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(248 S.W.)

and conveyed to appellee and plaintiff beBURCHETT v. BLACKBURNE. low W. C. Blackburne, a tract of land in (Court of Appeals of Kentucky. March 16, in the deed conveying the title there was a

Pike county containing about 40 acres, and 1923.)

covenant of general warranty. On October 1. Covenants 102(1)-Action not main. 25, 1912, plaintiff herein filed an equity tainable under warranty of title until after action in the Pike circuit court against Keneviction.

nis Burchett and the heirs of Cal Clark The warrantee under a general warranty seeking to enjoin them from trespassing on contained in a deed may not maintain an action thereon against his warrantor until after about 7 acres of the 40 acres which he had

purchased from defendant herein. It is aleviction by paramount title, unless in excep- leged that in addition to a traverse the detional cases.

fendants in that suit interposed a counter2. Covenants w12113)-Warrantor is bound claim on the ground that the Clark heirs by judgment against warrantee if notified to owned the John King patent, and that the defend.

The warrantee against whom an action for 7 acres involved in that suit was a part eviction is broūght' may notify his warrantor of that patent, and that they were there. of the pendency of the action and call upon fore the owners of it, and on that ground the latter to defend, in which case the war- defended their alleged trespasses. On June rantor will be bound by the judgment rendered 25, 1916, the court entered a judgment in therein, whether he actually defends or not. that case and dismissed plaintiff's petition, 3. Covenants 121(2) -Warrantee must but entered no judgment as to who was the prove eviction by paramount title if he does owner of the 7 acres of land involved, except not notify warrantor to detend.

as may be inferentially inferred from the The failure of the warrantee to notify his order dismissing the petition. None of the warrantor to defend an action against the war- pleadings in that case are made part of the rantee does not destroy the warrantee's right record in this one, and we are unable to of action on the warranty, but does place upon say upon what ground or upon the deterhim the burden to prove the eviction was by mination of what issue, or character of title, paramount title,

that petition was dismissed. It is alleged, 4. Covenants 114(5)--Petition for breach however, in the petition herein, that the of warranted title must allege eviction by court found that the Clark heirs were the paramount title or notice to warrantor to

owners and entitled to the possession of the defend.

7 acres involved therein; but whether they A petition for breach of warranty of title

were such owners through a paramount must allege, either that the warrantee was evicted from the premises by paramount title title, or whether the court found and enor else that he gave notice to the warrantor forced any such paramount title, is neither to defend a pending action by which the war- alleged nor proven. rantee was evicted.

On July 26, 1918, plaintiff filed this ordi5. Covenants m89–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 12, 1911. A demurrer was filed to the petito defend the action against the warrantee, tion but overruled with exceptions, and the thereby implying he was made a party to that answer, as amended, was a traverse of all action, he must be given direct notice from the the material allegations of the petition, and warrantee of the pendency of the action, and of his right to defend it, and knowledge of the affirmatively pleaded an estoppel against pendency of the action acquired otherwise than plaintiff which was denied by an order conby notice is insufficient to make the judgment troverting it. The cause was submitted to binding upon him.

the court without a jury, and it found in

favor of plaintiff against defendant the Appeal from Circuit Court, Pike County. sum of $207, and after motion for a new Action by W. C. Burchett against W. C. trial was overruled judgment was rendered Blackburne for breach of warranty of title. for that amount, and defendant appeals. Judgment for plaintiff, and defendant moves [1-4] The rule is that the warrantee, under for an appeal. Motion for appeal sustained, a general warranty contained in a deed, may and judgment reversed.

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 Picklesimer & Steele, of Pikeville, for ap- facts do not create any of them. It is like

is 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

pellant.

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

of the pendency of such action and call up-, the above rule. We, however, cannot agree on the latter to defend, in which case he with that contention. It will be observed will be bound by the judgment rendered on an examination of the opinions supra that therein whether he actually defends or not. they proceed upon the theory of an estoppel If, however, no such notice is given, the of the defendant in the suit based upon right of the warrantee to maintain an ac- the breach of warranty by res adjudicata, tion against him on the warranty is not which is tantamount to saying that the destroyed, but in that case the onus is upon warrantor was a party to that suit by virtue him to prove eviction by a paramount of the required notice to him of its pendency, title, whereas, if the notice had been given, and it is only upon that ground that the that question would be res adjudicata in plaintiff is relieved of either alleging or his favor in the action to recover damages proving his eviction by paramount title. against his warrantor. Some of the many It is a familiar rule that an estoppel by cases from this court in which the above res adjudicata operates on no one who is doctrine was announced and applied are: neither a party nor privy to the suit in Booker v. Bell, 3 Bibb, 173, 6 Am. Dec. 641; which the estopping judgment was rendered ; Cox v. Strode, 4 Bibb, 4; Gaither v. Brooks, and we have yet to discover or learn of any 1 A. K. Marsh. 409; Davenport v. Muir, rule or principle of the law whereby one 3 J. J. Marsh. 310, 20 Am. Dec. 143; Wood- may become a party to a litigation without ward v. Allan, 3 Dana, 164; Jones v. Jones, participation therein from the mere fact 87 Ky. 82, 7 S. W. 886; Elliott v. Saufley, that he in some manner, other than from the 89 Ky. 52, 11 S. W. 200; Graham v. Dyer, adverse litigant, 'obtained information that 29 S. W. 346, 16 Ky. Law Rep. 541; Bur- there was such a suit pending. His knowledge banks v. Burbanks, 8 Ky. Op. 113; Arnold of such pendency, in order to make the judgv. Maiden, 10 Ky. Op. 288; Huff v. Cum- ment therein binding upon him, should rest berland Valley Land Co., 30 S. W. 660, 17 in higher and more substantial proof than Ky. Law Rep. 213; Grant v. McArthur, 153 a mere casual aliunde notice of the pendency Ky. 356, 155 S. W. 732; Walker v. Robin- of the suit which did not emanate from the son, 163 Ky. 618, 174 S. W. 503; Jones v. warrantee, as it appears it did not in this Caldwell, 176 Ky. 15, 195 S. W. 122, L. R. case. The notice in such cases, for all pracA. 1918B, 50; and Wilson v. McGowand, 192 tical purposes, takes the place of judicial Ky. 565. 234 S. W. 17. Many others will process, and it should at least purport to be found cited in those opinions. The doc- emanate from the one who seeks to benefit by trine of those cases as qualified by the ex-it. Whether it should be in writing the cases ceptions referred to, none of which are in- dealing with the subject do not agree, but volved here, has been followed by this court this court, in the case of Davenport v. Muir, without deviation or exception from the time supra, expressly held that a verbal notice of its creation. In applying it, it is held that by the warrantee to the warrantor accomthe petition in a suit for a breach of the panied with a demand for the latter to de.. warranty must expressly aver that the evic-fend the eviction suit would be sufficient. tion was by para mount title, and that allega. But that is the only case from this court tion, if denied, must be proven, unless there which we have been able to find expressly is an excusing allegation that defendant so holding. In the other cases cited above. in the suit on the warranty was notified of it does not appear from some of the opinthe eviction proceedings and either defended ions whether the notice was oral or in writ. it unsuccessfully or refused to defend it at ing, but in others of them, as a reference all, in which event it is unnecessary to thereto will show, the notice was in writing; either allege or prove that the eviction was and in the Gaither-Brooks Case it is broadly by paramount title. In this case, as we have intimated that such a requirement was necesseen, there was no allegation of any eviction sary, though the point was not expressly by paramount title, nor was there an aver-determined. It would seem that inasmuch ment of notice to defendant of the pendency as the notice takes the place of judicial proof that suit in avoidance of the omission to cess, it ought to rest in higher proof than allege the eviction by paramount title. It mere parol evidence; but inasmuch as this is manifest therefore that the demurrer to court held otherwise in the Davenport Case, the petition should have been sustained. and it not being necessary for the disposi

[5] But it may be insisted that inasmuch tion of the instant one to determine the as it is disclosed by the record that defendant point, we express no opinion on it. 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 suflicient to render that judgment binding in all cases come from the covenantee, or

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(248 S.W.)
should be seasonable." 7 R. O. L. 1199; , See, also, annotations in 13 Ann. Cas. 208.
Morgan v. Haley, 107 Va, 331, 58 S. E. 564, The reasons urged in favor of the notice be-
13 L. R. A. (N. S.) 732, 122 Am. St. Rep. 846, ing in writing are quite persuasive, and were
13 Ann. Cas. 204, and notes to the L. R. it one of first impression in this court, we
A. volume on page 734. See, also, note to would be very much inclined to adopt it.
the case of Andrews v. Denison, 16 N. H. In this case, however, it is neither alleged
469, reported in 43 Am. Dec, 565, notes on nor intimated in the proof that plaintiff gave
page 572, 573. In the case of Peabody v. any notice to the defendant, either verbal
Phelps, 9 Cal. 213, approved in Sampson or written, of the pendency of the suit in
v. Ohleyer, 22 Cal. 200, it was held that, which he claims to have been evicted, and

under the authorities supra, although de-
"Mere cognizance of the existence of the ac-
tion is not notice in the legal sense. To be

fendant may have possessed outside knowl-
available, the notice must apprize the party edge of that fact, it was insufficient to make
whose rights are to be affected, of what is re- the judgment binding on him, and the de-
quired of him, and the consequences which may murrer to the petition should have been sus-
follow if he neglect to defend the action." tained, 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

case and assuming and taking charge of its "Mere knowledge of the pendency of the suit defense, or by any other conduct amounting is insufficient. The warrantor must have dis- to legal waiver, he would be bound by the tinct and unequivocal notice from the cove- judgment without prior notice either verbal Dantee that he is looked to for aid in the de- or in writing. No such waiver appears in fense.”

this case, and upon the entire record we con

clude that the judgment was unauthorized. In the Tennessee case of Greenlaw v. Wil

No other question presented and argued is liams, 2 Lea, 533, it was held that “notice

disposed of, but expressly left open. to have the effect of depriving the warrantor

Wherefore the motion to grant the appeal
of the right to show title, should be un: is sustained, the judgment is reversed, with
equivocal, certain and explicit"; and should directions to grant a new trial and for pro-
give a call to maintain and protect the war-

ceedings consistent with this opinion,
ranted title. In the case of Miner v. Clark,
15 Wend. 425, the majority opinion held that
a parol notice was sufficient; but the opin-
ion 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

DEBOE et ux. V. BROWN.
the suit, incid ally acquired gh third
parties was sufficient,” and Mr. Freeman, in (Court of Appeals of Kentucky. March 16,

1923.)
his notes to the Andrews Case, says:
"In whatever manner the notice is given, it I. Husband and wife On 133(7)–Evidence held
should always be unequivocal, certain, and

to show wife paid for property, and title was

taken in husband's name without her con-
explicit. A knowledge of the action and a no-
tice to attend the trial will not do, unless it

sent.
is attended with express notice that he lwar. In a suit to subject to the payment of plain-
rantor] will be required to defend the title.” tiff's debt a house and lot conveyed jointly to

a husband and wife, evidence held to show
In the Miner-Clark Case there was a strong that the property was paid for entirely from
dissenting opinion in which it was held that the wife's funds, derived by taking in roomers,
the notice should be in writing upon the or from the sale of her interest in property
ground that-

previously standing in her husband's name,

and that title to the property so purchased was
“A verbal notice may be misapprehended by taken in the joint names of her husband and
the person to whom it is addressed; and with-herself, without her knowledge or consent.
out any intentional error, may be proved in
a very different form from that in which it 2. Trusts 89(5)-Evidence to establish re-
was actually delivered. It should be in writ sulting trust must be clear and convincing.
ing, not only for the purpose of avoiding those Under Ky. St. 1922, $ 2353, providing that
consequences, but to enable the party to ex-

a trust shall not result where a deed is made to
amine it deliberately, and consult his counsel

one person and consideration paid by another, on the proper course to be pursued.”

unless the grantee took a deed in his own name

without the consent of the person paying the
Mr. Freeman, commenting on that dissent-
ing opinion, says:

consideration, the evidence to establish a re

sulting trust may be parol, but it must be clear "This view surely has the merit of being con- and convincing, and, if wholly by parol, should ducive to certainty in a proceeding whose effect be received with great caution, especially to is conclusive on a question of title."

raise a trust between husband and wife. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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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.

after this action was begun. These pleas The uncontradicted evidence of the husband were traversed by reply, and upon a trial, the and wife that the consideration was paid by the chancellor rendered judgment for plaintiff, wife and the property taken in their joint and the defendants have appealed. names, without the wife's knowledge and con

[1] Both defendants testified that the sent, though to be received with caution, cannot be entirely disregarded.

Princeton property was purchased with the

proceeds of the sale of a house and lot.in 4. Husband and wife 129(3) Whether Eddyville, which had been paid for exclusive

wife'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. to 'husband's debts held immaterial.

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 tes. controversy, was subject to her husband's debts because there was no evidence that she tified that the rest of the money used-in purdid 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 excep

tions filed thereto. Appeal from Circuit Court, Caldwell

The only facts in the record the least inCounty.

consistent with her claim that she is the real Action by J. L. Brown against W. H. Deboe and sole owner of the Princeton property and wife, to subject to plaintiff's judgment a are that the farm and Eddyville property house and lot conveyed jointly to defendants. were conveyed to W. H. Deboe alone, and the Judgment for plaintiff, and defendants ap Princeton property to him and her jointly, peal. Reversed, with directions to dismiss but her explanation of these facts, consistentthe petition.

ly with her claim of ownership of the PrinceR. W. Lisanby and Alvin Lisanby, both of ton property, is not contradicted by any one. Princeton, for appellants.

It is true that plaintiff's judgment is for a John G. Miller, of New York City, and debt that was created even before the farm Albert Morse, of Princeton, for appellee.

was conveyed to W. H. Deboe, but it was pur.

chased wholly on credit when he had no CLARKE, J. Appellee procured a judg money or property other than a team and a

few farming utensils, and no one contradicts ment against appellant W. H. Deboe for $150,

her statement that "half of it was mine and with interest from November 3, 1916, and $10.25 costs, upon which execution was issued

half his'n," when they sold it after it had and returned, “No property found." There

been paid for by their joint efforts, and divid

ed the proceeds equally. after he instituted this action in equity against Deboe and his wife, N. J. Deboe, to

[2] In our judgment this evidence not only subject to the payment of his judgment a whole property equitably belonged to the hus

refutes the contention of plaintiff that the house and lot in Princeton, Ky., which had

band, but sustains the contrary contention of been conveyed jointly to the defendants after the rendition of his judgment, alleging that the defendants that she paid the entire con

sideration therefor, and did not consent to W. H. Deboe was the sole owner thereof 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 judg

vides that: ment against him. By separate answers defendants traversed

“When a deed shall be made to one person, the allegations of the petition with reference and the consideration shall be paid by another, to the house and lot, and alleged that N. J. ter, but this shall not extend to any case in

po use or trust shall result in favor of the lat. Deboe was the sole owner thereof; that w. which the grantee shall have taken a deed in H. Deboe had purchased same for her as her his own name without the consent of the peragent, with her means, and a half interest son paying the consideration, or where the therein was conveyed to him without her ) grantee, in violation of some trust, shall have

(248 S.W.) purchased the lands deeded with the effects of whether or not she would have had a superior another person."

equity in either of those properties had there In construing this statute, we frequently been an attempt to subject either to the payhave held that the evidence to establish such ment of her husband's debts, but whether or a resulting trust may be by parol, but it must not she has such an equity in the later acbe clear and convincing; and, if wholly by quired Princeton property, as against her parol, it should be received with great cau

husband's creditor whose debt was created tion, especially to raise a trust between hus

before defendants acquired any of the propband and wife. May v. May, 161 Ky, 114, 170 erty or the means that paid therefor. Stated S. W. 537; Deaver-Kennedy Co. v. Cooper, stances and the pleadings, have a better or

otherwise, can Mrs. Deboe, under the circum189 Ky. 366, 224 S. W. 1053; Lacey v. Layne, different equity in the Princeton property 190 Ky. 667, 228 S. W. 1. It is earnestly insisted by counsel for ap

bought with the proceeds of the Eddyville pellee that under this rule the evidence here property, than she is here shown to have had does not even approach the character of evi- in the latter? We think she can and did, dence required to raise a trust in behalf of since, under the statute, her equity depends the wife against her husband's creditors, as

upo two things, only one of which was was said of the evidence in the Deaver shown to be present in reference to the EddyKennedy Case, supra. But the facts of that ville property, while both were established case were very different from those proven without contradiction in relation to the here, since there the wife's alleged equity

Princeton property. in property conveyed to her husband was de.

That her money paid for both is clearly nied, after assuming that her evidence was established, and that her husband was named sufficient to prove that her money had paid as a grantee in the latter deed without her for a part of the property, and she had not consent is likewise clearly established, and consented that same be conveyed to her hus- under the statute she had an equity therein, band, upon the ground that she had not whether she may have had one or not in the shown that her money paid for the husband's Eddyville property, a question not presented half interest there involved, or that she had by the pleadings. not been repaid the amount she contributed

It possibly would be different if the busto the purchase of same out of the proceeds band's debt had been created upon the faith of sale of a part thereof for a sum in excess of his apparent title to the Eddyville properof her contribution towards its purchase ty while he held deed thereto, but such is not price. Here there is no contradiction what the case. It was created before the husband erer of the testimony of the defendants that held title to any of the property involved, and the wife's money paid the entire considera

before the wife obtained the money with tion for the whole of the property sought to which she paid for same, and the pleadings be subjected and that she did not consent raise no issue as to the title to any but the to any part of same being conveyed to him. Princeton property sought to be subjected. [3] Surely it cannot be justly said that the

It therefore seems immaterial whether tincontradicted evidence of the husband and or not the husband held title to the Eddyville wife. Jointly sued, is less than clear and con. lot as constructive trustee for his wife in vincing proof of the facts their evidence es- determining whether or not she had such an tablishes, when, as seems to be the case here, equity in the Princeton property, except as they are the only persons having knowledge that fact considered as evidence may bear of the facts, even though their evidence must upon the questions raised by the pleadings of be received with great caution. Obviously whether her money paid for the property that rule does not mean their evidence shall sought to be subjected, and whether she conbe entirely disregarded, even though not con- sented to the deed being made to her husband tradicted or excepted to. The facts thus es- for a part thereof; and we feel sure that, uptablished are that Mrs. Deboe paid the entire on those questions, it should be given but consideration for the property sought to be little weight, and is not sufficient to render subject to plaintiff's judgment, and that she the positive and otherwise uncontradicted did not consent that any interest therein evidence of the husband and wife, supported should be conveyed to the husband.

by her checks, less than clear and convinc[4] The only basis for a denial of the truth ing that she paid for the Princeton property of their testimony on these essentials is that exclusively with her own means, and did not the deeds to the farm and the Eddyville prop- consent to a conveyance of any part thereof erty were made to the husband, and the ab- to her husband, sence of evidence that the wife did not con

Wherefore the judgment is reversed, with sent thereto. The question, however, is not directions to dismiss the petition.

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