Imágenes de páginas

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 bad 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 Hence we think appellants' evidence tends case of Baum v. Winston, 3 Metc. (Ky.) 127, to prove, as they contend, that these accounts this principle was applied upon submission to show, not only appellee's transactions with the court without a jury, of a common-law the firm of Nunn & Duncan, but with Dunissue as to the value of services. In the can as well, while, as heretofore stated, apcourse of the opinion, upon authority of pellee contends, as he testified in his secoud Craig v. Durrett, 1 J. J. Marsh. 366, 19 Am. deposition, that they pertain only to his dealDec. 103, it is said:

ings with the firm. He admits that the set. "Courts must act, if governed by reason and tlements recorded in this book are correct as common sense, upon the presumption that ju- to his transactions with the firm, and that he rors are acquainted with the ordinary business never presented, at these settlements, his of society, and that, whenever it can be ration- claims agains Mr. Duncan individually. Beally inferred, from the facts, that the jury sides, it was shown for appellants that after could, from such knowledge, come to a correct the death of Duncan, appellee made no claim conclusion as to the amount of damage, their to his executrices for any of the items of inverdicts should not be controlled by the courts, debtedness now asserted, but, upon the other for want of evidence."

hand, acknowledged his indebtedness to Dun. Continuing, the court says:

can's estate for the amount of his notes, and “This principle, as well as the reasoning in promised to try to raise the money and pay support of it, applies with manifest propriety same. They also proved by William Elliott, to the case before us. Judges, as well as ju- the president of a bank in Henderson, that rors, must be presumed to be acquainted with before the filing of this suit, and after the the ordinary business of the country--espe- death of Duncan, appellee applied to Elliott's cially when invested, as in this case, with the bank for a loan of $4,000 which he said he powers and duty of a jury-and there is certainly nothing in the record to authorize the infer- owed to Duncan's estate, and that he desired ence that the value of the services sued for, as

to use in paying off the notes he had executed fixed by the judgment, was the result of any to Duncan for this land. want of such knowledge.”

[4] Appellee does not deny these statements

attributed to him, but says they were made [3] This principle is quite as applicable, in the belief that he could not prove his acwe think, to the case at bar, and appellants counts against Duncan, and in ignorance of certainly have no right to complain that the how the accounts between them stood, as he court, in the absence of proof of the value of had no record thereof. We do not regard wheat for the year 1912, fixed it at one-half these admissions by appellee as conclusive of its proven value for the years 1911 and against him, as under the circumstances be 1913.

might well have made them in the belief 3. Appellee, in his first deposition, did not that it would be futile for him to attempt to make it clear that the items for which he establish his accounts without record thereof, claimed credit against Duncan alone were and that it would be better for him to pay his separate and distinct from his transactions notes without litigation. with the firm of Nunn & Duncan, or that We would therefore be inclined to accept such was his contention. In fact, except for the master's findings and the court's affirmahis second deposition, there would be but lit- tion thereof as conclusive, if it were not for tle evidence upon which to sustain a holding the fact that, although based upon the idea that the matters were so treated by the par- that the accounts kept by Duncan covered ties, and yet this is necessarily the view of only appellee's transactions with the irm

(248 S.W.) from those books as the basis for credits to for which, with interest thereafter and costs, appellee, and other items are credited to ap- they should have been given judgment, topellee which are clearly shown to have been gether with an order to sell a sufficiency of credited to him on those books. If the books the land to satisfy same. are to be held as relating only to appellee's wherefore the judgment is reversed, with accounts with the firm of Nunn & Duncan, it directions to enter in lieu thereof one in acis apparent that appellee should not receive cordance herewith. . 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

NAPIER V, NAPIER. shown thereby, but he should be charged with the money credited to him therein.

(Court of Appeals of Kentucky. March 13, (5) Our view of the evidence, and we think

1923.) this was really the view of the chancellor and his commissioner, is that in the main these . Arrest -Attachment and imprisonment

for enforcement of decreo still exist. books do apply to the transactions between Porch and the firm of Nunn & Duncan, but of decrees of courts of chancery have been en

Though the remedies for the enforcement that they contain some of the items between larged so that the original remedy for enforcePorch and Duncan individually, but do not ment by attachment and imprisonment is not so contain many of such items. We therefore much used, it still exists under Ky. St. $ 1663, think that the court was justified in allowing subd. 2. appellee all of the items allowed to him, ex 2. Husband and wife am 299(4)-Discharge of cept such as are shown to have been credited insolvent debtor from imprisonment prevents to appellee in those accounts; and except subsequent imprisonment under decree. as to the item allowed for wheat raised in Under Constitution, $ 18, providing that the 1911, and before appellee bought the land person of a debtor shall not be continued in from Duncan, which we think is shown with prison, where there is not strong presumption Teasonable certainty to have been included in of fraud after delivering up his estate for the the $800 cash payment made by Porch in the benefit of his creditors, and Ky. St. c. 70, propurchase of the land.

viding for releasing from imprisonment for

debt, section 2184 of which makes the proviSuch a consideration of the evidence ren- sions of the chapter applicable to a person ders erroneous the allowance to appellee of imprisoned by order of a court of chancery to the following items allowed him by the mas compel the payment of money under a judgment ter and the court:

of such court, and section 2180, subd. 4, pro1911. One-halt of the proceeds of 922

vides for the discharge of the petitioner upon bushels of wheat. ...,.

$461 37

complying with the provisions of the chapter, Interest on same from November 4,

unless it appears he acted fraudulently, a hus1911, to date of settlement........ 247 29 $ 708 66 band who had been imprisoned for nonpayment 1912. Appellee was allowed $300 as

of the amounts allowed his wife for separate proceeds of 40 head of bogs, and

maintenance, and had procured his discharge $88.00 for hay. This should have

in accordance with that chapter, cannot therebeen reduced, we think, by the

after be imprisoned for nonpayment of such $190.69 credited as of date August 26, 1912, upon one of his notes, as It is not shown how otherwise

3. Husband and wife On 299(4)-Decree for he was entitled to this credit,

separate maintenance is judgment for debt. and it is only fair to assume that it was a part, at least, of what

An order requiring a husband to pay stated he has shown as the total to which

sums of money for the separate maintenance of he was entitled to credit for that

his wife is a judgment for debt, within the proyear, Counting interest on this

visions for discharge from imprisonment under sum to the date of settlement, as

judgments for debt, and not a judicial assertion was done with all items, necessi

of the legal duty of the husband to provide for tates a reduction of the total al

his family. lowed appellee for

this amounting to

280 29 Also the following for which appel

Appeal from Circuit Court, Harlan County. lee appears to have received full

Action for separate maintenance by Loucredit in the Nupn & Duncan ac

anna Napier against Charlie Napier. From 1913. Allowance for 45 head of bogs $112 50

an order remanding defendant to jail for

46 12 158 62 failure to pay the sums directed, defendant 1914. Allowance for 45 head of hogs 112 50

appeals. Reversed and remanded.

151 87 900 00

W. A. Brock, of Harlan, for appellant.

207 75 1,107 75 D. C. Jones, of Harlan, for appellee. Recasting the accounts as above indicated, and adjusting interest to October 7, 1920, the McCANDLESS, J. In a suit in the Harlan date of the master's report, leaves 'a net bal- circuit court, a judgment was entered against ance due appellants on that date of $371.54, Charlie Napier, directing him to pay certain PwFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

248 S.W.-34





39 37

Interest 1916. Wheat crop Interest on same.

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 a fund, or the fund is the subject of a suit which they were to be paid. However, it ap- and is in the possession of the party subject pears that he fell behind in the payment, and to control of the court. 10 R. C. L. 655, 656 ; that a rule was issued against him to show but in all such cases, "the provisions of secwhy. His response was held insufficient, and tions 2180-2185, inclusive, are available to the rule made absolute.

such a contemnor.” Rudd v. Rudd, 184 Ky. On the last day of the term, he was arrest- 410, 214 S. W. 796. ed and sent to jail. Subsequently he gave [3] It is intimated, however, that the judgnotice and filed in the county court the affida- ment is not for debt, but that it is the judivit and schedule as provided in chapter 70, cial assertion of a legal and moral duty, viz. Ky. Statutes, and in a regular proceeding in making provisions for the maintenance of that court was discharged as an insolvent his children. While based upon that daty, debtor.

it is in reality a judgment measured in dolAt the ensuing term of the circuit court he lars and cents, and one upon which a writ of was rearrested under a warrant from the cir- fieri facias may issue, and in that sense a cuit court based on the former rule. There- debt due and owing appellee by appellant. upon he filed an affidavit, stating the facts The chancery court does not exercise crimabove set out and also the record of the inal jurisdiction, and the proceeding is clearcounty court, and moved the court to dismiss ly an effort to enforce a judgment by attachthe warrant upon which he was held. The ment. 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. [1] Originally courts of chancery enforced their mandates by attachment only, but as their jurisdiction increased the remedies for

CONSOLIDATION COAL CO. y. RIDDLE the enforcement of their decrees were en

et al. larged and for many years writs of fieri facias have issued on chancery judgments as well (Court of Appeals of Kentucky. March 13, as those at common law, and lately the pro

1923.) cess of attachment and imprisonment is not 1. Assignments C8-Conveyance of mere exso much used, though it still exists. Section

pectancy from person then living is void. 1663, Ky. Statutes, subsec. 2; Sebastian v.

A conveyance of an interest as heir of a Rose, 135 Ky. 202, 122 S. W. 120; Rebhan v.

person who is then alive was the conveyance of Fuhrman, 139 Ky. 418, 50 S. W. 976, 21 a mere expectancy, which is void and passes no Ky. Law Rep. 17; Ballard v. Caperton, 2 title. Metc. 412; Tyler v. Tyler, 99 Ky. 31, 31 2. Estoppel em 19–Execution of deed cannot S. W. 898; Rudd v. Rudd, 184 Ky. 408, 211

estop heirs from attacking conveyance of S. W. 791.

expectancy. [2] While our Constitution does not inhibit

Since the execution even of a warranty deed imprisonment for debt, it does specifically will not estop heirs from thereafter attacking provide :

the conveyance as a conveyance of a mere ex“The person of a debtor, where there is not such conveyance by the execution of quitclaim

pectancy, they are not estopped from attacking strong presumption of fraud shall not be con- deeds to another heir, who conveyed to defendtinued in prison after delivering up his estate ants, nor by statements to the other heir they for the benefit of his creditors in such manner would not claim any further interest in the land. as shall be prescribed by law.” Const. § 18.

3. Judgment w251 (1)-Petition held to supChapter 70, Ky. Statutes, provides for a port judgment giving interest in land. release from such imprisonment, section

Where the defendant admitted that plain2184 reading :

tiffs' ancestor had owned the land covered by “The provisions of this chapter shall apply designated patents, after which the plaintiffs to a person imprisoned by order of a court of annended their petition and asserted claim to chancery to compel the payment of money un

the land, notwithstanding a conveyance by them

of their interest as heirs during their ancestor's der a judgment of such court."

lifetime, a judgment, giving plaintiffs the interSubsection 4 of section 2180 provides for est in the land, was proper. the discharge of the petitioner upon complying with the provisions of that chapter,

Appeal from Circuit Court, Pike County. unless it be made to appear that he acted Suit by T. M. Riddle and another against fraudulently. It is not claimed that the the Northern Coal & Coke Company and appellant so acted, or that he failed in any others to recover interests in land, in which way to comply with the provisions of chapter the Consolidation Coal Company, as suc


(248 S.W.) cessor in title to the Northern Coal & Coke ! Close, supra; Hunt v. Smith, supra); and a Company, intervened and filed an answer fortiori the subsequent execution of a quitand cross-petition. Judgment for plaintiffs, claim deed, or the statement of the grantor and intervener appeals. Affirmed.

that he will not claim any interest in the

land, all occurring before the death of the E.C. O'Rear, of Frankfort, W. G. Dearing, true owner, can have no greater effect.' of Lexington, Allie W. Young, of Morehead,

[3] The contention that the judgment gave and A. J. Kirk, of Jenkins, for appellant.

appellees an interest in land to which they Roscoe Vanover, of Pikeville, for appel were not entitled is without merit. Appellees.

lant's answer admitted that William John

son owned the land covered by patents Nos. CLAY, J. On August 1, 1891, William 4483, 27002, and 33349, and that the title Johnson conveyed to his daughter, Margaret thereto passed to Margaret Riddle. ThereRiddle, a tract of land on Long Fork of Shel- upon appellees amended their petition and by creek in Pike county. Margaret Riddle asserted claim to the land, and the judgment had several children, among whom were T. gave them only what they asked and what M. Riddle, J. I. Riddle, and J. F. Riddle. appellant admitted they were entitled to. Prior to the death of their mother on March Judgment affirmed. 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

DAVIS et al. v. STEWARD. to the Northern Coal & Coke Company, which

(Court of Appeals of Kentucky. March 13, conveyed to the Consolidation Coal Com

1923.) pany. This suit was brought by T. M. Riddle and J. I. Riddle against the Northern 1, States Om 131-Appropriation is setting Coal & Coke Company and others to recover

apart of particular sum for specific purpose. their interests in the land owned by their An appropriation by the Legislature is the mother at the time of her death, and for a setting a part of a particular sum of money for partition thereof among the joint owners.

a specific purpose. During the progress of the action the Consol-2. Colleges and universities 4-Statute held idation Coal Company, the successor in title

not to authorize payment of debts from apto the Northern Coal & Coke Company, in

propriation for maintenance. tervened and filed an answer and cross-pe for improvements to the buildings and grounds

Acts 1922, C. 100, appropriating $6,000 tition, presenting several defenses. The

of the West Kentucky Industrial College and chancellor held the defenses insufficient, and $15,000 annually for support and maintenance, rendered judgment in favor of plaintiffs does not authorize the use of the sums approThe Consolidation Coal Company appeals. priated for the payment of debts contracted

[1] By the deeds which they executed to for past support and maintenance, especially as
their brother, J. F. Riddle, appellees each Acts 1918, c. 18, whereby the Legislature as-
conveyed "one heir's interest in the land sumed control of such college, shows intention
owned by their mother. As their mother not to incur any obligation in excess of the

amounts thereby appropriated.
was then alive, they had neither a vested nor
a contingent interest in the subject-matter

Appeal from Circuit Court, McCracken of the conveyance. Therefore all that they

conveyed was an estate which they expected
to inherit from one who was then living, and

Suit by T. B. Steward against E. C. Davis it has long been the settled rule in th tat

and others, trustees, etc. From a judgment that a conveyance of a mere expectancy is for plaintiff, defendants appeal. Reversed void and passes no title. Spacey v. Close,

and remanded, with directions,
184 Ky. 523, 212 S, W. 127; Hunt v. Smith, A, Y. Martin, of Paducah, for appellants.
191 Ky. 443, 230 $. W. 936, 17 A. L. R. 588. Morris & Jones, of Frankfort, and Eaton

[2] But it is insisted that the plea of es- & Boyd, of Paducah, for appellee.
toppel should have been sustained. The ba-
sis 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, pro-
quitclaim 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 By the act the sum of $3,000 was appropri-
deed will estop the grantor from asserting ated annually for the maintenance and opera-
an interest thereafter acquired (Spacey v. I tion 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 act further provided that the president the rates of pay were approved. of the college, the superintendent of schools In their answer the defendants admitted of McCracken county, and three trustees to that they had declined to approve the claim be appointed by the Governor, should consti- of plaintiff because they were in doubt as to tute the board of trustees, who should have their right to apply the payment of exgeneral supervision of its affairs and the penses incurred during the fiscal year beginexpenditure of the appropriation therein ning July 1, 1921 and ending June 30, 1922, made.

the funds appropriated by the act of 1922. The board of trustees adopted a by-law, They further stated that there were other which, after conferring other powers on the claims similar to those of plaintiff, and that president of the institution, contains the if they were all paid out of the appropriafollowing provisions :

tion of 1922, it would seriously cripple the "He shall nominate the teachers to be con

college, and asked that only one half the firmed by the board of trustees. The trustees claim be paid out of the appropriation of 1922 may reject his nomination, in which case the and the other half out of the appropriation president nominates and continues to nominate for 1923. They also admitted that while until the nomination is accepted by the board.” | they did not act upon the recommendations

of the president because of insufficient funds, In the year 1922, the Legislature passed an the services of plaintiff and the other teach“Act (chapter 100, Acts 1922] for the benefiters were rendered with their approval and of the West Kentucky Industrial College, acquiescence. established at Paducah, Ky., making appro By consent of the parties the case was priations thereto.” After a long preamble submitted on the pleadings, and the court setting forth the advantages to be derived held that plaintiff was entitled to the relief from the continued operation of the college, prayed for, and entered an order of injuncand reciting that the small appropriations tion requiring the defendants to certify plaintheretofore made, though insufficient to put tiff's claim for payment and directing the the institution on a proper basis, had had the treasurer of the board to pay one half of the effect of retarding any assistance by way of claim out of the appropriation for the year private donation, and that the institution 1922, and the other half out of the appropriawould have to close unless the common- tion for the year 1923. The defendants wealth gave it the assistance which it needed appeal. and deserved, the body of the act is as

[1, 2] An appropriation by the Legislature follows:

is the setting a part of a particular sum of "Sec. 1. That there be and now is appro- money for a specific purpose, and the ques. priated out of any unappropriated moneys in tion is whether the Legislature intended that the treasury of the commonwealth, the sum of six thousand ($6,000.00) dollars for the pur- any portion of the sums appropriated by the pose of improvements to the buildings and act of 1922 should be applied to the payment grounds of the West Kentucky Industrial Col- of Steward's claim. Sometimes, lump sums lege, and to said institution, an annual appro- are appropriated “for the benefit of” a par. priation of fifteen thousand ($15,000.00) dol- ticular institution, and it is not going far lars for the support and maintenance thereof. afield to hold that such an appropriation may

“The appropriations hereby made shall be paid out in the manner now authorized by law be applied to the payment of any valid debt or may hereafter be authorized by law con- which the institution has theretofore incurred. cerning appropriations to said college."

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, i 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

[ocr errors]
« AnteriorContinuar »