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fact that the land was not susceptible of di-, Elisha Creech, a tract of land in Harlan vision, and her only remedy, if any remedy county worth about $6,000, for the recited she has, is by appeal from the former judg- consideration of $500. In June, 1912, Isaiah ment. This suit for partition is in effect res Creech died, leaving several children, and all judicata. She is therefore in no position to of them, except three, brought this suit in claim a division of this land, unless she can 1913 for the purpose of having the deed do so upon the alleged understanding or made to Elisha set aside upon the ground agreement asserted by her to have been made that Isaiah, at the time he made it, was between her and Major Hays, whereby she mentally incapable of executing the instruwas to have her portion, one-tenth, in land ment, and its execution was procured by uninstead of money. She solemnly asserts that due influence. Soon after the petition was such an agreement was made, while Major filed, G. A. Eversole came into the case by Hays with equal firmness declares it was not an intervening petition, and set up that submade. The trial court in passing upon this sequent to the conveyance to Elisha he had point found against plaintiff, Laura Hays, purchased from Elisha a part of the land and we are not inclined to disturb the 'find- deeded to him by his father, and, after avering of fact. Aside from this, the defendant, ring that Isaiah was capable of making the Major Hays, alleged that the land was not deed, and there was no fraud or undue inflususceptible of division without great impair-ence in its procurement, he asked that the ment of its value, and the only evidence in petition be dismissed in order that his interthe record upon that point sustains the al- est in the land might not be affected by the legations of the answer. It follows, there- suit. To the petition an appropriate answer fore, that under the state of record, the trial was filed by Elisha, and to the intervening court did not err in refusing a division, es- petition of Eversole an appropriate answer pecially where it is affirmatively asserted was filed by the children who brought the that such tract cannot be divided without suit. Thereafter the case was prepared for impairing its value.

trial, and the petition of the children, seekJudgment affirmed.

ing to have the conveyance set aside, was dismissed.

[1] The evidence in this case presents the (180 Ky. 804) DAVIS et al. v. CREECH et al.

usual features appearing in cases of this

character. A number of witnesses testified (Court of Appeals of Kentucky. June 4, 1918.) in support of the respective contentions of 1. DEEDS Om 211(4) UNDUE INFLUENCE

the parties, and as the issues in the case are EVIDENCE-WEIGHT.

purely ones of fact, it will be necessary to Evidence held sufficient to show undue in- make, at least, a brief review of the evifluence of a son over his aged and infirm father, dence. The substantial facts are that Isaiah causing the father's transfer to him of a valuable tract of land by deed without any consid- Creech was about 83 years old when this eration.

conveyance was made, and that he had been 2. VENDOR AND PURCHASER Ow229(1)–BONA for some years before this time, and was at FIDE PURCHASER-NOTICE-INQUIRY.

For an intended purchaser of property from this time, a heavy drinker of intoxicating a vendor with a good record title to be a bona liquors, with which he was kept well supfide purchaser, he need inquire only when in- plied by his son Elisha. Elisha Creech was formed of facts and circumstances that would the youngest child, and had always lived in lead an ordinarily prudent man to believe there the home of his father, whose wife died was some infirmity of title. 3. EXECUTORS AND ADMINISTRATORS Cm 294– about 1900. That he should have been very

SETTLEMENT OF ESTATE-SETTING ASIDE OF much attached to his son Elisha, who had DEED IN PART.

always lived in the same house with him, is Where a deed to son from his father, later nothing more than natural, and especially deceased, was set aside for undue influence except as to a part of the land which had been did the intimacy and the dependency of the transferred to a bona fide purchaser, the son old man on the young one grow with the old should be charged, in settling the estate, with man's declining years. There is much evithe money paid to him for such land.

dence in the case that for several years beAppeal from Circuit Court, Harlan County. fore the death of his father Elisha had prac

Suit by Clarinda Davis and others against tically controlled all of his business affairs, Elisha Creech, in which G. A. Eversole inter- and that he would not make any trade unvened. From a judgment dismissing the pe- less he had first consulted his son Elisha. tition, plaintiffs appeal. Reversed in part J. J. Huff wrote the deed, and, as he was and affirmed in part.

not cross-examined when introduced as a Hall & Jones, of Harlan, for appellants. witness for the children attacking the deed, Zeb A. Stewart and G. A. Eversole, both of we may reasonably attach considerable Harlan, for appellees.

weight to his evidence, and recite certain

parts of it as a fair sample of what other CARROLL, J. In January, 1912, Isaiah witnesses said. Huff testified, in substance, Creech, who was then about 83 years old, that he was called on by Elisha to write the executed a deed conveying to the appellee, deed, and said that Elisha had told him sev

eral times that he wanted him to write a , by his father, but we think the circumstancdeed for his father; that when he came toes are not so controlling as to justify us in write the deed, the old man was present; but setting it down that Eversole should be the witness could not say whether he was charged with notice of the vice in the deed drunk or sober, nor did he undertake to give to Elisha. The intended purchaser of propthe boundary of the land, saying that he, erty from a person who has a good record Huff, knew the boundary, and thereupon title is not obliged to make inquiry in order Huff, Elisha, and Alex Creech fixed the to put himself in the attitude of a bona fide boundary; he said he asked what consider- purchaser; he is only charged with such noation should be expressed in the deed, and tice as may come to him in the way of facts that the old man said he did not know, or circumstances that would lead a person “and I believe Elisha Creech says, 'What of ordinary prudence to believe that there about making it $300?' and I suggested that was some infirmity in the title, and this they make it $500, which they did.” He fur-character of notice is lacking. But Elisha, ther says that his understanding was that in the settlement of the estate, should be there was no consideration paid for the charged with the money paid to him by Evland ; that he had written a good many deeds ersole for the land. at different times, for Isaiah Creech, and he Wherefore the judgment is reversed, with always signed them with his own hand, but directions to set aside the deed made to that he did not sign this deed or two others Elisha, except to the extent of the conveythat he made at the same time, but made his ance to Eversole. As to Eversole, the judgmark. When asked what influence Elisha ment is affirmed, and his title will remain had over his father, he said that all he knew unaffected by this decision. about it was that Elisha managed the affairs at the home of Isaiah, and seemed to have full control of his business matters.

(180 Ky, 760)

SCHUSTER V. CITY COUNCIL OF CITY Although the deed recites a consideration

OF OAKDALE. of $500, it is very evident that no consideration at all was paid, and there is also evi- (Court of Appeals of Kentucky. May 31, 1918.) dence tending to show that the old man sev- MUNICIPAL CORPORATIONS 867(2) INeral times said before this deed was made

DEBTEDNESS-STREET IMPROVEMENTS-STAT

UTE AND CONSTITUTION. that he wanted what he had left for his

Under Const. § 157, providing that no city, children in equal shares.

town, taxing district, or other municipality It further appears that on the day this shall be authorized, or permitted to become indeed to Elisha was made the old man deed debted to an amount exceeding in any year the

income and revenue provided for such year, ed some property, of small value, to his sons without the assent of two-thirds of the voters, a Alex and William, and that he had, about city of the fifth class cannot create, pursuant 2 years before, conveyed to his daughter Pol- to the ten year bond plan of Ky, St. 3643, an ly a little piece of land. No attack, however, of its current revenue for the year, without the

indebtedness for street improvements in excess has been made on any of these conveyances, assent of two-thirds of the voters, though the because it does not appear that either of property abutting on the street improvements them amount in value to more than what the is in lien to the city for the debt and primarily

liable therefor. legitimate share of the grantee would be in the estate of Isaiah Creech. But the

Appeal from Circuit Court, Jefferson Counproperty deeded to Elisha was several times ty, Chancery Branch, Second Division. more valuable than his equal share in the

Action by Frank J. Schuster against the estate would have been.

City Council of the City of Oakdale, etc. Taking into consideration the age of Isai- Judgment for defendant, and plaintiff apah and the natural physical and mental peals. Reversed. weakness attending it, together with the un- Chas. Carroll, of Louisville, for appellant. doubted influence that his son, Elisha, exer- P. D. Crawford, of Louisville, for appellee. cised over him, we are of the opinion, in the light of all the circumstances surrounding SAMPSON, J. This is an agreed case, inthe transaction, that this conveyance was not stituted to test the validity of a proposed the product of a free and independent mind, bond issue, by Oakdale, a city of the fifth but was the result of an improper influence class, in Jefferson county. Between January exercised over the grantor that constrained 1 and April 1, 1918, the city council of Oakhim to do that which he would not have dale, by various ordinances, provided that done if left to the uncontrolled exercise of certain streets of that city should be imhis own judgment.

proved by grading, curbing, guttering, and [2, 3] In respect to the conveyance made otherwise, under section 3643, Kentucky Statby Elisha to Eversole, there are some cir- utes, known as the “ten-year bond plan,” cumstances in the record that tend to show whereby the property of abutting owners is in that Eversole, before his purchase, had some lien to the city for the costs of the improve doubt as to whether Elisha had secured a ments. . good title to the property conveyed to him At the time of the enacting of the ordinanc

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

void.

es and the letting of the contracts thereun-, buildings and other improvements upon the der, the city of Oakdale was incumbered property so improved." with debt up to the constitutional limit. The Subsection No. 3 is as follows: entire revenue of the city from all sources "The original construction or reconstruction for the year 1918 will not exceed $16,000, of of any streets, avenues, highways, alleys, sewers

and public places may be made at the exclusive which amount about $7,000 will be consumed cost of the owners of the lots and parts of in current expenses, such as salaries, rents, lots or lands fronting or-abutting or bordering lights, water, etc. The proposed improve- upon the proposed improvements to be equally ments will reasonably cost, and, indeed, are apportioned by the city council according to the

number of front feet owned by them respectivelet to a contractor at, approximately $58,- ly, or in part at the cost of the owners, and in 000. Hence the proposed bond issue will part at the cost of the city, upon the petition greatly exceed the revenue for the current of a majority of the property owners of lots or

parts of lots, or land abutting or bordering upyear.

on the proposed improvement; or the city Section 157 of the Kentucky Constitution council may cause same to be done without provides in part:

such petition upon the vote of four members

elect of said council at a regular meeting there“No county, city, town, taxing district, or of; or the council may, by a majority vote of other municipality shall be authorized or per- any regular meeting thereof, cause any such immitted to become indebted, in any manner or provement to be made upon the ten-year bond for any purpose, to an amount exceeding in any plan as hereinafter provided." year, the income and revenue provided for such year, without the assent of two-thirds of the Subsection No. 4 is as follows: voters thereof, voting at an election to be held

“But any work undertaken under the provifor that purpose; and any indebtedness con- sion of the preceding section to wit: Upon the tracted in violation of this section shall be ten-year bond plan is completed in accordance

with the contract, the work shall be received

by the city council and the said council shall The question presented by this appeal is: order the payment for the same made to the Can a city of the fifth class create an in-contractor by issuing an order [to] the city

treasurer to pay same in full out [of] the 'street debtedness in excess of its current revenue improvement fund.'” for the year without the assent of two-thirds

Subsection No. 5 is as follows: of voters of such municipality, voting at

"Whenever any work done hereunder [upon an election held for that purpose, even the ten-year bond plan] has been completed and though the property fronting and abutting accepted, the city council shall issue the bonds upon the improvements be in lien to the city of the city, in sums not to exceed the cost of for the debt, and primarily liable therefor? said improvement, and all expenses in connec

tion therewith, including the expenses and the The plaintiff, Schuster, contends that the issual and sale of said bonds, and shall sell the contracts made and the ordinances passed by same to the highest bidder after due advertisethe city council of Oakdale, as above set out, ment at a price not less than par and accrued

interest. Said bonds shall be divided into ten are unconstitutional and void, for the reason series, each series to be as nearly equal as that by the passage of the ordinances an possible, said series to be paid respectively in unwarranted indebtedness is authorized, and one, two, three, four, five, six, seven, eight, nine by the making of said contracts an indebted- of the denomination of one hundred dollars or

and ten years after date. Said bonds shall be ness is attempted during the year 1918, by the multiple thereof not exceeding five hundred dolcity of Oakdale, in excess of the revenue of lars and shall bear interest at a rate not to said city for said year. This is denied by exceed six per cent, per annum and shall be defendants, who claim that, as the owners of payable at a Kentucky bank

to be designated by

the city council." the property sought to be improved are primarily liable for the direct costs of the im- the city shall create a fund, to be known as

The substance of subsection 6 is: That provements and the property improved is in lien to secure payment of the contract price be held by the treasurer separate and apart

the "street improvement fund,” which shall for said improvements, the constitutional

from other funds in his hands, and out of prohibition does not apply.

this fund the city shall pay for all such street The ten-year bond plan for improving streets, which is the one here attempted to year bond plan. By subsection 7 it is pro

improvements provided for under the tenbe invoked, was enacted in 1912, and is now vided that the assessments shall be made to section 3643, Kentucky Statutes, divided into meet the expenses of the improvement, and 13 subsections. Subsection 1 of this.act, in the same shall be made upon a flat rate by part, provides:

the front foot upon the property fronting, “The cost and expenses incurred in con- or abutting, or bordering, upon said improve structing or reconstructing streets, avenues, highways, sewers and public places shall be ment. This assessment must be made as soon paid out of a general fund of the city or by the as the cost of improvement is fully ascertainowners of the land fronting and abutting there- ed, and the sum assessed against each piece on, as the city council may in each case deter- of property, and shall be placed upon the tax mine; or the city council may order and direct that two-thirds only of said cost and expenses list of the city against the owners of the so incurred shall be paid by the owners of the property, and to be payable to the city treaslands fronting and abutting said improvements urer in ten equal annual installments, with and the other one-third paid by the city; but interest. the local assessments shall not exceed fifty per centum of the value of the ground after such

The ten-year bond plan, which cities of the burden of the cost of such improvements, the limit of debt to be incurred by a city of upon those who derive the greatest benefit, this class at the time of the enactment of the the owners of the property fronting and abut- ten-year bond plan. ting' on the improvements, and is often en- Since the proposed bond issue is for $58,tirely fair and just. It does not, however, coo, and the revenue of the city for the year increase, nor was it intended to increase, the from all sources cannot be greater than $16, debt limit of such cities. Improvements made 000, it follows that the constitutional limita under this plan must be under the authority tion of debt would be greatly more than .esof an ordinance duly enacted by the city ceeded. The trial court was therefore in er council, and the contract must be let and en- ror in holding legal and valid the ordinances forced by the city. When the work is com- enacted by the council of the city of Oakdale, pleted, the money is paid to the contractor upon which the bond issue must rest for supfrom the "street improvement fund” of the port, and a like error was committed in suscity, into which fund all moneys arising from taining and adjudging valid and binding the the sale of bonds under subsection 5 of the contracts for such improvements. act is gathered. The bonds authorized to be Judgment reversed. sold are "the bonds of the city," and not of the owners of the improved property. The

(180 Ky. 843) property owners are assessed in proportion

LOUISVILLE & I. R. CO. v. COMMONto the frontage owned by each, and this

WEALTH. amount is divided into ten equal installinents payable in one, two, three, four, five, six, sev- (Court of Appeals of Kentucky. June 4, 1918.) en, eight, nine, and ten years after the as- 1. RAILROADS Ow255(2)-ACCOMMODATIONS

WATER-CLOSETS. sessment, and is placed upon the tax bill of

What is a reasonably suitable and conventhe property owner, and collected like other ient water-closet required at railroad stations taxes and at the same time. The city has by Ky. St. $ 772, depends upon the facilities, a lien upon the improved real estate for the and should be in accord with the best in compayment of the installments as they become mon use in the vicinity.

2. RAILROADS W255(11)-ACCOMMODATIONSdue, which lien may be enforced by the city

WATER-CLOSETS/CRIMINAL REPONSIBILITY. in an equitable proceeding for that purpose. In criminal prosecution, evidence held inObviously such bonds are the obligations of sufficient to sustain finding that a privy mainthe city, and the city alone is liable there- tained at a distance from a station in a town on, although it may in turn collect the whole able and convenient as required by Ky. St. $ 772,

without a waterworks was not reasonably suitthereof from the property abutting and front- although several buildings in the town and aning on the improvement made by the expen- other railroad maintained inside water-closets diture of the money. The city pledges its and provided water for flushing them.

em credit and assumes the debt; nevertheless 3. RAILROADS ww255(2) — WATER-CLOSETS

Locks. it expects to be fully repaid by the property To comply with Ky. St. § 772, requiring holders.

railroads to maintain reasonably suitable and As a further evidence that the Legislature, convenient water-closets, a railroad which locks in enacting this section of the Statutes, did trons to obtain a key during the hours that they

its water-closets must provide a means for panot intend to give cities of the fifth class an have a right to be at the stations. opportunity to increase their indebtedness 4. RAILROADS

|

Om 255(11)_WATER-CLOSETSbeyond the constitutional limitation, we refer

CRIMINAL PROSECUTIONS. to subsection 12 of the act itself, wherein it held insufficient to warrant a finding that rail

In prosecution under Ky. St. § 772, evidence is provided that:

road did not provide means to patrons at a sta"If it shall be necessary to raise an amount tion to obtain the key to the water-closet. of money for said 'street improvement fund,' which would create an indebtedness greater

Appeal from Circuit Court, Oldham than the amount which could be met by the County. levy authorized by law, the city council shall The Louisville & Interurban Railroad cause the question of such issue and sale of Company was convicted of a failure to probonds to be submitted to the qualified voters of said city at an election to be held for said pur- vide a suitable and convenient privy at a pose, as provided for in section 3637, subsec-depot in violation of Stats. § 772, and it aption 3, of the Kentucky Statutes.”

peals. Reversed and remanded. In other words, cities of this class, when Willis, Tood & Bond, of Shelbyville, for desiring to issue bonds, or create an indebt- appellant. Chas. H. Morris, Atty. Gen., and edness greater than the revenue receivable Overton S. Hogan, Asst. Atty. Gen., for the from all sources for the calendar year, even Commonwealth. where the property abutting on the improvement is primarily liable, must submit the

CLARKE, J. The appellant was indicted,

, , question to the voters of the municipality, charged with failing to provide a suitable and the proposition must receive the assent and convenient privy at its depot in the city of at least two-thirds of the voters voting in of La Grange, in violation of section 772, said election. This section of the statute Kentucky Statutes; and, the trial resulting leaves no doubt that the lawmakers had in in a judgment of conviction imposing a fine mind section 157 of the Constitution, fixing of $100, it has appealed upon the ground

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that there was not sufficient evidence to au-, terworks system, and the defendant had lothorize a submission to the jury, rendering cated the closet for women inside the depot, erroneous the court's denial of its motion for with some satisfactory and practical are a directed verdict.

rangement for sewage disposal, and in sev. La Grange is a city of the fifth class, the eral homes and business houses in the vicounty seat of Oldham county, and has a cinity inside toilet facilities were provided ; population of 1,300 or 1,400, but is without and this evidence was held to be some evi. a public waterworks or sewerage system, and dence of the practicability of and necessity defendant had erected and maintained, with for the location in the station of the men's in 50 or 60 feet and in the rear of its pas- privy, located outside of and at a considersenger station, a privy with separate com- able distance from the depot, which required partments for the sexes. There is no com- a submission to the jury of the question of plaint that the building was not suitable, or fact whether or not the location selected by that it was not kept clean and in good condi- the defendant was convenient under the cir tion, and it is conceded it was as conveni- cumstances. In the former of the two cases ently located as was practicable under exist- referred to above a question involved was ing conditions, if located outside the passen- whether or not, at Horse Cave, a town harger station. So the principal question in- ing two public service water companies and volved here is whether or not there was any a natural drainage available for sewage disevidence that it was reasonably practicable posal, the defendant in locating the privy and necessary, under existing conditions, to outside the station had complied with the have located it within the station, because, reasonably convenient and suitable location in construing this statute, it was held by required by the statute, and, in holding the this court in L. & N. R. Co. v. Common- evidence sufficient to warrant a submission wealth, 137 Ky. 802, 127 S. W. 152, that the of the question to the jury, we said: word "convenient" means as near the depot "What constitutes a reasonably convenient and of as easy access as the circumstances and suitable water-closet or privy depends upon

the facts and circumstances surrounding each of the case will admit, and that each case

In small, sparsely populated communishall be governed by the circumstances and ties the old back or garden house, if kept clean surroundings peculiar to it.

and decent, may fulfill the requirement of the The defendant claims that, under the rule statute, but in a live, active, and progressive laid down in L. & N. R. Co. v. Common is served, the facilities should accord with the

town like Horse Cave, where a large population wealth, 131 Ky. 268, 114 S. W. 1192, there best in common use, in homes and business was no evidence of criminal liability, and houses, in the immediate vicinity of the depot. cites the following from that opinion:

Nothing less than this will satisfy the statute.

It is argued that this will necessitate consider“There was no complaint that the building able expenditure of money. It will cost somewas not suitable, or that it was not kept clean thing. So also does it cost money to erect an and in good condition. The only complaint was old-fashioned privy, and, while the modern closits location. The evidence offered should have et may be somewhat more expensive, it must been admitted; for, if there was no point where be remembered that great progress has been the closet could be placed to be more suitable or made in recent years along similar lines, and the convenient, the defendant has not violated the public sense has been quickened upon questions statute. The law only requires that the closet of sanitation and public health, things but shall be reasonably convenient, considering the slightly considered in former years." existing conditions, and all the proof as to conditions existing, including the proof as to a

[1] It is unquestionably true that what is better location for the closet, should be admit- reasonably suitable and convenient for one ted. In towns without a water supply a very town may not be so for another, whether of different condition is presented from that pre- the same size or not, for, under all the .cassented in a city where the water-closet may be in the station next to the waiting room.

The es, the question is determined by the facts defendant must necessarily exercise judgment of each case; and we are unable to discover as to what is the best place for the closet in any conflict in these opinions in the prinsuch cases, and no criminal liability should be ciples announced, because the care and judgimposed where the defendant has exercised such care and judgment as may be reasonably ex- ment that may reasonably be expected of a pected of a person of ordinary prudence in lo- person in locating the closet as required in cating the closet. The court on another trial the case reported in 131 Ky. 268, 114 S. W. will so instruct the jury."

1192, is that he will so locate it as to provide The commonwealth insists, however, that toilet facilities in accord with the best in in that case we were dealing with a much common use in the vicinity, as required in smaller town, and, under the opinions in the the two latter cases, regardless of the size more recent cases, L. & N. R. Co. v. Com- of the town. monwealth, 175 Ky. 282, 194 S. W. 313, and [2] Let us, therefore, examine the eviL. & N. R. Co. v. Commonwealth, 179 Ky. dence here to see if there was any evidence 279, 200 S. W. 464, a different rule has been that in the location of the closet outside established with reference to towns of the rather than inside the depot, for that is size and importance of La Grange.

the only dereliction complained of, the deIn the latter case, while the question in- fendant failed to exercise such care and volved was the same as here, the facts were judgment as may be reasonably expected of a quite different, since in Taylorsville, the city person of ordinary prudence who is required

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