said four blocks in said deed, of date June 24, 1880, was worth from $10,000 to $12,000, and the incumbrance thereon, by reason of the tax-sales herein described, then amounted to about the sum of from $300 to $500." son,' and in the county of Atchison, and state of Kansas, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and also all of the estate, right, title, interest, prop soever, as well in law as in equity, that the said parties of the first part have in or to the above-described premises, and every part and parcel thereof, with the appurtenances, to have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns forever. In witness whereof, the said parties of the first part have hereunto set their hands and seals the day and year first above written. | COURTLAND D. PALMER, Ex'r. [Seal.] CHAS. P. PALMER, Ex'r. [Seal.] HENRY DRAPER, Ex'r. [Seal.] HENRIETTA GOULD, Executrix. [Seal.] Sealed and delivered in the presence of JOHN J. BECKER, witness as to the three executors, J. THAIN EASTON, as to Henrietta S. Gould, executrix. S. Conclusions of law: "Said quitclaim deed, of date June 24, 1880, did not convey to said R. F. Smith, under whom the plain-erty, possession, claim, and demand whattiff claims, any property of the estate of Courtland Palmer, deceased, and Charles Gould, deceased, nor of the grantors as executors and executrix of said estates respectively, and the decree of said surrogate's court, of date May 23, 1881, was of no validity as a decree, and was inoperative as a confirmation of said conveyance. (2) Said deed of June 24, 1880, and the receipt of the consideration from the said R. F. Smith by the executors of said estates, was insufficient to convey to the said R. F. Smith the title, legal or equitable, of the said Courtland Palmer, Charles Phelps Palmer, Mary Anna Palmer Draper, the two children of said Richard S. Palmer, deceased, and Henrietta S. Gould in said premises." The third and fourth conclusions of law have reference to the defendant's title, and need not be given. “(5) The plaintiff is entitled to recover the possession of said lots Nos. 23 and 24, in block 43, as described in the petition herein, upon the payment to the defendant of the sum of $31.91, and interest thereon, according to law, from April 21, 1880, being the amount of taxes, penalties, and costs paid by said defendant. The plaintiff is also entitled to judgment for his costs herein. (6) That said defendant is entitled to judgment against plaintiff for all of the said described property other than lots 23 and 24 in block 43, L. C. Challis' addition." The aforesaid quitclaim deed, dated June 24, 1880, and delivered in February, 1881, reads as follows: "This indenture, made this twentyfourth day of June, in the year one thousand eight hundred and eighty, between Courtland Palmer, Charles P. Palmer, Henry Draper, executors of the estate of Courtland Palmer, deceased, and Henrietta S. Gould, executrix of the estate of Charles Gould, deceased, parties of the first part, and R. F. Smith, party of the second part, witnesseth: That the said parties of the first part, for and in consid. eration of the sum of two hundred and twenty-five dollars lawful money of the United States of America to them in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have remised, released, and quitclaimed, and by these presents do remise, release, and quitclaim unto the said party of the second part, and to his heirs and assigns forever, all of block twenty-nine, (29,) being lots one (1) to twentysix, (26,) inclusive; all of block thirty, (30,) being lots one (1) to twenty-six, (26,) inclusive; all of block forty-three, (43,) being lots one (1) to thirty, (30,) inclusive; all of block forty-four (44) east of lots ten (10) and eleven, (11,) being lots one (1) to twenty, inclusive. All of said property being in that part of the city of Atchison known as 'Challis' Addition to the City of Atchi "State of New York, city of New York, county of New York-ss.: On the twentyfourth day of June, in the year one thousand eight hundred and eighty, before me personally came Courtland Palmer, Charles P. Palmer, and Henry Draper, known to me to be the executors of the last will and testament of Courtland Palmer, mentioned and described in the within con veyance, and they severally, each for himself, acknowledged before me that he executed the same as such executor, as aforesaid. [Seal.] JOHN J. BECKER, Notary Public-170-N. Y. C. "State of New York, city and county of New York-ss.: On this 25th day of June, in the year one thousand eight hundred and eighty, before me personally came Henrietta S. Gould, known to me to be the executrix of the last will and testament of Charles Gould, deceased, mentioned and described in the within conveyance, and she acknowledged before me that she executed the same as such executrix as aforesaid. [Seal.] J. THAIN EASTON, Notary Public, N. Y. C." This deed was indorsed upon its back at the time of its execution as follows: "Executors' deed. From Courtland Palmer, Charles P. Palmer, Henry Draper, and Henrietta S. Gould, executors, to R. F. Smith. L. F. Bird and Jackson & Royse, for plaintiff in error. W. W. & W. F. Guthrie and Henry Elliston, for defendant in error. VALENTINE, J., (afterstating the facts as above.) This was an action in the nature of ejectment, brought in the district court of Atchison county to recover certain real estate. The plaintiff, John M. Price, claims under a certain deed of conveyance, a quitclaim deed, executed to R. F. Smith by the three executors of Courtland Palmer's estate, to-wit, Courtland Palmer, Jr., Charles P. Palmer, and Henry Draper, and by the sole executrix of Charles Gould's estate, to-wit, Henrietta S. Gould, and a cer tain quitclaim deed from Smith and wife to himself, together with certain other facts and circumstances which he claims create in himself an estate in the property, either legal or equitable, or both. The defendant, Samuel C. King, claims the property under certain tax-deeds executed to him by the county clerk of Atchison county, and also by virtue of being in theactual possession and occupancy of the property. With respect to nearly all the property, the judgment of the court below was in favor of the defendant and against the plaintiff, upon the ground, principally, that it was not shown, even prima facie, that the plaintiff ever had any title or estate, either legal or equitable, in or to the property. The deed under which the plaintiff claims was evidently intended by all the parties thereto to be the deed only of the aforesaid executors and executrix, executed in the capacity only of executors and executrix, and not executed in any other capacity, or by any other person or persons. All the evidence upon the subject tends to show this. The deed was indorsed on its back, "Executors' deed." It was executed in the name of the executors and executrix as such. It was signed by them as executors and executrix. It was witnessed by the subscribing witnesses to the same effect, and it was also acknowledged by the grantors only as executors and executrix. And, as a matter of fact, according to all the extrinsic evidence upon the subject, the grantors intended to execute the deed only as executors and executrix, and afterwards, with the desire and wish of all the parties, it was confirmed by the surrogate's court of the city and county of New York, and state of New York, as the deed of the executors and executrix; and afterwards, at the instance of the plaintiff and Smith, authenticated copies of the wills under which the execu tors and executrix attempted to execute the deed, and the proceedings of the said surrogate's court showing the probate of the wills, etc., were filed and recorded in the office of the probate court of Atchison county, Kan.,-the county in which the land supposed to have been conveyed, including the land in controversy, is situated. And further, each of the parties executing the aforesaid deed was actually an executor or executrix, and all together they were all the executors and the only executrix of the Palmer and Gould estates, and one of such executors, Henry Draper, had no possible interest in the property supposed to be conveyed except as executor, and as the husband of one of the heirs and devisees, and the grantors mentioned in the deed included the names of only three of the heirs or devisees, and there were three of the heirs and devisees of the Palmer estate, and the six heirs of the Gould estate, who were not mentioned in the deed as grantors or otherwise. If the foregoing deed shall be construed to be only the deed of the foregoing executors and executrix, then it must unquestionably be held to be absolutely null and void as a conveyance; and we think it must be so construed and so held. No one of the executors or the executrix, as such, had any title or estate in or to any part of the property. The wills un der which they attempted to act did not give to them, or to any one or more of them, any title or estate in or to the property as executors or executrix. Nor did such wills confer upon them, or upon any one or more of them, or upon any one else, any power or authority to sell or convey the property, or any part thereof, or to alienate the same in any manner whatever. Nor did any court ever attempt to give to them, or to any other person or persons, any such power or authority. And there was always an abundance of personal property on hand belonging to each estate with which to meet all demands that might be presented against such estate. Hence, no fact existed authorizing any court to grant any such power or authority. The plaintiff, however, claims that, even if the aforesaid deed is void as a conveyance, and even if for that reason the plaintiff has no legal title to the property in controversy, still, under all the facts of the case, and in equity, he has the paramount equitable title thereto. Now in what does the plaintiff's equities or his equitable title consist? His title, so far as any writing is concerned, is founded solely upon a quitclaim deed to himself from Smith, the grantee of the aforesaid executors and executrix, and hence, so far as his written title is concerned, he claims only under a quitclaim deed from a party (Smith) whose title was founded upon a void executors' and executrix's deed, which also was and is only a quitclaim deed; and under a quitclaim deed the grantee therein cannot claim to be a bona fide purchaser or holder of the property, or an equitable owner thereof as against outstanding equities in other claimants of the property. Johnson v. Williams, 37 Kan. 179, 14 Pac. Rep. 537. Indeed, the grantee in a quitclaim deed gets nothing except what his grantor in fact owned at the time of the execution of the deed, which, in the present case, was nothing, as the executors and executrix, as such, owned nothing in the present case. And such a deed will not estop the maker thereof from afterwards purchasing or acquiring an outstanding adverse title or interest in or to the property, and holding it as against his grantee. Simpson v. Greeley, 8 Kan. 586, 597; Bruce v. Luke, 9 Kan. 201, 207, et seq.; Scoffins v. Grandstaff, 12 Kan. 469, 470; Young v. Clippinger, 14 Kan. 148, 150; Ott v. Sprague, 27 Kan. 624; Johnson v. Williams, 37 Kan. 180, 181, 14 Pac. Rep. 537. It is possible that there might be cases where a party claiming only under a quitclaim deed would have equities be yond the mere terms of his quitclaim deed, but we do not think that this case falls within any of such cases. It is possible, where a party purchases real estate, and pays a full consideration therefor, and takes only a quitclaim deed as a conveyance, that his claim of title to the property should be treated at least with favor; but such is not this case. The real estate claimed by the plaintiff to have been conveyed in this present case was worth, at the time of its supposed conveyance, from $10,000 to $12,000, with an incumbrance on it for taxes amounting to from $300 to $500, and yet the plaintiff's grantor, Smith, paid only $225 for such real estate,-less than 1-40 of the actual value of the property, and the plaintiff in fact, as well as presumptively, knew all this. Also, where there is fraud on the part of the vendor, or a mutual mistake of the parties, or some accident intervening, it is possible that the holder of a quitclaim deed might obtain equities beyond the terms of his deed; for instance, where the deed is defective, or does not fully express what the parties intended that it should express, equity might reform it, or might consider it as reformed, so as to make it express or accomplish what both the parties intended that it should express and accomplish. But that is not this case. The deed in the present case is just what the parties intended that it should be, and, if it were changed in its form or effect in any particular, it would be what the parties intended it should not be. It is true that Smith desired a different kind of deed, and at the instance of Smith, two different deeds were sent to the agent of the grantors for execution, but they refused to execute the same, and would not execute any other or different kind of deed than the one which they did in fact execute; and the negotiations with reference to the matter were going on and pending between the parties for, about eight months before any final agreement was reached, and, after all the parties were well informed as to the facts, Smith finally agreed to take, and knowingly did take, the very deed which is now in controversy in this case, and afterwards paid the aforesaid $225 for the same. He took it knowing what it was, and that he could not obtain any other or different kind of deed. And the plaintiff knew the same. There was no fraud, no concealment, no misrepresentation, no deception on the part of the grantors, or their agents, and no mistake with reference to the facts on the part of any one. A quitclaim deed was executed by the grantors merely as executors and executrix, and all the parties knew it; and this quitclaim deed really conveyed nothing, leaving the entire title to the property in the heirs and devisees. By this deed Smith got nothing, and he conveyed nothing to the plaintiff by his quitclaim deed to the plaintiff. And the facts were not such as to create or vest such equities or equitable title in the plaintiff that he may now disturb the rights of the defendant who holds and claims by a separate and independent title adverse to both the plaintiff and his grantors. There are also cases where an agent or trustee attempts to bind his principal, but from some lack of authority, or from irregularity, he fails to do so, and in effect binds himself. But such is not this case. The executors and executrix in this case did not attempt to bind any person. They merely quitclaimed any interest which they might have as executors and executrix in the property. and, as before stated, no party was deceived or defrauded or mistaken as to the facts, but all were fully and completely cognizant of the same. Smith got all he purchased or paid for when he got his quitclaim deed. He did not purchase or pay for the individual rights of any per. son. Of course, in the beginning, there was some talk of conveying the title to the property, and Smith at all times desired that such should be the case; but the executors and executrix refused, and consented only to quitclaim as to any interest which they might possibly have in the property as executors and executrix. They did not agree to sell or convey any interest which they or others might have in the property in any other capacity; and, in the capacity of executors and executrix, they will probably never dispute the plaintiff's title. Indeed, all the parties will at all times admit that Smith got by his quitclaim deed, and conveyed to the plaintiff by another quitclaim deed, all interest which the executors and exccutrix ever possessed in the property, which in fact was nothing. The defendant makes the claim that no title passed to Smith or to the plaintiff for the further reason that neither the wills nor the probate thereof, nor any of the proceedings of the surrogate's court of the city and county of New York, were filed or recorded in the office of the probate court of Atchison county, Kan.,-the county in which the land in controversy is situated,-until long after the aforesaid deed from the executors and executrix to Smith, and the deed from Smith to the plaintiff, were executed, delivered, accepted, and recorded. The first of the foregoing deeds was executed in New York on June 24, 1880. It was transmitted to Kansas on July 8, 1880, but on account of disputes between the parties, it was not accepted by Smith until about February 7, 1881, when it was accepted by him, paid for, and then recorded in the office of the register of deeds. It was confirmed in the surrogate's court of the city and county of New York on May 23, 1881. The deed from Smith to the plaintiff was executed on June 25, 1881, and was recorded on July 5, 1881. The wills were never probated in Kansas, and no proceedings, with reference thereto, were ever had in Kansas until April 1, 1882, when authenticated copies of the wills, and the records of the proceedings of the aforesaid surrogate's court, were filed and recorded in the office of the probate court of Atchison county, Kan. Now it is claimed by the defendant that no will can be effectual to pass title to real estate unless the same has been probated or recorded in Kansas, according to the statutes of Kansas, and sections 24 and 29 of the act relating to wills, and section 1 of chapter 102 of the Laws of 1879, (Gen. Laws 1889, par. 2932,) are referred to as sustaining this claim. Said section 29 reads as follows: "Sec. 29. No will shall be effectual to pass real or personal estate unless it shall have been duly admitted to probate, or recorded, as provided in this act." Upon the foregoing facts and statutes referred to, it is claimed by the defendant that no title had ever passed to any one under the wills when the foregoing deeds were executed and delivered, and therefore that no title could have passed to Smith or to the plaintiff because of the wills or otherwise when the foregoing deeds were executed, for at that time neither the executors nor the executrix, nor the devisees, nor any one else who might claim title under the wills, had any such title under the same to pass to any one; and that, as both such deeds were merely quitclaim deeds, which could not operate to pass future-acquired titles, no title could ever subsequently have passed under them, and the cases heretofore cited are referred to as authority for such claim. With reference to these claims of the defendant just mentioned, we shall express no opinion, as we do not think it is necessary for the decision of this case. We decide in this case, however, the following: The first quitclaim deed executed by the executors and executrix to Smith did not, of itself, and at the time it was executed, convey to Smith any title or interest in or to the property described in the deed, for at that time the grantors, as executors and executrix, had no such title or interest to convey, nor any power or authority to convey any such title or interest, and nothing afterwards passed under such deed, or by virtue of its terms, for it was only a quitclaim deed, and such is and always has been the law with respect to quitclaim deeds; and nothing at any time passed by virtue of any of or all the facts and circumstances taking place prior to, contemporaneous with, and subsequent to the execution of the deed, for no fraud, deception, concealment, mistake of facts, or accident occurred or intervened, and it was not the intention of the parties that anything but the interest of the executors and executrix as such, or the interest which they might have had the power to convey, should pass. And we might further say that a party can never obtain by way of estoppel or ratification or otherwise what it was never expected or intended that he should obtain. Finding that the plaintiff's supposed legal title founded upon the aforesaid quitclaim deeds is void, and not finding any equities in favor of the plaintiff sufficient to create an equitable title, we think the judgment of the court below is correct. There are a few other questions presented in this case, but we do not think that they need comment. The plaintiff may pay the taxes due on the two lots adjudged to him at any time, and may then obtain the possession thereof. The judgment of the court below will be affirmed. All the justices concurring. (44 Kan, 669) BEESON et al. v. BUSENBARK. (Supreme Court of Kansas. Nov. 8, 1890.) INJURIES TO SERVANTS LIABILITY OF RAILROAD CONTRACTORS. 1. Chapter 93, Sess. Laws 1874, entitled "An act to define the liability of railroad companies in certain cases, " (paragraph 1251, Gen. St. 1889,) applies to every railroad company organized in this state, and to every railroad company doing business in this state; but its provisions do not include firms, partnerships, or individuals having servants or employes engaged in work upon the road or trains of a railroad corporation. 2. A firm or partnership, composed of private persons, not being a railroad corporation, or a de facto railroad corporation, having a subcontract to construct a part of the road of a railroad corporation, organized under the laws of this state, and operating cars and trains on the road in the prosecution of their work, and having servants and employes at work upon the road, and in charge of their trains, are not within the terms of chapter 93, Sess. Laws 1874, (paragraph 1251, Gen. St. 1889.) (Syllabus by the Court.) Error from district court, Saline county; S. O. HINDS, Judge. H. M. Jackson, for plaintiffs in error. Garver & Bond, for defendant in error. HORTON, C. J. This was an action in the court below for damages for personal injuries, received by Harry E. Busenbark while in the employ of the defendants, Beeson & Selden. The jury returned a verdict for the plaintiff for $12,000, and judgment was entered for that amount against the defendants. They complain, and bring the case here. It appears from the record that the Kansas & Colorado Railroad Company, an auxiliary of the Missouri Pacific Railway, is a corporation organized under the laws of this state, and doing business as a railroad company in this state. W. V. McCracken & Co. were the original contractors with the railroad company for the construction of its road through Saline, McPherson, Rice, Barton, and other counties of the state. McCracken & Co. sublet the construction of the road to Beeson & Selden between Salina and the east line of Ness county. McCracken & Co. were to furnish all the locomotives, not to exceed three, and cars, inciuding boarding-cars, for the use of Beeson & Selden in carrying out the contract. Beeson & Selden were to receive all material at Salina, and transport the same at their own cost and expense, including all unloading, loading, and reloading of such material, under direction of the engineer in charge, and as he should deem necessary. After 15 miles of track had been laid from Salina, west. Beeson & Selden sublet a portion of the work to Bracey & Harris. Bracey & Harris were to do all work in the track-laying and to load and unload material, but Beeson & Selden were to transport the material, and provide the train service. Beeson & Selden employed and paid the trainmen, including the plaintiff. Trains were operated on the road by Beeson & Selden. About October 25, 1886, the Missouri Pacific Railway Company began running trains over the road between Salina and Geneseo. Beeson & Selden retained their own trains in completing the construction of the road. On October 27, 1886, just after dark, Harry Busenbark, a fireman in the employ of Beeson & Selden, while at Geneseo with his engine, getting ready to go with a train of cars to Salina after material, under the order of his engineer, went under his engine for the purpose of cleaning the ash-box. While in that position, another train operated by Beeson & Selden was backed against the train to which the engine was attached, under which Busenbark was cleaning the ash-box. This caused the engine to move. Busenbark's foot was crushed by one of the wheels of the engine. Subsequently it was amputated. The petition alleged, and the evidence tended to prove, that a brakeman or employe of Beeson & Selden, has directly contributed to produce the in whose duty it was to attend to the dis- jury complained of. playing of warning lights, failed to display any light or signal at the end of the train against which the other one backed. The petition alleged, and the evidence tended to prove, that both trains were negligently handled by the employes in charge thereof, and that the collision was caused by the negligence of such employes, as well as the failure to display any warning lights or signals. The petition alleged that J. H. Beeson and H. P. Selden were partners as Beeson & Selden in the work of construction. The petition nowhere alleged that Beeson & Selden were a railroad company organized under the laws of this state, or any other state, or that they were a de facto railroad company. The evidence upon the trial did not tend to show that Beeson & Selden were a railroad company of this state, or of any other state. The court, among other instructions, gave the following: "If the defendants were, at the time of the injury complained of, operating the Kansas & Colorado Railroad, or running trains upon said road for the purpose of carrying construction material, as well as freight and passengers when offered, not connected with the road, they would be liable, under the statute, for any injury which one employe of defendants might receive because of the negligence of another employe, without regard to who or what such negligent employe may be. The statute reads as follows: Every railroad company, organized or doing business in this state, shall be liable for all damages done to any employe of such company, in consequence of auy negligence of its agents, or by any mismanagement of its engineers or other employes, to any person sustaining such damages.' And, in order to be doing the business of a railroad company, and to be liable under this statute, it is not necessary that they should hold themselves out to be common carriers, or that they should be required to carry all freight and passengers presented. It is the character of the work done rather than the particular manner in which it is done, or the quantity done, that should determine this question. Neither is it necessary that defendants should have absolute control and management of the road. It is sufficient that they actually operate trains upon the road, either by themselves, or with the co-operation of others." instruction was not applicable under the petition or the facts disclosed upon the trial, and therefore was erroneous. Not only was it erroneous, but it was greatly prejudicial to the defendants. The statute referred to was passed in 1874. Its title is "An act to define the liability of railroad companies in certain cases. The statute so far modifies and changes the common law that a servant or employe of a railroad company may maintain an action against such railroad company for any injury received, while in the line of his employment, through the negligence of a fellow-servant or employe engaged with him in the same common work of the master or employer, unless such injured servant or employe has himself been guilty of neg. ligence or want of ordinary care, which v.25P.no.2--4 This Previous to the statute of 1874, the rule of law which prevailed in this state exempted from liability all employers, including railroad companies, for injuries to their employes, caused by the negligence or incompetency of a fellow-servant, unless they had employed such negligent or incompetent servant without proper inquiry as to his qualification, or had retained him after knowledge of his negligence or incompetency. Dow v. Railway Co., 8 Kan. 642; Railway Co. v. Salmon, 11 Kan. 83; 24 Amer. Law Rev. 175. This was the rule of the common law; but this rule of the common law was abrogated by the statute of 1874, so far as it related to railroad companies organized in this state, or railroad companies doing business in this state. The statute of 1874 fixes a new liability upon railroad companies organized in this state, and railroad companies doing business in this state. This statute is in derogation of the common law, therefore it is not to be extended by implication or construction. "As a rule of exposition, statutes are to be construed in reference to the principles of the common law; for it is not to be presumed that the legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced; for, if the legislature had had that design, it is naturally said they would have expressed it." Chancellor Kent says: "This has been the language of courts in every age, and when we consider the constant, vehement, and exalted eulogy which the ancient sages bestowed upon the common law as the perfection of reason, and the best birthright, and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction." Potter's Dwar. St. 185. The statute of 1874 is to be construed strictly. It cannot apply to masters or employers not within its terms; neither can it be construed to give protection to persons not in the employ of a railroad company. The statute has reference to servants and employes of railroads, not to servants or employes of. other masters, companies, or corporations. The statute does not include partnerships, or persons in the employ of partnerships; it does not include construction companies, or persons in the employ of construction companies; it does not include bridge companies, or persons in the employ of bridge companies,-although such partnerships and companies construct railroads, build bridges, and do other public work. Statutes similar to the one referred to, changing the common-law rule between masters and servants, employers and employes, are in force in a number of the states of this country; but, with one exception, these statutes are all confined in their operation to railroad companies. The single exception-the Rhode Island statute-embraces only the cases of common-law carriers. 7 Amer. & Eng. Enc. Law, 859; 24 Amer. Law Rev. 181, (1890.) |