regarding the value of the land transferred. The valuation placed upon it ranges from $2,000 to $3,000. It is appraised in the attachment proceeding at $2,300, which, under all the testimony, may be regarded as a fair price for it. At the time the land was conveyed to Mrs. Powell there was an incumbrance upon it of $1,300, and for which she became liable.

In respect to the amount of the indebtedness of Powell to his wife, the testimony offered by her tends to show that there was due to her at the time of the conveyance about $1,500. This amount is made up of $120 received from her father and paid to her husband about 1849, and also of several installments received by her from her father's estate from 1877 until 1882, with interest from the time these amounts were received by her husband. Plaintiff in error contends that the money received in 1849 ought not to be considered as a claim against the husband. First, for the reason that they were residing in Indiana, and that by the law in force in that state the money derived from her father's estate after marriage instantly became the property of her husband, and no demand could arise in favor of the wife and against the husband thereon. An examination of the record, however, fails to show what the law of Indiana in that respect was, and in the absence of testimony we cannot assume that the law of that state differs from ours. Furrow v. Chapin, 13 Kan. 113. The second reason urged why this claim should not be treated as an existing indebtedness against the husband, is that it is stale and dormant. This is an objection or defense to be offered, if at all, by the debtor himself. "The mere fact that a claim is old is no reason why it should not be paid. The law allows a man to be honest and to pay an honest debt, however stale and ancient it may be. He may interpose the statute of limitations, but he may waive it also. The law does not compel him to resort to this defense, nor can others insist upon it for him." Brookville Nat. Bank v. Kimble, 76 Ind. 195.

Our conclusion, after a careful examination of the record before us, is that the finding of the learned judge is justified by the testimony, and that his order and judgment should be affirmed.

(All the justices concurring.)

(34 Kan. 39)

DEISHER V. STEIN and another.

Filed July 9, 1885.

STATUTE OF FRAUDS-ORAL AGREEMENT TO EXECUTE LEASE.

Where a land-owner enters into a parol agreement with another person to execute to such other person a written lease for the land, for a term of more than one year, and such other person, in pursuance of such agreement, and with the consent of the land-owner, enters into the possession of the land, and expends time, labor, money, and materials in making improvements on the land, and in putting it in a condition to use and enjoy it during the term of his contemplated lease, and afterwards the land-owner refuses to execute the lease, and ousts the contemplated lessee from the premises, held, that the parol

agreement is not wholly and entirely void, under the fifth and sixth sections of the statute of frauds, but is so far valid that the contemplated lessee may recover from the land-owner such damages as in justice and equity he should recover; that the taking of the possession of the property, and expending time, labor, money, and materials thereon, to this extent, takes the case out of the statute of frauds.

Error from Shawnee county.

F. G. Hentig, for plaintiff in error.

Hazen & Isenhart, for defendants in error.

VALENTINE, J. This action was brought by J. R. Deisher against William Stein and Anna Stein, his wife, before a justice of the peace. of Shawnee county, Kansas, and after judgment in favor of the plaintiff, and against the defendants, the defendants appealed to the district court, where the plaintiff filed an amended bill of particulars, which reads as follows:

"The plaintiff herein complains of the defendants, and says that on or about the fourth day of June, 1883, the defendants, William Stein and wife, agreed to lease to this plaintiff, for a term of five years from that date, lot No. 118 on East Fourth street, in this city of Topeka, Shawnee county, Kansas, at an annual rent of $100 per year, and this plaintiff agreed to lease from said defendants said premises at the rate aforesaid; and it was agreed between the plaintiff and defendants that a lease in writing should be executed by and between the parties hereto as above set forth; and plaintiff further says that, relying upon the contract and agreement so made as aforesaid, and with the consent of said defendants, he went into possession of said lot and commenced to build a stone building for the purpose of selling groceries therein; that he made contracts for stone-work and other materials for said buildings, at a great expense and outlay to himself, and spent 21 days' time in getting said material and labor together, and contracts made for the erecting of said building; and plaintiff says that after he had made said contract, and purchased said material, and commenced work on said building, the said defendants stopped this plaintiff in his work and refused to make said lease in writing, and told this plaintiff they would not execute said lease, and then and there refused to comply with their agreement; and thereupon said defendants went into possession of said lot, and have so continued ever since, to the great damage of this plaintiff in time, labor, and money, materials, etc., in the sum of $100; wherefore, plaintiff prays judgment against said defendants, William Stein and Stein, his wife, for the sum of $100, and costs of suit."

The defendants demurred to this bill of particulars, upon the ground that it did not state facts sufficient to constitute a cause of action; which demurrer the court sustained, and the plaintiff excepted, and now, as plaintiff in error, brings the case to this court, and assigns for error the sustaining of said demurrer. It would seem from the proceedings in this case that the only contested question involve in the case, either of law or fact, is as follows: Where a land-owner enters into a parol agreement with another person to execute to such other person a written lease for the land for a term of more than one year, and such other person, in pursuance of such agreement, and with the consent of the land-owner, enters into the possession of the land, and expends time, labor, money, and materials in making improvements on the land, and in putting it in a condition to use and v.7p.no.10-39

enjoy it during the term of his contemplated lease, and afterwards the land-owner refuses to execute the lease and ousts the contemplated lessee from the premises, is the parol agreement wholly and entirely void under the fifth and sixth sections of the statute of frauds, or is it so far valid that the contemplated lessee may recover from the land-owner such damages as in justice and equity he should recover?

It must be remembered that in Kansas all the old forms of action, and all distinctions between actions at law and suits in equity, are abolished, and in their stead only one form of action is recognized, called a civil action; and in this form of action all that a plaintiff need to do, in stating his cause of action, is to state the facts of his case, and if such facts would entitle him to recover in any form of action, either at law or in equity, he will be entitled to recover under such statement. It must also be remembered that this action was commenced before a justice of the peace, and in justices' courts parties are not required to state the facts of their cases with that same degree of precision, exactness, fullness, and circumstantial detail that they are required to state them in cases brought in the district court.

After these preliminary statements we would state that we think the plaintiff's bill of particulars states a good cause of action. Of course the parol agreement set forth in such bill of particulars was void in its inception, and would have remained void if the parties had done nothing to take the case out of the statute of frauds; but the statute of frauds was enacted to prevent fraud, and it cannot be invoked for the purpose of enabling parties to commit fraud. When the plaintiff, with the consent of the defendants, and in pursuance of the parol agreement, took possession of the property, and expended time, labor, money, and materials thereon, for the purpose of placing it in a condition for use under the contemplated lease, the case was taken out of the statute of frauds to such an extent that the plaintiff is not to lose what he expended under the parol agreement between himself and the defendants. Driggs v. Dwight, 17 Wend. 71; Ryan v. Dox, 34 N. Y. 307; Harris v. Frink, 49 N. Y. 24; Grant v. Ramsey, 7 Ohio St. 157; Bard v. Elston, 31 Kan. 274; S. C. 1 PAC. REP. 565; Becker v. Mason, 30 Kan. 703; S. C. 2 PAC. REP. 850; Tayl. Landl. & Ten. c. 1, § 2, par. 32; 2 Reed, St. Frauds, 582.

Of course the case should not be taken out of the statute of frauds any further than is necessary to do justice and to prevent fraud; and to pay the plaintiff a fair compensation for what he has lost by reason of the parol agreement between the parties is probably sufficient for that purpose. We think, under our practice and procedure, the authorities cited by the defendants are not applicable. In the most of them the facts differ materially from the facts of this case, and in others it is simply stated that the plaintiff, under the circumstances, has no action at law, although he may have in equity.

The judgment of the court below will be reversed and cause re

manded, with the order that the demurrer to the plaintiff's bill of particulars be overruled.

Public necessity requires that railroad depots, and so much of the adjoining grounds and side tracks as are reasonably necessary for the business of the public with the railroad company at the depot, should be free of access and unobstructed by fences and cattle-guards; and where fences or cattle-guards would interfere with the public convenience, or would hinder or prevent the railroad company from properly serving the public, the statute requiring the fencing of railroads will, to that extent, be inapplicable.

2. SAME-PRIVATE INTEREST OR CONVENIENCE.

But no private interest, convenience, or inconvenience on the part of the railroad company will alone be sufficient to absolve it from fencing its road, where the statute in express terms requires that the road shall be fenced. 'Atchison, T. & S. F. R. Co. v. Shaft, 33 Kan. -; S. C. 6 PAC. REP. 908. 3. SAME-STOCK KILLED WHILE RUNNING AT LARGE.

Where stock running at large go upon the railroad track and are killed by a passing train at a point where the railroad company is not required to fence its road, the company is held to the exercise of reasonable care, and is liable for ordinary negligence. The mere fact that the plaintiff in this case permitted his cow to run at large does not constitute such negligence as will defeat a re

covery.

Error from Chase county.

Madden Bros., for plaintiff in error.

A. A. Hurd, C. N. Sterry, and Robert Dunlap, for defendant in error. JOHNSTON, J. This action was brought by U. O. Prickett to recover the value of his cow, which was killed by a passing freight train of the defendant near to the railroad station at Elmdale. The cow was struck and killed not far from the end of the siding, which is used in connection with the station, and is about 2,000 feet long. The plaintiff alleged that the cow was killed through the negligence of the defendant in operating its train, and also in failing to inclose its track with a lawful fence. The jury returned a verdict in favor of the railroad company, and the plaintiff is here alleging error. The principal objection made is against the charge of the court. The fifth instruction was as follows:

"If you should find from all the evidence in this case that the defendant had a station at Elmdale at the time this cow was killed, which was used by the public as a railroad station for receiving and sending away freight, and for getting on and off defendant's trains, and that it was necessary for defendant's business with the public that the defendant should have a side track at such station, and that it did have a side track at such station at said time, and that this side track at such station was crossed by one or more public roads which the public traveled over; and if you should further find that such side track was not longer than it was necessary for it to be on account of the business transacted at said station by the defendant; and if you should further

find that no portion of said side track could be inclosed by a fence without cattle-guards being built across such side track; and if you should further find that, owing to the character of the business done at said station by the defendant on such side track, that cattle-guards could not be built across any part of such side track without endangering the lives or limbs of such of defendant's employes as might, from time to time, be required to use such side track in the operation of defendant's trains and cars thereon,-then, and in such case, you are instructed that defendant was not required to inclose said side track, or any portion of it, with a fence, even although such side track might occupy in length a greater strip of land than would be reasonably necessary for the use of defendant as station grounds; and you are further instructed that, in such case, if the plaintiff's cow was killed at such station within the limits occupied by such side track, that then, and in such case, the plaintiff cannot recover in this action because of any failure of the defendant to inclose such side track with a lawful fence."

The exemption stated in the latter part of the instruction, relieving the railroad company from fencing the track, is too broad, and cannot be upheld. The statute imposing upon railroad companies the duty of fencing their tracks in terms contains no exceptions. There is therefore no exemption from the duty imposed by the terms of the statute, except such as may arise by implication from public necessity, or the superior obligation of the railroad company to the public under other statutes. Railroad Co. v. Jones, 20 Kan. 527; Union Pac. Ry. Co. v. Dyche, 28 Kan. 202; Atchison, T. & S. F. R. Co. v. Shaft, 33 Kan.; S. C. 6 PAC. REP. 908. In the latter case Mr. Justice VALENTINE stated the rule under the authorities to be

"That railroads are not absolved from complying with the express terms of the statute requiring them to inclose their roads with good and lawful fences, except where some paramount interest of the public intervenes, or some paramount obligation or duty to the public rests upon the railroad companies rendering it improper for them to fence their roads."

It has accordingly been held by most of the courts where the question has been raised that public necessity requires that depots or stations should be unfenced. It would seem, too, that so much of the grounds and side tracks connected with the depot as are reasonably necessary for the business of the public with the railroad company at the station should be free of access and unobstructed by fences or cattle-guards. And therefore where fences and cattleguards would interfere with the public convenience, or would hinder or prevent the railroad company from properly serving the public, the statute requiring the fencing of railroads will, to that extent, be inapplicable. See the numerous cases cited upon this point in the case of Atchison, T. & S. F. R. Co. v. Shaft, supra. But in the instruction quoted the judge of the district court did not limit the exemption to public necessity or convenience. His decision would

relieve the company from fencing the track where the fences would interfere with the interest or convenience of the company. And it further implies that a greater quantity of land than is necessary in the transaction of its business with the public may be left unfenced.