terial error in any respect; and we think the defendants had a fair trial. A trial court is not bound to exclude evidence because it appears to be incompetent, where no objection is made by any of the parties; nor do we think that a trial court is bound to order that certain evidence shall be introduced, where no party is seeking to introduce the same. The defendants' present counsel, however, seem to think that the defendants were the especial wards of the court, and that the court was bound to know what was best for the protec tion of their rights and interests, and was bound to protect the same to the same extent that counsel ordinarily do. This is a mistake. The court sits merely as arbiter between contending parties. Of course the court ought never to sentence a convicted person criminally unless the court believes him to be guilty, nor should the prosecutor ever ask the court to do so unless the prosecutor also believes him to be guilty. We presume, however, in this case that both the court and the prosecutor believed at the time when the defendants were sentenced that they were guilty; and in all probability they were. At most we cannot say that they were not or are not guilty. We think we have sufficiently disposed of all the grounds for a reversal of the judgment of the court below down to the sixth.

As to the sixth ground for a reversal we would say that we think there was ample evidence to support the conviction of the defendants. The accomplice's testimony, if true, was enough, and it was corroborated in several particulars by the other evidence, and the instructions of the court below were correct and amply sufficient upon this subject.

It is claimed that the hearing of the defendants' first motion for a new trial was in the absence of the defendants; but there is no showing of this kind in the record, and hence it is unnecessary for us to express any opinion as to whether such a thing would be correct practice or not.

It is further claimed by the defendants that a new trial ought to have been granted on the ground of newly-discovered evidence. Now, it does not sufficiently appear that the evidence supposed to be newly-discovered evidence was really newly discovered; but if it was, still it does not appear that such evidence could not have been procured and introduced on the trial by the exercise of reasonable diligence. The offense for the commission of which the defendants. were, prosecuted was committed on the night of July 5, 1885. The defendants were arrested for such offense on September 1, 1885, One of the counsel for the defendants was appointed for them on September 7, 1885. When the other was appointed or employed is not shown. The trial was commenced and completed on September 14, 1885; and the defendants' first motion for a new trial, and all their affidavits relating to newly-discovered evidence and for a new trial, were filed on September 15, 1885; and all these affidavits were from persons whose testimony could have been procured and introduced on

the trial; and out of the nine persons whose affidavits were filed, four of them did in fact testify on the trial and in behalf of the defendants. In all probability these affiants were all present at the trial, except one, who was in jail, and his testimony could have been had if the defendants had desired the same. Other objections might be mentioned to the supposed newly-discovered evidence, but we do not think that it is necessary.

The judgment of the court below will be affirmed. (All the justices concurring.)

(35 Kan. 46)

MESKIMEN and others v. DAY.

Filed March 5, 1886.

1. DEED-EXECUTION-ACKNOWLEDGMENT-NOTARIAL SEAL.

Where a notary public takes the acknowledgment of a deed in this state, he should authenticate the same with his notarial seal.

2. SAME-RECORD-STATUTORY REQUIREMENTS AS TO WITNESSES AND ACKNOWL

EDGMENT.

Before a deed acknowledged in this state is entitled to be recorded, it must be proved or acknowledged and certified as prescribed by the statute.

3. SAME-DEED WANTING NOTARIAL SEAL EVIDENCE.

The record of a deed filed in the office of a register of deeds, May 21, 1883, acknowledged before a notary public in this state, but not authenticated with his notarial seal, cannot be received in evidence under the provisions of section 12, c. 87, Sess. Laws 1870; section 387a. Code, (Comp. Laws 1879.)

4. EJECTMENT-COST-RECOVERY OF PART OF LAND.

In an action for the recovery of 26 acres of real property, in which judgment is rendered in favor of the plaintiff for two acres thereof, the plaintiff is entitled to recover all his costs.

Error from Pottawatomie county.

Oliver Meskimen and Mary Meskimen brought their action against Moses Day, and alleged in their petition as follows:

"That the said plaintiffs have a legal estate in and are entitled to the possession of the following real estate situate in the county of Pottawatomie, state of Kansas, and described as follows, to-wit: The north-east quarter of the south-east quarter of section thirty-three, (33,) in township seven, (7,) of range eleven (11) east, containing forty acres of land; and that the defendant unlawfully keeps said plaintiffs out of the possession of the same. Wherefore the plaintiffs pray judgment against the defendant for the possession of said premises, and for such other and further relief as they may be entitled to."

The defendant filed his answer, alleging:

"Now comes the said defendant, and for answer to the petition of the plaintiffs says that the said plaintiffs have not, and had not at the commencement of this action, any legal or equitable estate in, nor are or were they or either of them entitled to the possession of, the following bounded and described part of the real estate described in the petition, in manner and form as therein set forth, to-wit: Beginning at the north-east corner of the southeast quarter of section thirty-three, (33,) in township seven (7) south, of range eleven (11) east, and running thence west ten (10) rods; thence south thirty-two (32) rods; thence west seventy (70) rods; thence south forty-eight (48) rods; thence east eighty rods; and thence north eighty rods,

to the place of beginning,-containing twenty-six acres of land, more or less, all in Pottawatomie county, state of Kansas; that the said defendant is and was the legal and equitable owner in fee-simple of all the real estate above described, and in the possession and entitled to the possession thereof; and that he disclaims all right, title, and interest in or to the residue of the real estate described in the petition, and did not and does not keep the plaintiffs out of the possession of the same."

acres.

Trial had at the April term for 1884. Judgment for plaintiffs for two acres of the land, and that the defendant is entitled to twenty-four The court ordered that each party pay the costs by him or them made, respectively. The plaintiffs excepted, and bring the case here. John T. Morton and Case & Curtis, for plaintiff in error. D. V. Sprague, for defendant in error.

HORTON, C. J. This was an action in the nature of ejectment, brought by Oliver and Mary Meskimen against Moses Day, to recover 40 acres of land. The defendant answered, claiming to be the legal owner of 26 of the 40 acres, and disclaiming all title or interest to the residue. Trial to the court without a jury. The court rendered judgment that the plaintiffs recover two acres of the land in controversy, and decided that the other twenty-four acres belonged to the defendant. Each party was adjudged to pay its own costs. Upon the trial the plaintiffs proved to the court that a deed, alleged to have been executed by one Wab-se-qua, a Pottawatomie Indian woman, on September 22, 1877, to Mary Meskimen, one of the plaintiffs, and delivered to Oliver Meskimen, the husband of Mary Meskimen, was, after the same had been filed for record in the office of the register of deeds of Pottawatomie county, lost, and that it was not then in the possession or under the control of either of the plaintiffs, and could not be found, although diligent search had been made therefor. Thereupon the plaintiffs offered in evidence the record of said deed. from the office of the register of deeds of said county. The deed purported to have been acknowledged before one F. W. Kroenke, as notary public, but the certificate of acknowledgment was not authenticated with his official seal, or with any seal. The defendant objected to the record being read in evidence on account of the omission of the seal, and the objection was sustained. This ruling is complained of.

Section 5, c. 71, Comp. Laws 1879, reads: "Every notary shall provide a notarial seal, containing his name and place of residence, and he shall authenticate all his official acts, attestations, and instruments therewith." Section 15 of said chapter 22 reads: "The certificate of proof or acknowledgment as aforesaid may be given under seal, or otherwise, according to the mode by which the courts or officers granting the same usually authenticate their official acts." Chapter 22, Comp. Laws 1879, regulating the conveyances of real estate, provides that such conveyances may be acknowledged before a notary public; and section 19 of that act reads: "Every instrument in writing that conveys any real estate, or whereby any real estate may be affected, proved or acknowledged, and certified in the

manner hereinbefore prescribed, may be recorded in the office of the register of deeds of the county in which such real estate is situated." Section 387a of the Code (Comp. Laws 1879) provides that the books and records required by law to be kept by any register of deeds may be received in evidence in any court, and when any such record is of a paper or instrument authorized to be recorded, and the original thereof is not in the possession or under the control of the party desiring to use the same, such record shall have the same effect as the original. Section 12, c. 87, Sess. Laws 1870.

The question, therefore, arises whether the certificate of acknowledgment of the notary public was sufficient, under the statute, without attaching his notarial seal thereto. We think not. As the deed was not properly authenticated, it was not entitled to be recorded. As it was not entitled to be recorded, the record thereof was not competent evidence. The lost deed purported to have been executed September 22, 1877, but it was not filed for record until May 21, 1883; therefore section 28, c. 22, Comp. Laws 1879, does not apply, because that statue took effect October 31, 1868. Neither has section 27 of said chapter 22 any application; and the decision of Williams v. Hill, 16 Kan. 23, to which we are referred, has reference only to copies of deeds which have been properly recorded. Since the decision in Simpson v. Mundee, 3 Kan. 172, the statute regulating the conveyances of real estate has been materially changed. Section 13, c. 41, Comp. Laws 1862; section 19, c. 22, Comp. Laws 1879; Wickersham v. Chicago Zinc Co., 18 Kan. 481; Wilkins v. Moore, 20 Kan. 538. After the rejection of the record from the office of the register of deeds, the plaintiffs offered, and were allowed to prove, the contents of the lost deed. In this way the court became possessed of all its terms and conditions, and therefore we do not perceive that the ruling of the court rejecting the record of the deed was very material in the case.

The only remaining question is that of costs. These the court divided. In such cases, as this costs follow the judgment, and plaintiffs were entitled to recover all their costs. The ruling of the trial court in this respect was erroneous. Section 589 of the Code reads:

"Where it is not otherwise provided by this and other statutes, costs shall be allowed, of course, to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property." City of Emporia v. Whittlesey, 20 Kan. 17; Smith v. Woodleaf, 21 Kan. 717.

If the defendant had disclaimed as to all of the land in controversy, excepting the 24 acres adjudged to belong to him, of course he would have been entitled to recover costs. Section 590, Code.

The judgment below will be affirmed, excepting that the costs must be retaxed in accordance with the views herein expressed. (All the justices concurring.)

SUPREME COURT OF OREGON.

(13 Or, 214)

MAYS, Assignee, etc., v. FoSTER and others.

Filed February 8, 1886.

CORPORATION-TRANSFER OF STOCK BY STOCKHOLDER-CONSTRUCTION OF SUCH TRANSFER.

The transfer by a stockholder to an individual of the former's stock is not to be construed as a transfer for the benefit of the company, unless there are particular circumstances to stamp it as such.

F. P. Mays, for respondent.

R. Williams and J. K. Kelly, for appellants.

LORD, J. The complaint filed by the plaintiff alleges, in substance, the incorporation of the Rockville, etc., Trading Company; the copartnership of the defendants; the assignment by said corporation, on January, 1881, of all its property, including the claim sued on, to the plaintiff; the delivery by said corporation to the defendants of 21,127 pounds of wool to be sold on commission; the sale of said. wool for $4,615.46, prior to December 15, 1880, by defendants; that the commissions, etc., all proper charges of defendants against said wool, were $3,285.50; that the balance, $1,329.96, had never been. paid; and that said corporation had demanded said balance, but defendants refused and still refuse to pay the same. The answer of the defendants admits the incorporation of plaintiff's assignor, and the copartnership of defendants, but denies the assignment of said corporation to the plaintiff; denies that said corporation delivered to the defendants 21,127 pounds of wool, or any other or greater amount than 13,531 pounds; and alleges that they received 7,596 pounds of wool, being the balance from one T. S. Lang; sets up certain charges against the wool; and denies any indebtedness to the plaintiff. And as a separate defense, it is alleged that after the wool was received said Lang, who was indebted to the defendant John R. Foster in the sum of $1,271.93, agreed with the defendants that they might retain from the proceeds of said wool the amount of his indebtedness to said Foster, and that this agreement was known to the corporation; and further alleges that prior to the sale of said wool, and while it was in the defendants' possession, said Lang and his wife transferred their stock in said corporation to said corporation, in consideration of which said corporation agreed with said Lang to pay to the defendants out of the proceeds of said wool the amount of Lang's debt to the defendant Foster; that after the sale the defendants did pay to the defendant Foster, with the consent of said corporation, the said sum of $1,271.93, and only accounted to said corporation for the balance of the proceeds of said wool. The reply denied the new matter and the agreement set up in the answer. After the plaintiff had introv.10P.no.1-2