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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 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.

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

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 ap pellee.

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 CLAY, C. The Paducah Glass Company, the will of said Boreing is set out in the pe- a corporation, was adjudged a bankrupt. tition filed in the action instituted in the Prior to the bankruptcy, it had mortgaged Laurel circuit court (copied in answer of its property to the Citizens' Savings Bank guardian ad litem herein), and it is therein for a sum in excess of its value. The city alleged that the lands therein described, con- of Paducah likewise had a lien on the same sisting of more than 50 separate tracts (the property for taxes due for 1908. This Hen second tract described in the petition in the was prior to the mortgage lien of the bank. Harlan circuit court being one of them), were | On petition of the trustee in bankruptcy, a all devised under the will of Vincent Boreing. sale of the property of the bankrupt was orUpon a comparison of the description of dered. The bank purchased the property. tract No. 1 as set out in the petition filed in Before acquiring a deed, it was compelled the Harlan circuit court with the descrip- to pay certain costs incurred in the banktions of the 50-odd tracts set out in the peti- ruptcy proceeding. tion 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.

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 bank appeals.

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.

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

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."

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

[1, 2] For the bank it is insisted that the CITIZENS' SAVINGS BANK OF PADU- 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.

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

It is well settled that a court of bankruptcy, two or more persons, may be sold in an action including the referee, has authority to direct brought by either of them, though either be a a sale of property by the trustee in bank-person of unsound mind or an infant, provided the estate is in possession and the property ruptcy free and clear of all liens and incum- cannot be divided without materially impairing brances, in which event the liens are trans- its value, where the petition neither alleged ferred to the proceeds according to their that the infant wards were in possession of the land nor that it could not be divided without priority. In re Worland (D. C.) 1 Am. Bankr. materially impairing its value, and the judg Rep. 450, 92 Fed. 893; McNair v. McIntyre, ment did not provide that a lien should be re113 Fed. 113, 51 C. C. A. 89; Brandenburg tained on the land until the guardian_should on Bankruptcy, § 1195. However, it is well execute the bond required by section 497. 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.

[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.

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.

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

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

MELCHER v. YAGER'S GUARDIAN.

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

1. INFANTS (§ 37*) PROPERTY POWER OF
COURTS.
The courts have no inherent power to or-
der the sale of an infant's real estate.

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 sec-

[Ed. Note. For other cases, see Infants, Cent. tion 490 of the Civil Code, which is as folDig. §§ 82, 83, 97; Dec. Dig. § 37.*]

2. INFANTS (§ 37*)-SALE OF LAND-REGULAR

ITY.

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.

lows, to wit:

Where a proceeding by a guardian for sale for reinvestment of the property of his infant wards could not be sustained under Civ. Code Prac. 489, because he had not given the bond required by section 493, it could not be sustained under section 490, subsec. 2, providing that a vested estate in real property, owned by

"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."

The court overuled the exceptions and confirmed the sale, and, from that judgment, this appeal is prosecuted by the purchaser.

After the sale, and before the exceptions were filed and acted upon, the guardian executed a bond under the provisions of section 497 of the Civil Code.

[1, 2] The courts have no inherent power to order the sale of infant's real estate; such authority comes exclusively from the statutes; and in such proceedings the method pointed out by the statute must be followed.

In this case there is no allegation in the petition either that the infant defendants are in possession of the land or that the same I cannot be divided between them without materially impairing its value, and both of these allegations are necessary to authorize a sale under the provisions of subsection 2 of section 490, nor is there any evidence against these infants showing the indivisibility. Not only so, but the judgment of sale in this case does not provide that a lien is retained on the land ordered to be sold until the infants became of age, or until their guardian shall execute the required bond, as required by section 497.

[3] The chancellor is specially charged with the protection of infants and their real estate, and, having no inherent power to order a sale thereof, it is his particular duty to see that all the requirements of the stat

utes are followed.

The judgment is reversed, with directions to sustain the exceptions and set aside the

sale.

eign life insurance company, admitted to do business in the state, and procuring contracts of insurance before and after June 15, 1906, the date of the taking effect of section 4226, is liable for the tax on premiums thereafter collected on policies procured prior to June 15, 1906, as well as after that date.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 207; Dec. Dig. § 113.*]

3. TAXATION (§ 113*)-INSURANCE COMPANIES -TAXES ON PREMIUMS-STATUTES - VALIDITY.

A foreign life insurance company, having been admitted to do business in the state, and having effected contracts of insurance within the state, cannot, by its subsequent withdrawal from the state, escape liability for the tax on renewal premiums collected by it after withdrawal on contracts of insurance effected by it when doing business in the state.

Ky. St. 1909, §§ 4226. 4230a, imposing a tax on premiums collected by life insurance companies, though they withdraw from the

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 291; Dec. Dig. § 168.*]

state, are valid.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 207; Dec. Dig. § 113.*]

HANNAH, J. The commonwealth of Ken

tucky, by H. M. Bosworth, its auditor of public accounts, instituted this action in the ton Life Insurance Company, alleging that Franklin circuit court against the Washingthe defendant company, under license and authority to do business in this state grant

There has been in this case no substantial compliance with the provisions of the statute, and it is apparent that the sale is now attempted to be upheid under the provisions of a section of the Code which was not ined upon application to the insurance commissioner, effected contracts of life insurance therein until the year 1908, when it voluntarily withdrew from the state; that it filed with the auditor of public accounts for deposit in

mind when the petition was drawn or the proceedings had.

the insurance department the statement required by law of the amount of premiums collected by it during the year 1908, and paid into the state treasury the tax thereon.

Appeal from Circuit Court, Franklin County.

Action by the Commonwealth of Kentucky, by H. M. Bosworth, Auditor of Public Accounts, against the Washington Life Insurance Company. From a judgment of dismissal, plaintiff appeals. Reversed.

James Garnett, Atty. Gen., C. R. McDowell, of Danville, and John A. Judy, of Mt. Sterling, for appellant. J. C. W. Beckham, of Frankfort, and Frank Ewing, of Pittsburgh, Pa., for appellee.

COMMONWEALTH, by BOSWORTH, Audi-
tor, v. WASHINGTON LIFE INS. CO.
(Court of Appeals of Kentucky. June 19, 1914.)

1. TAXATION (§ 168*)-LIFE INSURANCE COM-pany reinsured the business of defendant
PANIES TAXES ON PREMIUMS COLLECTED company) collected premiums upon the poli-
WITHDRAWAL FROM STATE.
cies which had been written by defendant
company when it was effecting contracts of
insurance in the state, amounting to at least
$49,000; that defendant company had failed
and refused to file the statement thereof as
required by law, and to pay the 2 per cent.
tax thereon.

It was further alleged that during the year 1909 defendant company or the Pittsburgh Life & Trust Company (which com

Plaintiff prayed that defendant company be required to answer and disclose the exact amount of the premiums so received by it or the Pittsburgh Life & Trust Company during the year 1909 upon policies of insurance effected by defendant company when it was effecting insurance within the state, or that, upon failure of defendant company so to do, it might have judgment against defendant in

2. TAXATION (§ 113*)-LIFE INSURANCE COмPANIES TAXES ON PREMIUMS COLLECTED WITHDRAWAL FROM STATE.

Under Ky. St. 1909, § 4226, imposing a tax on premiums collected by life insurance companies, originally enacted as a part of the revenue law of 1902, and virtually in the same form as a part of the revenue law of 1892, carried into Ky. St. 1899, as section 4227, a for

the sum of $980, being 2 per cent. on $49,000, the alleged total of the premiums so received.

Defendant company filed a demurrer and an answer to the petition, and, the cause being submitted upon plaintiff's demurrer to each paragraph of the answer, the court overruled the said demurrer, and sustained defendant's demurrer to the petition. Plaintiff declining to plead further, the petition was dismissed, and, of that ruling, plaintiff complains upon this appeal.

[1] It is proper to say that the judgment appealed from was rendered by the circuit court prior to the decision by this court of the case of the Commonwealth v. Provident Savings Life Assurance Society, 155 Ky. 197, 159 S. W. 698. In that case it was held that a foreign life insurance company, having been admitted to do business in this state, and having here effected contracts of insurance, cannot, by its subsequent withdrawal from the state, escape liability for the tax

upon renewal premiums collected by it after such withdrawal, upon contracts of insurance effected by it when it was effecting insurance contracts in the state. Upon the authority of that case, the demurrer to the petition should have been overruled, and, as the first paragraph of the answer was a mere denial of defendant company's duty to file the statement and pay the tax sought to be recovered, the demurrer to that paragraph of the answer should likewise have been sustained.

The demurrer should have been sustained to this paragraph of the answer also. tion 4226, Kentucky Statutes, under which the recovery herein is sought, in its present form was originally enacted as a part of the Revenue Law of 1902, and it appears in virtually the same form as a part of the Revenue Law of November 11, 1892 (Acts 1891-93, c. 103, art. 11, § 6), being later carried into Kentucky Statutes 1899 as section 4227.

RUST et al. v. CARPENTER.
(Court of Appeals of Kentucky. June 19, 1914.)
EXECUTORS AND ADMINISTRATORS (§ 453*)
ACTIONS JUDGMENT AGAINST ADMINISTRA-
TOR.

Where the vendors of land brought suit upon a note given for the purchase price, in which the payee of the note joined as party plaintiff, and pending the appeal one of the vendors died, and the payee was substituted as his adminisance due because of a deficiency in the quantrator. a judgment for the purchaser for baltity of the land should be rendered against the payee only in his capacity as administrator.

[Ed. Note.-For other cases, see Executors and Administrátors, Cent. Dig. §§ 1884–1908; Dec. Dig. § 453.*]

[3] 3. As to paragraphs 3, 4, 5, and 6 of the answer, which are directed to the denial of the constitutionality of sections 4226 and 4230a, Kentucky Statutes, these matters were concluded by the case of the Commonwealth v. Provident Savings Life Assurance Society, supra. The demurrer to these paragraphs of the answer should also have been sustained. Judgment reversed.

On petition for rehearing. Former opinion modified, and petition for rehearing over,

ruled.

For former opinion, see 158 Ky. 672, 166 S. W. 180.

SETTLE, J. So much of the opinion herein (158 Ky. 672, 166 S. W. 180) as directs that, upon the return of the cause to the circuit court, judgment be entered in appellee's favor against appellants for $115.55 is modified to the extent of directing that such judg ment as to the appellant Will Rust go against him as administrator of the estate of Jake Rust, deceased, execution thereon to be levied of the assets of the estate in his hands unadministered.

HEINE.

[2] 2. By the second paragraph of the answer, defendant company alleged that of the sum collected by it as premiums during 1909, OHIO VALLEY COAL & MINING CO. v. or rather by the Pittsburgh Life & Trust Company, only $586.15 was premiums upon insurance contracts effected by it in Kentucky after June 15, 1906, and that the act under which the recovery herein is sought became effective on June 15, 1906, and that the plaintiff had no right to recover any tax upon the premiums collected upon policies effected by defendant company prior to June 15, 1906.

In other respects the petition for rehearing is overruled.

1. MASTER AND SERVANT (§ 288*)—INJURY TO

SERVANT ASSUMPTION OF RISK-KNOWL-
EDGE-QUESTION FOR JURY.

A servant who knew of the defective condition of the tipple and appliances for unloading coal cars, and that the brakes had been oiled, was not, as a matter of law, charged with notice that because of such conditions an ascending car would probably jump the track and Sec-injure him, since a servant does not ordinarily assume the risk of injury from the master's negligence, unless the danger is known to him, or is obvious to a person of ordinary intelligence.

Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. [Ed. Note.-For other cases, see Master and § 288.*]

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

2. JUDGMENT (§ 251*)-CONFORMITY TO PLEADING AND PROOF-NEGLIGENCE AND GROSS NEGLIGENCE.

gence in general terms, in that plaintiff was Under a petition merely charging negliinjured by the negligence of his master or of the master's servants or agents superior in au thority to himself, in running a car over him, he can recover for the gross negligence of the superior servants in operating the car, but the general allegation of negligence is not sufficient to authorize a recovery for the master's failure ably safe place to work, or reasonably safe to use ordinary care to furnish him a reasonappliances, which latter rule applies both where

the appliances, the defective condition of which was the proximate cause of the injury, were used by other servants, and where they were used by plaintiff himself.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.*] 3. APPEAL AND ERROR (§ 233*)-OBJECTION BELOW-SUFFICIENCY.

Where the petition in a servant's action for injury did not rely on unsafe appliances, and defendant moved to require plaintiff to make his petition more specific, asked the exclusion of all evidence on the question of unsafe appliances, and excepted to all the instructions, including one as to unsafe appliances, defendant I could not be said to have waived its right to rely on the error of the court in authorizing a recovery for injury from unsafe appliances.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 233;* Trial, Cent. Dig. 8 192.]

[blocks in formation]

steel wire rope is attached to a loaded car, and the other to an empty car on the other track. As the loaded car descends, the empty car ascends. When the empty car reaches the knuckle and gets on level track, its speed is relaxed, and, the loaded car having come to a stop at the end of the incline, there is a slack in the tension of the cable, thus enabling one of defendant's employés to detach the hook from the empty car.

Morton & Morton and Drury & Drury, all of Morganfield, for appellant. P. H. Winston, of Sturgis, and Allen & Miller, of Morganfield, for appellee.

The accident to plaintiff happened on June 7, 1912. Plaintiff had no regular work, but was what is known as a "rouster"; that is, he did whatever work he was told to do. On the day of the accident he was directed to detach the hook from the empty cars. For that purpose he was standing about 20 feet from the knuckle. In that position he could not see the ascending car. When the car which injured him reached the knuckle, it was going very rapidly, and jumped the track. He endeavored to get out of the way, but failed to do so. The car ran over him and broke both legs and otherwise injured There was some evidence tending to show that the appliances were defective, or at least were not properly adjusted for the purposes for which they were being used, and also that the car itself was negligently operated on the occasion of the injury. The evidence for plaintiff is also supplemented by that of defendant's foreman, McCoy, who says that the car was going too fast at the time of the accident. This was due to the fact that he put oil on the brake.

him.

[1] (1) While there is proof to the effect that plaintiff knew of the defective condition of the appliances, if they were defective, and of the further fact that brakes had been oiled, yet these facts alone are not sufficient to risk of injury. The servant does not ordijustify the conclusion that he assumed the narily assume the risk of injury growing out of the master's negligence, unless the danger is known to him, or is obvious to a person of ordinary prudence. In this case we cannot say as a matter of law that he was charged with notice of the fact that the car would probably jump the track and injure him because of the defective appliances, or because the brakes had been oiled. It, therefore, follows that the peremptory instruction asked by the defendant was properly refused.

CLAY, C. In this action for damages for personal injury, plaintiff, Chris Heine, recovered a verdict and judgment for $1,200 against defendant, Ohio Valley Coal & Mining Company. Defendant appeals.

On the bank of the Ohio river the defendant has a tipple and a drum and other appliances for unloading its coal cars. The [2] (2) Plaintiff's petition merely charges drum is 12 feet long, 3 feet in diameter, and that plaintiff was injured by the negligence 141⁄2 feet from the ground. Around the drum of defendant, its agents and servants superior is wound a five-eighths inch steel wire rope, in authority to plaintiff, in 'running the car with a hook in each end. There are two over plaintiff. In other words, the petition tracks leading from the tipple to the river. charges negligence in general terms. These The knuckle is at the top of the river bank, allegations were sufficient. Chiles v. Drake, and the distance from that point to the river 2 Metc. 146, 74 Am. Dec. 406; W. A. Gaines varies with the stage of the water. The in- & Co. v. Johnson, 133 Ky. 507, 105 S. W. 381, cline is quite steep; there being a drop of 32 Ky. Law Rep. 58; L. & N. R. R. Co. v. one foot in three. Each of the cars used in Stewart's Adm'x, 156 Ky. 554, 161 S. W. 557. carrying coal weighs about 21⁄2 tons. They Under these allegations plaintiff could recovcarry about six tons of coal. One end of the er for the gross negligence of defendant's

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