the value thereof in case the property cannot be had, is not necessary. A money judgment in such case is sufficient."" § 1271. Bastardy A bastardy proceeding is a special proceeding in the nature of a civil action, and the court has no authority to impose imprisonment as part of the original judgment in such cases, in order to compel the judgment debtor to secure the payment of the judgment by executing a bond, in the absence of a statute conferring such authority."1 § 1272. In general DIVISION III.-EQUITY Equity, looking beyond the mere form to the substance, can decree such relief as appears just and best calculated to protect the rights of the parties.92 90 Ranney-Alton Mercantile Co. v. Hanes, 60 P. 284, 9 Okl. 471. 31 Ex parte Comstock, 61 P. 921, 10 Okl. 299. 92 Foster v. Hoff, 131 P. 531, 37 Okl. 144, Ann. Cas. 1916B, 218. Where buildings were erected on land obtained by fraud of the purchaser, it was error, on canceling the deed in favor of the vendor, to give personal judgment against him for the amounts of mechanics' liens established against the premises, the property alone being liable. West v. Badger Lumber Co., 43 P. 239, 56 Kan. 287. Where a grantor has a mind so weak that she has no intelligent conception of the quality or quantity of land she is about to convey, cannot count money, does not know whether $10 is more than $100, and where the consideration was grossly inadequate, and a reconveyance cannot be granted, equity will grant plaintiff judgment for the value of the land less the amount actually received. Paulter v. Manuel, 108 P. 749, 25 Okl. 59. A decree, in a suit to cancel a deed and have title decreed in plaintiff, construed, and held to be a denial of relief to plaintiff, where, though not specifically denying such relief, it confirmed defendant's title and quieted it as against plaintiff's claims. Grant v. Creed, 54 Okl. 222, 153 P. 1110. Where grantee in deed fulfilled agreement to support grantor during the grantee's life, but his widow refused to remain with grantor, judgment refusing cancellation, but making care of grantor a charge on the land, is proper. Simmons v. Shafer, 160 P. 199, 98 Kan. 725. Where a bank intentionally returns a valuation of its property at 75 per cent. of its true value, in violation of Williams' Const. § 273, and by connivance with the county board of equalization secures a valuation of all property at 75 per cent. of its true value, which valuation the State Board of Equalization corrects as to the bank's property, equity will not, in a suit to enjoin collection of taxes, relieve the bank from its predicament, though other taxpayers may have profited by the transaction. Chickasha Nat. Bank v. Cloud, 139 P. 1134, 40 Okl. 623. In granting equitable relief under a contract, the court should go only Where directors of an insolvent corporation sold all of its property and paid debts alleged to be due themselves, but paid nothing to plaintiff, equity had jurisdiction of an action to charge such directors as trustees.93 As a general rule, courts of equity may give relief against public nuisances by compelling an abatement, or by restraining the continuance of an existing nuisance, or by enjoining the commission or establishment of a contemplated nuisance.** The vendor is not entitled to a personal judgment, against a subpurchaser taking with notice, for the unpaid price, but is entitled to a judgment in rem against the land remaining in such subpurchaser's possession.95 The relief granted in equity is such as the nature of the case, the law and the facts, demand, not at the beginning, but at the time the decree is entered." 96 The judgment in a case wherein the verdict is advisory only is not void because rendered after filing of a motion for new trial by the party for whom judgment is rendered and before passing on the motion."7 It is error to render judgment on the report of a referee after having set it aside.98 In an equitable suit the court may attach to the grant of relief any reasonable conditions that to it seem proper." Hence a de so far as is just and equitable. Work v. Fidelity Oil, Gas & Mineral Co., 98 P. 801, 79 Kan. 118. 93 Union Coal Co. v. Wooley, 54 Okl. 391, 154 P. 62. 94 Town of Rush Springs v. Bentley, 75 Okl. 119, 182 P. 664. 95 Kee v. Satterfield, 46 Okl, 660, 149 P. 243. 96 Superior Oil & Gas Co. v. Mehlin, 108 P. 545, 25 Okl. 809, 138 Am. St. Rep. 942. 97 Parker v. Hamilton, 49 Okl. 693, 154 P. 65. 98 Burchett v. Hamil, 47 P. 1053, 5 Okl. 300. 99 Henderson v. Arkansas (Okl.) 176 P. 751. Where a decree is entered in favor of a defendant for the cancellation of promissory notes in the possession of the plaintiff, the court as a means to secure compliance with the decree may properly render a judgment against the plaintiff for the amount of the notes canceled, providing therein that the judgment shall be satisfied upon delivery of the notes to the clerk of the court for cancellation within a time specified. Minneapolis Threshing Mach. Co. v. Currey, 89 P. 688, 75 Kan. 365. A judgment against a corporation, which orders the defendant to issue certificates of stock to the plaintiff, and place them in the hands of the HON.PL.& PRAC.-78 (1233) cree canceling a conveyance obtained by fraud of the grantee should provide for restoration by the grantor of the consideration received.1 § 1273. Specific performance In a petition for specific performance of a contract to convey land, a cause of action for damages arising out of the same transaction may be united, and, if evidence justifies a decree of specific performance in part only, the court may apportion the price and damages in accordance with the evidence; but, if no decree for specific performance can be had, judgment may be rendered for any proper damages.2 Where, in an action to enforce specific performance, the consideration has been fully paid, and defendant cannot specifically perform, the court may award plaintiff damages measured by the value of the land when it should have been conveyed, with interest thereon.3 Where the petition alleged all the facts in relation to the contract, and prayed for specific performance and for the amount named as a penalty for failure to convey, plaintiff at the close of the testimony clerk of the court within a certain time after it shall be served with a copy of the order, and which finds the value of the stock to be a certain sum, and further directs that in default of the defendant's compliance with the order for the issuance and delivery of the certificates the plaintiff have judgment for the value of the stock, is conditional in form and effect, and as to the money award contained in it should be vacated and entered only upon proof of the defendant's noncompliance with the main order. Consolidated Mining & Prospecting Co. v. Huff, 63 P. 442, 62 Kan. 405. Where the court has determined that defendant, who purchased land under foreclosure proceedings which were void because service was had by publication on the mortgagor, who was dead at the time, has acquired a complete title by his adverse possession, no error is committed by its refusal to require defendant to redeem the land as an equitable assignee of the original mortgage. Goodman v. Nichols, 23 P. 957, 44 Kan. 22. 1 Schribar v. Maxwell, 144 P. 191, 93 Kan. 211, modifying judgment on rehearing 140 P. 865. 92 Kan. 306. 2 Huey v. Starr, 101 P. 1075, 79 Kan. 781, rehearing denied 104 P. 1135, 79 Kan. 781. The Code has abrogated the rule that a judgment for damages for breach of contract will not be awarded where specific performance is impossible, unless the court determines that such judgment would be just and equitable. Stramel v. Hawes, 154 P. 232, 97 Kan. 120. 3 Ball v. White, 50 Okl. 429, 150 P. 901. could waive claim for damages. And, where one holding under a contract has in good faith made lasting improvements, the court may, in awarding damages, decree it a lien upon the premises." The court, exercising its equitable powers, may prescribe in its decree such conditions as will do equity between the parties." Berry v. Second Baptist Church of Stillwater, 130 P. 585, 37 Okl. 117. Superior Oil & Gas Co. v. Mehlin, 108 P. 545, 25 Okl. 809, 138 Am. St. Rep. 942. In action for specific performance of real estate contract and for return of $450 paid thereon by plaintiff, where there was evidence of a change precluding specific performance and of a waiver, and where result was that defendants had a partially completed house into which plaintiff's money had gone, a judgment, refusing specific performance and giving plaintiffs a lien upon property for $450, was not materially erroneous. Thomas v. Neloms, 104 Kan. 366, 179 P. 307. In suit to compel conveyance of part of lot purchased by plaintiff after part payment of contract price and for damages, depending upon construction of uncertain and ambiguous provision entitling plaintiff to plat lot and to conveyance of any platted lots on payment of proportionate part, held, on facts and circumstances, that judgment offsetting damages by interest and ordering a conveyance and holding plaintiff liable on balance of contract and foreclosing contract as an equitable mortgage was not inequitable. Baskin V. Strang Land Co., 104 Kan. 320, 179 P. 356. Skidmore v. Leavitt (Okl.) 175 P. 503. In an action brought by a railroad company to enforce specific performance of a right of way contract, signed by the husband alone, where it appears that a part of the land embraced in the contract is the homestead of the owner, but the pleadings, findings, and evidence fail to show what particular part of the land is occupied as a homestead, it is error in the trial court to decree specific performance as to the whole of the tract. Conboy v. Kansas City & S. W. Ry. Co., 22 P. 719, 42 Kan. 658. Beneficiary certificate providing for payment of $100 for erection of monument for member does not entitle beneficiary to personal judgment for $100 in default of erection of monument. Sovereign Camp of Woodmen of the World v. Jackson, 57 Okl. 318, 157 P. 92, L. R. A. 1916F, 166. Plaintiff was employed to prosecute to judgment a suit by a husband and wife to recover a homestead, the conveyance of which to defendant the wife signed while insane, under a recorded contract, whereby he was to receive one-half the land recovered. Held, that on recovering judgment he was not entitled to a conveyance without repayment to defendant of onehalf the money paid by it for the land, and that defendant was entitled to improvements placed on the land by it while in possession under its deed. Topeka Water Supply Co. v. Root, 42 P. 715, 56 Kan. 187. In an action for specific performance of a contract requiring the purchaser of land to execute a mortgage to secure the price, but silent as to its terms, the court may provide in the decree that the mortgage shall contain the usual terms and conditions. Harrell v. Neef, 102 P. 838, 80 Kan. 348. Under Civil Code, § 398, a judgment ordering the vendor to make a deed will be construed to order a warranty deed where the contract provides for By a decree of specific performance, all doubt as to the marketability of title of infants to real estate reserved to them by decree in divorce and sold at guardian's sale with the approval of the probate court will be removed." § 1274. Foreclosure 8 A judgment in foreclosure should provide for the sale of the mortgaged property, and for execution for any balance due after sale; but, where the mortgage was made by husband and wife to secure the husband's indebtedness, foreclosure may be decreed against both, without personal judgment against the wife, though the consideration moved to her." Where the plaintiff's evidence fails to establish any direct liability of the grantee of the mortgagor, but the evidence of grantor's filing a cross-petition shows the grantee's assumption of the mortgage, the court may render a personal judgment for the grantor that kind of a conveyance. Paris v. Golden, 153 P. 528, 96 Kan. 668, rehearing denied 154 P. 1123, 97 Kan. 174. Where the purchaser sues for specific performance of a land sale contract, and alleges his willingness to accept a warranty deed conveying such title as the vendor had when action was brought, such allegation is not an offer to take the property subject to an existing mortgage. Id. In suit against corporation for specific performance of its option contract for delivery of oil at price fixed in president's unauthorized and repudiated contract with another company, temporary injunction against sale of oil was reversible error. Quaker Oil & Gas Co. v. Jane Oil & Gas Co., 63 Okl. 234, 164 P. 671. 7 Guy v. Hansow, 122 P. 879, 86 Kan. 933. 8 Zweigart v. Strahan (Okl.) 175 P. 213. In Nebraska, where personal service has been had on defendants, and the court has jurisdiction, and the proceeds of the foreclosure sale are insufficient to satisfy the debt, the court has authority, on the incoming of the order of sale, to render a judgment for the deficiency. Blumle v. Kramer, 79 P. 215, 14 Okl. 366; Id., 79 P. 1134, 14 Okl. 373. Where a statute of a sister state providing for entry of deficiency judgment is repealed, but with a saving clause providing that the repeal shall not affect any action then pending, nor causes of action not in suit accruing prior to the repeal, any action pending or cause which has accrued is not affected. Id. In an action in Nebraska to foreclose a mortgage, the findings of the court as to the amount due are not a judgment in personam, but are sufficient as a basis on which to obtain a deficiency judgment. Id. Where proceeds of a sale of property are insufficient to satisfy the debt, on motion for deficiency judgment, no service of notice of such motion is required, other than the original service of summons. Id. Kerr v. McKinney (Okl.) 170 P. 685. |