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struction of the carriageway of the street and the curbing and guttering improvement, and of the curbing and guttering, but no and provided that the one should be paid for sidewalk is provided for. It further pro- by the city and the other by the property vides that the reconstruction work of the holders, as seems to have been unmistakably carriageway shall be done at the cost of contemplated by the provisions of the charthe city, but that the cost of the curbing and ter quoted. The mere fact that in a single guttering shall be assessed against the own- ordinance the council provided for the reconers of the abutting property.

struction of the carriageway and for the re- * Section 3565, Kentucky Statutes, being a construction of the curbing and guttering part of the charter of cities of the fourth does not make the latter a part of the forclass, provides:

mer. It must be given the same effect as if “The cost of reconstructing public ways, the two improvements had been provided streets or alleys, or repairing of the same, and for in separate and distinct ordinances. the cost of making footway crossings, shall be borne exclusively by the city."

The contention that the improvement of And section 3566 of the same charter pro- ter and not for ordinary purposes, and that

the carriageway was of an unusual characvides :

"The cost of making sidewalks, including the cost thereof must therefore be borne excurbing and guttering, whether by original con-clusively by the city, can have no bearing struction or by reconstruction, shall be appor- upon the liability of the appellant's proptioned to the front foot as owned by the par-erty for the payment of the curbing and gutties respectively fronting said improvements, except that each corner lot shall have its side- tering improvement; for the ordinance propwalk intersection included in its frontage." erly required that the reconstruction of the

Under these two sections as construed to carriageway should be paid for by the city, gether, it is the contention of appellant that and separates the curbing and guttering iminasmuch as a reconstruction of the car-provement from the improvement of the carriageway must, under the terms of the char- riageway. ter, be paid for by the city, and under the

Under the charter appellant's property was ordinance providing for the improvement liable for the curbing and guttering improvethe reconstruction of the curbing and gut- ment, and the court properly so adjudged. tering was only incidental to the reconstruc

Judgment affirmed. tion of the carriageway, the whole improvement shall be paid for by the city. In other COMMONWEALTH, for Use of CORBETT, v. words, that the reconstruction of the curb

FILIATREAU. ing and guttering is a part of the reconstruc-(Court of Appeals of Kentucky. Oct. 12, 1915.) tion of the carriageway under the ordinance, and is therefore, under the terms of the char

1. APPEAL AND ERROR Om1099—FORMER AP

PEAL-CONCLUSIVENESS. ter, payable by the city and not the property In an action in equity against the father of holders.

the judgment debtor to subject mules, etc., alHe relies upon the cases of the City of leged to have been fraudulently turned over to

defendant to evade payment of the judgment, the Louisville v. Tyler, 111 Ky. 588, 64 S. W. language of the court on a former appeal, fol415, 65 S. W. 125, 23 Ky. Law Rep. 827, lowing the testimony of defendant to the ef1609, and Gocke v. Staebler, 141 Ky. 66, 132 fect that one jack had died before the action S. W. 167, as sustaining this view. Each of the son's, was not conclusive as to the number

was begun and that two were then remaining at those cases involved an interpretation of the of jacks which the son then had. charter of cities of the first class some- [Ed. Note.-For other cases, see Appeal and what similar to the provisions of the char- Error, Cent. Dig. $$ 4370-4379; Dec. Dig. Om

1099.] ter herein involved; but there was, in addition to these provisions, a further amenda- 2. APPEAL AND ERROR Om 179–PRESENTATION

OF QUESTIONS. tory provision in first-class charters that In such action, a commissioner's report in original construction of streets, lanes, and that defendant was chargeable with a jack which alleys, the cost of the curbing shall consti- he had failed to surrender, valued at $300, and

the defendant's exception thereto, sufficiently tute a part of the cost of the street and not raised the issue as to the number of jacks of the sidewalk. In the Tyler Case the ques- sold by the judgment debtor to the defendant. tion primarily was whether the improvement

[Ed. Note.-For other cases, see Appeal and was original or reconstruction, and the court Error, Cent. Dig. $8 1137–1140; Dec. Dig. Om

179.] did hold that the cost of the curbing in that

3. FRAUDULENT CONVEYANCES Onn 295–SUIT case should be paid for by the city whether

TO SET ASIDE-EVIDENCE. it was original or reconstruction. But this Evidence in an action in equity for the court, in the case of City of Louisville v. use of a judgment creditor against the father

of the judgment debtor, to reach several jacks Stoll, 159 Ky. 138, 166 S. W. 811, overruled belonging to the judgment debtor and frauduthe Tyler Case, and necessarily the refer- lently turned over to the defendant, held inence to the Tyler Case in Gocke v. Staebler. sufficient to show that two of the jacks had 141 Ky. 66, 132 S. W. 167, was overruled.

died before the commencement of the action.

[Ed. Note. For other cases, see Fraudulent The ordinance in the case at bar distinct- Conveyances, Cent. Dig. SS 867–875; Dec. Dig. ly separated the carriageway improvement 295.]

Ky.)

COMMONWEALTH V. FILIATREAU

21

4. FRAUDULENT CONVEYANCES 271 - Ac- tion was sustained, and William Filiatreau

TION TO REACH PROPERTY BURDEN OF exonerated, the court being of opinion that PROOF.

In such action, the burden of showing that the jack in question had died before this suit one of the two jacks turned over to defend was instituted. The plaintiff again appeals. ant had died before the commencement of the

The only issues upon this appeal relate to action was on the defendant.

the fact of the death of one of the jack colts, [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. $$ 796-798, 821; Dec. and whether it occurred before or after NoDig. Om 271.]

vember 11, 1912. Appeal from Circuit Court, Marion County.

[1] 1. Appellant insists that the language Action in equity by the Commonwealth of above quoted from the former opinion conKentucky, for the use and benefit of Eliza- clusively charged William Filiatreau with beth Corbett, against William Filiatreau. the jack in question, or its value, and that he Judgment for defendant, and plaintiff ap- will not now be permitted to show that the peals. Reversed, and cause remanded, with jack was dead at the time the suit was filed. instructions.

This is, in effect, a plea of res judicata. The See, also, 161 Ky. 434, 170 S. W. 1182.

statement in the opinion that one jack had

died prior to the institution of this action, H. W. Rives, of Lebanon, for the Common- and that two jacks were then remaining at wealth. Ben Spalding, of Lebanon, for ap- Dick's, is fully justified by the testimony of pellee.

William Filiatreau upon the first trial. But,

in his behalf, it is now insisted that he was MILLER, C. J. This action in equity was mistaken in saying that two jacks were then instituted on November 11, 1912, by the com- living, and that he should be allowed to show monwealth, for the use and benefit of Eliza- the true state of facts—that only one jack beth Corbett, to enforce the payment of

was living at the time the suit was instituted. a judgment which she obtained against her

We do not think the language in the former brother-in-law, R. O. (“Dick”) Filiatreau. opinion should be treated as conclusive of a The appellee, William Filiatreau, who is the question which was not made an issue upon father of R. O. Filiatreau, was made a de fendant for the purpose of subjecting two / the first trial. The issue litigated and decid

ed upon the former appeal was one of fraud, mules, three jacks, and two jennets belong- or no fraud, upon the part of R. O. Filiatreau ing to R. O. Filiatreau, which, it was alleged, in selling or turning over his stock to his he had fraudulently turned over to his father father. No issue was made as to the numto evade the payment of Elizabeth Corbett's ber of jacks R. O. Filiatreau then had, and judgment. On the original hearing, the cir- the circuit court entered no judgment subcuit court gave judgment in favor of William jecting any of the property to the payment Filiatreau; but that judgment was reversed upon a former appeal to this court, and the of appellant's debt. The language of the action was remanded, with instructions to of William Filiatreau as to the property he

opinion incidentally followed the testimony subject the attached property to the payment had received from his son. of appellant's debt. 161 Ky. 434, 170 S. W.

[2] The issue as to the number of jacks 1182. In the former opinion, the court used

sold by R. O. Filiatreau to his father was this language:

first made by the commissioner's report and "The jennets were taken to the father. Two of the jacks are yet remaining at Dick's. These the exception filed to the report. The report, animals had been reared by Dick Filiatreau, be- and the exception thereto, made the issues ing the progeny of a jennet which his father as to the fact and the date of the colt's death had once given him; and how it was that Wil- for the first time. While the issues might liam Filiatreau came to have an interest in them, amounting to the whole of their value, have been made by pleadings, the report and except $200, is left to conjecture. One of these exception sufficiently raised those questions. jacks appeared to have died prior to the in- Dewhurst v. Shepherd's Ex'r, 102 Ky. 240, stitution of this suit, and the record does not clearly establish the value of the two remaining 43 S. W. 253, 19 Ky. Law Rep. 1260. jacks and the two jennets; but the value of [3, 4] 2. Upon the return of the case it was these two jacks and two jennets should be as competent for William Filiatreau to show the certained, and William Filiatreau must either account therefor or surrender the animals for true situation with reference to this propersale herein in satisfaction of the judgment ty. But we are further of opinion he has sought to be enforced.”

failed to show satisfactorily that two of the Upon the return of the case to the circuit jacks had died before the institution of this court, William Filiatreau surrendered all action. As above stated, William Filiatreau the property above specified, with the excep-testified upon the first trial that two of the tion of one jack colt, which he said had jacks were then at his son's farm. William died before this action was instituted. The Filiatreau did not, however, testify upon the commissioner's report, however, charged Wil- return of the case, when this issue was made liam Filiatreau with the jack, which he had for the first time. The testimony upon the failed to surrender, and fixed its value at issue now before us is quite meager and un$300; but upon exception to the report, and satisfactory. As heretofore stated, this acoral evidence heard by the court, the excep- tion was filed on November 11, 1912. The following four witnesses testified orally be-, retracted, explained, or corrected in any way. fore the court:

Under this proof we think the circuit Felix Murphy said that about August or judge erred in finding that one of the jack September, 1912, he dragged a dead jack out colts had died before the institution of this of R. O. Filiatreau's barn, but knew nothing action, and that he should have charged Wilabout him, or anything about the other jacks liam Filiatreau with $300, the value of the on the place. James McCullom, a neighbor, colt as fixed by the commissioner, testified that he saw a dead jack on R. 0. Judgment reversed, and cause remanded, Filiatreau's farm in the latter part of the with instructions to the chancellor to enter summer of 1912, and from appearances he a judgment as above indicated. would say the jack was over two years old, and was of a sorrel, red color, with some gray hairs mixed through it. He further

GRAY et al. v. GILLIAM et al. said he saw two jack colts on R. 0. Filiatreau's farm, either in the spring of that year (Court of Appeals of Kentucky. Oct. 14, 1915.) or of the year before. Alex. Higdon, another 1. MORTGAGES 309_RELEASE-RECORD OF

NEW MORTGAGE. farmer, who lived four miles distant, testi

Where a mortgage given to release another fied that in the latter part of the summer of mortgage on other property recited that the first 1912 he saw a dead jack on R. O. Filiatreau's mortgage would be released as soon as the secplace, which appeared to be two or three ond one was accepted and recorded, the act of years old. Mrs. R. O. Filiatreau testified recording the mortgage ipso facto released the

. that her husband had three jacks, an old one

[Ed. Note.-For other cases, see Mortgages, and two colts; that the old one died in the Cent. Dig. 88 864, 870, 899, 900, 902-905, 907spring or summer of 1912; that one of the 912; Dec, Dig. Om 309.] colts died, and the other one was surrender-2. MORTGAGES O73 – RENEWAL - ACCEPTed and sold to pay plaintiff's judgment. She

ANCE. nowhere undertakes to give the time when mortgage in order to release the property, and it

Where a mortgagor agreed to take a new the colt died.

was stipulated that the second mortgage should Of the witnesses that testified before the not be effective until the interest on the first commissioner, Rad Murphy said the older mortgage had been paid or arrangement satisfacjack died, but he did not remember when he tion by the mortgagee of the new mortgage with

tory to the mortgagee had been made, a recordadied; and, in answer to the question if one out payment of interest constituted an acceptof the younger jacks on hand there in the ance thereof. summer of 1912 did not die that year, he [Ed. Note. For other cases, see Mortgages, answered:

Cent. Dig. $8 170, 171; Dec. Dig. Ow73.] “I helped to drag out one-drag one out of 3. MORTGAGES On283-ASSUMPTION OF PAYthe stable about that time, I reckon."

MENT-LIABILITY. Upon cross-examination, Rad Murphy said ment of the mortgage debt thereon is liable as

A vendee of real estate who assumes paythat his brother Felix lived with R. O. Fili- principal therefor. atreau in 1910, and that the big jack died [Ed. Note. For other_cases, see Mortgages, while Felix lived with R. O. Filiatreau. Cent. Dig. 88 756–758; Dec. Dig. 283.] Thomas Corbett, a brother-in-law of R. O. Appeal from Circuit Court, Knox County. Filiatreau, said he had no idea what the

Suit by J. A. Gilliam and others against three year old jack was worth at the time J. T. Gray and others to foreclose a mortthis suit was instituted against William

against William gage. Judgment for plaintiffs, and defendFiliatreau, thereby stating by inference, at ants appeal. Affirmed. least, that the older jack was then alive.

J. D. Tuggle and J. B. Campbell, both of R. O. Filiatreau testified that he sold his

Barbourville, for appellants. J. M. Robsion, father only the two jack colts; that the big

of Barbourville, for appellees. or older jack had died a year or two years before this litigation began, thereby contradicting all the other witnesses who said he

CARROLL, J. This case may be briefly died in the summer or fall of 1912; and that

disposed of. Previous to September, 1908, one of the colts died, although he does not Gray was indebted to Gilliam in the sum of give the date of his death.

$2,000, secured by a mortgage on what was

Desiring Under this testimony it will be seen that known as the "tunnel property.' the two colts were turned over to William to have this mortgage released, Gray proFiliatreau by his son, R. O. Filiatreau, and posed to execute a mortgage on other propthat one of them died; but it has not been erty, which proposition was accepted by Gilshown that he died before the institution liam, and thereupon, on September 4, 1908,

Gray and his wife executed to Gilliam a of this action, on November 11, 1912. The burden was upon William Filiatreau to show mortgage for $2,000 on certain real estate

described in the mortgage. The mortgage that fact; and this he failed to do. On the described in the mortgage. contrary, upon the first trial of the case he stipulated that:

“Before this contract of mortgage is to take said, without equivocation, that two of the

effect, first party is to pay the accrued interest jacks were then “at Dick's.” This important on the mortgage as it now stands on the tunnel statement of his deposition has never been property or to make such arrangement about

Ky.)

TURNER V. NEWBERRY

23

said interest as will be satisfactory to second , 2. MORTGAGES 37 - ABSOLUTE DEED - PAparty. It is further agreed by the parties hereto ROL EVIDENCE. that as soon as this mortgage is accepted and Where a debtor conveyed land, the deed for placed on record that the first mortgage given which recited the consideration, parol evidence to secure this debt will be fully released, and that the land was sold on an oral trust that the the mining property at the tunnel embraced by vendee pay his debt and account for the balance, said mortgage will be freed from the same.” but that the vendee failed to account for the proOn October 2, 1908, this mortgage was duly ceeds, was admissible in a suit for such proceeds,

since the recited consideration of a conveyance recorded in the proper office. In 1912 the as may be impeached by oral testimony, although signee of Gilliam brought suit to enforce this fraud or mistake be not alleged. mortgage lien, and Gray sought to defeat a [Ed. Note. For other cases, see Mortgages, recovery upon the ground that Gilliam had Cent. Dig. 88 97–107; Dec. Dig. 37.] never released the mortgage on the tunnel

Appeal from Circuit Court, Perry County. property or accepted the new mortgage, and

Suit by W. H. Turner against William therefore there was no consideration for its Newberry. Judgment for defendant, and execution. Some claim is made that, in con- plaintiff appeals. Reversed. sequence of the failure of Gilliam to release the mortgage on the tunnel property, Gray

Napier & Turner and Miller & Wheeler,

Wootton & was damaged in connection with a trade he all of Hazard, for appellant. had with the Charlton-Jellico Coal Company, Morgan, of Hazard, for appellee. but there is no evidence to support this contention.

HANNAH, J. W. H. Turner sued Wil[1] The new mortgage itself recited that as liam Newberry in the Perry circuit court to soon as it was accepted and placed on rec- recover a sum of money claimed to be due ord the mortgage on the tunnel property in virtue of a certain oral trust. Upon a would stand released. By placing this mort- trial of the action, the court directed a vergage on record Gilliam accepted it in lieu of dict for the defendant, and the plaintiff apthe mortgage on the tunnel property, and peals. his act in thus accepting it of itself releas

The Winchester Bank had sued Turner in ed the lien secured by the other mortgage.

the Perry circuit court, and it obtained a [2] It is further said that the new mort- judgment in that action against Turner and gage provided that it should not take effect against Newberry as Turner's surety on a I until Gray paid the interest on the first bond executed therein for the sum of $198.83.

mortgage debt or made satisfactory arrange- Turner was also indebted to one R. F. Fields ments concerning the same, and, as Gray did in the sum of $174.74, which was a lien upon not pay this interest, the new mortgage did a tract of land owned by Turner in Perry not take effect. But when Gilliam accepted county, containing 95.54 acres. this new mortgage and put it on record, he

According to the testimony of the plainsignified his willingness that it should take tiff, which, for the purpose of this opinion, effect without the payment of the interest, is taken as true, the trial court having diand this act on his part was an acceptance rected a verdict for the defendant, Turner of the new mortgage. In addition to this, was unable to discharge the claim of the in August, 1909, Gray conveyed the land covWinchester Bank, and Newberry asked him ered by the new mortgage to his wife, and if he was going to permit him (Newberry) as a part of the consideration for this con- to suffer by reason of his having signed the veyance it was stipulated that Mrs. Gray bond mentioned, whereupon Turner said he should pay the mortgage debt to Gilliam. would sell his land and pay off the claim of Again, in 1910, Gilliam, in his bankruptcy the bank and of Fields. At that time Turproceedings, fully recognized the existence ner had an offer of $8 per acre for his land, and validity of this new mortgage.

but did not want to accept that price. New[3] It is also relied on as error that per- berry then said that he was going to sell sonal judgment was given against Mrs. Gray, some land of his adjoining Turner's, and but there is no merit in this contention. Mrs. that he could sell the two tracts together Gray assumed payment of this mortgage for $10 per acre or more; that, if Turner debt, and was liable as principal for its pay. would convey to him the 95.54 acres then ment.

owned by Turner, he would put it in with The judgment is affirmed.

his own land in the sale, and would pay over to Turner the excess of the sum so re

alized after discharging the debts due the TURNER V. NEWBERRY.

Winchester Bank and R. F. Fields. Turner (Court of Appeals of Kentucky. Oct. 14, 1915.) then proposed that a written contract to this 1. MORTGAGES On37 PAROL EVIDENCE

effect be entered into, but Newberry said DEED AS MORTGAGE.

that the parties to whom he proposed to sell Parol evidence is admissible to impeach the the land would not be willing to take it if consideration of a deed absolute on its face and they should learn that Turner was benefito show that it was, in fact, intended as a mort- cially interested, as they were angry at him gage.

[Ed. Note.--For other cases, see Mortgages, because he would not take their offer of $8 Cent. Dig. $$ 97-107; Dec. Dig. On 37.]

per acre. Thereupon Turner and wife executed to Newberry a deed in the usual land so conveyed to him and pay the proform, reciting that:

ceeds over to his wife, the daughter's mother. It was made “for and in consideration of In a suit to enforce this trust, the court held the sum of $673.57, $498.83 of which is this day parol testimony admissible to show that such paid by second party to the Winchester Bank in satisfaction of a judgment rendered in favor of was the inducement for the execution of the said bank in an action in the Perry circuit court deed, and to establish the trust by showing wherein the Winchester Bank was plaintiff and the real consideration for the conveyance. W. H. Turner and others were defendants, and

In Spencer v. Richmond, 46 App. Div. 481, $174.74 of same was this day paid by the party of the second part to R. F. Fields in satisfaction 61 N. Y. Supp. 397, it was likewise held that of a judgment lien he holds against the lands parol evidence was competent to show that a herein conveyed, which judgment lien was ad-deed absolute on its face was, in fact, to sejudged to said Fields in the above-named action, all of which is declared to be an essential and cure an indebtedness, and that there was moving consideration, the receipt of all of which also the further parol agreement that the is hereby acknowledged, and on consideration of lands thereby conveyed were to be sold, and its full payment of said sum as above stated, the the balance over and above such indebtedness parties of the first part do hereby grant, bargain, owing to the grantee should be returned to sell, and convey,” etc.

the grantor. This deed was executed April 20, 1909, and on June 6, 1910, Newberry sold his land no statute adopting the seventh section of the

In Texas, where, as in this state, there is and the land so conveyed to him by Turner for a sum amounting to about $11 per acre; declaration, it is held that a parol express

English statute of frauds, or any equivalent and, Newberry having failed to account for any excess so realized over the $673.57 paid trust is raised where a grantor executes a by him to the Winchester Bank and to conveyance of land, absolute on its face, unFields, Turner brought this action to recover der a parol agreement by the grantee to sell Fields, Turner brought this action to recover the land and account to the grantor. Diffie this difference.

We are informed by the brief of counsel v. Thompson (Tex. Civ. App.) 90 S. W. 193; for appellant (appellee has filed no brief) Clark v. Haney, 62 Tex. 514, 50 Am. Rep. .

536. that the trial court sustained defendant's motion for a directed verdict upon the theory

And even in those states where the seventh that, as there was no plea of fraud or mis- section of the original statute of frauds is take in the execution of the deed, a consid- in force it is held, where a creditor of the eration other than that expressed in the deed grantor takes a conveyance of land under a could not be shown.

parol agreement to sell the same and account [1] It is well-settled in this state that for the proceeds in excess of grantor's debt, parol evidence is admissible to impeach the that notwithstanding the original invalidity consideration of a deed absolute on its face of such parol agreement, when the land has, and to show that it was, in fact, intended by

in fact, been sold, the proceeds are imthe parties as a mortgage or security for in- pressed with a trust in favor of the grantor debtedness. Vaughn v. Smith, 148 Ky. 531, which may be enforced. Bechtel v. Ammon,

199 Pa. 81, 48 Atl. 873. 146 S. W. 1094; Leibel v. Tandy, 146 Ky. 101, 141 S. W. 1183; McKibben v. Diltz, 138

The trial court therefore erred in directing

a verdict for the defendant. Ky. 684, 128 S. W. 1082, 137 Am. St. Rep. 408; Brown v. Spradlin, 136 Ky. 703, 125

The judgment is reversed. S. W. 150; Hobbs v. Rowland, 136 Ky. 197, 123 S. W. 1185, overruling Munford v. Green, 103 Ky. 140, 44 S. W. 419, 19 Ky. Law Rep. 1791. See, also, 27 Cyc. 1021.

MCWILLIAMS v. KENTUCKY HEATING [2] The recited consideration of a convey

CO. et al. ance may be impeached without allegation of (Court of Appeals of Kentucky. Oct. 5, 1915.) fraud or mistake, and that, too, by parol tes- 1. GAS Cw18 - INJURIES FROM GAS - NEGLItimony. Ky. St. 470, subsec. 7; Stamper v. GENCE. Cornett, 121 S. W. 623; Ky. St. § 472.

Where plaintiff was injured when the Of course, in the instant case, it was not spikes in the rear wheels of the steam roller

which he operated under the direction of counshown that the conveyance from Turner to ty officials pierced a gas main, resulting in an Newberry was, in fact, intended to be a mort- explosion which severely burned him when the gage. It was not intended that the land gas came in contact with the fire box of the should be held by Newberry as security, but knowledge that the gas main was dangerously

roller, the fact that the county officials had that he should sell it and pay to Turner near the surface of the road, and nevertheless whatever the sale realized over and above ordered plaintiff to operate his roller so that the amounts which Newberry had paid for the accident might result, will not excuse the

gas company for negligently laying its main Turner. The transaction was an oral trust. too near the surface, since the negligence of

In Woolfolk v. Earle, 40 S. W. 247, 19 Ky. one party does not excuse a third party from Law Rep. 343, a daughter conveyed to her liability, also guilty of negligence, if the injury stepfather a tract of land for the recited con- for his negligence.

complained of would not have happened except sideration of $1. There was a parol agree- [Ed. Note.-For other cases, see Gas, Dec. ment at the time that he was to sell the Diy. Om 18.]

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