on here. If, after an adverse ruling on a demurrer to the petition, the defendant files an answer, he cannot be permitted to file a petition in error in this court to reverse the adverse ruling; he must await the result of the final trial. When a demurrer to the petition has been overruled, and the defendant answers, and the plaintiff then is permitted by the court to amend the petition, and to this amended petition the defendant answers, and after a trial is had on the amended pleadings the defendant brings the case here for review, this court will not consider the sufficiency of the original petition. Moore v. Wade, 8 Kan. 380; Briggs v. Tye, 16 Kan. 285; Rosa v. Railway Co., 18 Kan. 124; Gilchrist v. Schmidling, 12 Kan. 263. It is recommended that the petition in error be dismissed. BY THE COURT. It is so ordered; all the justices concurring. 137 Kan. 379) LEWIS and others c. LINSCOTT and others. (Supreme Court of Kansas. October 8, 1887.) 1. APPEAL-CASE MADE-AMENDMENT AFTER SIGNING. When a case made for this court has been signed and certified by the judge of the district court who tried the case, it has passed beyond his control, and cannot thereafter be amended, altered, or changed by any order he may make. 2. SAME-REVIEW OF EVIDENCE-MUST BE PRESERVED IN RECORD. In all cases where this court is asked to determine whether there is sufficient evidence to sustain a verdict or finding, and on all kindred questions, the record should show by an affirmative statement, or by such recitals as make it apparent, that all the evidence is preserved in the record. It is better that this should be done in the body of the record than in the certificate of the judge. 3. FRAUDULENT CONVEYANCE-BY DEBTOR TO CHILDREN-JUDGMENT Creditors. A conveyance made by the father to his children of all his available real and personal property, and the delivery by the father to a son-in-law of a large sum of money, on the sole consideration of a promise by his children to pay certain scheduled indebtedness of the father, designated in the schedule as his just debts, excluding therefrom the indebtedness of the father to certain judgment creditors of whose demands the children had knowledge at the time of the conveyance and delivery of the money, is fraudulent and void as to such judgment creditors. (Syllabus by Simpson, C.) Error from district court, Jackson county; R. CROZIER, Judge. The plaintiffs in error are N. D. Lewis, the father, and William O. Lewis, James B. Lewis, George A. Lewis, and Joseph W. Lewis, his sons, and Elizabeth R. Locke, his daughter, and A. M. Seaton, a partner in business with N. D. Lewis. On the twentieth day of March, 1884, the defendant in error S. K. Linscott recovered a judgment in the district court of Jackson county, against the firm of Lewis & Seaton, for the sum of $1,172.20 and costs; the judgment bearing interest at the rate of 12 per cent. per annum. The costs now amount to over $100. The action in which this judgment was rendered was founded on promissory notes of Lewis & Seaton given to Linscott in May, 1883. Execution was issued on this judgment on the thirty-first March, 1884, and on the first day of April it was levied on the following lands, alleged to be the property of N. D. Lewis in Jackson county, to-wit: N. E. 4, section No. 7; the N. E. 4, section No. 8; the S. E. 4, section No. 5; and the east of S. W. 4, section No. 5,-all in township No. 7 of range No. 16. On the twentieth day of July, 1883, N. D. Lewis and A. M. Seaton, under the firm name of Lewis & Seaton, made their promissory note to Bohart, Dillingham & Co., of Kansas City, for $1,000, payable in 30 days, with 10 per cent. interest per annum. This note was assigned to the defendant in error Linscott, probably for collection; and on the twentieth day of March, 1884, a judgment was rendered for the amount remaining due and unpaid on it, in the district court of Jackson, for $716.40 and costs, with interest at 10 per cent. per annum. Execution issued on this judgment on the first day of April, 1884, and was levied on the above-described lands, alleged to be the property Kan.] LEWIS v. LINSCOTT. of N. D. Lewis. These lands were appraised at an average price of $20.07 per acre. On the seventeenth day of January, A. D. 1884, N. D. Lewis called his children together, and his attorneys drew up, and they all signed, the fol"JANUARY 17, 1884. lowing memoranda: "N. D. Lewis, being in failing health, and in order to throw off the burden of business cares, makes the following disposition of his property, and provision for the payment of his just debts, viz.: "He owns the following lands in Jackson county. N. W. of sec. 8, township No. 7, range 16. Homestead. N. E. of sec. 8. "N. E. of sec. 7. "S. E. of sec. 5. E. of S. W. sec. 5. ( Town 7, range 16. 160 720 "He owns the following property in Colorado: S. W. sec. 19, town 6 south, of range 65 west; and S., N. E. 1, and N. 1, S. E., sec. 24, town 6 south, of range 66 west. "He owes in just debts as follows: The sum of $13,225. "This homestead in Jackson county, above described as the N. W. sec. 8, town 7, range 16, is estimated to be worth about $7,000. His homestead he will transfer absolutely to his five children by way of advancement, namely, as a gift, provided his wife will consent thereto. The valuation of the remaining The valuation of personal real estate in Jackson county, Kansas, is $11,725. property on said mentioned real estate is $1,500. $11,725 00 1,500 00 $13,225 00 "The debts of said Lewis are $13,225 00 "The design of N. D. Lewis is to make said last-described real estate pay off said just debts. "The said Colorado lands are incumbered by a mortgage of about $2,750. The value of said lands is about The value of the cattle on said ranch is about Actual estate in Colorado, $3,700 00 $2,450 00 "It is designed to deed and convey the above property in Colorado to Celia Lewis, wife of N. D. Lewis, in consideration of her joining in the conveyThe said Celia Lewis has refused to dispose ance aforesaid, if she will do so. of any Jackson county property unless she is indemnified with property elsewhere, and the transfer of said Colorado property to her is in justice given her in consideration of the extinguishment of her right elsewhere in the nature of dower, as well as to repay her for moneys and property heretofore advanced by her in the acquisition of the Jackson county property. "We have read over the minutes above made and here attest to their cor rectness by our hands this seventeenth day of January, 1884. Indorsed: "Memorandum of the transactions of N. D. Lewis with his wife and children." per cent. "A SCHEDULE OF THE DEBTS AND LIABILITIES OF N. D. LEWIS. One note and mortgage dated 18, bearing interest, favor of Francis A. White for One note and mortgage dated May 3, 1881, bearing 8 per cent. interest, favor of Mary A. Broddus for Interest, One note favor of J. H. Wilson, dated about the first of Jan- One note favor of Holton City Bank, dated January 16, 1885, One note given to Sid. Hayden about February 1, 1883-12 One note favor Valley Falls Bank, One account favor of Williams and Wenner, One account favor of G. F. King, One account favor John Knopf, One account favor Scott & Co., $ 3,000 00 1,500 00 80 00 1,200 00 500 00 1,320 00 500 00 1,500 00 135 00 130 00 10 00 50 00 500 00 2,800 00 Miscellaneous accounts, including attorney's fees and claims, $13,225 00 "We, the undersigned, children of N. D. Lewis, agree severally to assume the payment of the debts herein before scheduled, as follows: (1) The said William O. Lewis, one-fifth thereof; (2) the said James B. Lewis, one-fifth thereof; (3) the said George H. Lewis, one-fifth thereof; (4) the said Joseph W. Lewis, one-fifth thereof; (5) the said D. W. C. Locke, husband of Elizabeth R. Locke, formerly Elizabeth R. Lewis, a daughter of N. D. Lewis, onefifth thereof. The consideration for said assumption being the transfer to us of lands of said N. D. Lewis in Jackson county, Kansas, except the homestead or home-place of said N. D. Lewis, and the sale and transfer by said N. D. Lewis to the undersigned of all the chattels and personal property belonging to the said N. D. Lewis, and situated and located on the farm of said N. D. Lewis in Jackson county, Kansas, except the household property. "In witness whereof we have hereunto set our hands this eighteenth day of January, A. D. 1884. Indorsed: "Schedule of debts of N. D. Lewis, assumed by W. O. Lewis et al." "HOLTON, KANSAS, January 18, 1884. "For and in consideration of the sum of fifteen hundred dollars ($1,500) to me in hand now here paid, I hereby sell, assign, transfer, and set over unto William O. Lewis, James B. Lewis, George H. Lewis, Joseph W. Lewis, and D. W. C. Locke the following-described personal property, to-wit: Two yoke of oxen, four head of horses, one pony, one cow and calf, seven hundred bushels of corn in crib, three sets of double harness, one buggy, one two-horse wagon, all the saw-logs, wood, and lumber, and all other personal property, on the premises of the undersigned, in Jackson county, Kansas, excepting only household goods. N. D. LEWIS. "Witness: JAMES H. LOWELL. "Contract of sale of personal property from N. D. Lewis to W. O. Lewis et al." The following are the findings of the trial court, and the conclusions of law: "This day came the said plaintiff, S. K. Linscott, by his attorneys, Hayden & Hayden, and also came all the defendants, except A. M. Seaton, by their attorneys, Lowell & Walker and W. S. Hoaglin, Esq. The said A. M. Seaton, though duly and personally served with summons herein, still failing to answer or demur to the petition, though his answer thereto has long been due, and being solemnly called, comes not, but makes default, and a jury being duly waived, this cause is now submitted to the court for trial upon the pleadings and evidence, and, on hearing the proofs and allegations of parties, and arguments of counsel thereon, and being fully advised in the premises, the court finds as follows: "(1) That the defendant N. D. Lewis and A. M. Seaton were copartners, as alleged in the plaintiff's petition. "(2) That the defendants N. D. Lewis and A. M. Seaton, for value received, made, executed, and delivered to the plaintiff and to Bohart, Dillingham & Co. all of the promissory notes in the plaintiff's petition described, in the amounts, at the times, and payable as therein alleged, and that said note made to Bohart, Dillingham & Co. was by the payees thereof sold, transferred, and indorsed to said W. H. Bohart, as alleged in plaintiff's petition. "(3) That said judgments in favor of plaintiff, and in favor of said W. H. Bohart, were duly obtained on said promissory notes against said N. D. Lewis and A. M. Seaton, as alleged in plaintiff's petition. "(4) No part of said judgments, or either of them, has been paid. "(5) Executions were duly issued on said judgments, and for want of goods or chattels were each duly levied on the lands in the petition described, and proceedings were had thereon, and the executions returned, as stated in the petition. "(6) On the twentieth day of March, 1884, after the recovery of his said judgment against said N. D. Lewis and A. M. Seaton, the said W. H. Bohart, for the purpose of avoiding a multiplicity of suits, by an instrument in writing duly assigned his said judgment to the plaintiff S. K. Linscott, and thereby duly appointed him (the said S. K. Linscott) as his true and lawful attorney to ask, demand, and receive and sue out exécutions, and take all lawful ways for the recovery of the money due, or to become due, on said judgment, and to acknowledge satisfaction or discharge of the same, upon the understanding and agreement between said Bohart and the plaintiff that the second cause of action in plaintiff's petition alleged herein should be prosecuted by plaintiff in this action in behalf of said W. H. Bohart; the expenses and costs for which the plaintiff might be liable to be ratably apportioned between and borne by said Bohart and plaintiff, as alleged in plaintiff's petition herein. "(7) On and before the eighteenth day of January, 1884, the defendant N. D. Lewis was the owner and seized in fee of all the following described premises, situated in the county of Jackson and state of Kansas, to-wit: The northeast quarter of section number 7; the north-east quarter of section number 8; the south-east quarter section number 5; and east half of the south-west quarter of section 5,-all in township number 7, of range number 16, containing 560 acres. "(8) On said January 18, 1884, the defendant N. D. Lewis and his wife, Celia Lewis, with intent on the part of N. D. Lewis to hinder, delay, and defraud his creditors, and especially the said Linscott and said Bohart, and without sufficient consideration, made, executed, acknowledged, and delivered to defendants William O. Lewis, James B. Lewis, George H. Lewis, Joseph W. Lewis, and Elizabeth R. Locke, who are children of N. D. Lewis and Celia Lewis, a deed for said 560 acres of land, which deed was on the same day recorded in the office of the register of deeds of Jackson county, Kansas. No part of the land described in said deed was at the date thereof the homestead of the grantors therein. "(9) Upon the first day of the term of court at which the judgments in favor of said Linscott and said Bohart were rendered. to-wit, March 20, 1884, the lands above mentioned were incumbered with mortgages which are still v.15p.no.4-11 unsatisfied, and remain liens thereon, as follows: One in favor of M. A. Broaduss of $1,500, upon said north-east quarter of section number 7, township 7, range 16; and one in favor of F. A. White of $3,000, upon said southeast quarter, and the east half of the south-west quarter, of section number 5, township 7, range 16. "(10) Since the commencement of this action, and on or about June 25, 1884, the grantees in the deed of N. D. Lewis and wife to their children conveyed to James H. Lowell and A. D. Walker the lands aforesaid,--the said Lowell and Walker at the time being fully advised of all the circumstances under which the said N. D. Lewis and Celia Lewis conveyed said lands to their children,--and said Lowell and Walker took said land subject to any claim that may be adjudged against the same in this action in favor of the plaintiff and said Bohart. "(11) There is now due on the judgment in favor of S. K. Linscott including interest and costs the sum of $849.65, and on the judgment in favor of Bobart, including interest and costs, the sum of $1,288.20. "(12) The said A. M. Seaton is, and at the commencement of this action was, insolvent, and had no property whereon to levy. "And the court finds as conclusions of law: (1) That the deed set forth in the petition is fraudulent and void as against the rights and claims of the plaintiff, and said W. H. Bohart, as said plaintiff hath in his said petition averred; (2) that plaintiff is entitled to a judgment and decree ordering the lands described in the petition, or so much thereof as may be necessary for that purpose, to be appraised and sold subject to the mortgages found to be liens thereon, and the proceeds applied to the amounts due the plaintiff and Bohart on their judgments and to the costs. To all of which findings, and to each of them, the defendants duly excepted." Before the trial the defendants in error made an application to amend the second cause of action in their petition by interlineation showing that, instead of Bohart selling and assigning this judgment to Linscott for a valuable consideration, he merely assigned it to him for the purpose of collection, and to save costs, and to prevent multiplicity of suits. The leave to amend was granted, over the objection of the plaintiffs in error. There was a motion for a new trial overruled, a judgment for defendants in error, and all exceptions saved. The assignments of error insisted on here are-First, the court erred in permitting the amendment as to the Bohart judgment; second, the court erred in holding the memoranda fraudulent; third, the eighth finding of fact is not sustained by sufficient evidence, and will not support conclusions of law No. 1; fourth, that certain evidence was improperly excluded by the trial court. On the other hand, the defendants in error insisted that the question of the sufficiency of the evidence to sustain finding 8 could not be questioned, because the record did not contain all the evidence; and that the certificate of the trial judge that it did, being made after the case made had been signed and certified, was without authority of law, and should not be considered. Lowell & Walker and Lucien Baker, for plaintiffs in error. Hayden, for defendants in error. Hayden & SIMPSON, C. The question of practice presented by the record first claims our attention. It affirmatively appears that at the conclusion of the trial the plaintiffs in error were allowed until the first day of April, 1885, within which to make and serve a case for the supreme court, and the defendants in error to have 10 days thereafter to serve suggestion of amendments thereto. The case made was served, and acknowledgment of service indorsed on the third day of March. The case made, with amendments suggested, was presented to the judge of the district court, and settled and signed by him on the sev |