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S. W. 884, before appellee's petition for a rehearing was filed.

The opinion is modified to the extent indicated, but in other respects adhered to. Therefore the petition for a rehearing is overruled.

SHACKLETTE et al. v. GOODALL et al. (Court of Appeals of Kentucky. Dec. 4, 1912.) 1. FRAUD (§ 50*) — ACTUAL FRAUD-CONSTRUCTIVE FRAUD-BURDEN OF PROOF.

The burden of proving actual fraud is on the party alleging it; but where fraud, implied from the fiduciary or confidential relation of the parties, is charged, the burden is on the person against whom complaint is made to show the fairness of the transaction.

[Ed. Note. For other cases, see Fraud, Cent. Dig. $$ 46, 47; Dec. Dig. $ 50.*]

2. CANCELLATION OF INSTRUMENTS (8 CONTRACTS (§ 99*)-GIFTS (§ 47*)-FRAUDEQUITABLE RELIEF.

Appeal from Circuit Court, Ohio County. Action by Sally Shacklette and others against E. H. Goodall and others. From a judgment of dismissal, plaintiffs appeal. Arfirmed.

Barnes & Smith and Fogle & Fogle, all of Hartford, for appellants. Heavrin & Woodward, of Hartford, for appellees.

MILLER, J. Jacob C. Warden, a bachelor 75 years of age, residing in Ohio county, died in January, 1911. On and between December 18, 1909, and November 26, 1910, he had conveyed five tracts of land to his collateral kindred. By the first deed, dated December 18, 1909, he conveyed 15 acres to L. R. Goodall, who was the husband of Warden's niece, for a recited consideration of $300. A second deed was executed by Warden on Sep4*)-tember 6, 1910, and conveyed 32 acres to his nephew, Jacob B. Warden; the recited consideration being services rendered by said Jacob B. to his uncle. By the third deed, dated October 12, 1910, Warden conveyed 8%2 acres to L. R. Goodall, the husband of Warden's niece, for a recited consideration of $300. The fourth deed was dated November 26, 1910, and conveyed 20 acres of land to E. H. Goodall as grantee, but really in trust for Jesse M. Warden, a nephew of the grantor, for a recited consideration of $300, paid. The fifth and last deed, dated November 26, 1910, conveyed three-fourths of an acre of land to Jessie Phipps, a grandniece of Warden, for a recited consideration of $200. The petition alleges that none of the recited considerations was paid.

Equity will set aside transactions in which influence obtained through confidential relations has been abused, on the ground of fraud and undue influence; and the presumption of fraud arises more readily in case of gifts than in cases of contracts, and the presumption of undue influence is more or less strong, according to the nature of the relation of the parties.

[Ed. Note.-For other cases, see Cancellation of Instruments, Cent. Dig. § 1; Dec. Dig. § 4;* Contracts, Cent. Dig. 88 448-453, 1197-1199, 1799. 1800; Dec. Dig. § 99;* Gifts, Cent. Dig. $$ 81-86; Dec. Dig. § 47.*]

3. DEEDS (§ 196*)-CANCELLATION-GROUNDS -PRESUMPTIONS.

The mere fact that a grantor was 75 years old when executing deeds to collateral heirs does not raise a presumption of incapacity on his part or undue influence on the grantees' part.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 587-593, 649; Dec. Dig. § 196.*] 4. DEEDS (§ 70*)-CANCELLATION-GROUNDS -CONFIDENTIAL RELATIONS.

On January 4, 1912, the appellants, Sally Shacklette, M. L. Phipps, and Laura Greenwood, as heirs at law of Jacob C. Warden, brought this action against the several granThe rule that fraud is imputed in cases of tees in the deeds above named, for the purvoluntary conveyances between persons stand- pose of having said deeds canceled and set ing in confidential or fiduciary relations to each aside, upon the ground that they were withother may be extended to conveyances sup-out consideration and had been procured by ported by a consideration, where the consideration is so grossly inadequate as to render the conveyance fraudulent.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 165-182; Dec. Dig. § 70.*]

the undue influence, fraud, and collusion of the several grantees therein. Upon motion of the defendants, the circuit court required the plaintiffs to elect which of the several

5. DEEDS (8_196*)-CANCELLATION-GROUNDS actions alleged to have been wrongfully join-FRAUD-BURDEN OF PROOF.

Where heirs of a deceased grantor sought to set aside a conveyance in trust for a nephew of the grantor on the ground of fraud, and the answer alleged that, though the deed, perhaps incorrectly, recited a consideration of a substantial sum paid, there was, in reality, a valuable consideration for the deed in the services which the nephew had previously rendered the grantor, which services were of greater value than the land conveyed, and there was nothing to show any confidential relations between the grantor and the nephew, more than was implied from the mere fact of kinship, the case of the heirs must rest on actual fraud, and to recover they have the burden of establishing

fraud.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. $$ 587-593; Dec. Dig. § 196.*]

ed in the petition they would prosecute; and, in response to that ruling, the plaintiffs elected to prosecute the action to cancel and set aside the fourth deed, dated November 26, 1910, which conveyed 20 acres to E. H. Goodall, in trust for Jesse M. Warden, as above set forth.

The first paragraph of the answer traversed the allegations of the petition, while the second paragraph affirmatively alleged that for many years prior to November 26, 1910, the date of the deed, Jesse M. Warden had rendered personal service, labor, care, and attention to and for Jacob Warden, and at his special instance and request; and that

for and in consideration of said services, and, While it is true the grantor was 75 years in part payment therefor, Jacob C. Warden of age, that fact would not, of itself, raise had executed and delivered to Goodall, as a presumption of incapacity on his part or trustee, the deed sought to be canceled. The undue influence on the grantee's part. reply made the issue by controverting the affirmative allegations of the answer.

The action having been submitted and heard upon the pleadings, without any proof, the circuit judge dismissed the petition, and from that judgment the plaintiffs prosecute this appeal.

[1] The correctness of the judgment of the circuit judge depends upon where the burden of proof lay. Appellants admit that in cases of actual fraud the burden of proof is on the party complaining to prove his case; but he invokes the contrary rule applicable to cases of fraud to be implied from the fiduciary or confidential relation of the parties, where the burden is on the person against whom complaint is made to show the entire fairness of the transaction.

If the facts alleged in the petition were sufficient to put the defendants upon their proof, notwithstanding their answer, the burden was upon them, and the trial judge was wrong in dismissing the petition.

[2] This case, if it can be maintained, comes under the third species of fraud, according to Lord Hardwicke's classification in the leading case of Chesterfield v. Janssen, 2 Ves. 125, 1 Lead. Cas. Eq. 428, which is presumed from the circumstances and conditicns of the parties contracting. The general rule is that relief will be afforded, in equity, in all transactions in which influence has been acquired and abused, in which confidence has been reposed and betrayed. The relief stands upon a general principle applying to all the varieties of relations in which deminion may be exercised by one person over another. And the presumption of fraud will arise more readily in cases of gifts than in cases of contracts.

The question always is: To what extent may undue influence be presumed from the relation of the parties? This presumption of undue influence is more or less strong, according to the nature of the relation which the parties occupy towards each other. The relation in which the presumption exists, perhaps, in the highest degree is that of solicitor and client; the next highest, that of guardian and ward; then that between parent and child, and trustee and cestui que trust.

Appellants rely upon Smith v. Snowden, 96 Ky. 32, 27 S. W. 855, 16 Ky. Law Rep. 353; Wilson v. Winsor, 71 S. W. 495, 24 Ky. Law Rep. 1343; Highland v. Highland, 73 S. W. 791, 24 Ky. Law Rep. 2242; Koger v. Koger, 92 S. W. 961, 29 Ky. Law Rep. 235; and Hoeb v. Maschinot, 140 Ky. 330, 131 S. W. 23.

In Hoeb v. Maschinot, supra, the rule governing cases of this character was stated as follows: "Where there exists between two persons a relation of confidence and trust, by which one exerts such an influence over the judgment of the other as to subvert the latter's will and independence, a conveyance by the latter to the former will be set aside as fraudulent upon seasonable complaint. Whether such influence was exerted is a question of fact to be determined from the circumstances. Evidence of the fact may consist of such relationship of blood, or consanguinity, or, as attorney and client, guardian and ward, physician and patient, and the like; and when such relationship is shown, and a voluntary conveyance beneficial to the grantee, the burden of proving that in that transaction the other mind acted freely, of its own volition, is on the person benefited, or the conveyance will be set aside. Smith v. Snowden, 96 Ky. 32 [27 S. W. 855, 16 Kỳ. Law Rep. 353]; Maze's Ex'rs v. Maze [99 S. W. 336], 30 Ky. Law Rep. 679. The reason of the rule is it is not customary for people to give away their property, particularly to strangers in blood. It is also known that one who has the entire confidence of another can induce the latter to do with his property that which a stranger could not. Everyday observation is full of incidents of overreaching of that character. Such abuse of confidence is, in law, a fraud."

It will be noticed that the rule as above formulated applies to cases in which there has been a voluntary conveyance which is beneficial to the grantee. And in examining the cases relied upon by appellants it will be found in each case, not only that a confidential relationship existed, but that the deed was without consideration, and was beneficial to the grantee.

In Smith v. Snowden, supra, a father and mother, over 70 years of age, conveyed their In cases of contract between lawyer and land to two of their sons, without any conclient, the burden is on the lawyer of show-sideration; it being pointed out that not ing its fairness. Carter v. West, 93 Ky. 211, even the consideration of love and affection 19 S. W. 592, 14 Ky. Law Rep. 191. And was hinted at. the same rule applies to the case of gift from the ward to his guardian immediately after the ward has attained his majority, or while he is still under the guardian's influence.

[3] But in the case at bar none of these

Likewise, in Wilson v. Winsor, supra, a husband and his wife conveyed the wife's land to the husband's brother, for the purpose of preventing her children from receiving any benefit therefrom; and, as it

the husband's ultimate benefit, the court declared it fraudulent.

A similar state of facts controlled Highland v. Highland, supra. In that case the husband and his wife conveyed her land to Higbee, and Higbee conveyed it back to the husband; there being no consideration for either conveyance, and the purpose and effect of the two deeds being to convey the wife's land to the husband.

RIDDELL v. WILCOX et al. (Court of Appeals of Kentucky. Dec. 4, 1912.) 1. PARTITion (§ 77*)—Sale of Land-STATUTORY PROVISIONS.

Under Civ. Code Prac. § 490, providing that a vested estate jointly owned by two or more persons may be sold by a court of equity though plaintiff or defendant is an infant, where the property cannot be divided without materially impairing its value, or the value of plaintiff's interest, the court may order a sale of real estate owned and in possession of an adult and an infant, though such property consists of an 80-foot lot in a town not having 1,000 inhabitants, where the property was so remote as to un-homeseekers do not erect dwelling houses on 40make it practically a suburban lot, and where foot lots, and where it could not be divided without materially impairing its value.

Again, in Koger v. Koger, supra, William Koger, Sr., at the age of 86, conveyed his land, for no consideration, to two of his sons, leaving ten of his children and two grandchildren of a deceased daughter, provided for.

And in Hoeb v. Maschinot, supra, the conveyance was from the mother-in-law to her son-in-law, and without consideration.

[4] It will be noticed, therefore, that the cases relied upon by appellants all come within the rule as above stated in Hoeb v. Maschinot, which imputes fraud in cases of voluntary conveyances made between persons who stand in confidential or fiduciary relations to each other. We do not mean to say that the rule is confined in its operation to cases in which there is no consideration, since there may be cases calling for its application, in which the consideration might be so grossly inadequate as to render the conveyance fraudulent, when the other conditions required by the rule are found to

exist.

[5] In the case at bar, however, the answer expressly alleges that, although the deed, perhaps incorrectly, recites a consideration of $300, cash paid, there was, in reality, a valuable consideration for the deed in the services which the nephew had theretofore rendered his uncle, which were of greater value than the land conveyed. This allegation of consideration is not in conflict with the terms of the deed, which recites a consideration of $300 in cash, since it is not uncommon for parties to a contract to treat the satisfaction of a debt as a payment in money, or cash.

Moreover, there is nothing in the case to show there were any confidential relations between Jacob C. Warden and his nephew, more than are implied in the mere fact of kinship; and, if any presumption is to arise from the bare statement of that relationship, it would be that the uncle was the stronger character of the two.

The pleadings, as we view them, present a case of actual fraud rather than a case of implied or constructive fraud; and, since the rule requires a plaintiff who charges actual fraud to make out his case, the burden was upon appellants, and the circuit judge properly so ruled. Hunt v. Nance, 122 Ky. 282, 92 S. W. 6, 28 Ky. Law Rep. 1188.

Judgment affirmed.

[Ed. Note. For other cases, see Partition, Cent. Dig. §§ 211-223; Dec. Dig. § 77.*] - IRREGULARITY 2. PARTITION (§ 93*)-SALES IN PROCEEDINGS.

Where the court ordered a sale of land owned by an adult and an infant, and the infant was before payment protected by the lien retained by the judgment, any irregularity in the time of the execution of the bond to the infant required by Civ. Code Prac. § 493, did not affect the validity of the sale.

[Ed. Note. For other cases. see Partition, Cent. Dig. §§ 285, 286; Dec. Dig. § 93.*]

Appeal from Circuit Court, Estill County. Action by Ben F. Wilcox for the sale of property owned by himself and an infant. From a judgment overruling exceptions to the report of sale made to Ann M. Riddell and confirming the sale, Ann M. Riddell appeals. Affirmed.

Hugh Riddell and Robt. R. Friend, both of R. W. Smith and Irvine, for appellant. Clarence Miller, both of Irvine, for appellees.

SETTLE, J. It appears from the record in this case that the appellee Ben F. Wilcox and the infant appellee Maggie Lee Gum are the joint owners of a parcel of ground in Collins addition to the town of Irvine, fronting 80 feet on Main street and having a depth of 150 feet to an alley. The property is without buildings, is otherwise unimproved, and no income or profit therefrom has ever been received by the owners. This action was brought by the appellee Wilcox, one of the joint owners, and B. R. Gum, statutory guardian of the infant Maggie Lee Gum, against the latter to obtain a sale of the property and a division of the proceeds between the joint owners. The infant was properly brought before the court, and a defense made for her by a guardian ad litem. Following the taking of depositions in support of the averments of the petition judg ment was rendered by the circuit court directing a sale of the property, and when sold by the commissioners, after due advertisement, the appellant Ann M. Riddell, being the highest and best bidder, became the purchaser at the price of $800, for which amount

she executed, with approved security, a sale | dwelling houses upon 40-foot lots, its partibond as required by the judgment bearing in- tion into small lots would render them, at terest from date. When the sale was report- least for many years to come, well nigh valed to the court by the commissioner, appel- ueless, if not wholly unsalable. In view of lant filed exceptions to same upon the ground the foregoing facts, it may well be said that that the court was without jurisdiction to the property is, in the meaning of the Code adjudge a sale of the property, and that her provision, indivisible. Therefore, it was proppurchase of same and the deed of conveyance erly sold as a single lot. It is conceded that therefor from the commissioner could not the price realized for the property was its pass to her a valid title thereto. The ex- full market value and in excess of the ceptions were overruled by the court, and the amount at which it was appraised. sale confirmed. Appellant excepted to the judgment manifesting these rulings; hence this appeal.

[2] We have found no irregularity in the proceedings preceding or following the sale. Even the bond to the infant required by section 493, Code, was executed by the guardian before the sale, although it might have been subsequently executed at any time before the payment of the sale bond by the purchaser; the infant being in the meantime protected by the lien retained by the judgment on the property.

As appellant will, under her purchase at the decretal sale and by the deed to be made her by the Commissioner, take a good and marketable title to the property sold, the circuit court in overruling her exceptions and confirming the sale committed no error. Wherefore the judgment is affirmed.

The petition seems to have rested the right of the joint owners to a sale of the property upon the grounds, first, that it was permissible under section 489, subsec. 3, Civil Code, in order that the infant's share of the proceeds might be applied to her maintenance and education; second, that it was also permissible under section 490, subsec. 2, Civil Code, because of the indivisibility of the property. Waiving a decision of the question whether the sale of the property could have been adjudged on the first ground at the suit of the adult joint owner and statutory guardian of the infant, it is sufficient to say that its sale was authorized on the second ground. [1] Section 490, Civil Code, provides: "A vested estate in real property jointly owned by two or more persons may be sold by order JELLICO COAL MINING CO. v. LEE. of a court of equity, in an action brought by (Court of Appeals of Kentucky. Dec. 5, 1912.) either of them, though the plaintiff or defend- 1. MASTER AND SERVANT (§ 278*)-INJURIES ant be of unsound mind or an infant. (1) TO SERVANT-SUFFICIENCY OF EVIDENCE. Evidence in an action by a coal mine emIf the share of each owner be worth less ployé for injuries from the car on which he than one hundred dollars. (2) If the estate was riding being derailed by being struck by be in possession and the property cannot be a hanging cross-beam held to sustain a verdict divided without materially impairing its val- for plaintiff. ue, or the value of the plaintiff's interest therein." It is apparent from the averments of the petition, the deeds filed as exhibits, and the proof furnished by the depositions found in the record that the real estate sold was owned jointly and by and in the possession of the appellee Wilcox and the infant appellee Maggie Lee Gum, and that it was a vested estate. It is further manifest from the evidence that the property was and is indivisible; that is, that it cannot be divided without materially impairing its value, and that both joint owners were and are benefited by its sale. At first blush, it would seem that an 80-foot lot might be advantageously divided into two lots, having a frontage of 40 feet each; and this would be true if the ground were situated in a larger and more populous town or city, or, even in the business section of Irvine, where it could be utilized as a site for a mercantile house or office building. But Irvine is a small town of not exceeding 1,000 inhabitants, and this property is so remote from its business and Appeal from Circuit Court, Whitley County. residential centers as to make it practically Action by Larkin Lee against the Jellico a suburban lot; and, as according to the evi- Coal Mining Company. From a judgment dence homeseekers in Irvine do not erect for plaintiff, defendant appeals. Affirmed.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*] 2. TRIAL (§ 251*)-INSTRUCTIONS-PLEADING TO SUSTAIN.

Where, in a coal mine employé's action riding being derailed by being struck by an for injuries from the car on which he was overhead cross-beam, the defendant pleaded contributory negligence only in general terms. the court did not err in refusing an instruction, not supported by the allegations of defendant's answer, that plaintiff could not recover if he loaded the car and left one end of a piece of timber projecting, so that it struck a post, causing the wreck and his injury. Dig. 88 587-595; Dec. Dig. § 251.*] [Ed. Note. For other cases, see Trial, Cent. 3. TRIAL (§ 251*)—INSTRUCTIONS-PLEADING

TO SUSTAIN.

While an instruction may be based on acts of contributory negligence contemporaneous with the injury, although they are not pleaded, an instruction based on such acts occurring before or after the injury cannot be given, unless they be specially pleaded.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]

Tye & Siler, of Williamsburg, for appel- | fourteen inches. lant. R. L. Pope, of Williamsburg, for appellee.

NUNN, J. Larkin Lee, a boy 19 years of age, was injured in appellant's coal mine while driving a mule hitched to a cut of two or three cars. The front car, the one upon which he was riding, was thrown from the track, and his thumb was caught between it and a prop on the side of the mine, and mashed off near the second joint. He also received other injuries, but it is not necessary to mention them here. He instituted this action in the lower court to recover damages occasioned by the injuries, and the jury awarded him $525, and appellant seeks a reversal of the judgment of the lower court for two reasons: First, because the verdict was flagrantly against the evidence; second, because the court erred in instructing the jury.

[1] It appears that Lee had been working in appellant's mine for some time as a "gin hand"; that on December 1, 1910, he, under the directions of his boss, Hollars, commenced to drive a mule hitched to cars along the entry of the mine; that he had never before been engaged at that character of work, and he so informed Hollars before he began; and that he had been so engaged only four or five days before he was injured. The testimony for the boy shows that he was directed to, and did, hitch the mule to the cars which were near the entry of the mine, and which were loaded with timber to be used in the mine; that he took his seat on the front of the front car at the usual place; that, when he had driven the mule about 300 feet along the entry, he, by the aid of a lamp on his cap, discovered one end of a cross-beam which was used to support the roof hanging down six or seven inches, and he ducked so as to pass under it, but some of the timbers on one of the other cars, which extended up above the bed of the cars, struck the hanging cross-beam, and gave the cars such a jerk as to cause the wheels of the front car to leave the track, resulting in the injury to Lee before stated and also in an injury to his leg. The petition alleged that appellant was negligent in placing Lee to work in an entry where such defective and dangerous conditions prevailed, that Lee was ignorant of the danger himself, and that appellant knew or could have known of it by the exercise of ordinary diligence. It was also alleged that the entry through which Lee was driving was too narrow; that it was only about six feet wide, when, to be safe, it should have been nine or more feet wide; that, as the entry was so narrow, the posts which supported the cross-beams used to hold the roof had to be placed dangerously near the car track; that the posts were only from four to six inches from the track

And it was alleged that

Lee was unaware of the dangers incident to the use of such an entry, and that appellant knew it. By its answer appellant made a specific denial of the petition, and alleged contributory negligence in general terms, but did not mention any particular act of Lee constituting such negligence.

Appellee and his witnesses sustained the allegations of the petition. Appellant introduced its boss, Hollars, and he testified that he saw the condition of the cars soon after the wreck and injury to Lee. He stated that he saw the cross-beam down; that it was not caused to fall as stated by appellee, but was knocked down by one of the timbers which was projecting from the bed of one of the cars some inches, and this, in the judgment of the witness, was the cause of Lee's injury. This witness also testified that Lee could have saved himself from injury by spragging the wheels of the car which he failed to do. He says that it was Lee's duty to load the cars, and that he was present and saw him load the cars upon this occasion. Lee testified that he did not load the cars; that they were loaded and ready to be carried into the mine when he was directed by Hollars to hitch onto them; that they were properly loaded; that none of the timbers were projecting from the cars; and that, if any were found in that condition after his injury, it was caused by the shakeup in the wreck. There was also testimony by another witness who was a laborer in the mine, to the effect that this cross-beam was hanging the evening before the accident, and that he had noticed it several times during several days previous thereto.

[2] The court instructed the jury upon appellee's theory of the case as stated in his petition, and there is no criticism of this instruction. The pleading and testimony introduced upon the trial authorized it. The court gave, on behalf of appellant, an instruction on contributory negligence almost in the language of its pleading. Appellant asked an instruction to the effect that if the jury believed Lee loaded the car and left one end of a piece of the timber projecting, and it struck one of the posts and caused the wreck of the cars and his injury, then they should find for appellant. The court refused to give this instruction, and this is the main alleged error which appellant urges for a reversal of the case, and, in support of this contention, it cites the case of L. & N. R. R. Co. v. King's Adm'r, 131 Ky. 347, 115 S. W. 196. In that case such an instruction was authorized for the reason "that it grouped all the facts constituting the defendant's defense of contributory negligence." A defense should be made in the pleading and testimony. There was no allegation in the answer that authorized the court in the trial of the case at bar to give such an instruction.

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