(248 S.W.) BURCHETT v. BLACKBURNE. and conveyed to appellee and plaintiff below W. C. Blackburne, a tract of land in Pike county containing about 40 acres, and (Court of Appeals of Kentucky. March 16, in the deed conveying the title there was a 1. Covenants 1923.) tainable under warranty of title until after The warrantee under a general warranty contained in a deed may not maintain an action thereon against his warrantor until after eviction by paramount title, unless in excep tional cases. 2. Covenants 121(3)-Warrantor is bound by judgment against warrantee if notified to defend. The warrantee against whom an action for eviction is brought may notify his warrantor of the pendency of the action and call upon the latter to defend, in which case the warrantor will be bound by the judgment rendered therein, whether he actually defends or not. 3. Covenants 121 (2) Warrantee must prove eviction by paramount title if he does not notify warrantor to defend. The failure of the warrantee to notify his warrantor to defend an action against the warrantee does not destroy the warrantee's right of action on the warranty, but does place upon him the burden to prove the eviction was by paramount title. 4. Covenants 14(5)-Petition for breach of warranted title must allege eviction by paramount title or notice to warrantor to defend. action in the Pike circuit court against Kennis Burchett and the heirs of Cal Clark seeking to enjoin them from trespassing on about, 7 acres of the 40 acres which he had purchased from defendant herein. It is alleged that in addition to a traverse the defendants in that suit interposed a counterclaim on the ground that the Clark heirs owned the John King patent, and that the 7 acres involved in that suit was a part of that patent, and that they were therefore the owners of it, and on that ground defended their alleged trespasses. On June 25, 1916, the court entered a judgment in that case and dismissed plaintiff's petition, but entered no judgment as to who was the owner of the 7 acres of land involved, except as may be inferentially inferred from the order dismissing the petition. None of the pleadings in that case are made part of the record in this one, and we are unable to say upon what ground or upon the determination of what issue, or character of title, that petition was dismissed. It is alleged, however, in the petition herein, that the court found that the Clark heirs were the owners and entitled to the possession of the 7 acres involved therein; but whether they were such owners through a paramount title, or whether the court found and enforced any such paramount title, is neither A petition for breach of warranty of title must allege, either that the warrantee was evicted from the premises by paramount title or else that he gave notice to the warrantor to defend a pending action by which the war-alleged nor proven. rantee was evicted. On July 26, 1918, plaintiff filed this ordi5. Covenants 89-Knowledge acquired oth-nary action against defendant seeking the erwise by warrantor is not equivalent of no- recovery of a judgment for $500 damages as tice to defend. a result of the breach of the latter's warSince a warrantor is concluded by a judg-ranty in his deed to plaintiff of date June ment against his warrantee if he was notified to defend the action against the warrantee, thereby implying he was made a party to that action, he must be given direct notice from the warrantee of the pendency of the action, and of his right to defend it, and knowledge of the pendency of the action acquired otherwise than by notice is insufficient to make the judgment binding upon him. Appeal from Circuit Court, Pike County. Action by W. C. Burchett against W. C. Blackburne for breach of warranty of title. Judgment for plaintiff, and defendant moves for an appeal. Motion for appeal sustained, and judgment reversed. 12, 1911. A demurrer was filed to the petition but overruled with exceptions, and the answer, as amended, was a traverse of all the material allegations of the petition, and affirmatively pleaded an estoppel against plaintiff which was denied by an order controverting it. The cause was submitted to the court without a jury, and it found in favor of plaintiff against defendant the sum of $207, and after motion for a new trial was overruled judgment was rendered for that amount, and defendant appeals. [1-4] The rule is that the warrantee, under a general warranty contained in a deed, may not maintain an action thereon against his Stratton & Stephenson, of Pikeville, for ap- title, unless in exceptional cases which it warrantor until after eviction by paramount pellant. Picklesimer & Steele, of Pikeville, for ap-facts do not create any of them. It is likeis not necessary to mention here, since the pellee. wise the firmly settled rule in this jurisdicTHOMAS, J. On June 12, 1911, appellant tion that the warrantee in an action against and defendant below, W. C. Burchett, sold him for eviction may notify his warrantor For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the above rule. We, however, cannot agree with that contention. It will be observed on an examination of the opinions supra that they proceed upon the theory of an estoppel of the defendant in the suit based upon the breach of warranty by res adjudicata, which is tantamount to saying that the warrantor was a party to that suit by virtue of the required notice to him of its pendency, and it is only upon that ground that the plaintiff is relieved of either alleging or proving his eviction by paramount title. It is a familiar rule that an estoppel by res adjudicata operates on no one who is neither a party nor privy to the suit in which the estopping judgment was rendered; and we have yet to discover or learn of any rule or principle of the law whereby one may become a party to a litigation without participation therein from the mere fact that he in some manner, other than from the adverse litigant, ́obtained information that there was such a suit pending. His knowledge of such pendency, in order to make the judgment therein binding upon him, should rest in higher and more substantial proof than a mere casual aliunde notice of the pendency of the suit which did not emanate from the warrantee, as it appears it did not in this case. The notice in such cases, for all practical purposes, takes the place of judicial process, and it should at least purport to emanate from the one who seeks to benefit by of the pendency of such action and call upon the latter to defend, in which case he will be bound by the judgment rendered therein whether he actually defends or not. If, however, no such notice is given, the right of the warrantee to maintain an action against him on the warranty is not destroyed, but in that case the onus is upon him to prove eviction by a paramount title, whereas, if the notice had been given, that question would be res adjudicata in his favor in the action to recover damages against his warrantor. Some of the many cases from this court in which the above doctrine was announced and applied are: Booker v. Bell, 3 Bibb, 173, 6 Am. Dec. 641; Cox v. Strode, 4 Bibb, 4; Gaither v. Brooks, 1 A. K. Marsh. 409; Davenport v. Muir, 3 J. J. Marsh. 310, 20 Am. Dec. 143; Woodward v. Allan, 3 Dana, 164; Jones v. Jones, 87 Ky. 82, 7 S. W. 886; Elliott v. Saufley, 89 Ky. 52, 11 S. W. 200; Graham v. Dyer, 29 S. W. 346, 16 Ky. Law Rep. 541; Burbanks v. Burbanks, 8 Ky. Op. 113; Arnold v. Maiden, 10 Ky. Op. 288; Huff v. Cumberland Valley Land Co., 30 S. W. 660, 17 Ky. Law Rep. 213; Grant v. McArthur, 153 Ky. 356, 155 S. W. 732; Walker v. Robinson, 163 Ky. 618, 174 S. W. 503; Jones v. Caldwell, 176 Ky. 15, 195 S. W. 122, L. R. A. 1918B, 50; and Wilson v. McGowand, 192 Ky. 565, 234 S. W. 17. Many others will be found cited in those opinions. The doctrine of those cases as qualified by the ex-it. Whether it should be in writing the cases ceptions referred to, none of which are involved here, has been followed by this court without deviation or exception from the time of its creation. In applying it, it is held that the petition in a suit for a breach of the warranty must expressly aver that the eviction was by paramount title, and that allegation, if denied, must be proven, unless there is an excusing allegation that defendant in the suit on the warranty was notified of the eviction proceedings and either defended it unsuccessfully or refused to defend it at all, in which event it is unnecessary to either allege or prove that the eviction was by paramount title. In this case, as we have seen, there was no allegation of any eviction by paramount title, nor was there an averment of notice to defendant of the pendency of that suit in avoidance of the omission to allege the eviction by paramount title. It is manifest therefore that the demurrer to the petition should have been sustained. dealing with the subject do not agree, but this court, in the case of Davenport v. Muir, supra, expressly held that a verbal notice by the warrantee to the warrantor accompanied with a demand for the latter to de-. fend the eviction suit would be sufficient. But that is the only case from this court which we have been able to find expressly so holding. In the other cases cited above. it does not appear from some of the opinions whether the notice was oral or in writing, but in others of them, as a reference thereto will show, the notice was in writing; and in the Gaither-Brooks Case it is broadly intimated that such a requirement was neces sary, though the point was not expressly determined. It would seem that inasmuch as the notice takes the place of judicial process, it ought to rest in higher proof than mere parol evidence; but inasmuch as this court held otherwise in the Davenport Case, and it not being necessary for the disposition of the instant one to determine the point, we express no opinion on it. [5] But it may be insisted that inasmuch as it is disclosed by the record that defendant in this action had actual notice of the pen- All the cases and authorities, however, dency of the case of Blackburne v. Burchett in discussing and dealing with the sufficiency and the Clark heirs, in which plaintiff claims of the notice, say that it must be unequivthe eviction complained of was adjudged ocal, express, and certain, and requiring (if, indeed, that judgment was one of evic- the warrantor to appear and defend the action), such notice, howsoever acquired. was tion. Furthermore, that "the notice should sufficient to render that judgment binding in all cases come from the covenantee, or on him and authorized the application of be given under his direction or authority, and (248 S.W.) should be seasonable." 7 R. C. L. 1199; Morgan v. Haley, 107 Va. 331, 58 S. E. 564, 13 L. R. A. (N. S.) 732, 122 Am. St. Rep. 846, 13 Ann. Cas. 204, and notes to the L. R. A. volume on page 734. See, also, note to the case of Andrews v. Denison, 16 N. H. 469, reported in 43 Am. Dec. 565, notes on page 572, 573. In the case of Peabody v. Fhelps, 9 Cal. 213, approved in Sampson v. Ohleyer, 22 Cal. 200, it was held that"Mere cognizance of the existence of the action is not notice in the legal sense. To be available, the notice must apprize the party whose rights are to be affected, of what is required of him, and the consequences which may follow if he neglect to defend the action." See, also, annotations in 13 Ann. Cas. 208. The reasons urged in favor of the notice being in writing are quite persuasive, and were it one of first impression in this court, we would be very much inclined to adopt it. In this case, however, it is neither alleged nor intimated in the proof that plaintiff gave any notice to the defendant, either verbal or written, of the pendency of the suit in which he claims to have been evicted, and under the authorities supra, although defendant may have possessed outside knowledge of that fact, it was insufficient to make the judgment binding on him, and the demurrer to the petition should have been sustained, and under the evidence it should have been dismissed. Of course, if the warrantor In Collins v. Baker, 6 Mo. App. 588, it waives notice, either by coming into the was held that "Mere knowledge of the pendency of the suit is insufficient. The warrantor must have distinct and unequivocal notice from the cove nantee that he is looked to for aid in the defense." In the Tennessee case of Greenlaw v. Wil liams, 2 Lea, 533, it was held that "notice to have the effect of depriving the warrantor of the right to show title, should be unequivocal, certain and explicit"; and should give a call to maintain and protect the warranted title. In the case of Miner v. Clark, 15 Wend. 425, the majority opinion held that a parol notice was sufficient; but the opinion in Somers v. Schmidt, 24 Wis. at page 419, 1 Am. Rep. 191, it is said that "we know of none [cases] where it has been decided that notice aliunde, or mere knowledge of the suit, incidentally acquired through third parties was sufficient," and Mr. Freeman, în his notes to the Andrews Case, says: "In whatever manner the notice is given, it should always be unequivocal, certain, and explicit. A knowledge of the action and a notice to attend the trial will not do, unless it is attended with express notice that he warrantor] will be required to defend the title." In the Miner-Clark Case there was a strong dissenting opinion in which it was held that the notice should be in writing upon the ground that "A verbal notice may be misapprehended by the person to whom it is addressed; and without any intentional error, may be proved in a very different form from that in which it was actually delivered. It should be in writing, not only for the purpose of avoiding those consequences, but to enable the party to examine it deliberately, and consult his counsel on the proper course to be pursued." Mr. Freeman, commenting on that dissenting opinion, says: "This view surely has the merit of being conducive to certainty in a proceeding whose effect is conclusive on a question of title." case and assuming and taking charge of its defense, or by any other conduct amounting to legal waiver, he would be bound by the judgment without prior notice either verbal or in writing. No such waiver appears in this case, and upon the entire record we conNo other question presented and argued is clude that the judgment was unauthorized. disposed of, but expressly left open. Wherefore the motion to grant the appeal is sustained, the judgment is reversed, with directions to grant a new trial and for proceedings consistent with this opinion. DEBOE et ux. v. BROWN. (Court of Appeals of Kentucky. March 16, 1923.) 1. Husband and wife 133(7)-Evidence held to show wife paid for property, and title was taken in husband's name without her consent. In a suit to subject to the payment of plaintiff's debt a house and lot conveyed jointly to a husband and wife, evidence held to show that the property was paid for entirely from the wife's funds, derived by taking in roomers, or from the sale of her interest in property previously standing in her husband's name, and that title to the property so purchased was taken in the joint names of her husband and herself, without her knowledge or consent. 2. Trusts 89 (5)-Evidence to establish resulting trust must be clear and convincing. Under Ky. St. 1922, § 2353, providing that a trust shall not result where a deed is made to one person and consideration paid by another, unless the grantee took a deed in his own name without the consent of the person paying the consideration, the evidence to establish a resulting trust may be parol, but it must be clear and convincing, and, if wholly by parol, should be received with great caution, especially to raise a trust between husband and wife. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. Evidence 589- Uncontradicted evidence | knowledge or consent, and by mistake that of husband and wife establishing resulting was not discovered by either of them until trust cannot be disregarded. The uncontradicted evidence of the husband and wife that the consideration was paid by the wife and the property taken in their joint names, without the wife's knowledge and consent, though to be received with caution, cannot be entirely disregarded. to husband's debts held immaterial. Whether after this action was begun. These pleas were traversed by reply, and upon a trial, the chancellor rendered judgment for plaintiff, and the defendants have appealed. [1] Both defendants testified that the Princeton property was purchased with the proceeds of the sale of a house and lot in 4. Husband and wife 129(3) Eddyville, which had been paid for exclusivewife's equity from which funds were derived ly with her money, but which was conveyed to pay for property in question was subject to him. The checks given by her to the Where the testimony of a husband and grantor for the full amount of the conwife was uncontradicted that the property in sideration for this property were produced, question was paid for solely by the wife's identified, and filed with their depositions. funds, and title taken in their joint names She also explained fully how she had earned without the wife's knowledge or consent, it and saved most of this money, by renting was immaterial whether the wife's interest in furnished rooms by the night or week for property previously standing in her husband's many years, during which time her husband name, from the proceeds of which she derived was engaged in operating a restaurant in part of the purchase price of the property in Princeton or Eddyville; and she further tescontroversy, was subject to her husband's tified that the rest of the money used-in pur debts because there was no evidence that she did not consent to the title to that property chasing the Eddyville property was her half being taken in his name, especially where the of the proceeds of a farm that she and her debt due plaintiff was contracted before the pre-husband jointly paid for and sold many years vious property was purchased, so that no re- before. In all of this she is fully corroboratliance was placed on the husband's apparented by her husband, and no one contradicts title thereto. any of this evidence, nor were any exceptions filed thereto. Appeal from Circuit Court, Caldwell County. Action by J. L. Brown against W. H. Deboe and wife, to subject to plaintiff's judgment a house and lot conveyed jointly to defendants. Judgment for plaintiff, and defendants appeal. Reversed, with directions to dismiss the petition. R. W. Lisanby and Alvin Lisanby, both of Princeton, for appellants. John G. Miller, of New York City, and Albert Morse, of Princeton, for appellee. CLARKE, J. Appellee procured a judgment against appellant W. H. Deboe for $150, with interest from November 3, 1916, and $10.25 costs, upon which execution was issued and returned, "No property found." Thereafter he instituted this action in equity The only facts in the record the least inconsistent with her claim that she is the real and sole owner of the Princeton property are that the farm and Eddyville property were conveyed to W. H. Deboe alone, and the Princeton property to him and her jointly, but her explanation of these facts, consistently with her claim of ownership of the Princeton property, is not contradicted by any one. It is true that plaintiff's judgment is for a debt that was created even before the farm was conveyed to W. H. Deboe, but it was purchased wholly on credit when he had no money or property other than a team and a her statement that "half of it was mine and few farming utensils, and no one contradicts half his'n," when they sold it after it had been paid for by their joint efforts, and divided the proceeds equally. against Deboe and his wife, N. J. Deboe, to refutes the contention of plaintiff that the [2] In our judgment this evidence not only subject to the payment of his judgment a house and lot in Princeton, Ky., which had whole property equitably belonged to the husbeen conveyed jointly to the defendants aft-band, but sustains the contrary contention of er the rendition of his judgment, alleging that the defendants that she paid the entire conW. H. Deboe was the sole owner thereof sideration therefor, and did not consent to and had caused a half interest therein to be the conveyance of any part of same to him. or know thereof until after this suit was conveyed to his wife for the fraudulent pur-filed. Section 2353, Kentucky Statutes, propose of avoiding payment of plaintiff's judgment against him. By separate answers defendants traversed the allegations of the petition with reference to the house and lot, and alleged that N. J. Deboe was the sole owner thereof; that W. H. Deboe had purchased same for her as her agent, with her means, and a half interest therein was conveyed to him without her vides that: "When a deed shall be made to one person. and the consideration shall be paid by another, no use or trust shall result in favor of the latter, but this shall not extend to any case in which the grantee shall have taken a deed in his own name without the consent of the person paying the consideration, or where the grantee, in violation of some trust, shall have For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Ky.) DEBOE v. BROWN purchased the lands deeded with the effects of whether or not she would have had a superior another person." In construing this statute, we frequently have held that the evidence to establish such a resulting trust may be by parol, but it must be clear and convincing; and, if wholly by parol, it should be received with great caution, especially to raise a trust between husband and wife. May v. May, 161 Ky. 114, 170 S. W. 537; Deaver-Kennedy Co. v. Cooper, 189 Ky. 366, 224 S. W. 1053; Lacey v. Layne, 190 Ky. 667, 228 S. W. 1. It is earnestly insisted by counsel for appellee that under this rule the evidence here does not even approach the character of evidence required to raise a trust in behalf of the wife against her husband's creditors, as was said of the evidence in the DeaverKennedy Case, supra. But the facts of that case were very different from those proven here, since there the wife's alleged equity in property conveyed to her husband was denied, after assuming that her evidence was sufficient to prove that her money had paid for a part of the property, and she had not consented that same be conveyed to her husband, upon the ground that she had not shown that her money paid for the husband's half interest there involved, or that she had not been repaid the amount she contributed to the purchase of same out of the proceeds of sale of a part thereof for a sum in excess of her contribution towards its purchase price. Here there is no contradiction what ever of the testimony of the defendants that the wife's money paid the entire consideration for the whole of the property sought to be subjected and that she did not consent to any part of same being conveyed to him. [3] Surely it cannot be justly said that the uncontradicted evidence of the husband and wife, jointly sued, is less than clear and convincing proof of the facts their evidence establishes, when, as seems to be the case here, they are the only persons having knowledge of the facts, even though their evidence must Obviously be received with great caution. that rule does not mean their evidence shall be entirely disregarded, even though not contradicted or excepted to. The facts thus established are that Mrs. Deboe paid the entire consideration for the property sought to be subject to plaintiff's judgment, and that she did not consent that any interest therein should be conveyed to the husband. [4] The only basis for a denial of the truth of their testimony on these essentials is that the deeds to the farm and the Eddyville property were made to the husband, and the absence of evidence that the wife did not consent thereto. The question, however, is not equity in either of those properties had there been an attempt to subject either to the payment of her husband's debts, but whether or not she has such an equity in the later acquired Princeton property, as against her husband's creditor whose debt was created before defendants acquired any of the property or the means that paid therefor. Stated otherwise, can Mrs. Deboe, under the circumstances and the pleadings, have a better or different equity in the Princeton property bought with the proceeds of the Eddyville property, than she is here shown to have had in the latter? We think she can and did, since, under the statute, her equity depends upon two things, only one of which was shown to be present in reference to the Eddyville property, while both were established without contradiction in relation to the Princeton property. That her money paid for both is clearly established, and that her husband was named as a grantee in the latter deed without her consent is likewise clearly established, and under the statute she had an equity therein, whether she may have had one or not in the Eddyville property, a question not presented by the pleadings. It possibly would be different if the husband's debt had been created upon the faith of his apparent title to the Eddyville property while he held deed thereto, but such is not the case. It was created before the husband held title to any of the property involved, and before the wife obtained the money with which she paid for same, and the pleadings raise no issue as to the title to any but the Princeton property sought to be subjected. It therefore seems immaterial whether or not the husband held title to the Eddyville lot as constructive trustee for his wife in determining whether or not she had such an equity in the Princeton property, except as that fact considered as evidence may bear upon the questions raised by the pleadings of whether her money paid for the property sought to be subjected, and whether she consented to the deed being made to her husband for a part thereof; and we feel sure that, upon those questions, it should be given but little weight, and is not sufficient to render the positive and otherwise uncontradicted evidence of the husband and wife, supported by her checks, less than clear and convincing that she paid for the Princeton property exclusively with her own means, and did not consent to a conveyance of any part thereof to her husband. Wherefore the judgment is reversed, with directions to dismiss the petition. |