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 option upon the same terms. However, he gave an option by which he agreed to convey the necessary land, and the company agreed to pay therefor $75 an acre and $450 in damages, and further agreed to build two grade crossings and the necessary fencing. The company elected to exercise the last-mentioned option, and on May 27, 1912, Tuttle conveyed the right of way to the company for $1,423.50. About two years later Tuttle brought this suit against the company to cancel the deed on the ground of mental incapacity and to recover damages in addition to those already received. Plaintiff's motion to transfer the action to the ordinary docket was overruled, but his motion for an issue out of chancery on the question of mental incapacity was sustained. On this issue the jury returned a verdict in favor of plaintiff. A judgment canceling the deed was then rendered, and the company appeals. it may be true that he talked with difficulty, the stenographer's transcript of his evidence shows a very lucid account of all the circumstances leading up to the execution of the deed, and a clear appreciation by plaintiff of the various items of damage. It also shows that, in dealing with the contractors engaged in construction of the road, he took various steps to protect himself against any infringement of his rights. James w. Tuttle, a nephew of plaintiff, testified that plaintiff's mental condition at the time of the trial was just about the same as it had been for 8 or 10 years. Dr. Ishmael, who had been plaintiff's family physician for 2 years preceding the trial, testified that plaintiff was paralyzed in October, 1913, and that his tongue, speech, and mental condition were thereby affected. This witness also testified that, while he had had no business dealings with plaintiff prior to the stroke, plaintiff in 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, the same as other people. On the other hand, grown older, the same Thomas Bradley, plaintiff's nephew, testified where the action is purely equitable, and the 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. He further stated that plaintiff was not "as advisory, and the chancellor may disregard 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, 740 years, but had not seen him often in the plaintiff was of a vigorous or strong mind at last 4 or 5 years. He did not think that the time of the trial. His condition then was did not know that plaintiff had suffered a worse than it had been prior thereto. He stroke of paralysis in 1913. S. W. 917, 10 Ky. Law Rep. 31; Consolidation Coal Co. v. Vanover, 166 Ky. 172, 179 S. W. 43; Winchester et al. v. Watson et al., 169 Ky. 213, 183 S. W. 483. And in the latter case, where the verdict of the jury is sustained by the chancellor, it is entitled to considerable weight, and the judgment will not be set aside on appeal, unless the verdict and V. W. Bush, who represented the comOn the contrary, Messrs. L. L. Pendleton is clearly against the preponderance of the pany in obtaining the option, detailed the evidence. Hendrix, etc., v. Money, etc., 1 circumstances leading up to the execution of Bush, 306; Blakey v. Johnson, 13 Bush, 200, 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 and a relation by marriage, testiplaintiff. Squire B. C. Fox, a neighbor of tal incapacity of the grantor, and the ques-fied that he had known plaintiff for 50 years, tion being whether, in good conscience, the transaction should stand or be set aside, the issue of fact is of purely equitable cognizance. Hendrix v. Money, supra; Blakey v. Johnson, supra; McElwain v. Russell, 12 S. W. 777, 11 Ky. Law Rep. 649. That being true, the only question to be determined is whether the verdict, as confirmed by the chancellor, is clearly against the preponderance of the evidence. [5] According to the evidence for plaintiff, he suffered a stroke of paralysis some months after the execution of the deed, which impaired the use of his limbs and his power of speech. He was 66 years of age when the D. and that, at the time the options were given a particular case in 1899, had, under the law In a suit to settle the estate of a deceased er to order the sale of his undivided interest in person under Civ. Code Prac. § 428, it was propthe lands of a deceased ancestor in order to pay debts owing by him to the estate of such deceased ancestor without selling all the property, notwithstanding the existence of minor children of the deceased. It will thus be seen that, although the [3. JUDGES 25(2)-SPECIAL JUDGES-JURISburden of showing his mental incapacity was DICTION AFTER TERM. on plaintiff, he did not introduce a single witness who testified to any facts showing that his mind was so impaired at the time the deed was executed that he was incapable of understanding and appreciating his property rights and the effect of the conveyance. The most that can be said is that there was some evidence that his mind was impaired at the time of the trial, and that two witnesses gave it as their opinion that his mental condition had not changed for 4 or 5 years, although in the meantime he had suffered a stroke of paralysis. On the contrary, Dr. Ishmael, plaintiff's own witness, stated that, prior to the stroke of paralysis, plaintiff had mind enough to attend to business, and the numerous witnesses for the defendant, who were either present during the negotiations resulting in the conveyance or had business dealings with him about that time, all testified to facts showing that plaintiff understood his property rights and the nature and effect of the conveyance and was fully capable of protecting himself. Indeed, the chief argument made to sustain the verdict of the jury is based on plaintiff's appearance at the trial, a condition not shown by the record. This argument loses much of its force when we take into consideration the fact that plaintiff was then suffering from a stroke of paralysis, which he received several months after the execution of the deed and about 2 years before the trial, and the mere fact that he then appeared old and feeble, and talked with difficulty, is not sufficient to overcome the positive testimony that his mind was not impaired when the deed was executed. We therefore conclude that the verdict of the jury was clearly against the preponderance of the evidence. It follows It follows that the chancellor should have disregarded the verdict of the jury and have refused to cancel the conveyance. Judgment reversed, and cause remanded, with directions to enter judgment in conformity with this opinion. (180 Ky. 518) * AUXIER et al. v. AUXIER et al. SAME v. WILLIAMS COAL CO. et al. (Court of Appeals of Kentucky. May 14, 1918.) 1. JUDGMENT 270, 282-ENTRY-SIGNA TURE. To be valid, a judgment must be entered upon the order book provided for that purpose, and, after being entered, it must be signed by the judge who rendered it. ENTRY 2. JUDGMENT 273(4) Appeal from Circuit Court, Johnson County. Actions by A. E. Auxier and others against Ben H. Auxier and others, and by Ben H. Auxier and others against the Williams Coal Company and others. From judgment for plaintiffs in first suit, defendants appeal. From judgment for defendants in second suit, plaintiffs appeal. First appeal dismissed; second appeal affirmed. Stratton & Stephenson, of Pikeville, for appellants. appellants. Hager & Stewart, of Ashland, Fogg & Kirk, Wheeler & Wheeler, and Vaughan & Howes, all of Paintsville, and C. B. Wheeler, of Ashland, for appellees. THOMAS, J. John B. Auxier died intestate a resident of Johnson county, Ky., in 1891. Prior to his death he divided his lands in that county, except some mineral interests hereafter to be noticed, among his eight children, except one daughter to whom he gave nothing, but required all his other seven children to make her whole out of other landed interests which he owned in Martin county, Ky. The division of the lands so made was not entirely a gift, and S. B. Auxier, one of the sons, to whom he conveyed about 100 acres, at his death in 1893 owed his father's estate a balance of $100 of the which he got in the division. S. B. Auxier amount agreed to be paid by him for the land also died intestate, and left surviving him his widow and three infant children, all of whom are the appellants here. At the time of their father's death the children were 4, 5, and 7 years of age, respectively. At the time of his death John B. Auxier owned a one-half undivided interest of the minerals in and to a tract of land in Johnson county containing 200 acres, and a onehalf interest in and to three tracts of land in Martin county, one of them containing 280 acres, and the other two 50 acres each, and the entire interest in two other tracts in that county containing 58 and 74 acres, respectively. The Martin county lands, as above stated were charged with the payment to John B. Auxier's daughter, Angelina Preston, of the sum of $160 to equalize her with the other 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. After the death of S. B. Auxier his widow moved to Lawrence county, Ky., to the residence of her father, A. J. Webb, and the latter was appointed by the county court of that county guardian for her three infant children. In 1896, when the wards were aged 7, 8, and 10 years, respectively, the guardian filed the first suit above in the Johnson circuit court, making his wards and the heirs of John B. Auxier defendants. In his petition, after alleging his appointment and qualification as guardian, he averred that his wards inherited the 100 acres of land located in Johnson county deeded to their father, S. B, Auxier, by their grandfather, John B. Auxier, and one-eighth of an undivided one-half interest in the minerals contained in the 200 acres of land owned in that county, and a like interest in the first three tracts located in Martin county, and a one-eighth undivided interest in the last two mentioned tracts in that county; that they had no personal property, and it was necessary to sell their lands for the purpose of educating and maintaining the children, and that none of it was productive; that it would be to the interest of the wards to sell all of it for the purposes of reinvestment. And he further alleged that S. B. Auxier, through whom his wards as his heirs obtained their interest, was indebted to the estate of John B. Auxier in the sum of $100, which was a lien on the 100-acre tract of land in Johnson county, and that he tract of land in Johnson county, and that he was further indebted to John B. Auxier's estate in the sum of as much or more than $200 for other items not necessary to here mention; that to ascertain what interest his wards obtained, it was necessary that a settle、ment of the estate of John B. Auxier be had, and the indebtedness of S. B. Auxier to that estate be ascertained, and that the interest of S. B. Auxier in the land and mineral interest of his father's estate be sold for the purpose of paying his indebtedness to the estate; that the Martin county land owned by John B. Auxier should also be sold to pay to Angelina Preston the $160 going to her from her father's estate. The heirs of John B. Auxier other than the children of S. B. Auxier filed an answer and counterclaim in the suit in which they set up the facts herein before recited, and asked that the Martin county land belonging to John B. Auxier be sold for the purpose of settling his estate, and that out of the proceeds Angelina Preston be first paid $160, and that out of S. B. Auxier's interest his indebtedness to his father's estate be paid, and the balance, if any, after paying the cost, be subject to the orders of the court. The case was referred to the master commissioner to take proof of the assets and liabilities of both the estates of S. B. and John B. Auxier, and to ascertain the indebtedness of the former to the latter, and to ascertain make an intelligent settlement of the matters The commissioner sold In the meantime the Consolidation Coal Company became and is now the owner of 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 of the mineral in the 100-acre tract of land in that county; the surface being owned by others. ty of a judgment that it be entered upon the order book provided for that purpose, and after being so entered that it be signed by the judge who renders it. Bradley v. Bradley's Adm'r, 178 Ky. 239, 198 S. W. 905; Ewell v. Jackson, 129 Ky. 214, 110 S. W. 860, 33 Ky. Law Rep. 673; Farris v. Matthews, 149 Ky. 455, 149 S. W. 896; Interstate Petroleum Co. v. Farris, 159 Ky. 820, 169 S. W. 535; Comlth. v. Chambers, 1 J. J. Marsh. 108; Raymond v. Smith, 1 Metc. 65, 71 Am. Dec. 458; Johnson v. Comlth., 80 Ky. 377, and many other cases which might be cited from this court. In the case of Ewell v. Jackson, supra, it was held that although the judge rendering the judgment signed the paper upon which it was written, and which was afterwards recorded upon the order books of the court, this was not sufficient to comply with the rule, supra, and such signing by the judge would not render the judgment valid, unless he signed the record. The appeal in the first case above is from the judgment rendered therein on February 23, 1899, wherein the sales of the Martin county lands were ordered, and which appeal is prosecuted by the infant defendants in that suit, who were the children of S. B. Auxier and the wards of their guardian, A. J. Webb. The youngest of the children was more than 24 years of age when the appeal was taken; the others being at that time 25 and 27 years of age, respectively. A plea of limitation has been interposed against their right to prosecute the appeal, which, under the provisions of section 391 of the Civil Code of Practice, must be sustained, since their right to prosecute the appeal under those provisions expired one year after they became of age, and we therefore need not consider the questions 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 we have heretofore referred. In the latter suit the facts above recited are alleged, and it is charged that the judgments rendered in the suit brought by A. J. Webb, guardian of appellants, are null and void, and plaintiffs in the new suit (being the second one above) seek to ignore the sales made under such judgments, and to recover from the defendants all of the interest sold thereunder. Many grounds are urged against the validity of the judgment in the first suit, but we do not deem any of them of sufficient importance to demand our consideration except: First (a) that the first judgment rendered in the Webb suit by the special judge, B. L. Davis, was not signed on the record by him, but that it was prepared on a separate piece of paper and signed by the special judge, and afterwards it and the judge's signature thereto were recorded upon the order book; and (b) that when the second judgment was rendered by the special judge in that suit in May, 1899, under which the Johnson county lands were sold, there was no re-election of the special judge, he acting under his election and qualification which occurred at the preceding February term of the court. Second, that the court had no authority to order the sale of only the infants' undivided interest which they inherited from their father, S. B. Auxier, in any of the land in either of the counties. [1] Considering the complaint made under that might be necessary to effectuate now what was in fact done then. Ewell v. Jack son, supra, Chester v. Graves, 159 Ky. 244, 166 S. W. 998, Ann. Cas. 1915D, 678, and Rogers v. Bigstaff's Ex'r, 176 Ky. 413, 195 S. W. 777. After the second suit above was brought, the defendants therein, after due notice, procured an order redocketing the first suit, and asked that, the then presiding judge of the court sign the judgment rendered in the latter case nunc pro tunc, which motion, after hearing, was sustained and the judgment rendered in that case of February 23, 1899, was signed by Hon. A. J. Krik, the regular judge of the Johnson circuit court, before whom the motion was made. The proceeding for the nunc pro tunc order was regular, and the record furnished amply sufficient evidence that the ineffectual judgment had been rendered, and the court under the authorities was fully justified in sustaining the motion for the nunc pro tune entry. This, under the cases referred to, rendered the 1899 judgment effectual from the beginning, and cured the defect caused by the judge who rendered it, not signing the record. [3] Briefly considering now subdivision (b) of the first ground of complaint, it may be stated that under the present law with reference to the designation of regular judges to act as special ones in districts other than their own, such designation does not qualify them to retain jurisdiction of cases submitted to them as special judges from one "Under this rule the court was in error when it ordered the entire tract of land in controversy the one-third undivided interest of the husband, sold. It should have ordered to be sold only William Marcum." was determined in the case of Kentucky Un- I 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, his power after being so elected and qualified to try a cause did not cease with the expiration of that term, but continued until the cause was finally disposed of. Dupoyster v. Clarke, 121 Ky. 694, 90 S. W. 1, 28 Ky. Law Rep. 655, Warner v. Ford Lumber & Manufacturing Co., 123 Ky. 114, 93 S. W. 650, 29 Ky. Law Rep. 527, 12 L. R. A. (N. S.) 667, and Kentucky Union Co. v. Bailey, supra. The special judge who rendered the judgment complained of here was elected under the same circumstances and under the same law which prevailed when the special judges in the last cases were elected, and of course the same rule with reference to his power over a cause submitted to him must prevail. It therefore results that Special Judge B. L. Davis in the instant case had authority to and rightfully rendered the judgment in May, 1899, under which the Johnson county lands were sold, and this objection cannot prevail. [4] The second ground urged for holding the judgment in the Webb Case and the consequent sales thereunder void because only the undivided interest of S. B. Auxier was ordered sold is based upon the contention that the court should have ordered the sale of the entire tracts, and not the undivided interest which the infants inherited from their father, S. B. Auxier, and in support of that contention we are referred to the case of Williamson v. Mann, 134 Ky. 63, 119 S. W. 232. In that case, however, the suit in which the order of sale was obtained was brought under the provisions of section 490 of the Civil Code of Practice, and it was held that the court was without authority in that character of suit, where the land was indivisible and the share of the infants was worth more than $100, to sell any less quantity of the land than the whole. But the sales here complained of were made for the purpose of satisfying the debts of S. B. Auxier under allegations in the pleadings, sufficient for that purpose, and, as stated in the pleadings, for the purpose of settling the estate of S. B. Auxier, and paying his debts. The master commissioner to whom the cause was referred reported certain debts which he owed the estate of his father, John B. Auxier, and to satisfy those the undivided interests complained of were sold. In the case of Marcum v. Marcum, 177 Ky. 186, 197 S. W. 655, it was held that a creditor could not procure the sale of any more than his debtor's joint interest in indivisible property, and in the opinion two former ones by this court holding to the same rule were referred to, they being Hill v. Cornwall, 95 Ky. 512, 26 S. W. 540, 16 Ky. Law Rep. 97, and Greenbaum v. Comlth., 147 Ky. 450, 144 We still adhere to the soundness of those opinions. In the instant case the heirs of John B. Auxier, with his administrator, asserted the claim against S. B. Auxier, which was afterwards reported by the master commissioner and confirmed by the court. The guardian in his petition also asked for the payment of S. B. Auxier's debts, and while the pleadings were somewhat irregularly drawn so as to make the action a settlement suit under the provisions of section 428 of the Civil Code, we think they were sufficient for that purpose, and when land was ordered sold for the payment of S. B. Auxier's debts, no greater interest should have been sold than that which he owned. The the court did, and the same is true with reference to his undivided interest in the mineral under the 200-acre tract located in Johnson county. It is true that in the three cases referred to no infants appear to be involved. In this case the infants stand in the shoes of their father, whose undivided interest was sold for his debt, and we can discern no sufficient reason for withholding the application of the rule because the debtor may perchance be dead and leave infants surviving him. The reasons for not disturbing the interest of the other joint owners in the land are as potent in the one case as they are in the other. The sale of the other two tracts of the Martin county lands of 58 and 74 acres, respectively, was made as a whole for the purpose of realizing a sum sufficient to pay Angelina Preston's claim against her father's estate, and the purchase price of the two tracts was not more than sufficient for that purpose; so the complaint now being considered, if held valid, could not apply to those two tracts. For the reasons stated, we are unable to agree with counsel that the judgment and sale of the undivided interest complained of was unauthorized, or that the judgment to that extent was invalid. Wherefore the judgment is affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |