ÆäÀÌÁö À̹ÌÁö
PDF
ePub

duty to them, and to dispose of his property according to a fixed purpose of his own. Wise v. Foote, 81 Ky. 10; Phillips v. Phillips, Id. 332; McDonald v. McDonald, 120 Ky. 211, 85 S. W. 1084, 27 Ky. Law Rep. 609, 117 Am. St. Rep. 579; Meuth v. Meuth, 157 Ky. 793, 164 S. W. 63; and many other cases which might be cited. The same and other cases define undue influence to be an influence obtained over the mind of the testator to such an extent as to destroy his free agency and to constrain him to do against his will what he would otherwise refuse to do, whether exerted at one time or another, or exerted directly or indirectly, provided it so operated upon his mind at the time of the execution of the will; but any reasonable influence obtained by acts of kindness or by appeals to the feeling or understanding, and not destroying free agency, is not undue influence. See authorities, supra, and Hobson on Instructions, § 629, and notes.

[blocks in formation]

The words "the detachable agreement below," where what follows if detached from contract would be nonnegotiable, do not authorize a detachment on a dotted, nonperforated line further down the page to form a promissory note, and if payee makes such alteration without maker's consent, the whole contract is vitiated. 2. BILLS AND NOTES 537(1) BONA FIDE PURCHASER ALTERATION NEGLIGENCE A QUESTION FOR THE JURY.

Whether one signing a contract, made in such form that the holder was able to detach was such negligence as to render the maker liatherefrom a part forming a promissory note, ble to an innocent holder of such note is a question for the jury. TRANSFER

3. BILLS AND NOTES 443(4)
FOR COLLECTION ONLY-RIGHT OF ACTION.
The holder of a note for collection only is
entitled to maintain an action thereon.

ty,

Appeal from Circuit Court, Jefferson Coun

Common Pleas Branch, Fourth Division.

The instructions in this case, and of which no complaint is made, fully cover the above definitions, and, according to our view, the testimony was amply sufficient to support the 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 speculation, as counsel for appellants would have us do, concerning the probable reasons why the will was executed as it was, or why it was executed at all.

Wm. F. Clarke, Jr., of Louisville, for appellant. John Irick and Ed. C. Wurtele, both of Louisville, for appellee.

SAMPSON, J. A concern styling itself [4] To show undue influence sufficient to the Puritian Manufacturing Company, Chiinvalidate 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 S. W. 1134.

furnish the Union Store Company a piano of a given description, together with 300 articles of jewelry, and to personally supervise and conduct a contest at the store of appellee through which the trade and business of appellee would be greatly increased. In consideration of these things the Puritian Company induced the Union Store Company, by its manager, to execute, and deliver to the agent of the Puritian Company a printed contract, to which was attached, below a dotted line, the following:

It is insisted that the testatrix, with the known regard which she had for her relatives, as well as her pride in her family name, would have thereby been induced to give them, not only more of her property, but especially would she have been disposed to intrust to their keeping her prized heirlooms, but we cannot inquire into her mind for a reason for her failure to do the latter, if she did, but must look only to the record. From it we see that she did devise a number of apparent keepsakes to her different relatives, and if she possessed other articles of a similar nature the record does not show it. It is sufficient for us to say that there is abundant testimony to sustain the verdict of the jury upon both of the propositions submitted to them, and we cannot see that the verdict is even against the preponderance of the testimony, much less not sustained by it. It therefore results that the judgment Immediately upon the execution and demust be, and it is, affirmed. livery of the printed contract aforesaid, the

"Chicago, Ill., June 30, 1910. "For value received, the undersigned promises to pay at Chicago, Ill., to the order of Puritian Mfg. Co., three hundred dollars, as follows: $100, 3 months after date. $100, 4 months after date. $100, 5 months after date. A discount of 5% will be allowed if the full amount of this instrument is paid at maturity of first installment. "P. O., Beuchel, Ky., RFD. #12. "Union Store Co.,

"By J. B. Reid, Mgr."

mer who obtained this contract from the store company gave no hint that in the writing was cunningly concealed a promissory note, which, when detached and negotiated at a duly constituted bank, would be placed upon the footing of a bill of exchange, against which the maker could interpose no equitable defense. So careful were the drafters of this printed contract in the selection of words not calculated to excite the suspicion of the merchant that the use of the word "note" was studiously avoided, and in place thereof is employed the expression "detachable agreement." Had the expression "detachable note," or the broader term "detachable promissory note," found its way into the printed contract, the sight thereof, no doubt, would have aroused the suspicion of an otherwise unsuspecting merchant, and unquestionably would have rendered it much more difficult to obtain his signature.

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, as collateral to a note executed by the Puritian Manufacturing Company, and by that bank transferred to J. C. Stouffer, who it is alleged furnished the money, and by said Stouffer indorsed and delivered to the plaintiff, C. W. Harrison, for collection only. Harrison instituted this action on the note in the Jefferson circuit court to recover the $300 of the Union Store Company. The amended petition alleges that Harrison is the holder for collection only. A demurrer interposed to the petition as amended was sustained, and, the plaintiff declining to plead further, the action was dismissed. The amended petition was not supported until after the answer of defendant had been filed. By its answer the Union Store Company alleged that at the time of the execution of the writing sued on the store company entered into a contract with the Puritian Manufacturing 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 contract in small type so intermingled with other parts of the printed matter as to be fairly concealed this expression, "the detachable agreement below." This is printed upon the sheet above the note copied, supra, and is intended to give the Puritian Manufacturing Company and its agents authority and opportunity to detach from the contract the promissory note, which is so deftly and carefully concealed in the printed contract. The answer further alleges that the pretended note sued on was fraudulently and without the knowledge or consent of the store company detached from the remainder of the contract. The answer also sets up the entire contract. It is, moreover, charged that the contract was obtained by fraudulent means and by false and fraudulent representations, and that the detaching of the said note was without the consent of the defendant, and was done for the purpose of placing the said alleged note in the hands of an innocent person to be sued upon as a bona fide holder for value. This last allegation, however, is not as full and complete as should be to make the plea available.

It is very doubtful from what appears in the record whether the plaintiff Harrison, or his assignor, occupies the position of a holder for value in due course. There are many indications of fraud and deceit connected with this contract and note. The long printed paper looks quite innocent when examined as one agreement, but it presents quite a different aspect when the note is detached

words, used in the sense which is now attempted to be attributed to them, are not germane to the subject-matter expressed in the small type immediately preceding and immediately following the phrase, but so couched and surrounded the camouflage was complete, and the busy merchant whose signature was sought could not easily detect the snare.

Under the expression "the detachable agreement below" are several heavy black lines running entirely across the page. Between two of these lines are these words: "This agreement is subject to the conditions printed on the back hereof." Immediately under this is the following:

"Chicago, Ill., June 30th, 1910.
"Puritian Manufacturing Co.-Gentlemen:
mahogany finish, together with the advertising
Please ship the undersigned one Krause piano
matter and goods described above upon the
terms and conditions herein, and no others, all
of which I understand and approve.
"[Signed] J. B. Reid, Mgr.,
"By
"Puritian Manufacturing Co.,

"By L. H. Peyton, Salesman.
"Freight station:
"Express station:

State,

Next on the page is a dotted line also running entirely across the page. This line, however, is not perforated. Below this line is the promissory note above set forth. None of the printing on the back of the contract comes down far enough to interfere with the promissory note. In other words, the promissory note is blank on the back, while the balance of the back page is covered with

this action, the detachment was such a material change as to vitiate the whole, unless it falls within one of the exceptions above set forth. Moreover, the facts in this case, as disclosed by this record, make it extremely doubtful whether the Johnson County Savings Bank or Mr. Stouffer were innocent holders.

[3] The demurrer of defendant to the petition, as amended, should have been overruled by the trial court and the parties allowed to plead to an issue, and this should be done upon a return of the case. As holder of the note for collection Harrison was entitled to maintain the action, as has been held by this court in Harrison v. Pearcy & Coleman, 174 Ky. 485, 192 S. W. 513; Doherty v. First National Bank, 170 Ky. 813, 186 S. W. 937.

small printed matter. If the words "detach- I had authority to detach the paper sued on in able agreement below," intermingled with the other small type matter, can be interpreted to mean that the agreement following and below the phrase was detachable, and authorized the. Puritian Manufacturing Company, or its agents, to detach it, then the whole thereof including the order quoted above should have been detached along with the alleged promissory note. Clearly the contract as printed and signed by the Union Store Company was not negotiable, nor is that part, all taken together, below the expression "the detachable agreement below." As delivered to the agent of the Puritian Manufacturing Company the writing was a nonnegotiable instrument. If, as appears to be the fact, no mention was made of detaching the promissory note, then the act of the Puritian Manufacturing Company, or its agents, in sequestering that part of the writing was fraudulent and vitiated the whole contract even in the hands of an innocent purchaser, provided it is not found that the contract in its original form was so negligently prepared or executed by the Union Store Company as to render the fraud easy in the hands of a corrupt holder, or one so negligently prepared 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 the Union Store Company, who had been guilty of the negligence, instead of the innocent purchaser who had accepted the paper for value in good faith.

Judgment reversed for proceedings consistent with this opinion.

RUSSELL v. MCINTOSH.

(Court of Appeals of Kentucky. March 8, 1918.)

TLE.

Plaintiff in ejectment can recover only upon the strength of his own title, and not because 2. APPEAL AND ERROR 1052(8), 1068(3)—

of the weakness of defendant's title.

HARMLESS ERROR APPELLANT NOT ENTI-
TLED TO RECOVER.

but the court submitted the case to the jury
If defendant was entitled to directed verdict,
which found for defendant, plaintiff could not
complain of incompetent evidence nor of er-
roneous instructions.

[2] No doubt the Union Store Company's name was placed to the long printed contract with no thought that the paper, or some part thereof, was negotiable, or that the Puritian 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 pePlaintiff in ejectment may establish title by the hands of an innocent purchaser.

riod by himself, or those under whom he claims. 4. EJECTMENT 17 - PLAINTIFF'S RIGHT TO POSSESSION.

Plaintiff in ejectment may establish right to from which he was ousted by the defendant who possession by showing the peaceable possession was a mere intruder without color of title. 5. EJECTMENT 16-POSSESSION LESS THAN STATUTORY PERIOD.

There is a well-recognized rule that renders a maker of a paper liable to an innocent holder for value, even if the paper has undergone a material change, or has been detached from a collateral agreement if the maker of the paper, through his negligence or carelessness, placed the fraud within easy reach of a subsequent 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 possession. The facts in this case, however, do not appear to bring it within this rule. Whether 6. ADVERSE POSSESSION 14-ACTUAL Posthere was such negligence on the part of the maker as to rest the burden upon him is a question of fact for the determination of a jury. Another rule quite as potent as the foregoing is that where a writing after a delivery is materially changed or altered by a detachment of a material part thereof, without the knowledge or consent of the maker, the whole thereof is rendered unenforceable, even in the hands of an innocent purchaser. Unless the Puritian Manufacturing Company Possession.]

SESSION.

Adverse possession must necessarily be an actual possession.

7. ADVERSE POSSESSION

100(1) — EXTENT OF POSSESSION-ACTUAL POSSESSION." One in the occupancy of a tract of land with the intent to claim and hold it to the extent of the boundaries of the instrument under which he holds is in actual possession of all to the extent that it is not actually held by some other person.

and Phrases, First and Second Series, Actual [Ed. Note.-For other definitions, see Words

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

8. ADVERSE POSSESSION 100(3)-EXTENT. Where one claiming by adverse possession had no pedis possessio in time sufficient to create title, the only way by which he could establish adverse possession was to show that the papers under which he claimed actually embraced the land and that either he or his predecessor had possession with the intent to hold

to the boundaries of the deed.

I reply. A trial of the issues being had before the court and a jury, the jury found a verdict in favor of the defendant; but upon the motion, of plaintiff the verdict was set aside and a new trial granted. Thereafter another trial of the action was had, which resulted in the jury finding a verdict in favor of the defendant again, and a judgment of the court dismissing the plaintiff's petiWhere 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

9. ADVERSE POSSESSION 112- Burden of PROOF.

tions.

10. ADVERSE POSSESSION

103-NATURE OF OCCUPANCY-EXCEPTIONS IN DEEDS. If land in controversy was embraced within exceptions from the deeds under which the parties claimed, possession of part of their boundaries by tenants intending to hold the entire boundary could not confer possession of the land in controversy. 11. ADVERSE POSSESSION -SUFFICIENCY.

114(1)—EVIDENCE

Evidence held insufficient to establish title by adverse possession.

12. LANDLORD AND TENANT 61-ADVERSE POSSESSION-RIGHT OF TENANT.

in permitting the defendant to read in evidence a deed from R. A. Mason and others to Calvin McKnight, dated in the year 1887, and which embraced the lands in controversy, and under which the defendant claimed title and possession, and for the further reason that the court gave an instruction permitting the jury to find for defendant because of adverse possession. At the conclu sion of the evidence for the plaintiff, upon the trial, and at the conclusion of all the evidence, the defendant moved the court to direct a verdict in his favor, and he now insists that the judgment ought to be affirmed, because the plaintiff failed, upon the trial, 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 aside, and a new trial resulted in a dismissal of the plaintiff's petition, and he appeals.

If defendant's remote ancestor entered on the land as a tenant of the owner, agreeing to purchase it from him later, and such owner granted it to plaintiff's remote ancestor, defendant's remote ancestor and likewise defendant were estopped to question plaintiff's title.

Affirmed.

C. F. Spencer, of Winchester, for appellant. W. A. Stanfill, of Hyden, Faulkner & Faulkner, of Hazard, and John D. Atkinson, of Stanton, for appellee.

HURT, J. This was an action in ejectment by the appellant, F. B. Russell, in which he sought to recover from the appellee, Simpson McIntosh, a small tract of land, containing between nine and ten acres, in Powell county. The appellant, who was the plaintiff below, alleged that he was the owner and had a legal title to the land, and that the appellee, who was the defendant below, had wrongfully taken possession of the land and was withholding the possession from him. The answer put the legal title and the right to the possession squarely in issue. The defendant, furthermore, alleged in his answer that he was the owner and held the legal title to the premises sued for, and that he and those under whom he claimed had been in the continuous, peaceable, and adverse possession of it, claiming it as their own, to a well defined and marked boundary, for more than 15 years before the institution of the action. The affirmative averments, in the answer, were denied by a

must always recover, if he recovers at all, upon the strength of his own title, that is, upon the showing of his right to the possession of the lands sued for, and not because of any want of right in the defendant to the possession, and hence, if the plaintiff fails to manifest a right to the possession, the defendant was entitled to a directed verdict in his favor, but if, the court having denied that to the defendant and submitted the plaintiff's right of recovery to the jury, which found such a verdict, under the instructions given, as the court should have directed in favor of the defendant, the plaintiff would have no cause of complaint because of incompetent evidence received for the defendant nor because of erroneous instructions given.

In an action in ejectment, the possession of the land is the chief thing sought; but the plaintiff must, in some proper way, manifest his right to the possession, the burden is upon him to do so, and if he fails to do so he must necessarily lose, because, if he has not the right to the possession, it is a matter of indifference to him, as to who does have the possession.

[3] The plaintiff, in such action, may prove his right to possession by showing that he is the owner of the legal title, and that the possession is wrongfully being withheld from him. He may show that he is the holder of

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

verse possession. The evidence offered by plaintiff, in the way of writings, deeds, and conveyances, to show legal title in himself, fails to prove that the plaintiff has a legal title to the land sued for, when considered by themselves. He does not show any connected chain of title from himself to the com

the legal title by putting in evidence a connected chain of conveyances from the commonwealth of Kentucky down to himself, and, where the property passes by inheritance, to prove that fact; or he may prove his legal title by showing an adverse possession of the property by himself, and those under whom he claims, for the statutory pe-monwealth of Kentucky nor to any title holdriod. Shutt v. Travis, Sneed Ky. Dec. 307; Anderson v. Turner, 3 A. K. Marsh. 134; Vaughn v. Mills, 18 B. Mon. 634; Bailey v. Tygart, 10 S. W. 234, 10 Ky. Law Rep. 676; Green v. Wilson, 2 S. W. 564, 8 Ky. Law Rep. 601; Davis v. Justice, 1 S. W. 588, 8 Ky. Law Rep. 258; Ratcliff v. Elam, 21 S. W. 352, 14 Ky. Law Rep. 772; Howard v. Singleton, 94 Ky. 336, 22 S. W. 337, 15 Ky. Law Rep. 309; Hamilton v. Hamilton, 29 S. W. 876, 16 Ky. Law Rep. 793; Ray v. Sweeney, 14 Bush, 1, 29 Am. Rep. 388; Chism v. Trent, 10 S. W. 648, 10 Ky. Law Rep. 849; Sutton v. Pollard, 96 Ky. 640, 29 S. W. 637, 16 Ky. Law Rep. 685; Warmoth v. Fitchen, 6 Ky. Law Rep. 584; Taylor v. Arnold, 17 S. W. 361, 13 Ky. Law Rep. 516; 9 R. C. L. 853; Taylor v. Buckner, 2 A. K. Marsh. 18, 12 Am. Dec. 354; Peters v. Allison, 1 B. Mon. 232, 36 Am. Dec. 574.

[4, 5] The plaintiff in ejectment may also show his right to possession by proving that he was in the peaceable possession of the property and was ousted therefrom by the defendant, who was a mere intruder and trespasser, without color of title to the property. The plaintiff may, under such circumstances, succeed, although he shows only a bare possession and less, in point of time, than the statutory period; as, where the defendant is utterly without right or title, the law presumes some right in the one already in possession. Ratcliff v. Bellfonte Iron Works, 87 Ky. 559, 10 S. W. 365, 10 Ky. Law Rep. 643; Sowders v. McMillan, 4 Dana, 462; Fowke v. Darnall, 5 Litt. 317; Myers v. McMillan, 4 Dana, 485; Pollit v. Bland, 22 S. W. 842, 15 Ky. Law Rep. 227; Young v. Cox, 14 S. W. 348, 12 Ky. Law Rep. 347; Asher v. McCarty, 2 Ky. Law Rep. 218; McLawrin v. Salmons, 11 B. Mon. 96, 52 Am. Dec. 563.

er, common, as a vendor, to himself and the defendant. Hence his legal title, if any he has, must arise entirely from an adverse possession of the land in controversy for the statutory period. There being no pedis possessio, as heretofore shown, of a sufficient length of time to create title in any of the predecessors in title of plaintiff, the only way in which he could become the owner by adverse possession of the property would be to show that the title papers under which he claims the land actually embraces it, and that the title paper of his predecessors likewise did so, and that either he or his predecessor in title had actual possession of the lands embraced by his deed, by occupying it himself or by tenants, with the intent to possess and hold the land to the boundaries of his or their deeds. An adverse possession must necessarily be an actual possession, and one in the occupancy of a tract of land with the intent to claim and hold it to the extent of the boundaries of the instrument, under which he holds it, is in the actual possession of it all to the extent that it is not actually held by some other person.

[9] So it becomes necessary to determine, in the present instance, from the evidence, that the land in controversy is actually embraced by the title paper under which appellant holds before he could possibly be either the owner of the property or have actual possession of it. The land is situated about one mile from the old Estill Furnace. There was read in the evidence a contract between certain parties, who, in the year 1849, agreed that all of the lands within four miles of the Estill Furnace should be the property or should be for the special use and benefit of certain parties, unless such parties should sell lands below the mountain on the Hardwick 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

« ÀÌÀü°è¼Ó »