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peal being reported in 160 Ky. 780, 170 S. W. 182, in which all the facts are fully set out, and in which this court held that the road described in the proof, and not the line described in the parties' deeds, is the dividing line between the lands of appellant and appellee. The former judgment, fixing the division line as the one described in the deeds, was reversed, and the cause remanded, with directions to adjudge the road the dividing line between the lands of the parties, if located, now, substantially where it was when the deeds were made. Upon the new trial had in the lower court after the cause was remanded, a verdict was rendered and judgment entered thereon again fixing the division line, as described in the deeds.

Appellant complains of this judgment upon four grounds: First, that the court erred in admitting evidence, over his objection and exceptions, of the location of the line, as described by the calls in the deeds; second, that the court erred in overruling his motion for a peremptory instruction; third, that the court erred in the instructions given over appellant's objection and exception; and, fourth, because the verdict and judgment were not supported by sufficient evidence and are palpably against the evidence.

the witnesses who testify that it had been moved at all, at this point, state that the side of the road next to appellee had been moved toward his land, in widening and working the road, half of its width. There is absolutely no evidence of any marks or indications of any kind, upon the ground, that the road was ever located at any place except where it now is, and its location is thoroughly and plainly defined, inclosed by banks, at some places four or five feet deep, and the only evidence whatever of any change is that, as some witnesses recollect, it formerly was located somewhat north of its present location; but this evidence is not supported by any physical evidence of its location elsewhere than where it is now located, and the whole evidence, to our minds, shows that it is now located substantially where it was when the deeds were made. It therefore results that the verdict of the jury is not only not supported by the evidence but is palpably and flagrantly against its great weight. While there is some evidence of slight changes in some parts of the road, there is no evidence of any substantial change in any part of it, and the evidence as a whole proves overwhelmingly that the road is substantially where it always has been, at least since the deeds were made to the parties, and the motion of appellant for a peremptory instruction should have been sustained.

[1] Since this court in its former opinion, which is the law of the case, decided that the road, and not the line described in the deeds, is the division line between the lands of the [3] 3. Upon the instructions given by the parties, it is manifest that evidence of the court over appellant's objection and excepline as described in the deeds was irrelevant tion, the jury was authorized to find for apand incompetent; and that its admission was pellee, according to the line as described in prejudicial to appellant is made clear by the the deeds, if they believed from the evidence verdict of the jury that this line, rather than there had been a substantial change in the the road, is the division line between the road, even though they might believe the lands of the parties. It was therefore prej-road had never been located where the line udicial error to admit this evidence, and the as described in the deeds was run. This was judgment must again be reversed.

[2] 2. Appellant introduced 28 witnesses, who testified that the road is now just where it was when the deeds were made, while appellee introduced 18 witnesses who testified that the road, in some respects, was not exactly as it was at the time the deeds were made; but no one of these witnesses testified that it ever, at any time, was located where the calls in the deeds are now located by Mr. Dodson, the surveyor. In fact, the great weight of the evidence of appellee's witnesses is that the road, except at two points, is in substantially the same place that it was when the deeds were made. Practically the only evidence of any change, except in widening and ditching the road, is confined to two points, the one, near appellee's stable, and the other, at its west end, near the Jones line; and the most that any witness who testified states that the road has been moved, at either of these two points, is that, in the judgment of one of the witnesses, at the point near the west end of the road it has been moved from 40 to 60 feet; but most of

error, for, under the former opinion of this court, appellee was entitled to recover, if at all, only the land extending to the road as it was located at the time the deeds were made. Upon another trial, if the evidence is the same as upon this trial, and appellant again makes a motion for a peremptory instruction, it should be sustained. If, however, there is evidence to carry the case to the jury, the instructions should limit appellee's right to recover to the land extending to the road as the jury may believe frem the evidence it was located when the deeds were made.

The judgment is reversed, and cause remanded for proceedings consistent herewith. THOMAS, J., not sitting.

GOFF v. SAXON.

(Court of Appeals of Kentucky. Feb. 27, 1917.) CONTRACTS ~~10(2) — UNILATERAL CONTRACT -WHAT CONSTITUTES.

A contract between an elocution teacher and

another, whereby the teacher agreed to instruct such pupils as might be assigned to him by the

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

other and to teach no others in the vicinity for five years, and to pay a certain sum per month for rent of a studio, and whereby the other agreed to furnish a registrar and give her influence for ten months free of charge, thereafter she to receive one-fourth of the gross receipts as commission, was a unilateral contract, since it left it optional with the other whether she should assign any teaching to the teacher or permit him to do any teaching.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 28, 33, 34.]

Appeal from County.

Circuit

Court,

Fayette Injunction by Anna Chandler Goff against Edward Saxon. From judgment for defendant, plaintiff appeals. Affirmed.

Allen & Duncan, of Lexington, for appellant. Hunt & Bush and J. T. Farmer, all of Lexington, for appellee.

CARROLL, J. This suit was brought by the appellant as plaintiff to enjoin the appellee as defendant from teaching elocution or dramatic art in any of its branches in Lexington or within 23 miles thereof, or in the cities of Frankfort or Danville, within a period of five years from and after June, 1915. The lower court sustained a general demurrer to the petition and amended petition, and the plaintiff appeals.

The cause of action of the plaintiff was rested on an alleged violation of clause, 4 of a contract between the parties reading as follows:

"This agreement made and entered into this July 26, 1913, by and between Edward Saxon, of Nashville, Tenn., party of the first part, and Anna Chandler Goff, of the Arts Club, Lexington, Ky., party of the second part. Witnesseth, that whereas, party of the second part is desirous of securing the service of said party of the first part, as teacher of expression and dramatic art, all of which is to be done under the general direction of said party of the second part:

"Now, therefore, said party of the first part, in consideration of the promises and agreements of said party of the second part herein contained, hereby promises and agrees:

"First. To be in Lexington, Ky., on or be fore the 15th of September, 1913, and to teach, instruct, and direct such pupils and clubs as may be assigned him by party of the second part for instruction in any branch called dramatic art as taught and directed by party of the first part. Party of the first part agrees to avail himself of every opportunity to secure pupils, private or in classes, in Lexington or in adjacent towns, and to organize dramatic clubs where it seems advisable. Said party of the first part hereby agrees not to engage in the work of teaching or directing during the time of this contract, except under the direction of said party of the second part, as herein agreed

upon.

fort or in Danville), in the business of teaching
or directing in elocution or dramatic art in any
of its branches for a period of five years after
the termination of this contract, or any con-
tract between the parties named.

"Fifth. To pay said party of the second part
fifteen dollars and fifty cents ($15.50) per month
for the rent of studio at the Arts Club beginning
September 15, 1913, and continuing to the end
of the contract between the parties herein
named.

"In consideration whereof said party of the second part promises and agrees:

"First. To give her influence and the influence
of the Arts Club to the party of the first part
for the first ten months covered by this contract
without any commission.

"Second. To furnish registrar that will attend
to all business connected with said department.
"Third. That after the expiration of this con-
tract for ten months a second contract will be
entered upon as follows for the school year be-
ginning September 1, 1914: The party of the
first part will receive three-fourths (4) of the
gross receipts, and the party of the second part
will receive the remaining one-fourth (4) of
ing of said party of the first part either in Lex-
the gross receipts from all teaching and direct-
ington or in adjacent towns as covered by the
first part of this lease. With the exception of
this charge concerning commission to party of
will remain absolutely the same for the school
the second part, the remainder of the contract
year beginning September, 1914, and until the
termination of the final contract.
tend to all business connected with said depart-
"Fourth. To furnish a registrar that will at-

ment."

We are advised by the briefs of counsel that the lower court was influenced to sustain the demurrer to the petitions of the plaintiff upon the ground that the contract was so lacking in mutuality as to be unenforceable by either party, and upon the further ground that it was so unjust and unequal in its effect upon the defendant that a court of equity would not specifically enforce it.

The construction of this contract is, of course, a matter for the court, and to the contract alone we must look in determining the rights of the parties. The contract may be divided into two parts, as the first five clauses set out the promises and agreements of Saxon, and the remaining four stipulations set out the promises and agreements of Miss Goff. It will be seen that Saxon agreed in the first clause to teach, instruct, and direct such pupils and clubs as might be assigned to him by Miss Goff for instruction in such branches of dramatic art as were taught by her, and to secure pupils and organize clubs. And he further promised not to engage in the work of teaching except under the direction of Miss Goff.

It is very plain that under this clause
there was no obligation on the part of Miss
Goff to do anything, and neither could Saxon
do anything unless by her permission. In
other words, Saxon was to do whatever she

"Second. Said party of the first part hereby
agrees that the term of this contract shall be for
a period of ten (10) school months, of four weeks
each, from September 1, 1913, to June 6, 1914.
"Third. Said party of the first part agrees
to do all such teaching as may be assigned him
by the party of the second part in Lexington, saw proper to direct or permit him to do,
Ky, or in any adjacent towns, within a radius and no more, except that he was to secure
of 23 miles, and in Frankfort or in Danville.
as many pupils and classes as he could from
"Fourth. Said party of the first part hereby
agrees not to engage in the city of Lexington, which service he could receive no benefit or
Ky. (nor within 23 miles thereof, or in Frank- compensation unless Miss Goff saw proper

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to assign him for instruction such pupils or classes. Whether she did this or not was entirely optional with her.

on the part of one party to furnish a registrar for the benefit of another party might be of value to the other party if he was per

The second clause merely fixed the dura- mitted to acquire or create business from tion of the contract.

The conditions of the third clause are really embodied in the first clause, as in this clause Saxon merely agreed to do such teaching as Miss Goff permitted or assigned him to do. Whether she assigned him any teaching or permitted him to do any teaching was entirely optional with her.

In the fourth clause Saxon agreed not to teach within a certain territory until after five years from the termination of the contract.

In the fifth clause he agreed to pay Miss Goff $15.50 a month as rent for a studio, but, unless Miss Goff saw proper to permit him to teach or assigned him pupils or classes to instruct, it is plain that Saxon would get no benefit whatever from the use of the studio for which he was to pay the stipulated rent.

which he would derive a profit. But, on the other hand, if he was not permitted to engage in any profitable enterprise except by the consent of the party agreeing to furnish the registrar, this promise might be of no value whatever. It would hardly be worth while to agree to furnish a man a clerk to attend to his business and in the same breath tell him, "you can't attend to any business unless I permit you to do it."

The third clause, after providing for a renewal of the contract, stipulated that Saxon should receive three-fourths of the gross receipts from all teaching and directing engaged in by him. But it does not stop there. It limits the teaching and directing from which he is to get these receipts to such teaching and directing as Miss Goff assigned him to do, because it stipulates that these receipts are to be derived from "all teaching and directing of said party of the first part, either in Lexington or adjacent towns, as It

In other words, the sum and substance of the five clauses of the contract setting out what Saxon should do imposed on him sev-covered by the first part of this lease." eral obligations, but none on Miss Goff. He must do what she assigned or permitted him to do, and she need not permit him to do anything or assign him anything to do.

is therefore plain that Saxon could not receive any receipts from teaching or directing unless Miss Goff assigned him the teaching or directing to do. And so whether Saxon received any receipts depended altogether on Miss Goff, as Saxon himself could not, in opposition to her wishes, engage in any teaching or directing that would bring him receipts.

Let us see now what beneficial obligations to Saxon Miss Goff assumed the performances of under the last four clauses purporting to set out her agreements under the contract. In the first one she agreed to give her influence and the influence of the Arts Club Under this contract, reading it as a whole, to Saxon, but just how this influence would Saxon agreed to do several things, but Miss be helpful to Saxon is not apparent when it Goff did not agree to do anything. It is a is kept in mind that he could not engage in fine example of what is termed a unilateral any remunerative work unless she permit- contract, binding in its terms upon one parted him to do so or assigned him work to do. ty, but not upon the other. Such a contract The mere fact that one party agrees to use is not enforceable by either party. Rehmhis influence for the benefit of another can-Zeiher Co. v. Walker Co., 156 Ky. 6, 160 S. W. not be of any help to the other when no re- 777, 49 L. R. A. (N. S.) 694; Killebrew v. turns.from the influence can be received by Murray, 151 Ky. 345, 151 S. W. 662; Berry him unless the party promising the influ- V. Frisbie, 120 Ky. 337, 86 S. W. 558, 27 Ky. ence consents that the other party may deLaw Rep. 724. rive benefit from it. When it is kept in mind that Saxon could not earn any money by either teaching or directing until and unless Miss Goff prmitted him to do so or assigned him pupils or classes to teach or instruct, it is obvious that whether any beneficial results came to Saxon from this promised influence was entirely in the discretion of

Miss Goff. She could, if she desired to, make her influence remunerative to him, and she could, if she wanted to, deny him the right to receive any benefits from it.

In the second and fourth clauses Miss Goff agreed to furnish a registrar to attend to all the business. It might be asked, what business? And the only answer would be such business as she saw proper to permit Saxon to engage in. Of course, the promise

The judgment is affirmed.

GATLIN et al. v. ALLEN et al. (Court of Appeals of Kentucky. Feb. 23, 1917.) 1. DEEDS 211(1, 3, 4) - VALIDITY -SUFFICIENCY OF EVIDENCE.

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been procured from incompetent grantor by undue influence, evidence held sufficient to show grantor's competency and that fraud and undue influence were not employed by grantees.

In action to set aside deed claimed to have

[Ed. Note.-For other cases, see Deeds, Cent. Dig. 8 637-642, 644, 647.]

2. DEEDS 196(2, 3)—VALIDITY—Burden of PROOF.

The law regards with suspicion conveyances by infirm persons procured by those having custody of them, and where fraud or undue in

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

fluence is claimed, the burden of showing fair- the infant children of Eliza Ladd that were ness of the transaction is on the person against whom it is charged.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. § 649.]

3. APPEAL AND ERROR 931(6) - PRESUMPDISREGARD OF INCOMPETENT EVI

TION

DENCE.

Where a suit to cancel deed was tried before the court without a jury, it will be assumed on appeal that incompetent evidence introduced was disregarded.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3766.]

Appeal from Circuit Court, Hopkins County.

Action by Mrs. Mollie Gatlin and others against Ampudia Allen and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Laffoon & Waddill, and H. F. S. Bailey, all of Madisonville, for appellants. Gordon, Gordon & Cox, of Madisonville, for appellees.

SETTLE, C. J. R. A. Allen, at the time a resident of Hopkins county, died March 29, 1913, intestate. The death of his wife had occurred about two years previously. R. A. Allen was survived by the following named children: A daughter, Mrs. Mollie Gatlin, wife of W. E. Gatlin; and three sons, Ampudia, Henry, and Alva Allen-also the following grandchildren, viz.: M. F. Franklin, K. O. Wright, Leo Ladd, Robt. Ladd, and Hazel Ladd. The grandchildren were born to his daughter Eliza Ladd, who died in 1906. Of these grandchildren M. F. Franklin and Leo Ladd are infants over 14 years of age; Hazel Ladd and Robert Ladd infants under 14 years of age.

The decedent, R. A. Allen, owned no real estate at the time of his death, and the personal estate owned by him did not exceed in value $300. However, on and prior to September 2, 1911, he was the owner of a tract of land containing about 100 acres lying on Pond river, in Hopkins county, which, on that date, September 2, 1911, he by deed conveyed to his three sons, Ampudia Allen, Henry Allen, and Alva Allen, the consideration expressed in the deed being the undertaking of the grantees to pay to the grantor's daughter Mollie Gatlin the sum of $200, and a like sum to the children of his daughter Eliza Ladd, deceased. After retaining possession of the deed for 11 months the grantor delivered it to his sons and the latter, by his direction, shortly thereafter had it put to record in the proper office. September 2, 1913, the appellants, Mollie Gatlin and such of the children of Eliza Allen as were over 14 years of age, together with the husbands of such of the females as were married, and the guardians of such of the infants as were over 14 years of age, brought this action in equity against the appellees, Ampudia Allen, Henry Allen, Alva Allen, their wives respectively,

under 14 years of age and their statutory guardian, to set aside and cancel the deed of September 2, 1911, made by the decedent, R. A. Allen, to his three sons, upon the grounds that the grantor, R. A. Allen, was at the time mentally incapable of making the deed or understanding the transaction, and that its execution was procured by fraud and undue influence practiced and exercised upon him by his three sons, Ampudia, Henry and Alva Allen. The joint and separate answer of the latter and their wives traversed the allegations of the petition.

record the case was heard and determined By agreement of the parties appearing of by the circuit court upon the oral testimony of the witnesses. The trial resulted in a judgment dismissing the appellants' petition and awarding appellees their costs, and from this judgment the former have appealed.

We find from an examination of the bill of evidence that 16 witnesses were introduced. in behalf of the appellants and 31 in behalf of the appellees. Perhaps the majority of these witnesses were related to the parties to the action, and practically all of them reside in the neighborhood where the decedent, R. A. Allen, lived and died, and by reason thereof were afforded every opportunity to become acquainted with him, his physical and mental condition.

[1] The evidence tends to prove that, though more than 80 years of age when he executed the deed, the grantor, R. A. Allen, was a man of average physical and mental vigor. Subsequently, however, he became afflicted with a cancer and suffered slight attacks of paralysis. The paralysis soon passed away, but the cancer finally caused his death. The evidence is conflicting as to the condition of his mind at the time the deed was executed, but the weight of it was to the effect that he was then possessed of sufficient mind and capacity to understand the transaction, know what estate he possessed, the objects of his bounty, what disposition he desired to make of his property, and to make a rational disposition thereof. The three sons lived all their lives on the land conveyed them. They had all ministered to their father's wants, and for several years prior to his death he was very dependent, and in constant need of their assistance, which was freely given him. There was no proof whatever of any attempt on the part of the grantees or any of them to influence their father, either in the matter of the making of the deed or otherwise. The plaintiff Mrs. Gatlin and one other witness testified that the grantees, about 2 years before the old man's death, procured the services of a surveyor to run off and divide between them the land conveyed by the deed, and that when Mrs. Gatlin objected to the surveying and division, the work was suspended.

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

But

we fail to see in this transaction anything | tained in the record, equally furnished by more than that her interference caused her the parties. Such incompetent evidence might father discomfort and led to the dismissal have been prejudicial to the rights of the of the surveyor by the sons. He then expressed no purpose to forego his intention of conveying the land to the sons.

According to the testimony of numerous witnesses, the grantor as far back as 12 or more years before his death expressed the intention of giving his land to his three sons, and this purpose he continued to express down to the time of the execution of the deed, and until his death. There was no proof whatever that the sons were heard to advise or ask him to convey them the land, and it was testified by the draftsman of the Ideed that when he wrote the deed it was at the grantor's request, and none of the sons was present, and that the grantor was then possessed of sufficient mind to understand the transaction and to direct how the deed should be made. However, the most signifi. cant thing developed by the evidence was the fact that 12 years before his death and 10 years before the execution of the deed to his sons R. A. Allen caused to be written a will whereby he devised to them the same land later conveyed them by the deed. It is not claimed by appellants, nor testified by any of their witnesses, that he was then incompetent. He was then admittedly in possession of his mental faculties and in vigorous health. This fixed purpose the intervening years did not change; and the making of the deed to the sons later resulted, according to the evidence, from the old man's desire to put them in possession of the land before his death.

parties had there been a trial by jury, but, as the evidence was heard and passed on by the court, it is but fair to assume that such of it as was incompetent was disregarded. At any rate, we are convinced that the judgment is supported by the weight of the competent evidence appearing in the record. Judgment affirmed.

FORD V. JONES et al.

(Court of Appeals of Kentucky. Feb. 23, 1917.) 1. SUBROGATION__7(1)—SURETY-MORTGAGE

FORECLOSURE Bond.

One who, at the request of purchaser at a real estate mortgage foreclosure sale, signs as surety sale bonds for purchase price and is later forced by legal proceedings to pay the bonds, is entitled to be placed in the shoes of the mortgagee and may recover against mortgagor for whose benefit money was paid. [Ed. Note.-For other cases, see Subrogation, Cent. Dig. § 77.1

mm 22

PRINCIPAL AND

2. SUBROGATION
SURETY-VOLUNTARY PAYMENT.

The payment of the debt of another by a surety who is forced to pay to save his property from sale under execution in hands of sheriff is not voluntary, but is such as entitles payer to be subrogated to rights of payee.

[Ed. Note.-For other cases, see Subrogation, Cent. Dig. §§ 48, 55, 59.]

Appeal from Circuit Court, Fayette County.

Action by B. F. Ford against Margaret Jones and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

SAMPSON, J. This is an unusually complicated record. It consists of about 700 full-size pages of typewritten matter and embraces a great mass of evidence, as well as numerous pleadings, amendments, and exhibits. An appeal was had to this court from a judgment in the Fayette circuit court including part of the same parties, the identical property, and some of the same questions here concerned. The opinion will be found in Jones v. Yantis, 113 S. W. 111. To make a detailed statement of fact would occupy many pages and would not be worth

[2] The foregoing facts and circumstances were, in the opinion of the circuit court, sufAllen & Duncan, of Lexington, for appelficient to free the conveyance from any lant. A. F. Byrd, of Jackson, for appellees. suspicion of fraud or undue influence, and establish its validity. The law regards with suspicion transfers of property by persons mentally or physically infirm, procured by those having custody of them; and for this reason, though ordinarily the burden of proving fraud or undue influence is on the person alleging it, where either fraud or undue influence from the beneficiary or confidential relation of the parties is charged, the burden is on the person against whom the complaint is made to show the fairness of the transaction. King, etc., v. Burkhart, etc., 167 Ky. 424, 180 S. W. 534; Miller v. Taylor, etc., 165 Ky. 463, 177 S. W. 247; McDowell v. Edwards, Adm'r, 156 Ky. 479, 161 S. W. 534. That burden seems to have been fully discharged by appellees in this case; as they have, we think, shown by the weight of the evidence that the conveyance from their father to them was unattended by any of the circumstances that would seem to indicate either fraud or undue influence.

[3] We will not prolong the opinion by pointing out the incompetent evidence con

the space.

The important facts are these: Lizzie and Margaret Jones of Lexington, with their joint money, purchased two certain lots on Deweese street, and the title was made to and held by Lizzie Jones for herself and sister Margaret. Later on in May, 1891, Lizzie obtained a loan of $500 from a building and loan association with which to erect a house, and secured the loan by a mortgage upon the lots and the house. On July 10,

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

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