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3. EXECUTION 276(1)-TITLE OF PURCHAS- [ proceeds appropriated to paying the debts of ER-NONRESIDENT DEFENDANT-CONSTRUC- the estate, but the proceeds were insuffiTIVE SERVICE-REFUNDING BOND.
Civ. Code Prac. § 417, protecting the title of purchasers in good faith against new trial proceedings brought under Civ. Code Prac. § 414, by a nonresident against whom judgment has been rendered upon constructive service of summons, held to give good title to buyer of land under judgment against nonresident defendant constructively served where no refunding bond was executed, as required by Civ. Code Prac. § 4. JUDGMENT 123(1) ENTRY AFTER CONSTRUCTIVE SERVICE-NONRESIDENT DEFENDANT-REFUNDING BOND.
Civ. Code Prac. § 410, requiring refunding bond before rendition of judgment against a nonresident defendant constructively served, does not make the execution of such bond a prerequisite to jurisdiction by the court to render such judgment, and a failure to execute bond before rendition of judgment does not invalidate the judgment.
5. JUDGMENT 123(1) - DEFAULT-REFUNDING BOND.
Where the land of a nonresident has been sold under a judgment rendered without the execution of a refunding bond, as required by Civ. Code Prac. § 410, the court may direct the execution of such bond or the retention of the purchase money until the expiration of the fiveyear period within which defendant can move for new trial.
6. GUARDIAN AND WARD 89 MAINTENANCE AND EDUCATION OF WARD-SALE OF WARD'S REAL ESTATE.
In an action by a guardian to have infant's land sold for his maintenance and education, evidence held sufficient to justify court in directing such sale under Ky. St. § 2039, providing that the court may direct such sale where it is a clear case of necessity, notwithstanding section 2034, subds. 1, 2.
7. EVIDENCE 383(3)-CERTIFIED RECORDS—
Where an administrator sues in his representative capacity, and also as guardian of an infant son of decedent, the certified records of a county court as to his appointment and qualification as administrator and guardian are sufficient evidence thereof.
cient for such purpose in the sum of about $5,000. Among the other indebtedness is the commission due the administrator for the receipt and disbursement of the proceeds of the personal estate, as it appears that he did not retain in his hands the commissions due when disbursing the proceeds of the personal estate in the payment of the debts. The decedent owned, at the time of his death, several disconnected tracts of land, and one tract and a portion of another was allotted to his widow as her dower in all of the lands. widow as her dower in all of the lands.
This action was instituted by Clarance Julian suing both as administrator of the decedent and guardian of the infant, and the object sought was a final settlement of his accounts as administrator, and the sale of a tract of land which contained 117 acres, and application of the proceeds of the sale to the payment of the remaining indebtedness of the estate, and the excess, after the payment of the debts, to the maintenance and education of the infant. tion of the infant. The defendants in the original petition were the infant, Alexander Julian, Jr., the surviving widow of decedent, and certain of the creditors, but thereafter several, amendments to the petition were made, and a reference of the cause to a commissioner to receive, hear, and report claims against the estate, and either by the amendments to the petition or the appearance of the creditors before the commissioner all the creditors became parties to the action before the rendition of the judgment under which the land was finally sold. The petition and its amendments together contained all the averments necessary in an action for the settlement of the decedent's estate and a sale of the lands belonging to it for the pay
Appeal from Circuit Court, Franklin ment of its indebtedness, as required by sec County.
Action by Clarance Julian, administrator and guardian, against Alexander Julian, Jr., and others. Judgment for plaintiff directing sale of land, and from judgment overruling exceptions to such sale by J. B. Carpenter, the purchaser. J. B. Carpenter appeals. Affirmed.
E. B. Beard, of Shelbyville, and Frank Chinn, of Frankfort, for appellant. Paul C. Gaines and Ira Julian, both of Frankfort, for appellees.
HURT, J. Charles H. Julian, who was domiciled in Franklin county at the time, died, intestate, several years ago, and left surviving him an only heir, Alexander Julian, Jr., and his widow, now Mrs. J. D. Stewart. Clarance Julian qualified as administrator of the decedent, and also as the statutory guardian of the infant heir, Alexander Julian, Jr. The personal property of the decedent's estate was sold by the administrator and the
tion 429, Civil Code.
With reference to the action of the guardian against the ward for the sale of such portion of the land as was not necessary to be sold for the payment of the debts, which action was joined to that for the settlement of the estate, it was alleged that the income of the estate of the infant was insufficient to maintain and educate him, and that his mother was not financially able to maintain and have him properly educated, and that it was proposed to use remaining portion of the proceeds of the sale of the lands after the payment of the debts of the estate in the education and maintenance of the infant, and that there was no other way to enable him to be educated other than by the use of such proceeds. It was further averred that the tract of land could not be divided without materially impairing its value, and as a consequence the interest of the infant defendant therein, and that it was further to the best interest of the infant that the tract of land sought to be
 It will be observed that the application of section 493, Civil Code, which requires a bond by the guardian to his ward before a sale is ordered of the real estate of the ward, is specially excepted from a sale of infant's real estate for the payment of the debt of his ancestor or his own debt. Section 489, subsecs. 1 and 2, Civil Code. If, however, a sale of an infant's real estate is made for the satisfaction of the debts of his ancestor, and it is necessary to sell more land in the protection of the infant's inter
debts and the costs, on account of indivisibility of the lands, sections 493 and 497, Civil Code, apply to the excess, and the bond required by section 493, supra, must be execut
sold should be disposed of, rather than to, of a warning order and the appointment of an sell any of the other tracts which he had attorney for him, as provided by section 57, received by inheritance from his father. The Civil Code. infant defendant was a nonresident of the state, and absent therefrom, and was over the age of 14 years, but before a judgment was rendered for a sale of the land he was brought before the court by constructive service as a nonresident, as provided by sections 57 and 58, Civil Code, and in addition thereto a guardian ad litem was appointed who filed an answer as such. Before the rendition of the judgment for the sale of the land proof was properly taken and filed, which proved the existence of the indebtedness of the decedent's estate to the adminis-est than is necessary to pay the ancestor's trator and creditors and the necessity for the sale of the lands to satisfy the debts, and the impracticability of a division of the tract of land, the value and character of the other land, and that it would be to the best interested before judgment and recorded with the of the infant to sell the land sought to be sold rather than either of the other tracts. Before judgment the board provided for by section 493, Civil Code, was duly executed by the guardian to the infant and recorded with the judgment. The land was adjudged to be sold according to the prayer of the petition when the appellant, J. B. Carpenter, became the purchaser at the sum of $11,785, but fearing that he would not receive a good title he declined to execute the sale bonds, and filed exceptions to the report of sale as well as a response to the rule against him, which required him to show cause for declining to comply with the contract of sale and execute the bonds for the purchase price. The response to the rule was held insufficient, and he was ordered to execute the bonds, the exceptions were overruled and the sale confirmed, and from this judgment he has appealed. The grounds relied upon for reversal are three: First. The bond provided for by section 410, Civil Code, was not executed before judgment. Second. The pleadings nor evidence were sufficient to justify a sale of an infant's real estate for his maintenance and education. Third. There was no evidence in the record to support the allegation that the plaintiff is either the administrator of decedent or the guardian of the infant.
judgment, or else the purchase price, for the excess sold, must not be paid, but must remain a lien upon the land until the infant arrives at his majority, or until the bond, as provided by section 497, supra, is executed. Oldham v. McElroy, 134 Ky. 454, 121 S. W. 414; Foley v. Graham, 110 S. W. 838, 33 Ky. Law Rep. 627; Carter v. Crow's Adm'r, 130 Ky. 41, 112 S. W. 1098; Elliott v. Fowler's Guardian, 112 Ky. 376, 65 S. W. 849, 23 Ky. Law Rep. 1676; Louisville Banking Co. v. Pranger, 68 S. W. 632, 24 Ky. Law Rep. 408. Hence the bond provided for by section 493, supra, was properly executed by the guardian to his ward, touching the excess of land sold, over what was necessary to satisfy the applicable to the proceeds of the portion of the land necessary to be sold to pay the an
debts of the ward's ancestor, but it is not
 In Morrison v. Beckham, 96 Ky. 72, 27 S. W. 868, 16 Ky. Law Rep. 294, which was a suit in ejectment to recover a tract of land from joint claimants of the land, some of whom were nonresidents, it was held to be reversible error to render judgment against the nonresidents who had not appeared in the action before the execution of the bond required by section 410, supra. In Stephens v. Stephens, 85 S. W. 1093, 27 Ky. Law Rep. 555, it was held that the bond provided for  (a) As to the first ground of exception by section 410, supra, must be given when a to the sale it is urged by appellees that the judgment was rendered to sell the lands of infant being over 14 years of age, and a a nonresident who has not appeared in the copy of the petition and summons having action in the enforcement of liens for debts. been served upon him, as provided for by The same principle was adhered to in White section 56, Civil Code, that such service v. Moyers, 31 S. W. 280, 17 Ky. Law Rep. dispenses with the necessity of execut- 402, and Tatum v. Gibbs, 41 S. W. 565, 19 ing the bond provided for by section 410, Ky. Law Rep. 696. Section 414, Civil Code, Civil Code, before the rendition of the judg- permits a defendant who was constructively ment. If such service had been made, the summoned and did not appear at any time contention would be, doubtless, true. Young within five years from the rendition of a v. Bullen, 43 S. W. 687, 19 Ky. Law Rep. judgment against him to reopen the case and 1561. The record, however, fails to show make defense to the action, and "thereupon that any such service was ever had upon the the action shall be retried as if there had infant defendant, and the only service shown been no judgment," and the court may then was the constructive service by the making confirm the judgment or modify or set it
aside and order restored to the defendant the value of any property which may have been taken under an attachment or under the judgment and not restored. Section 417, Civil Code, provides that the title of purchasers in good faith to any property sold under an attachment or judgment against a nonresident shall not be affected by the new trial provided for by section 414, supra, except such as was obtained by the plaintiff in the judgment, and not bought of him in good faith by others. Hence, as if, in the instant case, the property sold should pass to a purchaser in good faith, the nonresident owner could not recover it, although the claim under which it was sold might be shown by him to be spurious upon a retrial, and then if the ones having received the proceeds of the lands should be insolvent in the absence of a bond, as required by section 410, supra, the new trial provided for by section 414, supra, would be of no value, and the judgment for the restoration of the property or its value would avail nothing. Kellar, etc., v. Stanley, etc., 86 Ky. 240, 5 S. W. 477, 9 Ky. Law Rep. 388. Hence the judgment for a sale of the land for the debts of the ancestor of the nonresident, infant defendant, without requiring the execution of the bond provided for by section 410, supra, by those for whose benefit the judgment was procured, was erroneous. Such error, however, is one of which the purchaser cannot complain, as it does not affect the title to the property which he will receive.
[4, 5] The fact of the execution of the bond is not a jurisdictional fact, as is the execution of the bond provided for by section 493, supra, when, under the provisions of that section, the bond is required to be executed before a judgment and recorded with it. The court having jurisdiction, the failure to execute the bond does not affect the title which the purchaser will receive. Oldham, etc., v. McElroy, etc., supra; Thomas v. Mahone, 9 Bush, 125; Brown v. Early, 2 Duv. 372; Allen v. Brown, 4 Metc. 342. The deed has not been made, nor the purchase price paid. The provision is solely for the benefit of the nonresident defendant, and the court may yet take the necessary steps provided by law for the security of his rights before any distribution of the funds is made by requiring each of the creditors, including the administrator so far as he is a creditor, to execute a bond to the nonresident defendant, conditioned as provided by section 410, supra, according to their respective interests, or else retain custody and control of the funds until the time has expired within which the nonresident may move for a new trial under section 414, supra.
 (b) Neither does the second ground of exception seem to be well taken. It is true tha under section 2034, subsections 1 and 2,
Kentucky Statutes, a guardian is confined in his disbursements for the maintenance and education of his ward to the income of the ward's estate, except where the ward is of such tender years or of infirm health that he cannot be bound out as an apprentice, or no suitable person will take him as such, or when it is necessary to make a judicious application of the principal, or some of it, in the payment of the board and tuition of an infant, and where these exceptions occur the guardian may encroach upon the principal of the personal estate, and if properly and judiciously spent to the best interest of the ward, the expenditure will be approved, but the ward's real estate cannot be used for such purpose without an application having been first made to a court of equity and a clear case shown of the necessity for it, when the court may direct a sale of the ward's real estate and the use of the proceeds in his education, as provided by section 2039, Kentucky Statutes. Dixon v. Hosick, 101 Ky. 231, 41 S. W. 282, 19 Ky. Law Rep. 387; Overfield v. Overfield, 30 S. W. 994, 17 Ky. Law Rep. 313; Cox v. Storts, 14 Bush, 502; Fidelity Trust Co. v. Butler, 91 S. W. 676, 28 Ky. Law Rep. 1268; Nunnelly's Guardian v. Nunnelly et al., 180 Ky. 131. The purpose, as appears here from the evidence, is to give the ward, who is now 18 years of age, a collegiate education, and his mother has not the necessary means to do so. The ward has only a small income arising from his property, as it now exists, and is entirely insufficient to accomplish the purpose of giving him an education. The amount of the funds arising from the sale of the land which will be available for that purpose after payment of the sums due the creditors of decedent and the costs of the ac tion does not seem to be a sum greater than is reasonably necessary for the payment of his board and tuition while at college and the expenses which will necessarily be incumbent upon him. The court below should, however, keep a supervision over the purpose and the amount of the expenditures desired from time to time, and the guardian can secure the necessary advice of the chancellor by such amended pleadings and necessary proof as may be required.
 (c) With respect to the third ground of exception to the sale, the certified records of the county court on file in the action seem to be sufficient evidence for the purposes of this action of the appointment and qualification of the plaintiff as administrator of decedent and as guardian of the ward. It appearing that there is no sufficient reason shown why the purchaser will not obtain a good title to the land when the purchase price shall have been paid and the deed executed, it is therefore ordered that the judgment be affirmed.
(140 Tenn. 41)
MATHENY et al. v. PRESTON HOTEL CO. (Supreme Court of Tennessee. April 27, 1918.) 1. ACTION 53 (3)—SPLITTING CAUSES-Ac
TIONS FOR RENT.
Where a tenancy from year to year results from mere holding over, there is no continuous contract or transaction such as will require an action for rent due in one year to include rent due in a previous year, and separate actions may be maintained.
2. ACTION 53 (3)-SPLITTING CAUSES-ACTIONS FOR RENT.
Where, on execution of lease, separate notes were drawn for each month's rent, each note is a separate cause of action, and each may be sued on separately, although the others are then due.
3. ACTION 53(1) SPLITTING ACTIONS WAIVER.
The rule against splitting actions growing out of the same transaction is for the benefit of the debtor, and he may waive his right. 4. JUDGMENT 593 BAR SEPARATE BREACHES OF SINGLE CONTRACT. Although, under Thomp. Shan. Code, § 4620, actions may be brought for each separate breach of an entire contract as it occurs, yet, where several breaches have occurred at the time suit is brought, they must all be sued together, otherwise those omitted cannot be subsequently sued on.
Appeal from Chancery Court, Henry County; J. W. Ross, Chancellor.
Bill by H. W. Matheny and others to enjoin the Preston Hotel Company from suing on certain notes. From a decree of the Court of Civil Appeals, affirming a decree for defendant, complainants appeal. Reversed and rendered.
Fitzhugh & Morton, of Paris, Tenn., for appellants. Lewis & Bryant, of Paris, Tenn., for appellee.
ed of Ben Thompson, the principal stockholder of the defendant corporation, $600, but he exacted as a condition of granting the loan that they should pay all arrearages of rent due the corporation, and to make sure that this condition should be faithfully observed, he placed the whole sum in the hands of an officer of the corporation, with instructions that the balance due the corporation should first be deducted before handing over the residue of the money to complainants. It was ascertained that a balance of $250 was due for the year 1915. This was deducted and the rest of the loan turned over to complainants.
Some months later defendant produced three notes made for the rent of 1911, maturing respectively October 30, 1911, November 30th, and December 30th of that year, and demanded payment. and demanded payment. Complainants refused payment, insisting that these notes had been paid in 1911 to the First National Bank of Paris, Tenn., where all of the notes of that year and the previous year had been deposited for collection. Defendant disputed this contention, and brought suit before a justice of the peace of Henry county on the notes. The present bill was then filed by complainants to enjoin that suit on the ground that the notes had been already paid. The contention was also advanced in the bill that the action could not be maintained because all of the notes taken for the years 1910 and 1911, and the various sums agreed to be paid as monthly rent for the remaining years 1913 to March, 1916, grew out of one continuous transaction; that certain rental sums due for certain months in the year 1915, aside from the $250 already mentioned, matured, and were sued on, and judgment rendered, without including the prior three notes of 1911 involved here. The evidence fully sustains the allegation as to the suit on the rents of 1915 just referred to. An answer was duly filed.
The chancellor and the Court of Civil Appeals both denied relief.
We shall consider here only the questions of law.
NEIL, C. J. In January, 1910, complainants leased from defendant for the period of one year its hotel building, at a rental of $110 per month, evidenced by 12 promissory notes, maturing respectively January 30th, February 28th, March 30th, and so on through the year. At the close of the term complainants continued in possession, but without any further formal contract, executing, however, their 12 promissory notes, for the same amounts, and maturing as during the pre- [1-3] In the first place, it is not true, as ceding year, covering the year 1911. At the matter of law, in our judgment, that all of close of that year complainant remained in the years constituted one continuous conpossession as during the two preceding years, tract, or transaction, as in case of an ordibut executed no notes; the rent, however, nary demise from year to year where the was reduced by agreement between the par- tenant is said to have a growing interest in ties to $100 per month for that year, 1912. the ensuing year. This does not apply where And so for the year 1913. They continued the so-called tenancy from year to year rein possession as before during the years sults from a mere holding over. 16 R. C. L. 1914 and 1915, and during January and Feb- p. 615, § 94. Under the facts stated we think ruary, 1916, but for these years paid only each renewal was a new contract, but carry$95; no promissory notes having been exe- ing by implication the same terms as those cuted for any of the years 1912, 1913, 1914, of the preceding year, except in so far as 1915, or 1916. The property was surrender- specially modified (Shepherd & Mitchell v. ed at the end of February, 1916, or about Cummings, 1 Cold. [41 Tenn.] 354, 356; Noel March 1, 1916. v. McCrory, 7 Cold. [47 Tenn.] 623, 627; During the year 1916 complainants borrow- Hammond v. Dean, 8 Baxt. [67 Tenn.] 193; For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Wilson v. Alexander, 115 Tenn. 125, 131, 88 S. W. 935), though called, perhaps somewhat inexactly, at the common law, and in the cases cited, a tenancy from year to year. It does, however, possess one of the chief atattributes of such a tenancy, in the requisite of notice to terminate it. But, as stated, it is not the same contract as the original letting. Still, even if treated as one continuous contract the rule referred to, against splitting causes of action, would not apply, since each note would constitute a separate cause of action. The rule was designed for the debtor's benefit, to protect him from a multiplicity of suits, and for that reason may be waived by him. When he executes promissory notes he must know they can be sold by the payee to different persons, or may be in like manner used as collateral security for loans, or may be otherwise disposed of, and all may so reach separate hands, and thus may naturally be the occasion of as many separate suits as there are notes. Knowing this result as probable, or even lawfully possible, he must be held to have intended such a consequence, and hence to have waived any protection of the rule against splitting causes of action; or rather it must be true that papers capable of such use have, respectively, such a separate and independent existence that the rule was never intended to be applied to them. That it does not apply to such instruments fully appears from a recent able work. 1 Corpus Juris, title Actions, p. 1115, § 295. And see 1 R. C. L. title Actions, § 24, note 13, citing Dulaney v. Payne, 101 Ill. 325, 40 Am. Rep. 205, and section 30, note 8, citing Kennedy v. New York, 196 N. Y. 19, 89 N. E. 360, 25 L. R. A. (N. S.) 847. The authority first cited refers to sundry cases as sustaining the proposition that different notes, although between the same parties, give rise to different causes of action, upon which separate suits may be maintained, although the notes arose out of the same transaction (Williams v. Kitchen, 40 Mo. App. 604, and Nathans v. Hope, 77 N. Y. 420), notwithstanding they were all due at the time of the first action (Presstman v. Beach, 61 Md. 203; Paton v. Doyne, 74 N. J. Law, 319, 65 Atl. 843; Nathans v. Hope, supra; Ferguson v. Culton, 8 Tex. 283). To same effect, Marshall v. John Grosse Clothing Co., 83 Ill. App. 338; Id., 184 Ill. 421, 56 N. E. 807, 75 Am. St. Rep. 181. Other instances, based on the same principle, may be cited as follows: 'Where plaintiff had agreed to sell defendant a lot of cattle, deliverable in units of 20 or more at intervals between February 1st and July 31st, and tendered to defendant the first 20, which he refused, it was held plaintiff might sue for this breach, without waiting to tender the residue of the lot sold. Coleman v. Hudson, 2 Sneed (34 Tenn.) 463. Where the plaintiff had sold the defendant a quantity of goods on the
be divided into four parts payable at different times, it was held that separate suits might be brought on the several parts as they fell due, or one suit on all, when all fell due, or separate suits at that time on each at the or option of the plaintiff. Parris v. Hightower, 76 Ga. 631. A debtor and creditor may for a consideration agree that part of a single demand may be sued on at one time, and the residue later, the debtor thus waiving the rule against splitting a single cause of action. Mills v. Garrison, *42 N. Y. (3 Keyes) 40. So a debtor and creditor may by agreement between them change one large debt due by note into several smaller ones (Dews v. Eastham, 13 Tenn. [5 Yerg.] 297); but in such case, where several suits based on such demands between the same parties appear on the docket at the same time, the court will order a consolidation (Id.). However, as to contracts for personal services, see Tarbox v. Hartenstein, 4 Baxt. (63 Tenn.) 78.
There is a line of cases cited by counsel to the effect that where one party holds a series of promissory notes, arising out of the same transaction, and all are subject to the same defense or defenses, as want or failure of consideration, or illegality, a judgment in an action brought on one of them, in which the defense was either sustained or defeated, as the case may be, is conclusive, between the same parties, as to all of the other notes. But these cases rest on the doctrine of res judicata. and not on the rule against splitting the cause of action.
 We understand the rule to be general that where the contract is entire, and there are several breaches of it, even though each may be sued upon as it occurs, as under our Code (Thompson-Sh. § 4620; Barnes Bros. v. Coal Co., 101 Tenn. 354, 360, 47 S. W. 498); yet where several breaches have already occurred at the time a suit is brought they must all be sued on in the same action, otherwise those omitted cannot be subsequently recovered on in another action, since the several breaches, after they have occurred under such a contract, constitute only one cause of action (Cook v. Hadly, Cooke [3 Tenn.] 465, 466; Perkins v. Hadley, 4 Hayw. [5 Tenn.] 148, 151, 152; Carraway v. Burton, 4 Humph. [23 Tenn.] 108, 113; Thomason v. Rice, 1 Shan. Tenn. Cas. 69, 73; Saddler v. Apple, 9 Humph. [28 Tenn.] 342; Railroad Co. v. Matthews, 115 Tenn. 172, 91 S. W. 194; Whitaker v. Hawley, 30 Kan. 317, 1 Pac. 508; Bartels v. Schell [C. C.] 16 Fed. 341; Joyce v. Moore, 10 Mo. 272).
But in the case now before us, as already pointed out, each note constituted a separate cause of action; therefore the failure to sue on the three notes of 1911 when the arrearages for 1915 were sued on did not operate as an estoppel on the present action. However, after a very careful examination of all of the facts adduced in the record, we are