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tract of insurance, in which plaintiff was | Harmon v. Thompson, 119 Ky. 528, 84 S. W. made and named as beneficiary; that by said 569, 27 Ky. Law Rep. 186; Myers v. Saltry, contract it agreed and promised to pay to supra. Though the petition in this instance her, as such beneficiary, the sum of $600, in may have been technically defective, yet we case of the death of George F. Taylor caused conclude that, under the above rule, its allesolely by external, violent, and accidental gations are sufficient after verdict and judgmeans, excluding suicide or any attempt ment to support the judgment. thereat; that George F. Taylor died on May
Judgment affirmed. 1, 1913; that his death was caused solely by external, violent, and accidental means, and not from suicide, or any attempt there
RICE v. RICE. at; and that said contract of insurance was (Court of Appeals of Kentucky. Oct. 19, 1915.). alive and in full force and had been so kept
DIVORCE Om 130—CRUEL TREATMENT-SUFFIand maintained since the date of its execu
CIENCY OF EVIDENCE-ALIMONY. tion and delivery. A trial before a jury Evidence in a husband's action for divorce resulted in a verdict and judgment in favor on the statutory ground of abandonment, in of plaintiff for $600. The company appeals. which the wife counterclaimed on the ground of
cruel and inhuman treatment and danger of  On motion of the plaintiff below, the great bodily harm and asked a divorce, as altranscript of evidence has been stricken lowed by the statute in such case, and alimony, from the record. The policy of insurance is held not to establish cruelty or danger of bodinot made a part of the record, but appears ly harm so as to entitle her to alimony.
Ed. Note.-For other cases, see Divorce, only in the transcript of the evidence, which Cent. Dig. $$ 442-445; Dec. Dig. Ow130.] has been stricken from the record. In the
Appeal from Circuit Court, Johnson absence of the transcript of the evidence, it
County. will be presumed that the omitted portions of the record will support the judgment, and Sarah A. Rice, with counterclaim for divorce
Action for divorce by J. P. Rice against the only question to be determined is wheth- and alimony. From so much of the judger or not the pleadings support the judgment as denied her right to alimony, defendment. Jones v. Jackson, 16 S. W. 458, 13 ment as denied her right to alimony, defend
ant appeals. Affirmed. Ky. Law Rep. 253; Hackney v. Hoover, 67 S. W. 48, 23 Ky. Law Rep. 2061; Sanson v.
D. J. Wheeler and John W. Wheeler, both Connolly, 141 Ky. 120, 132 S. W. 159; McKee of Paintsville, for appellant. Fogg & Kirk, v. Stein, 91 Ky. 240, 16 S. W. 583, 13 Ky. of Paintsville, for appellee. Law Rep. 49; Bradford v. Jones, 150 Ky. 355, 150 S. W. 387; 'Duker's Adm'r v. Kaelin, NUNN, J. The court granted the husband 90 S. W. 359, 28 Ky. Law Rep. 900; Anheus- a divorce on his petition. The wife appeals er-Busch Brewing Co. v. Seelbach, 40 S. W. from so much of the judgment as denied her 671, 19 Ky. Law Rep. 375; Louisville Bridge right to alimony. The husband brought the Co. v. Neafus, 110 Ky. 571, 62 S. W. 2, 63 action, seeking a divorce on the statutory S. W. 600, 23 Ky. Law Rep. 185; Myers v. ground of abandonment. By her answer and Saltry, 163 Ky, 481, 173 S. W. 1138.
counterclaim she admitted the abandonment, [2, 3] In the absence of the policy of in- but undertook to justify it by the plea that: surance, we are unable to say that it con-her; that he absolutely refused to provide for
"He was eccentric and seemed not to care for tradicts the averments of the petition or the her’girl, Mamie, by her former marriage, and amended petition. It is insisted that the refused to furnish her clothing." petition is defective because it does not al
On these grounds she asked for divorce lege that the premiums on the policy were and alimony in the sum of $1,500. By an paid, but merely that the policy "was alive amendment she restates her grievances; that and in full force and had been so kept and is, paraphrases them in words of the statute. maintained since the date of its execution Thus she makes it appear that for more than and delivery." It is argued that this allega- six months prior to her abandonment of tion is a mere conclusion, and therefore in- him he habitually behaved toward her in sufficient. In the absence of the transcript such inhuman and cruel manner as to inof evidence, it will be presumed that the dicate a settled aversion to her and destroy premiums necessary to keep the policy in permanently her peace and happiness, and force were paid. It is the rule that after such cruel attempt to injure her as indicated verdict and judgment pleadings are liberally an outrageous temper in him and probable construed to sustain the judgment, and that danger to her life or great bodily injury if any formal defect in the pleadings is deem- she longer remained with him. The testied to be cured by a verdict and judgment. mony given in her behalf tends to establish Winstead v. Hicks, 135 Ky. 154, 121 S. W. the allegations of her original pleading, 1018, 135 Am. St. Rep. 446; Hill v. Ragland, rather than the amendment. 114 Ky. 209, 70 S. W. 634, 24 Ky. Law Rep. They were beyond middle age when they 1053; Dunekake v. Beyes, 79 S. W. 209, 25 married, and each had a daughter by a forKy. Law Rep. 2002; Ashland, etc., R. Co. v. mer marriage who became a member of the Lee, S2 S. W. 368, 26 Ky. Law Rep. 700; 1 family. No children were born to them. He Ky.)
SLATER V. COMMONWEALTH
had property worth about $4,000. Her being in like fault. Accepting her theory of property was considerable,
considerable, although not the case, it only appears that he was petulant worth quite so much. It consisted of one and rude, with occasional shows of temper. house and lot and a two-thirds interest in If it could be said that Mrs. Rice was heranother, and some personal property. Her self free of these faults, still, in our opinion, daughter had more than $900 in cash, and she has not shown such danger of bodily drew a pension from the United States gov- harm or cruelty in him as the statute conernment because her deceased father served teniplates relief against. in the Union Army. The marriage occurred On the whole case we concur with the in 1904. She left him in about a year. They lower court in rejecting her claim for alilived apart for several months. Then they mony, and the judgment is therefore afwere reconciled, and lived together until firmed. September, 1911. The husband and wife testified concerning the alleged "cruel and inhuman treatment." Whatever errors may
SLATER v. COMMONWEALTH. have been in the admission of testimony, (Court of Appeals of Kentucky. Oct. 19, 1915.) they were participated in by both parties. TAXATION ww169–EXEMPTIONS_CORPORATE These questions are not pressed in the briefs,
STOCK-STATUTES. and are not passed upon. They admitted of all corporations shall be assessed in the name
Ky. St. $ 4085, provides that the property numerous quarrels and disagreements, but of the corporation in the same manner as that they must have been of little consequence, as of a natural person, and that so long as the measured by the statute, for, except the first corporation pays taxes on all its property of
every kind, individual stockholders should not separation, even their next-door neighbors be required to list their shares in the corporaknew nothing of discord between them; in tion. Foreign corporations in which defendant fact, all the neighbors testified that, so owned stock purchased small lots in the state, far as they knew, Mr. and Mrs. Rice were at the instigation of defendant stockholder, on kind and affectionate toward each other. used for any corporate purpose.
which they paid taxes. These lots were not
Held, that The chief cause of difference between them defendant, the shareholder, could not claim the was his persistent refusal to pay for her benefit of the exemption so as to avoid taxation daughter's wearing apparel. But it is un
on the stock owned by her; the attempt being
a mere colorable one on the part of the cordenied that when they were reconciled after porations to bring defendant within the statute. the first separation, Mrs. Rice, who was her [Ed. Note.-For other cases, see Taxation, guardian, agreed that such expense should be Cent. Dig. § 292; Dec. Dig. Om 169.] paid by the daughter. It is claimed that he Appeal from Circuit Court, Shelby County. was rude in his conduct toward her daugh- Action by the Commonwealth of Kentucky ter's beaux; that he objected to young men against Mollie P. Slater. From a judgment keeping company with her at his home. Mr. for plaintiff, defendant appeals. Affirmed. Rice testified that he never objected to
Willis, Todd & Bond, of Shelbyville, for young men coming to see her. He did object, however, to the late hours they kept. He appellant. Matt J. Holt, of Louisville, and said that 9 or 10 o'clock was his bedtime, E. H. Davis, Co. Atty., of Shelbyville, for
the Commonwealth. and they disturbed him by remaining longer, and he told them so. The only evidence that his unkindness pre lie P. Slater, resides in Shelbyville, Ky.
MILLER, C. J. The appellant, Mrs. Molponderated came from Mrs. Rice and her daughter, but the testimony of Mr. Rice, She owns 123 shares of the capital stock his daughter, and five neighbors tipped the of the Long-Bell Lumber Company, a Misscales the other way. Mrs. Rice admits that souri corporation, with its principal office in scales the other way. Mrs. Rice admits that Kansas City, of the par value of $500 per she, too, "quarreled to beat the band sometimes,” and she has convinced us that she share, and 24 shares of the Minnetonka never was in danger. The only threat in Lumber Company, likewise a Missouri corpothe case is where she says at one time they ration, of the par value of $100 per share. were fussing about how best to make the This action was instituted by the commoncow stand for milking and whether her wealth, through its revenue agent, seeking feed meal should be sifted. Finally, as she to subject to taxation the shares of stock relates:
above mentioned for the years 1913 and 1914, "He drawed a chair on me. He didn't strike and cash in bank amounting to $1,715 for me. I told him I dared him to, and he didn't the year 1913, and $150 for the year 1914. hit me.”
The judgment of the lower court was for the When she abandoned him, and repeatedly commonwealth, and Mrs. Slater appeals. up to the bringing of the suit, Mr. Rice made There is no complaint of that part of the efforts, in person and by friends, to persuade judgment which taxed the cash in bank for Mrs. Rice to return and live with him and the two years, it being conceded that Mrs. bring her daughter.
Slater did then have that much money on The statute allows a divorce to the wife hand. The answer admits that the fair cash on the grounds alleged in her amendment, value of Mrs. Slater's stock in the Longbut this relief is conditioned upon her not | Bell Lumber Company, at the assessing periods, was its par value of $500 per share, stock is held has paid all taxes due from it, and aggregating $61,600, and that the fair cash assessable against it, upon its property located value of the 24 shares of stock in the Minne- ty be realty, personalty, tangible or intangible,
of , that tonka Lumber Company was its par value or franchise, in nature.' of $2,400. In August, 1912, the Long-Bell Lumber Company and the Minnetonka Lum- each of the Missouri corporations in which
In the case at bar appellant answered that ber Company each bought a lot in Catalpa she owned the stock, as above recited, owned Court addition adjoining Shelbyville on the
a lot in Catalpa Court addition to Shelbyville west, paying $250 for each lot. These lots are in a new, desirable residence portion of had paid all the taxes due thereon or demand
during the years 1913 and 1914, and that they the town, and the deeds therefor contain the ed by the commonwealth, thus bringing appelfollowing building restrictions:
lant within the protection of the rule an"No outbuildings of any kind shall be erected on the property hereby conveyed nearer than 35 nounced in Commonwealth v. Fidelity Trust feet to the pavement line of any street running Co., supra. The commonwealth insists that in front of or on the side of same, nor shall these two insignificant lots were bought by said property or any part thereof be sold, or the two Missouri corporations at the suggesleased, or conveyed to colored persons. further agreed that no residence shall be erect- tion of appellant, and for the purpose of reed on the lot hereby conveyed to cost less than lieving her from taxation upon her stock in $1,500.00, nor shall any residence be erected said two corporations; and it is evident from thereon nearer than 25 feet to the pavement the proof that this was the purpose of the line of the street running in front thereof.”
purchases. Appellant insists, however, that Appellant had compromised a suit against the lumber companies had the right to buy her similar to the one now before us, prior these lots, and, having bought and paid for to the purchase of the lots by the two Mis- them, the purpose or motive of the purchase souri corporations.
cannot affect the case; that a bad motive The authority to assess these shares of may make a bad case worse, but it cannot stock is claimed under section 4085 of the make that wrong which, in its essence, is Kentucky Statutes, which reads as follows: lawful. In support of this contention, ap
“The property of all corporations, except pellant cites Chambers & Marshall v. Baldwhere herein differently provided, shall be assessed in the name of the corporation in the win, 91 Ky. 121, 15 S. W. 57, 12 Ky. Law same manner as that of a natural person, ex- Rep. 699, 11 L. R. A, 545, 34 Am. St. Rep. 165, cept that, when legally called on, the chief and Bourlier Bros. v. Mocauley, 91 Ky. 134, officer shall report a full statement of the prop- 15 S. W. 60, 12 Ky. Law Rep. 737, 11 L. R. A. erty of such corporation for taxation, and, for a failure, shall be subject to the penalties in this 550, 34 Am. St. Rep. 171, which hold, in efarticle provided; and so long as said corpora- fect, that an act legal itself, and which viotion pays the taxes on all its property of every lates no right, cannot be made actionable on kind, the individual stockholders shall not be account of the motive which induced it, and required to list their shares in said corpora- account of the motive which induced it, and tion."
that the amount and nature of the property Considerable confusion had resulted from owned by the respective lumber companies
is immaterial. the application of this statute, and the constructions that had been given to it, particu
The language quoted from the opinion in larly in Commonwealth v. C. & 0. Ry. Co., Commonwealth v. Fidelity Trust Co., supra, 116 Ky. 951, 77 S. W. 186, 25 Ky. Law Rep. is very broad and sweeping. It is, indeed, 1126; Commonwealth v. Lovell, 125 Ky. 491, broad enough in its scope, when taken literal101 S. W. 970, 31 Ky. Law Rep. 105; Com-ly, to include this case, and exempt appelmonwealth v. Harris, 118 S. W. 294; Com- lant's stock from taxation. Appellee insists, monwealth v. Steele, 126 Ky. 670, 104 S. W. however, that the statute refers to property 687, 31 Ky. Law Rep. 1033 ; Commonwealth held by the corporation for corporate purv. Ledman, 127 Ky. 603, 106 S. W. 247, 32 poses, in pursuance of the corporate business, Ky. Law Rep. 452; and Commonwealth v. and not to property subject to escheat for Walsh, Trustee, 133 Ky. 103, 117 S. W. 398. nonuser and incapable of corporate use, and These cases were carefully reviewed by this that the language quoted above from Comcourt in Commonwealth v. Fidelity Trust monwealth v. Fidelity Trust Co. should be Co., 147 Ky. 77, 143 S. W. 1037, decided Feb- qualified so as to limit the rule to that exruary 21, 1912, with the view of reconciling tent. None of the cases reviewed and critithem, if possible, and laying down a certain cized in Commonwealth v. Fidelity Trust Co. rule for future guidance. In closing that present the precise question we now have be
fore us. In all of those cases the property opinion, we said:
“We have endeavored to so state the authori- of the company upon which the payment of ties and their relation to this case as to avoid taxes by the corporation operated to relieve future confusion upon the subject. It is just the stockholder from taxation upon his to the rights of established property that the whole involved subject should be understood shares was property used by the corporation once for all. The conclusions reached are easily in its business in this state. The court was understood; i. e., that the holders of shares of not called upon, in any of those cases, to stock in domestic or foreign corporations, consider the case where a corporation owned whether franchise or nonfranchise in nature, need not list nor pay taxes upon their shares property in this state which it did not use Ky.)
CHAPPELL V. FRICK CO.
dent from the discussion, and the scope of Appeal from Circuit Court, Leslie County. the opinion in Commonwealth v. Fidelity Action by the Frick Company against Wil: Trust Co., supra, that the rule above quoted 'son Chappell and wife. From a judgment for therefrom was intended to apply only to cas- plaintiff, defendants appeal.
Reversed in es where the property of the corporation part and affirmed in part. within the state was used in the corporate business. Under that rule, wherever the cor- Lewis & Lewis, of Hyden, and Miller &
J. M. Muncy, of Hyden, for appellants. poration owns property within this state, and Wheeler, of Hazard, for appellee. uses it bona fide in its business, be it ever so little or insignificant a proportion of its entire property, the payment of taxes thereon
HURT, J. Wilson Chappell, of Leslie counby the corporation exempts the stockholders ty, executed to the Frick Company six promfrom taxation upon his stock. But the prop- issory notes, and to secure the payment of erty must be acquired in good faith, and for these notes he and his wife, Martha Chapthe corporate use and purposes, and not for pell, executed, acknowledged, and delivered a the sole purpose of rendering the stock in the mortgage to the Frick Company upon some hands of a resident stockholder exempt from personal property, and, in addition, upon a taxation. We believe this to be the full tract of land containing about 250 acres. meaning of the opinion in Commonwealth v.
The Frick Company instituted this action in Fidelity Trust Co., supra, when applied to the Leslie circuit court against the appelthe facts of this case, and that the judgment lants, Wilson and Martha Chappell, and of the trial court was correct.
sought a recovery of a personal judgment Judgment affirmed.
against them for the amount of the notes and an enforcement of the lien created by the mortgage, and a sale of the personal property and land to satisfy the personal
judgment. The appellants filed an answer, CHAPPELL et ux. v. FRICK CO.*
in which they controverted the right of ap(Court of Appeals of Kentucky. Oct. 20, 1915.) pellee to have or to enforce any lien upon 1. MORTGAGES 559 - FORECLOSURE — PER- the land by reason of the mortgage to satisSONAL JUDGMENT.
fy the debt. A demurrer was filed to the In an action against a husband and wife to answer, which was sustained, and a judgrecover on notes secured by a mortgage and to foreclose the mortgage, it was error to render ment rendered according to the prayer of a personal judgment against the wife for the the petition of the plaintiffs, to which the amount of the notes where she was not a party appellants excepted, and prayed an appeal to to the notes and never subscribed them, though this court. she was a party to the mortgage. [Ed. Note.-For other cases, see Mortgages,
 The appellant Martha Chappell was Cent. Dig. 88 1592, 1600-1603; Dec. Dig. Om not a party to the notes sued on and never 559.]
subscribed same, and was in no way person2. DEEDS Ow124 - ESTATES CONVEYED - FEE ally bound upon the notes, and it was error SIMPLE.
in the trial court to render a personal judgA deed conveying to the grantees the prop-ment against her for the amounts of the erty therein described to have and to hold the
notes. land, together with all appurtenances, unto them, their heirs and assigns forever, and con
The defense presented by the answer to taining a covenant by the grantors to warrant the enforcement of the lien upon the land the title unto the grantees, their heirs and as- and for a sale of it to satisfy the debts was signs forever, vested a fee-simple title in the that the land was conveyed to the appellants, grantees.
[Ed. Note.-For other cases, see Deeds, Cent. Wilson Chappell and Martha Chappell, by Dig. $$ 31.–355, 416-428, 434, 435, 439, 452; one Reuben Chappell, and that the power of Dec. Dig. Om 124.]
alienation, by the terms of the deed, was 3. PERPETUITIES Omw 6-RESTRAINT OF ALIEN- withheld from the appellants, except they ATION.
should convey it to some of the heirs of ReuIt is the rule in this jurisdiction that a ben Chappell. The answer set out the fact reasonable restraint on alienation by the gran- that Reuben Chappell was still alive, and tee or devisee may be imposed by a deed or will, though the instrument passes a fee-simple title. that he had six living children, and that
[Ed. Note. For other cases, see Perpetuities, they were his only children and future heirs Cent. Dig. 88 447, 49–53, 56; Dec. Dig. Om6.) at law. It is contended that the mortgage, 4. PERPETUITIES Om 6-RESTRAINT OF ALIEN- so far as it attempted to create a lien upon ATION.
the land, was something which appellants A provision of a deed passing a fee-simple were without power to create and was void. title that the grantee was not to sell or convey the land to any one except the heirs of the
 The deed: from Reuben Chappell to the grantor was void as imposing an unreasonable appellants, under which they held title to restraint on alienation; the grantor being still the lands embraced in the mortgage, was exalive and having six children living when the ecuted on the 7th day of December, 1901. question as to the validity of such provision
The granting clause of the deed recited that, arose.
[Ed. Note.-For other cases, see Perpetuities, in consideration of $500 in hand paid, the Cent. Dig. 88 447. 49–53, 56; Dec. Dig. (5.) parties of the first part "do hereby sell and
Om For other cases see same copic and KEY-NUMBER in all Key-Numbered Digests and Indexes
convey to the party of the second part” the sonable and which ones are unreasonable, property described in the deed. The haben- and each particular case must be considered dum clause of the deed was to the effect that upon the particular circumstances of it. In the parties of the second part were “to have the case at bar the grantees, although holdand to hold the land, together with all the ing under a fee-simple title, which carries appurtenances thereunto belonging, unto the with it, as one of the essential qualities of party of the second part, their heirs and as such an estate, an unlimited power of dissigns forever," and was followed by the position, are attempted to be restrained by covenant of the grantors to warrant the title the clause of the deed supra from making to the land conveyed "unto the parties of the any disposition of their lands, not for a limsecond part, their heirs and assigns forever." ited time and a limited number of persons, This deed, upon its delivery, vested the ap but for so long as they may live, unless pellants with a fee-simple title to the prop- they can sell it to one of Reuben Chappell's erty. Following the habendum clause of the heirs. Reuben Chappell is still alive, and deed, was the one relied upon by the appel- has six children now living. Whether Reulants, and is as follows:
ben Chappell may have any children living "The party of the second part is not to sell at the time of his death cannot be known, nor convey this land to any one, except the heirs of the party of the first part.
or whether he may have one or more heirs
cannot be known. [3, 4] If the latter clause is valid, the ap- Reuben Chappell may ever desire to buy the
Whether any heirs of pellants had no power to convey it by a mort- land or whether any of his heirs may ever gage or to create a lien upon it, but, the be financially able to buy the land cannot deed first having vested them with a fee be known. If one of such persons should be simple title, if the clause in question consti- willing to purchase it, the appellants, if they tuted an unreasonable restraint upon the ap- sold, would be compelled to submit to repellants’ power of alienation of the land, it ceiving such a price and upon such terms as was void, and the fee-simple title, with full power of alienation, vested in appellants Reuben Chappell might not, in all probabili
such person would dictate. The heirs of from delivery of the deed. The question presented is not whether or not, by the ty, ever be able financially to purchase the terms of the deed, a perpetuity was created, land, or, if so, they might not desire to buy, as is prohibited by section 2360, Kentucky willing to become purchasers only at a price
be upon the grantee's power of alienation in which would be ruinous to appellants. If consistent and repugnant to the terms of compelled to make a sale, it is very appartheir deed and title and an unreasonable lim- ent that appellants would be entirely at the itation upon their right of disposition of the mercy of a half dozen or less number of property vested in them by the deed, and people, if the clause in the deed limiting therefore roid? The general rule prevailing their power of disposition is valid. The cirin most jurisdictions is that, where the fee- cumstances would, in effect, withhold from simple title to real estate passed under a appellants the power of alienation of the deed or will, any restraint attempted to be lands for their entire lives, if they are bound imposed by the deed or will upon the right by the limiting clause of the deed. Deeds of the grantee or devisee to alien it is to be which have imposed upon the grantees a treated as void. In 13 Cyc. 669, the rule is restraint of the power of alienation to certhus stated:
tain specified persons or a person of certain
designated class have been held valid and “Where an estate in fee simple is granted to the restraint a reasonable one, but in the a person by proper and sufficient words, a clause in the deed which is in restraint of alien- case at bar the restraint is upon alienation ation is void and will be rejected.”
to the entire world, except a half dozen or The rule prevailing in this jurisdiction, less persons. To uphold a restraint upon however, is that a reasonable restraint may the power of alienation of a fee-simple esbe imposed, and that such a provision in a tate, except to a certain designated person, deed or will will be upheld. Lawson v. would put it into the power of a grantor to Lightfoot, 84 S. W. 739, 27 Ky. Law Rep. limit the grantee's right of disposition to one 217; Stewart v. Brady, 3 Bush, 623; Wal- who will never be able or willing to purlace v. Smith, 113 Ky. 263, 68 S. W. 131, 24 chase, and thus take the absolute power of Ky. Law Rep. 139; Stewart v. Barrow, 7 alienation from the grantee for an unreaBush, 368; Rice v. Hall, 42 S. W. 99, 19 Ky. sonable length of time. The rule making Law Rep. 814; Kean v. Kean, 18 S. W. 1032, void the restraints attempted to be imposed 19 S. W. 184, 13 Ky. Law Rep. 956; Best v. upon the power of alienation of vested feeConn, 10 Bush, 36; Page v. Frazer, 14 Bush, simple estates is founded upon reasons of 205; Ernst v. Shinkle, 95 Ky. 608, 26 S. W. public policy, as being restraints upon the 813; Johnson v. Dumeyer, 66 S. W. 1025, 23 commercial and social advancements of a Ky. Law Rep. 2243; Morton v. Morton, 120 community. In Chappel v. Chappel, 119 S. Ky. 257, 85 S. W. 1188. There has been no W. 218, this court, having under considerageneral rule laid down, however, by which it tion a clause in a deed similar to the one in