clusion of law, and for this reason we recommend that the cause be remanded to the district court of Atchison county, with instructions to render a judgment in favor of Challiss for the possession of the lots, and to proceed to adjust the lien of the plaintiffs in error for the taxes paid on said lots, with interest and costs. The costs in this court will be divided between the parties.

PER CURIAM. It is so ordered; all the justices concurring.

KENNETT v. FICKEL.

(41 Kan. 211)

(Supreme Court of Kansas. March 9, 1889.)

SET-OFF-REPLEVIN-DAMAGES.

1. A person who wrongfully takes and detains personal property of another cannot plead a set-off as a defense in an action of replevin brought by the owner for the recovery of such property. 2. Under a general denial in an answer filed in a replevin action the defendant may show that some one other than the plaintiff is the owner, and entitled to the possession, of the property claimed, and thus show that the detention by the defendant is not wrong against the plaintiff.

received the redemption money paid in by knowledgment that the lots had been legally Challiss in August, 1883, by his application redeemed from the tax sale of 1881, and that for and the reception of the redemption fund Bird and those he represented had no rights he acknowledged that Challiss was the owner under that sale. We think this is the extent of the lots. If the bank claimed ownership of the operation of the reception of the reby virtue of the sale for taxes for 1874, the demption money paid in by Challiss, and that legal obligation of the bank was to pay the it does not estop the plaintiffs in error from taxes represented by the redemption fund, asserting and securing all their rights under but to get that redemption it not only ad-section 142 of the tax law. Cooper v. Bushmitted that Challiss was the owner, but also ley, 72 Pa. St. 252; Gray v. Coan, 30 Iowa, asserted by its act that the bank was not 536. The trial court erred in its third conowner. It would seem as if the bank was estopped from asserting title to the lots against Challiss after it had applied for and received the redemption fund; but, as we have already held that the deed was void because of having been sold for a sum in excess of the legal charges against the lots, and because no sufficient notice of redemption was given, it is not necessary to expressly decide that question, but to consider it only so far as it applies to a denial of the relief sought, by establishing a lien for taxes paid. If the plaintiffs in error are entitled to a lien under section 142 of the tax law, it will be for the amount of taxes paid on said lots, with interest and costs as allowed by law up to the date of said tax deeds, including the costs of the tax deeds and the recording of the same, and the further amount of the taxes paid after the date of said deed, with interest. In other words, they are entitled to a lien for tho taxes of 1874, 1875, 1876, 1877, 1878, and the first half of the taxes of 1879 on both lots, and the second half of the taxes for that year on lot 1, block 35, with costs, interest, and fees for making and recording tax deeds. Does the fact that the bank, by the action of its representative in the reception of the redemption fund, has placed itself in such a position that it cannot now be heard to say that Challiss is not the owner of the lots affect in any manner its claim for a lien on the lots of the owner for taxes paid on the lots, with costs and interest? The admission of ownership in Challiss only goes to his title, and not to the extent that there are no liens against the lots. The tax deeds, however void, gave color of title enough to the bank as a purchaser at a tax sale to pay the subsequent taxes. The payment by the bank cannot be considered as a wholly voluntary one by a stranger to the title, because belief in that title is expressed in the act of the institution of this suit, and because the tax deed is evidence of title, and because the assignment to the bank of the tax certificates of JOHNSTON, J. This was an action of resale that subsequently ripened into the deed plevin, brought by Catharine E. Fickel, to refor the taxes of 1874 gave them some inter- cover the possession of two mares alleged to est in the lots. The sale for the unpaid sec- be wrongfully detained by Homer Kennett, ond half of the taxes for 1880 never ripened together with damages for their detention. into a tax deed, because of the redemption The claim of the plaintiff was that she was by Challiss as authorized by law. The coun- the absolute owner of the mares, and that no ty had no claim on this money, because it one else had any interest or right of posseshad been paid by Walker, and he could have sion in them. The theory of the defendant received it without creating an estoppel; and appears to have been that the property was he or his assigns are the only persons to owned by the husband of plaintiff, George whom the county treasurer was authorized W. Fickel, and that it was included in a to pay it. Its reception by Bird was an ac-mortgage which he had given to the defend

3. A farmer, living in the neighborhood where certain farm horses are sold, who knows their value, the character of work done by them upon the farm, and has hired horses to do such work for himself, is qualified to testify what the value of the use of such a team is.

4. Testimony that persons other than the plainit is shown, or offered to be shown, that the right tiff claimed the property is not admissible unless claimed is derived through the plaintiff or owner of such property.

for the wrongful detention of property which has 5. In a replevin action the measure of damages a usable value is the value of the use of the same while it is so detained. Yandle v. Kingsbury, 17 Kan. 195.

(Syllabus by the Court.)

Error to district court, Cloud county; E. HUTCHINSON, Judge.

Sturges, Kennett & Peck, for plaintiff in error. L. J. Crans, for defendant in error.

ant. The jury found that the property be- | had observed these horses while engaged in longed to Mrs. Fickel, and that she was en- such work, and had hired horses to do such titled to the possession of the same, and from work for himself, and was therefore well the testimony in the record there can be lit-qualified to testify what the value of the use tle doubt that the finding was correct. The of such a team was. Complaint is made of value of one mare was assessed at $117, and the ruling of the court in refusing to admit the other at $105, and the damages for the in evidence the records in the replevin suit wrongful detention by Kennett were assessed between Henry Perry and the defendant, at $130. Judgment followed the verdict. Kennett, which was pending and undeterThe first point made is that the court erred mined, and in which Perry claimed the right in striking out all of Kennett's answer ex- of possession to the property in question, and cept a general denial. This answer consist- also excluding testimony of transactions had ed-First, of a general denial; and, second, with George W. Fickel, her husband. It a cause of action upon a promissory note al- was not shown, nor offered to be shown, that leged to have been executed by George W. Perry claimed any title or right of possession Fickel and Catharine E. Fickel, which was under Mrs. Fickel, who was clearly shown to pleaded by way of set-off. In pleading the be the owner of the mares. It was useless to set-off it was incidentally stated that George inquire as to the merits of the Perry action, W. Fickel had an interest in the property, unless he claimed the right of possession in and also that one Henry Perry claimed to be the property through the action of its owner. the owner, and had replevied the same from The notes and mortgages executed by George Kennett, which action was still pending and W. Fickel, which did not relate to the property undetermined. He asked that both of these in controversy, or with which Mrs. Fickel had parties be brought in, and for judgment upon no connection, were properly excluded from his promissory note for the sum of $247, and the case. She could not be divested of her interest thereon. The court ruled correctly property, without her consent, by the action in striking this count from the answer. The of her husband, even if he intended to include second cause of action, setting forth a set-off, the same in the mortgage which he made. cannot be pleaded as a defense in an action Error is predicated on the refusal of the court of replevin. Such an action is founded upon to admit testimony showing the price for the tort or wrong of the defendant, and not which the horses were sold by Kennett after upon contract; and section 98 of the Code he had taken them from the plaintiff. The specifically provides that "a set-off can only price for which the horses were sold was not be pleaded in an action founded on con- controlling, nor is the market value estabtract." If either of the parties named owned lished by a single or exceptional sale. While and had the right of possession to the prop- the testimony might have been admitted as erty, and the plaintiff wished to rely upon tending to show the market value, it is not that fact, he could have shown it under the the best evidence of which the case admitted, general denial. Wilson v. Fuller, 9 Kan. and there appears to have been no difficulty 176; Yandle v. Crane, 13 Kan. 344; Bailey in obtaining testimony as to the value. Cerv. Bayne, 20 Kan. 657; Holmberg v. Dean, tainly there was no error in this case, as the 21 Kan. 73. It was neither necessary nor person who purchased the mares from Kenproper to bring in additional parties. nett was afterwards permitted to testify when and where the animals were sold, and the price which he paid for them. Another point is made upon the charge of the court. When the property was seized by the officer upon the writ of replevin, a bond was given by Kennett, under which he retained the property. He requested an instruction that, if the jury found for the plaintiff, the measure of recovery would be the value of the property, with interest on the same at 7 per cent. from the time the property was taken. The court refused this request, and instead advised the jury that the measure of damages for the wrongful detention of the property was the value of the use of the same during the time it was detained. The property was shown to have a usable value, and therefore the correct rule was given to the jury. Yandle v. Kingsbury, 17 Kan. 195; Ladd v. Brewer, Id. 204; Bell v. Campbell, Id. 211. The remaining objections are even of less importance than the ones we have referred to, and are not worthy of consideration. The judgment of the district court will be affirmed. All the justices concurring.

A continuance of the case was asked by the defendant because, from the condition of the docket, he supposed the case would not be reached or tried at that term of court, and also because of an absent witness. It does not appear that defendant had any right to assume that the case would not be tried at the time and term it was assigned for trial, | nor that sufficient time was not given to try a case of this character. Neither does it appear that he had exercised sufficient diligence to obtain the testimony of the absent witness; and hence there was no error in denying his motion for a continuance. There is an objection to the testimony of a witness who stated that the use of the team of mares was worth a dollar a day during the time which Kennett detained them, it being argued that he was not shown to be competent to testify to the value of such use. This is a groundless objection. The witness was a farmer, living in the neighborhood, who stated that he knew the value of farm horses and of the horses in controversy, knew the character of work generally done by horses upon a farm, and

(41 Kan. 229)

COOKINGHAM . DUSA. (Supreme Court of Kansas. March 9, 1889.) SALE-RESCISSION.

1. The purchaser of a farming implement, such as a header, cannot retain and use the machine, and at the same time say he repudiates and rescinds the contract of purchase. Weybrick v. Harris, 31 Kan. 92, 1 Pac. Rep. 271.

2. Where the purchaser of a farming implement is entitled to rescind the contract, and for that purpose may return the article, he must return or offer to return within a reasonable time.

3. What is a reasonable time within which the purchaser should offer to return a farming implement, such as a header, if it does not correspond with the terms of the warranty, is usually a question for the jury; but when the purchaser, after using it and discovering its defects, demands of the vendor that he at once repair the same, and such vendor promises to do so immediately, but fails and refuses to give any further attention to the matter, and after such failure and refusal the purchaser continues to retain and use the header during the harvest season, and also continues to retain the same for two or more months thereafter, the return or offer to return after that time comes too late. And the court may say, as a matter of law, that the offer to return after so much inexcusable delay was not made within a reasonable

time.

(Syllabus by the Court.)

ranty. Weybrick v. Harris, 31 Kan. 92, 1 Pac. Rep. 271. In order, however, that the purchaser be entitled to rescind the contract, he must return the property, or offer to return it, within a reasonable time. He cannot retain and use the property, and at the same time say he repudiates and rescinds the contract of purchase. In the case at bar the defendant obtained the machine on June 25, 1883. He used it during the harvest of that year, cutting over 180 acres of grain, and some time in the. fall of 1883 took George Walker with him, and went to the plaintiff, who, as agent, had sold him the machine, and "asked him what he wanted him to do with the machine." Plaintiff answered "that he had nothing to do with the machine; that he wanted the money for it, but not the machine." Defendant testified "that he did not do anything more with it, but left it where it stood in [his own] yard, and that it stands there yet. Upon the part of the defendant, it is claimed that he was induced to postpone the rescinding of the contract by the repeated promises of the plaintiff to make the warranty good, and therefore was excus

Error to district court, McPherson county; able for his delay in returning or offering to S. O. HINDS, Judge.

E. M. Clark, for plaintiff in error. ster & Dean and Frank G. White, for defendant in error.

HORTON, C. J. On June 25, 1883, Peter Dusa purchased of M. K. Lewis & Son, through their agent B. Cookingham, a Lewis header, and in payment executed his two promissory notes, for $125 each, and paid $15 freight on the machine. One of the notes was transferred and assigned to the agent Cookingham, who on August 12, 1884, commenced his action against Dusa to recover the amount thereof. In his answer the defendant admitted the execution of the note, but alleged as a defense that there was a warranty given at the time of his purchase of the machine; that there was a breach of the warranty; that he tendered back the machine, and rescinded the contract of purchase. The action was tried before a jury, which returned a verdict for the defendant for $17.50, being the money expended for freight, with inter

return. The testimony shows that the maWeb-chine was deficient in elevating; that it did not cut a clean or an even swath, but scattered the grain more or less on the ground. The defendant ascertained in a few days after his purchase that the machine did not correspond with the terms of the warranty, and went to the plaintiff and told him: "The machine did not work at all in any shape; that he could not hold the hind end down; and that there was something wrong with it somewhere." Plaintiff told him "he would get a team, and send a man down right away." On the return of the defendant to his home, he found the brother of the plaintiff in the field, who took the machine apart, and changed the beams, and then put the machine together again. This, however, did not put the machine in good order. A few days afterwards the defendant again went to the plaintiff, and told him "he could not use the machine in any way, shape, or form.” The plaintiff said to him "to do the best he could with the machine, and that he would Of this judgment the plaintiff com- send a man immediately, or dispatch to the plains. It is contended that the defendant agent to come to put the machine in order." utterly failed to prove a rescission of the con- After that the plaintiff paid no further attract. It is a general proposition that, on a tention to the machine, and did not send any sale of a personal chattel with a warranty, in one to repair or look after it. The defendant, case the chattel turns out to be not of the with full knowledge of its defects, continued kind or quality represented, the purchaser to retain and use the machine, and did not may have one of the two remedies. He may return, or offer to return, it until the fall of rescind the contract and return the property. 1883,-the exact date of his offer to return The effect of such action is to place the parties he could not remember. It does not appear in the same condition in which they were be- from the evidence that the offer to return fore the purchase; and whatever has been paid was made before the note sued on became or delivered by either is to be returned, and due, and when the defendant made his offer it or its value may be recovered in an action to return he did not demand his notes or therefor. This is one remedy. The other is either of them. During the winter of 1883-84 that the purchaser may affirm the contract, the plaintiff requested the payment of the retain the property, and recover damages note as often as twice a week. In the spring from the vendor for the breach of his war-the defendant said to the agent of the plain

est.

tiff, when he was asked if he would not pay | time, and the delay, therefore, was inexcusafor the machine, that "whenever the machine ble; and, upon the facts in this case, the trial was made good the money was good."

O'FLANAGAN v. CASE.

(41 Kan. 183)

court should have said, as a matter of law, The question of fact as to what is a reason- that the offer to return came too late, and able time within which to return or make that there was not sufficient evidence of it to the offer is for the jury, where there is suf- be considered by the jury. Therefore the ficient evidence for them to consider, or upon court erred in overruling the demurrer to the which, under the circumstances, a verdict testimony offered by the defendant, and also may be sustained that the time was reason-erred in instructing the jury to find from the able; yet it is clear that it must, after some evidence "whether the defendant rescinded lapse of time and under some circumstances, the contract, and returned the machine, or become a question of law for the court. It offered to return it, in a reasonable time after was said in Boothby v. Scales, 27 Wis. 626: discovering its defects." Although the de"No jury has the power arbitrarily to say fendant has not rescinded the contract by rethat six months or six years is a reasonable turning or offering to return the machine time in which to test a fanning mill, when purchased, within a reasonable time under everybody knows that a single day, or at the circumstances of this case, he may, upon most two or three days, with all the conven- proper amendment of his answer, recover iences at hand, is amply sufficient for that damages for the breach of the warranty, if purpose. The very meaning of the rule is any be established upon another trial. The that the purchaser shall have fair and suffi- judgment of the district court will be recient time and opportunity, all the circum- versed, and the cause remanded for further stances considered, including his own, to proceedings. All the justices coucurring. test and examine the property, and ascertain whether it corresponds with the warranty or not, and, if not, immediately to return or offer to return it to the seller, and claim a rescission of the contract. It is inconsistent with the nature of the right or privilege thus given the purchaser that there should be any unnecessary delay in the exercise of it. The seller in the mean time is deprived of the use of his property, and perhaps of the opportunity for resale. He is liable to refund the purchase money with interest from the time of sale, or, if it has not been paid, he loses the interest on it. These considerations are sufficient to require promptness, and forbid needless delay on the part of the purchaser. If it appears that he had ample time and opportunity to test and examine the article, and ascertain its quality or capacity with reference to the warranty, and might have conveniently done so, but neglected to do it, such neglect should be regarded as a waiver of the right to rescind, and as an election on his part to retain the property, subject to such claim for damage as he might subsequently establish." See, also, Morgan v. McKee, 77 Pa. St. 228; Weybrick v. Harris, supra; Kingsley v. Wallis, 14 Me. 57; Holbrook v. Burt, 22 Pick. 546.

In this case the facts of return or offer to return are not in dispute. When complaint was last made to the plaintiff of the machine during the harvest of 1883, he did not, as he promised, send out a man immediately to repair or put the machine in order, nor did he send any one within a few days, or within a reasonable time. In fact, he sent no person at all to look after or repair the machine after that complaint was made; yet the defendant retained and worked the machine the balance of the harvest, and then retained the machine during the months of August, September, and later, and made no offer to return it until after the payment of the note had been demanded. The offer to return was not made within a reasonable

(Supreme Court of Kansas. March 9, 1869.) ATTORNEY AND CLIENT-AUTHORITY OF ATTORNEY. Where a real-estate mortgage is foreclosed against the husband and others, and the land is to satisfy the judgment and costs, and the sale is sold to the judgment creditor for more than enough confirmed, and a sheriff's deed executed to the purchaser, and he sells and conveys the property by warranty deed to another, and afterwards it is ascertained that the title to the property is in the wife and not in the husband, and an additional judgment is rendered by the court that the surplus money shall be paid to the wife, and that she shall be barred and estopped from ever claiming any right, title, or interest in or to the property, and this additional judgment is rendered upon what purports to be an appearance of the wife by an attorney, and her consent by such attorney, and the surplus money is paid to such attorney, and over nine years afterwards the wife moves the court to vacate this additional judgment upon the ground that such attorney had no authority to ap pear for her or to represent her in the matter, and she testifies upon the hearing that he had no such authority, and the attorney testifies that he had. and the court overrules the motion, held not error. (Syllabus by the Court.)

Error to district court, Wabaunsee county; R. B. SPILLMAN, Judge.

H. H. Harris, for plaintiff in error. A. H. Case, for defendant in error.

VALENTINE, J. This is a proceeding in error brought by Margaret O'Flanagan in this court to reverse an order of the district court of Wabaunsee county refusing to vacate a judgment or decree rendered in that court. Aderial H. Case is made the defendant in error. It appears that in 1872 a judgment or decree of foreclosure was rendered in the district court of Wabaunsee county in a case in which Aderial H. Case was the plaintiff and John T. Bradley, Josephine Bradley, and John O'Flanagan were the defendants, foreclosing a certain real-estate mortgage. In pursuance of such judgment and decree, and upon an order of sale, the land was sold by the sheriff of that county to

It is claimed by the plaintiff in error, Mrs.

said Aderial H. Case, who paid from $40 to | Term, 1885. Aderial H. Case, Plaintiff, vs. $60 more than sufficient to satisfy the fore- John T. Bradley, Josephine Bradley, John closure judgment and costs. This sale was O'Flanagan, Margaret O'Flanagan, Defendconfirmed, and on March 31, 1873, the sher- ants. Motion to Vacate a Void Judgment. iff executed to Case a sheriff's deed for the And now comes Margaret O'Flanagan, one property, and afterwards Case sold and con- of the above-named defendants, and moves veyed the land by a general warranty deed the court to vacate the following judgment to other persons. It was afterwards ascer- or order entered by this court without juristained that the title to the land was in Mar- diction, entered September 26, 1876, in Jourgaret O'Flanagan, the wife of John O'Flan- nal Entry B, page 134. [Here is copied the agan, one of the defendants in the foreclos- above-quoted judgment or decree, which it ure suit; and the sheriff retained in his is desired to have vacated, and the motion hands the surplus money not needed to sat- then ends as follows:] This motion is made isfy the foreclosure judgment, hardly know- for the reason that the said Geo. A. Kirkland ing to whom to pay it. On September 26, had no authority to enter the appearance of 1876, the following additional judgment or the said defendants, or either of them, and for decree was rendered by the court, to-wit: said reason the judgment is void. MARGA"Aderial H. Case, Plaintiff, vs. John T. Brad-RET O'FLANAGAN, by H. H. HARRIS, Atty." ley, Josephine Bradley, John O'Flanagan, On November 14, 1885, this motion was Margaret O'Flanagan, Defts. Order and overruled by the court, and to reverse this Judgment. On this day, in open court, ruling Margaret O'Flanagan, as plaintiff in comes the said plaintiff, Aderial H. Case, error, brought the case to this court, making and also comes the said defendants, John T. Aderial H. Case the defendant in error. Bradley, Josephine Bradley, John O'Flana- Case's grantee was not made a party to the gan, and Margaret O'Flanagan, by their at- motion in the court below, nor is he made a torney, George A. Kirkland, and by agree-party to this proceeding in this court. ment of parties, and consent of the court, it is ordered that the journal entry heretofore O'Flanagan, that the above-quoted judgment made on journal A, pages 283 and 284 of or decree is void for the reason that George this same case, be corrected in the title there- A. Kirkland had no authority to appear for of as above stated, and that there be added her with respect to any proceeding in the thereto the following nunc pro tunc correc- case, and her testimony to this effect was intion, to-wit: And any surplus from the troduced in the court below on the hearing proceeds of said sale, after paying the said of the motion; but evidently the court bejudgment, interest, and costs, and accruing low did not believe her testimony, and we costs, be paid to the said Margaret O'Flana- cannot say that the court below committed gan; and it is further ordered that the said error. In the first place, where an attorney Margaret O'Flanagan be forever barred and at law appears in a case for another, it will estopped from claiming any right, title, or always be presumed, in the absence of anyinterest in or to the said lands, to-wit: The thing to the contrary, that he had authority east half of the north-east quarter of section to appear, and the burden of overthrowing twenty-two, township eleven, of range thir- this presumption will rest upon the party teen east, of the sixth principal meridian, in disputing the authority. In the second place, Wabaunsee county, Kan., adverse to the said Kirkland himself testified positively and dirights or interests of the said plaintiff, his rectly that he had express authority from heirs, grantees, or assigns.' ADERIAL H. Mrs. O'Flanagan to so appear, and to repreCASE. GEO. A. KIRKLAND, Atty. for De- sent her in that court, and in that proceedfendants, and especially for Margaret O'Flan- ing, as the record shows he did represent agan. Approved, Alma, Kansas, September her; and taking all the evidence and all cir26, 1876." George A. Kirkland was at the cumstances in the case, and all the presumptime of the rendering of this judgment a tions of law in favor of the good faith of atpracticing attorney at law residing at St. torneys at law, and of the regularity, validMary's, where John O'Flanagan and Marga- ity, and verity of judicial proceedings, we ret O'Flanagan also resided, and they were think the preponderance of the evidence is in all well acquainted with each other, and favor of the correctness of the decision of the John O'Flanagan was present with Kirkland court below. The judgment or decree comat the time when the above-quoted judgment plained of was therefore rendered with Mrs. or decree was rendered. The surplus money O'Flanagan's consent, and she, through her was paid by the sheriff to Kirkland, the sup- attorney and agent, George A. Kirkland, reposed representative of Margaret O'Flana- ceived the benefit and fruits of such judggan. On November 4, 1885, Margaret ment or decree, to-wit, the surplus money O'Flanagan, by H. H. Harris, her attorney, remaining in the hands of the sheriff, and filed the following motion in the district she cannot now complain of the judgment or court, to-wit: "State of Kansas, Wabaunsee decree. The judgment of the court below county. In the District Court, November will be affirmed.

v.21p.no.1-7