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batant enemies from capture as booty of farm, and that the chancellor properly so held.

war.

The scope and effect of the act of March 3, 1863, supra, was fully considered in the case of United States v. Klein, 13 Wall. 128, 20 L. Ed. 519, in an able opinion by Chief Justice Chase. It was there held that the title to the proceeds of property which came into the possession of the federal government by capture or abandonment, with the exception above referred to, was in no case devested out of the original owner, and that it was for the government itself to determine, and not its military officers, whether these proceeds should be restored to the owner. The act of 1863 directed the officers of the Treasury Department to take into their possession and make sale of all property abandoned by its owners, or captured by the national forces, and to pay the proceeds into the national treasury. It was then for the Court of Claims to determine, by a proper trial, whether the proceeds should be restored to the owner of the property. The title of the original owner was not disputed; but he could only recover his property or its proceeds by proving his loyalty to the government of the United States. Otherwise, it remained with the government. See, also, the Case of Mrs. Alexander's Cotton, 2 Wall. 404, 17 L. Ed. 915; United States v. Padelford, 9 Wall. 531, 19 L. Ed. 788; Lamar v. Browne, 92 U. S. 187, 23 L. Ed. 650; Walker's Ex'rs v. United States, 106 U. S. 413, 1 Sup. Ct. 300, 27 L. Ed. 166; Austin v. United States, 155 U. S. 424, 15 Sup. Ct. 167, 39 L. Ed. 206; Rice v. United States, 21 Ct. Cl. 419.

[6, 7] 4. The appellees prosecute a cross-appeal from so much of the judgment as refused them a recovery of the $4,120 realized from the sale of the 103 acres to Scobee in 1875, and also from so much of the judgment as denied a recovery of the $850 which was paid to Mrs. Neel in 1895 by the Louisville & Nashville Railroad Company for a right of way through the farm. Appellees admit, however, that they have been unable to make any direct proof of any reinvestment of the $4,120 received from Scobee; and, as it was sold during the lifetime of Pearce Noland, no presumption will be indulged that the money was received or spent by her, or that it was reinvested under the clause of the deed permitting, but not requiring, reinvestments during Pearce Noland's life. But the $850 received from the railroad company in 1895 was received after the death of Pearce Noland; and, under the later provision of the deed requiring a reinvestment of the proceeds of all sales made after his death, it is insisted that Mrs. Neal's estate is liable for the last-named sum.

Bettie Neel, about the year 1903, erected It is stipulated of record, however, that upon the farm in question a tobacco barn, at a cost of more than $850 and that said barn is still on the farm. As above stated, Mrs. Neel was required by the deed to reinvest this money for the benefit of the remaindermen; and it is clear from the proof that she did invest or spend a great deal more than $850 in permanent improvements upon the farm after Pearce Noland's death.

[8] A life tenant is not bound to make any permanent improvements on the estate; and, if he should make them, it will be presumed they were made for his own benefit, and he will not be permitted to recover anything therefor from the remainderman or the reversioner. 16 Cyc. 630; Johnson v. Stewart, 8 Ky. Law Rep. 857; Nineteenth & Jefferson Street Presbyterian Church v. Fithian, 29 S. W. 143, 16 Ky. Law Rep. 581; Caldwell v. Jacob, 22 S. W. 436, 27 S. W. 86, 16 Ky. Law Rep. 21. But that is not this case. There is no attempt here upon the part of the life tenant's executor to recover this $850, or any sum. It is merely claimed, by way of defense, that she reinvested this money upon the farm, by improving it to that extent, and that the farm, thus improved, goes to the remaindermen. We think this was a sufficient compliance with the requirements of the deed.

It follows, therefore, that the act of Gen. Grant in delivering the cotton to Mrs. Noland, even though it happened precisely as is claimed by appellants, did not affect Pearce Noland's title thereto. And, in justice to the memory of Gen. Grant it should be said that he did nothing that can be construed as a violation of the act of March 3, 1863. He did not attempt to confiscate the cotton in question, or to devest Pearce Noland's title thereto. On the contrary, he fully recognized that title by directing a surrender of the cotton to its owner. There is evidence in this record that Pearce Noland was a Union man, and not a Confederate; and if that were true, his cotton was not liable to seizure. And, as heretofore stated, there is no competent evidence that it was seized by the military authorities. It must follow, therefore, under any view of the case, that appellants have failed to sustain their claim to a resulting trust in the Shelby county cross-appeal.

Judgment affirmed upon both original and

ROBINSON v. ROBINSON. (Court of Appeals of Kentucky. Oct. 28, 1915.) 1. TRIAL 367-SUBMISSION OF CASE-ADMISSIONS IN PLEADING.

In a divorce suit by a husband against the wife, in which the petition was amended so as to seek an annulment of the marriage on the ground that the defendant at the time of the marriage had not procured a divorce from a former husband, submission of the case over defendant's objection was not premature, on the ground that the case did not stand for trial, where the wife's answer admitted that she had not been divorced from the previous husband. [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 879, 886; Dec. Dig. 367.] 2. DIVORCE 152-PROCEEDINGS-PROOF.

court, in which the divorce suit brought by appellant was pending, filed a certificate showing that the last order made in that divorce suit was "Submitted for judgment," and that there was no judgment of record in the case. Whereupon this case was submitted. The order granting alimony was set aside, and it was adjudged that the contract of marriage was void on account of the fact that the appellant had never obtained a divorce from her first husband.

[1, 2] On this appeal it is urged as ground of reversal that the court erred in submitting the case over the objection of the appellant, as it did not stand for trial, and in dismissing the appellant's claim for ali

The entry of a divorce judgment on the order book of the court is indispensable to estab-mony, as there was no competent evidence lish the fact that a divorce has been granted. [Ed. Note. For other cases, see Divorce, Cent. Dig. § 514; Dec. Dig. 152.]

Appeal from Circuit Court, Pike County. Suit by E. M. Robinson against Eliza Robinson for divorce. From a judgment for plaintiff, defendant appeals. Affirmed.

J. S. Cline, of Pikeville, for appellant.

CARROLL, J. The appellee brought this The appellee brought this suit in January, 1914, to obtain a divorce from the appellant on the ground of adultery. The appellant filed her answer and crosspetition in February, 1914, in which she averred that they were married on the 23d day of December, 1913, and lived together only about four weeks, separating some five days before the suit was brought. She denied the

charge of adultery, and set up that the appellee had abused and mistreated her in such a manner as to indicate a settled aversion to her, and further averred that "although there was born of the marriage one child, of which the plaintiff is the father," he had refused to furnish anything for its support. She asked for an allowance pending the suit, and for alimony for herself and child. In March, 1914, the court made an order allowing the appellant alimony; and in May, 1914, an amended petition was filed, in which it was averred that the plaintiff had learned since the petition was filed that the defendant had never obtained a divorce from her first husband, although a suit had been brought by her for that purpose, and that in representing herself as a single woman she practiced a fraud on him, and therefore he prayed that the contract of marriage be set aside and held for naught.

For answer to this amended petition the appellee, after traversing it generally, affirmatively averred that she had instituted a suit for divorce against her former husband, which, after being prepared for nearing, was submitted, and the court had directed a judgment to be prepared granting her a divorce, and this judgment was given to the clerk, but for some reason was not recorded on the order book. The clerk of the Pike circuit

that she had not been divorced from her first husband. The court did not prematurely submit the case, and no evidence of the fact that the appellant had not been divorced was necessary, as her answer to the amended petition admitted that she had not been. The court may have indicated that it would grant her a divorce from her first husband, and directed her attorney to prepare the judgment; but the entry of the judgment on the order book of the court was indispensable to establish the fact that the divorce was granted, and it was admitted that the judgment had not been entered. The judgment is affirmed.

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The court's power to set aside a judicial sale is not an arbitrary one, and can be exercised only for cause showing irregularities preventing the property bringing its reasonable value; the court taking into consideration the rights of all parties, including the purchaser. [Ed. Note.-For other cases, see Judicial Sales, Cent. Dig. §§ 72, 73; Dec. Dig. 35.] 2. MORTGAGES 522-FORECLOSURE-SALES

-VACATION. sold at judicial sale for less than two-thirds of Ky. St. § 1684, declares that if property be its appraised value, the owner may redeem it within one year thereafter by repaying the original purchase money, with interest. Mortgaged property when first exhibited for sale was, after a controversy between the mortgagee and the attorney for one of the parties, sold to the mortgagee for one-fourth of its appraised value. sioner that he would not claim the advantage of The mortgagee then announced to the commishis bid, and on resale the property was sold to the mortgagee for two-thirds of its appraised value, thereby precluding redemption. Held, that as the first sale would have been vacated, the mortgagor cannot complain that the commis sioner resold the property; it being to his benefit that the property bring its reasonable value.

[Ed. Note.-For other cases, see Mortgages,

Cent. Dig. § 1522; Dec. Dig. 522.] Appeal from Circuit Court, Rockcastle County.

Action by L. W. Bethurum against W. H. Baker and another, consolidated with an ac

tion by the People's Bank. From a judg- | Griffin he might again offer the property for ment setting aside a mortgage sale, the named plaintiff appeals. Reversed, with instructions.

Bethurum & Lewis, of Mt. Vernon, for appellant. C. C. Williams, of Mt. Vernon, for appellee.

MILLER, C. J. On June 2, 1911, the appellees, W. H. Baker and wife, mortgaged their Langford tract of 15 acres, situated on Round Stone creek, in Rockcastle county, to B. F. Hill, to secure the payment of a note of even date therewith, for $424. Hill assigned the note to the appellant Bethurum. Subsequently, on the 14th of September, 1911, Baker and wife mortgaged the Langford tract and a house and lot on Main street, in Mt. Vernon, known as the "Hotel Property," to Williams, Mullins & Richards, to secure three notes aggregating $2,250. By successive assignments, these last three notes became the property of the People's Bank of Mt. Vernon. On April 18th, 1913, Bethurum instituted this action to enforce his mortgage lien upon the Langford tract; and on August 8th of the same year, the People's Bank instituted an action against Baker and wife to enforce its lien upon the Langford tract and the Hotel Property. The two suits were consolidated and proceeded to a judgment on August 30, 1913, enforcing the liens and directing a sale of the mortgaged property to pay the respective debts of the plaintiffs. The Langford tract was appraised at $1,000. The judgment provided that in case Bethurum directed a sale, the

commissioner should sell only the Langford tract, or so much thereof as was necessary to pay Bethurum's debt, and any surplus remaining from the sale of that tract should be retained by the commissioner, subject to be retained by the commissioner, subject to the order of the court. Bethurum directed a sale; and, when Griffin, the master commissioner, after due advertisement, was preparing to cry the property, C. C. Williams, who had been Mrs. Baker's attorney in a divorce case, and was presumably acting for her, or for himself as assignor of the notes then held by the People's Bank, stated to Griffin that he objected to his selling the Langford tract first, because the judgment provided that the Hotel Property should first be sold, and, if it failed to bring enough to satisfy the indebtedness for which the mortgage was executed, then the Langford tract should be sold. Bethurum disputed the correctness of Williams' statement, and after some further disputation between Bethurum and Williams, Griffin proceeded with the sale of the Langford tract. Bethurum started the bidding with an offer of $250; and, there being no other bid, Griffin knocked down the property to Bethurum. Immediately thereafter, and before the crowd had dispersed, Bethurum announced that he would waive

sale, and that he would cause them no trouble about his bid of $250. Griffin again offered the property for sale, and Bethurum down to him, Bethurum complied with the bid $667 therefor, and it was again knocked terms of sale by giving bond, and the commis

sioner so reported it to the court. The defendant W. H. Baker excepted to the report, because the commissioner sold the Langford tract for a sum less than two-thirds of its appraised value, thereby saving to the defendants a right of redemption, but that after the land had been sold for less than two-thirds of its appraised value, the commissioner, without right, and without an order of court, resold said tract for $667, which was more than two-thirds of its appraised value, thereby attempting to deprive the defendant of his right to redeem said land. The court sustained the exception, and from a judgment setting aside the sale, Bethurum prosecutes this appeal.

[1, 2] Under section 1684 of the Kentucky Statutes, if property be sold at a judicial sale for less than two-thirds of its appraised value, the owner has the right to redeem it within one year thereafter, by repaying to the purchaser the original purchase money, with 10 per cent. interest thereon. This exception presents only one question for determination upon this appeal, viz.: Did the commissioner have the right to make the second sale?

The court's power to set aside a judicial sale and order another sale, is not an arbitrary power. It can only be exercised for cause showing such irregularities in the proceedings, or such misconduct on the part of persons interested, or officious intermeddlers, as presumably interfered with the property bringing its reasonable value. But the court must regard the rights of all the parties, including the purchaser, and exercise a legal discretion as to rejecting or confirming sales. Hughes v. Swope, 88 Ky. 258, 1 S. W. 394, 8 Ky. Law Rep. 256; Head v. Clark, 88 Ky. 364, 11 S. W. 203, 10 Ky. Law Rep. 917.

In Head v. Clark, supra, in speaking of the commissioner and his duties, the court said: "If it be conceded, however, that, in the case of an ordinary sale by auction, the power of the auctioneer is at an end the moment the hammer falls, and that the contract of purchase is then closed, no matter what mistakes he may have committed, or what misunderstanding may have existed upon his part as to the bidding, yet we are unwilling to say that this is true as to a decretal sale attended by circumstances similar to those now under consideration. In an ordinary sale by auction, the auctioneer is the agent of the seller only until the sale is made, when, for certain purposes, he becomes the agent of both parties.

"A commissioner, acting under a decree, has, however, duties to perform as to the complainant, the vendor, the purchaser, and the court; and in the performance of those duties he must invested with a reasonable discretion, in many exercise his best judgment. He is necessarily

ing care, however, to obey the decree so far as it has given him specific directions. In acting under it, he should adopt all proper means to fulfill its directions; and in doing so he is, unless restricted by its terms, or the general law, to exercise a sound discretion. He may, for good reason, decline to sell at the time advertised. If there be but one person present, or by reason of sham bidding a sacrifice of the property is reasonably certain to occur, he may refuse to proceed. It was said by the Supreme Court of the United States in Blossom v. Railroad Company, 3 Wall. p. 209 [18 L. Ed. 431, that he might be justified in postponing the sale to a future day to prevent the sacrifice of the property. Every such officer has a right to exercise a reasonable discretion to adjourn such a sale, and all that can be required of him is that he should have proper qualifications, use due diligence in ascertaining the circumstances, and act in good faith, and with an honest intention to perform his duty.'

"Undoubtedly a sheriff in selling under execution may exercise his discretion in the respects to which we have alluded, and we see no reason why a commissioner in selling property under decree should not have the same right. The fact that his action is not final until approved by the court does not present a sufficient reason for a distinction."

In Swafford v. Howard, 50 S. W. 43, 20 Ky. Law Rep. 1794, the purchaser did not execute bond for the purchase money at the conclusion of the sale, whereupon the commissioner resold the property. In approving his action, the court said:

"Frederick did not execute bond for the purchase money, and the commissioner had the right to use his discretion as to whether or not be would resell it, and it does not appear that he abused the discretion which he had the right to exercise. Head v. Clark, 88 Ky. 362 [11 S. W. 203, 10 Ky. Law Rep. 917]: Wilson v. Thorne & Co. [13 S. W. 365] 11 Ky. Law Rep. 945; Hughes v. Swope, 88 Ky. 254 [1 S. W. 394, 8 Ky. Law Rep. 256]."

In 24 Cyc. 46, it is said:

"If the purchaser, at once upon the property being struck off to him, wrongfully refuses to comply with the terms of the sale, the officer may offer the property for sale again without an order for the resale."

If a commissioner has the right to make a new sale in case the purchaser fails to comply with his bid at the first sale, we see no reason why the commissioner may not resell the property, with the consent of the purchaser at the first sale. Of course he could not release the purchaser under the first sale if, by doing so, he would affect the rights of

any interested party. Appellees' exception, however, is based upon the idea that the commissioner was representing the defendant only when he made the sale, while, in fact, the sale was made at the direction of appellant, and for the purpose of preserving his rights under the judgment.

Moreover, it was to the interest of every one concerned that the property should bring the highest price possible, and the fact that the property brought more than two-thirds of its appraised value at the second sale, and thereby barred appellees' right of redemption, cannot affect the rights of any of the parties. There is proof to the effect that the wrangle between Bethurum and Williams before the sale deterred other persons from bidding, and thereby letting the property go at the nominal price of $250. Appellant recognized that fact, and promptly notified the commissioner that his bid need not stand in the way of a higher bid. If the tract had been sold under the bid of $250, there can be little doubt that, in view of the controversy between appellant and Williams, and the consequent low price, the sale would have been set aside, upon exception taken thereto, and a resale ordered. That has been accomplished to the benefit of all concerned by the second sale at more

If

than double the bid at the first sale. Bethurum's first bid of $250 had prevailed, and the property had been sold to him for that sum, instead of for $667, as was done under the second sale, the difference of $417 would have been thrown upon the Hotel Property. Furthermore, if the first bid of $250 had been accepted, the appellees' right of redemption in the Langford tract could have been sold to pay the unpaid balance of appellant's debt. It would seem, therefore, under any view of the case, that it was to the interest of both Baker and his creditors that his property should bring the higher rather than the lower price. The usual complaint is that the debtor's property sells for too small a sum. We are of opinion the chancellor was in error when he set aside the second sale.

Judgment reversed, with instructions to the circuit court to set aside the judgment appealed from, and to confirm the sale of the Langford tract to the appellant.

THOMAS v. NATIONAL CONCRETE

CONST. CO.

(Court of Appeals of Kentucky. Nov. 3, 1915.) 1. MASTER AND SERVANT 219-INJURIES TO SERVANT-DEFENSES.

A master will not be exonerated from liability for injuries sustained by a servant hurt when a bucket used to carry concrete broke, on the theory that it was a simple tool; the bucket not being used in the ordinary manner. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 610-624; Dec. Dig. 219.]

or handle broke, and the bucket fell on plaintiff's head and injured him. The buckets which were being used were "brand-new" galvanized iron buckets, which had been purchased the day before. Plaintiff testifies that he had been engaged in concrete work for a number of years. On the occasion in question he believed that the work of filling the buckets was dangerous, but he feared that, if he did not do the work, he would lose his place. He further says that the foreman told him that he had examined the unable to tell what caused the bail to break. buckets and they were all right. He was James Thompson, who at the time of the accident was engaged in pulling up the buckets which plaintiff filled, says that the foreman just before the accident fixed one of the buckets, and he heard the foreman say that the buckets were all right. On being asked what caused the bail to break, he replied that [Ed. Note.-For other cases, see Master and the bucket must have been too heavily loadServant, Cent. Dig. §§ 954, 956-958, 960-969, ed. John H. Johnson, another employé who 971, 972, 977; Dec. Dig. 3. MASTER AND SERVANT

2. MASTER AND SERVANT 278-INJURIES TO SERVANT-RES IPSA LOQUITUR.

The doctrine of res ipsa loquitur applies only in a restricted sense to master and servant cases, and negligence on the part of the master will not be presumed from the mere fact that the bail of a bucket loaded with concrete broke: there being nothing in the surrounding circumstances to show that the bucket, which was new, was defective or that any defect was known to the master.

278.]

101, 102-INJURIES TO SERVANT-ASSURANCE OF SAFETY. That a master gives a servant an assurance of safety, does not impose absolute liability, regardless of negligence, but only deprives the master of the advantage of the pleas of assumption of risk and contributory negligence, unless the defect was obvious.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 135. 171, 174, 178-184, 192; Dec. Dig. 101, 102.]

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Second Division. Action by John Thomas against the National Concrete Construction Company. From judgment for defendant, plaintiff appeals. Affirmed.

S. A. Anderson and J. J. Kavanaugh, both of Louisville, for appellant. Gibson & Crawford and J. Jos. Hettinger, all of Louisville, for appellee.

CLAY, C. In this action for damages by plaintiff, John Thomas, against the National Concrete Construction Company, the trial court, at the conclusion of plaintiff's evidence, directed a verdict in favor of defendant. Plaintiff appeals.

The facts are as follows: On April 4, 1911, the defendant was engaged in doing certain concrete work on a building at Fourth and Walnut streets, in Louisville. Prior to the accident plaintiff had been employed by defendant as a laborer, and was engaged in wheeling sand and gravel. On the day of the accident defendant's foreman placed him at work filling buckets with concrete, which were being hoisted to the third floor of the building. For this purpose two buckets were used, each attached to the end of a rope, and as one filled with concrete was being hoisted the empty bucket at the other end of the rope would be lowered to be refilled. As one of the buckets was being hoisted, the bail

was present, says that he heard the foreman tell plaintiff that the bucket was all right.

In his petition plaintiff charges that the bucket and bail thereon had become old and worn and out of repair and in a dangerous and defective condition, and that this condi tion was known to the defendant, or could have been known by the exercise of ordinary care. He further alleges that defendant assured plaintiff that the buckets and bails were in safe condition, and that plaintiff relied on such assurance, and that the danger attending his employment was not obvious.

[1] We are not disposed to the view that a recovery cannot be had because the bucket which injured the plaintiff was a simple tool. It might be so regarded had it been used in the ordinary and usual way; that is, if the plaintiff had been engaged in carrying the bucket at the time. As a matter of fact, however, the bucket was being used as a part of the hoisting apparatus, which was being operated by another employé. In view of these circumstances, we conclude that the simple tool doctrine has no application.

[2] It remains to consider, however, whether there is any evidence of negligence on the part of the defendant. Though plaintiff alleges that the bucket was worn and defective, there is not only an absolute failure of proof on this point, but the evidence shows that the buckets were "brand-new" buckets. Nor is there any evidence that the buckets were not of sufficient strength for the purpose for which they were being used, the proof showing that they were the kind ordinarily used for hoisting purposes. Indeed, the only evidence as to the cause of the accident is the statement of one of the witnesses to the effect that the bucket was probably too heavily loaded, and the loading was being done by plaintiff. Is the mere fact that the bail broke sufficient evidence of negligence? While the doctrine of res ipsa loquitur ap

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