gagee's offer as the first bid thereon. This last should be made a condition of setting aside the sale, in order that the rights of the mortgagor may be protected; for while, where appraisement is waived, property may be sold for whatever it will bring, yet a court of equity will always, where it has any discretion, so exercise it as to secure what is just and fair; and it is just and fair that the mortgagee, seeking a new sale, should agree to bid for the property, and bid its reasonable value. Then, if he obtains the property, he has only given what it is worth; and any way the mortgagor, who loses his property, has his indebtedchaser gets his money back, and all that he has lost is the chance of a big speculation. A reference to the authorities sustains these conclusions."

said A. A. Hayden and this affiant with the erty, and the agent employed is by judicial person in charge of the telephone office at process called away at the time of the sale, Westmoreland, aforesaid, for the answer and the property is sold at a grossly inadethereto to be sent as soon as it should be quate price, and immediately thereafter, received to the office of said H. C. Hutton, and before confirmation, both mortgagee in Westmoreland, aforesaid, where the said and mortgagor come into court and asked A. A. Hayden and this affiant would await to have the sale set aside, and the former its delivery. Affiant further avers that at tenders a bid of apparently the real value, about half past 12 o'clock P. M. affiant, in it seems to us that the court should, having company with said A. A. Hayden, went to due regard to the interests of all concerned, the law-office of said H. C. Hutton, in West-parties and purchaser, -set aside the moreland, aforesaid, and there remained sale, and order a new sale, with the mortwaiting for said expected message from Hayden & Hayden, aforesaid, until about 10 or 15 minutes past lo'clock P. M., in presence of H. C. Hutton. That while in the office of said H. C. Hutton, as aforesaid, waiting for said message from Hayden & Hayden, affiant asked said H. C. Hutton what time said sale would take place, and said H. C. Hutton then informed affiant that said sale would not, in his opinion, take place until about 2 o'clock P. M. That afliant did not on said 11th day of September, 1886, have a watch, but fully intended and expected to be present at the time and place at which said sale was advertised to take place; but relying upon the represen-ness pro tanto canceled and paid. The purtation of said H. C. Hutton, to the effect that the sale would not, in his opinion, take place until about 2 o'clock P. M., and being unaware that the hour of 1 o'clock P. M. had arrived, while awaiting for his message from Hayden & Hayden, as aforesaid, in said office of H. C. Hutton, this affiant, by accident and misfortune, failed to attend said sale at the time when the same was made, and did not arrive at the place of said sale until about five minutes after said sale had closed, as affiant is informed and verily believes. That while waiting for the said message from Hayden & Hayden, in the office of H. C. Hutton, at about 1 o'clock P. M., on said 11th day of September, 1886, either said H. C. Huton or A. A. Hayden looked at his watch, and remarked that it had stopped, and affiant thereupon immediately left said office, and went directly to the court-house to attend said sale, still believing he would be in time to be present at said sale, and protect the interests of said plaintiffs, and intending so to do. Affiant further avers that had he not been prevented by accident and misfortune, as aforesaid, from attending said sale, he would have bid at least the amount of plaintiff's judgment, interest, and costs for said land so sold." The sale was advertised to take place September 11, 1886, at 1 o'clock P. M., and the sale was made about 20 minutes after 1. T. J. Peter and Mary Jane Peter, his wife, are insolvent, and Rosevear & Roach cannot recover any part of their judgment, except from the mortgaged land. The mortgagors, T. J. Peter and wife, and the mortgagees of the prior mortgage, Rosevear & Roach, filed their motions to set aside the sale on September 28, 1886; therefore they were prompt in making their application to the court.

It was said in Dewey v. Linscott, 20 Kan. 684, "that where a party makes reasonable efforts to be represented at a sale, in which as mortgagee he is especially interested, and intends and has given instructions to bid to something like its value for the propv.22p.no.12-21

Inadequacy of price, taken alone, is seldom, if ever, sufficient to authorize the setting aside of a sheriff's sale; yet great inadequacy of price is a circumstance which courts will always regard with suspicion, and in such case slight additional circumstances only are required to authorize the setting aside of the sale. Dewey v. Linscott, supra; Bank v. Huntoon, 35 Kan. 577, 11 Pac. Rep. 369. In this case the agent employed by Rosevear & Roach to bid in the mortgaged premises was not called away at the time of the sale by judicial process, as was the agent in Dewey v. Linscott, but he was, according to his testimony, mislead by the answer of H. C. Hutton, the attorney for Means & Sons, who were the purchasers at the sale. It may be said that he ought not to have relied upon the statement of Hutton, as he knew the sale was advertised to take place at 1 o'clock P. M.; but all the facts connected with the sale show that Marks was guilty, if at all, of only slight negligence, and in such a case as is presented slight additional circumstances in connection with the inadequacy of price will authorize the setting aside the sale. The district court heard all the evidence, and as some was oral its conclusions upon the facts must be sustained, if possible. Upon the testimony, the court evidently held that a case of surprise to the agent employed to bid byRosevear & Roach was clearly shown. The court, also, evidently held that the agent was misled by the statement of the attorney of the purchaser at the sheriff's sale. These, coupled with the inadequacy of price, justified the setting aside of the sale. We perceive no good reason for reversing the order and judgment of the district court. Of course, Rosevear & Roach must comply with their stipulation to continue their offer of $3,500 at the new sale. All the justices concurring.

ATCHISON, T. & S. F. R. Co. v. HAWKINS. (Supreme Court of Kansas. Oct. 5, 1589.) STOCK-KILLING CASES.

son could have prevented said injury; that upon said occasion said train was late, and the person in charge of said cattle supposed In an action brought by the plaintiff against said defendant has failed to provide a safe it had already passed said crossing; tha a railroad company to recover the value of stock which plaintiff alleged were killed at a public and convenient crossing at said point, a crossing, by the negligence of the railroad comparequired by law; that the approaches to ny, the bill of particulars alleged, among other said track were very abrupt, and high things, "that the whistle of the engine was not above the natural elevation of the sursounded as prescribed by law; and that in conse- rounding land, which greatly impedes progquence thereof the stock were not warned of the ress in crossing the same; that defendant approach of the train until it was too late to pre- has permitted a very high and dense vent them from being killed; and that if the whistle of the engine had been sounded, as pre- growth of hedge to extend out upon its scribed by law, the person in charge of the stock right of way and nearly up to the track on could have prevented any injury." The bill of either side, which prevents persons travelparticulars further stated "that the railroad com- ing upon said road from observing the appany permitted a very high and dense growth of proach of trains upon its said road; that hedge to extend out on its right of way, and near- said crossing is, and long has been, so ly to the track;" and further stated "it prevented maintained by said defendant in a dangerpersons traveling upon the public road from observing the approach of trains." Hebd, that under Ous, inconvenient, and unsafe condition; the allegations of the bill of particulars it was that immediately after said cattle were misleading and erroneous to instruct the jury "if killed plaintiff demanded payment therefor the railroad company permitted and suffered a of said defendant; and that defendant poshedge to stand upon its right of way, so as to ob-itively refused to pay for said cattle any struct the view of the track, and but for such ob- sum whatever; that $50 is a reasonable atstruction the injury to the stock would not have happened, the company is liable for the injury to torney's fee for the prosecution of this acthe stock." Held, also, that where it appears from tion. Wherefore plaintiff prays judgment the instructions and findings of the jury, under the for the sum of two hundred dollars, and allegations of such a bill of particulars, that the costs of suit against said defendant, and liability for the injury to the stock was fixed by interest at 7 per cent, per annum from Authe jury for the negligence of the railroad compa-gust 15, 1885." Upon the trial before the ny in permitting the hedge to grow upon the right justice, judgment was rendered against the of way as alleged, the verdict and judgment must railroad company, from which judgment be set aside. JOHNSTON, J., dissenting. the company appealed to the district court of Harvey county. Trial had at the May term of the court for 1887, upon the original bill of particulars. The jury returned a verdict in favor of the plaintiff for $134.80, and also made special findings of fact. The company filed its motion for judgment upon the special findings of fact, which motion was overruled. The company also filed its motion for a new trial, which was overruled. On July 2, 1887, the court rendered judgment for $134.80, together with costs against the railroad company. The company excepted and brings the case here.

(Syllabus by the Court.)

Error from district court, Harvey county; L. HOUK, Judge.

Geo. R. Peck, A. A. Hurd, and J. G. Egan, for plaintiff in error. Ady & Nicholson, for defendant in error.

Michael Hawkins commenced his action against the Atchinson, Topeka & Santa Fe Railroad Company before a justice of the peace of the city of Newton, in Harvey county, to recover $200. His bill of particulars was as follows, omitting caption: "The plaintiff complains of the defendant and alleges that defendant is a corporation duly organized under the laws of the state of Kansas, and that it owns and operates a line of railroad through the county of Harvey, in said state, and did at all of the times herein mentioned; that the plaintiff was, on or about the 14th day of August, 1885, the owner of two cows of the value HORTON, C. J., (after stating the facts of $150; that on said day said cows were as above.) The errors alleged as grounds in his possession, and were being driven by for reversal are- First, that the court a competent person along the public high- erred in its instructions to the jury upway, upon and along the section-line road on the question of the defendants allowbetween section No. 30, township 23, range ing and permitting a hedge to grow up1 E., and section No. 25, township 23, range on its right of way, thereby obstruct1 W. in Harvey county, Kan.; and that ing the view. The instructions objected at a point where said public highway to are as follows: "(2) It is averred crosses defendant's said railroad said in the petition that plaintiff's said two cows were, through the carelessness and cows were struck and killed by one of denegligence of defendant's servants and em- fendant's trains on its railroad while said ployes, who were in charge of a certain engine and train of cars, in the management thereof upon its said railroad track, struck by said engine and cars and instantly killed, to his great damage in the sum of one hundred and fifty dollars; that the defendant upon approaching said crossing with its said train failed to sound its whistle, as required by law, in consequence of which the person in charge of said cows was not warned of the approach of said train until it was too late to prevent the killing of said cows; that had said whistle been sounded, as required by law, said per

cows were being driven along a public road, and at a crossing of said railroad; that the killing of said cows was caused by the negligence of the defendant and its agents and servants in permitting a hedge to stand upon its right of way, so as to pre vent the approach of its said train from be ing seen, and by failing to sound the whistle of its locomotive, so as to give warning of the coming of its train." "(6) The jury are instructed that if you believe from the evidence that the defendant company permitted and suffered a hedge to stand upon its right of way so as to obstruct mate

pany; and permitting trees to grow upon the right of way near a public crossing would also be negligence. If the jury had based the verdict upon the failure of the railroad company to sound the whistle of its locomotive, as prescribed by the statute, the testimony concerning the hedge would not have been erroneous, nor affected prejudicially the case.

rially the view of the track and of approaching trains by persons about to cross the railroad, on the crossing in question, and that but for such obstruction the injury in question would not have happened, then the company is liable in this case for the injury so caused, unless you further believe from the evidence that plaintiff's own negligence contributed directly to the injury." The court also, at the request of the The bill of particulars expressly alleged railroad company, submitted certain ques- that "if the whistle had been sounded, as tions of fact to the jury. The eleventh and prescribed by law, the person in charge of twelfth questions and answers are as fol- the stock could have prevented the injulows: “(11) Did the person in charge of ry." Yet, under the instructions of the these cows take any precautions as she ap-court, the jury were permitted to return a proached this crossing to ascertain wheth- verdict against the company, without reer any train was coming or not, prior to gard to whether the whistle sounded or letting the cattle get upon the crossing? not. The jury made a great many special Answer. Yes. (12) If the jury answer the findings, but they made no finding, howevlast question affirmatively they may state er, that there was any failure of the comfully what acts the person in charge of the pany to sound the whistle to its locomocattle did towards ascertaining, or what tive. In addition, the jury specially found steps she took to find out whether a train that the person driving the stock was on was coming or not. State fully. A. We horseback; therefore she might, as she apbelieve that she took the same precau-proached the crossing, have ridden ahead tion that she did in always crossing,-by of the stock, and ascertained if any train listening and looking as far as she could. was coming, before she started the stock The defendant being behind time with its across the track. train, it was as much the defendant's place to use an extra precaution on the part of the train, being off time, to give an extra signal; furthermore, the defendant was negligent in leaving the hedge in the condition it was to prevent the seeing or hearing the approach of the train."

The judgment of the district court will be reversed.

VALENTINE, J., concurring. JOHNSTON, J., dissenting.

SHORT V. FOGLE.

(Supreme Court of Kansas. Oct. 5, 1889.)

MORTGAGES-PRIORITY.

Where T., the equitable owner of real es tate, gave a mortgage to R., with a full knowledge by R. of the condition of the title, and with the further knowledge that one F. held the prior mortgage thereon for the original purchase money of the property, and R. afterwards transfers his mortgage to S., giving S. the information that there is another mortgage upon the property, and S., with this knowledge, makes no inquiry as to the title of the property, and makes no examination of the records, held, in an action to foreclose and establish prior liens as between F. and S., F. is entitled to the prior lien on the property.

(Syllabus by Clogston, C.)

Commissioners' decision. Error from district court, Franklin county; A. W. BENSON, Judge.

It is claimed that the jury in these answers required of the defendant, under the circumstances, a duty not shown by the evidence, and that by reason of that fact the motion for a new trial ought to have been granted. It seems to us that this case was decided by the jury upon the ground that the railroad company was negligent in permitting a hedge to be grown upon its right of way, so as to obstruct materially the view of its track and approaching trains, and not upon anything else. An instruction was given imputing negligence to the railroad company, on account of the hedge upon its right of way, and the jury specially found the company was negligent in leaving the hedge in the condition it was in. All the evidence shows that both the plaintiff and his daughter, who was in charge of the stock, were well acquainted This was an action originally brought with the crossing, and knew of the hedge, by Fogle, defendant in error, against Towle its height, and its condition. The hedge and wife and E. P. Short, the plaintiff in was from 15 to 25 feet on the right of way, error, to foreclose a mortgage on certain and 25 to 35 from the track. If the hedge real estate in the town of Williamsburg. in any way prevented the person in charge The Towles made default, and the plaintiff of the stock from seeing or hearing the ap- in error, Short, filed an answer and cross-peproaching train, then, of course, being well tition, alleging a mortgage upon the same acquainted with the hedge and the prem- property, and asked to have the same foreises, additional precaution should have closed, and made a prior lien to plaintiff's been taken to see if any train was coming. mortgage. At the November term of the We think the instruction concerning the Franklin county district court the cause hedge upon the right of way was mislead- came on to be heard upon the petition and ing, and that the verdict was returned up- cross-petition. Trial by the court without on a wrong theory. If the growing of a a jury, and the following findings of fact high hedge upon a right of way near a pub- and conclusions of law were made: “(1) lic crossing is negligence on the part of the On April 20, 1885, D. Fogle, plaintiff, was railroad company, as to a traveler or per- the owner of the property described in the son upon a public highway, and thorough- petition, which was then unimproved. On ly familiar with the hedge, the crossing, that day he entered into a written agree and adjoining premises, then, also, a high ment with one Marcoux to sell and convey fence inclosing a railroad track would be the same, together with a quantity of luman act of negligence on the part of the com-ber with which to erect a house thereon,

for the sum of $150, to-wit, $50 for the lots | lien on said property, and that said defendand $10 for the lumber. Mr. Marcoux ant Short's lien under the mortgage set out agreed to erect the house and pay said in his answer is the second and junior lien sum, with interest, and then Fogle was to thereon. (4) That a judgment of foreclos-· make the deed. Mr. Marcoux went into ure and sale should be entered, and the propossession and built the house, but did not ceeds applied, after paying the taxes and pay said $150 and interest, or any part costs, to the satisfaction of said liens, acthereof. (2) In February, 1886, the defend- cording to the priorities as above stated.” ant Towle made an agreement with said John W. Deford, for plaintiff in error. Marcoux whereby Towle transferred to Mechem & Smart, for defendant in error. Marcoux a certain team of horses, (which he had previously mortgaged to W. A. RobCLOGSTON, C., (after stating the facts as bins for $300,) and agreed to pay $225 in above.) The plaintiff in error now comaddition thereto for said property. There- plains that the conclusions of law are not upon Mr. Marcoux proposed, and it was supported by the findings of fact made by agreed, that Towle should pay said $225 the court. The findings of fact show that to Fogle in satisfaction of said Fogle's Fogle was the original owner of the propclaim of $150 and interest, and take the deed erty, and that the mortgage, the subject of direct from Fogle. Accordingly, on March his action, was for the purchase money of 1, 1886, Mr. Towle executed the note set out the property. Marcoux transferred the in plaintiff's petition and accompanying property to Towle, subject to this lien for mortgage, (except the acknowledgment,) the purchase money, and subject to Fogle's and Mr. Fogle also executed said deed of mortgage. Towle had actual knowledge conveyance to Towle on the same day, (ex- of the existence of that mortgage, and ascept acknowledgment,) and said papers sumed it or took the property subject to it. were then deposited with Mr. M. V. Swift, He executed the mortgage now set up by a notary public and conveyancer, to hold Short, and informed Robbins of the exact until said mortgage was duly executed by condition of affairs. Towle at this time the wife of said J. A. Towle and properly had but an equitable title to the property. acknowledged, to the satisfaction of said He had what Marcoux could transfer to Fogle, whose said deed should be acknowl- him, an equitable title, only; and at the edged, and the papers delivered to the re- time of the execution of the mortgage to spective grantors. All this was done on Robbins he could give Robbins no better July 17, 1886, and on July 22d, following, title than he himself had. When Robbins said deed and mortgage were duly record-transferred his note and mortgage to ed; the deed being first of record, to-wit, Short, he could give Short nothing better the deed at 11 A. M., and mortage at 3 P. M. than he himself had. He told Short, how(3) Learning of the transfer of the mort-ever, that there was another mortgage upgaged team to Marcoux, Mr. Robbins called on Towle, and demanded pay or security, and was offered a mortgage on the said real estate. Thereupon, on April 1, 1886, the note and mortgage set out in the answer of E. P. Short were made and delivered to Robbins. At that time Robbins was informed and understood that there was a prior mortgage on the property of $150 or $200 to Fogle, but did not examine the record. Mr. Marcoux was in possession at the time of sale to Towle, and delivered possession to the latter. This mortgage to Robbins was duly recorded on the 8th day of May, 1886. (4) On March 19, 1887. Mr. Robbins sold and assigned his said note and mortgage to defendant E. P. Short for $300, paid as follows: $25 in a week after the assignment, and $25, June, 1887, and the balance the day of this trial. (5) At the time of the transfer to Short, Robbins informed him that there was another mort

gage to Fogle, but that his was on record first. Mr. Short did not examine the record, but relied on Robbins' statement that his mortgage was first on record. (6) When Fogle delivered the deed to Towle and accepted the mortgage from the latter, he knew of the mortgage before that time made to Robbins." And upon these facts the court found the following conclusions of law: "(1) That plaintiff is entitled to a judgment against J. A. Towle for the amount of his said note, to-wit, $270.75. (2) That E. P. Short is entitled to a judgment against J. A. Towle for the amount of his said note, to-wit, $358. (3) That the plaintiff's lien under the mortgage set out in the petition is the first and paramount

on the property. Short made no inquiry to ascertain its standing or condition. He received under the notice whatever title and right Robbins had, and no greater. He stands in the same place that Robbins would have stood had he set up the mortgage instead of Short. We therefore fail to see what legal or equitable right the plaintiff in error has to insist upon a first lien upon this property. The judgment of the court below was correct, and we therefore recommend that the judgment be affirmed.

PER CURIAM. It is so ordered; all the justices concurring.

HILL V. FIRST NAT. BANK. (Supreme Court of Kansas. Oct. 5, 1889.) REPORT AND CASE MADE.

1. An order fixing the time when a case made shall be settled and signed should be observed, and the party making a case, who ignores such an order, does so at the peril of a refusal to settle and sign the case at a later time; but, notwithstanding the order may have been so disregarded, it is within the power of the court or judge to thereafter, and upon reasonable notice, settle and sign

the case.

2. In order to have the question of whether the evidence supports the findings and judgment examined, the case made should show that it contains all the evidence. A statement to that effect in the certificate of the district judge settling the case is insufficient. Eddy v. Weaver, 37 Kan. 540, 15 Pac. Rep. 492.

3. When a case made has been materially changed long after it was settled and signed by the judge, and attested and filed by the clerk of the district court, and its verity thereby destroyed, it

is not entitled to consideration in a proceeding in time. Hammerslough v. Hackett, 30 Kan.

JOHNSTON, J. The parties to this proceeding own adjoining lots, on which buildings have been erected, that are united by a party-wall. By agreement of the parties a common stairway was to be erected between the buildings, which was to serve as an entrance from the street to the second stories of both buildings. A dispute arose between them as to the rights and liabilities of each, in respect to the stairway and landing, and the bank brought an action to settle this dispute, and to enjoin Hill from obstructing the bank in the reasonable use of the stairway and landing which has been erected. The action was tried by the court at the January term, 1887, when a decree was rendered in favor of the bank, and Hill, as plaintiff in error, asks for a review and reversal.

57, 1 Pac. Rep. 41. A very different question would arise if the court had declined to settle and sign the case. An order of the court fixing the time for such action, or providing that it should be done upon certain notice to be given by either party, should not be disregarded. If the party making the case ignores the order, he does so at the peril of the refusal of the court to settle and sign at a later date. If he disregards the order, or, without sufficient excuse, fails to present his case at the proper time, and the court should decline to grant him another opportunity, he would hardly be in a position to compel the court to settle and sign the case at a later time. Of the power of the court, however, to grant another opportunity, there can be no question, and having done so in this instance, and settled and signed the case upon proper and sufficient notice, this objection of the plaintiff in error must be overruled.

Upon the record presented it is alleged that the judgment and decree of the court is not sustained by the evidence. This question is not before us, for the reason that it is not shown that all the evidence offered It is now insisted by the defendant in er- on the trial is included in the record. Such ror that nothing is presented by the record a statement is found in the certificate of the for our determination. Attached to the case made, but it has been repeatedly held petition in error is a case made, which it is that this is not sufficient. "Where a case is argued should not be considered, because it made and settled for the supreme court, was not settled and signed at the time and the party making it desires that it fixed by the court. When the decree was should be shown that the case contains all given, time was asked in which to make a the evidence that was introduced on the case for the supreme court, and the court trial, a statement to that effect should be granted the application, and fixed the time inserted in the case itself, and not in the cerwhen the case should be made and served; tificate of the judge who settles the case." also the time within which amendments Eddy v. Weaver, 37 Kan. 540, 15 Pac. Rep. should be suggested; and further ordered 492; Railroad Co. v. Grimes, 38 Kan. 241, 16 that the case should be settled and signed Pac. Rep. 472; Bartlett v. Feeney, 11 Kan. on the first day of the succeeding term of 594; Brown v. Johnson, 14 Kan. 377; Insurcourt. The case was made and served, and ance Co. v. Hogue, 41 Kan., 21 Pac. Rep. the amendments suggested within the pre- 641. For a like reason we are precluded scribed times, but was not presented for set-from examining the question as to whether tling and signing on the day set for that the pleadings support the judgment, alpurpose. When it was presented counsel though there is little if any contention that for defendant in error objected to the juris- they do not. The record shows that the diction of the court, claiming that Hill, hav-plaintiff in error concedes that, when the ing procured an order fixing the time of settlement, is bound by the terms of the order. The court, for reasons which it deemed sufficient, extended the time for settling and signing the case, but required that five days' notice should be given to the opposing party. This was done, and in pursuance of that notice the case was settled and signed, both parties being present, although counsel for defendant in error still insisted that the plaintiff in error had forfeited his right to have the case settled and signed. It was certainly within the power of the court to settle and sign the case, although the time first fixed by its order had expired. When the case is not made and served within the prescribed time, and no extension of time has been granted, the court is without power to act, (Insurance Co. v. Koons, 26 Kan. 215;) but this ruling is based on the ground that the statute limits the time within which a case must be made and served. No such limitation exists with respect to settling and signing a case, and hence the court may postpone such action, and cause it to be done, upon reasonable notice, at a later

case was settled and signed, it did not include all the plaintiff's petition. A very important part of the same-namely, a copy of the deed upon which the bank largely rested its claim-was lacking. More than six months after the case had been settled and signed by the judge, and attested and filed by the clerk, the case made was opened, and what purports to be a copy of the deed has been inserted and attached to the petition of the plaintiff. Counsel for the plaintiff in error say that at the time the case was prepared the exhibit in some manner became detached from the petition, and could not be found by the clerk, and was therefore not copied, but having since found the exhibit it has been copied and attached to the record. There was no authority for or propriety in that action. While it seems to have been thought that no wrong could be committed in adding the exhibit to the case made, yet, when it was settled, signed. and attested, it was as sacred, and should have been as carefully protected from aiteration or mutilation, as any record in the office of the district clerk. After that time the judge of the district court, even, is pow