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duty to them, and to dispose of his property according to a fixed purpose of his own. HARRISON v. UNION STORE CO. Wise v. Foote, 81 Ky, 10; Phillips v. Phil

(Court of Appeals of Kentucky. March 8, lips, Id. 332; McDonald v. McDonald, 120

1918.) Ky. 211, 85 S. W. 1084, 27 Ky. Law Rep. 1. ALTERATION OF INSTRUMENTS ww12—CON609, 117 Am. St. Rep. 579; Meuth v. Meuth, 157 Ky. 793, 164 S. W. 63; and many other The words "the detachable agreement becases which might be cited. The same and low," where what follows if detached from conother cases define undue influence to be an

tract would be nonnegotiable, do not authorize

a detachment on a dotted, nonperforated line influence obtained over the mind of the tes- further down the page to form a promissory tator to such an extent as to destroy his free note, and if payee makes such alteration withagency and to constrain him to do against out maker's consent, the whole contract is vitihis will what he would otherwise refuse to 2. Pills AND NOTES C-537(1)


BONA FIDE do, whether exerted at one time or another, PURCHASER ALTERATION NEGLIGENCE A or exerted directly or indirectly, provided QUESTION FOR THE JURY. so operated upon his mind at the time of the Whether one signing a contract, made in execution of the will; but any reasonable in- such form that the holder was able to detach fluence obtained by acts of kindness or by

therefrom a part forming a promissory note,

was such negligence as to render the maker liaappeals to the feeling or understanding, and ble to an innocent holder of such note is a quesnot destroying free agency, is not undue in- tion for the jury. fluence. See authorities, supra, and Hobson 3. BILLS AND NOTES (ww443(4) TRANSFER on Instructions, 8 629, and notes.


The holder of a note for collection only is The instructions in this case, and of which entitled to maintain an action thereon. no complaint is made, fully cover the above

Appeal from Circuit Court, Jefferson Coundefinitions, and, according to our view, the testimony was amply sufficient to support the ty, Common Pleas Branch, Fourth Division. verdict of the jury in finding that the tes-ion Store Company. From the sustaining of

Action by C. W. Harrison against the Untatrix possessed sufficient mental capacity demurrer to amended petition, and dismissto execute the will in contest, and that it

ing of action, plaintiff appeals. Reversed was executed free from undue influence, as

and remanded. the law defines that term.

We cannot afford to indulge in specula Wm. F. Clarke, Jr., of Louisville, for aption, as counsel for appellants would have pellant. John Irick and Ed. C. Wurtele, both us do, concerning the probable reasons why of Louisville, for appellee. the will was executed as it was, or why it was executed at all.

SAMPSON, J. A concern styling itself [4] To show undue influence sufficient to the Puritian Manufacturing Company, Chi. invalidate a will there must be not only an cago, New York, Winnipeg, and Toronto, enopportunity to exercise such influence, or a tered into a long printed contract with the possibility that it was exercised, but the Union Store Company of Beuchel, Ky., testimony must go further and show facts or whereby the Puritian Manufacturing Comcircumstances from which the jury would be pany, representing itself as an advertisauthorized to infer that it was actually ex- ing expert and contest manager, agreed to ercised. Brent v. Fleming, 165 Ky. 356, 176 furnish the Union Store Company a piano S. W. 1134.

of a given description, together with 300 It is insisted that the testatrix, with the articles of jewelry, and to personally superknown regard which she had for her rela- vise and conduct a contest at the store of tives, as well as her pride in her family appellee through which the trade and businame, would have thereby been induced to ness of appellee would be greatly increased. give them, not only more of her property, but In consideration of these things the Puritian especially would she have been disposed to Company induced the Union Store Company, intrust to their keeping her prized heirlooms, by its manager, to execute, and deliver to the but we cannot inquire into her mind for a agent of the Puritian Company a printed conreason for her failure to do the latter, if tract, to which was attached, below a dotted she did, but must look only to the record. line, the following: From it we see that she did devise a num

"Chicago, Ill., June 30, 1910. ber of apparent keepsakes to her different "For value received, the undersigned promises relatives, and if she possessed other articles to pay at Chicago, Ill., to the order of Puritian

Mfg.Co., three hundred dollars, as follows: of a similar nature the record does not show $100, 3 months after date. $100, 4 months aftit. It is sufficient for us to say that there er date. $100, 5 months after date. A disis abundant testimony to sustain the verdict count of 5% will be allowed if the full amount of the jury upon both of the propositions sub- of this instrument is paid at maturity of first mitted to them, and we cannot see that the

P. O., Beuchel, Ky., RFD. #12. verdict is even against the preponderance of

“Union Store Co., the testimony, much less not sustained by it.

"By J. B. Reid, Mgr." It therefore results that the judgment Immediately upon the execution and de must be, and it is, affirmed.

livery of the printed contract aforesaid, the

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


obligation attached to it, below the dotted , at the dotted line. It is alleged, and no line, was detached and placed with the John-doubt sustained by the facts, that the drumson County Savings Bank, Iowa City, Iowa, mer who obtained this contract from the as collateral to a note executed by the Puri- store company gave no hint that in the writtian Manufacturing Company, and by that ing was cunningly concealed a promissory bank transferred to J. C. Stouffer, who it is note, which, when detached and negotiated alleged furnished the money, and by said at a duly constituted bank, would be placed Stouffer indorsed and delivered to the plain- upon the footing of a bill of exchange, tiff, C. W. Harrison, for collection only. against which the maker could interpose no Harrison instituted this action on the note in equitable defense. So careful were the draftthe Jefferson circuit court to recover the ers of this printed contract in the selection $300 of the Union Store Company. The of words not calculated to excite the suspiamended petition alleges that Harrison is the cion of the merchant that the use of the word holder for collection only. A demurrer inter- “note" was studiously avoided, and in place posed to the petition as amended was sus- thereof is employed the expression "detachtained, and, the plaintiff declining to plead able agreement.” Had the expression “defurther, the action

dismissed. The tachable note," or the broader term "detachamended petition was not supported until able promissory note," found its way into after the answer of defendant had been filed. the printed contract, the sight thereof, no By its answer the Union Store Company al- doubt, would have aroused the suspicion of leged that at the time of the execution of an otherwise unsuspecting merchant, and unthe writing sued on the store company en questionably would have rendered it much tered into a contract with the Puritian Man- more difficult to obtain his signature. ufacturing Company, whereby it was to re- [1] It is charged that the note was detachceive a piano and 300 pieces of jewelry, and ed from the remainder of the writing within addition the Puritian Company was to out the knowledge or consent of the store put on and conduct an advertising campaign company, and this no doubt is true, although for the benefit of the Union Store Company, in the middle of the printed page in small whereby the trade and business of the store type, surrounded and overshadowed by larwould be increased. There is a lot of print- ger type, is skillfully screened the words, ed matter on the back of the contract in the detachable agreement below." These small type, and there is on the face of the words, used in the sense which is now atcontract in small type so intermingled with tempted to be attributed to them, are not other parts of the printed matter as to be germane to the subject-matter expressed in fairly concealed this expression, “the de- the small type immediately preceding and tachable agreement below.” This is printed immediately following the phrase, but so upon the sheet above the note copied, supra, couched and surrounded the camouflage was and is intended to give the Puritian Manu- complete, and the busy merchant whose sig. facturing Company and its agents authority nature was sought could not easily detect and opportunity to detach from the contract the snare. the promissory note, which is so deftly and Under the expression “the detachable carefully concealed in the printed contract. agreement below” are several heavy black The answer further alleges that the pretended lines running entirely across the page. Benote sued on was fraudulently and without tween two of these lines are these words: the knowledge or consent of the store com- “This agreement is subject to the conditions pany detached from the remainder of the printed on the back hereof." Immediately contract. The answer also sets up the entire under this is the following: contract. It is, moreover, charged that the

“Chicago, Ill., June 30th, 1910. contract was obtained by fraudulent means

"Puritian Manufacturing Co.-Gentlemen: and by false and fraudulent representations, mahogany finish, together with the advertising

Please ship the undersigned one Krause piano and that the detaching of the said note was matter and goods described above upon the without the consent of the defendant, and terms and conditions herein, and no others, all was done for the purpose of placing the said of which I understand and approve. alleged note in the hands of an innocent per

“[Signed] J. B. Reid, Mgr.,

son to be sued upon as a bona fide holder for “Puritian Manufacturing Co.,
value. This last allegation, however, is not "By L. H. Peyton, Salesman.
as full and complete as should be to make

"Freight station:
"Express station:

the plea available.
It is very doubtful from what appears in

Next on the page is a dotted line also runthe record whether the plaintiff Harrison, or ning entirely across the page. This line, howhis assignor, occupies the position of a hold. ever, is not perforated. Below this line is er for value in due course. There are many the promissory note above set forth. None indications of fraud and deceit connected of the printing on the back of the contract with this contract and note. The long print comes down far enough to interfere with the ed paper looks quite innocent when exam- promissory note. In other words, the promined as one agreement, but it presents quite issory note is blank on the back, while the a different aspect when the note is detached | balance of the back page is covered with

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small printed matter. If the words “detach-, had authority to detach the paper sued on in able agreement below," intermingled with the this action, the detachment was such a maother small type matter, can be interpreted terial change as to vitiate the whole, unless to mean that the agreement following and be- it falls within one of the exceptions above set low the phrase was detachable, and author- forth. Moreover, the facts in this case, as ized the. Puritian Manufacturing Company, disclosed by this record, make it extremely or its agents, to detach it, then the whole doubtful whether the Johnson County Savthereof including the order quoted above ings Bank or Mr. Stouffer were innocent should have been detached along with the al- holders. leged promissory note. Clearly the contract [3] The demurrer of defendant to the peas printed and signed by the Union Store tition, as amended, should have been overCompany was not negotiable, nor is that part, ruled by the trial court and the parties alall taken together, below the expression “the lowed to plead to an issue, and this should detachable agreement below." As delivered be done upon a return of the case. As holdto the agent of the Puritian Manufacturing er of the note for collection Harrison was enCompany the writing was a nonnegotiable titled to maintain the action, as has been held instrument. If, as appears to be the fact, no by this court in Harrison v. Pearcy & Colemention was made of detaching the promisso-man, 174 Ky. 485, 192 S. W. 513; Doherty ry note, then the act of the Puritian Manu- v. First National Bank, 170 Ky. 813, 186 S. facturing Company, or its agents, in seques- W. 937. tering that part of the writing was fraudu- Judgment reversed for proceedings conlent and vitiated the whole contract even in sistent with this opinion. the hands of an innocent purchaser, provided it is not found that the contract in its original form was so negligently prepared or ex

RUSSELL v. MCINTOSH. ecuted by the Union Store Company as to render the fraud easy in the hands of a cor- (Court of Appeals of Kentucky. March 8, rupt holder, or one so negligently prepared

1918.) that a prudent person should have expected 1. EJECTMENT 9(3)—SUFFICIENCY OF TIor anticipated such detachment, and therefore such as would cast the burden of loss upon

Plaintiff in ejectment can recover only upon the Union Store Company, who had been the strength of his own title, and not because

of the weakness of defendant's title. guilty of the negligence, instead of the inno- 2. APPEAL AND ERROR Oma 1052(8), 1068(3), cent purchaser who had accepted the paper HARMLESS ERROR – APPELLANT NOT ENTIfor value in good faith.

TLED TO RECOVER. [2] No doubt the Union Store Company's

If defendant was entitled to directed verdict,

but the court submitted the case to the jury name was placed to the long printed contract which found for defendant, plaintiff could not with no thought that the paper, or some part complain of incompetent evidence nor of erthereof, was negotiable, or that the Puritian roneous instructions. Company or its agents would detach a ma- 3. EJECTMENT 10—ADVERSE POSSESSION. terial part of it and attempt to place it in showing adverse possession for the statutory pe

Plaintiff in ejectment may establish title by the hands of an innocent purchaser.

riod by himself, or those under whom he claims. There is a well-recognized rule that renders 4. EJECTMENT C17 — PLAINTIFF'S RIGHT TO a maker of a paper liable to an innocent hold- PossESSION. er for value, even if the paper has undergone

Plaintiff in ejectment may establish right to a material change, or has been detached from from which he was ousted by the defendant who

possession by showing the peaceable possession à collateral agreement if the maker of the was a mere intruder without color of title. paper, through his negligence or carelessness, 5. EJECTMENT Cw16-POSSESSION LESS THAN placed the fraud within easy reach of a sub- STATUTORY PERIOD, sequent holder. This rule is rested upon the he shows only a bare, possession less in time

Plaintiff in ejectment may succeed, although principle that as between an innocent hold- than the statutory period, if defendant is utterer and one culpably negligent, the one guil-ly without right or title, since the law then ty of the negligence must suffer the burden. presumes some right in the one already in posThe facts in this case, however, do not ap

session. pear to bring it within this rule. Whether 6. ADVERSE POSSESSION Cw14--ACTUAL Posthere was such negligence on the part of the

Adverse possession must necessarily be an maker as to rest the burden upon him is a actual possession. question of fact for the determination of a 7. ADVERSE POSSESSION Om 100(1) – EXTENT jury. Another rule quite as potent as the OF POSSESSION—"ACTUAL POSSESSION. foregoing is that where a writing after a de- with

the intent to claim and hold it to the extent

One in the occupancy of a tract of land livery is materially changed or altered by a of the boundaries of the instrument under which detachment of a material part thereof, with he holds is in actual possession of all to the out the knowledge or consent of the maker, extent that it is not actually held by some other the whole thereof is rendered unenforceable, person. even in the hands of an innocent purchaser. and Phrases, First and Second Series, Actual

(Ed. Note.-For other definitions, see Words Unless the Puritian Manufacturing Company Possession.]

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

201 S.W.-3


8. ADVERSE POSSESSION Om 100(3)-EXTENT. ! reply. A trial of the issues being had be

Where one claiming by adverse possession fore the court and a jury, the jury found a had no pedis possessio in time sufficient to create title, the only way by which he could estab verdict in favor of the defendant; but upon lish adverse possession was to show that the the motion of plaintiff the verdict was set papers under which he claimed actually em- aside and a new trial granted. Thereafter braced the land and that either he or his pred- another trial of the action was had, which ecessor had possession with the intent to hold to the boundaries of the deed.

resulted in the jury finding a verdict in fa9. ADVERSE POSSESSION 112 – BURDEN OF vor of the defendant again, and a judgment Proor.

of the court dismissing the plaintiff's peti. Where a deed or patent is relied upon for tion. The plaintiff's motion and grounds for title or to show the extent of possession, and there are lands excepted therefrom, the burden a new trial being overruled, he has appealed is upon the one who relies upon such deed or from the judgment and now insists that the patent to show that the land he is seeking to judgment should be set aside and a new trial recover is not embraced by one of the excep-granted him, because the circuit court erred tions. 10. ADVERSE PossessION Cm 103-NATURE OF in permitting the defendant to read in eviOCCUPANCY-EXCEPTIONS IN DEEDS.

dence a deed from R. A. Mason and others to If land in controversy was embraced with- Calvin McKnight, dated in the year 1887, in exceptions from the deeds under which the parties claimed, possession of part of their and which embraced the lands in controboundaries by tenants intending to hold the en- versy, and under which the defendant claim. tire boundary could not confer possession of the ed title and possession, and for the further land in controversy.

reason that the court gave an instruction 11. ADVERSE POSSESSION 114(1)-EVIDENCE -SUFFICIENCY.

permitting the jury to find for defendant beEvidence held insufficient to establish title cause of adverse possession. At the conclu. by adverse possession.

sion of the evidence for the plaintiff, upon 12. LANDLORD AND TENANT Ow61-ADVERSE the trial, and at the conclusion of all the POSSESSION-RIGHT OF TENANT.

If defendant's remote ancestor entered on evidence, the defendant moved the court to the land as a tenant of the owner, agreeing to direct a verdict in his favor, and he now inpurchase it from him later, and such owner sists at the judgment ought to be affirmed, granted it to plaintiff's remote ancestor, defendant's remote ancestor and likewise defendant because the plaintiff failed, upon the trial, were estopped to question plaintiff's title. to show that he had any title to the lands

Appeal from Circuit Court, Powell County. in controversy, and therefore was without

Ejectment by F. B. Russell against Simp- right to its possession. son McIntosh. There was a verdict for de

[1, 2] In actions of ejectment the plaintiff fendant, which on plaintiff's motion was set must always recover, if he recovers at all, aside, and a new trial resulted in a dismissal upon the strength of his own title, that is, of the plaintiff's petition, and he appeals. upon the showing of his right to the possesAffirmed.

sion of the lands sued for, and not because

of any want of right in the defendant to the C. F. Spencer, of Winchester, for appellant. W. A. Stanfill, of Hyden, Faulkner & Faulk: possession, and hence, if the plaintiff fails ner, of Hazard, and John D. Atkinson, of to manifest a right to the possession, the de

fendant was entitled to a directed verdict Stanton, for appellee.

in his favor, but if, the court having deHURT, J. This was an action in eject- nied that to the defendant and submitted ment by the appellant, F. B. Russell, in the plaintiff's right of recovery to the jury, which he sought to recover from the appel- / which found such a verdict, under the inlee, Simpson McIntosh, a small tract of land, structions given, as the court should have containing between nine and ten acres, in directed in favor of the defendant, the plainPowell county. The appellant, who was the tiff would have no cause of complaint beplaintiff below, alleged that he was the own- cause of incompetent evidence received for er and had a legal title to the land, and that the defendant nor because of erroneous inthe appellee, who was the defendant below, structions given. had wrongfully taken possession of the In an action in ejectment, the possession of land and was withholding the possession the land is the chief thing sought; but the from him. The answer put the legal title plaintiff must, in some proper way, manifest and the right to the possession squarely in his right to the possession, the burden is issue. The defendant, furthermore, alleged upon him to do so, and if he fails to do so in his answer that he was the owner and he must necessarily lose, because, if he has held the legal title to the premises sued for, not the right to the possession, it is a matand that he and those under whom he claim- ter of indifference to him, as to who does ed had been in the continuous, peaceable, have the possession. and adverse possession of it, claiming it as [3] The plaintiff, in such action, may prove their own, to a well defined and marked his right to possession by showing that he boundary, for more than 15 years before the is the owner of the legal title, and that the institution of the action. The affirmative possession is wrongfully being withheld from averments, in the answer, were denied by a him. He may show that he is the holder of

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the legal title by putting in evidence a con verse possession. The evidence offered by nected chain of conveyances from the com- plaintiff, in the way of writings, deeds, and monwealth of Kentucky down to himself, conveyances, to show legal title in himself, and, where the property passes by inherit- fails to prove that the plaintiff has a legal ance, to prove that fact; or he may prove title to the land sued for, when considered his legal title by showing an adverse posses- by themselves. He does not show any consion of the property by himself, and those nected chain of title from himself to the comunder whom he claims, for the statutory pe- monwealth of Kentucky nor to any title holdriod. Shutt v. Travis, Sneed Ky. Dec. 307; er, common, as a vendor, to himself and the Anderson v. Turner, 3 A. K. Marsh. 134; | defendant. Hence his legal title, if any he Vaughn v. Mills, 18 B. Mon. 634; Bailey v. has, must arise entirely from an adverse posTygart, 10 S. W. 234, 10 Ky. Law Rep. 676; session of the land in controversy for the statGreen v. Wilson, 2 S. W. 564, 8 Ky. Law utory period. There being no pedis possessio, Rep. 601; Davis v. Justice, 1 S. W. 588, 8 as heretofore shown, of a sufficient length of Ky. Law Rep. 258; Ratcliff v. Elam, 21 S. time to create title in any of the predecessors W. 352, 14 Ky. Law Rep. 772; Howard v. in title of plaintiff, the only way in which Singleton, 94 Ky. 336, 22 S. W. 337, 15 Ky. he could become the owner by adverse posLaw Rep. 309; Hamilton v. Hamilton, 29 S. session of the property would be to show W. 876, 16 Ky. Law Rep. 793; Ray v. Swee- that the title papers under which he claims ney, 14 Bush, 1, 29 Am. Rep. 388; Chism v. the land actually embraces it, and that the Trent, 10 S. W. 648, 10 Ky. Law Rep. 849; | title paper of his predecessors likewise did Sutton v. Pollard, 96 Ky. 640, 29 S. W. 637, so, and that either he or his predecessor in 16 Ky. Law Rep. 685; Warmoth v. Fitchen, title had actual possession of the lands em6 Ky. Law Rep. 584; Taylor v. Arnold, 17 braced by his deed, by occupying it himself S. W. 361, 13 Ky. Law Rep. 516; 9 R. C. L. or by tenants, with the intent to possess and 853; Taylor y. Buckner, 2 A. K. Marsh. 18, hold the land to the boundaries of his or 12 Am. Dec. 354; Peters v. Allison, 1 B. their deeds. An adverse possession must Mon, 232, 36 Am. Dec. 574.

necessarily be an actual possession, and one [4, 5] The plaintiff in ejectment may also in the occupancy of a tract of land with the show his right to possession by proving that intent to claim and hold it to the extent of he was in the peaceable possession of the the boundaries of the instrument, under property and was ousted therefrom by the which he holds it, is in the actual possession defendant, who was a mere intruder and of it all to the extent that it is not actually trespasser, without color of title to the prop- held by some other person, erty. The plaintiff may, under such circum [9] So it becomes necessary to determine, stances, succeed, although he shows only a in the present instance, from the evidence, bare possession and less, in point of time, that the land in controversy is actually emthan the statutory period; as, where the de- braced by the title paper under which appelfendant is utterly without right or title, the lant holds before he could possibly be either law presumes some right in the one already the owner of the property or have actual in possession, Ratcliff v. Bellfonte Iron possession of it. The land is situated about Works, 87 Ky. 559, 10 S. W. 365, 10 Ky. one mile from the old Estill Furnace. There Law Rep. 643; Sowders v. McMillan, 4 Dana, was read in the evidence a contract between 462; Fowke v. Darnall, 5 Litt. 317; Myers certain parties, who, in the year 1849, agreed v. McMillan, 4 Dana, 485; Pollit v. Bland, that all of the lands within four miles of the 22 S. W. 842, 15 Ky. Law Rep. 227; Young Estill Furnace should be the property or v. Cox, 14 S. W. 348, 12 Ky. Law Rep. 347; should be for the special use and benefit of Asher v. McCarty, 2 Ky. Law Rep. 218; Mc- certain parties, unless such parties should Lawrin v. Salmons, 11 B. Mon. 96, 52 Am. sell lands below the mountain on the HardDec. 563.

wick creek side; and, in the event they did [6-8] The plaintiff, in his petition, does not so, these lands should be for the equal beneallege that he had ever been in the posses- fit of all the parties to the agreement. It sion of the land sued for, and that defendant was also agreed that all sales of the lands or any of his vendors had ousted him, but theretofore made by any of the parties or bases his right of recovery upon his owner- their predecessors should be ratified. It can ship of the legal title. There is no proof only be concluded from this writing that that any of the predecessors in title of plain- sales had been made to other parties of portiff were ever in actual possession of the land tions of the lands within the four mile circle in controversy, except the testimony of one around Estill Furnace, the titles to which witness for the defendant, who states that were ratified by the contracting parties by he held it for three or four years under a the agreement. The next paper relating to lease, presumably by the Kentucky River the lands, in point of age, is a deed from the Iron Manufacturing Company or the Ken- commissioner of the Estill circuit court to tucky Union Land Company, and that was the Red kiver Iron Manufacturing Company, previous to the year 1897, which, of course, dated October 19, 1869, and made in the acwas not a sufficient length of time to create tion of Josiah Jackson's administrator title in any predecessors of plaintiff by ad- against Josiah Jackson's heirs and creditors.

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