badge of fraud, to be considered in determining the bona fides of the transaction. Bump, Fraud. Conv. 51, and cases cited. This rule is apparently not disputed by counsel for plaintiff; but they insist that the instruction was not pertinent, or warranted by the evidence introduced before the jury.

It appears from the testimony given in the case that before the transfer was made, the plaintiff was apprised of the fact that Jackman & Robinson were in failing circumstances, and were being sorely pressed by their creditors; that within a few hours after being so informed, he purchased the stock of goods and a lot of unsettled accounts, without any inventory or appraisement thereof, only making a superficial inspection as he passed through the store-room and cellar where the goods were kept. He was not engaged in merchandising, and could have had but an imperfect notion of the value of the goods and accounts. This conduct was certainly a departure from the natural and usual course. Men do not usually buy a stock of merchandise, made up, as this one was, of a great number and variety of articles, without taking a detailed account and inventory of the same; and we have no hesitation in saying that the testimony in the case fully justified the court in the instruction given.

The court did not assume or intimate, as counsel seem to infer, that the sale was made in an unusual manner, nor that the transaction between the plaintiff and Jackman & Robinson constituted a fraud upon the creditors of the latter. These questions were left to the jury, and while their attention was called to the rule that certain circumstances have a tendency to show fraud, the instruction will not bear the interpretation that such evidence or badge of fraud was conclusive, or could not be overthrown by explanatory proof. The plaintiff testified that the transaction was evidenced by a bill of sale which was in testimony before the jury. The court, referring to this bill of sale, instructed the jury that "the mere production of a bill of sale, which would be sufficient as against the seller, is not sufficient as against the creditor, and he must supplement that bill of sale with proof of good faith and payment of consideration." Under the circumstances there was no error in giving the instruction, nor do we think there was any just cause of complaint in instructing the jury that "the law presumes that every man intends the necessary consequences of his acts, and if the act necessarily delays, hinders, or defraud his creditors, then the law presumes that it was done with fraudulent intent."

One of the principal questions in the case was the intent of the debtors in making the sale charged to be fraudulent. The motives of parties in such cases are not of easy proof, and must generally be shown by their acts and declarations. Fraud is not easily detected, and in cases of this kind the law permits a resort to presumptive evidence, and imputes a fraudulent intent to a debtor where his conduct inevitably leads to a fraud upon his creditors. Where his action nec

essarily results in defrauding his creditors, he must be presumed to have foreseen and intended such result. Notwithstanding this instruction, the question of the debtor's intent, and whether the sale was fraudulent, were still open for the determination of the jury, and the presumption referred to might have been rebutted by other circumstances and explanatory proof. In other portions of its charge the court told the jury "that fraud is never presumed, but must be proven; that it was the duty of the jury to take into consideration every circumstance, transaction, and fact surrounding the sale." With respect to the good faith of the plaintiff, the jury was in substance told that the fraudulent intent of the vendors was not alone sufficient to avoid the sale. Actual knowledge by a vendee of the fraudulent intent of the vendor is not essential to render the sale void. If the facts brought to his attention are such as to awaken suspicion, and lead a man of ordinary prudence to make inquiry, he is chargeable with notice of the fraudulent intent and with participation in the fraud. Phillips v. Reitz, 16 Kan. 396; Kurtz v. Miller, 26 Kan. 314; McDonald v. Gaunt, 30 Kan. 693; S. C. 2 PAC. REP. 871.

It is finally urged that the verdict is contrary to the evidence. Under the facts and the circumstances surrounding the sale as disclosed by the record, and applying the rule governing this court in interfering with the verdict of a jury where it has been approved by the trial court, we do not feel warranted in disturbing this verdict. There are signs of fraud connected with the sale, and considerable testimony which tends to cast a suspicion upon the bona fides of the transaction. It appears, as has been stated, that the plaintiff was told by Jackman on the day of the sale that his firm was in embarrassed circumstances, and for that reason were seeking to dispose of their goods. The sale was made in considerable haste, within a few hours after receiving this information, and upon a mere superficial examination of a large stock of goods and open accounts worth several thousand dollars. The plaintiff was not a merchant, and had no training that would enable him to estimate its value; no inventory was taken, nor were there any persons skilled in the business called on to inspect the stock and accounts as to what they were worth; nor were there any other means employed by which a reasonably correct judgment could be formed of the value of the goods, which were subsequently sold for $1,872.72, nor of the unsettled accounts, which amounted to between $1,700 and $1,800. The consideration alleged to have been paid was $2,210, which was paid in the form of a check upon a bank with which the plaintiff was connected. Nine hundred and eighty dollars of this amount was paid by Jackman to his wife for money which he claimed to have borrowed from her, and $380 thereof was paid by the other member of the firm to his sister, to discharge an individual debt which he claimed to owe her. These payments were made at the time of the sale, and with the knowledge of plaintiff. Then, again, Jackman & Robinson, together with their clerk, remained in the store after the

alleged sale, and continued to sell goods and collect the outstanding accounts as formerly. The plaintiff only visited the store occasionally, and never sold any of the goods nor collected any of the accounts. These circumstances, together with others that need not be mentioned, tend strongly to impeach the sale. Some explanation of these circumstances was made, or attempted to be made, by the plaintiff, but the jury found against him, and against the validity of the sale. The trial judge has ratified the finding, and under the rule heretofore referred to, we must sustain the verdict.

The judgment of the district court will be affirmed. (All the justices concurring.)

(33 Kan. 257)

OSBORNE v. OSBORNE and others.

Filed March 7, 1885.

EVIDENCE-RES GESTA-SPECIFIC PERFORMANCE OF ORAL CONTRACT TO CONVEY LAND.

In an action for specific performance, the plaintiff claimed under a verbal contract with his mother for the conveyance of the land to him, and the making by him of lasting and valuable improvements after such contract, and the taking possession by him thereunder. Before the commencement of the action the mother died intestate, without making a deed of the land to the plaintiff. Upon the trial the court permitted the defendants-the other heirs of the mother-to give in evidence declarations made by the mother in the absence of plaintiff, and letters written by her in her life-time to defendants, but subsequent to the taking possession of the land by the plaintiff, tending to show that there was no verbal contract between the plaintiff and his mother for the conveyance of the land to him; that she had furnished money for the improvements on the land; and that she regarded the land as her own. Held, that the declarations and letters offered in evidence cannot be regarded as a part of the res gestæ, and being hearsay, and not against the interests of the mother at the time they were made, were incompetent as evidence.

Error from Brown county.

James Falloon, for plaintiff in error.

A. R. May, for defendants in error.

HORTON, C. J. The plaintiff filed his petition seeking the specific performance of a verbal contract for the conveyance of 160 acres of land. It alleged, among other things, that in November, 1877, Mrs. Fuller, the mother of plaintiff, being the owner of the land in dispute, gave it to him upon condition that he would move onto and live on the land; that she put him into the possession thereof in the spring of 1878; that at the time the land was worth about $1,200; that in pursuance of such gift he took possession of the land, and has had the exclusive possession of it ever since; that relying upon the gift as vesting in him the ownership of the land, and that his mother would convey the same to him, soon after taking possession, with the knowledge of his mother, he made valuable and lasting improvements thereon, of the value of $2,256.50; that his mother died intestate on October 31, 1882, without making a deed to him of the

land. The plaintiff offered evidence in support of his petition. On the part of the defendants the court permitted them to give in evidence a statement made in February, 1882, in the absence of plaintiff, to Albert G. Speer, one of the defendants, by Mrs. Fuller, that "she wanted the farm-the premises in controversy-to be given to George, her son, on the payment of $2,000 to the estate." Also, the statement of Mrs. Fuller made on August 5, 1882, in the absence of plaintiff, to Abbie M. Klinefelter, another defendant, that she "had furnished money for the improvements on the farm." The court also permitted to be read in evidence the letters of Mrs. Fuller written to Abbie M. Klinefelter and her husband in 1879, tending to show "that she regarded the farm as her own."

We think all of this evidence was incompetent, as being hearsay, and not coming within any of the exceptions to the rule rejecting hearsay evidence. It cannot be claimed that these letters and statements of Mrs. Fuller were declarations against interest; that is, against her interest at the time when they were made. They tended to show that she was the owner of the premises, and that the plaintiff had no ownership therein; therefore they were in support of the title and interest of Mrs. Fuller-not against her. It is claimed, however, by the defendants that the declarations made by Mrs. Fuller, and the letters written by her, may be regarded as part of the res gestæ, and therefore properly admitted as original evidence. At the time the statements were made and the letters written, Mrs. Fuller was not in the actual possession of the premises in controversy, and therefore the evidence was not admissible as "declarations accompanying the act of possession,"-they did not explain her possession, or the nature of the same. The statements and letters were not made or written simultaneously with the giving of the possession of the premises to the plaintiff; nor with the doing of any act by her connected with such possession; nor were they made or written at the time any act was done by her regarding the property, which was material to the issue before the court; nor were they of a character to explain or define any such act. We think, therefore, that the statements and letters could not be properly received as any part of the res gesta. 1 Greenl. Ev. (12th Ed.) §§ 109, 110, 127.

It is unnecessary to refer to the circumstances under which courts will specifically enforce verbal contracts for conveyance of lands, as the law is fully declared in Galbraith v. Galbraith, 5 Kan. 402. Before another trial is had in this case, the petition should be amended to conform to the law as announced in Reading v. Wier, 29 Kan. 430, and Head v. Sutton, 31 Kan. 616; S. C. 3 PAC. REP. 280. Under the decisions in those cases, the legal title of the premises in controversy is in the heirs of Mrs. Fuller, and the administrator has no interest therein, but possesses a naked authority to sell on license to pay the debts, if the personal estate is found to be insufficient.

The judgment of the district court will be reversed, on account of

the reception of incompetent evidence, and the cause will be remanded for a new trial.

(All the justices concurring.)

(33 Kan. 206)

ATCHISON, T. & S. F. R. Co. v. WILHELM, Treasurer, etc., and another.

Filed March 7, 1885.

1. SCHOOL-DISTRICT-RESTRAINING COLLECTION OF TAX.

Where an action is brought against the treasurer and sheriff of a county to restrain the collection of taxes levied by a school-district for building and library funds, upon the ground that the levies are excessive, a final injunction will not be granted until the officers of the school-district, directly interested in the collection of the taxes, are made parties defendant.

2. COUNTIES-LEVY OF TAX FOR SUPPORT OF POOR

Taxes levied for the support of the poor under section 35, c. 79, Comp. Laws 1879, are to be regarded as current expenses of the county; and therefore such levies are limited under the provisions of section 181, c. 25, Gen. St. 1868, (section 220, c. 25, Comp. Laws 1879.)

Error from Jefferson county.

Action by the Atchison, Topeka & Santa Fe Railroad Company against Levi Wilhelm, as treasurer, and George Davis, as sheriff, of Jefferson county, Kansas, to restrain the collection of certain taxes. Upon the filing of the petition a temporary injunction was allowed by the district judge of Jefferson county. On June 24, 1884, the plaintiff filed the following amended petition, (omitting court and title:)

"Plaintiff complains of the said defendants, and for its cause of action says that it is a corporation duly organized and existing under and by virtue of the laws of the territory and state of Kansas; that plaintiff is, and was at all times hereinafter mentioned, the owner of a line of railway and other personal property in said county of Jefferson and state of Kansas; that at the time required by law said property was assessed by the officers duly authorized thereto, in the county of Jefferson, for the year 1882, at the sum of $232,000.86; that its said property in school-district No. 85 in said county was assessed in said year at the valuation of $23,362.67; that its said property in school-district No. 24 was assessed in the year aforesaid at the valuation of $24,142.57; that at the time required by law the board of county commissioners, in the year 1882, levied a tax of 12 and mills in said school-district No. 85, for a building fund; that at the time required by law the board of county commissioners of said county levied a tax for the year 1882, of 3 mills, in said school-district No. 24, for a library fund; that at the time required by law the board of county commissioners of said county levied a tax of 2 mills upon all the taxable property of said county, for said year, for a poor fund, in addition to the 10 mills levied for current expenses, the said county having less than 5 million dollars of taxable property; that the assessed valuation of all the taxable property in said Jefferson county for the year 1882 was the sum of $3,217,000.31; that the assessed valuation of all the taxable property in school-district No. 24, in said county, for the year 1882, was the sum of $71,447; that the taxes assessed as aforesaid, as and for a poor fund, would raise a sum greatly in excess of the sum of $500, were never submitted to a vote of the people, or authorized by a vote of the people of said Jefferson county, at any general election at a poll open for that purpose; that V.6P, no.4-18