fendant will be canceled where defendant grossly misrepresented the value of his land; since plaintiff has a right to rely on defendant's representations because of the fiduciary relations existing between them.

Appeal from circuit court, Multnomah county; M. G. Munly, Judge.

Action by Thomas Shute against J. A. Johnson and another. There was judgment for plaintiff, and defendants appeal. Affirmed.

The other facts fully appear in the following statement by MOORE, J.:

This is a suit to set aside a deed to real property. The facts show that the plaintiff, on February 20, 1893, was the owner of a tract of land at Clackamas, Or., containing about one acre, and also the owner of the undivided one-half of a chop mill and machinery thereon, which he desired to exchange for a small farm; and on that day he called upon the defendant J. A. Johnson, a real-estate agent at Portland, Or., and listed said property with him for exchange. The defendant J. A. Johnson, not having upon his lists such property as the plaintiff desired, offered of his own property four lots in South Baker, Baker county, one lot in Steamboat addition to Yarrow, Coos county, Or., and one lot in Port Discovery addition, Jefferson county, Wash., in exchange for that of the plaintiff, which were accepted, and the deeds thereto were on the next day duly executed and delivered. The plaintiff alleges that his property was worth $900, and that the said defendant represented to him that the Baker county lots were worth $400, and those in Coos county and Washington $250 each, while in fact the four lots in Baker county were worth but $100, and the other two $10 each. That all of said representations were false and fraudulent, and were made by the defendant knowingly for the purpose of defrauding him; and that, relying thereon, and being deceived thereby, he was induced to convey his land to the defendant in exchange for said lots. That about four weeks thereafter the plaintiff and his wife tendered to the defendant their deeds, duly executed, conveying said lots to them, and demanded a reconveyance of the property in Clackamas, and upon the refusal of the defendant to comply with such demand this suit was commenced, in which the plaintiff prays that the deed to said tract be set aside. The defendant, after denying the allegations of the complaint, alleged that the lots conveyed by him to the plaintiffs were of the value of $900, and denied that the property in Clackamas was of greater value than $700. The cause tried before the court, and a decree rendered as prayed for, from which the defendant appeals.

was

Cake & Cake, for appellants. Campbell & Dolsen, for respondent

MOORE, J. (after stating the facts.) The defendant contends that, admitting he made representations as to the value of his property as alleged by plaintiffs, they were mere expressions of opinion, not amounting to a warranty, upon which the plaintiff had no right to rely, and for any damages arising therefrom, equity will not afford relief. The law is well settled that, where there is no relation of trust or confidence existing between the parties, a mere false representation of value by a vendor, where no warranty is intended, is no ground of relief to the purchaser, (2 Kent, Comm. 485; 1 Bigelow, Frauds, 4191; Medbury v. Watson, 6 Metc. [Mass.] 259; Rockafellow v. Baker, 41 Pa. St. 321;) but if the representations were intended to be the statement of a fact, to be understood and relied upon as such, relief will be granted to the purchaser who has been injured thereby, and the question should be left to the jury to say whether the representations were more expressions of opinion as to value or the statement of a material fact, (Homer v. Perkins, 124 Mass. 433.) If the value of property can be ascertained by ordinary inspection, the maxim "caveat emptor" applies; but such maxim does not apply when any particular skill is required to ascertain it, and affirmations of value in such cases may be relied upon Where a person makes an affirmation of value which is the inducement to a purchase, within the principle of all the decisions it is a warranty; or, where statements of value are attended with statements as to the elements that go to make up the value, which are false, they are not to be treated as statements of opinion, but of material facts. Van Epps v. Harrison, 5 Hill, (N. Y.) 70; Hubbell v. Meigs, 50 N. Y. 480. In this case we find that the plaintiff had never seen any of these lots, all of them being more than 100 miles from Portland, Or.; that he declined to act upon defendant's suggestion, who advised him to inquire of a former owner of one of the lots, then in the city, and of another, also in the city, who was said to be acquainted with the Yarrow property, as to the value of such lots, but accepted as true the representations of defendant in relation thereto, although it appears he had no prior acquaintance with him. The evidence, while conflicting, shows that the lots are not worth much more than the amount claimed by the plaintiff, and that their value is grossly inadequate as a consideration for the property received in exchange for them. The plaintiff testified that at the time the trade was consummated the defendant represented to him that the lots in South Baker were worth $100 each; that he had sold lots adjoining them for that amount in cash; that he would not take $99 for a single lot, but, being in need of money. he would take $100 apiece for them; that the lot at Port Discovery was worth $250,

but that this amount could not probably be obtained for it at that time, as the mill at that place was idle, but that within one year it could be sold for that amount; that the lot in Steamboat addition to Yarrow was worth $250,-making in all a value of $900, and that he asked the defendant if the lots were worth that sum, who assured him that they were. The defendant testified that he never made any representations to the plaintiff in relation to the value of any of said lots; that he told him he had never seen either of them; that he offered to exchange them for the plaintiff's property, which he had never seen, and the plaintiff accepted the offer; that when plaintiff's deed was presented for delivery it expressed a consideration of $900, and that he made his deeds to express the same amount, by plaIcing in the deed of the South Baker lots a consideration of $250; that he did not tell the plaintiff he had sold any lots in South Baker for $100 in cash, but that he had traded lots there for what he considered a value of $100 each. The plaintiff further testified that he owed the defendant a commission of $50 for securing the sale of another tract of land, and he desired him to accept some of these lots in payment thereof, but that the defendant replied to the proposition by saying, "I would not give $50 for the whole damned lot." The plaintiff had listed his property with the defendant for exchange, and by thus creating him his agent for that purpose established a relation of trust and confidence between them; and it became the duty of the defendant, so long as this relation continued, to correctly inform the plaintiff as to the character and value of the property offered; and this relation did not cease when the defendant offered his own property in exchange for that of the plaintiff. To hold that this relation between them had terminated when the defendant offered to trade his own property would be to hold that any person acting in a fiduciary capacity, when he, on his own account, and for his own benefit, treated with his principal or cestui que trust, might rob him with impunity. Such is not the law, and this fiduciary relation furnishes an exception to the general rule that the affirmation of value of property made by a vendor to secure a sale is but the mere expression of an opinion, and upon which the vendee cannot rely, because it is customary in selling property to make such statements of overvaluation. Whether there was a warranty of value or not has no application to this case, since it was the duty of the defendant to show that he acted in perfect good faith, and rendered a just equivalent for the property he received from the plaintiff. His acts cannot be justified by showing that he gave property of the value of $120 in exchange for that of the value of $900. The decree will therefore be affirmed.

Chapter 109, of the Laws of 1893, concerning the sale and redemption of real estate, does not have the effect to change or nullify any of the terms of a judgment duly rendered before the passage of that act, directing the sale of lands, or any interest therein, for the purpose stated in said judgment.

(Syllabus by the Court.)

Error from district court, Rice county; J. H. Bailey, Judge.

Action for mortgage foreclosure by N. T. Greenwood against Thomas A. Butler and others. Plaintiff had judgment, and the land was sold. From a portion of the order made on confirmation, plaintiff and the purchaser of the land bring error. Reversed.

Owen A. Bassett, for plaintiffs in error. A. M. Lasley and John Guthrie, for defendants in error.

ALLEN, J. This action was commenced in the district court of Rice county on the 25th day of May, 1891, by N. T. Greenwood, to foreclose a mortgage executed by Thomas A. Butler and wife on certain lots in the city of Lyons. Other parties, claiming liens on the land, were made defendants. Issues were joined, and on the 22d day of September, 1891, a judgment was rendered in favor of the plaintiff for $861.36, directing a sale of the premises without appraisement, subject to a mortgage for $6,000, and ordering execution to issue in six months in case the defendant failed for that time to pay the amount of the judgment, interest and costs. The decree concludes as follows: "And it is further adjudged and decreed by the court that the said defendants, and each of them, and all persons claiming, or to claim, by, through, or under them, or any of them, upon the confirmation of any sale of said lands or tenements hereunder, be barred and forever foreclosed of all title to, lien upon, or equity of redemption in said lands and tenements, or any part thereof, and that upon confirmation of any sale made as herein provided the sheriff be directed to put the purchaser of said lands or tenements in possession thereof." Afterwards, on the 7th day of April, 1892, on the application of the plaintiff for a supplemental judgment against certain other de fendants, who were brought in by publication, a further decree was rendered, barring them also. Again, on the 22d day of April, 1892, a further order was made to supply omissions from the record, and a further and final decree was rendered, which concludes with an order barring the claims of all defendants in the same language as that contained in the original decree. On the 23d of March, 1893, an order of sale was duly issued on this judgment by the clerk of the court. and on the 24th day of April, 1893, the lots

were sold to J. E. Putnam, for $2,000, subject to the $6,000 mortgage. On the 25th day of May, 1893, the motion of the plaintiff to confirm the sale came on to be heard, and the sale was confirmed. The journal entry then proceeds as follows: "And it is further ordered and adjudged that so much of said motion as relates to directing the sheriff to make a deed to said purchaser of said lands and tenements, and put him in possession of said premises, be denied; to which last order and decision of the court the plaintiff and the said purchaser then and there excepted. And it is further ordered by the court that the said sheriff execute to the purchaser a certificate containing a description of the property sold, and the amount of money paid by said purchaser, together with the amount of costs up to this date, stating that, unless redemption is made within eighteen months thereafter according to law, said purchaser, his heirs and assigns, will be entitled to a deed for the same; to which last order of the court the said plaintiff and the said purchaser then and there excepted."

The question presented in this case is as to the correctness of the decisions of the court last quoted. The plaintiff in error contends that on the confirmation of the sale of the premises he was entitled to a deed and to the possession of the property. Elaborate briefs are filed, and the case has been fully and ably argued by counsel. For the defendants in error it is urged that chapter 109 of the Laws of 1893, known as the "Redemption Act," applies to this case; that the order made by the district court is in compliance therewith, and is valid. On the part of the plaintiff in error it is contended that this act does not and cannot affect the rights of the parties to and purchasers under judgments rendered before the passage of the law; and, further, that the act can have no application to contracts made before its passage; that as to such contracts it would be in contravention of the tenth section of article 1 of the constitution of the United States, because it would impair the obligation of contracts. Chapter 109 of the Laws of 1893 went into effect on the 17th of March, 1893. The twenty-fifth section reads: "The provisions of this act shall apply to all sales under foreclosure of mortgage, trust deed, mechanic's lien, or other lien, whether special or general, and the terms of redemption shall be the same." The statute in terms contains no exception of past contracts, or judgments already entered. The question as to the effect of this act on judgments already entered is necessarily involved in the decision of this case, and therefore should be first considered.

mination of the rights of parties. Those interested in any controversy are given their day in court. At the appointed time the court hears their proofs, the presentation of their views as to the law fixing their rights, and thereupon proceeds to determine all questions, both of fact and of law, presented. This determination is entered of record, and becomes a final settlement and determination of the controversy. It hardly seems necessary to cite authorities to support the proposition that a final judgment so entered is not to be changed- or set aside by the lawmaking power. Our form of government does not contemplate an appeal from the judgment of the courts to the legislature, nor does it contemplate nor authorize by a sweeping act of the legislature a change in the force and effect of a great class of judgments already entered. The precise question involved in this case was determined in the case of Mills v. Ralston, 10 Kan. 206. From the opinion in that case, delivered by Mr. Justice Brewer, we quote: "The purchaser at a sheriff's sale looks to the decree for the measure of interest and title he will acquire by his purchase. He knows he can get no more interest than the defendant possesses and the decree orders sold; but he bids, rightfully expecting to obtain all that. It is that interest which the sheriff offers; it is that he bids for; it is that which is struck down to him; and it is that which, if the sale be confirmed, he should then receive. * * The proceedings on the sale were regular. The plaintiffs, defendants, and purchaser agreed in seeking a confirmation. The confirmation then followed as a matter of course. The decree barred redemption. The sale followed the decree. All the interest of the mortgagors (not an interest subject to the right to possess and redeem for two years) was offered by the sheriff, and was bid for by the purchaser. The confirmation closed that sale. The sale as made was the sale confirmed, and that by consent. The legal effect of that confirmation was to give the party a right to a deed, and the defendant could not, by objecting to a deed, deprive the purchaser of a right which flows from the confirmation. It is said that this carries the consent of the defendant to a point beyond that to which he intended it should go, and that the limit he intended is clearly indicated by his objecting to a deed. It is

plain he wished only the confirmation of a sale of an interes: subject to possession and redemption; but the trouble is, no such sale was made. It may be that, by consent of plaintiffs, defendant, and purchaser, the de cree might have been modified, and the sale confirmed as of an estate subject to redemption; but nothing of the kind was done. Plaintiffs and purchaser were seeking a confirmation of the sale made, and might not have cared for a confirmation of a different one. This is not in the nature of a contract

The

agree, there is no contract. The order and decree of a court is not simply the record of an agreement. It establishes rights founded upon past transactions. The law, and not the will of the parties, determines its effect. For instance, A. brings suit against B. B. enters his appearance, and consents to judgment, but objects to the judgment being a lien on his realty in the county. The judgment is entered, A. making no consent. lien would follow. The law attaches it to the judgment. Just so here. The confirmation of a sale under a decree barring redemption entitles the purchaser to a deed. Neither plaintiffs nor purchaser made any consent. They asked affirmative relief; relief they were entitled to under a decree. They asked confirmation of a sale. The defendant consented to it. It was ordered. Then followed the right to a deed; a right resting upon decree, sale, and confirmation." Ogden v. Walters, 12 Kan. 282.

We have considered the case of Morley v. Railway Co., 146 U. S. 162, 13 Sup. Ct. 54, which holds, where a judgment for money is entered, and by law bears 7 per cent. interest, no rate being specified in the judgment, and a law is subsequently passed reducing the rate of interest on all judgments to 6 per cent., that such law operates on judgments rendered prior to its passage. The decision is put upon the ground that the interest in such case is in the nature of a penalty, or liquidated damages for the nonpayment of the judgment, and is a matter wholly within the discretion of the legislature, not being a part of the contract between the parties, nor fixed or established by the judgment of the court. From this decision Justices Harlan, Field, and Brewer dissented. We do not think that case directly in point. The subject of interest was not there a matter of judicial determination. It followed as a legal incident, as would accruing costs attending the enforcement of a judgment. In this case the parties to the suit were to have the amount of the plaintiff's recovery determined by the court, and to have an adjudication as to the rights of all the parties claiming an interest in or lien upon the mortgaged property. The plaintiff then sought a sale of the property, and the application of the proceeds to the payment of his claim. It was absolutely necessary that the decree should determine what interest should be sold, and whose rights should be barred. It directed a sale without appraisement of the interests of the mortgagors, but allowed them, in accordance with the law as it then stood, a stay of six months in which to redeem. In case of a failure to pay within that time it directed a sale of the interest of the mortgagors subject to the prior mortgage for $6,000, and decreed that on the confirmation of such sale the rights of all the defendants should be barred and foreclosed of all equity of redemption, and that the sheriff should be di

rected to put the purchaser into possession. The original judgment was entered almost a year and a half before the act of 1893 was passed, and the final supplemental decree more than eleven months before its passage. It cannot be said that a sale of lands with a right of possession remaining in the judgment debtor for a year and a half thereafter is the same thing as a sale with a right to immediate possession on confirmation of the sale. It is simply the carving out and taking away from the estate originally decreed to be sold another estate limited for a year and a half. It diminishes the value of the lands to be sold by just exactly the value of the tenure, rent free, for a year and a half. The fact that the judgment would still draw interest does not affect the question as to the value of the security to be sold for its satisfaction. We conclude, then, that judgments rendered prior to the passage of the act are not affected by it, and that all sales of land under such judgments must be made in accordance with their terms, and will pass such estates as are thereby ordered to be sold. As the conclusion we have reached on this question is decisive of the case, it is unnecessary to now enter into a discussion of the constitutional question so ably presented by counsel on both sides. The order directing that a certificate issue to the purchaser will be reversed, with the direction that the sheriff be ordered to execute a deed to the purchaser, and that he have immediate possession of the land sold. All the justices concurring.

MOORE v. BARSTOW.

(52 Kan. 431)

(Supreme Court of Kansas. Dec. 9, 1893.) Error from district court, Rice county; J. H. Bailey, Judge.

Action by T. D. Moore against Andrew M. Barstow to foreclose a mortgage. Plaintiff had judgment by default, directing sale of the land. From a portion of the order made on confirmation of the sale, plaintiff brings error. Reversed.

W. J. Patterson and A. C. Mitchell, for plaintiff in error.

PER CURIAM. The facts in this case are practically identical with those in the case of Greenwood v. Butler, 34 Pac. 967, (just decided,) and the order in this case, directing the certificate of purchase to be issued for the lands sold, will be reversed, with the direction to order a deed to be issued, and the purchaser to be put in possession.

(52 Kan. 419)

LEU et al. v. MAYER et al. (Supreme Court of Kansas. Dec. 9, 1893.) EVIDENCE OF AGENCY.

The mere declarations or acts of a supposed agent, not accepted or approved by the alleged principal, are inadmissible to prove agency; and, where the authority of an agent is at issue, an instruction that where third parties believed from the conduct of the supposed agent

that he had authority, and acted upon that belief, the principal would be bound, is error.

(Syllabus by the Court.)

Error from district court, Pawnee county; S. W. Vandivert, Judge.

Action by Jacob Leu & Sons against Daniel Mayer and others. Defendants had judgment, and plaintiffs bring error. Reversed.

H. C. Johns, Scott E. Winne, and Wm. G. Fairchild, for plaintiffs in error. J. P. Worrell, for defendants in error.

JOHNSTON, J. Jacob Leu & Sons, wholesale dealers in hardware at Atchison, sold goods to Mayer, Sells & Co., who were retail dealers in hardware at Larned, Kan. In August, 1888, Mayer, Sells & Co. owed Jacob Leu & Sons, upon two promissory notes and an open account, $730.79, with certain interest which had accrued. At the latter date the firm of Mayer, Sells & Co., which was composed of Daniel Mayer, George A. Sells, and A. A. Thorp, dissolved, Mayer purchasing and taking possession of the entire partnership stock. At the time of the dissolution, the firm was indebted to the First National Bank of Larned in the sum of $2.700, and, to secure this debt, Mayer executed a chattel mortgage on the entire stock. A second mortgage was executed by Mayer to Sells, which was not placed upon record. The plaintiffs, hearing of the dissolution and change of ownership, sent their bookkeeper, Keyes, to Larned, as they say, to look after their claim, and "with instructions to secure the same from the partners owing them." He obtained a chattel mortgage upon the entire stock of goods, which was made second to that given to the bank. The bank was authorized to take immediate possession of the goods mortgaged, and sell the same, which they at once proceeded to do, and only realized from the sale of the entire stock about $1,600. Jacob Leu & Sons then brought this action against all the members of the firm of Mayer, Sells & Co. to recover the amount of their claim. Sells and Thorp, only, were served with summons, and their answer admitted the copartnership, and that the indebtedness had accrued, but alleged as a defense that a settlement had been made by which the plaintiffs agreed to look to Mayer alone for the debt, provided he would give a second mortgage upon the entire stock of goods to secure the same; that such mortgage was actually given, and that Sells and Thorp were thereby released. At the trial the defendants offered testimony to the effect that when Keyes came to Larned he agreed that if Sells would surrender the second mortgage which had been given to him, and permit the firm of Jacob Leu & Sons to get from Mayer a mortgage upon the entire stock of goods, which should stand next in priority to that of the bank, he would release Sells and Thorp. and look to Mayer alone for the payment of the debt. The

plaintiffs denied that there was any release of any member of the firm, and denied, also. that Keyes had any authority to release or discharge any one from the debt. It may be remarked that the notes of the firm were not canceled or surrendered.

One of the principal questions in the case was whether the bookkeeper, Keyes, had authority to release Sells or Thorp from their admitted indebtedness. The defendants contended that he was a general agent, with authority to release, while the plaintiffs contended, and offered testimony to show, that he was a special agent only, sent out for the single purpose of securing the debt from all the partners owing the same. In submitting the case to the jury the court instructed them as follows: "If you believe, from a preponderance of all the evidence in this case, that this agent, Keyes, came here authorized by the firm of Jacob Leu & Sons to settle the debt, and at that time he agreed with Sells and Thorp, in consideration of Sells cancelling his mortgage, and in consideration of Mayer giving him a new mortgage, a second mortgage on this stock of goods, he would release his claim against Sells and Thorp, then you should find for the defendants Sells and Thorp; but before you find for defendants Sells and Thorp you should also find, from a preponderance of all of the evidence in this case, that this agent, Keyes, was authorized by the firm of Jacob Leu & Sons to make the arrangement with Sells and Thorp which he did make with them, or that his conduct as agent of Jacob Leu & Sons was such as to lead Sells and Thorp to believe that he was authorized to make this arrangement with them to settle their debt, and that in good faith Sells and Thorp acted upon their belief that he had that authority." The trial resulted in favor of the defendants, and the last clause of the above instruction is the principal ground assigned for reversal.

As the authority of Keyes was a disputed question of fact, the importance of the instruction is easily seen. According to the testimony of plaintiffs, Keyes was in no sense a general agent. It does not appear that he had ever acted as the agent of plaintiffs in any transaction with the defendants, or that he had ever been employed to adjust or settle claims with defendants or any one else. The authority to secure the claims from the defendants would hardly warrant him in releasing one or more of them. Scully v. Dodge, 40 Kan. 395, 19 Pac. 807; Organ Co. v. Lasley, 40 Kan. 521, 20 Pac. 228; Deatherage v. Henderson, 43 Kan. 684, 23 Pac. 1052; 1 Amer. & Eng. Enc. Law, 357. If Keyes had only limited authority, those who dealt with him were bound to inquire, and must be held to know, the extent of the authority conferred. Bohart v. Oberne, 36 Kan. 284, 13 Pac 388. Whether the authority given was broad enough to warrant a release was a question