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.

410.

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—

ADMINISTRATOR-GUARDIAN.

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

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

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.

[6] (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.

[7] (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.

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.

[4] 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