accidents. With a knowledge of these facts, and charged as the city authorities are with notice of those which they should know, it cannot be said that the city was without notice. A reasonable supervision on their part would have discovered the defect in time to have prevented the injury. The end of the door which fell rested upon an insecure attachment, the character of which was detailed to the jury. Although some witnesses stated that it was a good job, enough was shown to establish that it was faulty in construction, and, in view of the dangerous excavation beneath, that it was improperly guarded. There was sufficient testimony respecting the negligence of the city officers, including, as it does, the question of notice, to take the case to the jury, and its finding upon these questions is conclusive. There was a clear omission of duty on the part of the city officers, which makes the city liable for the injury, although they may have had no actual notice of the defect in the attachment upon which the south end of the door rested. Diligent performance of the duty of supervision in the construction of the door would have brought knowledge of the defect. In some cases a want of knowledge is negligence. Boucher V. City of New Haven, 40 Conn. 456. No sufficient reasons have been shown for setting aside the verdict, and therefore the judgment of the district court must be affirmed. All the justices concurring.

pelled to pay. The sheriff claimed under an attachment levied at the instance of several of the creditors of G. D. Bice, who alleged and claimed that the mortgage was not given in good faith, but was made with the intent to defraud, hinder, and delay the creditors of G. D. Bice. It was shown and found by the jury that L. M. Bice was security for G. D. Bice in the Ness City Bank for the sum of $7,000, and that more than that amount of such security debt has since been paid by L. M. Bice. Although the chattel mortgage was given to indemnify L. M. Bice against this security debt, it was specifically found by the jury that the mortgage was given to hinder and delay the creditors of G. D. Bice, and that this was the purpose of both G. D. and L. M. Bice in the making and taking of the mortgage.

The purpose and good faith of the parties to this transaction were the principal questions submitted to the jury. Having alleged that the mortgage was made with fraudulent intent, it devolved upon the defendant to show that it was executed for the alleged purpose. Some proof was offered tending to show a fraudulent intent on the part of G. D. Bice, and, after the admission of this testimony, Bice was called as a witness in rebuttal, and was asked the following question: "Mr. Bice, I will ask you what your intentions were in making the chattel mortgage to the plaintiff in this case." An objection was made by the defendant, upon the ground that it was not rebuttal testimony, which objection was sustained by the court. The plaintiff then offered to prove that the witness "had no intention, in the execution of the mortgage in question, to hinder, delay, or defraud any of his creditors, but that the plaintiff was security for him for a large amount of indebtedness, to the amount of about $7,000, and that the only intention witness had was to secure the plaintiff by reason thereof." They also offered to prove by the same witness that his father only took this mortgage as security, and with no other intention. The offer was refused, upon the ground that it was not rebuttal testimony, and the exclusion of this testimony is the principal error complained of.

Under the issues in the case, the intent of Bice in the execution of the mortgage became a material question, and, when proof was offered tending to show that his purpose was to hinder, delay, or defraud his creditors, it was competent for him to rebut and contradict it with testimony showing honesty and good faith. It is now contended that the form of the question and of the offer were too broad and general, but no such objection was raised to their admission. The only objection made was that it was not rebuttal testimony. We think the testimony should have been admitted, and that its exclusion was prejudicial error. It is now well settled that, upon an issue of fact as to

whether a transfer of property was made for the purpose of hindering, delaying, or defrauding creditors, it is competent, where the one who transfers is a witness, to inquire of him whether, in making the transfer, he intended to hinder, delay, or defraud his creditors. Gardom v. Woodward, 44 Kan. 758, 25 Pac. Rep. 199. Some other objections are made, but none of them are deemed to be sufficiently material to require comment. The judgment of the district court must be reversed, and the cause remanded for a new trial. All the justices concurring.

1. It is not a fraud on other creditors for one having a valid claim to obtain security for the amount actually due by chattel mortgage, where no more property is covered than is necessary to secure the debt.

2. A bank having a claim against an insolvent firm, which is consulted by a firm of other creditors with reference to collecting and securing their claim, is not legally bound to disclose the existence of its claim to such firm, but may keep silent, and protect its own interest, provided it is guilty of no fraudulent conduct, and does nothing more than is necessary to its own protection.

(Syllabus by the Court.)

Error from district court, Dickinson county; M. B. Nicholson, Judge.

Action by the First National Bank of Abilene against D. W. Naill and others. Defendants had judgment, and plaintiff brings error. Reversed.

The other facts fully appear in the following statement by ALLEN, J.:

The First National Bank of Abilene, as plaintiff, brought this action against D. W. Naill, sheriff of Dickinson county, and Lawrence, Manning & Cushing, to recover the value of a stock of boots, shoes, and other merchandise, claiming under a chattel mortgage executed by M. P. Shearer & Co. on the 4th of June, 1888, to secure a note for $4,444, and alleging the wrongful conversion thereof by the defendants. Defendant Naill answered, alleging that the mortgage to plaintiff was given to defraud, hinder, and delay the creditors of M. P. Shearer & Co., and that, as sheriff, he had levied six writs of attachment, each having duly come into his hands, on the property in controversy. Lawrence, Manning & Cushing also answered, denying that Shearer & Co. were indebted to the plaintiff, and alleging that Shearer & Co. were indebted to them in about the sum of $1,586.50, and that the bank was, and had been, their agents for the collection of their claim; that plaintiff, while acting as their agent, had colluded with Shearer & Co. to defraud them, and to hinder and delay them in the collection of their debt; and

that they had caused the property to be at tached to satisfy their claim. The case was tried with a jury, and a general verdict rendered in favor of the defendants. Three special questions were also answered,--one submitted by plaintiff, as follows: "What amount did M. P. Shearer & Co. owe the plaintiff on the 4th day of June, A. D. 1888? Answer. $4,444,"-and two by defendants: "(1) Was it a part of the inducement of the plaintiff, in taking the mortgage, to enable M. P. Shearer & Co. to accomplish a preference of creditors? Answer. Yes. (2) Was it part of the inducement of plaintiff, in taking the mortgage, to enable M. P. Shearer & Co. to place their property beyond the reach of creditor or creditors not sustaining confidential relations with M. P. Shearer & Co? A. Yes." A motion for a new trial was overruled, and judgment entered in favor of defendants on the verdict. The evidence tends to show that the value of the stock of goods was about $5,000.

Stambaugh & Hurd, for plaintiff in error. J. H. Mahan and Burton & Moore, for defendants in error.

ALLEN, J., (after stating the facts.) In order to uphold the judgment in this case, under the issues tried, it must appear, either that the plaintiff's mortgage was made for the purpose of hindering, delaying, or defrauding other creditors of M. P. Shearer & Co., or that the relations of the plaintiff with Lawrence, Manning & Cushing were such as to preclude it from the right to obtain security of its own claim to the exclusion of Lawrence, Manning & Cushing. The jury settled the question as to the validity of plaintiff's claim by finding that there was an actual indebtedness owing by Shearer & Co. to the bank,-of the amount mentioned in the mortgage. As the highest estimate placed on the value of the mortgaged stock of goods was about $5,000, it cannot be claimed that more property was covered by the mortgage than was fairly necessary to secure plaintiff's claim. Under this state of facts, although the giving of this mortgage might operate to deprive all other creditors of any opportunity to collect their debts, it still is not fraudulent. In this state, a debtor has a right to pay or secure one creditor in preference, and to the exclusion, of others. Bliss v. Couch, 46 Kan. 400, 26 Pac. Rep. 706; Randall v. Shaw, 28 Kan. 419; Tootle, Hosea & Co. v. Coldwell, 30 Kan. 125, 1 Pac. Rep. 329. Were the relations of the bank to Lawrence, Manning & Cushing such as to preclude it from the right to secure its claim to their exclusion? It appears from the evidence that the claims of Lawrence, Manning & Cushing against Shearer & Co. had been sent to the bank for collection. On April 23, 1888, the cashier of the bank, Mosher, wrote for instructions to hand to an attorney, saying, "It is hardly in our line to assume the func

tions that would seem necessary in such case," referring to the taking of security for the claim. It appears that Mr. Manning was in Abilene on the 11th and 12th of April, 1888, for the purpose of securing their claim, which had all been included in notes before that time. Shearer & Co. made a statement showing their entire indebtedness to be $3,300, which included the claim of Lawrence, Manning & Cushing, and only about a hundred or two hundred dollars to the bank. Manning testified that this statement was shown by him to Mr. Mosher, who, in answer to the question, "What do you think of it?" said: "I guess it is right. Of course, I have no means of knowing Martin's indebtedness. But, from what I know of him, I think he would give you a correct statement, and I should judge that statement is nearly correct." Manning was endeavoring, at that time, to obtain security for their claim, but failed to get it. After this, and on April 23d Mosher wrote the letter above mentioned. Manning returned to Ottumwa, Iowa, where his firm is located, and on the 31st of May, following, again went to Abilene to look after this claim. He had frequent conversations with officers of the bank about it. He also employed an attorney, and his attorney talked with the vice president and attorney of the bank in reference to obtaining security. During all these conversations, from first to last, the existence of the bank's claim against Shearer & Co. was never disclosed by any officer of the bank to Lawrence, Manning & Cushing, or their attorney. The conduct of the officers of the bank in this respect may, perhaps, be inconsistent with good morals; but we cannot declare, as a matter of law, that the plaintiff was bound to disclose to another creditor the existence and amount of its claim. To do so might jeopardize its own interests. In this connection, we might say that Lawrence, Manning & Cushing are not claiming that the chattel mortgage which the bank took inured to their benefit because of the fiduciary relations existing between them, but are attacking the validity of the mortgage itself, and are claiming, not through the title acquired by the plaintiff, but adversely to it. They were on the ground, with an attorney, for the purpose of protecting their rights. The fact that the bank kept silent as to its own claim, and protected its own interest in preference to theirs, cannot be held to be fraud. Nor is the claim that they were relying on the bank to protect their interests supported by their own evidence. While it is true that they counseled and advised with the officers of the bank, Mr. Manning, one of the firm, was there, and was certainly free at all times to act on his own judgment. The answer does not allege any action or declaration on the part of the plaintiff constituting an estoppel against the assertion of its claim, nor do

the facts disclosed by the evidence show that the defendants parted with any property, or made any contract, on the faith of information received from the officers of the bank, or of their statements or conduct in relation to these matters.

There is evidence in the record tending to impeach, the validity of plaintiff's claim against Shearer & Co., but the jury settled all that controversy in favor of the plaintiff; having found that the plaintiff bad a valid claim for $4,444, the exact amount for which it took security. We are unable to find evidence in the record showing that it sustained any such relation to other creditors as to preclude it from protecting its own interests.

It will be observed that the verdict and judgment are in favor of all the defendants; thus not merely sustaining the attachment of Lawrence, Manning & Cushing, but also exempting the defendant Naill from all liability on account of the seizure of the stock of goods, and, in effect, sustaining the attachments in favor of the other parties named in the sheriff's answer, to whom it is not claimed that the plaintiff sustained any pe culiar or fiduciary relations. The judgment must be reversed, and a new trial ordered. All the justices concurring.

1. A fraudulent representation that a tract of land is free and clear of incumbrances, and upon which another relies, and is induced to purchase the land, when in fact it is subject to a valid mortgage, is sufficient, upon which to base a recovery for the wrong and injury sustained, although the injured party might have discovered the incumbrance by a search of the public records.

2. A person making such misrepresentations may be held liable for the loss occasioned, although he may not have had any direct interest in the transaction, nor have received any of the consideration.

3. The special findings of the jury found not to be inconsistent with the general verdict, and the petition sufficient upon which to rest the judgment.

(Syllabus by the Court.)

Error from court of common pleas, Sedgwick county; Jacob M. Balderston, Judge. Action by Mary M. Wright against the Wichita & Valley Center Motor Railroad & Land Company and others. There was j dz ment for plaintiff, and defendants bring error. Affirmed.

Stanley & Hume, for plaintiffs in error. T. B. Wall, for defendant in error.

JOHNSTON, J. Mary M. Wright brought an action against the Wichita & Valley Center Motor Railroad & Land Company, H. D. Heiserman, Coler L. Sim, and J. T. Carpenter

to recover damages, in the sum of $350, resulting from the alleged misrepresentation and fraud practiced by defendants in the sale of real estate to her. In her petition, she alleged that the defendants represented to her that the company was the absolute owner of a certain lot, and that it was held free and clear of incumbrances; that the representations were made to induce her to purchase the premises, and, relying upon them, she did purchase the lot, and pay to the defendants therefor the sum of $350. At the time of the purchase and payment, there was a mortgage incumbrance upon the lot, of $11,013, in favor of John Westfall, which mortgage was duly filed for record in the office of the register of deeds of Sedgwick county. It was alleged that each of the defendants well knew that the premises were incumbered, but that the fraud and deceit were practiced by them in order to obtain the money which she paid upon the lot. It is averred that John T. Carpenter was especially active in the transaction, and assured her that the title to the premises was good and unincumbered, notwithstanding the fact that he well knew that it was incumbered in the manner stated. She avers that she did not discover the fraud practiced upon her until about the time of the commencement of the action, when she requested the repayment of the money, and offered to convey all the title which she had received from the company. After the testimony of the plaintiff was submitted, the court held it to be insufficient to sustain a cause of action against Heiserman and Sim, and sustained a demurrer to the evidence filed by each of them. Upon the whole testimony, the jury returned a general verdict in favor of the plaintiff, and against the company and Carpenter, assessing her damages at $407.87. The following special questions and answers were returned with the verdict: "What representations were made by the defendant J. T. Carpenter to the plaintiff concerning the title to the property described in the deed attached to plaintiff's petition? Answer. The title was good. On what, if anything, did the plaintiff rely in purchasing the property described in the deed attached to plaintiff's petition? A. Representations of J. T. Carpenter." Other answers disclosed that the Westfall mortgage was placed on record prior to the transaction complained of, on May 6, 1887, and that the plaintiff had no knowledge of the mortgage, except constructive notice by the record, until June, 1888, and, further, that the money paid by plaintiff upon the lot was received by the defendant company. The petition stated a cause of action against all of the defendants, and is sufficient to justify the judgment that was rendered.

The contention that no recovery can be had because the incumbrance was a matter of record is not sound. A fraudulent repre sentation, by one who assumes to have per

sonal knowledge, to a purchaser of real estate, that there is no incumbrance thereon, and upon which representation the purchaser relies and acts to his injury, will sustain an action for the tort, although the purchaser might have discovered the fraud by searching the public records. McKee v. Eaton, 26 Kan. 226; Curtis v. Stilson, 38 Kan. 302, 16 Pac. Rep. 678; Matlack v. Shaffer, 51 Kan. 32 Pac. Rep. 891; David v. Park, 103 Mass. 501; Bristol v. Braidwood, 28 Mich. 195; Babcock v. Case, 61 Pa. St. 427; Linn v. Green, 5 McCrary, 380, 17 Fed. Rep. 407. Just what relation Carpenter bore to the company or to the other defendants does not appear, as none of the testimony is included in the record, but, presumably, the evidence was sufficient to sustain the verdict against Carpenter and the company. All of the de fendants were charged with conspiring together to defraud Mrs. Wright out of the money which was obtained from her; and the fact that Carpenter did not personally receive the money, or the further fact that the testimony was insufficient to hold Heiserman and Sim, will not relieve Carpenter from liability. If he participated in the fraud, from which an injury resulted, he may be held liable, and it is no defense that others are not brought in to share the liability. Mrs. Wright was entitled to a remedy either upon the contract of warranty or in tort; and, from the averments of the petition, her action may be regarded as belonging to the latter class, as she bases her right to recover upon the fraud and falsehood which induced her to make the purchase. Although Carpenter may not have received any portion of the consideration, or been directly interested in the purchase, he may be held liable for fraudulent misrepresentation which caused the injury. In such a case, the party defrauded has a remedy, by action of deceit, for damages against the party who made the misrepresentations which induced the loss. Bish. Noncont. Law. § 315; Kerr, Fraud & M. 331, 339.

We cannot review the errors which it is claimed occurred during the trial, for the reason that they have not been assigned in the petition in error; and, in any event, the special findings returned are sufficient to sustain the judgraent against Carpenter. The charge was that he represented the title to be good and unincumbered, and the jury found that the misrepresentation was that "the title was good." It is said that the title to real estate may be good, and still be incumbered, and in one sense this may be true; but, from the way in which these terms are used in the record, it is not difficult to understand the finding of the jury. In the popular sense, an incumbered title is not a good one, and this view was taken by the jury and the trial court. Treating the terms in the sense contended for by plaintiffs in error, there would still be no ground for re