said session of the court during a good part of the time the court was in session, and during that time said cause was not referred to nor called for trial. That said Pearce was physically unable to attend the entire session of said court, and when he left the court room he went home and there remained the balance of the day. That he knew nothing of the matter of said cause being called for hear ing on said day, and was not advised nor in formed that it was the intention of counsel for Anderson to present said case at said time. "Plaintiff further represents and shows unto the court that at the time of presentation of said case on July 28, 1915, the record showed that plaintiff intended to appeal from the order of this court heretofore obtained, and had actually appealed said cause to the Supreme Court of Kansas." These cases do not support the position taken by the plaintiff, but no good purpose will be served by showing wherein they differ from the one now under consideration. The judgment is affirmed. All the Justices concurring. (103 Kan. 672) LINN COUNTY BANK v. DAVIS et al (No. 21570.) (Supreme Court of Kansas. Nov. 9, 1918.) (Syllabus by the Court.) 1. FRAUDULENT CONVEYANCES 47-BULK SALES LAW-CREDITORS-TITLE. Where, upon the sale of a stock of merchandise, the vendor furnishes a list of creditors, from which one is omitted, and the list is not verified by his oath, as required by the bulk sales law, the title does not pass as against the omitted creditor, and he may follow the goods into the hands of the buyer. 2. FRAUDULENT CONVEYANCES 47-BULK SALES LAW-"Sale or DISPOSAL." A chattel mortgage of a stock of merchandise, at least when accompanied by the taking of possession by the mortgagee, is a "sale or disposal" within the meaning of that phrase as used in the provision of the bulk sales law requiring a list of creditors to be furnished in order to render such a transaction valid. 3. CHATTEL MORTGAGES 190(1)-SALES ACCOUNTING BY MORTGAGOR-INVALIDITY. A chattel mortgage on a stock of merchandise, from which sales were permitted to be made by the mortgagor without any accounting, is held to have been invalid. 4. FRAUDULENT CONVEYANCES 322-SUBROGATION 14(1) BULK SALES ACTRIGHTS OF PURCHASER-RECOVERY. un Where a purchaser of a stock of merchandise, who has been furnished with an verified list from which one creditor is omitted, is innocent of intentional wrong, he is entitled, when sued by the omitted creditor, to be subrogated to the rights of the listed creditors, whose claims he has paid, and the plaintiff's recovery should be limited to that proportion of the value of the goods which his own claim bears to the total indebtedness of the vendor at the time of the sale, including a debt owing to the purchaser which formed the consideration for the transfer. 5. FRAUDULENT CONVEYANCES ~~237(1), 263 (1)-BULK SALES LAW-RIGHTS OF CRED ITORS. Although a creditor may invoke the benefit of the bulk sales law by a direct action against one who has purchased goods without the requirements of that statute having been complied with, yet if he elects to proceed by garnishment, in an action on his claim against the seller, allegations regarding the sale have no office to perform in the petition. Appeal from District Court, Reno County. There was evidence to support these allegations of the plaintiff's motion. From the order denying that motion the plaintiff appeals. J. W. Herman deliberately put himself in default, and thereafter, so far as the record shows, failed to indicate to the court that he intended to further contest with Anderson, except through an appeal to this court. O. L. Davis, with garnishment against R. Under these circumstances, it cannot be said that there was any irregularity in obtaining the judgment; neither can it be said that judgment was rendered before the action regularly stood for trial. Leonard v. Hargis, 58 Kan, 40, 48 Pac. 586. To support his contention the plaintiff cites Sawyer v. Bryson, 10 Kan. 199; Johnson v. Ware, 67 Kan. 840, 73 Pac. 99; Patterson v. Oil Co., 101 Kan. 40, 165 Pac. 661. L. Glascock. Judgment for the garnishee, and plaintiff appeals. Reversed, and cause remanded. Carr W. Taylor, of Hutchinson, for appel lant. C. M. Williams, of Hutchinson, for ap MASON, J. On March 20, 1917, O. L Davis, a merchant, executed a bill of sale on his stock to R. L. Glascock, who took pos-liams v. J. W. Crowdus Drug Co. (Tex. Civ. session thereof. On March 24, 1917, the App.) 167 S. W. 187. Linn County Bank, a creditor of Davis, [2] 2. So far, it has been assumed that the brought an action against him upon its Bulk Sales Law applies to the transaction claims, and caused a garnishee summons to involved. A doubt on this question arises be served upon Glascock, who filed an an- from evidence that the bill of sale referred swer denying any liability to Davis. The to was given as security, and from the cirplaintiff took issue on this answer on the cumstance that at the time of its execution ground that the transaction between Davis and Glascock involved a violation of the Bulk Sales Law, inasmuch as it had been given no notice thereof. A trial resulted in a judgment in favor of the garnishee, and the plaintiff appeals. [1] 1. At the time of the execution of the bill of sale, the seller gave to the buyer a list of his creditors, complete except for the omission of the plaintiff. The buyer (the garnishee), having no knowledge of the existence of the plaintiff's claim, paid off all the other creditors. He contends that these facts protect him from liability, assuming that the Bulk Sales Law is applicable to the transaction. the buyer agreed in writing to reconvey the property upon the repayment of the purchase price within a fixed time. If, however, the bill of sale is deemed to have been in legal contemplation a chattel mortgage, we still regard it as constituting a "sale or disposal" of the stock within the meaning of the statute. If the owner of a stock of merchandise, while allowed to sell it only upon notice to his creditors, could mortgage it effectively without such notice, the evasion of the statute would be so easy as to deprive it of all practical force. In this state the title to chattels passes by the execution of a mortgage (Gen. Stat. 1915, § 6501), which therefore amounts to a sale, or at least to a disposal. This view finds support in decisions elsewhere. Baker v. Nipper (Tex. Civ. App.) 198 S. W. 596; Semmes v. Stecher Brewing Co., 195 Mo. App. 621, 187 S. W. 604. In some jurisdictions what might seem to be a contrary conclusion is reached, but this is by reason of local statutes under which the mortgagor of chattels continues to be their owner. Des Moines Packing Co. v. Uncaphor, 174 Iowa, 39, 156 N. W. 171; Hannah & Hogg v. Richter Brewing Co., 149 Mich. 220, 112 N. W. 713, 12 L. R. A. (N. S.) 178, 119 Am. St. Rep. 674, 12 Ann. Cas. 344; Dill et al. v. Ebey, 27 Okl. 584, 112 Pac. 973, 46 L. R. A. (N. S.) 440. There is some conflict of judicial opinion as to the effect of the omission of one or more creditors from a list otherwise properly furnished in accordance with the Bulk Sales Law, at the time of a sale of a stock of goods. In some jurisdictions it is held that in such a case the omitted creditors have no remedy against the buyer (Coach v. Gage, 70 Or. 182, 138 Pac. 847; International Silver Co. v. Hull, 140 Ga. 10, 78 S. E. 609, 45 L. R. A. [N. S.] 492), even if he learns of their claims before making payment (Glantz v. Gardiner [R. I.] 100 Atl. 913, L. R. A. 1917F, 226). A view more in keeping with the spirit and purpose of the statute is that the buyer is bound to hold any part of the price [3] 3. It appears that in May, 1916, Davis still under his control when he is advised of had executed a chattel mortgage on the stock the existence of a creditor not mentioned in to Glascock to secure the same debt, and it the list. In re Thompson (D. C.) 242 Fed. is suggested that this gave a valid lien 602. See, also, Rabalsky v. Levenson, 221 which is a protection to the garnishee. AsMass. 289, 108 N. E. 1050. Here the transfer suming that this mortgage, if otherwise of stock was made in consideration of a pre- valid, would not itself have been void under existing debt, and it seems that (inasmuch the Bulk Sales Law, it cannot be regarded as a release procured by the debtor's, fur- as affecting the present situation, for it pernishing an incomplete list of creditors, in mitted sales by the mortgagor without an acviolation of the law, would be ineffective) counting, thus rendering it ineffectual (Bank the buyer would have parted with nothing in v. Hardman, 89 Kan. 212, 131 Pac. 602), and the transaction, and would therefore be an- the mortgagee said of it on the stand that swerable to the omitted creditor. That, how- "this merchandise stuff was changing hands ever, need not be determined, for the same all the time and it wasn't security." result follows from another circumstance. [4] 4. It results from these considerations The statute requires the list of creditors that error was committed in denying the given to the buyer to be certified by the plaintiff all relief. The extent of his reseller under oath to be complete. Gen. Stat. covery, however remains to be determined. 1915, § 4894. No such verification was made The goods in a sense constituted a trust in this case. If the buyer had insisted upon fund for the benefit of all creditors alike, and the law being followed in this regard, it is as the purchaser was free from intentional conceivable that the seller would have used wrong, he may justly be subrogated to the more diligence in assuring himself of the rights of the creditors whose claims he has completeness of the list. At all events, the paid off. Note 51 L. R. A. (N. S.) 343; L. buyer, having closed the deal without requir- R. A. 1917D, 1067. Nor is any reason aping a compliance with the statute, acted at parent why his own claim should not be as his peril, and the title he received is subject favorably treated as those of others. We |