etc., 33 Kan. 692, 701, 7 Pac. Rep. 561. And territory may be attached to a city school-district for school purposes, although the territory may not belong to the city as a municipal corporation, nor be within its limits. Topeka was a city of the second class up to the year 1881, and the statute governing in such cases reads as follows: "Territory outside the city limits, but adjacent thereto, may be attached to such city for school purposes, upon application to the board of education of such city, by a majority of the electors of such adjacent territory; and, upon such application being made to the board of education, they shall, if they deem it proper, and to the best interests of the schools of said city and the territory seeking to be attached, issue an order attaching such territory to such city for school purposes, and to enter the same upon their journal; and such territory shall, from the date of such order, be and compose a part of such city for school purposes only; and the taxable property of such adjacent territory shall be subject to taxation, and shall bear its full proportion of all expenses incurred in the erection of school buildings, and in maintaining the schools of such city." Laws 1872, c. 100, art. 5, § 99; Laws 1876, c. 122, art. 11, § 3; Comp. Laws 1885, c. 92, art. 11, § 3. This provision of the statute was complied with, in this case, in substance though not in form. The territory in dispute was originally incorporated into the city of Topeka, and therefore into the school-district of the city of Topeka, by an ordinance void so far as the city of Topeka as a municipal corporation was concerned; but was it void so far as the school-district of Topeka is concerned? Knowles v. Board, etc., 33 Kan. 692, 7 Pac. Rep. 561. Special acts relating to school-districts may be valid, and the only ground upon which the aforesaid ordinance was held void was that it was based upon a special act. But, conceding the ordinance to be void with reference to the school-district as well as to the municipal corporation, still the board of education and the majority of the people of the annexed territory afterwards ratified and confirmed the annexation attempted to be effected by it, by their voluntary acts, though not in the statutory form. In other words, the board of education and the people of the annexed territory made such annexed territory as much a part of the school-district of the city of Topeka in fact, though not in law, as it would or could have been if it had been annexed under a valid ordinance, or attached in the most formal manner under the foregoing statute. These acts of the board of education and the people of that territory made such territory a part de facto of the school-district of the city of Topeka; and hence as to the public in general, and as to third persons in particular, the annexation or attachment of this territory to the school-district of the city of Topeka must be considered as legal and valid when attacked collaterally, as in this case. In the case of School-District v. State, 29 Kan. 57, it was held that bonds issued by a school-district, which was not a school-district de jure, but only such de facto, and where the bonds had gone into the hands of innocent purchasers, were legal and valid. In the case of Beck v. Carpenter, 29 Kan. 349, it was held that where assessments were made and taxes levied upon property in the city of Council Grove, and where other things were done by the city officers as though such city was a city of the second class, when in fact it was only a city of the second class de facto, and not such de jure, all such acts were legal and valid as to third persons. See, also, Voss v. School-District, 18 Kan. 467; Pape v. Bank, 20 Kan. 440; Watkins v. Inge, 24 Kan. 612; Morton v. Lee, 28 Kan. 286; State v. Carroll, 38 Conn. 449; Petersilea v. Stone, 119 Mass. 465. In the case of State v. Carroll, 38 Conn. 449, it was held as follows: "An officer de facto is one whose acts, though not those of a lawful oflicer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised (1) without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit or

to invoke his action, supposing him to be the officer he assumed to be; (2) under color of a known and valid appointment or election, but where the officer has failed to conform to some precedent requirement or condition,—as to take an oath, give a bond, or the like; (3) under color of a known election or appointment void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public; (4) under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such." The rules of law with respect to the validity of acts of corporations de facto are substantially the same as the rules of law are with reference to the acts of officers de facto.

We think that the court below did not err in holding that the state, county, and school-district taxes paid by the plaintiff below may be recovered in this action, and therefore its judgment will be affirmed.

JOHNSTON, J., concurring. HORTON, C. J., not sitting, and not taking any part in the decision.

(39 Kan. 257)

ITCHIE et al. v. MULVANE et al., (three cases.). (Supreme Court of Kansas. April 7, 1888.)

Error to district court, Shawnee county; JOHN GUTHRIE, Judge.

Wm. P. Douthitt and C. M. Foster, for plaintiffs in error. Frank Patrick, for defendants in error.

PER CURIAM. The judgment of the court below will be affirmed in the foregoing cases upon the authority of the case of this same title, (ante, 830,) just decided. HORTON, C. J., not sitting, and not taking any part in the foregoing cases.

(39 Kan. 216)

MCCREARY et al. v. HART et al.

(Supreme Court of Kansas. April 7, 1888.)

NEW TRIAL-CONFLICT OF EVIDENCE-DISCRETION TO GRANT NEW TRIAL.

Where a verdict of the jury is founded upon the testimony of a witness, directly contradicted by another witness, and the trial court sets the verdict aside, the supreme court will not reverse the decision or order of the trial court granting a new trial.

(Syllabus by the Court.)

Error to district court, Montgomery county; GEORGE CHANDLER, Judge. J. B. Zeigler and J. D. McCue, for plaintiffs in error. William Dunkin, for defendants in error.

HORTON, C. J. Messrs. Tootle, Hanna & Co., and other mercantile firms, obtained writs of attachment against Logan Bros. & Pitzer and A. G. Logan, which were levied upon a stock of general merchandise found in the possession of T. F. Hart & Co., who claimed to be the owners thereof. Hart & Co. brought their action against the sheriff and his deputy for the possession of the goods. The following are the leading facts disclosed by the evidence: On February 6, 1885, Logan Bros. & Pitzer were the owners and in the possession of the stock of merchandise at Cherryvale, in this state. A. G. Logan, the father of the Logan brothers, upon that date purchased the same, and assumed the indebtedness, which consisted of a chattel mortgage to C. Dobson & Co. of $2,100, and various accounts due to firms for goods, amounting to about $2,000. At the time, the Logan brothers were also indebted to their father in the sum of $1,800, and it was the agreement that this sum should be received as part of the purchase money on the stock. On March 6, 1885, A. G. Logan sold and transferred the goods to T. F. Hart & Co. The bill of

sale of the goods was signed by Logan Bros. & Pitzer and A. G. Logan. Hart & Co. assumed the payment of the chattel mortgage, then amounting to $1,900, paid A. G. Logan $900 in cash, conveyed to him 160 acres of land in Missouri, and also turned over to him two notes aggregating $300. The unsecured liabilities of the Logan Bros. & Pitzer and A. G. Logan were $2,000 or over; the value of the goods, $4,500 to $5,000. At the time of the purchase by Hart & Co., no invoice of the goods was taken. The firm of Hart & Co. consisted of T. F. Hart and S. M. Pearson. Hart was lately from Illinois, but Pearson was a resident of Cherryvale. He had formerly been engaged in farming, and also for some years in the mercantile business. At the time of the purchase, he was a real-estate agent. Hart turned over to Pearson $1,500 in money as his part of the capital of the firm. Prio. to the purchase, Pearson knew that A. G. Logan was being pressed by his creditors, and did not have any ready money to pay his debts. He also knew that an attorney of some of the creditors had been at Cherryvale seeking the payment of claims against the Logans. After the sale was completed, A. G. Logan had the following assets with which to pay the claims of the unsecured creditors: Cash realized upon the sale, $900; book-accounts, from $600 to $800; notes, $250; judgment, $380; and 160 acres of land in Missouri, estimated at $1,500. The jury returned a verdict in favor of the defendants, finding that they were rightfully in possession of the stock of goods; and also found that the value of the defendants' interest in the property, under the writs of attachment, was $2,026.40; being the amount of the attachments, with costs, of the creditors of Logan Bros. et al. T. F. Hart & Co. filed their motion to set aside the verdict of the jury, upon the grounds, among others, that the verdict was contrary to the evidence, and that it was not sustained by sufficient evidence; also, that it was contrary to law. The district court set the verdict aside, and granted a new trial. Of this complaint is made.

This court will only interfere, where a new trial is granted, when the trial court misapplies or mistakes some settled principle of law, or manifestly abuses its discretion. Again, new trials are favored, instead of being disfavored, where any question can arise as to the correctness of the verdict. Field v. Kinnear, 5 Kan. 238; Owen v. Owen, 9 Kan. 96; Atyeo v. Kelsey, 13 Kan. 216; City of Sedan v. Church, 29 Kan. 192; Brown v. Railroad Co., Id. 189; Railway Co. v. Diehl, 33 Kan. 426, 6 Pac. Rep. 566. We think it is plainly manifest that if the real estate conveyed to A. G. Logan, and situated in Missouri, was not worth about $1,500 at the date of the purchase, as testified to by S. M. Pearson, then the necessary consequences of the sale and transfer of the stock of goods by A. G. Logan to Hart & Co. was to hinder and defraud his creditors. If such was the case, the law presumes that it was done with fraudulent intent. Hart cannot claim ignorance of Pearson's knowledge, as it appears that Pearson was Hart's agent, and knew that A. G. Logan was being pressed by his creditors and was unable to pay. The trial court, however, seems to have relied upon the evidence of Pearson as to the value of the Missouri property, instead of the evidence of Logan. Pearson testified that the real estate was taken by A. G. Logan at the estimated value of $2,000, but that its actual value was $1,500. Logan testified that Pearson represented "that the real estate was worth $2,000;" but after the sale he ascertained that it was worth only $200 or $300. He testified: "I would not give three hundred dollars for it; it would not sell for that." If the real estate was fully worth $1,500, as testified to by Pearson, then, not only no fraud was intended, but no fraud would result from the sale of the goods, as Logan was possessed of ample ability to pay all his creditors. The real estate could be readily subjected to his debts, and is situated in the state where his creditors reside and transact business. If the real estate in Missouri was only worth two or three hundred dollars, then Pearson not only committed a fraud upon his partner, Hart, but also defrauded Logan, and attempted to defraud his creditors. For

this action, the firm of Hart & Co. must be held responsible, as he was not only the partner of Hart, but his agent in all his transactions with A. G. Logan and the Logan brothers. If the real estate and other assets in the hands of A. G. Logan, after the sale of the stock of goods, were not plainly in sight, and clearly accessible to his creditors, and sufficient to pay their claims, and if the circumstances of the transaction between Hart & Co. and Logan, or Pearson and Logan, were sufficient to put them, or either, on the inquiry, they ought to have seen to it, and known that the $900 paid to Logan was applied in payment of his debts, and they could not rely upon his declaration of an intention to so apply the $900. Assuming, however, that the trial court did not believe, from the testimony, that the sale was made with any fraudulent intent, but did believe that the real estate in Missouri conveyed to Logan was worth $1,500, and therefore that Logan possessed more ability to pay his creditors after the sale than before, we cannot interfere with the ruling of the trial court in setting aside the verdict. Upon another trial, doubtless more evidence will be presented concerning the actual value of the real estate conveyed. This seems to be the pivotal point in the case. If the real estate was only worth two or three hundred dollars, Logan, after retaining from his creditors the nine hundred dollars paid in cash, did not have the means with which to pay his debts; and, in any event, there was not sufficient property in sight, if the real estate was only worth two or three hundred dollars, clearly accessible for the payment of his creditors. The decision and order of the district court will be affirmed.

(Supreme Court of Kansas. April 7, 1888.)

1. DIVORCE-ALIMONY-RIGHT OF HUSBAND TO.

An action for alimony cannot be maintained by the husband against the wife. 2. APPEAL-REVIEW-FINDINGS OF TRIAL COURT.

The trial court having made a special finding that certain real property conveyed by the husband, through a trustee, to the wife, vested in her an absolute title, and that she did not hold it in trust for the husband, and there being some evidence to sustain such finding, it will not be disturbed here.

(Syllabus by Simpson, C.)

Commissioners' decision. Error to district court, Sedgwick county; D. M. DALE, Judge.

The plaintiff, Isaac Somers, commences his action against the defendant, Catherine Somers, by filing in said court on May 12, 1885, his petition, which is in the words and figures as follows, to-wit:

"The plaintiff complains, and for his first cause of action against defendant alleges, that on or about the 29th day of April, A. D. 1880, at Donaldson, in Marshall county, Ind., the plaintiff intermarried with the defendant; that, ever since their said marriage, he has been ready and willing to discharge all his marital vows and duties towards the defendant, but that defendant has, without fault or neglect on his part, been guilty of extreme cruelty towards this plaintiff for more than four years last past. And plaintiff says that on or about the 1st day of October, 1883, the defendant violently assaulted this plaintiff, and beat and bruised him with various weapons and missiles, and thereby caused a great pain and distress of body and mind: and that the defendant at said time called this plaintiff vulgar, obscene, and opprobious names, and applied to him violent and indecent epithets, commanding him to leave their house and home, title to which was in her name; and that defendant continued from time to time, and almost daily thereafter, to violently, cruelly, and inhumanly beat and abuse this plaintiff up until the 1st day of October, A. D. 1884, on or about which time she violently assaulted, beat, and abused this plaintiff,

and required him to finally quit and abandon their said home. That all of the property belonging to the said parties at the time of their marriage is now in the name and possession, and under the exclusive control, of the defendant, and that this plaintiff has, since the 1st day of October, 1884, been compelled to rely upon the charity of friends for his livelihood. That, at the time of their marriage, he was the owner of one hundred and sixty acres (160) of land in Sedgwick county, Kansas, which is now of the value of five thousand dollars, ($5,000,) and of personal property of the value of five hundred dollars, ($500,) and of four hundred dollars ($400) in cash. That the title and possession of all of said property is now in the defendant, and she violently and forcibly keeps this plaintiff out of the possession, use, and enjoyment of the same, either jointly and together with her, or separately and by himself. That the description of the lands owned by him at the time of said marriage is as follows, to-wit: The south-west quarter (1) of section number three, (3,) township number twenty-eight, (28,) range number two (2) east, in Sedwick county, Kansas. That defendant is the owner of real and personal property, apart from that therein described as received from plaintiff, of the value of about two thousand five hundred dollars, ($2.500,) and is sound in body, and fully able to comfortably support herself, without any portion of plaintiff's abovedescribed property. That plaintiff is seventy years old, (70,) feeble in body and mind, and is totally destitute of property and all means of support. He therefore asks a decree and judgment of the court that he be awarded said lands, and the sum of nine hundred dollars ($900) as alimony, and his own separate estate for his exclusive benefit, use, and enjoyment.

"Second cause of action. The plaintiff says that he makes all of the allegations of his first cause of action a part of this, his second cause of action, and he further says that he is seventy-five years of age, (75,) and weak and feeble in his mind and body, and that the defendant is 20 years his junior, and is strong and vigorous in mind and body, that the defendant, wickedly and designedly intending to cheat, wrong, and defraud this plaintiff out of valuable property of which he was the owner, entered into the marriage relations with him at the time and place set forth in his first cause of action. That, at the time of said marriage, plaintiff was the owner of the land described in his first cause of action, and of personal property of the value of five hundred dollars, ($500,) and of four hundred dollars ($400) in cash. That, shortly after said marriage, the defendant, in pursuance of her fraudulent design of possessing herself of all of plaintiff's property, and then abandoning him, proposed to him that they come to Kansas, and occupy plaintiff's said land as a residence, to which proposition, plaintiff, reposing full confidence in the good faith and virtuous motives of his said wife, assented. That, prior to starting upon their trip to Kansas, defendant represented to plaintiff that he was liable to be robbed while on his journey, and proposed to him to deliver his said four hundred dollars ($400) to her, to be by her carried to Kansas for his use and benefit; that plaintiff, reposing full confidence in defendant, did deliver said four hundred dollars ($400) to her, to be carried to Kansas for his use and benefit. That after their arrival in Kansas, and while they were occupying plaintiff's residence, defendant, by repeated entreaty, and by representing to him that his children were liable to rob him of his property, or take his life to secure the same, persuaded and induced the plaintiff to deed said land to her. That, at the time he so deeded the same, defendant represented and agreed with plaintiff that they should use and enjoy all their property in common, and that plaintiff should always be provided with a comfortable and happy home with her. That plaintiff relied upon her statements with the utmost confidence and faith, and was by her led to believe, and did believe, from and on account of her representations so made to him, that it would be better for him to place the title to his said lands in the name of the defendant, and that the defendant, at the time of