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assess the fine at the time they find the fact, if they think the fine should be more than $50.00." It was held in France v. State, 6 Baxt. 478, that the foregoing provision of the Constitution had no application to fines exceed ing $50, where the Legislature had prescribed a fine of more than that amount, to wit, $500, and in the application of which the court had no discretion. The court said in that case that neither the court nor the jury had anything to do in assessing the fine, inasmuch as the law fixed $500 as a flat penalty, and as a consequence of the verdict.

In the case of Metzner v. State, 128 Tenn. 45, 157 S. W. 69, it was said that the provision of the Constitution under consideration "withholds from the court or judge the right to inflict fines exceeding $50, and confers upon the jury exclusive power or jurisdiction to impose fines above that sum." That case also holds that inflicting fines exceeding $50 is "a matter of jurisdiction." In Metzner v. State, the statute authorized a fine of not less than $50 nor more than $500. In France v. State, the statute imposed a fine of $500. In this case the statute fixes the fine at not less than $100 nor more than $500. So this case is not exactly within the facts of either of the cases referred to. However, the principle recognized in both France v. State and Metzner v. State is that, if the offense of which the defendant is convicted is to be punished by fine which may exceed $50 at the discretion of the court and jury, the constitutional provision referred to requires that the jury must assess the fine, if the offense merits more than $50. In France v. State, the majority of the court seem to consider that the fine prescribed in the statute under consideration there was a legislative sentence against all who might be convicted of violating that law. But see State v. Fleming, 7 Humph. 152, 46 Am. Dec. 73. It was said in the France Case that this provision of the Constitution "refers to cases where the court has a discretion in fixing the amount of the fine."

[2] It cannot be doubted that the amount of the fine to be imposed upon the plaintiff in error, within the minimum and maximum limits prescribed by the Legislature, is within the discretion of the court and jury, and the case would be controlled by the principles upon that subject stated in Metzner v. State, and evidently recognized in France v. State. However, the trial judge, in fixing the fine, fixed it at the minimum sum of $100. This is the least sum that the jury could have imposed upon plaintiff in error had the ques

tion of the amount of the fine to be inflicted been submitted to a jury. While it was error for the court to assess the fine without submitting the question of its amount to the jury, it is not reversible error, because he exercised his assumed power for the benefit of the plaintiff in error.

We cannot reduce the fine to the sum of

$50, because the Legislature has fixed the minimum fine at $100. It would be useless to reverse and remand the case, with direcof the fine to a jury, because the jury could tions to submit the question of the amount not reduce it to less than $100. This assign

ment of error is overruled.

[3] It is next assigned as error that the trial judge erred in overruling the motion in arrest of judgment. The point made is that the indictment fails to charge that the initial point from which the plaintiff in error started with his cargo of intoxicating liquors was beyond the limits of Tipton county. The language of the indictment is: "From one point or county in this state to Tipton county." We think this criticism is cured by the verdict. The proof shows definitely the initial point at which plaintiff in error received his cargo of intoxicants to have been in Shelby county, and that he carried the whisky from Shelby county into Tipton county. Thus the uncertainty of the indictment is made certain by the proof, and the motion in arrest was properly overruled. Judgment affirmed.

tingent interest that he had in the land beBANK OF TAYLORSVILLE et al. v. VAN- came fixed and certain as of the date of his father's death, and passed under his father's will.

DYKE et al.

(Court of Appeals of Kentucky. June 19,

1914.)

WILLS ($ 686*)-INTEREST OF DEVISEE
TINGENT REMAINDER.

CON

Under a devise of real property in trust for the support of the trustee's wife and children, he to have the control of the property for such purpose, and at his death the trust to end and the property to descend to his heirs per stirpes, the death of one of the trustee's sons before him terminated the son's contingent interest in the estate.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1631-1637; Dec. Dig. § 686.*]

Petition for modification of opinion. Petition overruled.

For former opinion, see 166 S. W. 1024.

PER CURIAM. Counsel for appellants, in a petition for a rehearing, direct the attention of the court to an error of fact in the opinion where it is stated that at the time the deed was made by the assignee to George Vandyke that John Vandyke had a onefourth, not a one-fifth interest in the land, due to the fact that Wade Vandyke had died before the deed was made. In truth, Wade Vandyke died after the deed was made, and not, as stated in the opinion, before it was made. It is now argued that, as Wade Vandyke died after the deed was made, upon the death of Wade, his interest fell to the four surviving children, John acquiring a one-twentieth, which it is claimed may be subjected to the payment of the appellants' debts.

The petition for a modification of the opin-, ion is overruled.

BASSETT v. LUSH.

(Court of Appeals of Kentucky. June 19, 1914.)

On rehearing. Denied.

For former opinion, see 156 Ky. 490, 161 S. W. 227.

TURNER, J. By reason of a confused state of this record it was inadvertently and erroneously stated in the opinion (156 Ky. 490, 161 S. W. 227) that appellant claimed that appellee's deed from Collard did not embrace the land in controversy, but conceded that same was embraced in the deeds from Jarboe to Simms, and from Simms on down to Collard. On the contrary, as pointed out in the petition for rehearing, it is conceded that appellee's deed to Collard does embrace the land in controversy, and it is claimed that the prior deeds do not embrace it.

The deed from Collard to appellee, dated December 4, 1909, refers to the land therein conveyed as "being the land conveyed to first parties by J. R. Layman and wife by deed dated 13th of May, 1898, which is duly recorded in Deed Book G, page 300, etc.," and it is conceded in the petition for rehearing that the land described in the deed thus referred to in appellee's deed does embrace the The error of fact in the opinion is not at land in controversy. It must be admitted all a material one. It did not make any dif- that there is some material difference in the ference whether Wade died before the deed calls of the deed from Collard to appellee and was made or afterwards. When Wade died, in the deeds from Jarboe to Simms and Laythat terminated his contingent interest in the man to Collard; but it would seem to be conestate. He did not leave any interest that clusive, from the reference in the Collard could or did descend to any person, and, deed to the description in the Layman deed, this being so, of course John Vandyke did that it was intended in the older deeds to not inherit from him anything. All the in- convey the same land, and that the mistake, terest that John Vandyke had in the land if any, in either conveyance, was in the prior came to him by the will of his grandfather, deeds; for the evidence discloses by the and all this interest, whatever it might be, daughter of Kennison, who formerly occuhe conveyed to his assignee, and the assignee pied the land, that her father, who claimed conveyed to George Vandyke. John Vandyke under Layman, claimed to the Joe Grant survived George Vandyke, and therefore up- line, and it is in evidence by Collard, who on the death of George Vandyke all the in- purchased from Kennison, but took a deed terest that George Vandyke had acquired directly from Layman, that while he (Colby virtue of the deed of the assignee passed lard) occupied the land he claimed to the under his will to the devisees named there- Grant line, and that Kennison had previously in. The interest that John Vandyke conveyed cultivated land within what is now the disto the assignee related to and covered what- | puted boundary, and that he (Collard) had ever interest he might have when his father cleared additional land within that interferdied, if his father died before he did. If ence while he occupied it. John had died before his father, his father, While it is apparent that the land in conas purchaser from the assignee, would not troversy is within the exterior lines of appelhave taken anything by virtue of the as- lant's deed, it is equally apparent that he signee's deed, because John's interest de- knew this interference was in the possession pended entirely upon his survival of his of another when he bought the land, and that father. Having survived his father, the con- he did not pay for the acreage embraced in

this interference, but said that he intended | ceedings, or that its claim for the taxes was to get it if he could. therein adjudicated.

[Ed. Note. For other cases, see Bankruptcy,

No injustice has been done appellant, and Cent. Dig. §§ 372-379; Dec. Dig. § 268.*] the petition is overruled.

BOREING et al. v. MELCON et al.

(Court of Appeals of Kentucky. June 19, 1914.) On petition for rehearing. Former opinion (159 Ky. 14, 166 S. W. 612) modified, and petition overruled.

HANNAH, J. Upon petition for rehearing, it is said by appellant that the first tract mentioned in the petition in the Harlan circuit court was not devised under the will of Vincent Boreing, but that his heirs acquired it by purchase after his death; and we are asked to modify the opinion herein delivered (159 Ky. 14, 166 S. W. 612) in so far as it refers to tract No. 1 in the petition described.

The petition does not disclose in what manner title to the tracts sought to be sold was derived by the heirs of Vincent Boreing; but the will of said Boreing is set out in the petition filed in the action instituted in the Laurel circuit court (copied in answer of guardian ad litem herein), and it is therein alleged that the lands therein described, consisting of more than 50 separate tracts (the second tract described in the petition in the Harlan circuit court being one of them), were all devised under the will of Vincent Boreing. Upon a comparison of the description of tract No. 1 as set out in the petition filed in the Harlan circuit court with the descriptions of the 50-odd tracts set out in the petition filed in the Laurel circuit court, we find that this tract is probably not included therein, and that there is nothing in the record to show in what manner the heirs of Vincent Boreing did derive title to tract No. 1 as set out and described in the petition filed in the Harlan circuit court.

As that part of the opinion herein delivered, having reference to the want of jurisdiction upon the part of the Harlan circuit court to order a sale of tract No. 1 in the petition described, was unnecessary to the decision of the questions raised by appellant upon this appeal, that part of the opinion is withdrawn, and the opinion modified to that extent.

The petition for rehearing is overruled.

CITIZENS' SAVINGS BANK OF PADU

CAH v. CITY OF PADUCAH. (Court of Appeals of Kentucky. June 19, 1914.) 1. BANKRUPTCY (§ 268*)-LIEN OF TAXES.

The purchaser at a sale in bankruptcy proceedings of property on which a city had a lien for taxes takes it subject to the lien; the sale not having been free of tax liens, and the city not having had notice of the bankruptcy pro

2. BANKRUPTCY (§ 268*)-SALES-PAYMENT OF TAXES.

Though Bankr. Act July 1, 1898, c. 541, § 64a, 30 Stat. 563 (U. S. Comp. St. 1901, p. 3447), provides that the court shall order the of dividends to creditors, and that he, on filing trustee to pay all taxes in advance of payment therewith, the purchaser of land on which is receipts for such payment, shall be credited the lien of taxes may not complain of their not being paid by the trustee; he having no funds, and deriving none from the sale.

Cent. Dig. §§ 372-379; Dec. Dig. § 268.*] [Ed. Note. For other cases, see Bankruptcy,

Appeal from Circuit Court, McCracken County.

Action by the City of Paducah against the Citizens' Savings Bank of Paducah to enforce a lien for taxes. Judgment for plaintiff, and defendant appeals. Affirmed.

J. D. Mocquot, of Paducah, for appellant. Bradshaw & Bradshaw, of Paducah, for appellee.

CLAY, C. The Paducah Glass Company, a corporation, was adjudged a bankrupt. Prior to the bankruptcy, it had mortgaged its property to the Citizens' Savings Bank for a sum in excess of its value. The city of Paducah likewise had a lien on the same property for taxes due for 1908. This lien was prior to the mortgage lien of the bank. On petition of the trustee in bankruptcy, a sale of the property of the bankrupt was ordered. The bank purchased the property. Before acquiring a deed, it was compelled to pay certain costs incurred in the bankruptcy proceeding.

The city of Paducah instituted this action against the purchaser, Citizens' Savings Bank, to enforce its lien for taxes. On final hearing there was a judgment in favor of the city for the amount sued for, and the bank appeals.

Section 64a of the Bankruptcy Act provides, in part, as follows:

"The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, state, county, district, or municipality in advance of the payment of dividends to creditors, and upon filing the receipts of the proper public officers for such payment he shall be credited with the amount thereof, and in case any question arises as to the amount or legality of any such tax the same shall be heard and determined by the court."

[1, 2] For the bank it is insisted that the City of Paducah is now estopped from asserting any claim against it or its property for taxes due by the bankrupt, by its failure to assert a claim for taxes in the bankrupt court, and by reason of the failure of the court to make an order directing the trustee to pay the taxes. In the present case the order is silent as to how the property was sold, whether free of liens or subject to liens.

It is well settled that a court of bankruptcy, including the referee, has authority to direct a sale of property by the trustee in bankruptcy free and clear of all liens and incumbrances, in which event the liens are transferred to the proceeds according to their priority. In re Worland (D. C.) 1 Am. Bankr. Rep. 450, 92 Fed. 893; McNair v. McIntyre, 113 Fed. 113, 51 C. C. A. 89; Brandenburg on Bankruptcy, § 1195. However, it is well settled that a trustee should not be required to sell any portion of the estate, where the appraisers' return shows it to be so heavily incumbered with valid liens that nothing can be realized for the unsecured creditors. In re Cogley (D. C.) 107 Fed. 73, 5 Am. Bankr. Rep. 731. It is further held that a sale free of liens does not affect a lien in the nature of a tax assessment against the property, but in such a case the trustee should protect the purchaser by providing for the payment of the taxes. In re Keller (D. C.) 109 Fed. 131, 6 Am. Bankr. Rep. 351.

In the present case there was no sale free of tax liens. It is further shown that the trustee had on hand no assets, and acquired by virtue of the sale no assets, out of which he could pay the taxes. For failing to provide for the payment of the taxes under these circumstances, neither the court nor the trustee can be blamed. The property not being sold free of tax liens, the purchaser acquired it subject to the tax lien in question. If the trustee had any assets out of which to pay the taxes, the purchaser might require that this be done. Here the trustee could not pay the taxes unless the purchaser furnished the money. The purchaser is therefore in no position to complain of the fact that the taxes were not paid by the trustee. Whether the purchaser furnished the money to the trustee in the first instance, or is now required to pay the taxes, the result is the same. It does not appear that the city had notice of the bankruptcy proceeding, or that its claim for taxes was therein adjudicated; hence it is in no wise concluded by the bankruptcy proceeding. Judgment affirmed.

MELCHER v. YAGER'S GUARDIAN.

two or more persons, may be sold in an action brought by either of them, though either be a ed the estate is in possession and the property person of unsound mind or an infant, providcannot be divided without materially impairing its value, where the petition neither alleged that the infant wards were in possession of the land nor that it could not be divided without materially impairing its value, and the judgment did not provide that a lien should be retained on the land until the guardian_should execute the bond required by section 497. [Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 82, 83, 97; Dec. Dig. § 37.*]

3. INFANTS (§ 37*) SALE OF LANDS PROCEEDINGS-POWER OF CHANCELLOR.

The chancellor is specially charged with the protection of infants and their real estate, and, having no inherent power to order a sale, he should deny a sale, unless all of the provisions of the statute are carefully followed.

[Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 82, 83, 97; Dec. Dig. § 37.*] Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Proceeding by W. J. Yager's guardian for the sale of land. From a judgment overruling exceptions by the purchaser, L. Melcher, to the sale, he appeals. Judgment reversed, with directions to sustain exceptions and set aside sale.

E. L. McDonald, of Louisville, for appellant. George Cary Tabb and Ray Mann, both of Louisville, for appellee.

TURNER, J. This is an action by the guardian of the two infant appellees, W. J. Yager and Houston Yager, for the sale of a house and lot, jointly owned by them in the city of Louisville, for the purposes of reinvestment of the proceeds.

It is apparent that the action was originally instituted under the provisions of subsection 5 of section 489 of the Civil Code, authorizing such procedure. But the bond required under section 493 of the Code to be executed before such a sale is ordered, and expressly providing (subsection 3) that any sale or conveyance so made without the execution of such bond shall be void, was not complied with, and it is therefore perfectly clear, and is conceded, that the sale cannot be upheld under the provisions of that section.

The appellant became the purchaser and filed exceptions to the sale upon the ground

(Court of Appeals of Kentucky. June 19, 1914.) that it was void because of the failure to exe

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cute such a bond; but the lower court, as we gather from the record and the briefs, was of opinion that the sale was a valid onę, under the provisions of subsection 2 of section 490 of the Civil Code, which is as follows, to wit:

"A vested estate in real property jointly owned by two or more persons may be sold by order of a court of equity, in an action brought by either of them, though the plaintiff or defendant be of unsound mind or an infant. If the estate be in possession and the property cannot be divided without materially impairing its value, or the value of the plaintiff's interest therein."

this interference, but said that he intended | ceedings, or that its claim for the taxes was to get it if he could. therein adjudicated.

No injustice has been done appellant, and Cent. Dig. §§ 372-379; Dec. Dig. § 268.*] [Ed. Note. For other cases, see Bankruptcy, 2. BANKRUPTCY (§ 268*)—SALES-PAYMENT OF TAXES.

the petition is overruled.

BOREING et al. v. MELCON et al. (Court of Appeals of Kentucky. June 19, 1914.) On petition for rehearing. Former opinion (159 Ky. 14, 166 S. W. 612) modified, and petition overruled.

The petition for rehearing is overruled.

Though Bankr. Act July 1, 1898, c. 541, § 64a, 30 Stat. 563 (U. S. Comp. St. 1901, p. 3447), provides that the court shall order the trustee to pay all taxes in advance of payment of dividends to creditors, and that he, on filing therewith, the purchaser of land on which is receipts for such payment, shall be credited the lien of taxes may not complain of their not being paid by the trustee; he having no funds, and deriving none from the sale.

Cent. Dig. §§ 372-379; Dec. Dig. § 268.*] [Ed. Note. For other cases, see Bankruptcy,

Appeal from Circuit Court, McCracken County.

Action by the City of Paducah against the Citizens' Savings Bank of Paducah to enforce a lien for taxes. Judgment for plaintiff, and defendant appeals. Affirmed.

J. D. Mocquot, of Paducah, for appellant. Bradshaw & Bradshaw, of Paducah, for appellee.

The city of Paducah instituted this action against the purchaser, Citizens' Savings Bark, to enforce its lien for taxes. On final bearing there was a judgment in favor of the city for the amount sued for, and the bark appeals.

Section 64a of the Bankruptcy Act provides, in part, as follows:

"The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, state, county, district, dividends to creditors, and upon filing the reor municipality in advance of the payment of ceipts of the proper public officers for such payment he shall be credited with the amount thereof, and in case any question arises as to the amount or legality of any such tax the same shall be heard and determined by the court."

[1, 2] For the bank it is insisted that the

CITIZENS' SAVINGS BANK OF PADU- City of Paducah is now estopped from assert

CAH v. CITY OF PADUCAH. (Court of Appeals of Kentucky. June 19, 1914.) 1. BANKRUPTCY (§ 268*)-LIEN OF TAXES.

ing any claim against it or its property for taxes due by the bankrupt, by its failure to assert a claim for taxes in the bankrupt court, and by reason of the failure of the court to make an order directing the trustee to pay the taxes. In the present case the order is silent as to how the property was sold, whether free of liens or subject to liens.

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