(Syllabus by the Court.) Error to district court, Linn county; C. O. FRENCH, Judge. the subsequent action on the 19th of August, | Subsequently his vendee, holding under a convey. 1886. Under the circumstances, the district ance of warranty, voluntarily suffered eviction, judge had full authority to discharge the at-yielding to a paramount title, the vendee receiv ing from the owner of the paramount title all the tachment commenced in Cloud county. Sub- taxes paid by her vendor, and also all taxes paid division 3, § 89, Civil Code. Before a sec- by herself, with interest at the statutory rate, up ond action was commenced, and an attach- to the time of eviction. The taxes, costs, interest, and penalties received by her upon the taxes paid ment issued therein, the prior action should by the vendor exceeded the consideration of the have been disposed of by some judicial act. land. The vendee also held control of the land An abuse of judicial process will not be tol- (vacant prairie) after her purchase until the eviction, and rented the same, for grazing purposes, erated in any court of justice. Where an ac- for two years. Held that, in view of the benefits tion is pending between the same parties, in which the vendee received flowing directly from which an attachment is issued, it will be op- the conveyance to her, and as she was not compressive, and therefore an abuse of judicial pelled to account for these benefits, or the use or occupation of the land, to any one, she was not, unprocess, to hold that the plaintiff might in- der the circumstances of the case, entitled to restitute a second action for the same cause, cover any further or other damages upon the covand obtain another order of attachment, thus enant of warranty. multiplying and increasing costs and expenses without any reasonable excuse. It is claimed, however, that the defendant was not a proper party to move for a discharge of the order of attachment issued against him, because he had executed chattel mortgages to several parties upon the property seized under the attachment. These chattel mortgages were executed to secure debts only, and therefore it cannot be said that he had no interest in the property seized. It is not alleged that the property attached did not belong to the defendant, but, on the other hand, it was seized as his property. Section 228, Civil Code, reads: "The defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment as to the whole or part of the property attached." The defendant in this case has simply followed the provisions of the statute. We need not refer at length to the decisions cited from Michigan, because the defendant has not made an assignment and transfer of all of his property, within the provisions of the statute, for the benefit of his creditors. It is doubtful, in view of the provisions of the statute, whether this court would be inclined to follow Chandler v. Nash, 5 Mich. 409, and Price v. Reed, 20 Mich. 72. If the defendant, as between himself and the plaintiff, is entitled to a discharge of the attachment sued out against him, he ought to be permitted in all cases to file his motion therefor. The order of the district court discharging the atta hment will be affirmed. On the 12th of March, 1886, I c Danforth commenced her action against T. E. Smith and Rebecca S. Smith, in the district court of Linn county, to recover $600, with interest from the 1st day of November, 1869, and costs, upon a breach of warranty of real estate. Trial had on the 17th of December, 1887, before the court, without a jury. The court made and filed the following special findings of fact: "(1) That said defendants, on November 1, 1869, for six hundred dollars in hand paid, executed and delivered their deed of general warranty to the plaintiff for the S. E. of Sec. 33, Tp. 21, of R. 22, in Linn county, Kan.; (2) that at said time said land was vacant prairie, and continued to be such until February 1, 1886, but at all times subject to the control and disposition thereof by plaintiff, who rented the same, for grazing purposes, during the years 1882 and 1883, for $30; (3) that during all the said time said defendants never exercised or claimed to exercise any right to control the possession of said lands; (4) that at the time of the conveyance to plaintiff the title to said land was in the defendant T. E. Smith, and was based solely upon a tax-deed executed by the county clerk of Linn county, April 27, 1865, and recorded May 6, 1865; (5) that said T. E. Smith and his grantors paid all the taxes under said tax-deed for the years 1860 to 1868, inclusive, the sum of $115.30, amounting, with legal interest, penalties, and costs, under the tax In the cases of C. W. Noyes, M. S. Norman, and J. M. Kempler, Partners as Noyes, Nor-deed, to $684.02, on February 18, 1886; (6) man & Co., v. F. J. Derse, (No. 4,804,) and that said plaintiff paid the taxes under her William W. Kendall and Charles F. Emery, deed for the years 1869 to 1885, inclusive, Partners as Wm. W. Kendall & Co., v. F. J. the sum of $239.42, amounting, with legal Derse, (No. 4,805,) the same questions are in- interest, penalties, and costs, under the tax volved as are decided in the foregoing opin-law, to $715.98, on February 18, 1886; (7) ion; and upon the authority of the above case the order of the district judge, discharging the attachment in those cases, will also be affirmed. All the justices concurring. that on the 18th day of February, 1886, one John W. Flora claimed the paramount title to said lands, when it was conceded by the defendants and plaintiff that the deed under which they claimed was void, and that Flora was entitled to the possession of said land upon the payment of the legal interest, taxes, costs, and penalties, under the tax law, to the plaintiff; (8) that on February 18, 1886, said Flora paid to said plaintiff, for her sole use and benefit, the amount of such taxes, costs, interest, and penalties necessary to re-tested the plaintiff's possession. She had full deem said land, the sum of $1,400, which control of the land, and, through her tenant, was computed as set forth in findings 4 and actual occupation, because it appears that 5 herein, to-wit: Paid by T. E. Smith, $684.02; paid by plaintiff, $715.98,-and took from said plaintiff, with the consent of defendants, a quitclaim deed to said land; (9) that the rental value of said land, during the time it was owned by the plaintiff, was small; and that the value thereof, in February, 1886, was $2,400; (10) that plaintiff, from November 1, 1869, to the present time, has been a non-resident of Kansas, while the defendants, during all of the said time, have been residents of Linn county, Kan.; (11) that the items of damages chargeable against defendants on February 18, 1886, were as follows: Purchase price at time of sale, $600; interest on same to December 15, 1885, $35; total $635,-and that the plaintiff received $1,400, of which $684.02 was from taxes, costs, interest, and penalties paid by defendant." Thereon the court found as a conclusion of law that the amounts received by the plaintiff, flowing from the tax-title, more than compensated for any damages occurring by breach of the warranty. Subsequently the court rendered judginent in favor of the defendants for costs. The plaintiff excepted, and brings the case here. Blue & Rich, for plaintiff in error. J. D. Snoddy, for defendants in error. HORTON, C. J., (after stating the facts as above.) The only question in this case is the measure of damages for a breach of the covenant of warranty in the conveyance of real estate. The land was purchased from T. E. Smith, his wife joining in the deed, November 1, 1869, for $600. After the date of the deed, the land was at all times subject to the control and disposition of the plaintiff, who rented the same, for grazing purposes, during the years 1882 and 1883, for $30. At the time of the conveyance to the plaintiff, the title of the land was in T. E. Smith, but was based solely upon a tax-deed executed April 22, 1865. On February 18, 1886, the plaintiff voluntarily yielded the land to John W. Flora on account of his paramount title. Flora, at the same time, paid to the plaintiff the taxes, interest, costs, and penalties to which the plaintiff was entitled under the tax law. The amount received by the plaintiff for taxes, interest, costs, and penalties upon the tax-deed, paid prior to her purchase, was $684.02. She also received from Flora, for taxes, costs, interest, and penalties, to which she was entitled subsequent to her purchase, $715.98. At the time that the plaintiff yielded possession of the land, in February, 1886, it was worth $2,400. It is the contention of the plaintiff that as her measure of damages she is entitled to the purchase price of the land, to-wit, $600, with interest thereon at 7 per cent. per annum from November 1, 1869, making a total of $1,356. It is immaterial whether the taxdeed gave possession or not. No one con she rented the land, for grazing purposes, during the years 1882 and 1883, and was not held to account to any one for the rents or for the benefits which she received, flowing directly from the conveyance to her. It was solely by reason of the tax-title and interest conveyed by T. E. Smith and wife that the plaintiff received so large a sum of money from Flora, when she voluntarily suffered eviction. As the land had a usable value, and as the plaintiff had the possession thereof from the purchase to her eviction, with the opportunity of enjoying all of its benefits without liability to account for the mesne profits, and as she received in return of the taxes, interest, penalties, etc., an amount in excess of the consideration paid by her for the land, we do not think she ought to recover further or other damages from the defendants. Stebbins v. Wolf, 33 Kan. 765, 7 Pac. Rep. 542. If the plaintiff had not obtained possession of the land, or if the land had no usable or beneficial value, or if the plaintiff had been compelled to account for the mesne profits while the land was under her control, different questions would be presented for our consideration. It would be unjust, it seems to us, to say to the defendants, under the facts of this case, that they should pay interest upon the purchase money, and yet be allowed nothing for the use and benefits that the plaintiff has derived, and had the opportunity to derive, from the possession of the land which she obtained under the conveyance to her. The judgment of the district court will be affirmed. All the justices concurring. (41 Kan. 173) BECKER v. STEELE et al. (Supreme Court of Kansas. March 9, 1889.) ATTACHMENT-APPEAL. 1. In an action before a justice of the peace, in which an attachment had issued, a motion was ment, which was overruled. Afterwards a judg made by the defendant to discharge the attachment was rendered in the action in favor of the defendant, and against the plaintiff, upon the mer its. In the judgment the attached property was ordered to be returned to the defendant. Within 10 days from the rendition of the final judgment the plaintiff appealed to the district court, filing an ordinary appeal-bond. Held, that the appeal ment proceedings to the district court, so as to auof the plaintiff did not transfer or carry the attachthorize the constable, after the rendition by the justice of the peace of the judgment for the defendant and for the return of the property, to continue to hold the possession of the attached property. 2. No provision is made by the statute for a constable who holds attached property-under an order of attachment issued by a justice of the peace trict court, pending an appeal to that court from the final judgment of the justice of the peace upon -to turn the same over to some officer of the dis the merits. VALENTINE, J., dissenting. Error to district court, Morton county; F. M. Jeffrey and Wilson & Decker, for was held that no appeal would lie from the plaintiff in error. J. R. Hamilton, for de-order discharging the attachment. In Gates fendants in error. v. Sanders, 13 Kan. 411, the order of attachment was discharged by the justice, but a HORTON, C. J. The facts in this case are judgment was rendered in favor of the substantially as follows: The Exchange plaintiffs for the amount of their claim. Bank of Lenora commenced an action against From this judgment they appealed, and filed A. C. Lappin before a justice of the peace, an ordinary appeal-bond, reciting the judgand obtained an order of attachment, which ment, etc., but making no mention of or refwas levied upon the property in controversy erence to the attachment or its discharge. by the constable, John Becker. Before the This court decided that the appeal did not trial a motion was filed by the defendant to take up to the district court, for re-examinadischarge the attachment, upon the ground tion or review, the proceedings on attachthat the facts alleged in the affidavit for the ment in that case, but that they were ended attachment were untrue. Upon the hearing by the decision of the justice. In the opinof the motion it was overruled, the justice ion delivered by Mr. Justice BREWER it was deciding that the attachment was valid. said: "The attachment is but an ancillary Subsequently the action was tried before the proceeding, and may stand or fall without afjustice, and judgment rendered in favor of fecting the progress of the suit. The judg the defendant and against the plaintiff, upon ment is rendered for or against the plaintiff, the ground that it was prematurely brought. and upon the sufficiency of his cause of acThe judgment also directed that the attached tion, without reference to the disposition of property be returned. The Exchange Bank the attachment." In Railroad Co. v. Casey, gave notice that it would appeal from the 14 Kan. 504, an attachment was issued and judgment of the justice to the district court, judgment rendered in favor of the plaintiff and, within the 10 days allowed by law, per- against the defendant. The judgment also fected its appeal, filing an ordinary appeal-ordered that the attached property be sold to bond reciting the judgment, etc. The case satisfy the same. The defendant appealed to was tried in the district court, and the Ex- the district court, presumably filing an ordichange Bank recovered against the defend- nary appeal-bond. The court in that case ant $300, the amount sued for. After the held that as the defendant, who appealed, justice of the peace had rendered judgment gave ample security for the prosecution of against the plaintiff, the constable continued his appeal and for the payment of the judgto hold possession of the property under the ment, the attachment was thereby disattachment proceedings. After the attach-charged. Mr. Justice VALENTINE, deliverment had been levied by the constable, A. C. ing the opinion in that case, said, among Lappin executed a chattel mortgage thereon other things: "And as no provision is made to W. M. Steele and J. W. Walker, partners by law for the officer, who holds the attached as Steele & Walker, which mortgage was property at the time the appeal is taken, to duly filed in the office of the register of deeds. turn the property over to some officer of the After judgment was rendered by the justice district court, it would hardly seem that it of the peace, Messrs. Steele & Walker de- was intended that the district court should manded the property of the constable, and, take charge of the attached property; and it their demand not being complied with, com- can hardly be supposed that after all the promenced an action against the constable to ceedings of the justice's court are taken by recover possession of the property. Upon appeal to the district court, that any oflicer of the trial the district court decided that the the justice's court will continue to have posconstable had no right to the possession of session and control of the attached property." the property, for the reason that the Ex- In Brown v. Tuppeny, 24 Kan. 29, Brown change Bank failed to recover judgment was summoned as a garnishee in an action upon its claim before the justice of the peace. pending before a justice of the peace, whereThe sole question for decision in this case in Tuppeny was plaintiff and Hill defendant. is, did the appeal of the Exchange Bank from Brown answered as garnishee, admitting the judgment of the justice of the peace the possession of a draft of $100 belonging transfer or carry the attachment proceedings to Hill, which, when paid, would be owing to the district court, so as to authorize the by him to Hill. Upon the trial between constable to retain the possession of the at- Tuppeny and Hill, judgment was rendered tached property pending the appeal? Under in favor of Hill, and thereupon Brown was the decisions of this court already pronounced the question must be answered in the negative. In Butcher v. Taylor, 18 Kan. 558, the justice, before the trial, discharged the attachment. Afterwards a trial was had upon the merits of the action, which resulted in favor of the plaintiff. The plaintiff then took an appeal to the district court from the decision of the justice on the attachment proceedings, but not from the judgment of the justice on the merits of the action; and it discharged, as garnishee, from all liability. Tuppeny filed an ordinary app-al-bond, and this court held that "the proceedings in the garnishment were not taken up to the district court, the appeal being simply from the final judgment in the action." Section 45, c. 81, Comp. Laws 1885, relative to civil procedure before justices, provides, among other things, that, if "judgment be rendered for the defendant in the attachment, the garnishee shall be discharged and recover costs. " Section 46 of said chapter 81 reads: "If from the order of a justice of the peace in judgment be rendered in the action for the defendant, the attachment shall be discharged and the property attached, or its proceeds shall be returned to him." * * * other states to which we are cited. If the construction given to the statute works injustice in attachment proceedings, the remedy is with the legislature. The judgment of the district court will be affirmed. JOHNSTON, J., concurring. any provisional remedy, or in any ancillary proceeding, and no provision anywhere for retrying in the district court, upon an appeal from a justice of the peace, any question that Therefore it appears that both the gar- pertains only to some provisional remedy, or nishee must be discharged and the attach- to some ancillary proceeding. The appeal is ment discharged when judgment is rendered from a final judgment only, and from a judgby a justice of the peace for the defendant. ment on the merits only, and the trial afterIf an appeal from the final judgment of a wards to be had on the appeal is only upon justice of the peace will not transfer or carry the merits. In our opinion, atthe garnishment proceedings to the district tachment proceedings cannot be taken to the court, which have not been dissolved or dis-district court at all on appeal." In view of charged prior to the judgment, it necessarily the decisions in the foregoing cases, it is unfollows that an appeal from the final judg- necessary to refer to the authorities from ment of the justice of the peace will not transfer or carry to the district court attachment proceedings which have not been discharged at the rendition of the judgment. In the case at bar, after the justice of the peace rendered judgment for the defendant, he also rendered judgment that the attached property be returned. Subsequently the justice directed the constable to hold possession of the attached property until the expiration of the 10 days within which the plaintiff had the right to appeal. The Exchange Bank filed its appeal-bond within the 10 days, but how soon after the rendition of judgment is not shown. For aught that appears in the record, the appeal-bond may not have been filed until the last day that an appeal was allowable. Therefore the constable may have held possession of the attached property after the judgment was rendered in favor of the defendant for several days before any appealbond was approved or filed. As the judgment in favor of the defendant discharged the attachment, and thereby released the attached property, it clearly appears that the constable had no legal process in his hands authorizing him to hold the attached property between the rendition of the judgment in favor of the defendant and the filing of the appeal-bond, even if the appeal-bond could have carried the attachment proceedings to the district court. In Roll v. Murray, 35 Kan. 171, 10 Pac. Rep. 472, the action was commenced before a justice of the peace, and an order of attachment obtained. Subsequently, upon the motion of the defendant, the attachment was discharged. Afterwards aforesaid sections of the justice's act and of a judgment was rendered in favor of the plaintiff and against the defendant. Within the 10 days the plaintiff filed an appeal-bond, attempting to take an appeal both from the order of the justice discharging the attachment, and also from the judgment of the justice upon the merits. The appeal-bond was sufficient for both these purposes, if an appeal from an order of the justice of the peace discharging an attachment was allowable. This court held that the appeal did not give to the district court power to review and retry the attachment proceedings instituted before the justice of the peace. Mr. Justice VALENTINE, in delivering the opinion, said, among other things: "There is no provision in the statutes for taking an appeal VALENTINE, J., (dissenting.) I cannot concur in the decision in this case. In my opinion, whenever a plaintiff appeals from the judgment of a justice of the peace to the district court, everything pending in the case at the time of the rendering of the judgment appealed from is taken to the district court. Certainly no statute can be found to the contrary. It is true that in all cases where a judgment is rendered in favor of the defendant, either in a justice's court or in the district court, all attachment and garnishment proceedings then pending in the case will, by reason of the judgment and it alone, be discharged. Justice's Code, §§ 45, 46; Civil Code, §§ 220, 221. In this respect the rule of law in the two courts is precisely the same. But this discharge of the attachment and garnishment proceedings is only provisional or conditional, depending for its finality wholly and entirely upon whether the judg ment itself shall be permitted to stand as a finality, or shall subsequently be set aside or vacated as upon an order in the same court granting a new trial, or by a judgment of reversal rendered in some higher court upon a petition in error, or by a judgment rendered in some higher court upon an appeal. The the Civil Code apply so as to discharge the attachment and garnishment proceedings pending in the case, only where the judgment of the court is rendered wholly in favor of the defendant and wholly against the plaintiff, and do not apply where the judgment is rendered in favor of the plaintiff, even if rendered only for the smallest fraction of his claim, and yet, in either of these cases, it would be the plaintiff, and not the defendant, who would want to appeal, or to carry his case on petition in error to a higher court. It is also true that an order of a justice of the peace discharging an attachment or garnishment proceeding prior to the rendering of the judgment on the merits of the case cannot alone be taken on an appeal to the dis of Hill, and not to procure an appeal from the order discharging the garnishees. The garnishees had no notice of the appeal, nor did they appear in the district court, but it was they, and they alone, that filed the petition in error in the supreme court, and they alone that objected to the sufficiency of the appeal, and to such sufficiency only as it affected them, and not as it affected the defendant, Hill, and the defendant, Hill, was not made a party to the proceedings in error in the supreme court. In all the cases above referred to, the appeal-bond was simply an appeal-bond as between the plaintiff and the defendant, and it was not in any case given to the garnishees or others. What the effect in any case would be if the appeal-bond should be given by the plaintiff or appellant to the garnishees in the case has never yet been decided by this court. It also seems that in that case it was intended to follow the decision made in the case of Gates v. Sanders, 13 Kan. 411, which case does not decide anything like what is decided in the present case. If the decision in the case of Brown v. Tuppeny sustains the present decision, then it is the only decision that can be found anywhere that does. The fact that the statutes do not anywhere provide in express terms what shall be done with the attached property pending an appeal from a justice of the peace to the district court is referred to, but this is not an insuperable objection to holding that an attachment or garnishment proceeding may continue in force pending such an appeal. There is no provision by statute as to what shall be done with trict court, for the reason that such order discharging or vacating such attachment or garnishment proceeding is not a final order in the case. Butcher v. Taylor, 18 Kan. 558. It is also true that attachment and garnishment proceedings which have been discharged before any judgment upon the merits is rendered, or, in other words, which have been stricken from the case, annulled, and destroyed before any judgment upon the merits is rendered, cannot be taken on appeal to the district court, for the reason that when such judgment is rendered, and when the appeal is taken, such attachment or garnishment proceedings do not exist in the case; and, as before intimated, only such proceedings as exist in the case at the time when the judgment upon the merits is rendered can be taken on appeal from a justice of the peace to the district court. Gates v. Sanders, 13 Kan. 411; Roll v. Murray, 35 Kan. 171, 10 Pac. Rep. 472. In all such cases, "attachment [and garnishment] proceedings cannot be taken to the district court at all on appeal." Also, in all cases where the defendant appeals, he is required by the statutes to give a bond containing substantially all that is required by section 52 of the justice's act, and section 213 of the Civil Code, for the purpose of discharging attachment and garnishment proceedings; and therefore by the giving of such bond, and by that alone, the attachment and garnishment proceedings are finally and forever discharged, and for that reason are not taken on such an appeal to the district court. Railroad Co. v. Casey, 14 Kan. 504. But this present case differs from all the foregoing cases, and therefore they do not deter-attached property when a change of venue is mine what the decision in this case shall be. taken from the district court of one county The case of Brown v. Tuppeny, 24 Kan. 29, to the district court of another county, nor is however, is cited as sustaining the decision there any statute that provides what shall be in this case. Possibly it does, and yet even done with attached property pending a prothat case differs in some respects from this. ceeding in error from a justice of the peace In that case it would seem that the garnish- to the district court, or from the district ees were discharged by a separate and special court to the supreme court, and yet it will order of the justice of the peace, while in not be claimed by any one that all proceedthis case the justice overruled a motion to ings in attachment or garnishment must necdischarge the attachment, and held that the essarily be discharged and destroyed whenever attachment was regular and valid, and only a change of venue is taken from one county upon rendering the judgment upon the mer- to another, or whenever a case is taken on its of the case, and as a part thereof, ordered petition in error from a lower court to a a return of the attached property. In that higher court. Besides, the district courts, case it was the garnishees, N. B. Brown & and the judges thereof in vacation, have amCo., who had previously been discharged by ple power to grant all necessary interlocutory the justice of the peace as garnishees, who orders, (see act relating to district courts, raised the question of the right of appeal as section 2;) and, of course, a district court, or to them, and not as to the defendant Hill, or the judge thereof, can make any necessary any one claiming under Hill; and this court interlocutory order with respect to any propheld that "an ordinary appeal-bond" would erty held by attachment or garnishment pronot, as to such garnishees and their liability, ceedings. The district court, or the judge create a good appeal, or bring up for review thereof, pending the appeal in this case could or retrial the question of the garnishees' right- have made any proper order with respect to ful discharge by the justice. This is not the property attached; and when the final such a case. The appeal-bond in that case judgment was rendered in the case in favor was "an ordinary appeal-bond" given by the of the plaintiff, the Exchange Bank, the court plaintiff, Tuppeny, to the defendant, Hill, should have ordered the property to be sold and not given to the garnishees, N. B. Brown to satisfy the judgment. I think the appeal & Co., and in form it was given to procure in the present case took with it the attachment an appeal only from the judgment in favor proceedings. In any case where a defendant, |