tained; that is, the result of injury by reason of the appropriation of the right of way. But we do not think this court has ever gone so far as to say that lands situated, with respect to the right of way appropriated, like the lands described in sections 9 and 15 are, should be considered in the assessment of damages because of the appropriation of the right of way. It is true that the evidence shows that the plaintiffs pastured these lands, and to that extent used them in connection with lands in section 10. But so they might pasture the land if it was in section 36 or section 6; but we do not think that would authorize the assessment of damage thereto by reason of a right of way condemned across the S. E. 4 of section 10. These lands are not in a compact body. The land in section 9 is a mile away from the home farm, with a whole section of land belonging to a stranger intervening. But the defendant says this land corners with the N. W. of section 15, and that the N. W. of 15 corners with the S. E. of 10, the lot over which the right of way was condemned, and therefore all of these lands are contiguous; and, as they are used as one farm by reason of these lands in sections 15 and 9 being pastured in connection with the home farm, it is proper under the decisions of this court to take them into consideration in assessing damages to the lands of plaintiffs below on account of the right of way over the land in section 10. If this were true, then, if the plaintiffs below owned the N. W. % of 16, and it was used as a pasture by the plaintiffs in connection with the home lands, that would have to be considered in the assessment of damages, because it cornered with lands that by a succession of corners reached the home tract, affected by the right of way. It is only when other lands are so situated with respect to the tract affected by the right of way that their value consists largely in their use as a single farm in connection with the tract affected, and the appropriation of the right of way has destroyed or seriously injured that use, that they are considered in the assessment of damages. In this case it is physically impossible for the plaintiffs below to go from their lands in section 10 to their lands either in sections 15 or 9 without going upon the lands of other owners. We think they can still reach these lands by crossing the lands of others by making a new lane at small expense; and if they cannot they fail to show that they have any right of way over other lands to these lands that may not be shut off at any time. As this case goes back for a new trial, we are of the opinion that the lands in sections 9 and 15 should be dropped out of the case. The motion to reduce the verdict in this case should have been sustained. The special verdict, which, by its terms, covers and specifies all damages that we think could possibly arise in this case, fixes the damages in the aggregate, at a sum $400 less than the amount of the general verdict; and when there is a discrepancy between the general and special | verdicts the latter controls. On the other hand, it is not error to allow interest on the sum found as damages, and the motion to strike out the item of interest was properly refused. There are other questions raised in this case by reason of the court's refusal to give certain instructions and to submit certain questions to the jury; but, as the case will be reversed without considering these complaints, we will not notice them. It is recommended that the judgment of the district court be reversed, and case remanded for new trial. PER CURIAM. It is so ordered; all the justices concurring. (45 Kan. 599) NEISWANGER V. MCCLELLAN. (Supreme Court of Kansas. March 7, 1891.) STATUTE OF FRAUDS-ASSUMPTION OF DEBT OF THIRD PERSON. A purchaser who accepts a conveyance of real property, reciting that there is a mortgage lien thereon, which the purchaser assumes to pay, cannot avoid the payment of such lien by a claim that it was a verbal promise to pay, and void by the statutes of fraud. (Syllabus by Simpson, C.) Commissioners' decision. Error from district court, Osborne county; CLARK A. SMITH, Judge. Walrond, Mitchell & Heren and H. P. Welsh, for plaintiff in error. Hays & Pitts, for defendant in error. SIMPSON, C. The defendant in error sued the plaintiff in error in the district court of Osborne county to recover the sum of $381, with interest at 7 per cent. from March 1, 1887. He alleged in his petition that on the 1st day of February, 1887, he sold and conveyed to the plaintiff in error lot 6, in block 6, in the town of Bloomington, in said county, and a small stock of goods and merchandise. As a part consideration for the lot and goods so sold the plaintiff in error agreed to pay a certain note given by W. H. Snyder to S. S. Warren, secured by mortgage on lot 6, the payment of which the defendant in error had assumed and was bound to pay. That said note was past due at the time of the sale from defendant in error to plaintiff in error, and judgment had been obtained on it, and said lot ordered sold. That the plaintiff in error had paid all the purchase price of said lot and goods except the note secured by mortgage on said lot. That Warren caused said lot to be sold, but he only realized on the sale the sum of $89, and the defendant in error was compelled to and did pay the balance of said judgment, amounting to the sum sued for. The plaintiff in error filed an answer generally denying all the allegations in the petition. Trial was had at the October term, 1887, and the material facts are recited in the following findings of the district court: Findings of fact: "(1) On the 1st day of May, 1886, the plaintiff became the owner of lots 6 and 7, in block 6, of the townsite of Bloomington, county of Osborne, state of Kansas, by purchase of the same by deed of conveyance of same by W. H. Snyder and S. C. Snyder, his wife, A. D. Booze and L. Booze, his wife. In said deed of conveyance it was stipulated that the plaintiff, Dorsey McClellan, should assume the payment of the mortgage of $375, with interest from that date. That on the 26th day of February, 1887, in an action then pending in the district court of said Osborne county, a judgment of foreclosure was rendered in an action in which S. S. Warren was plaintiff and Dorsey McClellan and Ann McClellan, W. H. Snyder and wife, and A. D. Booze and wife, were defendants. Judgment of foreclosure was rendered,-judgment of $395 and costs, and interest at 8 per cent. on the judgment, and foreclosure sale ordered of the property mortgaged to secure said amount. Personal judgment was not rendered against Dorsey and McClellan and wife. but only a judgment of foreclosure. That the mortgage foreclosed in said action and upon which said judgment was rendered included with other property lots 6 and 7, in block 6, in the town-site of Bloomington, Osborne county, Kansas. That a short time prior to the 23d day of March, 1887, the plaintiff contracted to sell and did sell to the defendant a stock of goods and merchandise situated in building on lot 6, block 6, in said town of Bloomington, and in which he, McClellan, had a half interest; and also in the same transaction contracted to sell lots 6 and 7, block 6, in the town of Bloomington, as aforesaid, to the defendant, Hal. W. Neiswanger. That as a part of the consideration of the purchase price of said lots and stock of merchandise the defendant, Hal. W. Neiswanger, contracted to assume the payment of the judgment and costs above described. That during the entire transaction no mention had been made to the plaintiff, Dorsey McClellan, that the purchase was being made in the interest of any other person or for any other person than the defendant himself. The defendant took possession of the goods, and drew a part of them, at least, to Osborne, prior to the 23d day of March, 1887. That prior to the 23d day of March, 1887, defendant prepared a deed for the plaintiff, Dorsey McClellan, and Ann McClellan, to execute for lots 6 and 7, block 6, in the town-site of Bloomington, Osborne county, Kansas. That said deed was prepared, conveying said lots to David Neiswanger, instead of Hal. W. Neiswanger. That said deed contained the usual covenants of warranty, with the following exception: 'Except judgment of $395, with interest at 8 per cent., and costs of $6.80, which party of the second part assume.' That the plaintiff, Dorsey McClellan, was unable to read the deed for himself, and that the defendant, Hal. W. Neiswanger, read the deed to McClellan and wife, as running to himself, Hal. W. Neiswanger, and with the exception as above found. That the deed was signed by Dorsey McClellan and Ann McClellan on the 23d day of March, 1887, and acknowledged before Hal. W. Neiswanger, notary public, on that day. That as the deed now appears the exception in the general warranty reads: Except judgment of $395, with interest at 8 per cent., and costs of $6.80, which party of the first part asume.' That the court finds from the evi dence this change has been made since the execution of this deed. This action was begun by the plaintiff on the 12th day of July, A. D. 1887, and the said deed from McClellan and wife to David Neiswanger was filed for record in the office of the register of deeds of Osborne county, Kansas, on the 12th of August, 1887, at 9 o'clock A. M. That on the 8th of April, 1887, an order of sale was issued by the clerk of the district court of Osborne county for the sale of the property described in the mortgage and foreclosure in the above-mentioned action. That the same was returned, no sale being made, and that on the 6th of June, 1887, another order of sale was issued, upon which the sheriff of said county proceeded and did sell lots 6 and 7, in block 6, in the townsite of Bloomington, in said county, and that the said lot 6 was sold to W. H. Snyder for $88, and that lot 7 was sold to Hal. W. Neiswanger for $15. That at the date of said sale said judgment and interest amounted to $406.67, and the costs of suit to that time, $26.90. That by the sale of said lots was realized $103. The judgment and costs at that time amounted to $433.57; the amount realized from the sale of the lots, $103; which leaves a balance of $330 57. The interest on that amount to date is $9.77; the total to date, $340.34. That the sale made under said order has since been confirmed by the said district court, and deeds to said lots made by the sheriff in pursuance of said sale. That the remainder of said judgment was paid by W. H. Snyder, and that the plaintiff, Dorsey McClellan, has paid W. H. Snyder the full amount of said judgment before the beginning of this action. That the deed above mentioned, executed on the 23d day of March, 1887, from Dorsey McClellan and Ann McClellan, his wife, to David Neiswanger, was immediately delivered to Hal. W. Neiswanger, and has not since been in the possession of the plaintiff. That the change in the covenant of warranty was made without the knowledge of plaintiff; also that neither party to the suit knew of the mistake in the de scription of the lots until very recently, and long after the commencement of this suit." Conclusions of law: "The court finds as a matter of law that the plaintiff is entitled to recover from the defendant the sum of $340.34, with interest from this date at 8 per cent., and costs." A motion for a new trial was filed and overruled, and the court made these additional findings: "The court finds that the deed made by Dorsey McClellan and wife to David Neiswanger was not filed for record until some time after the bringing of this action; that the plaintiff was ignorant of the fact that there was any mistake in the description of the lands intended to be conveyed, and of the fact that said deed run to David Neiswanger; that the defendant was also ignorant of the mistake in the description of the lots until a few days before the commencement of this trial; that the plaintiff had no actual knowledge of the mistake in the description, or that it run to David Neiswanger, until the commencement of this trial; that during the trial, when the fact was made known to the court that there was a mistake in the description of the lots intended to be conveyed, the court offered to require the plaintiff to amend his petition to conform to the facts proven in this particular, and to tender a deed conveying the lots intended to be conveyed; that the defendant's attorney at that time did not demand such deed; that on the argument of the motion for a new trial the attorney of the defendant, among other things, complained that no deed had been executed or delivered conveying to the defendant or other person from the plaintiff the lands described in the plaintiff's petition. Whereupon the court required the plaintiff to bring into court a deed properly acknowledged and executed, conveying to the defendant the lots intended to be conveyed in the original deed, conveying all the right that the plaintiff had on the 23d day of March, 1887, with general covenants of warranty against all incumbrances except the judgment in question in this action; whereupon the attorney of the defendant stated at the time that the defendant did not waive any rights which he may have or which he may have had by reason of the fact that the deed was not executed and delivered before the commencement of this action; whereupon the plaintiff and wife tendered to the said defendant a deed to lots 6 and 7, in block 6, in the town of Bloomington, said deed containing a stipulation that the grantee assumes to pay said judgment; whereupon the said defendant refused to accept said deed, and stated as a reason therefor that the same did not conform to the agreement of the parties, nor the order of the court; whereupon the court directed the plaintiff to execute and deliver to the defendant a deed conveying said lots without including in said deed the aforesaid stipulation, 'that the grantee assumes to pay said judg ment,' which the plaintiff accordingly did on the 28th day of October, A. D. 1887, said deed being executed and acknowledged by both plaintiff and wife to the said defendant, which deed was delivered to the defendant; whereupon the court, on the 28th day of October, 1887, overruled said motion for a new trial." The case is brought here for review, and numerous errors are assigned, and among them it is claimed that the facts set forth in the petition are not sufficient to authorize any judgment against the plaintiff in error. The precise question with respect to this contention is that there is no allegation in the petition with whom the contract was made assuming the payment of the indebtedness to Warren. There is this allegation in the petition, following the statement, that the plaintiff below had sold to Neiswanger lots 6 and 7, in block 6, and a stock of merchandise, and that in part payment of the same "the said defendant agreed to pay and discharge a certain note given by one W. H. Snyder to one S. S. Warren, which note was for the sum of $375 and interest, and costs due thereon, and was secured by a mortgage on said lot, and the payment of which note this plaintiff had assumed.' It is plain from this statement that the agreement was with the plaintiff, and that the allegation was sufficient to support the judgment. The next contention is that the promise to pay the mortgage was a verbal one, and not binding within the statutes of fraud. There are several very conclusive answers to this question, -one of which is that, having secured and retained the possession, use, and enjoyment of the property by virtue of the contract, he will not be heard to say now that it was not binding upon him. And another very good reason is that this court has said in the case of Morris Center v. McQuesten, 18 Kan. 476, that a promise made to a debtor, for a valuable consideration, to pay his debt to a third person, is not a promise to answer for the debt of another person, within the statutes of fraud, which apply only to promises made to creditors; and such a promise need not be in writing. Another good reason is that it is a part of the purchaser's money, and the vendor has a right to direct to whom it shall be paid. Another very good answer is that he accepted a conveyance from McClellan and wife, in which there was a written assumption of this particular indebtedness; for it abundantly ap pears, after the conveyance was reformed so as to express the real contract between the parties, that this plaintiff in error had expressly obligated himself in writing to pay this special indebtedness. The petition alleged that the plaintiff had agreed to pay the mortgage, and the defendant in error had the right to prove the agreement to pay in the manner developed at the trial; and in doing so it cannot be successfully contended that irrelevant and incompetent evidence was admitted. Again, it is said that there was not sufficient evidence to support the findings of fact made by the trial court. This objection is made upon the theory, as we gather it from the brief, that parol evidence is not admissible to contradict a writing. Counsel mean that when the deed from McClellan and wife to Neiswanger was introduced in evidence it was discovered, or rather, it was charged, that it had been changed since its execution and delivery in this respect, to-wit, when executed it read that the mortgage indebtedness on the lot was stated, and these words followed: "Which party of the second part assume;" but when introduced in evidence it read. "Which party of the first part assume. The court found upon sufficient evidence that the word "second' had been changed since the execution and delivery of the deed to "first," and this certainly was no violation of the rule. Another complaint is that the court allowed 8 per cent. interest on the amount claimed, when the petition only claimed 7 per cent. We have been through this record carefully several times, and read the evidence attentively. The evidence and the concurrence of the circumstances surrounding the transaction very strongly impresses us with the belief that substantial justice has been done between these parties by the judgment rendered in the court below, and the errors complained of are not sufficient to reverse under these circumstances. The judginent must be "9 modified so as to bear interest at the rate of 7 per cent., and with this modification we recommend that it be affirmed. PER CURIAM. It is so ordered; all the Justices concurring. (45 Kan. 636) CREAGER et al. v. SNYder. (Supreme Court of Kansas. March 7, 1891.) CONSTITUTIONAL LAW-APPROPRIATION OF PUBLIC MONIES-ISSUANCE OF BONDS. Chapter 236 of the Session Laws of 1887, being an act to authorize Mound City township, in Linn county, to vote bonds to reimburse citizens of the township for sums advanced to aid in the construction of a court-house, is not unconstitutional. (Syllabus by Green, C.) Commissioners' decision. Error from district court, Linn county; C. O. FRENCH, Judge. W. R. Biddle and Biddle & Smith, for plaintiffs in error. S. H. Allen, for defendant in error. GREEN, C. This was an action brought in the district court of Linn county to perpetually enjoin and restrain the board of county commissioners of Linn county from levying a tax to pay the interest upon certain bonds, issued under chapter 236 of the Session Laws of 1887. It is disclosed in the record before us that, prior to the year 1885, Linn county was the owner of a tract of land in Mound City, known as the "Public Square;" that during that year, upon the application of citizens of the township in which Mound City is situated, leave was granted by the board of county commissioners of the county to build a court-house on such public square; that certain citizens procured subscriptions from other citizens of the township for the purpose of erecting a court-house; a committee of citizens then proceeded to and did erect the walls of a suitable building for a court-house, and put on a roof, but no floors were laid, and no doors or windows were put in: that after the erection of the walls of said building, and during the year 1886, the building, in its unfinished condition, was formally donated to the county, and accepted by the board of county commissioners, as a court-house, and taken possession of and completed at the expense of the county, and has since been used as a court-house and forno other purpose; and that the building and grounds belong to Linn county. The building cost, in the condition it was donated to the county by the citizens' committee, $14,500, which had been contributed by various citizens of the township. In the year 1887 the legislature passed chapter 236, “An Act to authorize Mound City township, in Linn county, to vote bonds not to exceed seventeen thousand dollars, to reimburse citizens of said township for sums advanced by said citizens to aid in the construction of a court-house in Mound City." Subsequently an election was held in the township, and it was determined, by a vote of 240 for to 143 against, that the bonds of the township should be issued for $14,500, and the vote was duly canvassed by the board of county commissioners and the bonds issued, showing upon their face that they were is sued under the authority of chapter 236, Sess. Laws 1887. This suit was commenced by a tax-payer of the township, and the court below granted a perpetual injunction against the defendants below, restraining them from levying a tax to pay any interest on the bonds issued under said chapter 236, holding that the same was unconstitutional. The plaintiffs in error bring the record here for review. It is urged that the legislature had the right to authorize the township to issueits bonds for the purpose designated, notwithstanding the fact that there may have been no legal obligation resting upon the township to refund the different suma subscribed and paid by the various citizens, to be used in the construction of this court-house. The proposition involved is whether or not this law, which recognizes the right, and authorizes the municipality, upon a vote of the people, to assume and pay certain obligations of an equitable character, can be upheld. One of the canons of constitutional construction in this state is that no slight difference of opinion will authorize the judiciary to set aside the action of the law-making power, or to nullify an act of the legislature. The judicial department should not interfere with the legislative conscience, unless there be a clear violation of some prorision of the constitution. State v. Barrett, 27 Kan. 213. Text-writers and courts of the highest legal learning and respectability have said that the fact that a claim against a municipal or public corporation is not such an one as the law recog nizes as a legal obligation forms no constitutional objection to the validity of a law imposing a tax and directing its payment. 1 Dill. Mun. Corp. (4th Ed.) § 75; U. S. v. Railroad Co., 17 Wall. 322; New Orleans v. Clark, 95 U. S. 644; Shaw v. Dennis, 5 Gilman, 405; Dennis v. Maynard, 15 Ill. 477; Layton v. New Orleans, 12 La. Ann. 515; Carter v. Proprietors, 104 Mass. 236; Thomas v. Leland, 24 Wend. 65; Town of Guilford v. Supervisors, 13 N. Y. 143; Brewster v. City of Syracuse, 19 N. Y. 116; Darlington v. Mayor, etc., 31 N. Y. 164; Brown v. Mayor, 63 N. Y. 239; Mayor, etc., v. Bank, 111 N. Y. 446, 18 N. E. Rep. 618; Sinton v. Ashbury, 41 Cal. 525; Creighton v. San Francisco, 42 Cal. 446; Lycoming v. Union, 15 Pa. St. 166; Cooley, Const. Lim. 258. The reasoning in the adjudicated cases cited is that the legislature may determine what moneys may be raised and expended, and what taxation for municipal purposes may be imposed; and it certainly does not exceed its constitutional authority when it compels a municipality to pay a claim which has some meritorious basis to rest upon. From the numerous authorities upon the question of legislative control over municipalities, Judge Cooley lays down the following proposition: "That the legislature has the undoubted power to compel the municipal bodies to perform their functions as local governments under their charters, and to recognize, meet, and discharge the duties and obligations properly resting upon them as such, whether they be legal or merely equitable or moral; and for this purpose it may require them to exercise the power of taxation whenever and wherever it may be deemed necessary or expedient." Cooley, Const. Lim. 283. The court of appeals of New York recognizes the doctrine of large legislative discretion, upon the question of raising and appropriating public money, and of imposing a tax upon towns and other municipal or polit. ical divisions, whenever it will be promotive of the public welfare. The legislature is not confined in its appropriation of the public moneys, or of the sums to be raised by taxation in favor of individuals, to cases in which a legal demand exists against the state. It can thus recognize claims founded in equity and justice, in the largest sense of these terms, or in gratitude and charity. Independent of express constitutional restrictions, it can make appropriations of money whenever the public well-being requires or will be promoted by it, and it is the judge of what is for the public good. It can, moreover, under the power to levy taxes, apportion the public burdens among all the tax paying citi zens of the state, or among those of a particular section or political division. Town of Guilford v. Supervisors, supra. In speaking upon this same subject, in the case of Booth v. Woodbury, 32 Conn. 118, Mr. Justice BUTLER said: "To make a tax law unconstitutional on this ground, it must be apparent at first blush that the community taxed can have no possible interest in the purpose to which their money is to be applied." In the case of Sinton v. Ashbury, supra, CROCKETT, J., stated the rule: "It is established by an overwhelming weight of authority, and I believe is conceded on all sides, that the legislature has the constitutional power to direct and control the affairs and property of a municipal corporation for municipal purposes, provided it does not impair the obligation of a contract, and by appropriate legislation may so control its affairs as ultimately to compel it, out of the funds in its treasury, or by taxation to be imposed for that purpose, to pay a demand, when properly established, which in good conscience it ought to pay, even though there be no legal liability to pay it." The law challenged in this case is not subiect to the objections urged in the numerous cases cited. The act in question provided that the bonds of the municipality should not be issued for these assumed obligations until the question had been submitted to the people of the township, at an election called for that pur pose. The notice of such election had to contain a statement of the purpose for which and the conditions under which bonds were to be issued. The legislature having said that these obligations might be paid, and a majority of the legal voters of the township having decided that it was just and equitable that such subscriptions to the court-house fund should be assumed by the municipality, we cannot see that the law is subject to any constitutional objection. Following the maxim which we regard as the true and cor rect rule, that there should be great caution in arriving at a conclusion adverse to the validity of a legislative act, and believing that the law in question is within the constitutional power of the legislature to pass, we recommend a reversal of the judgment of the trial court. PER CURIAM. It is so ordered; all the justices concurring. (45 Kan. 565) KANSAS, N. & D. Ry. Co. v. MAHLER. To entitle an abutting lot-owner to recover damages for locating a line of railroad, under the authority of the city council, in one of the streets of a city, there must be a practical obstruction of the street in front of his premises, so as to virtually deprive him of ingress to and egress from his property. Railway Co. v. Cuykendall, 42 Kan. 234, 21 Pac. Rep. 1051, and Railway Co. v. Smith, 44 Kan. 25 Pac. Rep. 623, followed. (Syllabus by Green, C.) GREEN, C. Casper Mahler brought his action against the Kansas, Nebraska & Dakota Railway Company to recover $2,000, damages for building its line of railroad in front of two lots on Barbee street, in the city of Ft. Scott, in such a manner as to obstruct his ingress to and egress from his premises and dwelling. A verdict and judgment were obtained for $800 against the plaintiff in error, and it now seeks a reversal of the same, and claims manifest error. The plaintiff in error had the right, under a city ordinance, to build its road in Barbee street, which was 60 feet wide, and the special findings of the jury indicated that, at the nearest point, the railroad track was 25 feet from the plaintiff's property. The measurement of the city engineer showed the space to be from 27% to 32 feet from the line of the lot upon which the dwelling was located to the track of the plaintiff in error. The facts, as they appear in the record, bring this case within the rule laid down in Railway Co. v. Cuykendall, 42 Kan. 234, 21 Pac. Rep. 1051, and Railway Co. v. Smith, 44 Kan. 25 Pac. Rep. 623. The above cases settle the questions involved in this case, and, upon the authority of those cases, we recommend a reversal of the judgment. PER CURIAM. It is so ordered; all the justices concurring. (45 Kan. 533) CHICAGO, K. & N. Ry. Co. v. NEIMAN. (Supreme Court of Kansas. March 7, 1891.) EMINENT DOMAIN-COMPENSATION-OPINION EVI DENCE. The opinion of a witness, giving in the lump the amount of damages, present and prospective, which a land-owner will sustain by the |