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time Tuttle's enthusiasm over the proposed , deed was executed, and 69 at the time of the construction of the road seems to have trial. Plaintiff himself testified, and, while cooled down, and he refused to give a new it may be true that he talked with difficulty, option upon the same terms. However, he the stenographer's transcript of his evidence gave an option by which he agreed to con- shows a very lucid account of all the cirvey the necessary land, and the company cumstances leading up to the execution of agreed to pay therefor $75 an acre and $450 the deed, and a clear appreciation by plainin damages, and further agreed to build two tiff of the various items of damage. It also

. grade crossings and the necessary fencing. shows that, in dealing with the contractors The company elected to exercise the last-men- engaged in construction of the road, he took tioned option, and on May 27, 1912, Tuttle various steps to protect himself against any conveyed the right of way to the company infringement of his rights. James W. Tutfor $1,423.50. About two years later Tuttle tle, a nephew of plaintiff, testified that plainbrought this suit against the company to tiff's mental condition at the time of the cancel the deed on the ground of mental inca- trial was just about the same as it had been pacity and to recover damages in addition for 8 or 10 years. Dr. Ishmael, who had to those already received. Plaintiff's motion been plaintiff's family physician for 2 years to transfer the action to the ordinary docket preceding the trial, testified that plaintiff was overruled, but his motion for an issue was paralyzed in October, 1913, and that his out of chancery on the question of mental tongue, speech, and mental condition were incapacity was sustained. On this issue the thereby affected. This witness also testified jury returned a verdict in favor of plaintiff. that, while he had had no business dealings A judgment canceling the deed was then with plaintiff prior to the stroke, plaintiff in rendered, and the company appeals.

his opinion was competent to attend to busi[1-4] Where there is presented in an equi- ness. C. P. Bedford, who married a niece of table action a distinct legal issue, which ei- plaintiff and had known plaintiff for a long ther party has the right to have tried by a time, testified that he had not noticed any jury, the verdict of the jury is conclusive, change in plaintiff's mind for 5 or 6 years, and will not be disturbed, unless flagrantly with the exception of the fact that he had against the evidence. On the other hand, grown older, the same as other people. where the action is purely equitable, and the Thomas Bradley, plaintiff's nephew, testified issue of fact has always been of equitable that there had been a change in plaintiff's cognizance, the verdict of the jury is merely mental condition during the last 5 or 6 years. advisory, and the chancellor may disregard He further stated that plaintiff was not "as the verdict and enter judgment in conform- bright and as easy to get at things, and he ity with his view of the weight of the evi: testified that he had known plaintiff for 35

is kind of easily influenced.” Dr. R. Allen

. dence. Hill v. Phillips' Adm'r, 87 Ky. 169, 7 S. W. 917, 10 Ky. Law Rep. 31; Consolida- last 4 or 5 years. He did not think that

? 40 years, but had not seen him often in the , tion Coal Co. v. Vanover, 166 Ky. 172, 179 plaintiff was of a vigorous or strong mind at S. W. 43; Winchester et al. v. Watson et the time of the trial. His condition then was al., 169 Ky. 213, 183 S. W. 483. And in the worse than it had been prior thereto. latter case, where the verdict of the jury is did not know that plaintiff had suffered a

He sustained by the chancellor, it is entitled to stroke of paralysis in 1913. considerable weight, and the judgment will not be set aside on appeal, unless the verdict and v. W. Bush, who represented the com

On the contrary, Messrs. L. L. Pendleton is clearly against the preponderance of the evidence. Hendrix, etc., v. Money, etc., 1 pany in obtaining the option, detailed the Bush, 306; Blakey v. Johnson, 13 Bush, 200, circumstances leading up to the execution of

; 26 Am. Rep. 254; Ford v. Ellis, 56 s. w. the deed, and testified that they saw no in512, 21 Ky. Law Rep. 1837. This is a suit dication of mental incapacity on the part of to cancel the deed on the ground of the men

plaintiff. Squire B. C. Fox, a neighbor of tal incapacity of the grantor, and the ques. plaintiff and a relation by marriage, testital incapacity of the grantor, and the ques- fied that he had known plaintiff for 50 years, tion being whether, in good conscience, the fied that he had known plaintiff for 50 years, transaction should stand or be set aside, the and that, at the time the options were given issue of fact is of purely equitable cogni- and the deed executed, plaintiff was fully zance. Hendrix v. Money, supra; Blakey v. capable of understanding his business. D. Johnson, supra; McElwain v. Russell, 12 s. B. Hampton, who was present when the first W. 777, 11 Ky. Law Rep. 649. That being option was given, testified to the same eftrue, the only question to be determined is fect. A. H. Hampton, cashier of the Citiwhether the verdict, as confirmed by the zens' Bank, testified that he had known chancellor, is clearly against the preponder- plaintiff for 25 or 30 years; that plaintiff ance of the evidence.

did business at the bank, and on January [5] According to the evidence for plaintiff, 10, 1912, paid off two notes on which J. W. he suffered a stroke of paralysis some months Tuttle was surety, amounting to $1,231.46. after the execution of the deed, which im- At that time plaintiff had sufficient mind paired the use of his limbs and his power of and memory to know and attend to his busispeech. He was 66 years of age when the ness.

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It will thus be seen that, although the 13. JUDGES C 25(2)—SPECIAL JUDGES–JURISburden of showing his mental incapacity was

DICTION AFTER TERM. on plaintiff, he did not introduce a single a particular case in 1899, had, under the law

A special judge, elected by the bar to try witness who testified to any facts showing then in force, authority after the expiration of that his mind was so impaired at the time the trial term to render judgment at the sucthe deed was executed that he was incapa- ceeding term; his jurisdiction continuing until ble of understanding and appreciating his 4. EXECUTORS AND ADMINISTRATORS 330—

the final disposition of the case. property rights and the effect of the convey

SETTLEMENT OF ESTATE-SALES OF UNDIVIDance. The most that can be said is that ED INTERESTS IN REALTY. there was some evidence that his mind was

In a suit to settle the estate of a deceased impaired at the time of the trial, and that er to order the sale of his undivided interest in

person under Civ. Code Prac. § 428, it was proptwo witnesses gave it as their opinion that the lands of a deceased ancestor in order to pay his mental condition had not changed for 4 debts owing by him to the estate of such deceasor 5 years, although in the meantime he had ed ancestor without selling all the property, not

withstanding the existence of minor children of suffered a stroke of paralysis. On the con- the deceased. trary, Dr. Ishmael, plaintiff's own witness,

Appeal from Circuit Court, Johnson stated that, prior to the stroke of paralysis,

County. plaintiff had mind enough to attend to business, and the numerous witnesses for the de- Ben H. Auxier and others, and by Ben H.

Actions by A. E. Auxier and others against fendant, who were either present during the Auxier and others against the Williams Coal negotiations resulting in the conveyance or

Company and others. From judgment for had business dealings with him about that time, all testified to facts showing that From judgment for defendants in second

plaintiffs in first suit, defendants appeal. plaintiff understood his property rights and the nature and effect of the conveyance and suit, plaintiffs appeal. First appeal dismiss

ed; second appeal affirmed. was fully capable of protecting himself. deed, the chief argument made to sustain the Stratton & Stephenson, of Pikeville, for verdict of the jury is based on plaintiff's ap- appellants. Hager & Stewart, of Ashland, pearance at the trial, a condition not shown Fogg & Kirk, Wheeler & Wheeler, and by the record. This argument loses much of Vaughan & Howes, all of Paintsville, and C. its force when we take into consideration B. Wheeler, of Ashland, for appellees. the fact that plaintiff was then suffering

THOMAS, J. John B. Auxier died intesfrom a stroke of paralysis, which he received several months after the execution of the tate a resident of Johnson county, Ky., in deed and about 2 years before the trial, and 1891. Prior to his death he divided his lands the mere fact that he then appeared old and in that county, except some mineral interests feeble, and talked with difficulty, is not suffi- hereafter to be noticed, among his eight cient to overcome the positive testimony that children, except one daughter to whom he his mind was not impaired when the deed gave nothing, but required all his other was executed. We therefore conclude that the seven children to make her whole out of other verdict of the jury was clearly against the landed interests which he owned in Martin preponderance of the evidence. It follows

county, Ky. The division of the lands so that the chancellor should have disregarded made was not entirely a gift, and S. B. Auxthe verdict of the jury and have refused to ier, one of the sons, to whom he conveyed the verdict of the jury and have refused to about 100 acres, at his death in 1893 owed cancel the conveyance. Judgment reversed, and cause remanded. his father's estate a balance of $100 of the

, with directions to enter judgment in con- amount agreed to be paid by him for the land

which he got in the division. S. B. Auxier formity with this opinion.

also died intestate, and left surviving him

his widow and three infant children, all of (180 Ky. 518)

whom are the appellants here. At the time AUXIER et al. v. AUXIER et al. *

of their father's death the children were 4, 5, SAME v. WILLIAMS COAL CO. et al. and 7 years of age, respectively. (Court of Appeals of Kentucky. May 14, 1918.) owned a one-half undivided interest of the

At the time of his death John B. Auxier

, 1. JUDGMENT 270, 282-ENTRY - SIGNA- minerals in and to a tract of land in John

Om – TURE.

To be valid, a judgment must be entered son county containing 200 acres, and a oneupon the order book provided for that purpose, half interest in and to three tracts of land in and, after being entered, it must be signed by Martin county, one of them containing 280 the judge who rendered it.

acres, and the other two 50 acres each, and 2. JUDGMENT Om 273(4) ENTRY ENTRY

the entire interest in two other tracts in that NUNC PRO TUNC.

If the record or the papers in the cause fur-county containing 58 and 74 acres, respectivenish evidence that a particular judgment was in ly. The Martin county lands, as above stated fact rendered by a special judge, the regular were charged with the payment to John B. judge, at any succeeding time after notice and Auxier's daughter, Angelina Preston, of the in a proper proceeding, may legally enter the judgment nunc pro tunc.

sum of $160 to equalize her with the other Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

children to whom the decedent had conveyed, and report all facts necessary for the court to land.

make an intelligent settlement of the matters After the death of S. B. Auxier his widow involved. After the order of reference Hon. moved to Lawrence county, Ky., to the resi- A. J. Auxier was elected judge of the Johndence of her father, A. J. Webb, and the lat- son circuit court at the regular election in ter was appointed by the county court of that 1897, and he declined to sit in the case becounty guardian for her three infant child cause of relationship to the parties. Wheredren. In 1896, when the wards were aged 7, upon, in obedience to the law then prevail8, and 10 years, respectively, the guardian ing in this state upon the subject, the bar filed the first suit above in the Johnson cir- elected Hon. B. L. Davis as special judge to cuit court, making his wards and the heirs of preside in that case. In the meantime, some John B. Auxier defendants. In his petition, interlocutory orders had been made, none of after alleging his appointment and qualifica- which disposed of any meritorious question, tion as guardian, he averred that his wards and on February 23, 1899, when the special inherited the 100 acres of land located in judge was elected, he entered the judgment Johnson county deeded to their father, S. B, appealed from, in which he ordered enough Auxier, by their grandfather, John B. Auxier, of the Martin county land sold to pay the and one-eighth of an undivided one-half inter amount adjudged to Angelina Preston, and est in the minerals contained in the 200 acres that the undivided interest in the remainder of land owned in that county, and a like in- of those lands, being the part inherited by terest in the first three tracts located in Mar- S. B. Auxier from his father, be sold to pay tin county, and a one-eighth undivided inter- the indebtedness of the former to the estate est in the last two mentioned tracts in that of the latter, the amount of which was found county; that they had no personal property,

by the judgment. The commissioner sold and it was necessary to sell their lands for those lands as directed by the judgment, sellthe purpose of educating and maintaining ing first the entire title to the two tracts of the children, and that none of it was produc- 58 and 74 acres each for the purpose of paytive; that it would be to the interest of the ing the amount adjudged to Angelina Preston, wards to sell all of it for the purposes of re- and the combined amount of these sales was investment. And he further alleged that s. but little more than the debt going to her. B. Auxier, through whom his wards as his He sold the undivided interest of S. B. Auxier heirs obtained their interest, was indebted to the remaining three tracts in Martin counto the estate of John B. Auxier in the sum ty which the appellants inherited, and being of $100, which was a lien on the 100-acre a one-eighth of an undivided one-half intertract of land in Johnson county, and that he of S. B. Auxier to his father's estate, and the

est in those tracts, to pay the indebtedness was further indebted to John B. Aụxier's es- total amount of those sales was insufficient tate in the sum of as much or more than $200 for that purpose. The bids at all the sales for other items not necessary to here mention; that to ascertain what interest his were more than two-thirds of the appraised tion; that to ascertain what interest his value of the interests sold. The commissionwards obtained, it was necessary that a settle value of the interests sold. The commission

, ment of the estate of John B. Auxier be had, and the same special judge at the succeeding

er reported the sales, which were confirmed, and the indebtedness of S. B. Auxier to that May, 1899, term of the court entered another estate be ascertained, and that the interest judgment ordering and directing the sale of of S. B. Auxier in the land and mineral in- the 100 acres in Johnson county belonging terest of his father's estate be sold for the to S. B. Auxier, and his one-eighth of an unpurpose of paying his indebtedness to the es divided one-half interest in the minerals untate; that the Martin county land owned by der the 200 acres in that county, the sale of John B. Auxier should also be sold to pay to the first tract being for the double purpose Angelina Preston the $160 going to her from of paying the balance of the purchase money her father's estate.

due on it to the estate of John B. Auxier, The heirs of John B. Auxier other than the and to reinvest the balance for the benefit of children of S. B. Auxier filed an answer and his children, and for their education and counterclaim in the suit in which they set up maintenance, and the mineral interest in the the facts hereinbefore recited, and asked that latter tract in that county was sold for the the Martin county land belonging to John B. same purposes, and also to pay the balance Auxier be sold for the purpose of settling his of the general indebtedness of S. B. Auxier estate, and that out of the proceeds Angelina to the estate of his father. These last sales Preston be first paid $160, and that out of S. were made in accordance with the judgment, B. Auxier's interest his indebtedness to his and the price paid for the 100 acres owned father's estate be paid, and the balance, if absolutely by S. B. Auxier was $500, the any, after paying the cost, be subject to the amount at which it was appraised, and the orders of the court.

mineral interest in the 200-acre tract sold The case was referred to the master com- for its appraised value. These sales were missioner to take proof of the assets and lia- approved, and deeds made accordingly. bilities of both the estates of S. B. and John In the meantime the Consolidation Coal B. Auxier, and to ascertain the indebtedness Company became and is now the owner of of the former to the latter, and to ascertain the mineral interest sold in the 200-acre tract of land in Johnson county, and the Williams, settled rule that it is necessary to the validiCoal Company became and is now the owner ty of a judgment that it be entered upon the of the mineral in the 100-acre tract of land order book provided for that purpose, and in that county; the surface being owned by after being so entered that it be signed by the others.

judge who renders it. Bradley v. Bradley's The appeal in the first case above is from Adm'r, 178 Ky. 239, 198 S. W. 905; Ewell v. the judgment rendered therein on February Jackson, 129 Ky. 214, 110 S. W. 860, 33 Ky. 23, 1899, wherein the sales of the Martin Law Rep. 673; Farris v. Matthews, 149 Ky. county lands were ordered, and which appeal 455, 149 S. W. 896; Interstate Petroleum is prosecuted by the infant defendants in that Co. v. Farris, 159 Ky. 820, 169 S. W. 535; suit, who were the children of S. B. Auxier Comlth. v. Chambers, 1 J. J. Marsh. 108; and the wards of their guardian, A. J. Webb. Raymond v. Smith, 1 Metc. 65, 71 Am. Dec. The youngest of the children was more than 458; Johnson v. Comlth., 80 Ky. 377, and many 24 years of age when the appeal was taken ; other cases which might be cited from this the others being at that time 25 and 27 years court. In the case of Ewell v. Jackson, supra, of age, respectively. A plea of limitation has it was held that although the judge rendering been interposed against their right to prose- the judgment signed the paper upon which cute the appeal, which, under the provisions it was written, and which was afterwards reof section 391 of the Civil Code of Practice, corded upon the order books of the court, this must be sustained, since their right to prose- was not sufficient to comply with the rule, sucute the appeal under those provisions expir- pra, and such signing by the judge would not ed one year after they became of age, and we render the judgment valid, unless he signed therefore need not consider the questions the record. raised on that appeal, except in so far as

[2] Another rule equally well established they are raised and insisted upon in the sec- is that if the record or the papers in the ond case above. That case is an independent cause furnish evidence that a particular judgsuit brought by the children of S. B. Auxier ment was in fact rendered, the regular judge in the Johnson circuit court on April 8, 1911, of that court at any succeeding time, after in which the other heirs of John B. Auxier notice and in a proper proceeding, might leare made defendants, with the present own- gally enter the judgment nunc pro tunc, or in ers of the lands sold under the judgments the same way make any order or do any act rendered in the first case above, and to which that might be necessary to effectuate now we have heretofore referred.

what was in fact done then. Ewell v. JackIn the latter suit the facts above recited son, supra, Chester v. Graves, 159 Ky. 244, are alleged, and it is charged that the judg. 166 s. W. 998, Ann. Cas. 1915D, 678, and ments rendered in the suit brought by A. J. Rogers v. Bigstaff's Ex’r, 176 Ky. 413, 195 S. Webb, guardian of appellants, are null and

W. 777. void, and plaintiffs in the new suit (being

After the second suit above was brought, the second one above) seek to ignore the sales the defendants therein, after due notice, promade under such judgments, and to recover cured an order redocketing the first suit, and from the defendants all of the interest sold asked that, the then presiding judge of the thereunder.

court sign the judgment rendered in the latMany grounds are urged against the validi- ter case nunc pro tunc, which motion, after ty of the judgment in the first suit, but we do hearing, was sustained and the judgment not deem any of them of sufficient importance rendered in that case of February 23, 1899, to demand our consideration except: First was signed by Hon. A. J. Krik, the regular (a) that the first judgment rendered in the judge of the Johnson circuit court, before Webb suit by the special judge, B. L. Davis, whom the motion was made. The proceeding was not signed on the record by him, but that for the nunc pro tunc order was regular, and it was prepared on a separate piece of paper the record furnished amply sufficient eviand signed by the special judge, and after-dence that the ineffectual judgment had been wards it and the judge's signature thereto rendered, and the court under the authorities were recorded upon the order book; and (b) was fully justified in sustaining the motion that when the second judgment was rendered for the nunc pro tunc entry. This, under the by the special judge in that suit in May, 1899, cases referred to, rendered the 1899 judgment under which the Johnson county lands were effectual from the beginning, and cured the sold, there was no re-election of the special defect caused by the judge who rendered it, judge, he acting under his election and quali- not signing the record. fication which occurred at the preceding Feb- [3] Briefly considering now subdivision (b) ruary term of the court. Second, that the of the first ground of complaint, it may be court had no authority to order the sale of stated that under the present law with refonly the infants' undivided interest which erence to the designation of regular judges to they inherited from their father, S. B. Aux- act as special ones in districts other than ier, in any of the land in either of the coun- their own, such designation does not qualify ties.

them to retain jurisdiction of cases sub[1] Considering the complaint made under mitted to them as special judges from one was determined in the case of Kentucky Un-, S. W. 45, Ann. Cas. 1913D, 338. In the Marion Co. v. Bailey, 174 Ky. 488, 192 S. W. 708. cum Case, after approving the other two, it Prior to the present law, when a special is said: judge was elected by the members of the bar, “Under this rule the court was in error when his power after being so elected and qualified it ordered the entire tract of land in controversy to try a cause did not cease with the expira- the one-third undivided interest of the husband,

sold. It should have ordered to be sold only tion of that term, but continued until the William Marcum." cause was finally disposed of. Dupoyster v.

We still adhere to the soundness of those Clarke, 121 Ky. 694, 90 S. W. 1, 28 Ky. Law opinions. In the instant case the heirs of Rep. 655, Warner v. Ford Lumber & Manu- John B. Auxier, with his administrator, asfacturing Co., 123 Ky. 114, 93 S. W. 650, 29 serted the claim against S. B. Auxier, which Ky. Law Rep. 527, 12 L. R. A. (N. S.) 667, and was afterwards reported by the master comKentucky Union Co. v. Bailey, supra. The missioner and confirmed by the court. The special judge who rendered the judgment guardian in his petition also asked for the complained of here was elected under the payment of S. B. Auxier's debts, and while same circumstances and under the same law the pleadings were somewhat irregularly which prevailed when the special judges in drawn so as to make the action a settlement the last cases were elected, and of course the suit under the provisions of section 428 of the same rule with reference to his power over a Civil Code, we think they were sufficient for cause submitted to him must prevail. It

that purpose, and when land was ordered therefore results that Special Judge B. L. sold for the payment of . B. Auxier's debts, Davis in the instant case had authority to no greater interest should have been sold and rightfully rendered the judgment in May, than that which he owned. The the court 1899, under which the Johnson county lands did, and the same is true with reference to were sold, and this objection cannot prevail.

his undivided interest in the mineral under [4] The second ground urged for holding the 200-acre tract located in Johnson county. the judgment in the Webb Case and the con

It is true that in the three cases referred sequent sales thereunder void because only to no infants appear to be involved. In this the undivided interest of S. B. Auxier was case the infants stand in the shoes of their ordered sold is based upon the contention father, whose undivided interest was sold that the court should have ordered the sale for his debt, and we can discern no sufficient of the entire tracts, and not the undivided in- reason for withholding the application of the terest which the infants inherited from their rule because the debtor may perchance be father, S. B. Auxier, and in support of that dead and leave infants surviving him. The contention we are referred to the case of reasons for not disturbing the interest of Williamson v. Mann, 134 Ky. 63, 119 S. W. the other joint owners in the land are as po232. In that case, however, the suit in which tent in the one case as they are in the other. the order of sale was obtained was brought the sale of the other two tracts of the Marunder the provisions of section 490 of the tin county lands of 58 and 74 acres, respecCivil Code of Practice, and it was held that tively, was made as a whole for the purpose the court was without authority in that of realizing a sum sufficient to pay Angelina character of suit, where the land was indivis- Preston's claim against her father's estate, ible and the share of the infants was worth and the purchase price of the two tracts was more than $100, to sell any less quantity of not more than sufficient for that purpose; so the land than the whole. But the sales here the complaint now being considered, if held complained of were made for the purpose of valid, could not apply to those two tracts. satisfying the debts of S. B. Auxier under For the reasons stated, we are unable to allegations in the pleadings, sufficient for agree with counsel that the judgment and that purpose, and, as stated in the pleadings, sale of the undivided interest complained of for the purpose of settling the estate 'of S. B. was unauthorized, or that the judgment to

that extent was invalid. Auxier, and paying his debts. The master commissioner to whom the cause was referred

Wherefore the judgment is affirmed. reported certain debts which he owed the estate of his father, John B. Auxier, and to

(180 Ky. 604) satisfy those the undivided interests com

MURREL V. ALLEN. plained of were sold.

(Court of Appeals of Kentucky. May 17, 1918.) In the case of Marcum v. Marcum, 177 Ky. 1. ELECTIONS 84 - SCHOOLS AND SCHOOL 186, 197 S. W. 655, it was held that a creditor DISTRICTS-RIGHT OF SUFFRAGE-STATUTEcould not procure the sale of any more than

“ABILITY TO WRITE.' his debtor's joint interest in indivisible

Acts 1912, c. 47, conferring the right of

suffrage in school elections on all women posproperty, and in the opinion two former ones sessing the legal qualifications of male voters, by this court holding to the same rule were and also able to read and write, is not satisfied referred to, they being Hill v. Cornwall, 95 by the mere ability to write one's name, or one's Ky. 512, 26 S. W. 540, 16 Ky. Law Rep. 97, the ability to write” carrying with it the pow

name and post office address, and nothing more ; and Greenbaum v. Comlth., 147 Ky. 450, 144) er to record or express ideas or thoughts.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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