44 Ky.

Volume 44 — Kentucky Reports

122 opinions

44 Ky. 1Winchester & Lexington Turnpike Road Co. v. Vimont (1844)
Error to the Franklin Circuit. Sale of Turnpike Roads. Chancery. The decree of the Circuit Court. Turnpike roads cannot be sold to satisfy debts due by the Companies who became indebted for their construction, nor can the stock therein. It is proper, and the Chancellor may decree the payment of the profits of a Turnpike road to be paid to a creditor in satisfaction of his demand, and to this end it is proper for the Chancellor to retain the cause until this is done.
44 Ky. 4Sharp v. Gray (1844)
Error to the Jefferson Circuit. Detinue. Bar by former recovery. Case stated. A judgment in detinue against a vendor which is unsatisfied, is no bar to an action of detinue against the vendee of the defendant in the first judgment. A judgment in detinue without satisfaction does not, ipso facto, change the right' of property from, the plaintiff to' the defendant. One having cause of action against two in detinue, does not by recovering judgment againstone, lose liis right of action. against the other, until the first judgment is satisfied.
44 Ky. 7Page & Stivers v. Prentice & Weisinger (1844)
Error to the Jefferson Circuit. Bills of Exchange. Notice. Case stated. The place where a bill of exchange is dated, is prima facie evidence that such place is the residence of the drawer or payee, and in the absence of proof to the contrary, notice directed to him at that place is sufficient to change him.
44 Ky. 8Read & Son v. Marsh (1844)
Error to the Bourbon Circuit. Bills of Exchange. Acceptance. The case stated. A letter written by drawee before or after the drawing of a bill promising to accept or protect a bill of exchange, may operate bill of exchange may operate as an acceptance, although the holder may not be apprised thereof, or thereby induced to take the bill.
44 Ky. 11Coombs v. Glass (1844)
Error to the Spencer Circuit. Contracts. Election. The case stated. C. sold to G. by writing, a negro woman, &c. for f800, to be paid for by a given day, if G. was, by that time, satisfied with them, if not, to return the negroes and receive what was paid. C. sues G. for the $800. G. pleaded that he, not being pleased with the negroes, offered to return them, and that O. thereupon agreed to take a less sum than the $800, which had been paid, O. replies that he was satisfied with the slaves at the price of $800, but fraudulently pretended that he was not, and induced the acceptance of a less sum. Held on demurrer, that the replication was bad, defendant had the right of election, and having exercised it, no recovery could be had on first tract.
44 Ky. 13Louisville & Elizabethtown Turnpike Road Co. v. Meriwether (1844)
Error to the Jefferson Circuit. Notice. Penalties, Construction of Statutes. Case stated. The charter of the s Louisville and Elizabeth-town turnpike road presents no particular mode on which notice shall be given to subscribers for stock, of the of payment of the calls on the The subscription by its terms, obliges the subscribers to pay the calls which the President, &c. when authorized by the charter. Is not each subscriber bound to take calls made with the directory?-Query. Notice given through the medium of public newspapers in the vicinity of the subscribers, is reasonable and sufficient to authorize a recovery of the instalments of sub-sufficient to authorize the recovery of a penalty. To authorize the recovery of the penalty, notice in one of the Louisville and Elziabeth to wn papers for thirty days, is indispensable under the amendatory acts of 1834 and of 1835.
44 Ky. 18Isaacke v. Ficklin (1844)
Error to the Fleming Circuit. Usury. The case stated. The assignor of a note given for usurious interest, advanced lhoney at usury to the obligor, to pay off the demand which he had filed his bill to avoid, which was done. Held, on bill filed by the borrower to avoid this second note, given for the money loaned, that the first arrangement did not purge the original transaction of the usury, and relief given.
44 Ky. 20Ross v. Ross (1844)
Error to the Lawrence Circuit. New trial. Excessive damages. The case stated. When a new trial has been granted by the Circuit Court, and a second trial had upon the merits, this Court is disinclined to disturb the last verdict. Where the slanderous words - proved, was a charge of adultery in a female plaintiff, and made in gross and indecentlanguage, and no proof of the pecuniary circumstances of the defendant, this Court is not authorized to say that a verdict for if 43d in damages was excessive, and produced by either corruption or prejudice.
44 Ky. 22H. & R. M. Bishop v. A. & J. Hull (1844)
Error to the Fleming Circuit. Vendors. Lien. The ease stated. Tho’ a vendor retain the title and assign the notes for the ¡purchase money, yet if the assignee of the note accept a replevin bond of the purchaser, with a subsequent purchaser as surety for a part of the amountdueby the first purchaser, falling due before the note of such subsequent purchaser, and take the individual note of the first purchaser for the balance, and other cash notes as collateral surety for the last note, it is a waiver of the lien to the extent of the last named. note, though it be not proven that it was so agreed.
44 Ky. 25E. P. Johnson & Co. v. Small (1844)
Appeal prom the Mason Circuit. Agents. Turnpike Roads. Diligence. Case stated. If stage drivers are guilty of negligence by which, an injury is done to another, their employers are responsible. The facts as proved before the jury. Provision of the statute of 1842, in relation to vehicles passing each other on Turnpike Roads. Vehicles not moving or passing, are not required to occupy any particular part of a Turnpike Eo ad.
44 Ky. 29Bowling & Boucher v. Winslow's Adm'r. (1844)
Error to the Mason Ciroijit Court. Husband and wife. Fraicds. Case stated. Wliere the husband has never reduced to Ms possession,property (slaves) which has descended to the wife, during the coverture,so that they would be subjeetto execution forhis debts, the Chancellor will not subject them, regardless of the wife’s paramount equity to a maintenance. Where slaves have not been reduced to possession by the husband during coverture, it is not a fraud upon creditors, for the wife to sell them for the ' purpose of her maintenance andsupport. It is not fraudulent to convey that which cannot be made subject in any legal tribunal to the payment of debts. A constructive reduction to possession by the husband, of property descended to the wife, (as a sale thereof,) though it have the effect to free it from the wife’s legal right of survivorship, does not bar herequitable right to a maintenance where the interposition of the Chancelloris necessary to give the actual possession, and the subject brought under his control.— —Neither will the Chancellor give to the husband the property descended to the wife, to the prejudice of the wife's right to a suitable maintenance. Though property descended to the wife be placed in secret trust by the husband to provide a maintenance for the wife, a creditor cannot reach it if the wife, from the inabilty .of the husband, stand in need of such maintenance. It is but doing what wasaparamount duty, and what the Chancellor would have done.
44 Ky. 33Bruce v. Morrison (1844)
Appeal prom the Mason Circuit. Liens. Mortgages. Practice. case stated. The decree of the Circuit Court. Money advanced may be recovered back, if paid’ within five years before suit brought. Though a bill may be unskil. fully drawn so as to render it doubtful whether fraud, mistake, or usury is Intended principally to be relied on, yet if the facts clearly^sustain either ground, relief should be afforded. Where a purchaser under execution declared by writing to the defendant, that he purchased as his friend. and that he might redeem, a sub-purchaser, with knowledge of such tacts, takes as the first held- subject to redemption, and any sale without the authority of a decree, or written assent of first owner, passes no title to a purchaser. Facts sufficient to put a purchaser on enquiry as to title. A holder of a lien on land for money advanced in its purchase, as the friend of the debtor, may not incumbent he land farther by his own debts, and transfer it to a third person to the prejudice of the defendant in the execution, especially whilst such third person holds other securities for his demands against his vendor. Reversal and directions for further proceedings.
44 Ky. 41Lowry & Bruce v. Beckner (1844)
Appeal from the Fleming Circuit. Instructions. Practice. Agents. The case stated. The finding of the jury approved. Where numerous and complicated instructions are asked by counsel, calculated, in the opinion of the Court, to embarass the jury, it has the right to refuse all, and to give such prepared by himself, as may illustrate the principles of law involved, in the controversy, and asked for by the parties. The principle that fraud will not be presumed but must be proved, if given without qualification, may sometimes be misleading — and fraud may be presumed from facts and circumstances, as other higher crimes. An agent, authorized to sell and exchange the personal properly of his principal, does not by any exchange, divest his principal of his right to the thing received, nor. does the agent, by-vesting the funds of his principal in property, thereby make the property his own. He can claim the property, or sue for the price, and suing for either is a sufficient election of remedy. A purchaser of property from one who has not the right of property, with notice, acquires no title.
44 Ky. 45Graham & Butler v. Chatoque Bank (1844)
Error to the Louisville Ci-iancry Churt. Guardian and ward. Lien. Vendor and vendee. The case stated, .Mrs. Camden's answer and cross bill. G. S. Camden’s answer? and that of the infants. The decree of the Chancellor. The guardians of infants have a right to lease the es ate of their wards during minority.) The assignee of a note given as the consideration of the sale of a leasehold estate, to which a lien attaches for the payment of the note, has no recourse against the assignor, -without diligence by suit at law, and exhausting the,lien on the estate for which it was given.— —All persons holding notes given as the consideration for land sold, are interested in the lien, and necessary parties to a suit to enforce it.
44 Ky. 51Webb v. Burke (1844)
Appeal prom the Shelby Circuit. Obligations. Agents. Construction of instruments. The case stated. Instructions asked and overruled. Instructions given. Owings vs Grubbs, (6 J. J. Marsh.) cited and approved. Jf A. B. in the body of a note, purports to bind C. D. and signs A. B. egent for C. D, it is the note of C. D. But if A. B., in the body of a note, obliges himself to perform the contract for C. D. it is the obligation of A. B. al. thougli signed “C. D. agent, &c.”
44 Ky. 55Clarke v. Robinson (1844)
Error to the Mason Circuit. Witnesses. Evidence. Views. Case stated. It never was the practice for juries to act upon their own view of things about which the controversy was had where it wns a thing personal, though it was sometimes the ease in controversies about real property. —But now: they are triers of the facts, not upon their own knowledge, as was once the case to some extent, but upon testimony of others, delivered before them, subject to cross examination. and the scrutiny of the Court and jury. It is the witness not the jury, that are to have personal knowledge of the facts to which they speak. That there may not be particular cases where it might be more satisfactory, and a party required to produce an article, or exhibit it for examination—not decided. The interest of a witness to lender him incompetent, must be a certain and direct legal inter, estinthe suit in which he is offered. The answer of a parly in one suit, is evidence against such party in any other suit, but the bill to which it is an answer, cannot be used or read farther than is necessary to explain the answer, and cannot be evidence for the party filing it.
44 Ky. 58Steele v. Price (1844)
Appeal from the Fayette Circuit Court. Will Case. Case stated. In the will cases tried in the Circuit Court, the trial is had here u]ion the record, without examining witnesses orally, and the party alledging error holds the affirmative, and has the opening and conclusion of the argument here. The contents of a writing which was once valid & never revoked becomes effectual as a will, by the death of the testator, though it be not in existence at his death. A revocation must be by the act of the testator himself, or by his" direction or sanction. The failure of one who is informed of the destruction of his will, to publish another, furnished a prima fade presumption of intention, to revolee the will destroyed, which may be rebutted by evidence of the same grade,such as the declarations of the testator himself. Facts appearing in the record. Where a will has been, destroyed, and is only proved as to some of the devises, it may be established so far as proved. A devise which is of specific articles, (slaves,) made by a will which has been lostor destroyed, cannot be established as to any except those whose names are proved to have been in the will. "Where a lost will has been established by the Circuit Court on appeal, to a greater extent than the same paper was established by the County Court, it constitutes no cause for reversal of the decision of the Circuit Court, if their decision is sustained by proof.
44 Ky. 74Cummins v. Cassily (1844)
Appeal from the Mason Circuit. Abatement. Bonds for costs. Partners. Seals. The ease stated. Onepartner cannot, by the mere authority resulting from the partnership, hind his co-partner by writing under seal, but additional authority under seal, is necessayy to authorize such an act. An agent without authority under seal, cannot bind his principal by a sealed instrument. The offer to give a valid, bond for costs, upon the part of a non-resident, after plea in abatement filed, for that cause does not avoid the plea.
44 Ky. 76Tenant's heirs v. Marmaduke (1844)
 Motions. Set-off. Jurisdiction. The case stated. One holding a judgment of this Court might ask in the General Court, upon motion and notice, a set-off of his judgment of this Ot., and if done would be bound thereby, but without the assent of the holder of the judgment of this Court, the General Court could netmake the set-off in that Court, This Court will not presume that a party; was present in Court when an order is made in his pause not properly under the power of the Court. The Court of C. P. in England, did set-off a judgment of the Court of K. B. against its own judgment; but it was at the instance of the party holding the judgment in K. B. This Court will not hear and decide motion to set-off judgments of other Courts against its judgments; its jurisdiction is appellate and not original.
44 Ky. 81Hord v. Hord (1844)
Appeal from the Mason Circuit. Husband and wife. Mortgages. Choses in Action. Settlements. Case stated. Answer and cross bill of F. T. Hord. Thornton Hord’s answer. Nancy Hord’s answer. The facts proved in the cause. Decree of the Circuit Court. A Court of Equity will not aid the husband in reducing to possession the reversionary interest of the wife, until a suitable provision is madelorher support. A creditor of the husband does not occupy a more favorable attitude. In making a suitable provision for the support of the wife, her children should be considered. Though a wife unite with her husband in a mortgage of her reversionary interest in property, yet she does not by such act, render it subject to the debts of her husband clue to others. Bnt not so of persion. mIe’ Transfers of the reversionary interest of the wife in choses in action, were some, times permitted, by the Chancellor in England', so as not to affect the wife’s right by survivor-ship, and sometimes partial transfers, which was the only mode ; the statutes of Ky. have made no provision for such transfers. A transfer of the right of the wife to choses in action or the reversion in slaves and personalty, though it divest the legal estate, is subject to the wife’s right by survivorship and a suitable maintenance.
44 Ky. 86Hackley's Executors v. Swigert (1844)
Error to the Anderson Circuit. Assumpsit. Attachment lien. Pendente lite purchase. Case stated. The judgment in the Circuit Court Property attached by a creditor by bill filed in Chancery is in the custody of the law and cannot be taken by execution and sold; and purchaser under execution acquires no title, but will be compelled to surrender the property to the order of the Chancellor. , fie is a pendente lite purchaser. One who procures a levy upon. property in the custody of the law, is liable to a purchaser thereof, who is deprived of it by the law. ' Assumpsit lies against a plaintiff in execution to recover back money advanced in the purchase of property under execution, ■where hehad intermedled in procuring the levy and sale of property not subject. So it lies against a defendant who has caused a levy upon property not subject to satisfy a dent against himself in favor of the owner. May not a stranger, whose property has been levied upon by an execution, maintain indebitatis assumpsit against a defendant in'execution whose debt has been paid by a sale of his property. — Qu.
44 Ky. 90Sayre v. Lewis (1844)
Error to the Fayette Circuit. Set-off. Devastavit. The case slated. Circuit Courts have concurrent jurisdiction with Justices of the Peace for a devastavit, where the amount exceeds £5 and is under $50, and having jurisdiction, a smaller demand than £5 maybe included ; . a suit before Circuit Courts. An adm’r. cannot be made responsible for a devastavitby one agent, when as the representative of his intestate he holds a greater demand than is claimed. An adm’r. paying debts out nf his own estate, may retain an equivalent out of the assets.— —And an adm’r. sued for a devastavit, may set-off a demand due to his intestate against the demand sought to to be recovered.
44 Ky. 92Wood v. Gray's Executors (1844)
Error to the Fayette Circuit. Usury. Limitation. The case stated* Where several distinct notes have been given for money, and usurious interest paid thereon more than five years before any attempt to reclaim, no recovery can be had upon any one where five years has elapsed. Tho’ money has been usuriously exacted on a note, and paid more than five years before the institution of suit to reclaim it, and abalance of the note is paid within five years, which is ciedited or received as principal, the whole amount so paid, may be reclaimed it necessary to cover the usury paid on the transaction. Interest on usury-paid should be-computed only from the time when the party paying it elects to reclaim it by demand en pais, or suit for ft.
44 Ky. 94Lamb v. Fox (1844)
Error to the Mason Circuit. Witnesses. Parties. Discharge in Bankruptcy. The case stated. A principal in a note sued on in conjunction with his security who has received a discharge as a bankrupt, and the suit dismissed as to him, and being released by his principal from all responsibility to him, is a competent witness for the surety. A case cited where on the plea of discharge in bankruptcy being plead by a defendant, the jury were permitted to retire and find as to such defendant, that he might be sworn, as a witness for the other defendant. [The remainder of this opinion was not directed to be published, being only an argument of the Court upon the evidence, in which the Court sustain the decision of the Circuit Judge. — Reporter.]
44 Ky. 96Repplier v. Buck (1844)
Error to the Louisville Chancery Court. Fraudulent conveyances. Deeds of Trust. Equitable Relief. Case stated. Decree of the Chancellor. Thattheassignee named and appointed in a deed of trust is not a creditor, nor appointed at the instance of any creditor, is not conclusive evidence that the deed is fraudulent. A mortgage executed by a tenant, Iona fide, overreaches the claim of the landlord for rent. Though a bill be hied to set aside a deed of trust, which provides for an equal distribution on the ground of fraud, yet if the bill pray general relief, the Chancellor refuse to set aside the deed, the appropriate relief may be granted under the general prayer.
44 Ky. 99Shirleys v. Taylor's heirs (1844)
Error to the Louisville Chancery Court. Lunatics. Evidence. Witnesses. The case stated, Allegations of the answer. Decree of the Chancellor. When a ieplevy bond had been executed about 17 yeais, by one as agent for another, on proof of an agency gen» erally, the presumption is justified, that a sufficient authotity was exhibited to the officer talcing the replevy bond. An inquisition finding a person a lunatio against ■whom a judgment has been rendered, is not evidence that the person was such at the date of the judgment; nor is the opinion of a witness as to the lunacy of an individual, in general, competent to establish it — facts should be given. A judgment vs a lunatic, is not, on that account, necessarily void, nor is a replevy bond, but only voidable. The Chancellor will exercise his discretion in setting aside a replevy bond,even where the defendant who gave it was of unsound mind at its date, and where it was for a just debt, and clear of fraud, or the use of other undue means, refuse to interfere, or to set aside a sale made under execution thereon.
44 Ky. 106Johnson v. Morrison (1844)
Error to the Fayette Circuit. Mortgages. Rent. Liens. Parties are not made by; naming them in the pleadings as such, without process. The claim of a landlordforrents is not available against the claims of a prior mortgage. A surety in a replevy bond thereby acquires no lien on the property of his principal; and tho’ a surety paying a debt, may be substituted to the lien of the creditor on the property of the principal, yet such right will not overreach the claims or liens of other intervening creditors.
44 Ky. 107Odenheimer & Tenant v. Douglass & Soward (1844)
Error to the Scott Circuit. Petition and Summons. Assignment. Parties. Plaintiff in petition and summons must show that he is the legal holder of the note sued on has the legal title thereto. The legal title to a note payable to A. B. or bearer passes by delivery, and vests in. the holder such legal title as that he may bring a petition and summons thereon, if the note be assignable.
44 Ky. 110Railey v. Railey (1844)
Error to the Woodford County Court. Division of Land. Case stated. The acts of 1794 and 1797 do not authorize the County Court to appoint commissioners to divide land descended amongst those interested, unless there has been a refusal by some of the parties interested to divide, and then only upon notice to all persons interested. Tlie statute of 1811, on the subject of dividing land descended, (St. Law, 1066) requires that notice to all the parties interested in the division shall be given of an application for the appointment ot Commiss’rs to divide, and that deeds shall be made when the division is confirmed.
44 Ky. 111Florrance v. Goodin & Thomas (1844)
Error to the Hardin Circuit. Jurisdiction. Void Judgment and Replevin Bond. Case-slated. Justices of the Peace have no jurisdiction to lender judgment on notes for a graeter sum than $>50 principal, & any judgment for such cases for a graeter sum, are void, and a replevy bond taken in virtue of an execution on such judgment, is invalid as a statutary or common law bond, and no suit can be maintained upon it. A note for a greater amount than $50, is not merged inajudgmentofa Justice thereon — he has no jurisdiction, and. for that cause it is void.
44 Ky. 113Harvey Griffith's Ad'r. v. Griffith (1844)
Appeal prom the Lewis Circuit. Husband and wife. Trusts and Trustee. The case stated, which complainant claims. A deed for a tohfsdaughter! a married woman, for her own proper use and having ¡/recordconveylng to her aséjiarate property m the slave, Any words in a conveyance of personal estate to a married woman which show an intention to secure the use to a feme, excludes the husband, and secures a separate use to the wife. No particular form of expression is necessary is to give to a feme covert a separate estate in personal property-any words which show the intention of the grantor to be such will suffice. Where a conveyance is made of personal property to a feme covert, but which shows an intention that it is for the separate use, if there be no Trustee, the husband will be held to be a Trustee for the benefit of the wife, and hold the legal estate for her separate use, which is not conflicting, with the statute of 1798,' (SUJ*. Law, ; The same construction, is given to conveyances by will to the feme.
44 Ky. 120Berry v. Kenney (1844)
Error to the Harrison Circuit. Assignments. Pleadings. Diligence. Juries. Tlie case stated. B. assigned to K-a judgment on S-which he agrees, to pay himself if K. falls to make it in 3 years; K. is bound to use reasonable diligence to recover the judgment in. the 3 years, and in a suit against B. to aver diligence in trying to collect. It is not always sufficient to aver a breach in the words of a covenant. Where it is necessary to aver diligence to show cause of action, a mere traverse of such allegation constitutes a good plea. It is no good objection in this Court, that a jury was composed of 13 instead of 12 jurors, if not made in the Court below where the defendant was present jn Court.
44 Ky. 123Lyle v. Lindsey (1844)
Error to the Madison Circuit. Gaming. Equity and equitable jurisdiction. The case stated. A creditor of a winner receives a note given for a gaming consideration, with, information that such was the consideration, is in no better condition to enforce payment than the winner. —And a surely on a replevy bond given to secure a debt due on gaming consideration , may be relieved inequity from, the payment for that cause. Money or property paid to the creditor of the winner atgaming is paid to the use of the winner, and may be recoveied back if such creditor knew or had reasonable ground to believe that such money or property was paid in discharge of a gaming debt.
44 Ky. 126Merchie v. Gaines (1844)
Error to the Boone Circuit. Sales of Land. Judgments. Executions. The case stated. No valid sale of land can be made but under a. judgment or decree to sustain the execution, where separate decrees are rendered at different times, in behalf of different def’ts, a joint execution under such decrees is invalid.
44 Ky. 129Underwood v. Newport Lyceum (1844)
Error to the Campbell Circuit. Corporations. Assumpsit. Trespass. case stated, Tho’a charter of a corporation may not confer the power of banking, or issuing checks to pass as a currency, and it may be a penal offence to issue such notes or checks, yet the corporation is bound to pay for plates and notes or checks procured to be made by the officers of such corporation. A corporation may be responsible for a trespass if by its officers it com. mands it, or sanctions it when committed — much more may it be for an assumpsit] to a stranger for work and labor done at their instance.
44 Ky. 132Thomas v. Wyatt (1844)
Error to the Montgomery Circuit. Vendor and vendee. Lien. Assignments. Case stated. The assignment of a note or part ot a note given for land, is pro tanto a transfer of vendor’s lien, and the execution by the pur, chaser of a new note does not change the lien. Might not the assignee of a note for part of the price of a tract of landsold he entitled to the entire satisfaction of his note, where the land was insufficient to pay the price? Qv. On a bill filed by the assignee of a vendor of a note for part of the price of a tract of land sold, to subject it to his lien, and an attachment against vendor and vendee to subject the land to the satisfaction of the demand of a third person against them jointly, the suits should be consolidated, and a prorata distribution of the proceeds between the assignee of the vendor and the creditor of vendor and vendee.
44 Ky. 136Fauntleroy's Heirs v. Crow's Heirs (1844)
Error to the Lincoln Circuit. Husband and wife. Dismission of suits. Writs rf error. The case slated. Where a suit is dismissed by order of the complainant, no writ of error lies to reverse the orde of dismissal. A feme covert has the right to dismiss a suit brought to obtain, her rights derived through her father with the assent of her husband. A decree against a feme covert or an infant, is as conclusive against them as against adult persons. A husband and wife may, by their concurrent act, dismiss a suit brought in right of the wife, and the heirs of the wife are bound by such order, and the consequences growing out of it. May nol the husband dismiss a suit brought by the wife before coverture or pending after coverture to recover in her right. —Qc. The husband is not bound to unite with the wife in a suit to recover her lands, nor to prosecute a suit for her land, pending at the marriage — Argu.
44 Ky. 141Kennedy v. Aldridge (1844)
Error to the Garrard Circuit. Attachment. Juries. Practice. The case stated, When a public officer has received from the Public Treasury, thro’ au agent, monies to which he was entitled for public services, it is subject toattachment by his debts, in the hands of the agent. The statutes of 1838 and 1840, allowing attachments lobe issued by Justices of the Peace, (3 St. Law, 376-8,) authorizes an appeal to the Circuit Court by either party against whom a judgment, might be given. No jury is necessary in the trial of appeals before the Circuit Gt, from judgments of Justices of the Peace, in ataehment cases under the statutes of 1838 & 1840; but if a jury has intervened without objection in the Circuit Court it is not an available error here. When a demand due ta a judgm’t debtor is attached and made subject, and his debtor ordered to pay it to the first creditor, it is error to render a second judgment against such debtor.
44 Ky. 145Heasley v. Dunn (1844)
Error to the Garrard Circuit. Administrators. Usury. Assumpsit. An administrator who knowingly receives and exacts usury on debts due his intestate, is personally liable to refund in an action of assumpsit, though he may have settled his accounts and accounted for it to those entitled to the estate.
44 Ky. 145Woods v. Roman (1844)
Error to the Garrard Circuit. Practice. Damages.
44 Ky. 146Rowland, Smith & Co. v. Bull's Executors (1844)
Error to the Shelby Circuit. Usury. Commissions. Guaranty. Administration. Case stated. A promise to pay a per centage for guaranty or acceptance, or advancement is not void. —Nor is it a usurious exaction to charge a commission for endorsing, and accepting bills or notes, unless it be in addition to legal interest. A charge of a commission for endorsing a bill, and then a charge for advancing money to meet it, is unwarranted, and especially when the endorser, (a com.merchant,) had the means of indemnity in his hands.
44 Ky. 152Bartlett v. Gouge (1844)
Error to the Grant Circuit. Dower. Trustees. Object of the bill. Facts of the case. Where the facts and circumstanstances show that the husband merely received a title to land as agent or trustee to make it to another, who was in possession when he received a deed, the widow of such agent'is not entitled to dower-
44 Ky. 155Sharp v. Pike's Administrator (1844)
Error to the Bourbon Circuit. Practice. Jurisdiction. Uusury. Interest. Case stated. An answer to an. original bill is made a cross bill against a co-defendant, a dis-mission of the original bill does not affect the cross bill, and a subsequent reinstating of the original bill, by-consent of parties, cannot be, assigned for error by defendant to cross bill. Parties are bound to take notice of special terms of Court given by statute. The residence of any necessary party to a suit in Chancery to reclaim usurypaid, gives jurisdiction. Interest on money paid as usury, can only be recovered from the date of its reclamation.
44 Ky. 159Baley v. Deakins (1844)
Error to the Henry Circuit. Champerty. Landlord and Tenant. Possession. Case stated. The question, whether an action is prosecuted iorthe benefit of a vendee, holding a conveyance since the passage of the statute of 1824, against champerty, is a question for the jury, and evidence to prove it must be such as is admissible against both vendor and vendee, to prevent a recovery on the demise of the vendor. The fact that a deed was made to one in whose name a demise is laid in a declaration in ejectment, is not conclusive evidence that the suit is prosecuted ior his benefit. Nor would the title of vendor be destroyed by a conveyance which. Is declared void by the statute. When a conveyance is made by one not in possession at the date 'of tire deed, to authorize a jury to find for the defendant on the the ground that the conveyance is void by the statute vs champerty, they must believe from the evidence, that the land was held adversely at the date of the deed, and that the suit is prosecuted for the vendee with the knowledge and approbation of the vendor. A conveyance of land held by one as tenant of the vendor, is not against the statute concerning champerty. without claim of quentiy agrees sionandjreepoff trespassers for another, the relation of lanais1 created*,eüand such possession. to^another,^píareceivingP6rthe same relation.**16 —Anti where one settles on land
44 Ky. 163Shipp v. Bowmar & Freeman (1844)
Error to the Woodford Circuit. Femes covert. Cestui que trust. The case stated. A conveyance by husband and wife ofland conveyed to Trustees for the separate use of the wife, duly recorded on privy examination, will be effectual to pass the title of the wife in the trust estate, without the cooperation of the Trustees. A feme covert to whom separate use land, has been conveyed to Trustees, may in connection with her husband, convey by deed duly recorded, upon privy examination, her inteiest therein.
44 Ky. 167Greenwade v. Fisher (1844)
Error to the Trigg Circuit. Replevin, Judgment de retorno. The case stated. Though no bond may have been executed on suing out a writ of replevin, yet if the writ had not been executed and the property had not been delivered to the plaintiff, it was error to quash the writ and render judgment for the return of the property. The writ was good as a citation, and the ease should have progressed.
44 Ky. 168Magill v. Merrie & Bullin (1844)
Error to the Anderson Circuit. Dormant partners. Dissolution of Partnership.. The ease stated, -Judgment of the Circuit Court. Notice of the withdrawal of a dormant partner from a partnership, is not necessary ; otherwise as to an ostensible partner. A note signed with the partnership name is prima facie a note of the firm, and the contrary must be shown if relied on.. A writing between the members of a firm, stipulates that one is to withdraw, and to be paid a proportion of the profits when the estimates are made, he is a partner until the estimates are made.
44 Ky. 172Murray's Administrator v. Baker (1844)
Error to the Trigg Circuit. Scire facias. Parties. The case stated. It is erroneous to enter up a new judgment on a sci. fa. it should be ajudgment that the plaintiff have execution — and, —It is erroneous to enter a judgment on asci.fa. vs an administrator in personam, it should be to be levied of the assets in the hands of the administrator. A sci. fa.' to revive a joint judgment against two or more defendants, should issue against all the defendants or their representatives or heirs, not against one.
44 Ky. 173Graham v. Strader & Gorman (1844)
Error to the Louisville Chancery Court. Slaves, removal of. Steamboats, owners and masters. Case as stated in the bill. Defence set up in the answer. Proof in the cause and decree of the Chancellor. Theprovtsionso? the statutes of 1824 an4 1828, malting owners, masters, &c. of steamboats liable for talcing slaves out of the State, without authority front their masters,, &o. A permission from the master or owner of a slave is necessary to authorize the master or the owner of a steam boat to convey a slave out of the State on a boat. It cannot be justified by proof that the master had himself taken or permitted another to take such slave out of the State on other occasions. The owner of a slave residing '¡in Kenluclty does not forfeit his slave by tailing him to Indiana or Ohio himself, or permitting another po do so, where the object of ihe visit is only temporary for a few hours of pleasure or amusement, or travel-ling through the State, and especially where no •right to freedom is asserted by the slave whilst there. A master of a slave residing in Ky. and taking his slave with him to Ohio for a temporary purpose, is not to be understood as renouncing his right to his slave, and on the return of the slave to Ky. he cannot, on that ground, assert right to freedom. The owner-of a slave who resides in Kentucky, who permits his slave to go to Ohio in charge of an agent, &c. for a temporary purpose, does not forfeit his right of property in such slave. That the owner of a slave in Kentucky permitted him to go to Lexington and to be employed there and at the surrounding towns and villages as a musician, did not imply an authority or license to the owners and masters of steam boats to convey him out of the State. The measure of recovery by the owner of slaves against the master or owners of steamboats for conveying them out of the State, is the value of the slaves, if hopelessly lost, if not hopelessly lost, the value less by the chance of recovery. In estimating the value their capacity for business, age, habits, character, habits of subordination, & whatever else affected their value, would be proper to be considered. Musical instruments, music books, &c. taken off with a slave by a steamboat, constitutes a part of the value of a slavjg, a musician who used them in the service of his master, and their value may be recovered with the value of the slave. When a slave has been taken out of the State by a steamboat, and escaped from his owner, the reasonable expenses of the master in prudent efforts to recover the slave, may be recovered in addition to the value of the slave, of the master or owner of the boat.
44 Ky. 187Wood's Executors v. Wickliffe (1844)
Appeal from the Nelson Circuit. Executors. Assets. Residuary devisees. Emancipated Slaves. The case stated. Decree of the Circuit Court. Errors assigned by appellant. Cross errors of appellee. Wood’s will construed. A will provides for the payment Of the just debts of the testator, emancipates a portion of the slaves, and devises the remainder of his slaves to certain resk duary devisees— held that the slaves not emancipated are assets in the hands of the executors foi the payment of debts, and did not pass on the death of the testator to the residuary devisees. The statute declaring that slaves devised shall pass as lands devised, applies to slaves specifically devised. The pendency of a suit in a different county from thatin which the testator dies and executor qualifies, is not presumptive notice of the claim which will render the executor liable personally- Slaves emancipated by will are necessary parties to a suit against the executor to subject them to sale to satisfy the debts of the testator, and a failure to malte them parties is error on which the executor may rely. Itis error to decree the absolute sale of slaves which have been emancipated by a testator, for the payment of his debts. But wheie several have been emancipated, the debt should be assessed upon each in proportion to the value of the hire and each sold for such length of time, on reasonable credit as will raise such prportion, with interest. Where slaves which are assets in'the hands of executors are divided by the executors who are residuary devisees of such slaves, after notice of outstanding unsatisfied debts against the testator, they are accountable to creditors for the valué, and reasonable hire for such slaves.
44 Ky. 195Justices of Grant County v. Bartlett (1844)
Error to the Grant County Court. Motions. Collectors. County Levies. The case stated. The County] Ct. Attorney is the proper person to give notice in behalf of the County Court, of a motion intended against the sureties of a Collector fox failing to pay the County levy. ' Where a County collector attends and makes a settlement with Commissioners, appointed by the County ’ Court, which has been approved by the Court, he cannot object to such settlement because the commissioners were not members of the Court, — or that he had not notice of their meeting. A bond of a Collector of County levy executed to the Commonwealth, is valid since the statute of 1810. — ' —And a misrecital of the am’t. of the sum to bo collected, will not render the bond invalid, or prevent a recovery of the proper balance found due on settlement.
44 Ky. 197Foster's Administrator v. Williams (1844)
Error to the Christian Circuit. Jurisdiction. Lost bonds. The ease stated. Pleadings am judgment of the Circuit Court. CouRts of Equity assume jurisdiction. to decree the payment of lost bonds on the ground that profert cannot be made thereof in a suit at law, and a Court of Law could not decree that a bond of indemnity be given. English CouRts of Law now entertain jurisdiction of suits on lost bonds butin Ky. a Gourt of Chancery alone is the appropriote tribunal to grant relief to the obligee. —But where a bond is only defaced and the material parts remain, and proferí be made, a Court of Law has jurisdiction.
44 Ky. 199City of Louisville v. Hyatt (1844)
Appeal from the Louisville Chancery Court. Corporations. Corporate powers of Mayor and Council of Louisville. Cases stated and their object. Lots on squares in Louisville were not liable for an assessment made upon them by the Mayor and councilmen, for grading and paving except it was made on their petition, or ordered by unanimous consent of Mayor and Councilmen in council assembled. Further questions arising the cases. The Mayor and Council of the city of Louisville employed persons to grade and pave streets in Louisville, the undertakers agreeing to take the liability of the lot holders in payment — the Mayor and Council exceeded their authority hy acting without the petition of lot holders or the unanimous consent of the Council — held that the city was bound for the work and labor to the undertakers. The right of the city Council under its corporate powers, is ample to grade and pave the streets for the common benefit without express grant: (4 Dana, 155.) A competent board of the Mayor & Councilmen of the city have power to contract for grading and paving the streets of Louisville, and to tax the city for its payment.
44 Ky. 222Jones' Adm'r. v. Perkins (1844)
Appeal prom the Livingston Circuit. Evidence. Insanity. Jurisdiction. Fraud. The case stated. Answer of Jones. Decree of the Circuit Court. The opinions of witnesses as to insanity are entitled to very little or no weight. Where an individual, from intemperance, was subject to temporary derangement, with the assent of his family & friends, sold property at pay his debts then pressing him, at a time when not under the influence of such alienation of mind contracts were binding. Courts of Equity-exercise jurisi diction to set ¡I aside contracts Í made with idiots and lunatics, oh l the ground of mud, which may be implied from dealing with them, knowing their incapacity; but where the evidence of good faith is full, and the contract beneficial to the unfortunate person, the Chancellor will not interfere. -And especial after a great lapse of time, during which there had been intervals of sanity, and he knew the situation of the transaction, & that the price out in discharge of his debts. When the statute of limitation begins to run, its operation is not suspended by insanity-Argu. Though one's mind may be impaired by intemperance, yet if he have capacity to judge of the value of his property and make a discreet bargain, his contracts will be binding.
44 Ky. 228Morehead v. Watkyns (1844)
Appeal from the Clarke Circuit. Statute of frauds. Landlord and tenant. Notice to quit. Cass stated. Facts agreed in the Circuit Ct. In tenancies from year to year the right to six months’ notice to quit, is mutual between landlord and tenant. Tho’ the statute of frauds ¡prohibits an action on a lease for more than one year, yet ii lessee occupy the premises under such lease, an implied assumpsit arises to pay the value of the use, and six months’ notice by such lessee is necessary. Tho’ no action can be maintained upon a lease for more than one year, yet as the lessor who makes alease for a longer time cannot oust the lessee, neither can lessee abandon the lease without six months’ notice of such intention to the landlord, and thereby evadehis responsibility for the year’s rent.
44 Ky. 233Halley v. Oldham (1844)
Error to the Madison Circuit. Sale of land under execution. Trustees and trusts. The case stated. The oases of LLelmv s Logan’s heirs, (4 Bibb, 78;) Graham vs Samuel, (1 Dana, 166,) Campbell vs Mosely, (Litt. Sel. Cases, 358;) Chinn vs Butler (3 Dana, 547;) Morton vs Boberts, (4 Dana, 258,) taken together, establish the principle, that if an execution purchaser have notice before his purchase, that the title subsequently acquired is held in equity, subject to the claim of the prior incumbrancer. It is a general rule, that a purchaser, though he pays his money, is affected by notice of an outstanding equity, received, at any lime before he is clothed with the legal title. The title of a purchaser under execution sale of land, relates back to the time of the receipt of the execution by the Sheriff — and his right upon the purchase and payment of the price, or giving a bond, is not a mere equity, such as will then be affected by notice then received of a prior sale to a private purchaser, but is an inchoate legal title. The sale of land under execution passes the legal estate to the purchaser, though the equitable title may have been parted with by defendant in execution.
44 Ky. 240Morrison v. Glass (1844)
Error to the Christian Circuit. Assignor and assignee. Diligence.- Lien. The case stated. Where a note is assigned which appears Jto have been given for land, and it is proved that the land has not been conveyed, tho’ diligence by suit against the obligor has been used, the assign nor is not responsible until the lien upon the land has been exhausted.
44 Ky. 241Clay v. McClanahan (1844)
Error to the Madison Circuit. Assignor and Assignee. The case stated, Promises of payment a note to an assignee made after the assignment the obligor from setting up an equity then unknown to the obligor, especially where there has not been a forbearance to sue at his request, which destroyed the recourse vs assignee.
44 Ky. 246Dufrees v. Maxey (1844)
Error to the Green Circuit. Reversal of Judgments. Where a judgment was recovered and property sold and a sale bond taken, and the judgment reversed by this Court, and the sale bond paid to the obligee, held that no action could be maintained upon the bond by the defendant, in the name of the pl’ff. to recover the amount of the sale bond. If the reversal had taken place before the payment of the sale bond, might not the defendant have given notice to the obligors therein and suspended the payment until the Circuit Court could direct its payment to the defendant? — Qu.
44 Ky. 248Vannoy v. Patton (1844)
Appeal from the Knox Circuit. Retailing spirits. Tippling. The case stated, No recovery can be had for spirituous liquor sold in violation of law. — Ex terpi causa non oritur actio.
44 Ky. 250Wright v. Strange (1844)
Error to the Warren Circuit. Assignor and assignee. Dilligence. Case stated. The execution of a replevy bond is strong, tho’ not conclusive evidence of the solvency of the debtor.— * — Andaretumof nulla bona upon s. fi. fa. on replevin bond, is prima facie evidence that the Sheriff has not done his duty in taking surety, and the assignor is bound to pursue the Sheriff, in such case, before resorting; to the assignor.
44 Ky. 253Wickliffe v. Bailey's Adm'r. (1844)
Appeal and Writ op Error to the Fayette Circuit. Writs of error. Parlies. Possession. Vendor and Vendee. Case stated. A parly to a suit who has no common interest with the other parties, but whose interest is opposed to all his co-defendants, cannot use their names in a writ of error to reverse a decree on account of an irregularity which applies exclusively^ to them. When the Chancellor has jurisdiction to enforce a mortgage lien, he has the power to control the possession of the land mortgaged, and place the purchaser in possession by his decree, who should be a party to the suit, if in possession at its institution. In partition and mortgage eases, where the proceeding is against the land, the Court will compel the parties to the suit, and those coming in pending the litigation, to surrender possession as it may decree. A party claiming under a mortgage cannot by bringing bis bill to foreclose, against one in possession, whose title accrued before the mortgage, transfer the jurisdiction to try the title and right of possession to the Court of Chancery.
44 Ky. 263Grimme v. Commonwealth (1845)
Error to the Franklin Circuit. Retailing Spirits. A presentment for retailing spirits, without designating that it was done in any other place than in the county, is not good.
44 Ky. 264Calvert v. Commonwealth (1845)
Error to the Caldwell Circuit. Gaming. Provisions of the statute of 1833 Instructions of the Court. The statute of 1833, does not authorize a fine against one who assumes without authority. the right to permit gaming in a room where he is neither owner, occupant, or by authority superintendent.
44 Ky. 266Clary's Heirs v. Marshall's Heirs (1845)
Error to- the Flemino Circuit. Statute of Frauds. Parties and Privies. Bills of Revivor. The case stated, A parol contract ioi the sale of land or for a lease for a longer term than one yeai is not void, but valid for many purposes, and a conveyance in compliance with such contract, will relate back to its date, and overreach an intermediate sale. A vendor may, by pleading the statutejof frauds, avoid a parol coMaact for the sale*HÍ land, or waive it, and consummate his contract, and cannot be deprived of his right to do so by a stranger. The statute of frauds was made for the benefit of the parties to parol contracts for land or those claiming ander them, and not for the benefit of strangers, thereto. A vendee obtained title by-suit in Chancery and made a conveyance in accordance with a previous parol contract of sale of part of the land, on bill of review, the decree being for too much land, was reversed, and adecree rendered for part only of Ibe land, first decreed to the first vendee, leaving out the part by him conveyed under his parol contract, the vendee under the parol contract being in possession during the pendency of both bills, held that his original equity was not affected by the decree on the bill of review, he being no party to the suit. A junior mortgagee not sued, has a right to redeem. although aforeelosure has been had by the senior mortgagee.
44 Ky. 278Evans v. Evans (1845)
Error to the Anderson Circuit. Divorces. er stated. This Court has the power of revising decrees of the Circuit Court refusing divorces. When the fact of abandonment by the wife for the space of one year, is alledged and proved, the husband is entitled to a divorce.
44 Ky. 279Myers v. Smith (1845)
Appeal from the Pendleton Circuit. Ejectment. Costs. Service of common order. The return of service of a common order in ejectment, must appear to have been by an officer of the law. 'The tenant in possession is not •liable for costs until he has been •admitted defendant by order of ‘Court.
44 Ky. 280Salter v. Myers (1845)
Error to the Garrard Circuit. Wilness. Evidence, Juries. The case stated. The Court should Hot, by an instruction, withdraw from the jury the determination of matters of fact, determinable from other facts and eircumstonc e_s given in evidence.
44 Ky. 282McLear v. Morgan (1845)
Appeal from the Fayette CtRCuiT. Trespassers. Settlement on the wife. Joint Trespassers. The case stated. The objects of the bill of McLear. Parker’s answer and cross bill. Objections urged to the decree cree of the Circuit Court. A judgment is obtained against the husband as one of two joint trespassers, execution levied on the land of the wife, it is agreed that the judgment' be, and it is assigned to the husband and two others, and the husband with the consent of the other assignees of the judgment agreeing to settle upon the wife half the lands of the wife, and securing two thirds of the judgment to the assignees —Held that this did not amount to any satislaction of the judgment as to the other joint trespasser, but it might be enforced by execution against him for the half the entire amount, to the use of the wife of the other joint trepasser to her separate use as agreed on by the assignees of the judgment, and her husband. A purchaser of an equity of redemption, agreeing to receive from defendant in execution the amount of the price given therefor, at a period more than 12 months from the date of his purchase, and actually receiving part thereof, before and the balance after the twelve months, thereby waives the right of claiming the absolute right under such purchase. Time is of no importance in sales of land, unless it be of the essence of the contract.— Aegu; Circumstances irom which fraud is deduced in this case.
44 Ky. 293Commonwealth v. City of Louisville (1845)
Error to the General Court. Taxes of Louisville City. The case stated. The statute of 1843, “to amend the charter of Louisville,” repeals the 7th section of the statute of 1836, which required the payment of $1200 into the Treasury of the State.
44 Ky. 296Ellis' Adm'r. v. Merriman (1845)
Error to the Bullitt Circuit. Variance. Judgment. Consideration. The case staled. Note was signed by one as adm’r. of “Isah” Saunders, and corectly set out in petition, in which “Isaiah” Saunders, adm’r. is deelaredagainst: held there was no variance. One who gives an obligation, signing as adm’r is personally bound, and if want of consideration be not plead and proved— —Judgment is properly rendered de bonis propriis.
44 Ky. 298Marshall & Spears v. Hutchison (1845)
Appeal from the Bourbon Circuit. Fraudulent conveyances. Specific execution of contracts. Case stated in the bill. Tucker’s answer’ Hutchison’s answer' Morris’s answer. Proof in the case. A conveyance of land made to one creditor to the exclusion of others, for the payment of debts justly due, at a price greater than is shown to be its real value, is not to be held fraudulent, because the purchaser assumed to pay to the separate use of the •wife of the debt- or grantor, a sum of money above the real value of the land for her relinquishment of her dower right. An insolvent debtor in the disposition of his property,[has the right to discriminate between creditors, and provide for part,_to the exclusion of others. Where the wife' of an insolvent debtor has been induced to relinguish her dower m his land under an assurance from the vendee that he would pay a compensation therefor, to her own use— Would not the Chancellor, enforce such an agreement ? Or would the Chancellor seize upon and appropriate such fund to the satisfaction of the debts of the husband? Argu.
44 Ky. 307Young v. Stallings (1845)
Error to the Marion Circuit. Fraudulent conveyances. The object of the bill. A creditor may rightfully purchase the property of his failing bebtor to the extent of his demand, and even, if the purchase exceed the demand, the purchase will not be invalidated unless there be other considerations calculated to show a fradulent intent. That a creditor purchased a negro woman and two children at $900, $240 more than'the creditor demands, where they were family slaves, and it is not shown that the purchaser hada knowledge oí an intention to commit fraud, or held in trust for the debtor, there was no ground to hold the transaction fraudulent. A sale by a debtor to his single sister-in-law, of slaves at a fair price, in satisfaction of just debts due her, will not be fraudulent, though, made under the belief that the property would be set over to the use of the debtor’s wife and children.
44 Ky. 314Hanna v. McKenzie (1845)
Error to the Hickman Circuit. Pleas and pleading. Injunction bond. Practice. The case stated. To a suit on an injunction bond a plea that the Court granting injunction had no jurisdiction, is invalid. It is the act of obtain the injunction, give the bond, and delay the collection of the judgment, and though the bond may not be good as a statutory bond, it is valid as a common and fading as such. Nehil debit is not a good plea to an action of debt on an injunction bond. Where defendant appears and goes to trial without ashing a continuance, it is a waiver of the objection that the service of process was not ten days before Court.
44 Ky. 317Smith v. Berry (1845)
Appeal from the Harrison Circuit. Usury. Case stated. S. sold to B. a tract of land, received part and took B’s notes for the remainder of the price at 10 per cent, interest, the land fell in value, B. agreed to, and gave up the land to S. for the balance of the unpaid price, it exceeding the full value of the land atthat time, held that the transaetionwas not usurious. Usury is allowed to be recovered back upon the principal that it is paid without legal consideration, and is extorted from the debtor laboring under necessity.
44 Ky. 320Talbott's Ex'rs. v. Bell's Heirs (1845)
Appeal prom the Woodford Circuit. Lapse of time. Trust and Trustees. Yendor and vendxe. Estoppel. The ease stated, The decree of the Circuit Court. A purchaser is estopped to deny that which appears in the deeds through which he claims title. A pendente lite purchaser must abide the decision of the ease of his vendee. A vendor whose vendee has been evicted^ may maintain a bill in chancery to reinstate his vendee in the legal title, and possession the land sold. Lapse of time in this case presents no bar to a suit in chancery to compel the surrender of a legal title obtained from the trustee, and under a decree which is reversed. When| title and possession have both been obtained by a decree which is afterwards reversed, the Chancellor may, should decree a surrender of the possession where he found it. One who has obtained and held possession under a decree which is ultimately reversed, is liable for rents.
44 Ky. 327Hunt v. Fox (1845)
Error to the Pulaski Circuit. Rescission of contracts. Lien. Mortgages. The case stated. The decree of the Circuit Court. Objections made to the decree of the Circuit Court. A mortgagor sold land with the assent of the mortgagees, who agreed .to release their ‘ mortgage on receiving a certain amount of the price, of which he received part and the note of the purchaser for the remainder, the mortgagees did release their mortgage, but the mortgagor being unable to make title, the contract was rescinded — Held that the mortgagees surrender the unpaid note and be reinstated in their mortgage lien to that extent, and that the purchaser have a lien for the part paid, but subordinate to the lien of the mortgagees, if the amount could not be made of that part of the land purchased, not covered by the mortgage.
44 Ky. 337Smith v. Pope's Heirs (1845)
Error to the Garrard Circuit. Sheriffs sales of land. Purchasers. The ease stated. Instructions given by Circuit Court and judgment. The question for decision. It is against the policy of the law and 'within the spirit of the prohibition in the statute, for one deputy Sheriff to buy land sold by his co-deputy. —And a pin-chase from a deputy Sheriff who has purchased at a sale made by his co-deputy, is not an innocent purchaser without notice, and within the protection of the statute. A purchase from one who claims under a sale under execution, is bound to take notice of what is contained in the record of the. judgment.
44 Ky. 340J L. Lillard's Ex'r. v. Joseph Lillard's Ex'rs. (1845)
Error to the Mercer Circuit. Pleas and pleading. Abatement. Parties. The omission of the name of one of several ex’rs. is but matter of abatement which must be taken advantage ot by-plea in abatement, or demur in the nature of a plea in abatement hied in proper time. The penalty of a bond being joint a joint action maybe maintained upon it, tho’ the condition may require different sums tobe paid to each — or a separate action may be maintained in the name of each to -whom any thing is to be performed. That the writ was served by one interested must be taken advantage of in the court below, and in proper time, it is matter of abatement. This Court will not decide upon matters not embraced by errors assigned.
44 Ky. 341Davis v. Logan's Heirs (1845)
Error to the Shelby Circuit. Covenants of warranty. Dower. Damages. Case stated. A conveyance in fee simple with warranty against all superior claims, is broken by a recovery of dower by a widow of one previously seized. Mode of ascertaining the value of a dower estate in money. Suit on a covenant of warranty the breach being a recovery of a dower interest, the amount of the value of that interest is the criterion of recovery.
44 Ky. 347Daniel & Breck v. Smythe (1845)
Appear from the Garrard Circuit. Vendor and vendee. Rescission. Attachment. The case stated, Decree of the Circuit Court. When the record of a suit is refer-' red to in a pleading in chancery, as a pending suit as well the orders then made, as those subsequently made, constitute apart of the record, and should be looked into os such. The chancellor will not dissolve the contract for defect of title, or incumbrance, if the defect be remedied or incumbrance removed before the hearing.
44 Ky. 352Moore v. Tisdale (1845)
Error to the Harrison Circuit. Dower. Alienage. The case stated. Will the removal of a wife with her husband out of the U. S. bar her of dower in lands of which he Was seized during the coverture ? — Qu. Thepresumption of alienage arising againsta wife from the fact of her removal with her husband to a fereign government, may be repelled by other evidence. —And the retain of the wife to the U.S. shortly after the death of the husband, and remaining, is proof of her intention to retain her citizenship. The statutes of conveyancing do not authorize a feme covert to convey afreehold or fee simple estate by a separate deed during the lifetime of , her husband. The 3d section of the act of 1792, applies only to deeds theretofore made by the husband in which the feme covert is named. The statutes authorizing feme coverts to convey are enabling statutes, the common law clid not authorize it. The execution of a deed by husband Jalone, implies a presumption that hedii not intend the wife to unite.— Alian. Will a Court of Equity disallow a claim of dower on account of a parol promise made to vendee, under a decree against the husband to convey?-Qu.
44 Ky. 359Bishops v. Gregory (1845)
Error to the Washington Circuit. Execution sales. Purchasers. The case stated. A purchase under an execution which has been paid off, will acquire a good title to the property, if he be ignorantof the fact that it has been paid off.
44 Ky. 362Hanna v. Spotts' Heirs (1845)
Error to the Hancock Circuit. Bills of review. Guardian. Trustees. Infants. Decrees. The case stated. Petition of Spott's heirs and answer. Decree of Circuit Court on bill of review of Spotts’ heirs. beotees against infants should give day for opening the decree after their arrival at full age. It is error to take a bill for confessed against infants’ or to decree against them upon iiling copies only of the bonds of their ancestor. It is error ttfsubjeet the lands of non-residents to the payment of debts without the bond required by the statute. bill in the ñaue of a bill of 'review may be sustained for aud in obtain» iig a decree., it One who assumes to act as-guardian will be held to that fidelity due from a guardian in fact. A bill in the nature of a bill of review for fraud in an original decree, should be filed in the Court where the decree was had. Infants in general, have no more right to open a decree in their favor or question it collaterally, k than adults. A guardian or gmisilrustee purchasing up debts against his ward or cestui que trust, is only entitled to be reimbursed to the extent of the sums expended, and interest.
44 Ky. 369Kelly's Devisees v. Kelly (1845)
Appeal from the Washington Circuit. Wills. The question stated. unto^ceitem circumstances, ofVdisposingVof waifor7 a power SfüffSSrS a will, if prima /acicshei|shewn of^rob*e°can- ^ , inquire been _ properly \^iiTeieng°offered for probate, An agreement by husband after marriage, entered into with a trustee, giving to the wife a power of disposing of property by will which she owned before the coverture, is prima facie, valid. The proof of the will is satisfactory.
44 Ky. 376Dunn v. West & Hackley (1845)
Error to the Garrard Circuit. Set off. Statute of frauds. The case stated. Difference between Kentucky and English statutes allowing set off. 'Two joint and -several obligors - sued may set off a demand due to 'one of them separately -from .-plaintiff. A promise by one person to indemnify another if he will become surety for a third person, is an original promise and not within the statute of frauds.
44 Ky. 384Holderman v. Holderman's Heirs (1845)
Error to the Green County Court. Dower. Division of lands. Notice. The limitation to a writ of error to judgment of the County Court, confirming the report of Commissioners to assign dower, &c. commences from the time of the confirmation of the report, and not from the appointment of the Commissioners. The statute authorizing the appointment of Oomm’rs to allot dower and divide lands by the County Court, requires notice to be given to all persons interested, or of any change made in the Commissioners appointed with notice.
44 Ky. 387Porter v. Scobie (1845)
Error to the Montgomery Circuit. Execution sales. Mortgaged lands. Rescission. Case stated. Mortgagees, where the authority to do so is given in the mortgage, may surrender the lands mortgaged to satisfy the debts to secure which they are bound as surety. Without such power given by the mortgage, the sureties,who were the mortgagees, may give up, and the Sheriff receive their written surrender to him, under seal, for a sale of their legalestate in the mortgaged land. When a Judgment is injoined on account of defect of title in the land for which the note sued on was given and defect is remedied before the hearing, no damages or costs should be given to complainant.
44 Ky. 390Graves v. Sayre (1845)
Error to the Scott Circuit. Equity of redemption. Hire of mortgaged slaves. The case stated. Decree of the Circuit Court. A mortgagee, from the time of the forfeiture of his mortgage,has a right to demand and have the possession of the mortgaged property; but if he does not demand it, neither the mortgagor or a purchaser of the equity, is bound for its hire or use, until possession be demanded rightfully-
44 Ky. 393Dunlap v. O'Bannon (1845)
Error to the Garrard Circuit. Equities. Substitution. Sureties. The case stated. The placing of hands of an attorney at law as collector, as collateral security, to collect and pay upon a judgment against the person so delivering over the notes, creates an equity in favor of the judgment creditor which cannot be defeated by a transfer of the receipt of the attorney to a third person.— —And a surety in the judgment has a right in equity, on paying off the judgment, to be substituted to the equity of the judgment creditor before the assignee of the receipt of the attorney.
44 Ky. 395Bardstown & Green River T. R. Co. v. Duncan (1845)
Error to the Grayson Circuit. Release. Witness. The case stated. The delivery of a release to the attorney at law of a Turnpike Road Company, who was a stockholder also, by one offered as a witness, of all interest in the controversy, is valid and effectual to qualify the witness to give evidence for the company.
44 Ky. 397Botts' Administrator v. Fitzpatrick (1845)
Error to the Bati-i Circuit. Pleas and pleadings. Judgments. The case stated. Where there is a demurrer to a plea, not dispos» e& of by the Circuit Court, by any thing appearing on the record and judgment for the plaintiff, will be considered by this Court as sustained. A plea by defendant that he was surety in the covenant sued on, and that judgment had been recovered there against his principal, and execution issued and levied, without averment of satisfaction, is no bar. The father who is the heir of his son, is not a competent witness for his administrator. A judgment against an adm’r. should be for the debt or damages to be levied of assets tin his hands, to the extent that assets may be found to be in his hands, and for the balance, of assets which may come to his hands.
44 Ky. 399Hunt v. Armstrong's Adm'r. (1845)
Error to the Mason Circuit. Endorsement. Assignment. The case stated, The rules and analogies of the law merchant in relation to the assignment of notes, authorized by our statutes, is observed in Kentucky,and the the holder of a note assigned in blank, may rightfully fill up an assignment to himself: at any time before the trial of a suit thereon. The liability on an indorsement of an accommodation note, or of mercantile paper, is that of a surety, and a responsibility to the holder for the entire amount, and is not limited to the amount received for the assignment. The assignee cannot maintain suit against assignor, on the ground that the obligor at the date of the as signmeat held demands against assignee which he might plead as set-off against the demand.
44 Ky. 403Murray v. Fishback (1845)
Appeal from the Jefferson Circuit. Mortgages. Lapse of time. Execution sales. The case stated. A mortgage to secure title to lands conveyed, will be presumed to have been released after the land conveyed had heen enjoyed for from 30 to SO years. Lands vested in a citizen are not forfeited by a removal to a foreign country A division between two parceners is made by County Court Commissioner s, and possession taken and held under it, though no deeds aie made, one sells to a third person the other parcener unites in the deed and release. Held that no title passed from the releaser who . gave no warranty. The husband, tenant by the courtesy, sold land of the wife, the contract is rescinded, and the land sold, to pay the consideration given under execution against the husband — held that only] the estate of the husband passed to the purchaser.
44 Ky. 416Wells v. Porter (1845)
Error to the Flemin© CrRouiT. Vendor and vendee. Assignor and assignee. Liens. The case stated. Henry and Peter Lee's bill. Decree of the Circuit Court. An executory contract of sale of 310 acres of land, vendee is entitled to have a rescision, vendor being unable to convey 60 acres of the land sold, including the dwelling house, spring, out houses and valuable improvements, constituting a prominent inducement to the purchase. A purchaser seeking a rescission. oí a contract of purchase of a tract of land, having paid a portion of the price and induced a third person to take his note for a part of the price unpaid, upon obtaining a rescission, will be postponed in his lien upon the land to the third person who holds his note, and who is also a party seeking to enforce his lien, and he will be postponed to a judgment creditor, of him the vendee, who has filed his bill to subject his equitable interest to the payment of his demand. A vendee executing his note to a third person for a part of the consideration of land purchased, is estopped to resist the payment on account of defect of title, where he obtains indulgence, and the lien is not waived. Bonds, conveyances, &c. intended to secure greater rate of interest than 6 per cent. &c. are void for the excess over 6 per cent, per annum, but binding to that extent. The Chancellor is not bound to conform to the rules and practice of the common law courts, in selling on 3 months credit,' but may, in his discretion, extend the credit and sell for payments in instalments, so as to benefit both debtor and creditor.
44 Ky. 426Adair v. Smith (1845)
Error to the Butler Circuit. Deeds of gift. Remainders. Deeds of gift, &c. were properly acknowledged or proved in the offices of the Clerks of Circuit Courts in 1803, under the statute of 1803. A title in remainder in slaves, carries with it the right to the issue of slaves thus held, and becomes absolute on the death of the tenant for life.
44 Ky. 428Winfrey v. Williams' Executors (1845)
Error to the Adair Circuit. Mortgages. Equities of redemption. The case stated, Decree of the Circuit Court. Questions for decision in this Court. A purchaser from one of several mortgagees and the mortgagor of a part of the property mortgaged, acquires the title of each, and a purchaser of the equity of redemption subsequently in the residue of the property, cannot complain unless for fraud as a creditor. A purchaser of an equity of redemption,in case of a decree nisi, who asks the privilege to do so, should have the privilege to redeem extended to him by the decree — though he has the right to do so_, — or upon bringing the money into Court, no sale should, be made. A father took a mortgage on the property of the son to secure him against certain liabilities as surety for the son, & died, providing that his son receive only $10 of his estate, he having paid and being bound as his surety for a sum equal to his part of his estate, but if he paid the debts for which he was hound, then he was to have an equal share with the other children. Was not that in effect a release of the claim for indemnity under the mortgage. — Qu.
44 Ky. 435Grigsby & Oldham v. Daniel (1845)
Error to the Garrard Circuit. Witness. Depositions. Evidence. The case stated. One who is sued Jointly with another for an alledged fraud, who was not a citizen of the county, and as to whom the suit had been abated, on being released from all liability by the defendant, and any action against him bared by limitation, was a competent witness. Depositions read in a chancery suit, may be read in a subsequent suit at law between the same parties, or some of them, where the same subject matter is involved, and their interest the same, and the witness cannot be had, notice of their taking is not indispensible if the depositions were read on the first trial.
44 Ky. 441Wright v. Swayne (1845)
Appeal prom the Hickman Circuit. Vendor and vendee. Rescission. Damages. The ease stated. Set off in equity refused, insolvency and fraudulent intent of defendant to sell off his property not sustained by proof. Chancery has; jurisdiction where the object of the bill is a specific execution or a rescission, and an enforcement of lien for money-paid by the purchaser. A joint stock company was formed to lay out and sell off a town, certificates of stock issued and signed by the company. A sub-purchaser of certificates of stock cannot, on the ground that his vendor was deceived, demand a rescission of his contract of purchase after the speculation had failed,& a knowledge thereof, nor can a member of the company set aside the contract of association on the ground that he was deceived after they have parted with then-stock. A joint stock company formed to lay off, and sell out a town, announcing that titles would be made to purchasers, are jointly and individually bound for such titles; and a certificate holder has a right, fin case the title is defective, to a material part of the land; promised to be made part of the stock,) to a proportionate compensation for such loss. A portion of the-land laid off and sold as a town or put into the stock of the company is lost — by what criterion is the damages on behalf of scrip holders of the company to be settled ? Held that he was entitled to his proportion of the value of the part lost, taken in comparison with the value of the whole property or stock, on the day the scheme failed, either as town lots or land at his discretion, with intent to be ascertained by an auditor.
44 Ky. 448Chamberlain v. Maitland & Co. (1845)
Error to the Jefferson Circuit. Sills of Exchange. Judgments. Damages. Interest Bills of Exchange, payable in Massachusetts where an annual fast is directed to be observed by statute and the proclamation of the Governor, in conformity therewith, are properly protested for non-payment on the day preceding the fast day, and the fact that a particular day was set apart as the fast day,may be proved by parol as other facts of general notoriety, and a sworn copy or extract from the statute proves its existence as law. Since the statute of 1837, giving interest on all judgments, it is error to render judgment in a suit on a Bill of Exchange for principal and interest by way of damages, upon which interest would run after judgment, by the force of the statute.
44 Ky. 450Henry v. Graddy (1845)
Appeal from the Woodford Circuit. Specific performance. Rescission. The case stated. If it he not the intention of the parties in executory failure of either to perform punctually his part of the contract shall put an end to it, time is not considered as so essentially important, as to deprive either party of the right to enforce the contract. Chancellor Kent's opinion in regard to time in the case of Benedict vs Lynch, (1 Johnson's Chy. Rep. 379;) and Alley vs Deschamp, (13 Ves. 224,) cited and approved. When the vendor failed to deliver entire possession at the time agreed on, having given it in part before, and vendee refused to part with his money until full possession was given, and the conduct of neither party evinced a disposition to abandon the contract, but to execute it, held that vendor might have a specific execution. When the facts show that both vendor and. vendee considered and heated the contract as still subsisting, although possession of the entire purchase was not surrendered as agreed upon, and the inconvenience and damages arimg therefrom could be fully compensated out of the purchase money unpaid; Held that a rescission was not proper, on the ground that vendor had been in default.
44 Ky. 458Oldhams v. Jones (1845)
Appeal prom the Madison Circuit. Tax. Sales. Trusts. . Witness. The case stated. Decree of the Circuit Court. A defendant may be examined in chancery for his co-defendant when he has no interest in the question to which he deposes. The possession; taken by one claiming a portion of a tract of land as locator, is not an adversary possession, and the lapse of time does not operate a bar. The sales of the right and interest of femes covert, in lands, not affected by sales tor taxes, being i protected by the statute of' 1799. The legal presumption is, that the Register has duly performed all the pre-requisites to authorize him to sell lands for taxes, though the contrary may he shown. Provisions of the statutes of 1799, &c. relating to sale of non-residents’ lands for taxes. The title which existed, in the person in whose name non-residents’ lands was entered for taxation with the auditor, is the title the Register was authorized to sell on the failure to pay the taxes, and which passed to the purchaser at tax sale and conveyance by the Register. Thor land listed for taxes by nonresidents’ devolved upon the heirs of the owner by his death, yet the lien for taxes existing, the title passed to the purchaser. An agent appointed in Kentucky to pay taxes on the lands of a non-resident, suffered the same to be sold for taxes, at a small price & bought it himself, — held that his purchase was in trust for the benefit of the owners. Where the chancellor has jurisdiction to decree partition, he may also settle the conflicting rights of the parties, and settle the whole controversy. One is not affected by the compromise and dismiss of a suit to which he is not party by actual or constructive service of process, though named in the pleadings.
44 Ky. 471Gregory's Heirs v. Ford (1845)
Appeal prom the Shelby Circuit. Femes covert. Champerty. Adverse possession. Conveyances. Tire case stated. Any person acquiring possession of the lands of a feme covert, by alienation in fee of the husband, and under the title of the feme, is bound, at the death of the husband, to restore the possession to the wife or her heirs, and the same obligation devolves upon all subsequently coming into possession under her title. The champerty law of 1824, does not apply to a case where the title by which the land is sought to be recovered is the same as that under which possession was taken, and is still held; it is not an adverse possession, When numerous and complicated instructions are asked tor by one party and are given, and instructions asked for by the _ other party, it is not sufficient that the Court give them subject to be qualified by the instructions given at the instance of the other party, without designating the qualification intended. One who enters under a conveyance in fee from the husband of the lands of the wife, cannot, by buying in another title to the same land, defend himself under such after acquired title, against the suit of the wife or her heirs, after the death of the husband, instituted to recover the pessession. An adverse title purchased In by one so possessed, ceased on the purchase to be adverse. The rule that an entry of a senior patentee upon a junior patentee, operates as a possession of the senior patentee to the extent of his patent boundary, not actually enclosed by the junior patentee or those claiming under him,- recognized. The marriage of a female lessor of plaintiff, after the demise, does not affect the right of recovery in ejectment, though it is proper that it be suggested on the record. If the demise be after the marriage, there can be no recovery upon it. The jury cannot find against that which appears by written evidence, in favor of a party who produces such evidence, and it is error for the Court to instruct them that they may do so. When a question is proper for the considertion of the jury, all evidence legal in its character, conducing to the proof or disproof of it should be admitted. Deed for 84 acres is valid, though, it does not state that it was "shown and explained" to the feme on her privy examination, which though required to he done, no statute requires that it shall he so certified by the clerk, that provision is directory to the clerk—Holding to established principles, the Court is disposed to construe certificates of acknowledgments liberally to sustain titles.
44 Ky. 485Commonwealth v. Colgan (1845)
Error to the Jefferson Circuit. Distress for rent. Replevy. Pleadings by defendant. The case stated. In an action, against a Constable and sureties for failing to take sufficient sureties in a replevin bond, from a defendant under a distress warrant for rent alledged to be due, plea that the rent was not payable in money, and therefore distress warrant did not lie, not good plea. Justices of the Peace who issue and to whom distress warrants for rent alledged to be due and in arrear are returnable, have no judicial power to go behind the warrant and determine whether rent be or be not due. For a wrongful issue of distress warrants, the remedy to the injured party is by-action of trespass, ease, or replevin as he may find most appropriate.
44 Ky. 488Anderson's Administrator v. Irvine (1845)
Appeal prom the Fayette Circuit. Witness. Administrators and Executors. The case stated. Question for decision. It is incumbent upon a party objecting to the competency of a witness, to show his incompetency. The Court will notpresume that an. administrator who was sued, has been removed and the suit revived against his successor, has committed a devastavit and rendered himself an incompetent witness for the administrator defendant without proof. A judgment against an adm’r. de bonis non cannot be made the basis of a suit for devastavit as former administrator. Executors and administraters, grounds, upon which they were formerly incompetent witnesses.
44 Ky. 492Dale v. Shirley (1845)
Appeal prom the Barren Circuit. Commissioners’ sales. Opening biddings. Practice in Chancery. The ease stated. The Chancellor has and does exercise a snpervisionaiy power over the sales made, by Commissioners under his decrees, confirming or setting them aside as may be right and just. The practice in New York, &c. Surprise or mistake, though innocently induced by the conduct of some one concerned, in the sale of property as to the time of the sale, whereby one who designed to bid was prevented, has been held good ground by the Chancellor to order a re-sale. A creditor and junior mortgagee of estate sold under decree of foreclosure and order of sale, desired to bid and was prevented from being present at the sale through the agency of the compl’t who became the purchaser, at about one-sixth of the value of the land sold, and offering an advance of 10 per cent, and' interest upon the sum bid— Held that the sale should be set aside and a re-sale ordered by the Chancellor.
44 Ky. 497Shultz & Co. v. Johnson's Administrator (1845)
Error to the Mason Circuit. Covenant, personal. The case stated. Decree of the Circuit Court. Contracts should be so construed as to carry out the intention of the parties, tho’ it may be necessary to depart from the strict letter. As a general rule, the personal representative is bound to perform the contracts of his testator or intestate -whether named or not, unless something is to be done by the person contracting. The rules by which contracts are determined to be personal. If the parties intended the contract to be personal, it should be so held and treated; S. contracted with J. to receive and pay for at a certain price, all the hemp which J. should raise for six successive years, on not less than 100 nor more than 160 acres of land, of Ms own raising; J. died and in a suit by his adm’r. vs S. for refusing to receive and pay for a crop raised after the death of J.; held that the contract was personal, and that it could not he performed by J’s. adm’r.
44 Ky. 504Worth v. Smith (1845)
Error to the Jefferson Circuit. Appeal bonds. Sureties. The case stated. On an appeal by complainants, from a decree in chancery, by which, in a proceeding by attachment, the proceeds of a steam boat is distributed amongst several creditors including appellant, on affirmance damages and costs were given to appellant, in a suit by him, on the appeal bond, the surety is liable only for the damage & costs, and not for the debt; the appeal is from the decree of distribution only.
44 Ky. 506Commonwealth for Heth & Halbert v. Dickinson (1845)
Error to the Jefferson Circuit. Sheriffs’ bonds. Sales under execution. The case stated. Parol directions given by defendant in execution to levy upon an interest not subject to execution are incompetent, and will not be effectual to pass such interest on asale by the officer, unlessdef’t. was present at the sale and assenting thereto. It is the duty of the Sheriff on offering property for sale under execution, to state the interest which he offers for sale and to make known every defect of title to the property sold, which is within his knowledge, and for failure to do so, himself and his sureties are responsible, to any purchaser who is deceived, to the extent of the injury.
44 Ky. 511Griffith's v. Griffith (1845)
Appeal from the Daviess Circuit. Wills. Witnesses. The case slated. It is not sufficient that witnesses subscribe their names to a will as witnesses ; they must also attest the signature or acknowledgment of the will by the testator. Subscription and attestation, though required to be by both, may be proved by one of the subscribing witnesses.
44 Ky. 515Waller v. Logan's Heirs (1844)
Error to the Bullitt Circuit. Witnesses. Depositions. Writs of error. Frauds, statute of. Executors. Change of venue. Jurisdiction. Surveys and Patents. The ease stated, and object of Breckinridge's bill. Answer of Logan’s heirs made a cross bill vs all the defendants to Breckenridge’s bill except themselves claiming 1723 acres of the land. Consent decree of the Court below, between Logan’s heirs & a portion, of the defendants. Decree for Logan’s heirs on their cross bill in the Circut Court. The nature of the claim of Logan’s heirs. A witness who had twice transferred his interest in a tract of land, but where the second purchaser had notice of the first, is a competent witness for the first. Depositions taken by one party on cross interrogatories by the other, and three years after leave given the other patty to re-take, and afterwards exceptions filed to the first — held that they came too late, and properly overruled, An error of the Circuit Court in excluding a deposition will not authorize a reversal where the fact proved by the witness is sufficiently proved by other witnesses. Contract between. Bristow &c. and Logan, deemed free from fraud, and tho’ not signed by Waller till alter the death of Logan, it was, when signed, a recognition of his previous parol agreement, and binding from the date of the parol contract which it confirmed. W. Byrd's will. Mrs. Byrd’s will. Lands directed to be sold by\vill, atthe death of the widow of the testator, the widow qualified as executrix, she had no power to sell, and could not vest such power in. her executor. A. W. Waller’s claim. William Sale’s claim. Jonn P. Thatcher’s claim. Claim of John Stillwell’s heirs. A change of venue in a ease in chancery where the answer is made a cross bill, removes the whole case, as well on the cross bill as the oiginal. A cross bill may be properly filed to compel a conveyance where the person filing claims to hold an equitable right to it. When the Chancellor properly acquires jurisdiction of a contest in respect to the right of land, it is proper he should put the person entitled in possession. Questions upon the writ of error of Breckinridge. An entry is made in 1783, a survey in 1818 and patent in 1826. Held that the patent is void unless it be shown that the grantees were within some of the savings of the statutes limiting the time for making surveys.
44 Ky. 537Vance v. House's Heirs (1845)
Appeal prom the LoursviLLE Chancery Court. Vendor and vendee. Rescission. Rents, Interest. Costs. Statements of the bill of House. The answer and cross bill of Vance. House’s answer to cross bill of Vance. Bill of revivor by House’s heirs Decree of the Chancellor in the Court below. When the parties have agreed on the principles for adjusting rents and interest in case of inability to convey, or loss of the land, that principle should form the criterion by which to adjust them. When a contract for the sale of land has been, executed, a conveyance accepted, and purchaser let into possession, and no eviction or molestation, no injunction to the collection of the purchase money should be awarded, unless there has been fraud in the sale, insolvency or non residence of the vendor, and palpable danger of immediate or ultimateloss, without remedy. The onus lies on the vendee filing the bill in such cases. Where the purchaser had accepted a conveyance of a title under which possession had been held for more than 30 years, though the derivation of title was imperfect— Held that the contract should tof that cause. The Court divide the costs in this and the inferior Court. Mandate.
44 Ky. 544Wood v. Weir & Sayre (1845)
Error to the Fayette Circuit. Malicious suit. Probable cause. Case. Case stated. To maintain an action for a malicious suit, it is necessary for plaintiff to alledge and prove want of probable cause; malice and damage to the plaintiff — the second may be implied from the absence of the, first, but this implication may be repelled by facts showing a lawful and honest purpose. If an attorney, from malicious motives,procure from Justices of the Peace, an unauthorized order of attachment, operating injuriously upon clefts rights, he is liable as well as his client. The statute authorizing attachments to be levied upon lands by the order of a Court of Chancery, does not authorize the taking of possession and turning out defendant or other person under him, unles perhaps in case of an apprehended injury to the property itself— nor is such an act necessary to give efficacy to the service of the attachment. Crassa ignorantia is evidence of malice, especially in a lawyer that should know how to act. The fact that Justices of the Peace issued an illegal order of attachment, does not conduce to show that complainant or his attorney acted without malice in procuring it.
44 Ky. 552Kerr v. Smith (1845)
Error to the Henderson Circuit. Non-resident and absent defendants. Attachments. The ease stated. In a proceeding under the statute of 1837, to subject to the payment of debts, the property of non-residents & absent defendants, if no seizure of the property is asked, no oath to the bill or bond is required of complainant. S. contracted to deliver to K. a quantity of tobacco of a particular quality, KJ received the tobacco, but insisting that it was deficient in quality, gave receipts for it as of an inferior quality and at a less price. Held that as he had received the tobacco under the contract, he was bound for the contract price.
44 Ky. 554Greer's Heirs v. Boone (1845)
Appeal prom the Meade Circuit. Deeds of gift. Remainder. Husband and wife. Survivorship. Equity. The case stated. Decree of the Circuit Court. Deed of gift of slaves, by deed, by a father to his married daughter and her children, to be divided equally between them at her death, vested an estate in remainder in such as were in being, and in after born children as they came in being, and which vested in the husband of the female children upon marriage, and on their death vested absolutely in the husband by survivorship. Tho, the Chancellor will, at the instance of a wife, interfere to prevent property about to come into her husband’s possession in her right, from passing in, to his hands where she is destitute; yet after the death of the wife her children have no right to any such provision, out of the estate of the mother, unless there has been a decree or agreement to that effect during the life of the mother. The Chancellor will not lend his assistance to enforce an uncoaseientious bargain, made with one apparently ignorant of his rights, and where the consideration was greatly inadequate.
44 Ky. 562Hunt v. Brand's Heirs (1845)
Appeal prom the Bourbon Circuit. Lien. Assignor and assignee. Assignments. Purchaser. The ease stated. A sub-purchaser who has not fully paid the price of land purchased, cannot resist the lien of the first vendor for the consideration remaining unpaid by his vendor — he is not an innocent ¡purchaser without notice. The assignee of a note under our statute, takes it subject to all the defences at law or in equity, which could be setup against it in the hands of the assignor.
44 Ky. 564Lewis v. Harbin & Downing (1845)
Appeal prom the Fayette Circuit. Obligation of contracts. Limitation. Pleading. The case stated, Question involvby the pleas. The statute of 1838, (3 Stat. Laws. 559,) decided to be a statute of limitation and not unconstitutional. Constitutional provision with respect to the obligation. of contracts. Chief Jus. Marshall’s opinion in Sturges vs Crowningshield, (4 Cond. Rep. 421.) Justice Baldwin's Jackson vs (3 Peters, 290.) Opinion of this Court, Amy vs Smith, (1 Litt. 331.) This Court, in Blair vs Williams, & Lapsley vs Brashear, &c. (4 Litt. 84-87.) A surety cannot plead in defence to a suit at law, on a bond, that he is surety only, and that he has been released by indulgence extended to his principal by obligee, to which he did not assent. To a plea relying upon the statute limiting actions against sureties, it is a good reply to deny the fact of suretyship averred in the plea.
44 Ky. 575Clifton's Heirs v. Dougherty's Heirs (1845)
Error to the Trimble Circuit. Equities. The case stated. The case stated as between Dougherty and Kiddle. An elder equity may be waived or lost by laches in failing to assert it whilst a junior equity is acquired with the knowledge of the holder of the elder. A bona fide purchaser for a valuable consideration, will hold against a prior apparent equity, but not appearing to be on good consideration.
44 Ky. 581Standeford's Administrator v. Shultz & Co. (1845)
Appeal from the Bourbon Circuit. Gaming. Assignments. Caveat emptor. case stated, Decree of the Circuit Court. One who has lost a note at gaming may rightfully reclaim by receiving that amount or a new note for the amount from the obligors, before a transfer by assignment to an innocent purchaser. Under our statutes against gaming, the assignment of a note won at gaming does not deprive the assignment of the right to recover the sum due upon the note, and the obligors are not responsible to the assignee when payment is made to obligee before notice of the assignment. In the pinchase of assignable notes the maxim caveat emptor generally applies.
44 Ky. 585Throckmorton & Russell v. Lewellin (1845)
Appeal from the Louisville Chancery Court. SlavesEmancipation. Specific performance. The case slated, Can a parol contract for the emancipation of a slave be specifically enforced,? Qu. But conceding that it may, the person with whom the contract is made, and not the slave, is the per: son who must ask its specific performance.
44 Ky. 589Evans v. Robinson & Yantis (1845)
Error to the Garrard Circuit. Assignor and assignee. A distributee assigning his distributive share in an estate, cannot change the condition of adm'r. and if he has been fully paid, the assignee acquires nothing by the assignment.
44 Ky. 590Thomas v. Hite (1845)
Error to ti-ie Nelson Circuit. Guardian and ward. Bill in chancery. Frauds. Trustees. Pleadings. Case stated by complainant and prayer of the original bill. Answer of Hite thereto. Amended answer relying upon a judgment in ejectment for the same half lot in bar of this suit. Decree dismissing complainant’s bill. The judgment in ejectment reversed by this Court, new trial ordered and non-suit therein. Bill of review filed by complainant. Answer to the bill of review. Where the grounds of relief sought by bill are insufficient; yet if other grounds of the same character be well alledged the Chancellor should not withhold the same relief. Where an action of ejectment and a suit in chancery also, was commenced to recover the possession of a lot which was alledged to have been fraudulently obtained, the defendant in the suit in chancery amended his answer relying upon a verdict in his favor in the action of ejectment — Held that as the bill of exceptions filed in that cause showed that the fraud relied on by plaintiff had been excluded from the consideration of the jury that it presented no bar to the relief sought on that ground in the suit in chancery. Where an original bill charged fraud which was not denied either generally or specially by the answer, on filing amended answer settingup a judgment in ejectment in favor of defendant for the same land, sought to be recovered by the bill, to which there was no response, and thereupon a decree rendered dismissing the bill — Held that the inference is that the Court adjudged the matter of the amended answer as a valid bar to the recovery sought, and did not decide the case upon the merits. Fraud in the sale ofland under execution is a sufficient ground with the Chancellor to set a side the sale;and on a bill alledging such grounds not denied, complainant should have a decree. Facts appearing in the cause establishing the fraud alledged between Green, the guardian of the wife of Thomas, and Hite, the defendant. An adm’r who was also guardian, by his instrumentality, active as well as passive, aided a creditor in effecting a sale at great sacrifice, the real estate of the ward to pay a large debt of his own, as well as a small debt against the decedent — Held to be fraudulent, and set aside by the Chancellor. An insolvent guardian, contracting to procure and convey to his own creditor the estate of his ward in discharge of his own debt and a specified consideration in addition thereto, for his own benefit. Held fraudulent on the part of both parties thereto and set aside. The Chancellor will look with close attention to the conduct of fiducial agents appointed by public authority and to that end will give a liberal construction to the pleadings to enable him to do justice. A contract with a guardian, by which he must, to comply with it, sacrifice the estate of the ward, is fraudulent as to both parties.