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cient to say that the question was not, in | the father and some other witnesses is to the any way, raised in the lower court, there same effect; while the deputy clerk who being neither objection nor exception to the taking, filing, or consideration of this deposition. We are not permitted to consider an objection to the manner of the taking of a deposition, or its competency, unless the objection is made in the circuit court. Sections 587 to 589, Civil Code of Practice, and notes thereto.

No

wrote the deeds and took the acknowledgment testifies that the descriptions in the several deeds were dictated to him by the father, and that at the time plaintiff was of sound mind and clear understanding. witness, however, attempted to explain why the deed under which the defendants claim was made to the plaintiff's daughter, Elizabeth Williamson, her husband and their bodily heirs, although she had died some time theretofore, almost in sight of the residence of the plaintiff.

[2, 3] Although there is some evidence that the plaintiff, after his recovery, said that one of the lines of the land conveyed to the de

2. It is shown by the evidence that, at the time plaintiff executed the deed in question, he was sick in bed, with "fevers," having been so confined for about four weeks; that he was about 75 years of age; and that upon the day the deed was executed some of his children who were with him were of the opinion that he was in danger of immediate | fendants was not just where he wanted it, death. The evidence shows that he was, at times, delirious upon that day and upon several days before; that a deputy county clerk was sent for, who prepared deeds dividing plaintiff's lands among his five living children and the defendants, who are the husband and children of a deceased daughter; that, after these deeds had been prepared by the deputy clerk, plaintiff signed same by mark rather than by signature, which he was ordinarily able to and did write; that the deeds, when so signed and acknowledged, were placed upon a table in the room, and later taken charge of by one of plaintiff's sons, who placed his own deed on record; that the deed to appellants, which is the only one involved in this action, was later delivered by one of plaintiff's daughters to the defendant John Williamson, who had it recorded; that the other four deeds were not delivered to the grantees, but, at the request of plaintiff, have been redelivered to him.

Unless the execution of the deeds by plaintiff, and their being placed upon the table in his room and in his presence, was a delivery by him, no delivery by him is shown. The deed by which the defendants claim a conveyance to them names, as the grantees therein, John Williamson and his wife, Elizabeth Williamson, and their bodily heirs, although, as a matter of fact, Elizabeth Williamson was then dead. The plaintiff, contrary to the expectations of his children, did not die, but got well, and, after his recovery, upon learning of the execution of the deeds,

demanded a return thereof; and four of them were returned to him. The son, James A. Justice, who had had his deed recorded, declined to return it, claiming he was not able to do so because the deed had been recorded, although he did not offer to reconvey the land, but testifies that there was no delivery of any of the deeds by the father, and that the father did not have sufficient mind, at the time when the deeds were presented to him and signed and acknowledged by him, to know what he was doing. The testimony of

that he had some posts set where he wanted the line to be, and that he had consented to a trade by some of the children to whom the deeds had been executed, of the lands thereby conveyed, for other lands, and although there is some evidence that possibly the plaintiff does not mean to disturb the conveyance made to the other children, we are thoroughly convinced, by the great weight of the evidence, that the plaintiff did not have sufficient mind, at the time it is claimed he executed these deeds, to understand what he was doing, and that there was, in fact, no delivery by him of any of the deeds; and we are therefore not warranted, upon the evidence, in reversing the judgment of the chancellor.

Wherefore the judgment is affirmed.

UNDERHILL v. MAYER,

(Court of Appeals of Kentucky. Feb. 23, 1917.) 1. HUSBAND AND WIFE 19(11)—WIFE'S LI

ABILITY FOR NECESSARIES.

A married woman is liable for necessaries furnished and charged to her, under provision of Ky. St. §§ 2127, 2128, although the husband is primarily liable for the same debt, but not when furnished upon her husband's request. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 131.]

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

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be had against a wife for necessaries furnished | Underhill appeals, alleging that the court upon her contract.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 855, 856, 860, 862, 983.] 5. HUSBAND AND WIFE 85(1)-WIFE'S LIABILITY FOR DOCTOR BILL.

A wife's note, given for her doctor bill after husband's refusal to pay, where credit was extended to husband, held invalid, in view of Ky. St. § 2130, making husband liable for necessaries, she thereby becoming no more than surety for husband, under which agreement she is not liable under Ky. St. § 2127, except where deed or mortgage is given.

[Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 334, 336, 337.]

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Third Division. Suit by Mattie Lee Mayer against Evie S. Underhill, and others. Judgment for plaintiff, and defendant named appeals. Reversed and remanded, with directions.

Burwell K. Marshall, of Louisville, for appellant. Straus, Lee & Krieger, of Louisville, for appellee.

erred to her prejudice in holding that she
was liable for the debt of her husband, Tracy
Underhill, who had contracted for the sery-
ice, and she relies upon sections 2127, 2128,
The services
and 2130, Kentucky Statutes.
of the doctor were furnished at the instance
and upon contract with the husband, and
were charged to him.

The finding of law by the court contains this clause:

"First. That although such medical services were rendered by Dr. Chester Mayer at the instance and request of Tracy Underhill, the husband of Evie S. Underhill, the defendant, Evie S. Underhill, had the right to undertake the payment of the same out of her own estate, and to execute and deliver the note sued on, as evidence of such undertaking and promise. Second. That such undertaking and promise on her part was not violative of the provisions of section 2127, Ky. Stat., as the whole consideration of the note was professional services rendered to the said Evie S. Underhill herself."

The circuit court, in rendering the judgment and making the finding of fact and law, relies upon the case of Thomas v. Banking Co., 157 Ky. 473, 163 S. W. 480.

The appellant, Mrs. Underhill, in her brief asserts that:

"A married woman is not liable for any debt, contracted by her husband even though for necessaries for the family, his wife included," but "the husband is liable individually for a debt contracted by his wife for necessaries purchased by her, although he did not agree to pay for

same."

Section 2127, Ky. Stats., provides that during the marriage relation the wife shall hold and own all her estate to her separate and exclusive use, free from the debt, liabilities or control of her husband and that: "No part of a married woman's estate shall be subjected to the payment or satisfaction of any liability, upon a contract made after marriage, to answer for the debt, default or misdoing of another, including her husband, unless such estate shall have been set apart for that purpose by deed or mortgage or other conveyance."

Section 2130, Ky. Stat., provides:

SAMPSON, J. This is a suit by Mattie Lee Mayer, widow of Dr. Chester Mayer, upon a note for $892.50, given by Evie S. Underhill and Sallie McCandless Kemper to Dr. Chester Mayer April 2, 1911. Mrs. Underhill was at the time of the execution of the note, and for many years prior thereto, a married woman, living with her husband, Tracy Underhill, in Louisville, Jefferson county, Ky. She became sick and required the services of a physician. At first the regular family physician was called, but later Tracy Underhill called Dr. Chester Mayer to attend his wife, and Dr. Mayer did attend her for many months, for which he made a charge on his books of $892.50 against Tracy Underhill, the husband of his patient. Mrs. Underhill, yet an invalid, was about to depart from the state for a prolonged visit in search of health, when Dr. Mayer, on April 2, 1911, came to see her and told her that her husband, Tracy Underhill, had failed to pay the doctor bill, and that he would like her to execute a note for the amount, $892.50, which she did of that date, giving her daughter, then Miss Sallie McCandless Underhill, as surety. The services had been charged to Tracy Underhill on the books of Dr. Mayer, and it is conceded [1-4] It has often been held by this court that it was the debt of the husband, Tracy that a married woman is liable for necesUnderhill, although the services were per-saries furnished and charged to her during formed by the doctor in treating Mrs. Under- coverture, although the husband is primarily hill. The father of Mrs. Underhill paid $100 liable for the same debt. Ketterer v. Nelon account to the doctor. Upon a hearing son, 146 Ky. 7, 141 S. W. 409, 37 L. R. A. (N. of the case in the circuit court a jury was S.) 754; Hardiman's Adm'r v. Crick, 131 Ky. waived, and the court made a finding of both 358, 115 S. W. 236, 133 Am. St. Rep. 248; fact and law, entering a judgment for $892.- Brand's Ex'r v. Brand, 109 Ky. 721, 60 S. W. 50, with interest at 6 per cent. per annum 704, 22 Ky. Law Rep. 1366; Towery v. McGaw, from the 2d day of April, 1911, until paid, 56 S. W. 727, 982, 22 Ky. Law Rep. 155; Carsubject to a credit of $100 as of April 25, penter v. Hazelrigg, 103 Ky. 538, 45 S. W. 666, 1911, and cost, against Mrs. Underhill; the 19 Ky. Law Rep. 231; Dearing v. Moran, 78 other defendant Mrs. Kemper not being be- S. W. 217, 25 Ky. Law Rep. 1545; Thomas fore the court. From this judgment Mrs. v. Boston Banking Co., 157 Ky. 473, 163 S. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"The husband shall not be liable for any debts or responsibility of the wife contracted or incurred before or after marriage, except to the amount or value of the property he may receive from or by her by virtue of the marriage, but shall be liable for necessaries furnished to her after marriage."

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which she, or her estate, was bound. Where the estate of the wife was held to be bound for the debt of the husband, it has been set aside for that purpose by mortgage or other conveyance, which was not the case here. It has never been held that the wife is liable for debts contracted by the husband.

W. 1084. This is the rule where the wife makes the purchase, procures the service, or makes the contract, but is it the rule where the husband made the purchase, procures the service, or made the contract, even though it be for necessaries, and the wife gets the benefit thereof? Under the common law, the note of a married woman was void. Page on The trial court based its opinion and judgContracts, § 911. Moreover, the wife was not ment upon the case of Thomas v. Boston bound personally, even for necessaries. The Banking Company, supra. In that case the husband is primarily responsible, and with- husband and wife, by a note signed by both, out an agreement on her part to pay for nec- secured a loan of $1,500 from a bank, and essaries or household supplies, she will not, paid that sum on the purchase price of a in the absence of an express statutory pro- tract of land, the title of which was taken vision, bind her separate estate, or be per- to the wife. She was the sole beneficiary of sonally liable, 21 Cyc. 1445. And "no personal the loan. The money which they received judgment could be had against a wife even from the bank was invested in the lands, and for necessaries furnished upon her contract." the deed made to her. The husband receivHayden v. Bohlsen, 7 Ky. Law Rep. 749. The ed no benefit from the loan; the wife receivWessenger Act of 1894, which includes sec-ed it all. Upon this ground the court held tions 2127, 2128, and 2130, changes the rule that the wife was bound on the note as prinof the common law in this respect. cipal debtor to the bank, because it was her [5] This was the debt of the husband, debt, and not that of her husband. Had it Tracy Underhill. The credit was extended been the debt of the husband, and had he reto the husband, not the wife. It was so car-ceived the deed to the property, and received ried on the books of Dr. Mayer. After the the benefit of the loan from the bank, quite services had been performed and the debt a different state of case would have been incurred by Tracy Underhill, and he had presented, and the ruling of this court would failed to pay the account, Dr. Mayer induced have been quite the opposite. By the rule the wife Mrs. Underhill to execute the note established in this state under the statute sued on. It being the debt of the husband, supra, the estate of a married woman may the execution of the note by Mrs. Underhill become liable for necessaries furnished her the wife, could amount to no more than the at her request or upon her contract, but not wife becoming a surety for the husband, upon the request or contract of another, inwhich, under the law, she could not do. The cluding her husband. The husband is prinote of a wife given for the debt of the bus-marily liable for necessaries, including medband has no binding force. Therefore this ical attention, furnished the wife, but if the note had no validity. Then, too, the statute. necessaries be furnished at the instance of section 2127, declaring that a married wo- the wife, on her request or contract, she is man's estate shall be held by her to her sep-liable also for the debt, even though it is rate and exclusive use free from the debts, liabilities, or misdoings of her husband, and not to be subjected to the payment or satisfaction of any liability upon a contract made after marriage, to answer for the debt of another, including her husband, unless such estate shall have been set apart for that purpose by deed of mortgage, or other conveyance, would seem to preclude the wife from obligating herself or estate for the debt of her husband, except as provided therein. The wife was not responsible for necessaries sold or furnished to the husband, notwithstanding she may have received a part or all of the benefits, nor can her estate be bound for such necessaries unless by deed or mortgage; a fortiori, can she be bound personally. In no event, therefore, could Mrs. Underhill be bound upon this note.

A long line of cases are cited by appellee to sustain her contention that a married woman is liable for necessaries furnished to her during coverture, but these cases are easily distinguishable from the case at bar, because in each instance it was the debt of the wife, instead of the debt of the husband, for

first the duty of the husband to pay the same debt. If he fail the wife must respond. So, also if the credit be extended to the wife, and the debt charged against her, she is liable. If it be for necessaries, it is the duty of the husband to pay the debt, but if he fail, and the credit was extended to the wife and charged to her, she is liable also, but not so, if it be a debt contracted by the husband, even though it be for necessaries all or a part of which were for

the wife.

For the reasons indicated, the judgment is reversed and remanded, with directions to enter a judgment in conformity to this opin

ion.

LOVELL v. CONLEY et al.

(Court of Appeals of Kentucky. Feb. 27, 1917.)
VENDOR AND PURCHASER 244-BONA FIDE
PURCHASER-PURCHASER OF SHARE IN ES-
TATE EVIDENCE.

Evidence held to show that a brother and share in his father's estate were bona fide pursister taking conveyance of another brother's chasers without notice of his unrecorded assign

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

ment thereof prior to conveyance, but subsequent to their advances.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 609-611.]

Appeal from Circuit Court, Johnson

County.

Action by G. E. Lovell against Edward Conley and others. From judgment for defendants, plaintiff appeals. Affirmed.

J. K. Wells, of Paintsville, for appellant. Fogg & Kirk, of Paintsville, and L. D. Kennard, of Grayson, for appellees.

CARROLL, J. M. F. Conley died some time before 1911, leaving surviving him his widow and four children. He owned at the time of his death some real estate in Johnson county, Ky., in which his wife had an estate for life, with remainder to the four children. On April 11, 1911, Robert Conley, one of the children, who had gone to the state of Washington and there adopted the assumed name of Robert Miller, executed to the appellant, Lovell, the following paper: "Know all men by these presents that I do hereby assign and transfer to G. E. Lovell all the right, title, or interest I may have in the estate of my deceased father, M. F. Miller, which is now in course of probate in Johnson county, Ky., and I hereby authorize the executor or administrator of his estate to pay and deliver to the said G. E. Lovell any property, either real or personal that may come to me out of the said estate."

This paper was subscribed and sworn to by Miller before a notary public in the state of Washington, but it was never recorded,

or offered for record in this state. At the

time this paper was executed the estate of M. F. Conley was not in course of probate, nor does it appear that there was any executor or administrator, but Robert Conley had

a one-fourth undivided interest therein subject to the life estate of his mother.

The evidence shows that Robert Conley was a wild, dissipated young man, who had subjected his brother and sisters, as well as other members of the family, to a great deal of trouble and expense on account of his bad habits, and that before April, 1911, he had obtained from them at different times sums of money aggregating as much as his interest in the estate. The evidence further shows that it was to secure this indebtedness that he conveyed to his brother, Edward, his interest, and in order that his sister might also be protected on account of sums that she had expended for him, Edward made the conveyance to her heretofore mentioned. These deeds are not in the record, nor does it show the consideration. There is no evidence that Edward Conley knew of the assignment made by Robert to Lovell until some time after Robert conveyed to him his interest in his father's estate. There is, however, some evidence tending to show that Mrs. Chandler, before she took the deed from Edward, had some knowledge of this assignment, although she did not understand what it purported to convey or its meaning or effect. So far as the record shows, this information of the assignment came to her in some letters written to her by Lovell.

It appears that on April 17, 1911, Lovell, who was an attorney in the state of Washington, wrote to Mrs. Chandler telling her about a prosecution for some criminal offense pending against her brother, who had employed him as an attorney. In this letter, which was written after the assignment of the interest to Lovell, he did not mention the assignment, but said that Robert had told him of an interest he had in the estate worth $1,000 or more, and that Robert wanted Mrs.

Chandler to take his interest in the estate and pay the $1,000 to help get him out of trouble.

this letter, and said that Robert did have an On June 5, 1911, Mrs. Chandler replied to interest in his father's estate, but that the property could not be divided until her mother died; that his part was worth about $1,

In answer to this

It appears that in September, 1912, Robert Conley conveyed his interest in his father's estate to his brother, the appellee, Edward Conley, and shortly afterwards Edward Conley conveyed a part of this interest to his sister, Mrs. Bessie Chandler, and the other part to one A. B. Collins. It further appears that in October, 1912, Robert Conley died, and in000, and that her mother said he might take 1913 Lovell brought this suit against Edward a deed to Robert's part of the property and Conley, Mrs. Chandler, and A. B. Collins, hold the same until money matters could be setting up that by virtue of the assignment arranged in some way. to him by Robert Conley (Miller) of his in- letter from Mrs. Chandler, Lovell on June 12, terest in his father's estate he was the own- 1911, wrote telling her about the trial, sayer of his one-fourth interest therein, and that ing that he appreciated the offer made in her with knowledge of his claim, and in fraud letter, and that the matter might be settled of his rights, Edward Conley procured the on that basis, also advising her that he had deed from Robert Conley, and Mrs. Chandler an assignment of her brother's interest in the and Collins, with knowledge of the assign- estate. On July 19, 1911, it appears that ment, accepted the deeds to them. The suit Lovell wrote another letter to Mrs. Chandler against A. B. Collins, however, was dismiss- saying that Robert had assigned to him and ed, and so it will not be necessary to refer his partner his interest in his father's estate. again to him. In this letter he also said that, if Robert, who, it seems, had disappeared, could be located, they would accept from him a reasonable fee and let him have the interest back. This is all the information Mrs. Chandler

The defendants answered, and, after the case had been prepared for trial, there was a judgment dismissing the petition, and Lovell appeals.

192 S.W.-2

had touching this assignment, and, as before company's motion for a peremptory instrucstated, Edward Conley knew nothing of it until after the death of Robert.

tion.

The facts are as follows: The defendant Passing all question as to the sufficiency is a corporation engaged in the production of this paper to transfer the interest of Rob- and sale of natural gas, which is conveyed ert to Lovell, there is no evidence in the rec-by pipe lines from West Virginia to the comord upon which to sustain the charge that pany's various consumers in the states of the conveyance by Robert to his brother, Ed- Kentucky and Ohio. At various places along ward, was either fraudulent or without con- its pipe line it is necessary for the company sideration. On the contrary, the evidence to maintain gas measuring stations, where shows that the conveyance was made for a regulators are provided for the purpose of valuable consideration and without any no-controlling the pressure of the gas. In the tice whatever on the part of Edward that west end of the town of Inez the company this paper was in existence. Nor is the evidence sufficient to show that Mrs. Chandler had such notice of the assignment as to charge her with being a party in any plan to defraud Lovell.

It might here be noticed that after taking this deed Edward and the family spent a considerable sum of money on account of the death and burial of Robert, and these burial expenses, together with what had been advanced to him before the deed to Edward was made, more than exhausted his interest in his father's estate.

Upon the whole case, we see no reason for disturbing the judgment of the lower court, and it is affirmed.

UNITED FUEL GAS CO. v. WILLIAMSON.
(Court of Appeals of Kentucky. March
2, 1917.)

NEGLIGENCE 35 CAPE OF PREMISES SWINGING DOOR-PASSING HORSE OR MULE. A natural gas pipe line corporation was not liable for injuries to the rider of a mule frightened by the swinging open of the door of the corporation's small gas measuring station building, located 50 feet from the public road on the other side of a high board fence; for an owner of property is not required to be always on the alert to see that doors of his residence, barn, or outhouses are securely fastened, for fear that, if left open, they might be blown by the wind and cause some passing horse or mule to become frightened and injure his rider.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 54.]

Appeal from Circuit Court, Martin County. Action by Sallie Williamson against the United Fuel Gas Company. From judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

maintains one of these stations on its own property. The station consists of a small building, 8 feet by 6 feet, erected over the regulator and measuring appliances. On the side of the building is a door, through which the employés enter for the purpose of operating the appliances. The station is situated about 50 feet from the public road leading out of the town of Inez down Rockcastle creek. On the north side of the road and between the road and the gas station is a high board fence. Plaintiff, who lives about five miles from Inez, rode a mule into town on September 15, 1913. She was accompanied by her little boy, who rode behind her. Plaintiff says that as she and her son were passing the station on their return trip she noticed that the door of the station was open, and thought to herself, "What a scary looking place." While that thought was in her mind, and just as the door came open, the mule wheeled around and threw her off. She was positive that it was the movement of the door that scared the mule. The mule was gentle, and had never become frightened before.

Plaintiff contends that her right of recovery is sustained by the cases of Lynn v. Hooper, 93 Me. 46, 44 Atl. 127, 47 L. R. A. 752, Snyder v. Philadelphia Company of West Virginia, 54 W. Va. 149, 46 S. E. 366, 63 L. R. A. 896, 102 Am. St. Rep. 941, 1 Ann. Cas. 225. and Heinmiller v. Winston, 131 Iowa, 32, 107 N. W. 1102, 6 L. R. A. (N. S.) 150, 117 Am. St. Rep. 405. In the first-mentioned case, the defendant placed within the highway a hay cap, consisting of white cloth tied by the corners to stakes in the ground, so that it was moved by the wind. While driving by the hay cap, plaintiff's horse was frightened thereby, and the plaintiff was thrown to the ground and injured. While recognizing the right of one who owns land to the center of a highway to make a reasonable use of the land, the court held that a use which involved the placing on the highway of objects of such a character as naturally to frighten horses ordinarily gentle and well broken was not reasonable, but constituted a nuisance, and therefore sustained a recovery. In the case of Snyder v. Philadelphia Company of West Virginia, supra, the plaintiff was driving a The principal error assigned for a reversal two-horse wagon loaded with baled hay along is the failure of the trial court to sustain the a public road. About 50 feet from the road

Fogg & Kirk, of Paintsville, and R. G. Altizer, of Charleston, W. Va., for appellant. J. B. Clark and W. R. McCoy, both of Inez, for appellee.

CLAY, C. Plaintiff, Sallie Williamson, brought this suit against defendant, United Fuel Gas Company, to recover damages for personal injuries. From a verdict and judgment in her favor for $500 the defendant appeals.

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

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