as he believed that such was the consideration, he evidently told her that such was the consideration. She refused to sign the instrument. He further told her that there was still $100 to be paid on the contract, leaving it to be inferred, if he did not tell her so in express terms, that the claim of the plaintiff against Logan was $250. He also referred to the mortgage held by the plaintiff on the property, of which mortgage she, of course, had knowledge, although it is not probable that she knew what the exact amount of the mortgage was. In all probability he inadvertently led her to believe that the claim of the plaintiff against the land was $250, when in fact it was only $192.31, principal and interest; and the court below found from the evidence that all this occurred. It is even doubtful whether all of the $192.31 was due, in equity. They also had conversation concerning the troubles existing between Logan and his wife, and, after a great deal of conversation, Mrs. Logan finally consented to sign the instrument upon the consideration that the $100 still due should be paid to her and not to Logan. She at that time knew nothing about the transactions that had previously taken place between the plaintiff and Logan, or about the instrument which she executed, except what was told to her by Adams, and the only way in which she executed the instrument was by touching the pen that made the mark which represented her signature. If the real consideration for the contract was $350, then the plaintiff would still be owing the defendants on the contract $127.69; but he has never admitted that he owes more than $100, and has never tendered more than that amount, and the record does not show that he has even kept that tender good. Therefore when Mrs. Logan executed the instrument she was laboring under at least two misapprehensions: first, she believed the claim existing against the land was about $57.69 more than it actually was; and that the consideration for the sale of the land was $27.69 more than the plaintiff admits it to be; and these misapprehensions were induced and brought about by Adams, who was evidently acting as the plaintiff's agent. Under the circumstances of this case, we do not think that the defendants ought to be compelled to specifically perform their supposed contract. The contract, under the circumstances, did not embody such a joint consent of the husband and wife as would, under the homestead laws and in equity, make the contract binding. Assuming that Logan himself had knowledge of all the circumstances that led to the execution of the contract, and knew precisely what the consideration was, still Mrs. Logan did not have any such knowledge, and she signed and executed the contract under misapprehensions brought about by the plaintiff's agent. Now, taking the nature and character of the contract; the inadequacy of the consideration for the property in controversy; the fact that the contract was signed at different times, and without any consultation between the parties signing the same; and the fact that Mrs. Logan signed the same under mis apprehensions as to the amount of the consideration, and the amount of the mortgage lien, and misapprehensions induced by the agent of the plaintiff, we do not think that there is sufficient equity in the plaintiff's claim to authorize the specific enforcement thereof. "Upon breach of a contract for the sale of real estate it is not a matter of course for the court to enter a decree of specific performance. That will be done only when, upon all the facts, it is equitable it should be done. He who asks specific performance should show the facts which make such a decree equitable, and a failure to do so justifies a refusal of the decree." Fowler v. Marshall, 29 Kan. 665, syllabus, pars. 1, 2. "While, in legal contemplation, two persons may make a contract that would be enforced at law, yet if it should seem probable, from the facts of the case, that the parties did not in fact and in equity agree to the same thing, the supposed contract would not be decreed in equity to be enforced specifically." Burkhalter v. Jones, 32 Kan. 5, syllabus, par. 1; S. C. 3 Pac. Rep. 559. In the Kansas Report the word "specifically" is erroneously changed to "especially;" in the Pacific Reporter it is printed correctly. We have discussed the questions involved in this case as though Mrs. Logan only was misled into signing the contract through misapprehensions. We think, however, that the same result would follow, possibly not for stronger reasons, but for slightly different reasons, if both Logan and Mrs. Logan were so misled. A contract will be specifically enforced only where its specific enforcement is equitable, and, generally, only where the plaintiff has, in equity and good conscience, a right to demand its specific enforcement; and, generally, where a contract is itself inequitable, and where the defendant has been misled by the plaintiff or his agent into executing it, the contract will not be specifically enforced. The plaintiff did not ask to have his mortgage foreclosed in this case, and therefore there was no error in the failure of the court below to order or adjudge its foreclosure. The plaintiff may still enforce his mortgage in another suit, if he chooses. This, we think, disposes of all the substantial questions involved in this case. The judgment of the court below will be affirmed. (All the justices concurring.) (35 Kan. 201) ANDERSON V. HIGGINS. Filed April 9, 1886. ERROR-ORDERS IN PENDING SUIT. The denial of a motion by the district court to dismiss an appeal from a justice of the peace, as well as the appointment of a receiver by the district court, are orders which are not reviewable in the supreme court while the action in which they were made is pending in and undisposed of in the district court. Error from Shawnee county. J. P. Greer and J. J. Hitt, for plaintiff in error. JOHNSTON, J. Hiram Higgins sued M. M. Anderson before a justice of the peace to recover $300 alleged to be due as rent for the use of a tract of land. He also caused the issuance of an attachment which was levied upon a crop grown upon the land. A trial was had, which resulted in favor of the defendant. In due time the plaintiff filed an appeal-bond, which recited that the plaintiff intended to appeal from the order of the justice discharging the attachment, as well as from the judgment in favor of the defendant. The cause was transmitted to and docketed in the district court, and the defendant there moved to dismiss that part of the appeal which purports to appeal from the order of the justice discharging the attachment, and ordering the attached property to be restored to the defendant. This motion was overruled, and the court, upon application of the plaintiff, appointed a receiver to take possession of and preserve the attached property during the pendency of the suit. The defendant, as plaintiff in error, brings the case here, and seeks a reversal of these orders. of the district court. The refusal of the court to dismiss the appeal from the justice of the peace is not a final order, nor is it one which can be reviewed in this court until the case in which the ruling is made is finally disposed of in the district court. Edinfield v. Barnhart, 5 Kan. 225; Brown v. Kimble, Id. 80; Dolbee v. Hoover, 8 Kan. 124; Potter v. Payne, 31 Kan. 218; S. C. 1 Pac. Rep. 617; Kansas Rolling-mill Co. v. Bovard, 34 Kan.; S. C. 7 Pac. Rep. 622. Neither have we jurisdiction to review the other ruling of the district court which is complained of. The order appointing a receiver is not one which can be brought up to this court and reviewed in advance of the cause in which the order is made. Hottenstein v. Conrad, 5 Kan. 249; Kansas Rolling-mill Co. v. Atchison, T. & S. F. R. Co., 31 Kan. 90; S. C. 1 Pac. Rep. 274. The motion of the defendant in error, that this proceeding be dis missed from this court, must therefore be allowed. (All the justices concurring.) (35 Kan. 77) NEWKIRK V. MARSHALL and another. 1. PUBLIC LAND-HOMESTEAD-DEVISE TO DAUGHTER. Where a husband, with his wife and daughter, settles upon and occupies a quarter section of government land under the homestead laws of the United States, and makes the proper entry for that purpose, and while so occupying the same, and just before his death, and about five years after such settlemert, he executes a will, giving his personal property to his wife, and giving the west half of the quarter section to his wife, and the east half to his daughter, and also in his will appoints his wife as executrix of his last will and testament, and guardian for his daughter, who is a minor, and soon thereafter dies, and immediately after his death his wife has his will probated, and is appointed executrix under it, and receives the personal property under the will, and orally gives the east half of the real estate to the daughter, and promises to make a deed therefor, and she also makes final proof with regard to the homestead settlement, occupancy, etc., and the patent is afterwards issued to her; and while these things are transpiring, the daughter marries, and she and her husband, in pursuance of the parol agreements and understandings with the widow, who is the step-mother of the daughter, that the daughter shall have the east half of said land, take possession of such east half, make valuable improvements thereon, and occupy the same as their homestead for about two years, when the husband dies; and afterwards the daughter goes to Kentucky, where she remains for about 10 years, and while there the land is in charge of the step-mother, but the step-mother at all times recognizes the daughter's ownership thereof, and while there both the daughter and the step-mother are again married, and the daughter, with her husband, returns to the land; and the step-mother, still recognizing the daughter's ownership thereof, and still promising to make a deed to the daughter therefor, the daughter and her husband take possession of the land, and make further improvements thereon, and the parties then quarrel, and the stepmother then forbids their going upon the land, but they do go upon the land, and occupy the same as their homestead; and there is no evidence as to whether the step-mother's husband ever expressed any consent or not that the land should belong to or be occupied by the daughter and her husband; and afterwards the step-mother commences this action in the nature of ejectment to recover the property from the daughter and her husband: held, that the action cannot be maintained. 2. SAME-VESTED RIGHT IN HOMESTEAD, HOW ACQUIRED. Under the United States homestead laws, and by a compliance therewith, a vested right is obtained in the homestead at the expiration of five years from the entry thereof. 3. SAME-CONTRACT BEFORE ISSUE OF PATENT. When proper proof of settlement. occupancy, etc., is made in such a case, the person to whom the patent should be issued is entitled to the patent immediately, and may then contract with reference to the land, the same as though the patent had already and in fact been issued. 4. SAME-POSSESSION AND IMPROVEMENTS. In this case, the taking of the possession of the land by the daughter and her first husband under the parol agreements between them and the stepmother, and the making of lasting and valuable improvements thereon, took the case out of the statute of frauds, and also supplied a sufficient consideration for the property; and the acts of the parties since that time have enhanced and made stronger the daughter's equities in and to the land. 5. SAME RIGHT OF DEVISEE. Under the facts of this case, the daughter is in equity entitled to the land. Error from Chase county. Madden Bros. and F. P. Cochran, for plaintiff in error. Kellogg & Sedgwick, for defendants in error. VALENTINE, J. This was an action in the nature of ejectment brought by Mary A. Newkirk against John W. Marshall and Mary of E. Marshall, in the district court of Chase county, Kansas, for the recovery of certain land situated in that county. The case was tried before the court and a jury, and the jury rendered a general verdict in favor of the defendants and against the plaintiff, and also made special findings of fact, and upon this general verdict and these special findings the court below rendered judgment in favor of the defendants and against the plaintiff, and the plaintiff, as plaintiff in error, now brings the case to this court for review. The facts of the case appear to be substantially as follows: In the year 1861 the N. W. section 8, in township 22, of range 8 E., in Chase county, Kansas, was government land. Some time during that year Augustus M. Landsbury, with his wife, Mary A. Landsbury, and his daughter, Mary E. Landsbury, who was then a girl of about 9 or 10 years of age, settled upon and occupied this quarter section of land as their homestead. Landsbury also made an entry for the land under the homestead laws of the United States, but just when he made it is not shown. On November 27, 1866, Landsbury executed a will, giving to his wife, Mary A. Landsbury, all his personal property and the west half of said land, and to his daughter, Mary E. Landsbury, the other half of the land, and appointed his wife executrix of his last will and testament, and guardian for his said minor daughter. Soon afterwards, and some time in the year 1866, Landsbury died. On January 7, 1867, Mrs. Landsbury caused the will to be probated in the probate court of Chase county, and she was also appointed executrix under the will; and there was also evidence tending to show that she was appointed guardian for her step-daughter, the said Mary E. Landsbury. At the July term of the probate court of Chase county, Mrs. Landsbury made a report, showing that she had paid the debts of the estate, and had a balance remaining in her hands belonging to the estate of $718, and further showing as follows: "Said balance is in the hands of said Mary Ann Landsbury, as the lawful owner by law of said property, except the one-half of homestead she now lives on, which belongs to Mary Eliza Landsbury, the daughter of deceased." Some time after Landsbury's death, but just when is not shown, Mrs. Landsbury, as his widow, made final proof, under the United States homestead laws, of the settlement and occupancy of the aforesaid land, and also of Landsbury's death, and that she was his widow. Mary E. Landsbury continued to reside with Mrs. Landsbury on the east half of said land, and during all that time it was understood and agreed between them that Mary E. Landsbury owned the west half thereof, and that Mrs. Landsbury should at some time execute a deed to her for the same. Some time in the year 1869 or 1870 Mary E. Landsbury was married to William Wagoner. On May 2, 1870, the patent for the entire quarter section was issued by the United States, conveying the title to Mrs. Landsbury. At that time, all the improvements were on the east half thereof. Some time after the marriage of Mary E. Landsbury to William Wagoner they, |