struction of the carriageway of the street and of the curbing and guttering, but no sidewalk is provided for. It further provides that the reconstruction work of the carriageway shall be done at the cost of the city, but that the cost of the curbing and guttering shall be assessed against the owners of the abutting property. Section 3565, Kentucky Statutes, being a part of the charter of cities of the fourth class, provides: "The cost of reconstructing public ways, streets or alleys, or repairing of the same, and the cost of making footway crossings, shall be borne exclusively by the city." And section 3566 of the same charter pro vides: "The cost of making sidewalks, including curbing and guttering, whether by original construction or by reconstruction, shall be apportioned to the front foot as owned by the parties respectively fronting said improvements, except that each corner lot shall have its sidewalk intersection included in its frontage." and the curbing and guttering improvement, and provided that the one should be paid for by the city and the other by the property holders, as seems to have been unmistakably contemplated by the provisions of the charter quoted. The mere fact that in a single ordinance the council provided for the reconstruction of the carriageway and for the reconstruction of the curbing and guttering does not make the latter a part of the former. It must be given the same effect as if the two improvements had been provided for in separate and distinct ordinances. The contention that the improvement of ter and not for ordinary purposes, and that the carriageway was of an unusual characthe cost thereof must therefore be borne exclusively by the city, can have no bearing upon the liability of the appellant's property for the payment of the curbing and guttering improvement; for the ordinance properly 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 charter, be paid for by the city, and under the ordinance providing for the improvement the reconstruction of the curbing and guttering was only incidental to the reconstruction 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 riageway. Under the charter appellant's property was liable for the curbing and guttering improvement, and the court properly so adjudged. Judgment affirmed. FILIATREAU. 1099-FORMER AP 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. ter, payable by the city and not the property holders. He relies upon the cases of the City of Louisville v. Tyler, 111 Ky. 588, 64 S. W. 415, 65 S. W. 125, 23 Ky. Law Rep. 827, 1609, and Gocke v. Staebler, 141 Ky. 66, 132 S. W. 167, as sustaining this view. Each of those cases involved an interpretation of the charter of cities of the first class somewhat similar to the provisions of the charter herein involved; but there was, in addition to these provisions, a further amendatory provision in first-class charters that in original construction of streets, lanes, and alleys, the cost of the curbing shall constitute a part of the cost of the street and not of the sidewalk. In the Tyler Case the question primarily was whether the improvement was original or reconstruction, and the court did hold that the cost of the curbing in that case should be paid for by the city whether it was original or reconstruction. But this court, in the case of City of Louisville v. Stoll, 159 Ky. 138, 166 S. W. 811, overruled the Tyler Case, and necessarily the reference to the Tyler Case in Gocke v. Staebler, 141 Ky. 66, 132 S. W. 167, was overruled. The ordinance in the case at bar distinctly separated the carriageway improvement APPEAL AND ERROR In an action in equity against the father of the judgment debtor to subject mules, etc., aldefendant to evade payment of the judgment, the leged to have been fraudulently turned over to language of the court on a former appeal, following the testimony of defendant to the effect that one jack had died before the action was begun and that two were then remaining at the son's, was not conclusive as to the number of jacks which the son then had. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4370-4379; Dec. Dig. 1.099.] 2. APPEAL AND ERROR 179-PRESENTATION OF QUESTIONS. In such action, a commissioner's report that defendant was chargeable with a jack which he had failed to surrender, valued at $300, and the defendant's exception thereto, sufficiently raised the issue as to the number of jacks sold by the judgment debtor to the defendant. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1137-1140; Dec. Dig. 179.] In such action, the burden of showing that one of the two jacks turned over to defendant had died before the commencement of the action was on the defendant. 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. the jack in question had died before this suit was instituted. The plaintiff again appeals. The only issues upon this appeal relate to the fact of the death of one of the jack colts, and whether it occurred before or after November 11, 1912. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 796-798, 821; Dec. Dig. 271.] Appeal from Circuit Court, Marion County. Action in equity by the Commonwealth of Kentucky, for the use and benefit of Elizabeth Corbett, against William Filiatreau. Judgment for defendant, and plaintiff appeals. Reversed, and cause remanded, with instructions. See, also, 161 Ky. 434, 170 S. W. 1182. H. W. Rives, of Lebanon, for the Commonwealth. Ben Spalding, of Lebanon, for appellee. MILLER, C. J. This action in equity was instituted on November 11, 1912, by the commonwealth, for the use and benefit of Elizabeth Corbett, to enforce the payment of a judgment which she obtained against her brother-in-law, R. O. ("Dick") Filiatreau. The appellee, William Filiatreau, who is the father of R. O. Filiatreau, was made a defendant for the purpose of subjecting two mules, three jacks, and two jennets belonging to R. O. Filiatreau, which, it was alleged, he had fraudulently turned over to his father to evade the payment of Elizabeth Corbett's judgment. On the original hearing, the circuit court gave judgment in favor of William Filiatreau; but that judgment was reversed upon a former appeal to this court, and the action was remanded, with instructions to subject the attached property to the payment of appellant's debt. 161 Ky. 434, 170 S. W. 1182. In the former opinion, the court used this language: "The jennets were taken to the father. Two of the jacks are yet remaining at Dick's. These animals had been reared by Dick Filiatreau, being the progeny of a jennet which his father had once given him; and how it was that Wil [1] 1. Appellant insists that the language above quoted from the former opinion conclusively charged William Filiatreau with the jack in question, or its value, and that he will not now be permitted to show that the jack was dead at the time the suit was filed. This is, in effect, a plea of res judicata. The statement in the opinion that one jack had died prior to the institution of this action, and that two jacks were then remaining at Dick's, is fully justified by the testimony of William Filiatreau upon the first trial. But, in his behalf, it is now insisted that he was mistaken in saying that two jacks were then living, and that he should be allowed to show the true state of facts-that only one jack was living at the time the suit was instituted. We do not think the language in the former opinion should be treated as conclusive of a question which was not made an issue upon the first trial. The issue litigated and decided upon the former appeal was one of fraud, or no fraud, upon the part of R. O. Filiatreau in selling or turning over his stock to his father. No issue was made as to the number of jacks R. O. Filiatreau then had, and the circuit court entered no judgment subjecting any of the property to the payment of appellant's debt. The language of the opinion incidentally followed the testimony of William Filiatreau as to the property he had received from his son. [2] The issue as to the number of jacks sold by R. O. Filiatreau to his father was first made by the commissioner's report and the exception filed to the report. The report, and the exception thereto, made the issues as to the fact and the date of the colt's death for the first time. While the issues might have been made by pleadings, the report and exception sufficiently raised those questions. Dewhurst v. Shepherd's Ex'r, 102 Ky. 240, 43 S. W. 253, 19 Ky. Law Rep. 1260. liam Filiatreau came to have an interest in them, amounting to the whole of their value, except $200, is left to conjecture. One of these jacks appeared to have died prior to the institution of this suit, and the record does not clearly establish the value of the two remaining 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. 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 exception was filed on November 11, 1912. The following four witnesses testified orally be-, retracted, explained, or corrected in any way. fore the court: Felix Murphy said that about August or September, 1912, he dragged a dead jack out of R. O. Filiatreau's barn, but knew nothing about him, or anything about the other jacks on the place. James McCullom, a neighbor, testified that he saw a dead jack on R. O. Filiatreau's farm in the latter part of the summer of 1912, and from appearances he 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 said he saw two jack colts on R. O. Filiatreau's farm, either in the spring of that year or of the year before. Alex. Higdon, another farmer, who lived four miles distant, testified that in the latter part of the summer of 1912 he saw a dead jack on R. O. Filiatreau's place, which appeared to be two or three years old. Mrs. R. O. Filiatreau testified Mrs. R. O. Filiatreau testified that her husband had three jacks, an old one and two colts; that the old one died in the spring or summer of 1912; that one of the colts died, and the other one was surrendered and sold to pay plaintiff's judgment. She nowhere undertakes to give the time when the colt died. Of the witnesses that testified before the commissioner, Rad Murphy said the older jack died, but he did not remember when he died; and, in answer to the question if one of the younger jacks on hand there in the summer of 1912 did not die that year, he answered: "I helped to drag out one-drag one out of the stable about that time, I reckon." Upon cross-examination, Rad Murphy said that his brother Felix lived with R. O. Filiatreau in 1910, and that the big jack died while Felix lived with R. O. Filiatreau. Thomas Corbett, a brother-in-law of R. O. Filiatreau, said he had no idea what the three year old jack was worth at the time this suit was instituted against William Filiatreau, thereby stating by inference, at least, that the older jack was then alive. R. O. Filiatreau testified that he sold his father only the two jack colts; that the big or older jack had died a year or two years before this litigation began, thereby contradicting all the other witnesses who said he died in the summer or fall of 1912; and that one of the colts died, although he does not give the date of his death. Under this testimony it will be seen that the two colts were turned over to William Filiatreau by his son, R. O. Filiatreau, and that one of them died; but it has not been shown that he died before the institution of this action, on November 11, 1912. The burden was upon William Filiatreau to show that fact; and this he failed to do. On the contrary, upon the first trial of the case he said, without equivocation, that two of the jacks were then "at Dick's." This important statement of his deposition has never been Under this proof we think the circuit judge erred in finding that one of the jack colts had died before the institution of this action, and that he should have charged William Filiatreau with $300, the value of the colt as fixed by the commissioner. Judgment reversed, and cause remanded, with instructions to the chancellor to enter a judgment as above indicated. mortgage in order to release the property, and it Where a mortgagor agreed to take a new was stipulated that the second mortgage should not be effective until the interest on the first mortgage had been paid or arrangement satisfactory to the mortgagee had been made, a recordation by the mortgagee of the new mortgage without payment of interest constituted an acceptance thereof. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 170, 171; Dec. Dig. 3. MORTGAGES 73.] MENT-LIABILITY. ment of the mortgage debt thereon is liable as principal therefor. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 756-758; Dec. Dig. 283.] Appeal from Circuit Court, Knox County. Suit by J. A. Gilliam and others against J. T. Gray and others to foreclose a mortgage. Judgment for plaintiffs, and defendants appeal. Affirmed. J. D. Tuggle and J. B. Campbell, both of Barbourville, for appellants. J. M. Robsion, of Barbourville, for appellees. CARROLL, J. This case may be briefly disposed of. Previous to September, 1908, Gray was indebted to Gilliam in the sum of $2,000, secured by a mortgage on what was known as the "tunnel property." Desiring to have this mortgage released, Gray proposed to execute a mortgage on other property, which proposition was accepted by Gilliam, and thereupon, on September 4, 1908, Gray and his wife executed to Gilliam a mortgage for $2,000 on certain real estate described in the mortgage. The mortgage stipulated that: effect, first party is to pay the accrued interest "Before this contract of mortgage is to take on the mortgage as it now stands on the tunnel property or to make such arrangement about 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 placed on record that the first mortgage given to secure this debt will be fully released, and the mining property at the tunnel embraced by said mortgage will be freed from the same." On October 2, 1908, this mortgage was duly recorded in the proper office. In 1912 the assignee of Gilliam brought suit to enforce this mortgage lien, and Gray sought to defeat a recovery upon the ground that Gilliam had never released the mortgage on the tunnel property or accepted the new mortgage, and therefore there was no consideration for its execution. Some claim is made that, in consequence of the failure of Gilliam to release the mortgage on the tunnel property, Gray was damaged in connection with a trade he had with the Charlton-Jellico Coal Company, but there is no evidence to support this contention. [1] The new mortgage itself recited that as soon as it was accepted and placed on record the mortgage on the tunnel property would stand released. By placing this mortgage on record Gilliam accepted it in lieu of the mortgage on the tunnel property, and his act in thus accepting it of itself released the lien secured by the other mortgage. [2] It is further said that the new mortgage provided that it should not take effect until Gray paid the interest on the first mortgage debt or made satisfactory arrangements concerning the same, and, as Gray did not pay this interest, the new mortgage did not take effect. But when Gilliam accepted this new mortgage and put it on record, he signified his willingness that it should take effect without the payment of the interest, and this act on his part was an acceptance of the new mortgage. In addition to this, in August, 1909, Gray conveyed the land covered by the new mortgage to his wife, and as a part of the consideration for this conveyance it was stipulated that Mrs. Gray should pay the mortgage debt to Gilliam. Again, in 1910, Gilliam, in his bankruptcy proceedings, fully recognized the existence and validity of this new mortgage. [3] It is also relied on as error that personal judgment was given against Mrs. Gray, but there is no merit in this contention. Mrs. Gray assumed payment of this mortgage debt, and was liable as principal for its pay ment. The judgment is affirmed. TURNER v. NEWBERRY. Where a debtor conveyed land, the deed for which recited the consideration, parol evidence that the land was sold on an oral trust that the vendee pay his debt and account for the balance, but that the vendee failed to account for the proceeds, was admissible in a suit for such proceeds, may be impeached by oral testimony, although since the recited consideration of a conveyance fraud or mistake be not alleged. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 97-107; Dec. Dig. 37.] Appeal from Circuit Court, Perry County. Napier & Turner and Miller & Wheeler, HANNAH, J. W. H. Turner sued William Newberry in the Perry circuit court to recover a sum of money claimed to be due Upon a in virtue of a certain oral trust. trial of the action, the court directed a verdict for the defendant, and the plaintiff appeals. The Winchester Bank had sued Turner in the Perry circuit court, and it obtained a judgment in that action against Turner and against Newberry as Turner's surety on a bond executed therein for the sum of $498.83. Turner was also indebted to one R. F. Fields in the sum of $174.74, which was a lien upon a tract of land owned by Turner in Perry county, containing 95.54 acres. According to the testimony of the plaintiff, which, for the purpose of this opinion, is taken as true, the trial court having directed a verdict for the defendant, Turner was unable to discharge the claim of the Winchester Bank, and Newberry asked him if he was going to permit him (Newberry) to suffer by reason of his having signed the bond mentioned, whereupon Turner said he would sell his land and pay off the claim of the bank and of Fields. At that time Turner had an offer of $8 per acre for his land, but did not want to accept that price. berry then said that he was going to sell some land of his adjoining Turner's, and that he could sell the two tracts together for $10 per acre or more; that, if Turner would convey to him the 95.54 acres then owned by Turner, he would put it in with his own land in the sale, and would pay over to Turner the excess of the sum so realized after discharging the debts due the Winchester Bank and R. F. Fields. Turner New (Court of Appeals of Kentucky. Oct. 14, 1915.) then proposed that a written contract to this gage. effect be entered into, but Newberry said that the parties to whom he proposed to sell the land would not be willing to take it if they should learn that Turner was beneficially interested, as they were angry at him [Ed. Note. For other cases, see Mortgages, because he would not take their offer of $8 Cent. Dig. §§ 97-107; Dec. Dig. 37.] per acre. Thereupon Turner and wife ex ecuted to Newberry a deed in the usual | land so conveyed to him and pay the proform, reciting that: It was made "for and in consideration of the sum of $673.57, $498.83 of which is this day paid by second party to the Winchester Bank in satisfaction of a judgment rendered in favor of said bank in an action in the Perry circuit court wherein the Winchester Bank was plaintiff and W. H. Turner and others were defendants, and $174.74 of same was this day paid by the party of the second part to R. F. Fields in satisfaction of a judgment lien he holds against the lands herein conveyed, which judgment lien was adjudged to said Fields in the above-named action, all of which is declared to be an essential and moving consideration, the receipt of all of which is hereby acknowledged, and on consideration of its full payment of said sum as above stated, the parties of the first part do hereby grant, bargain, sell, and convey," etc. This deed was executed April 20, 1909, and on June 6, 1910, Newberry sold his land and the land so conveyed to him by Turner for a sum amounting to about $11 per acre; and, Newberry having failed to account for any excess so realized over the $673.57 paid by him to the Winchester Bank and to Fields, Turner brought this action to recover this difference. We are informed by the brief of counsel for appellant (appellee has filed no brief) that the trial court sustained defendant's mo ceeds over to his wife, the daughter's mother. In a suit to enforce this trust, the court held parol testimony admissible to show that such was the inducement for the execution of the deed, and to establish the trust by showing the real consideration for the conveyance. In Spencer v. Richmond, 46 App. Div. 481, 61 N. Y. Supp. 397, it was likewise held that parol evidence was competent to show that a deed absolute on its face was, in fact, to secure an indebtedness, and that there was also the further parol agreement that the lands thereby conveyed were to be sold, and the balance over and above such indebtedness owing to the grantee should be returned to the grantor. In Texas, where, as in this state, there is English statute of frauds, or any equivalent no statute adopting the seventh section of the declaration, it is held that a parol express trust is raised where a grantor executes a conveyance of land, absolute on its face, under a parol agreement by the grantee to sell the land and account to the grantor. Diffie V. Thompson (Tex. Civ. App.) 90 S. W. 193; Clark v. Haney, 62 Tex. 514, 50 Am. Rep. 536. tion 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 could not be shown. grantor takes a conveyance of land under a 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, that notwithstanding the original invalidity parol evidence is admissible to impeach the 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 the 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 Ky. 684, 128 S. W. 1082, 137 Am. St. Rep. 408; Brown v. Spradlin, 136 Ky. 703, 125 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. [2] The recited consideration of a conveyance may be impeached without allegation of fraud or mistake, and that, too, by parol testimony. Ky. St. § 470, subsec. 7; Stamper v. Cornett, 121 S. W. 623; Ky. St. § 472. Of course, in the instant case, it was not shown that the conveyance from Turner to Newberry was, in fact, intended to be a mortgage. It was not intended that the land should be held by Newberry as security, but that he should sell it and pay to Turner whatever the sale realized over and above the amounts which Newberry had paid for Turner. The transaction was an oral trust. In Woolfolk v. Earle, 40 S. W. 247, 19 Ky. Law Rep. 343, a daughter conveyed to her stepfather a tract of land for the recited consideration of $1. There was a parol agreement at the time that he was to sell the im The trial court therefore erred in directing a verdict for the defendant. The judgment is reversed. McWILLIAMS v. KENTUCKY HEATING (Court of Appeals of Kentucky. Oct. 5, 1915.) GENCE. Where plaintiff was injured when the spikes in the rear wheels of the steam roller which he operated under the direction of county officials pierced a gas main, resulting in an explosion which severely burned him when the gas came in contact with the fire box of the roller, the fact that the county officials had knowledge that the gas main was dangerously near the surface of the road, and nevertheless ordered plaintiff to operate his roller so that the accident might result, will not excuse the gas company for negligently laying its main too near the surface, since the negligence of one party does not excuse a third party from liability, also guilty of negligence, if the injury complained of would not have happened except for his negligence. [Ed. Note.-For other cases, see Gas, Dec. Dig. 18.] |