able, is unavailing to the plaintiff in error, and will not be examined.

2. The testimony in the case examined, and held to be sufficient to sustain the verdict and judgment that were given.

(Syllabus by the Court.)

Error from district court, Cherokee County; GEORGE CHANDLER, Judge.

Cowley & Wiswell, for plaintiff in error. Ritter & Skidmore, for defendant in error.

JOHNSTON, J. This was replevin for a small stock of groceries and drugs. The goods were formerly owned by J. S. Patton, who was largely indebted to several creditors, and, while so indebted, transferred the goods to O. L. Young. The judgment creditors of Patton sued out executions, and placed them in the hands of S. I. Youngman, a constable, who siezed the stock of goods as the property of Patton. Young then prosecuted this action for the recovery of the stock, but the verdict is that he was not the owner of the property, and that the defendant did not wrongfully detain the same from his possession.

Plaintiff complains that the verdict is contrary to the evidence, but from an examination of a large volume of testimony taken with reference to the good faith of the transfer, we cannot say that the conclusion reached by the jury is not correct. After the sale, the goods remained in Patton's house, who still remained in control, claiming to be acting as the clerk of the plaintiff at a salary of $25 per month. The plaintiff devoted very little time or attention to the business, and, taking the testimony of the plaintiff, the statements of the parties, with respect to what had been paid for the goods, were not harmonious or satisfactory. The case presented is one of conflicting testimony, and, in that state of the testimony, we cannot disturb the verdict or judgment. There is a general complaint as to the charge of the court, but no specific objection is pointed out, and we will not undertake to search for errors that are not specifically assigned and pointed out. Wheeler v. Joy, 15 Kan. 389. Judgment affirmed. All the justices concurring.

(45 Kan. 85)

Dec. 6, 1890.)

CHICAGO, K. & W. R. Co. v. MULLER. (Supreme Court of Kansas. EMINENT DOMAIN-COMPENSATION-EVIDENCE. 1. In the trial of a case, upon appeal from an award of damages in condemnation proceedings, the court permitted the plaintiff, as a witness, to answer the question, "How much less was the farm worth immediately after the railroad went through, per acre, than it was before?" Held, that it was error, as it involved substantially the subject-matter the jury were called upon to determine. JOHNSTON, J., dissenting.

2. Where a witness is asked, upon crossexamination, a question as to his knowledge of values, and volunteers the following statement: "A neighbor of mine right north of me has one hundred and twenty acres, and was offered six thousand dollars, "-and the court refused the request of the defendant to withdraw such statement from the jury, held error.

(Syllabus by Green, C.)

Commissioners' decision. Error from district court, Sedgwick county; T. B. WALL, Judge.

George R. Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error. Sluss & Stanley, for defendant in error.

GREEN, C. George Muller owns the N. W. of section 28, township 29 S., range 2, in Sedgwick county. The plaintiff in error condemned a right of way for a railroad over said land, and 5 12-100 acres were taken, for which the commissioners allowed $439.40. The defendant in error appealed from this award to the district court, and a jury assessed his damages at $800, and a judgment was rendered accordingly. The railroad company excepted and brings the case here.

1. The first error alleged is in the admission of evidence. The plaintiff was asked how much less the land was worth immediately after the railroad went through, per acre, than it was before. An objection to this question, on the ground that it called for a conclusion, was overruled, and the witness was permitted to answer: "Five dollars less an acre. This, with similar evidence, it is claimed, is clearly prejudicial, because it is a statement of the judgment and conclusion which the jury should reach and not the witness; that it was improper to permit the witness to usurp the province of the jury and give his own opinions and conclusions. In the case of Railroad Co. v. Kuhn, 38 Kan. 675, 17 Pac. Rep. 322, the following question and answer were held to be erroneous: Question. How much less, in your opinion, is this farm worth after the railroad company had established its track through it, irrespective of any benefits from any improvement proposed by the railroad company to be derived from said track, taking into consideration all incidental loss, inconveniences, and damages, present and prospective, which may reasonably be expected or shown to exist from the maintaining of said railroad track, to be continued permanently? Answer. About $2,100." The court said, with reference to this evidence: "The court below certainly should not have permitted this evidence to be introduced. It involved substantially everything that the jury were called upon to determine, and left nothing for the jury to decide. It invaded the province of the jury. It really amounted to letting the witness himself determine by his own opinion what the plaintiff's damages were, and the amount which the plaintiff should recover in the action. It had no reference particularly to the market value of the land, either before or after the right of way was taken; nor any reference to any specific fact which might tend to show what such market value was, or to increase or diminish the same; but it involved all these things, and a great deal more. Upon the questions involved in this case we would refer generally to the following authorities: 3 Suth. Dam. c. 16; Stock-Yard Co. v. Moore, 5 Amer. & Eng. R. Cas. 352, note, and cases there cited; McReynolds v. Railway Co., 14 Amer. & Eng. R. Cas. 175, note, and cases there cited; Neilson v. Railway Co., Id. 244, note, 17 N. W. Rep. 310, and cases there cited; Railroad Co. v. Foreman, 20 Amer. & Eng. R. Cas. 225, note, and cases there

cited. We can see no very great distinction between the two questions. Each calls for the opinion and conclusion of the witness, and, upon the authority of the case supra, it was error to permit the question and answer. Railroad Co. v. Hall, 14 S. W. Rep. 259; Elliott, Roads & S. 198; Mills, Em. Dom. § 165; Railway Co. v. Nickless, 71 Ind. 271; Dalzell v. Davenport, 12 Iowa, 437; Hosher v. Railroad Co., 60 Mo. 329; Tingley v. Providence, 8 R. I. 493; Railroad Co. v. McKinley, 64 Ill. 338; Railroad Co. v. Burkett, 42 Ala. 83; Railroad Co. v. Ball, 5 Ohio St. 568; City of Omaha v. Kramer, 25 Neb. 489, 41 N. W. Rep. 295.

2. In the cross-examination of the plaintiff, the question was asked as to what sales had been made in the neighborhood, | upon which he based his judgment as to values, and, without being asked, he volunteered this statement: "A neighbor of mine right north of me has one hundred and twenty acres, and was offered six thousand dollars." The defendant in error moved that this statement of the witness be stricken out. The request was denied, and a proper exception made. This, we think, was error, and the court should bave withdraw the statement from the jury. The plaintiff in error complains of certain instructions given and refused, but we see nothing prejudicial in these. While the thirteenth instruction, in relation to damages for the accidental setting out of fires, or the accidental killing of stock, may not have been applicable and supported by the evidence, the defendant below was not prejudiced thereby, as the jury allowed nothing for such injuries. For the reason indicated, as to the admission of evidence, we recommend a reversal of the judgment.

PER CURIAM. It is so ordered.

HORTON, C. J., and VALENTINE, J., con

cur.

JOHNSTON, J. I agree that there must be a reversal, but I base my conclusion solely on the second ground of error stated in the commissioner's opinion.

(45 Kan. 74)

KANSAS FARMERS' MUT. FIRE INs. Co. v. AMICK.

NAILL et al. v. KANSAS FARMERS' FIRE INS. Co.

(Supreme Court of Kansas. Dec. 6, 1890.) EXECUTION-LIEN-GENERAL AND SPECIAL ASSETS. 1. Where a general judgment is rendered against a mutual fire insurance company and its property generally, but the insurance company was doing two kinds of business, a first-class and a second-class, and the policy upon which the judgment was rendered belonged to the secondclass business only, and the company at the time had no second-class assets, the judgment and a general execution issued thereon and following the judgment are valid, and may be enforced as to any property belonging to the insurance company.

2. While a void execution or an execution issued upon a void judgment may be questioned in any court or anywhere, yet a valid execution following a valid judgment, though irregular, or issued upon an irregular judgment, cannot be

questioned except in the court from which it was issued.

(Syllabus by the Court.)

Error from district court, Franklin coun ty; A. W. BENSON, Judge.

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

Stambaugh, Hurd & Dewey, for the Kansas Farmers' Mut. Ins. Co. J. N. Davis and F. A. Waddle, for D. W. Nail and Lydia A. Amick.

99

VALENTINE, J. In the present contro. versy two petitions in error are presented to us for our consideration, one from Franklin county, in which "the Kansas Farmers' Mutual Fire Insurance Company of Abilene, Kansas," is the plaintiff in error, and Lydia A. Amick is the defendant in error, and the other from Dickinson county, in which D. W. Naill and Lydia A. Amick are the plaintiffs in error, and "the Kansas Farmers' Fire Insurance Company," is the defendant in error. The facts with respect to this controversy, stated briefly, are substantially as follows: On March 3, 1882, the above-mentioned insurance company was organized as a corporation, a mutual fire insurance company, under the name of "The Kansas Farmers' Mutual Fire Insurance Company of Abilene. On November 7, 1883, this company issued a fire insurance policy to Lydia A. Amick on property situated in Franklin county, and belonging to the second class, as defined by section 1, c. 111, Laws 1875. On December 27, 1883, a fire occurred which destroyed the insured property. On January 25, 1884, the insurance company passed a resolution to reinsure all second-class business, if satisfactory terms could be made, and to quit the second-class business. But of course they never reinsured Mrs. Amick's property, for it had already been destroyed by fire. On December 23, 1884. Mrs. Amick commenced an action in the district court of Franklin county on said insurance policy against the insurance company to recover for her loss occasioned by the aforesaid fire. Early in 1885 the insurance company, under chapter 130 of the Laws of 1885, created a guaranty fund of $50,000. On October 7, 1885, a general judgment was rendered in the aforesaid action in Franklin county in favor of Mrs. Amick, and against the insurance company, for $1,326, and costs, and no reference was made in such judgment, or in any of the proceedings either to a firstclass or to a second-class business. On January 14, 1886, the insurance company changed its name to "The Kansas Farmers' Fire Insurance Company." On July 9, 1887, upon proper proceedings previously instituted by the insurance company in the supreme court, such court affirmed the aforesaid judgment of Mrs. Amick against the insurance company. Insurance Co. v. Amick, 37 Kan. 73, 14 Pac. Rep. 454. On July 27, 1887, an execution was issued from the Franklin county district court upon such judgment, and was returned not satisfied. On March 21, 1888, proceedings were instituted by Mrs. Amick in the district court of Franklin county on motion in aid of execution, and for the appointment of a receiver. See

of

Civil Code, § 254, subd. 4. On April 2, 1888, this motion was heard, and on the hear. ing thereof it was shown that the insurance company had no assets belonging to its second-class business; but what had become of such assets has not been shown. It seems to be admitted that it had assets belonging to its first-class business. On August 13, 1888, said motion was decided, and D. W. Naill, the sheriff of Dickinson county, was appointed receiver, and on September 20, 1888, the insurance compa. ny, for the purpose of having the aforesaid order of the district court of Franklin county appointing such receiver reversed, brought the case to this court on petition in error; and that is the first petition in error above mentioned. On November 20, 1888, the company filed a supersedeas bond, but that bond provided merely that the obligors should pay all the damages that Mrs. Amick might sustain by reason the proceedings in error from the order of the district court appointing the receiver, provided such order should be affirmed in whole or in part. On May 22, 1889, a general execution in favor of Mrs. Amick, and against the property generally of the insurance company, was issued from the Franklin county district court to D. W. Naill, the sheriff of Dickinson county. The insurance company was described in the execution as the Kansas Farmers' Mutual Fire Insurance Company, alias the Kansas Farmers' Fire Insurance Company. The sheriff was about to levy upon property of the company when on June 25, 1889, proceedings were commenced by the insurance company in the Dickinson county district court against the sheriff and Mrs. Amick to perpetually enjoin them from levying that execution, or any other execution issued upon the aforesaid judgment, upon any property of the insurance company belonging to its first-class business, or upon its guaranty fund. A temporary injunction was granted at the time by the district judge, and a proper undertaking was given by the insurance com. pany. On July 24, 1889, Mrs. Amick filed an answer setting up the Franklin county judgment and her interests and rights thereunder. On July 27, 1889, the insurance company replied by filing a general denial. On April 4, 1890, Mrs. Amick filed a motion to vacate the aforesaid temporary injunction, and the motion was heard on the same day. On June 10, 1890, a trial was had upon the merits of the action before the court, without a jury, and a perpetual injunction was granted restraining and enjoining the defendants in that action, Nail and Mrs. Amick, from interfering with any of the assets or property of the insurance company, except such as pertained exclusively to its second-class business; and also from interfering with the insurance company's guaranty fund. It was shown at the trial that the insurance company had no assets or property belonging to its second-class business, but what it had done with the same was not then or at any other time shown. The defendants in that action then filed a motion for a new trial upon various grounds, which motion was overruled; and on September 2, 1890, they brought

the case to this court for review on petition in error; and this is the second petition in error above mentioned.

We think the order of the district court of Franklin county, appointing the receiver, must be affirmed, and the judgment of the district court of Dickinson county granting the perpetual injunction must be reversed. The judgment sought to be enforced by Mrs. Amick was a general judgment in her favor, and against the insurance company and its property generally, and the execution followed the judgment. The judgment reads as follows: "It is therefore considered and adjudged by the court that the said plaintiff, Lydia A. Amick, have and recover of and from the said The Kansas Farmers' Mutual Fire Insurance Company, defendant, the sum of thirteen hundred and twenty-six dollars, so as aforesaid found to be duc from the said defendant to the said plaintiff, together with the costs of this action taxed at $104.39, and that execution is sue. If this judgment should be applied only to the second-class assets or property of the insurance company, it should have been so rendered; but it was not so rendered, and it must now be held to be valid and binding and conclusive, precisely as it was rendered. It is now nearly seven years since the fire occurred. It is nearly six years since the action to recover for the loss was commenced. The action was contested, but a general judgment was nevertheless rendered in favor of Mrs. Amick and against the insurance company, and it is now more than five years since such judgment was rendered, and certainly the validity or regularity of the judgment cannot now be questioned; neither can the execution issued upon the judgment and following the judgment be questioned.

A void execution or an execution' issued upon a void judgment, may be questioned in any court, or anywhere; but a valid execution following a valid judgment cannot be questioned anywhere, except as follows: If the execution were valid, but irregular, or issued upon an irregular judgment, it might be questioned in the court from which it was issued; but it could not properly be questioned anywhere else. The order of the district court of Franklin county will be affirmed, and the judgment of the district court of Dickinson county will be reversed. All the justices concurring.

MAYER V. WATERS.

(45 Kan. 78)

(Supreme Court of Kansas. Dec. 6, 1890.) FIXTURES-BUILDINGS ON GOVERNMENT RESERVATION-USE AND OCCUPATION.

1. Buildings erected on a military reservation by a post trader, under authority from the war department, for the purposes of trade, do not become a part of the realty, and the owner, when he ceases to be post trader, may remove and dispose of the same as his own property.

2. The military authorities are invested with power to prescribe rules and regulations for the erection, maintenance, and removal of buillings erected by a post trader on a reservation, but such rules and regulations when made are subject to waiver and modification.

3. A formal regulation was made that an owner could not sublet such buildings to another

without permission of the military authorities, and one who was an owner of buildings that had been erected by a post trader on a military reservation leased the same to a trader for a stipulated rental, without express permission, but with the knowledge and acquiescence of the military authorities, and the trader occupied the same and paid rent to the owner for about four years, when an order was made by the commanding officer that the owner should remove the buildings within a reasonable time. The order was not enforced, but the trader, with the knowledge of the officers, was permitted to use the building as before. On account of this order, the trader declined to pay rent to the owner, although he continued in the uninterrupted possession of the buildings, with full knowledge that the owner demanded the payment of rent. Held, that the action of the officers did not relieve the trader from liability to the owner for the use and occupation of the buildings.

(Syllabus by the Court.)

Error from district court, Geary county; M. B. NICHOLSON, Judge.

J. R. McClure, for Mayer. J. V. Humphrey, for Waters.

JOHNSTON, J. Charles E. Mayer brought this action against Moses Waters to recover $1,770, alleged to be due for the use and occupation of certain buildings owned by the plaintiff and situate on the Ft. Riley Military Reservation, consisting of a store building, a club-house, and a residence. On November 25, 1879, Moses Waters, who was then, and since then has been, the duly-appointed post trader at the Ft. Riley Military Reservation, entered into a written lease with Charles E. Mayer, the owner of the buildings, for a term of one year from April 1, 1880, at a rental of $30 per month, payable in quarterly installments. Waters took possession under this agreement, and, although no written lease was afterwards executed, he continued to occupy and use the buildings as post trader until the commencement of this action, and paid rent for the same until February 1, 1883. After that time, he declined to make any further payment, claiming that certain military orders and proceedings which had been had, relieved him of liability to Mayer for the use of his buildings. In June, 1883, he applied to the post council of administration at Ft. Riley for the appointment of a board of officers to appraise the value of the buildings occupied and used by him, stating that they were in need of repairs, and that unless he could purchase them at a fair price he must request that the owner be directed to remove them, so that he could erect in their places such buildings as his business required. The application was forwarded by the post commander to the head-quarters of the department of the Missouri, and Gen. Pope, who was in command, returned the same, with an indorsement directing the commanding officer at Ft. Riley to cause the owner of the buildings to remove them from the reservation within a reasonable time, and that he could not be allowed to rent them. Moses Waters was informed by the post commander of this decision, and that Mayer would have a reasonable time to remove the buildings, but that Waters would be allowed to occupy the same until further orders. Mayer had no notice of this ap

plication or of the proceedings thereon until after the same had been taken, nor until September 20, 1883. The case was submitted to the court, without a jury. on oral and documentary evidence, and the court found that Mayer was entitled to recover rent for the use of his premises from February 1, 1883, to September 20, 1883, (when he received notice of the military proceedings aforesaid,) at the rate of $30 per month, but that the plaintiff was not entitled to recover for the use of the premises after receiving notice of the proceedings had by the military authorities. Each of the parties excepted to the findings and judgment of the court, and both are here alleging error.

It is insisted on behalf of Waters that, under an act of congress and certain mili tary regulations, Mayer was without authority over the buildings, or to collect rent for the same, and, as he could not lawfully collect rent, Waters was not legally liable for their use and occupation. Congress has enacted "that every military post may have one trader, to be appointed by the secretary of war, on the recoinmendation of the council of administration, approved by the commanding officer who shall be subject in all respects to the rules and regulations for the government of the army." 19 U. S. St. at Large, 100. Among the rules and regulations for the government of the army are found the following: "Post traders will actually carry on the business themselves, and will habitually reside at the station to which they are appointed. They will not farm out, sublet, transfer, sell, or assign their busi. ness to others. "Post traders will be permitted to erect buildings for the purpose of carrying on their business upon such part of the military reservation or post where they are assigned as the commanding officer may direct. Such buildings will be in convenient reach of the garrison." "When a trader is removed from his post, he has a right to remove and dispose of the material of the buildings erected by him as his own property. He cannot lease or sell his buildings to another post trader without the permission of the military authorities; but such permission would have the same force as a license to a new post trader to erect such a building at that spot." It is urged that Mayer had leased the buildings when he was not a post trader, and also without license from the military authorities; and, this being in violation of the regulations, he had no right to collect rent from Waters or any one else. It is true that Mayer was not a post trader when the original lease was executed, nor has he held that position since that time, and it is also true that he never received from the military authorities express permission to rent the buildings. It appears that the buildings were originally erected by Robert Wilson, a post trader at Ft. Riley, under due license from the war department. He sold them to Henry F. Mayer, who was also post trader at the same place, and Henry F. Mayer, in turn, sold them to his son, the plaintiff, in 1876; but the plaintiff was not then, and never has been, a post trader at Ft. Riley, although he was the partner of

one McGonegal, who was the post trader for the years 1871 and 1872. We think that Waters was liable to the plaintiff for the use and occupation of the buildings, both before and after the military proceedings herein before referred to. This is not a controversy between the United States and the plaintiff, and no step taken has divested the plaintiff of the ownership of the buildings occupied and used by Waters.

The military authorities have full power to regulate the erection, maintenance, and removal of buildings used for carrying on the business of a post trader, and to prohibit the assignment and subletting of the business to another; but the strict observance of the rules may be waived by the government, and the failure of the owner of the buildings to conform to these rules and regulations does not change the ownership of the buildings, or relieve a party who has taken possession of the same, under a lease from the owner, from paying for their use. It does not appea that direct permission was given for the lease or transfer of the buildings from the original owner to the several parties through whose hands they passed; but it does appear that the transfers were made with the knowledge and acquiescence of the military authorities, and it is conceded that the plaintiff never knew there was any objection to his renting these buildings until he received notice of the proceedings that were taken in reference to the removal of the same. These proceedings were had at the instance of Waters, and without any notice to the plaintiff. The officers of the department are not vested with power to appropriate such property for the use of the government, and the proceedings taken did not change the relation existing between Mayer and Waters. The buildings were personal property when they were erected, and remained such until this action was begun. It has been held by the attorney general | of the United States that " buildings erected by post traders on a military reserve, in conformity to this order, are erected for the mutual benefit of the government and the trader, and are not to be regarded as buildings would be if erected by trespassers; or even by tenants under leases in which no provision is made therefor. They are erected under a license from the government, and for the mutual benefit of both parties. Under these circumstances, I am of opinion that, by the proper construction of the license, these buildings were not intended to become a part of the realty after their erection, but were to continue the property of the traders, and therefore, when a trader is removed from his post, I have no doubt that he has a right to remove the building from the place where it was erected, and, when removed, he can dispose of the materials as his own property." 14 Op. Attys. Gen. 125. It was held in the same opinion that such license did not authorize a lease or conveyance of the buildings to others for their occupation and use, without the permission of the military authorities; that the right was confined solely to the removing of the buildings from the premises.

The officers had full authority to order the removal of the buildings, and to enforce such order; but so long as they permitted the buildings to remain upon the reservation, they were without authority to relieve the trader from paying for their use and occupation. The order made was that Mayer should remove the buildings from the reservation within a reasonable time; but, instead of enforcing the regulation or the order, the officers permitted the buildings to remain until the commencement of this action. The buildings have been used continuously for the business of the post trader, and it does not appear that there was any necessity for their vacation, or that the trader was using them for any improper purpose. This continued use, with full knowledge of the ownership and rights of the plaintiff, must be regarded as a waiver of the regulation, and a sufficient permission for the leasing of the buildings to Waters. This seems to have been the view of the war department, as the adjutant general, in response to a letter addressed to him with reference to the occupancy of these buildings, said: "If the trader occupies buil lings belonging to you, without being willing to purchase them, or pay rent to you as you demand, you should seek a remedy in the civil courts. As late as January 24, 1888, the commanding officer at Ft. Riley, in response to an application for a military order to compel the post trader to pay for the use of the buildings, stated: "It is not understood why Mr. Mayer does not have recourse to process of civil law to adjust his rights in this case. He should be informed that there is a special reason for this, in view of the control of the civil authorities on the reservation at Fort Riley." In this case, Waters first entered into a written lease for the property, and continued to pay rent thereon to plaintiff for about four years, thereby recognizing the title and ownership of plaintiff, and that the relationship of landlord and tenantexisted between them. He has remained in undisturbed possession of the buildings ever since, with full knowledge that compensation for their use was demanded by plaintiff, and he cannot now be permitted to deny the title of the landlord, or repudiate his implied liability for the use and occupation of the buildings. The fact that he has latterly refused to pay rent for the use of Mayer's property will not terminate his relation as tenant, or relieve him from liability for the use and occupation of the property. Thompson v. Sanborn, 52 Mich. 141, 17 N. W. Rep. 730; Tayl. Landl. & Ten. c. 13, § 3.

We are asked to render such judgment in the case as the court below should have rendered in case of a reversal; but as the case was submitted upon testimony which is not harmonious, and as the condition of the buildings and the amount of the repairs that have been expended have not been stated or agreed upon, we are unable to direct the judgment that should be entered. The judgment of the court below will therefore be reversed, and the cause remanded for a new trial. All the justices concurring.