in allowing appellee $375 for the wheat rais- master and the judgment of the chancellor ed in 1912 is also, we think, without merit. are based. During all of this period, from Although there was no evidence to show the 1911 to 1918, appellee was farming on the value of wheat that year, the evidence did | shares for the firm of Nunn & Duncan, and show the value of wheat for the years 1911 at the same time growing crops upon the and 1913, and the court valued the 1912 crop land conveyed to him by Duncan. Duncan of wheat at only about one-half of its value was attending exclusively to the business as shown by the evidence for those years, and of Nunn & Duncan, in so far as Porch had of this appellants can have no just ground of any connection therewith, and Porch and complaint, as this court has often held that, Duncan made frequent settlements of their after the character and quantity of common accounts, as shown by the accounts kept by products of the soil, or ordinary services, Duncan, and, while these accounts were have been established by witnesses, a jury, kept in a book styled "Accounts of Nunn & without further proof, may determine their Duncan," these were the only records of any value from their general knowledge of such transactions between Porch and Duncan matters. Morgan v. Wood, 3 Ky. Law Rep. which Mr. Duncan kept, although, prior to 391; L. C. & L. R. Co. v. Ramsey, 3 Ky. Law the sale of the land to Porch, Duncan had Rep. 385; Hargett v. Bracken County, 3 Ky. kept a separate account for this farm, owned Law Rep. 255; E. T., V. & G. R. Co. v. individually by him. Adams, 14 Ky. Law Rep. 862. And in the case of Baum v. Winston, 3 Metc. (Ky.) 127, this principle was applied upon submission to the court without a jury, of a common-law issue as to the value of services. In the course of the opinion, upon authority of Craig v. Durrett, 1 J. J. Marsh. 366, 19 Am. Dec. 103, it is said:

Continuing, the court says:

"This principle, as well as the reasoning in support of it, applies with manifest propriety to the case before us. Judges, as well as jurors, must be presumed to be acquainted with the ordinary business of the country-especially when invested, as in this case, with the powers and duty of a jury-and there is certainly nothing in the record to authorize the inference that the value of the services sued for, as fixed by the judgment, was the result of any want of such knowledge."

[3] This principle is quite as applicable, we think, to the case at bar, and appellants certainly have no right to complain that the court, in the absence of proof of the value of wheat for the year 1912, fixed it at one-half of its proven value for the years 1911 and 1913.

3. Appellee, in his first deposition, did not make it clear that the items for which he claimed credit against Duncan alone were separate and distinct from his transactions with the firm of Nunn & Duncan, or that such was his contention. In fact, except for his second deposition, there would be but little evidence upon which to sustain a holding that the matters were so treated by the parties, and yet this is necessarily the view of the evidence upon which the findings of the

Hence we think appellants' evidence tends to prove, as they contend, that these accounts show, not only appellee's transactions with the firm of Nunn & Duncan, but with Duncan as well, while, as heretofore stated, appellee contends, as he testified in his second deposition, that they pertain only to his dealings with the firm. He admits that the settlements recorded in this book are correct as to his transactions with the firm, and that he never presented, at these settlements, his claims agains Mr. Duncan individually. Besides, it was shown for appellants that after the death of Duncan, appellee made no claim debtedness now asserted, but, upon the other to his executrices for any of the items of inhand, acknowledged his indebtedness to Duncan's estate for the amount of his notes, and promised to try to raise the money and pay same. They also proved by William Elliott, the president of a bank in Henderson, that before the filing of this suit, and after the death of Duncan, appellee applied to Elliott's bank for a loan of $4,000 which he said he owed to Duncan's estate, and that he desired to use in paying off the notes he had executed to Duncan for this land.

[4] Appellee does not deny these statements attributed to him, but says they were made in the belief that he could not prove his accounts against Duncan, and in ignorance of how the accounts between them stood, as he had no record thereof. We do not regard these admissions by appellee as conclusive against him, as under the circumstances he might well have made them in the belief that it would be futile for him to attempt to establish his accounts without record thereof, and that it would be better for him to pay his notes without litigation.

We would therefore be inclined to accept the master's findings and the court's affirmation thereof as conclusive, if it were not for the fact that, although based upon the idea that the accounts kept by Duncan covered only appellee's transactions with the firm of Nunn & Duncan, several items are taken

(248 S.W.)

from those books as the basis for credits to appellee, and other items are credited to appellee which are clearly shown to have been credited to him on those books. If the books are to be held as relating only to appellee's accounts with the firm of Nunn & Duncan, it is apparent that appellee should not receive credits therefrom in his settlement with Duncan's estate. If, upon the other hand, those books covered the entire transactions, then appellee should not only receive credits shown thereby, but he should be charged with the money credited to him therein.

[5] Our view of the evidence, and we think this was really the view of the chancellor and his commissioner, is that in the main these books do apply to the transactions between Porch and the firm of Nunn & Duncan, but that they contain some of the items between Porch and Duncan individually, but do not contain many of such items. We therefore think that the court was justified in allowing appellee all of the items allowed to him, except such as are shown to have been credited to appellee in those accounts; and except as to the item allowed for wheat raised in 1911, and before appellee bought the land from Duncan, which we think is shown with reasonable certainty to have been included in the $800 cash payment made by Porch in the purchase of the land.

Such a consideration of the evidence renders erroneous the allowance to appellee of the following items allowed him by the master and the court:

4

1911. One-half of the proceeds of 922
bushels of wheat.....
Interest on same from November 4,
1911, to date of settlement.......
1912. Appellee was allowed $300 as
proceeds of 40 head of hogs, and
$88.00 for hay. This should have
been reduced, we think, by the
$190.69 credited as of date August
26, 1912, upon one of his notes, as
it is not shown how otherwise
he was entitled to this credit,
and it is only fair to assume that
it was a part, at least, of what
he has shown as the total to which
he was entitled to credit for that
year. Counting interest on this
sum to the date of settlement, as
was done with all items, necessi-
tates a reduction of the total al-
this
lowed appellee for
amounting to .....
Also the following for which appel-
lee appears to have received full
credit in the Nunn & Duncan ac-
counts:

for which, with interest thereafter and costs, they should have been given judgment, together with an order to sell a sufficiency of the land to satisfy same.

Wherefore the judgment is reversed, with directions to enter in lieu thereof one in accordance herewith.

NAPIER v. NAPIER.

(Court of Appeals of Kentucky. March 13, 1923.)

1. Arrest 4-Attachment and imprisonment for enforcement of decree still exist.

Though the remedies for the enforcement of decrees of courts of chancery have been enlarged so that the original remedy for enforcement by attachment and imprisonment is not so much used, it still exists under Ky. St. § 1663, subd. 2.

2. Husband and wife 299 (4)-Discharge of insolvent debtor from imprisonment prevents subsequent imprisonment under decree.

Under Constitution, § 18, providing that the person of a debtor shall not be continued in prison, where there is not strong presumption of fraud after delivering up his estate for the benefit of his creditors, and Ky. St. c. 70, providing for releasing from imprisonment for debt, section 2184 of which makes the provisions of the chapter applicable to a person imprisoned by order of a court of chancery to compel the payment of money under a judgment of such court, and section 2180, subd. 4, provides for the discharge of the petitioner upon complying with the provisions of the chapter, unless it appears he acted fraudulently, a hus247 29 708 66 band who had been imprisoned for nonpayment of the amounts allowed his wife for separate maintenance, and had procured his discharge in accordance with that chapter, cannot thereafter be imprisoned for nonpayment of such

$461 37

year,

280 29

1913. Allowance for 45 head of hogs $112 50

46 12 Interest 1914. Allowance for 45 head of hogs 112 50 Interest

39 37 900 00 207 75

1916. Wheat crop Interest on same.......

sums.

3. Husband and wife299(4)-Decree for separate maintenance is judgment for debt.

An order requiring a husband to pay stated sums of money for the separate maintenance of his wife is a judgment for debt, within the provisions for discharge from imprisonment under judgments for debt, and not a judicial assertion of the legal duty of the husband to provide for his family.

Appeal from Circuit Court, Harlan County. Action for separate maintenance by Louanna Napier against Charlie Napier. From an order remanding defendant to jail for 158 62 failure to pay the sums directed, defendant appeals. Reversed and remanded.

151 87 1,107 75 Recasting the accounts as above indicated, and adjusting interest to October 7, 1920, the date of the master's report, leaves a net balance due appellants on that date of $371.54,

W. A. Brock, of Harlan, for appellant.
D. C. Jones, of Harlan, for appellee.

MCCANDLESS, J. In a suit in the Harlan circuit court, a judgment was entered against Charlie Napier, directing him to pay certain

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
248 S.W.-34

sums to his wife, Louanna Napier for main-, 70, Ky. Statutes. While a rule may issue on tenance for herself and children; no divorce chancery judgments, it is principally used being granted. The record is silent as to in cases where a court has jurisdiction over the amount of these sums and the dates on which they were to be paid. However, it appears that he fell behind in the payment, and that a rule was issued against him to show why. His response was held insufficient, and the rule made absolute.

On the last day of the term, he was arrested and sent to jail. Subsequently he gave notice and filed in the county court the affidavit and schedule as provided in chapter 70, Ky. Statutes, and in a regular proceeding in that court was discharged as an insolvent debtor.

a fund, or the fund is the subject of a suit and is in the possession of the party subject to control of the court. 10 R. C. L. 655, 656; but in all such cases, "the provisions of sections 2180-2185, inclusive, are available to such a contemnor." Rudd v. Rudd, 184 Ky. 410, 214 S. W. 796.

[3] It is intimated, however, that the judgment is not for debt, but that it is the judicial assertion of a legal and moral duty, viz. making provisions for the maintenance of his children. While based upon that duty, it is in reality a judgment measured in dollars and cents, and one upon which a writ of fieri facias may issue, and in that sense a debt due and owing appellee by appellant.

At the ensuing term of the circuit court he was rearrested under a warrant from the circuit court based on the former rule. Thereupon he filed an affidavit, stating the facts The chancery court does not exercise crimabove set out and also the record of the county court, and moved the court to dismiss the warrant upon which he was held. The court overruled this motion, and he was Wherefore judgment is reversed, and cause remanded to jail. From this order he remanded, for proceedings consistent with appeals. this opinion.

inal jurisdiction, and the proceeding is clearly an effort to enforce a judgment by attachment.

CONSOLIDATION COAL CO. v. RIDDLE

et al.

(Court of Appeals of Kentucky. March 13, 1923.)

Assignments

[1] Originally courts of chancery enforced their mandates by attachment only, but as their jurisdiction increased the remedies for the enforcement of their decrees were enlarged and for many years writs of fieri facias have issued on chancery judgments as well as those at common law, and lately the process of attachment and imprisonment is not. so much used, though it still exists. Section 1663, Ky. Statutes, subsec. 2; Sebastian v. Rose, 135 Ky. 202, 122 S. W. 120; Rebhan v. Fuhrman, 139 Ky. 418, 50 S. W. 976, 21 Ky. Law Rep. 17; Ballard v. Caperton, 2 Metc. 412; Tyler v. Tyler, 99 Ky. 31, 31 2. Estoppel 19-Execution of deed cannot S. W. 898; Rudd v. Rudd, 184 Ky. 408, 214 S. W. 791.

[2] While our Constitution does not inhibit imprisonment for debt, it does specifically provide:

"The person of a debtor, where there is not strong presumption of fraud shall not be continued in prison after delivering up his estate for the benefit of his creditors in such manner as shall be prescribed by law." Const. § 18.

Chapter 70, Ky. Statutes, provides for a release from such imprisonment, section 2184 reading:

"The provisions of this chapter shall apply to a person imprisoned by order of a court of chancery to compel the payment of money under a judgment of such court."

Subsection 4 of section 2180 provides for the discharge of the petitioner upon complying with the provisions of that chapter, unless it be made to appear that he acted fraudulently. It is not claimed that the appellant so acted, or that he failed in any way to comply with the provisions of chapter

8-Conveyance of mere expectancy from person then living is void. A conveyance of an interest as heir of a person who is then alive was the conveyance of a mere expectancy, which is void and passes no title.

estop heirs from attacking conveyance of expectancy.

Since the execution even of a warranty deed will not estop heirs from thereafter attacking the conveyance as a conveyance of a mere exsuch conveyance by the execution of quitclaim pectancy, they are not estopped from attacking deeds to another heir, who conveyed to defendants, nor by statements to the other heir they would not claim any further interest in the land. 3. Judgment 251 (1)—Petition held to support judgment giving interest in land.

Where the defendant admitted that plaintiffs' ancestor had owned the land covered by designated patents, after which the plaintiffs amended their petition and asserted claim to the land, notwithstanding a conveyance by them of their interest as heirs during their ancestor's lifetime, a judgment, giving plaintiffs the interest in the land, was proper.

Appeal from Circuit Court, Pike County.

Suit by T. M. Riddle and another against the Northern Coal & Coke Company and others to recover interests in land, in which the Consolidation Coal Company, as

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

suc

(248 S.W.)

CLAY, J. On August 1, 1891, William Johnson conveyed to his daughter, Margaret Riddle, a tract of land on Long Fork of Shelby creek in Pike county. Margaret Riddle had several children, among whom were T. M. Riddle, J. I. Riddle, and J. F. Riddle. Prior to the death of their mother on March 15, 1904, J. I. Riddle and T. M. Riddle conveyed to their brother, J. F. Riddle, all their interest in the undivided estate of their mother, including the land conveyed to her by her father. J. F. Riddle then conveyed to the Northern Coal & Coke Company, which conveyed to the Consolidation Coal Company. This suit was brought by T. M. Riddle and J. I. Riddle against the Northern Coal & Coke Company and others to recover their interests in the land owned by their mother at the time of her death, and for a partition thereof among the joint owners. During the progress of the action the Consolidation Coal Company, the successor in title to the Northern Coal & Coke Company, intervened and filed an answer and cross-petition, presenting several defenses. The chancellor held the defenses insufficient, and rendered judgment in favor of plaintiffs The Consolidation Coal Company appeals.

Close, supra; Hunt v. Smith, supra); and a
fortiori the subsequent execution of a quit-
claim deed, or the statement of the grantor
that he will not claim any interest in the
true owner, can have no greater effect.
land, all occurring before the death of the

[3] The contention that the judgment gave were not entitled is without merit. Appelappellees an interest in land to which they

lant's answer admitted that William Johnson owned the land covered by patents Nos. 4483, 27002, and 33349, and that the title thereto passed to Margaret Riddle. Thereupon appellees amended their petition and asserted claim to the land, and the judgment gave them only what they asked and what appellant admitted they were entitled to. Judgment affirmed.

I. States

131-Appropriation is setting apart of particular sum for specific purpose. An appropriation by the Legislature is the setting apart of a particular sum of money for a specific purpose.

2. Colleges and universities

4-Statute held not to authorize payment of debts from appropriation for maintenance.

for improvements to the buildings and grounds Acts 1922, c. 100, appropriating $6,000

of the West Kentucky Industrial College and $15,000 annually for support and maintenance, does not authorize the use of the sums appropriated for the payment of debts contracted for past support and maintenance, especially as Acts 1918, c. 18, whereby the Legislature assumed control of such college, shows intention not to incur any obligation in excess of the amounts thereby appropriated.

Appeal from Circuit Court, McCracken County.

Suit by T. B. Steward against E. C. Davis From a judgment and others, trustees, etc. for plaintiff, defendants appeal. Reversed and remanded, with directions.

[1] By the deeds which they executed to their brother, J. F. Riddle, appellees each conveyed "one heir's interest" in the land owned by their mother. As their mother was then alive, they had neither a vested nor a contingent interest in the subject-matter of the conveyance. Therefore all that they conveyed was an estate which they expected to inherit from one who was then living, and it has long been the settled rule in this state that a conveyance of a mere expectancy is void and passes no title. Spacey v. Close, 184 Ky. 523, 212 S. W. 127; Hunt v. Smith, 191 Ky. 443, 230 S. W. 936, 17 A. L. R. 588. [2] But it is insisted that the plea of estoppel should have been sustained. The basis of this plea is that appellees not only con- CLAY, J. In the year 1918 the Legislature veyed by warranty deed, but, for the pur- passed an act (chapter 18, Acts 1918) "for pose of inducing the Northern Coal & Coke the benefit of West Kentucky Industrial Company to purchase the land, executed College, making appropriations therefor, proquitclaim deeds to their brother, and assert-viding for state ownership of lands bought ed that they would not claim any further and improved and prescribing regulations for interest in the land. Where only an ex- the control of said institution." pectancy is conveyed, not even a warranty deed will estop the grantor from asserting an interest thereafter acquired (Spacey v.

A. Y. Martin, of Paducah, for appellants. Morris & Jones, of Frankfort, and Eaton & Boyd, of Paducah, for appellee.

By the act the sum of $3,000 was appropriated annually for the maintenance and operation of the college, and the sum of $5,000 for

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

completing and equipping the building then from the petition and amended petition that in use, and the payment of debts against the Steward was employed by the president at same. The appropriations were made on the a salary of $150 per month for nine months, condition that the college gave free tuition to but was paid only the sum of $150. He and colored teachers taking a training course to the other teachers were all nominated by teach in the colored common schools of the president and their nominations were Kentucky, and to colored boys and girls who laid before the board of trustees. Though had attained the age of 16 and had completed the board failed to confirm the nominations, the common school course, and the appro- it did not object to the rendition of the serpriations were not to be paid until the build- vices by plaintiff and the other teachers, but ing and site had been conveyed to the com- acquiesced in their employment by the presimonwealth, and the title was approved by dent and permitted them to teach, with the the Attorney General. tacit understanding that their services and the rates of pay were approved.

However, in view of the fact that the Legis lature, in assuming control of the West T. B. Steward, who taught in the college Kentucky Industrial College, did not intend for the school year commencing July 1, 1921, to incur any obligation in excess of the and ending June 30, 1922, brought this suit $5,000 appropriated for completing and equipagainst the trustees to compel them to pay ping the building and paying the debts him out of the appropriation made by the against the same, and the $3,000 appropriatact of 1922 the sum of $1,200, being the ed annually for its maintenance and sup balance due him on his salary. It appears port, and the further fact that the board of