This judgment was affirmed by the court of appeals. After the commencement of the suit in the court below, Anna Coulon died, and the action has been revived in the name of her heirs.

It is claimed by counsel for defendants in error that the crossing over the railroad tracks was indispensable to the use of the farm, and constituted a way of necessity. It is unnecessary to dwell on this contention. When James Conlon bought the land his grantor excepted in his deed the 100-foot strip, the fee of which had been taken from him by condemnation proceedings. The grantee obtained no title to it. He was in the same situation as if Baldwin, the grantor, had made two deeds,-one to the ground on the south, and the other to the land on the north, of the right of way. Conlon's deed to William Bowen contained the same exception. The conveyance to Anna Conlon by Bowen also excepted the 100-foot strip. She bought land situated on both sides of a railway, with a fee-simple proprietor owning an estate between the two tracts at the time she took title. No rule of law will permit her to assert a dominant estate, from necessity, in any part of the intervening property.

The question remains whether, under the circumstances of this case, a prescriptive right to the crossing was obtained by a use of the same for more than 15 years. The testimony shows that the railroad company made, in the first instance, and maintained during all the time of its use, a crossing of planks and earth, suitable to the requirements of the landowner. Gates, also, were provided and kept in repair by the company without expense to her. In Jones, Easem. s 282, it is said: "If the use of a way over one's land be shown to be permissive only, no right to use it is conferred, though the use may have continued for a century, or any length of time." Defendants in error assert a right of easement based on adverse enjoyment. Unless their ancestor used the crossing under a claim of right, and not as a privilege revocable at the pleasure of the railroad company, they have no defense to the action brought in the district court by plaintiff in error. There was no express contract or agreement between the parties at the time the crossing was first built and put into use by the landowner. The latter did not at the beginning claim adversely to the railroad company, but, on the contrary, the conduct of the parties shows clearly that a permissive privilege was given to her as a licensee merely. This status of the parties originally existing was in no wise subsequently changed, unless the fact of the continued use of the crossing for more than 15 years by Anna Conlon finally expanded into greater rights than she had at the beginning. A presumption of continuance obtains when a state of facts is once shown. In Dewey v. McLain, 7 Kan. 126, 133, Mr. Justice Brewer quotes approvingly from Jackson v. Parker, 63 P.-28

* *

3 Johns. Cas. 124, as follows: "An entry adverse to the lawful possessor is not to be presumed. It must appear by proof. * The statute of limitations could not begin to run until the possession of the defendant was avowedly held in opposition to the right of the heirs." In Kirk v. Smith, 9 Wheat. 241, 288, 6 L. Ed. 81, 92, Chief Justice Marshall, delivering the opinion, said: "It would shock that sense of right which must be felt equally by legislators and judges if a possession which was permissive and entirely consistent with the title of another should silently bar that title. Several cases have been decided in this court in which the principle seems to have been considered as generally acknowledged, and in the state of Pennsylvania, particularly, it has been expressly recognized. To allow a different construction would be to make the statute of limitations a statute for the encouragement of fraud,-a statute to enable one man to steal the title of another by professing to hold under it. No laws admit of such construction." Mere use under a naked license, however long continued, cannot ripen into a prescriptive right. In Indiana an appellant alleged in his complaint that for 50 consecutive years a way had existed over the appellee's land; that for 20 years the way had been open to the appellant as an easement, and that he and his grantors had been permitted by the appellee and his grantees to uninterruptedly use the way for 50 years; and that in March, 1883, the appellee wrongfully closed up the way. It was held that under the facts so pleaded the appellant had a mere naked license to use the land, and such license was revocable at the pleasure of the licensor. Parish v. Kaspare, 109 Ind. 586, 10 N. E. 109. In the present case there is an absence of hostility to the rights of the railway company. The facts proven show that the possession and use by Anna Conlon were not adverse in their inception, but, on the contrary, began in a spirit of accommodation to her by the company. The repair of the crossing and the maintenance of gates by the latter for more than 15 years, and the landowner's use of the same, show that the privilege extended in 1873 was recognized as such by her during the time mentioned. Dewey v. McLain, supra: Bennett v. Biddle, 140 Pa. St. 396, 21 Atl. 363; Dexter v. Tree, 117 Ill. 532, 6 N. E. 506; Rosseel v. Wickham, 36 Barb. 386. The judgment of the court of appeals and the district court will be reversed, and a new trial granted. All the justices concurring.

WEAKLEY et al. v. CHERRY TP. (Supreme Court of Kansas. Jan. 5, 1901.) REFERENCE-VOLUMINOUS ACCOUNTS-TOWNS -TREASURER-ACTION ON BOND-PROOF -MISCONDUCT OF REFEREE.

1. Where, in an action against a township treasurer and his bondsmen, a jury would have had great difficulty in determining the amount of the indebtedness of the treasurer to the

township, because of voluminous book accounts, it was proper to appoint a referee.

for

2. Where, in an action against a township treasurer and his bondsmen to recover money belonging to the township, the amount which judgment was rendered was shown to have been received by the treasurer, the judgment was proper, since if any of it did not come into his hands during his last term of office the burden was on defendants to establish such fact.

3. It was not misconduct for a referee, who was appointed to determine the amount of an indebtedness, to look over bank books and checks received in evidence, and talk with the banker who had them in custody, after the hearing, where beyond what was contained in the books such witness' testimony amounted to nothing.

Error from district court, Montgomery county; A. H. Skidmore, Judge.

Action by Cherry township against T. B. Weakley and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

A. B. Clark and P. C. Young, for plaintiffs in error. A. L. Wilson, for defendant in er

ror.

PER CURIAM. There was no error in appointing a referee. It is apparent that a jury would have great difficulty in determining the amount of the indebtedness of the treasurer to the township from the voluminous book accounts gone over by the referee. The evidence is all contained in the case-made brought here. We cannot consider its weight. We think, however, it sustains the findings and judgment.

The amount of money for which judgment was rendered was shown to have been received by the township treasurer. It devolved on the defendants below to establish that the amount did not come into the treasurer's hands during his last term of office. Board v. Munger, 24 Kan. 205; Bernhard v. City of Wyandotte, 33 Kan. 465, 6 Fac. 617.

It is not shown that the referee was guilty of misconduct. After the hearing before him, he merely looked over bank books and checks which had been received in evidence. The witness with whom he talked was the banker who had custody of the books. Beyond what was contained in the books of the bank, his testimony amounted to nothing. The affidavit for attachment, while not alleging that the trustee was the agent of the township, yet stated facts sufficient to show his authority to make the affidavit. The judgment of the court below will be affirmed.

(62 Kan. 395)

COOPER v. IVES et al. (Supreme Court of Kansas. Jan. 5, 1901.)

DESCENT OF REALTY-INSOLVENT CORPORATION-LIABILITY OF STOCKHOLDERS.

1. The descent of real property is governed by the laws of inheritance in the state where the land is situated. Title to the same cannot be affected by the decree of a court of another state.

2. A judgment creditor of an insolvent corporation organized under the laws of this state, after execution returned nulla bona, brought a suit here against the widow and sole heir of a deceased stockholder to charge her with the amount of her husband's statutory liability as such stockholder to the value of land inherited by her, and to appropriate the same to its payment. It was shown that the widow was executrix of the estate of the deceased, appointed in New York, where he resided at the time of his death, but that all debts and legacies had been paid. There was no administration in this state. Held, that she, in her representative capacity as executrix, was not a necessary party defendant; and held, further, that the action could not be defeated by showing that there was sufficient personal property in New York in the hands of the executrix for the payment of the creditor's claim.

3. The case of McLean v. Webster, 26 Pac. 10, 45 Kan. 644, followed and applied. Johnston, J., dissenting. (Syllabus by the Court.)

Error from district court, Cherokee county; A. H. Skidmore, Judge.

Action by James F. Cooper against Lucina M. Ives and others. Judgment for defendants, and plaintiff brings error. Reversed.

This was an action brought by James F. Cooper, plaintiff below, who is plaintiff in error here, to subject certain real estate in Cherokee county belonging to the estate of Willard Ives, deceased, to the payment of an indebtedness arising out of the fact that the deceased was a stockholder in the Western Farm Mortgage Trust Company, an insolvent corporation organized under the laws of the state. Plaintiff in error recovered a judgment against the trust company, on which execution was issued and returned unsatisfied. Willard Ives in his lifetime was a stockholder in said corporation, holding stock of the par value of $5,000. He lived in the state of New York, and died in April, 1896. The judgment against the trust company in favor of Cooper was rendered in December, 1896. Ives left a widow, Lucina M. Ives, one of the defendants in error, but no children or direct descendants. The deceased made a will in which he bequeathed about half his estate to charitable and religious societies. Ross C. Scott was appointed executor in the surrogate court of Jefferson county, N. Y. In June, 1898, plaintiff in error filed a petition in the court below making said executor a party, together with Lucina M. Ives, the widow, and a large number of other persons, designated as heirs of the deceased. The petition set up the judgment against the corporation, the issuance and return of the execution thereon, the fact that Ives in his lifetime was the owner of shares of stock aggregating $5,000, and prayed judgment for that amount against all the defendants. An affidavit for attachment was filed at the beginning of the suit, alleging that all the defendants were nonresidents of the state. The property in controversy was then attached. Service by publication was had on all the defendants. On July 13, 1898, plaintiff below amended his petition by inserting a description of the land owned by

Ives in Cherokee county at the time of his death, and alleging further that no letters testamentary or of administration had been issued on the estate of Willard Ives within the state of Kansas, nor any copy of the appointment of Scott as executor filed in any probate court in this state. The prayer asked that the described real estate be declared subject to the payment of the said indebtedness, and that the same be sold, etc. Publication service was again had on defendants after this amendment was made to the petition. The defendants,-some 46 in all, with the exception of Ross C. Scott, executor, and Lucina M. Ives, the widow, answered. They alleged that the shares of stock in the trust company upon the death of Ives passed to Scott, the executor, and became assets of the estate; that Ives died in Jefferson county, N. Y., leaving ample personal estate sufficient to pay all his debts, including plaintiff's claim; that the supreme court of New York, sitting in Jefferson county, had, by a judgment and decree in a suit for the construction of the will of said Ives, decided that the answering defendants were entitled to the real estate left by said Ives, including the land described in the petition, and that the construction of the will by the New York court is, by a rule of comity between states, entitled here to full faith and credit; that by reason of said decree the answering defendants are tenants in common of the real estate in Kansas, and that Scott, the executor, has no interest therein. Plaintiff's reply to this answer was in effect a general denial. After the issues were so made up, Ross C. Scott, the executor, died, and Lucina M. Ives, the widow, was appointed executrix in his stead by the surrogate court of Jefferson county, N. Y. Thereon, and on May 25, 1899, plaintiff below filed an amended and supplemental petition, making no change in the parties defendant, except to add the name of Lucina M. Ives, as executrix, and making the religious societies, legatees under the will, defendants. There is an allegation in this pleading that all the legacies and debts of the estate have been paid, except the claim of plaintiff. Service by publication was again had on all the defendants. All of them, with the exception of Lucina M. Ives, personally and as executrix, filed an answer substantially like that made to the first amended petition. In addition they stated that the Western Farm Mortgage Trust Company was indebted to the estate of Ives, deceased, in the sum of about $4,600 on its guaranty of bonds sold to Ives in his lifetime. In the reply these bonds were alleged to have been paid. the trial it was shown that all the debts and legacies due from the estate, except plaintiff's, had been discharged, and about $50,000 paid to Lucina M. Ives, the widow. No administration was had in this state. There was no evidence in support of the set-off pleaded by defendants. After the evidence

On

on the trial had been introduced, the plaintiff below dismissed his action as to Lucina M. Ives, administratrix of the estate of Willard Ives, deceased. Thereon the court rendered a general judgment in favor of the defendants below. Cooper, the plaintiff in error and plaintiff below, has come here by proceedings in error.

Stebbins & Evans, for plaintiff in error. R. M. Cheshire, for defendants in error.

SMITH, J. (after stating the facts). Under the statutes of this state, where the real estate in controversy is situated, Lucina M. Ives, the widow of the testator, inherited the whole of it. Gen. St. 1899, § 2459. The descent and heirship of real estate are exclusively governed by the law of the country within which it is actually situated. Woerner, Adm'n, § 168. The decree of the supreme court in Jefferson county, N. Y., in the suit brought by the widow against the legatees and others, in which there is a recital that the defendants below were heirs of Willard Ives, deceased, and entitled to participate in the distribution of his estate, can have no force here. The deceased left surviving him no children, brother, sister, nor descendants of any, nor father or mother, and the decree rendered in the New York court could in no manner affect the descent of the property to the widow, as fixed by our statute; nor could the New York court pass on the title to real estate in Kansas. In the case of Carpenter v. Strange, 141 U. S. 87, 105, 11 Sup. Ct. 960, 966, 35 L. Ed. 640, 647, it was held that the supreme court of New York was without power to adjudge the conveyance by a testator to the defendant of lands in Tennessee to be fraudulent and void, and to annul the same. The court said: "The real estate was situated in Tennessee and governed by the law of its situs, and while by means of its power over the person of a party a court of equity may, in a proper case, compel him to act in relation to property not within its jurisdiction, its decree does not operate directly upon the property nor affect the title, but is made effectual through the coercion of the defendant,-as, for instance, by directing a deed to be executed or canceled by or on behalf of the party. The court has no inherent power, by the mere force of its decree, to annul a deed or to establish a title." See, also, McCartney v. Osburn, 118 III. 403, 9 N. E. 210; Watkins v. Holman, 16 Pet. 25, 10 L. Ed. 873.

It is stated by counsel for defendants in error that the ground on which the court below rendered judgment in favor of the parties represented by him was that after the dismissal of the action against the executrix the plaintiff below was in the position of seeking to recover on a stockholder's liability, with no stockholder in court against whom a judgment could be obtained. This brings us to a consideration of the necessity of the presence of the executrix of the estate of Wil

lard Ives, deceased, before the court in an action to enforce such a liability. It will be observed that Lucina M. Ives, the widow, was a party in her individual capacity only, and was in default for answer. In McLean v. Webster, 45 Kan. 644, 26 Pac. 10, a creditor of a decedent, without taking out letters of administration, was allowed to subject real estate in the possession of the heir to the satisfaction of the creditor's claim, there being no other debts against the estate. The petition in the McLean Case described the land which descended to the heir, and prayed that the same be held subject to the payment of the debt sued on. There was an attachment in that case, as in this, ancillary to the main action. In both cases the allegations in the petitions and the relief demanded were intended to operate as an equitable attachment of the real estate sought to be appropriated. The decision in the McLean Case proceeds on the principle that the heir at law or devisee is personally liable for, the debts of the ancestor to the value of the property received by him. See, also, Rohrbaugh v. Hamblin, 57 Kan. 393, 46 Pac. 705.

Counsel for defendants in error lays stress on the statutory provision that permits stockholders to be charged by motion, or that permits the plaintiff in the execution to proceed by action to charge the stockholders with the amount of his judgment. Gen. St. 1889, § 1192. The relation between a stockholder and the corporation is contractual. Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331. If, in the present case, the creditor had held the note of Ives, the stockholder, for the amount of his statutory liability, and had brought an action thereon to subject this land to its payment, his right to recover would have been sustained, under the authority of McLean v. Webster, supra. The obligation is as much contractual in its nature in this as in the supposed case. There was no person interested in the estate of Willard Ives, deceased, except Lucina M. Ives, his widow, to whom this land descended. There was nothing more to be done by her, as executrix, in the way of administering the trust. All the debts and legacies were paid, and she retained the bare title of executrix, with nothing further to administer on. Had this corporation been a going concern, dividends earned on its stock could safely have been paid to her as an individual, free from all liability of the corporation to a subsequently appointed executor. Vail v. Anderson, 61 Minn. 552, 64 N. W. 47. At the time this action was tried below, Mrs. Ives, in her representative capacity, was a mere trustee, nominally for creditors and legatees, but in fact for herself alone. She was the sole beneficiary. In the case of Railway Co. v. Mills, 57 Kan. 6S7, 47 Pac. 834, a widow, appointed administratrix of the estate of her dead husband in Missouri, in such capacity brought suit in our courts against a railway company for wrongfully causing her husband's death, which occurred in this state.

Under the statutes of Missouri, recovery in such actions is limited to the wife of the deceased, where such relation exists. There being an allegation in the petition that she was the widow, it was held that the right of action was not limited to her in her representative capacity, but that she could recover in her character as widow. As before stated, the heir at law inheriting property is chargeable with the debts of the ancestor to the value of the property received. Under this rule, Mrs. Ives, being the sole heir under our law, can be held liable as an individual up to the value of the property. It is not necessary that the liability should be fixed by a judgment against the representative of the dead stockholder in such case. The present action assimilates itself to that of a proceeding in rem. In no event can the inheritor be compelled to pay more than the value of the property. We can see no good reason for requiring the executrix of the deceased stockholder to be made a party, inasmuch as the relief sought is against the heir alone, by reason of her heirship, for an amount measured by the worth of what she inherited from the stockholder. We think judgment should have been entered against Mrs. Ives in the court below. It follows from what has been said that the land having been attached at the commencement of the action as the property of Lucina M. Ives, and she being liable to the extent stated for the debt of the decedent, the court did not err in overruling the motion to dissolve the attachment.

In

Counsel for defendants in error urges that the plaintiff below ought not to be allowed to proceed against real estate in Kansas, because there was personal property in the hands of the executrix in New York which should have been first exhausted. We cannot concur with him in this contention. Woerner, Adm'n (2d Ed.) § 158, it is said: "But the administration in each state is wholly independent, whether in the hands of the same or of different executors or administrators, in no wise impaired, abridged, or affected by a previous, and a fortiori by a subsequent, grant of administration in another state." In the case of Rosenthal v. Renick, 44 Ill. 203, it was held that a citizen of another state, where the administration had been granted, might come to the state of Illinois and cause administration to be taken out there, a claim to be allowed, and real estate sold for its payment, and that it was not necessary to show that the personal estate in the other state had been exhausted. So, in Lawrence's Appeal, 49 Conn. 411, a part of the syllabus reads: "Held to be no objection to an order for the sale of real estate here to pay debts that there was personal property in the state of principal administration sufficient for their payment, and that a court of probate had no right, as a matter of discretion, to refuse to order a sale of real estate here in view of the personal property there." The claim that the liability must be enforced

by a receiver of the insolvent corporation, as provided by sections 14 and 15 of chapter 10 of the Laws of 1898, has been decided against the contention of defendants in error in the case of Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331. The judgment of the court below will be reversed, with directions to the district court to proceed further in accordance with this opinion.

DOSTER, C. J., concurring.

JOHNSTON, J. (dissenting). I am unable to concur in the judgment of reversal. The plaintiff was seeking to establish a stockholder's liability, without having the stockholder in court to answer, or against whom a judgment might be rendered. The liability to which a stockholder is subjected is rigorous enough, without adjudging such liability against him when he is not a party to the proceeding. The legal title to the stock upon which a liability was sought to be established was in the executrix, and not in the heir. The statute in terms authorizes the corporation creditor to proceed against the stockholder, and against no one else. It has been held that the stockholder's liability being unequal, limited, and several, each stockholder must be sued separately. Abbey v. DryGoods Co., 44 Kan. 415, 24 Pac. 426. And, instead of overlooking such serious departures from statutory methods, "the general rule is (from which we think there is no dissent) that, if a statute prescribes a special mode of enforcing the individual liability of the stockholders of corporations, that mode, and that alone, can be pursued. The liabil ity can be enforced in no other way." Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331. The necessity of the presence of the stockholder is sharply presented, because the plaintiff, having the executrix in court, voluntarily dismissed her from the proceedings, and immediately asked the court to adjudge a liability on the stock which she held in the capacity of executrix, and in no other. The estate of Ives was unsettled, and the debt, or at least this claim against Ives as stockholder, was unpaid. While inherited property may be chargeable with the debts of an ancestor, the claim in question is not a liability against the heir or any one else until it is established against the stockholder as the statute prescribes. The stockholder not being in court, I think the district court ruled correctly in giving judgment against the plaintiff.

62 Kan. 284)

BATTEY v. EUREKA BANK OF EUREKA et al.

(Supreme Court of Kansas. Jan. 5, 1901.) BANKS-LOANS TO STOCKHOLDERS-LIENS ON

STOCK.

1. While the officers of the state bank are prohibited from making loans or discounts to a stockholder on the security of stock in the

bank, and while the bank cannot thereafter become the purchaser or holder of loans on such stock unless it shall become necessary to prevent loss upon a debt previously contracted in good faith, yet, if a stockholder has become liable to the bank as principal, surety, or otherwise on debts not incurred on such security, it will be entitled to a lien on his stock for such debts as are due and unpaid, and while such liability continues.

2. The clause of the banking statute, "a debt previously contracted in good faith," means loans and discounts honestly made in the belief that they were safe investments for the bank, and were made without fraud, pretense, or any purpose to injure the bank. (Syllabus by the Court.)

Error from district court, Lyon county; W. A. Randolph, Judge.

Action by the Eureka Bank of Eureka and others against R. T. Battey. Judgment for plaintiffs, and defendant brings error. Affirmed.

Lambert & Huggins and Cunningham & Hamer, for plaintiff in error. W. S. Marlin, L. B. Kellogg, and C. B. Graves, for defendants in error.

On

JOHNSTON, J. The principal question presented for decision is whether the Eureka Bank is entitled to a lien upon the capital stock of the bank owned by William Martindale for an indebtedness owing by him to the bank. The Eureka Bank is a corporation organized under the laws of the state, with a capital stock of $50,000, divided into 500 shares. William Martindale, who was the owner of 298 of these shares, was a member of its board of directors, and its president. Edwin Tucker was cashier of the bank, and in the active management of its affairs. July 30, 1898, Martindale applied to Tucker for a loan of $10,000 from the bank, which was given to him on his unsecured individual note. On August 8, 1898, Martindale obtained a second loan from the bank upon his individual note for $9,848. At the same time Martindale was a stockholder and managing officer of the First National Bank of Emporia, Kan., where he resided, and besides he held large investments in lands and other property, and was generally regarded to be a man of wealth. On November 16, 1898, the First National Bank of Emporia failed, and its property and business affairs passed into the hands of a receiver. By an agreement between the creditors and Martindale, his property was turned over to a trustee to be appointed by the judge of the federal court; but in the agreement it was stipulated that collateral securities or liens upon the bank stock or other property held by any creditor on November 16, 1898, were not to be disturbed, waived, or in any way affected by the agreement. In pursuance of the agreement, R. T. Battey was appointed as trustee, and to him Martindale and his wife joined in a deed of trust, which, among other things, conveyed 298 shares of Eureka Bank stock, "subject to lien of Eureka Bank thereon for a stockholder's indebtedness to