error, is not an authority against the maintenance of this action. While in that case the plaintiff alleged that she was the equitable owner of the premises, and that the legal title to the property was held in trust for her, and asked that the same be conveyed to her, yet she did not allege that she was out of or entitled to the possession of the premises, and did not by her action seek to obtain the possession of the property. For aught that appeared in her pleading, she was in the possession of the premises; and the court, therefore, held that the action was not for the recovery of real property.

It is also suggested that the defendant's cause of action ought not to be taken cognizance of, because of the staleness of his demand, and of his laches and negligence in asserting his right of recovery. It is true that equity requires that suitors should be prompt and diligent in pursuit of their rights; and, where there has been great delay in suing to enforce a trust, courts of equity sometimes refuse to grant relief, and hold the party to have waived his right of relief. But so long as the trust is treated by both parties as subsisting, the right of recovery of the cestui que trust cannot be defeated by mere delay. In this case there was no hostile denial of the trust, and the relations between the parties did not become adverse until August, 1877, and, as has been heretofore stated, the defendant's cause of action did not accrue until that time. The cross-petition of the defendant was filed in December, 1881. There has heretofore not been such a lapse of time as alone will defeat the remedy of the defendant, nor is there anything in the record to show that the plaintiffs in error have been prejudiced by the conduct of the defendant, or by his delay in bringing the action.

Lastly, the plaintiffs in error complain that they were denied a trial by jury. Upon this question they are concluded by the record, as it shows that all the parties appeared in open court and waived a trial by jury, and agreed to submit the cause to the court for trial. Afterwards it appears that there was some dispute between the court and counsel in respect to the waiver, but it is expressly stated in the judgment entry that the parties, including the guardian ad litem, who appeared for the minor heirs, expressly waived a jury trial; and this must be held as controlling in this court. The agreement of the guardian ad litem in this regard was equally binding as in the case of the other parties.

We see no error in the record; and the judgment of the district court will therefore be affirmed.

(All the justices concurring.)

(33 Kan. 504)

BAUGHMAN, Sheriff, etc., v. PENN.

Filed May 8, 1885.

1. FRAUD ON CREDITORS-KNOWLEDGE OF VENDEE.

Where the validity of a sale of property is challenged on the ground that it was made to defraud the creditors of the vendor, the mere knowledge on the part of the vendee that the vendor was largely in debt will not render the sale fraudulent, although the purpose of the vendor was to defraud his creditors, unless the vendee was a participant in the fraud.

2. SAME-FRAUD NOT PRESUMED.

Fraud is never presumed, but must be established by evidence; and where the creditors of the vendor assail the transfer for fraud, the burden of proof rests upon them to show the same.

3. PRACTICE-INSTRUCTION-ASSUMING FACT.

A court in its instructions cannot assume the existence of disputed facts, and upon which the evidence is conflicting.

4. SAME-NEW TRIAL-NEWLY-DISCOVERED EVIDENCE.

The newly-discovered evidence set forth, held to be cumulative, and not such as would likely change the final result, and therefore not sufficient ground for a new trial.

Error from Wilson county.

T. J. Hudson and B. M. Short, for plaintiffs in error.

S. S. Kirkpatrick, for defendant in error.

JOHNSTON, J. This was an action of replevin, brought by G. W. Penn, to recover from the sheriff of Wilson county the possession of a small stock of goods, which the plaintiff claimed to have purchased from Howard Bros., of Freconia, Kansas. The sheriff justified under orders of attachment that had been sued out by the creditors of Howard Bros. The sale and transfer of the goods was made about November 9, 1883. For a few months prior to the sale, Howard Bros. had been engaged in the grocery and restaurant business, and their goods, a portion of which is in controversey here, had not been paid for. Some four or five weeks after the sale of the goods to the plaintiff, several of their creditors brought suits, and caused the goods to be attached as the property of Howard Bros., claiming that the sale to Penn was invalid, and that it was made with the fraudulent purpose of defeating the creditors of Howard Bros. The cause was tried by a jury, and the verdict and judgment were in favor of the plaintiff, C. W. Penn, upholding the validity of the sale and his title and right of possession to the goods. Upon the trial it seems to have been conceded by all that, so far as the Howard Bros. were concerned, the sale was made with the fraudulent design of defeating their creditors in the collection of their claims; but it is claimed by the vendee that the purchase was made by him in good faith, without any knowledge or notice of the fraudulent purpose of the vendors. It appears that the plaintiff took immediate possession of the goods under his purchase, and that the consideration claimed to have been paid for them was fair and reasonable. The only question, therefore, in the court below, was whether the plaintiff was a bona fide purchaser-in good faith-of the property in controversy.

The counsel for plaintiff in error contend and argue at some length that the testimony shows that the vendee had knowledge of the fraudulent intent of the vendors. Upon this question there was some conflict in the testimony, but the jury, by their general verdict, and also in answer to special questions, have found in favor of the good faith. of Penn, and that he was not chargeable with knowledge of the fraudulent purpose which actuated Howard Bros. in making the sale. The determination of this fact was within the province of the jury, and their finding puts an end to all inquiry thereon in this court. In such a case, as has been so often stated, we cannot weigh conflicting evidence or disturb a verdict, even though the testimony seems to preponderate against it. It is but just to say, however, that after a careful reading of the testimony, which is voluminous, it appears to us to abundantly justify the verdict that has been rendered.

Some objections are made to the rulings of the court upon the instructions refused and given. These objections are somewhat general and desultory in their nature. The defendant prepared a series of six instructions, none of which were given. But the court, in its general charge, which was carefully prepared, embodied most of the propositions requested by the defendant. The two remaining ones, we think, were improper in the case and rightly refused. In one the court was asked to direct the jury, in effect, that the mere knowledge of Penn that Howard Bros. were indebted, was of itself sufficient to charge him with guilty knowledge of the intention of Howard Bros. to defraud their creditors. Of course, actual knowledge by Penn of the fraudulent purpose of the Howard Bros. was not necessary in order to vitiate the sale. A "knowledge of facts sufficient to excite the suspicions of a prudent man, and put him upon inquiry is, as a general proposition, equivalent to a knowledge of the ultimate fact," (Phillips v. Reitz, 16 Kan. 396;) and this principle of law the trial court, in its charge to the jury, clearly recognized and stated. But the mere knowledge of the purchaser that the seller is in debt, without regard to the amount or his ability to pay the same, will not make void a sale, although the purpose of the vendor was to defraud his creditors, unless the vendee was a participant in the fraud. Hughes v. Monty, 24 Iowa, 499; Atwood v. Impson, 20 N. J. Eq. 151; Beals v. Guernsey, 8 Johns. 348; Durkee v. Chambers, 57 Mo. 575; Sisson v. Roath, 30 Conn. 15; Loeschigk v. Bridge, 42 N. Y. 421; Taylor v. Eubanks, 3 A. K. Marsh. (Ky.) 239; Bump, Fraud. Conv. 201, 278, and cases there cited.

The sixth instruction requested by the defendant below was in part unobjectionable; but the latter portion of it assumed as facts matters that were in controversy between the parties, and about which the evidence was conflicting; as, that the sale was made in great haste, that it was "a lumping trade;" and that there was much haste in placing upon record the bill of sale and other instruments evidencing the agreement of the parties. It was therefore improper. The court,

in its instructions to the jury, cannot assume as a fact that about which the testimony is conflicting. Wilson v. Fuller, 9 Kan. 176.

Of the instructions given, complaint is made that the court failed to call the attention of the jury and advise them of the significance and effect of certain circumstances sought to be proved by the plaintiff in error, and which he claimed tended to show fraud on the part of the vendee. We do not think there is any just ground of complaint in this respect, as it appears to us that the instructions given fairly cover the issues and evidence of the case. In one of the instructions which the court gave the theory upon which the plaintiff in error tried his case, and the circumstances upon which he relied to establish that the vendee knew, or had reason to know, of the fraud, were stated; and the jury were then informed that if they found that such was the case, the sale would be void, and that the plaintiff could not recover, although he may have paid the full value of the goods. A further objection is made to the direction given by the court, "that fraud is never presumed, but must be established by evidence." Of the correctness of this proposition, or of its application to the case, there should be no question; but counsel seem to argue that the burden of proof was upon the plaintiff to show that he did not participate in the fraud now conceded to have been intended by the Howard Bros. Fraud is not so lightly imputed. While certain circumstances will give rise to an inference of fraud, yet the law never presumes it. It devolves on him who alleges fraud to show the same by satisfactory proof. And the burden rested upon the creditors of Howard Bros. who assailed the good faith of Penn in this transaction to show, by either direct or circumstantial evidence, that the transaction was fraudulent as to Penn. As the trial court stated, "the law presumes, in the absence of evidence to the contrary, that the business transactions of every man are done in good faith and for an honest purpose; and any one who alleges that such acts are done in bad faith, or for a dishonest and fraudulent purpose, takes upon himself the business of showing the same."

It is further contended that the motion for a new trial should have been granted on the ground of newly-discovered evidence. The new testimony is cumulative in character; besides, we think it is not sufficiently material to have justified the granting of a new trial. It related to the question of Penn's good faith in the transaction about which so much testimony was offered. Two witnesses, one of whom testified in the trial of the cause, state that, in conversations which they had with Penn at the time the negotiations were pending between him and the Howards, Penn was informed that the Howards were indebted. The new testimony, which, it is said, will be given by the one who was a witness upon the trial, is a part of a conversation which he there testified to, and is in substance the same as the testimony which he then gave. The only material effect of his testimony, as well as that of the other witness, is to contradict the testimony given

by Penn upon the trial; and, looking at the whole evidence of the case, we cannot think that the new testimony would be likely to change the result already arrived at.

It is finally contended that some remarks, made by counsel for plaintiff when closing the argument to the jury, reflected upon the conduct of the opposite counsel, and must have influenced the jury against the defendant. It was the duty of the counsel to have called the attention of the court to the objectionable remarks at the time they were made, rather than after the trial. But, in the abstract of these remarks which we find in the record, it does not appear that any wrong was intended to be charged against counsel for defendant. The reference, it seems, was to the witness Howard, whose conduct, as depicted in the testimony, justified severe criticism and condemnation. We find no error in the record, and therefore affirm the judgment of the district court.

(All the justices concurring.)

(33 Kan. 485)

CITY OF EMPORIA v. SCHMIDLING.

Filed May 8, 1885.

1. MUNICIPAL CORPORATION-SIDEWALK OUT OF REPAIR-Negligence OF PARTY INJURED.

The fact that a person uses a street or sidewalk after he has notice that it is out of repair is not necessarily negligence. Persons are not to be entirely debarred from the use of a street because it may be defective or somewhat dangerous, but where danger exists, and it is known, ordinary prudence would require of those using such street greater vigilance and care and caution, corresponding with the danger, to avoid injury.

2. SAME-RENEWING WALK-EVIDENCE.

In an action brought against a city to recover for personal injuries alleged to have resulted from a defective sidewalk, the fact that the walk in question was removed by the city authorities, and another and a better one substituted therefor soon after the injury occurred, may be considered as a circumstance tending to show that the walk removed was out of repair, but it is no evidence that the city authorities had knowledge of the defect before the occurrence of the injury.

3. SAME-DUTY OF INCORPORATED CITIES.

Incorporated cities are required to construct and maintain their streets and sidewalks in a reasonably safe and suitable condition for their intended use, and for the travel that usually passes over them; they are not held to put and keep them in an intrinsically perfect condition, nor are they answerable for injuries resulting from defects that reasonable care and diligence on the part of the city authorities could not have discovered and remedied.

4. PRACTICE-APPEAL-IMMATERIAL ERROR.

An error which works no injury or prejudice to the party complaining does not justify a reversal of the judgment.

Error from Lyon county.

J. Harvey Frith, Buck & Feighan, and I. E. Lambert, for plaintiff in error.

Peyton, Sanders & Peyton, for defendant in error.

JOHNSTON, J. Maria L. Schmidling brought an action in the district court of Lyon county against the city of Emporia, to recover for