Kan.] SOUTH SIDE TOWN MINING & MANUF'G Co. v. RHODES. 279 of lots 1 and 2, block 19. (3) What, if anything, do you find to be the rental value of the premises in question? A. $- (4) Were said defendants in possession of said premises, or any part thereof, under a contract for the purchase of the same? If yea, what part? A. Yes; lots 1 and 2, block 19. (5) If yea, with whom was the contract made; what authority did he have to make it? A. First, William March, authorized agent of an association of persons, who, immediately after contract, formed themselves into the South Side Town & Mining Company; second, William J. Lea, secretary, and W. B. Stone, superintendent, of South Side Town & Mining Company. (6) Was the contract in writing, or verbal? A. Verbal. (7) What was the contract? State its terms fully and in detail. A. Contract made by William March, at $25 for one lot, ratified by W. J. Lea, as secretary, and lot 2 sold by Lea for $25. Contract ratified by W. B. Stone, as superintendent, and an agreement made by him that defendant could pay for lots in work for the company. (8) Were there any mineral reservations in said contract? If any, you find so state? 4. No. (9) Did said defendants take possession of the whole of said premises under and by virtue of said contract? A. Yes. (10) Have the defendants, or either of them, paid any money for said lots, or other property therefor? A. Yes. (11) If yea, how much, and in what was it paid? A. Fifty dollars in labor. (12) Were the defendants in the actual, open, visible, notorious, and exclusive possession of the whole of said premises at the time the plaintiff acquired the title to said premises in question? A. Yes. (13) If you answer 4 in the affirmative, have said defendants made lasting and valuable improvements on said premises under and by virtue thereof, relying thereon? A. Yes. (14) If you answer question 13 in the affirmative, what are the improvements? State their value; state fully. A. Value of house, $400; shaft, $100. (15) Have the defendants been recognized by the plaintiffs as the owners of the premises in question? If yea, in what manner? State the facts fully. A. Yes; by peaceable and undisturbed possession of the premises for several years, with the knowledge and consent of plaintiff. (16) Did the plaintiff intend to charge the defendants with the rent for said premises? If so, how much? A. No. (17) Should you find that the defendants went into possession of the premises under a contract of purchase therefor, was such contract subsequently confirmed, ratified, or recognized by the plaintiff? A. Yes, to both questions. The plaintiff thereupon moved the court to set aside the special findings of the jury, and moved the court for judgment upon the findings Nos. 1, 2, and 3. The special findings asked by plaintiff to be set aside were 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17, for the following reasons: First, that they were contrary to the evidence in the action; fourth, that they were contrary to the law. The court set aside the answer to question 3, and also the answer to question 7, relating to the sale of lot 2, but approved the other special findings returned by the jury. Thereupon the court entered judgment in favor of the defendants for said lot 1, and decreed that the plaintiff should, within 20 days from the date of the judgment, convey the same to the defendants by proper deed therefor, and in the event that plaintiff should fail to perform the decree, then that the decree of the court should stand as a conveyance of said lot to defendants. The court also adjudged that the plaintiff should pay all costs, taxed at $67.50. The court further gave judgment that the plaintiff should have and recover, of and from the defendants, the possession of said lot 2. The company excepted to the judgment rendered in favor of the defendants for lot 1, and brings the case here. Cowley & Hampton, for plaintiff in error. Ritter & Skidmore, for defendant in error. HORTON, C. J. This was an action by the plaintiff against the defendants for the recovery of lots 1 and 2, in block 19, in Ford's addition to the city of Galena, in Cherokee county. The legal title of the lots is in the plaintiff, but the defendants claim to be the equitable owners thereof under a verbal contract for the conveyance of the premises to them, the taking possession under such contract, the payment of the contract price, and the making of valuable improvements thereon of over $300. Upon the trial, judgment was rendered in favor of plaintiff for the recovery of possession of lot 2, and that defendants were the equitable owners of lot 1. It is insisted that the defendants were not entitled to judgment in their favor as regards said lot 1. We have examined the evidence produced upon the trial, and are satisfied that there are sufficient findings of the jury, not set aside by the trial court, to support the judgment against plaintiff. It is immaterial whether William March was the agent of the railroad company owning the premises in May, 1877, or the agent of the South Side Town & Mining Company, subsequently called the South Side Town, Mining & Manufacturing Company. Some preliminary arrangements were made by John H. Rhodes with William March, about May 7, 1877, concerning the purchase of the property in controversy. At that time the lots were not surveyed. In the latter part of May, 1877, after the South Side Town & Mining Company was organized. March told Rhodes that he was out of the company, but asked W. J. Lea, the secretary of the company, to go and show Rhodes a good lot. Lea, with Howard Gove, one of the directors of the company, went and showed him the lot. It was then understood that he was to have the lot for $25, and after that he moved his house upon it. Under an arrangement with W. B. Stone, the superintendent and general manager of the company, he commenced to work for the company on July 23, 1877, to pay for the lot. He paid for the same with his labor, and ever since the defendants have been in the actual, open, and exclusive possession of the premises, with the knowledge of plaintiff. It is contended that the plaintiff did not sell the lot to defendants, or consent to any sale being made, upon the theory that before Lea or Stone's contract for the sale was binding upon the company, it should have received the approval of the board of directors. We do not think that this was necessary. If the company, through its secretary, superintendent, and general manager, made a verbal contract to sell the property in question to the defendants, who paid the purchase money, and were put in and took possession, and while so in possession made the valuable improvements testified to, they thereby acquired the equitable title to the lot and are entitled to the legal title. Bayer v. Cockerill, 3 Kan. 282; Galbraith v. Galbraith, 5 Kan. 402. The evidence shows that the membership of the company was confined to a few persons only; that they all had knowledge of the improvements made by defendants upon the premises, and that the defendants were in possession thereof; and as the company accepted the contract price for the lot, it is now too late for the company to say that the sale to the defendants was irregular or invalid because its officers did not act in conformity with some rule or by-law of the company requiring all sales to be submitted to the directors for their approval. If the secretary and general manager violated any rule or by-law, they may be responsible, but the rights of the defendants are not to be prejudiced thereby. There being testimony in support of the claim of the defendants, contradicted though it was, if the jury chose, as they had a right, to believe it, and to disbelieve the evidence on behalf of plaintiff, or give it less weight, we can only, in accordance with well-settled rules in such cases, let the judgment stand. It will therefore be affirmed. (All the justices concurring.) (33 Kan. 223) ATCHISON, T. & S. F. R. Co. v. WILSON, County Treasurer, and another. Filed March 7, 1885. SCHOOL-DISTRICT-VALIDITY OF ORGANIZATION-COLLATERAL ATTACK. Where a school-district has been organized under a valid law, and is in the exercise of corporate powers, the validity of its organization cannot be questioned at the suit of a private party, nor in a collateral action; and therefore a proceeding by a tax-payer to restrain the collection of a tax voted by a schooldistrict, which has at least a de facto existence, cannot be maintained, when the only objection to the tax is that the action of the county superintendent in organizing the district and fixing its limits was illegal. Error from Hodgeman county. Action brought in the district court of Hodgeman county by the Atchison, Topeka & Santa Fe Railroad Company against C. E. Wilson, county treasurer of Hodgeman county, Kansas, and school-district No. 19, Hodgeman county, Kansas, to restrain the collection of certain taxes levied for school purposes, and which are alleged to be illegal. The plaintiff, in its petition, averred- "That it is a corporation duly organized and existing under and by virtue of the laws of the state of Kansas; and, for cause of action against the defendant, says that the defendant C. E. Wilson is the duly-qualified and acting treasurer of Hodgeman county, Kansas, and that the defendant school-district number nineteen, (19,) Hodgeman county, Kansas, is a municipal corporation in said county and state aforesaid. The plaintiff represents that it, as such railroad corporation, is now, and has been for more than two years last past, the owner of certain real estate in Hodgeman county, Kansas; that the land so owned by this plaintiff is the odd-numbered and alternate sections of land in the south part of Hodgeman county, aforesaid. Plaintiff, further complaining, says that in April, A. D. 1882, or soon thereafter, the defendant school-district number nineteen of said Hodgeman county, Kansas, was laid out and designated in said county, with boundaries embracing nearly, if not quite, one-third of the territory of said Hodgeman county; said district being twenty-four miles in length, and from six to twelve miles in width, and including within its boundaries the land of this plaintiff, as set forth and described in Exhibit A hereto attached and made part hereof. That the total population within said school-district to be benefited by the organization thereof live and reside within an area of four miles in any given direction from the town of Jetmore, in said school-district, at which place the said school-district has located its school-house site and maintained its school; and at no other place in said school-district is there a site located or a school maintained. That the inhabitants that live and reside outside of said last-mentioned area in said school-district, if any there was and is, could in nowise be benefited by said organization of the said school-district, (defendant,) for that they would live and reside at a distance too remote from the said town of Jetmore, where the said school of the said district (defendant) is kept and maintained, for them to avail themselves of the same for school purposes. Plaintiff says that none of the plaintiff's lands herein described are within less than five miles of the said town of Jetmore, and the place where the only school is kept in said district; and the means and mode of transportation from plaintiff's lands to said town of Jetmore are the ancient and ordinary means,-to-wit, on horseback, if fortunate enough to own a horse or mule, and by wagon, if fortunate enough to own horse, mule, or wagon; otherwise on foot,—and therefore plaintiff avers that it can receive no benefit from said school-district organization whatever. That said school-district number nineteen (defendant) did, during said year 1882, levy upon the assessed valuation of the property of plaintiff-to-wit, the lands above described, valued at and assessed at dollars the following sums, to-wit: For building purposes, 10 mills, - $298 77 149 38 14 98 And that said amounts and levy was duly placed upon the tax-rolls of Hodgeman county for the year 1882, and became a charge against the property of this plaintiff. Plaintiff further says that, by reason of the foregoing, the said taxes are wholly illegal and void; that the said defendant C. E. Wilson, as such county treasurer, is about to and will advertise the lands of this plaintiff, and sell the same, unless restrained by order of the court. Wherefore, plaintiff prays that an order issue temporarily restraining the said defendant from performing any of the said acts complained of, and that on the final hearing of this cause said taxes may be adjudged wholly illegal and void, and the said defendant C. E. Wilson, treasurer as aforesaid, and his successors in office, be restrained perpetually from collecting or attempting to collect any of said tax, and that the defendant school-district number nineteen, Hodgeman county, Kansas, be perpetually restrained from hereafter levying any tax upon the property of the plaintiff herein described for school purposes, and for costs." Upon application of the plaintiff, a temporary injunction was granted by the judge of the district court. Afterwards the defendants demurred to the petition of plaintiff upon the following grounds: "(1) That the petition of said plaintiff does not state facts sufficient to constitute a cause of action against said defendants; (2) that the plaintiff herein has not the legal capacity to sue, in that this injunction attacks the corporation of school-district number 19 in a collateral way; (3) that there is a defect of parties plaintiff in that to attack the organization of a municipal organization of school-district number nineteen the state of Kansas must be the plaintiff." At the April term, 1884, of the district court the case was tried upon the demurrer of the defendants. The court sustained the demurrer and dissolved the temporary injunction theretofore granted, and, the plaintiff electing to stand upon the demurrer, judgment was rendered against it for costs. These rulings are assigned as error. A. A. Hurd and M. W. Sutton, for plaintiff in error. W. S. Kenyon and T. S. Hann, for defendants in error. JOHNSTON, J. The plaintiff, by this proceeding, seeks to enjoin the collection of certain taxes levied for school purposes by school-district No. 19, Hodgeman county, Kansas, upon the lands of the plaintiff situate within that district. This is the declared purpose of the proceeding, but if it can be maintained it goes much further, and is more serious and important than to merely defeat the collection of the taxes charged against plaintiff's land. The objection to the tax is, not that the rate is excessive or unequal, nor that the purpose for which it was levied was illegal, nor is it claimed that there were any irregularities in the manner of imposing it, but it really goes to the power of the district to levy any tax for school purposes because of illegality in its organization. The complaint of plaintiff is that the authorities, in organizing the district, established the boundaries so as to embrace an unusual and unreasonable extent of territory, some of which must necessarily be and is very remote from the schoolhouse of the district. It will thus be seen that the plaintiff seeks to obtain a determination of the validity of the organization of the district, and is really assailing its corporate existence in an injunction. proceeding. Legislative authority to create and change school-districts is given. in the following language: "It shall be the duty of the county superintendent of public instruction to divide the county into a convenient number of school-districts, and to change such districts when the interests of the inhabitants thereof require it; but only after twenty days' notice thereof, by written notices posted in at least five public places in the district to be changed; but no new school-district shall be formed containing less than fifteen persons of school age. No district shall be so changed as to reduce its school population to less than fifteen, and none having a bonded indebtedness shall be so reduced in territory that such indebtedness shall exceed five per cent. of their assessed property valuation." Laws 1881, c. 152, § 12. In this statute there are limitations upon the power of the county superintendent to create and change school-districts, but there is no restriction as to the extent of territory that may be included within the district at the time of its organization, except that which is indirectly imposed in the provisions prohibiting the creation of a new school-district containing less than 15 persons of school age. The legislature wisely left to the discretion and judgment of the county |