ure to allege that the company is incorporated makes the petition insufficient. This matter is sufficiently discussed, and its want of applicability to this petition shown, by what has been already stated.

The second assignment may be disposed of by saying that a right accruing to such an organization in its company name inures to the benefit of its members.

By the third assignment it is asserted that a grant to an unincorporated association for amusement of any interest in land is void, and the title remains in the vendor. This is not a question involved in this action, and is not necessary to be noticed. Ackermann permitted the use of his premises, and contracted to pay to the verein (to the members thereof, if it was unincorporated) the cost of the improvements made on the land, when defendants desired the use discontinued. This action is to recover on such agreement. The character of the action rendered a description of the land, roads, and gates wholly immaterial. What has been said disposes of the 4th, 5th, 6th, 7th, 8th, 9th, 11th, and 26th assignments.

The tenth assignment is not a proposition, and no propositions are advanced under it; therefore it cannot be considered.

Under the twelfth, thirteenth, and fourteenth assignments the admissibility of testimony that F. Ackermann loaned the verein certain sums of money is brought into question. It appears from this testimony that F. Ackermann loaned it $150 to rebuild its hall after it was burned down; and two notes of the verein to F. Ackermann-one for $75, signed by Fred C. Ackermann, president, and J. Albert Ackermann; another for $150, sign ed by F. Lange, president, Fred C. Ackermann, vice president, and Ch. Ackermannwere allowed in evidence. This testimony was objected to as "immaterial, irrelevant, calculated to prejudice the rights of defendants, and can serve no purpose to prove any issue involved in the suit." There is no proper statement in appellant's brief in connection with these assignments, and we are not enabled to say that there was not some issue of fact or phase of the case which made this testimony relevant. The statement given does not contain anything except what is stated in the assignment.

There is nothing of any force in the fifteenth and twenty-second assignments. The obligation sued on was to pay the cost of the improvements; consequently testimony of what they cost was proper.

The twenty-first assignment states, in effect, that a number of plaintiffs were not shown by anything in the record to be, or to have ever been, members, and therefore it appears that these were not parties to the contract sued on, nor that they were intended to take as beneficiaries, nor that they were contemplated to be beneficiaries, nor that they are in

any manner connected therewith. The peti tion alleged that the verein was composed of the persons named. As to contracts or property, the members should be treated as partnefs. Allen v. Long, 80 Tex. 267, 16 S. W. 43. The allegation was practically that the parties named constituted all the members. There was no plea questioning this fact, neither a plea of misjoinder, nonjoinder, nor no partnership, as alleged. The question was one which, in our opinion, could not be raised under our statute, except by some such plea. Liederkranz Singing Soc. v. Germania Turnverein (Pa. Sup.) 29 Atl. 918; Cronkrite v. Trexler (Pa. Sup.) 41 Atl. 22.

The twenty-seventh and twenty-eighth assignments complain of the refusal of charges, in effect, that, if the land was the separate property of Mrs. Ackermann, plaintiffs could not recover, unless defendants took and appropriated the improvements. The right to use the land might be effected by the fact that the land was the separate estate of the wife, but the judgment here is only against the husband upon his personal obligation, and this was to pay the costs of the improvements, if defendants desired to have the verein's use of the property discontinued. We see no force whatever in the twenty-ninth assignment.

The seventeenth assignment is that the verdict is excessive, and the pleadings and testimony will not support a verdict for more than $111.42, instead of $521.42. The petition itemizes the cost of the improvements thus:

Lumber and material used in erection
of hall

Amount expended for labor..
Amount expended for benches and
tables

Amount expended for platform..

$348 00 48 42

15.00

110 00

$521 42

The platform, when the hall was rebuilt, was removed, and the material went into the hall. Upon this appellant predicates the claim that plaintiffs could not recover on account of the hall for more than $348, as that was the sum alleged to represent the lumber and materials used in erecting the hall. The amount expended on the platform, it must be borne in mind, was also sued for, and there was evidence to show that the $348 was the cost of the hall outside of what material went into it from the platform. If the cost of platform had not been sued for, or if it had not been made to appear that the plat form material went into the hall, nothing could have been recovered therefor, it having been removed; but, under the pleadings andi the testimony as they are, it was proper to add to the $348 the cost of the platform ma terial. The assignment of error is merely that none of the item of $110 could be recov ered, and with this we are unable to agree The judgment is affirmed.

WHITE, J. This is an action to surcharge a settlement made with the county court by appellant, as guardian of appellee. The items sought to be corrected amount to the sum of $164.35. Judgment was rendered for that sum, with interest calculated at biannual rests, as provided by law; the total sum of the judgment appealed from being $264.35. The appeal herein was granted August 21, 1899, which was after the jurisdiction of this court was raised to $200, exclusive of interest and costs. In the cases of Hale v. Grogan, 50 S. W. 257, and Machine Co. v. Taylor, 46 S. W. 720, this court held that all interest should be excluded in ascertaining the jurisdictional amount; that interest embraced in the amount sued on, as well as interest accruing after the institution of the action, should be excluded. Those cases, with authorities cited, are conclusive of the question of jurisdiction in this case. The amount in controversy, exclusive of interest, is not $200. For this reason the appeal is dismissed, with damages.

STEVENS v. GLASS et al.1

(Court of Appeals of Kentucky. Jan. 25, 1901.)

DEEDS NOTICE-DESTRUCTION OF RECORDSESTOPPEL TO DISPUTE VENDOR'S TITLE.

Where a debtor purchased land, and procured his vendor to convey it to his wife, with intent to defraud his creditors, persons who purchased from him after the wife's death can claim only his title as tenant by the curtesy, though the record of the deed to the wife had been destroyed by fire, and her heirs had neglected to have the record supplied, as the husband never had any title, except through his wife, whose title he could not dispute, and his vendees got only what he had.

Appeal from circuit court, Graves county. "Not to be officially reported."

Action by Mary A. Glass and others against B. L. D. Stevens and others for a sale of land

DU RELLE, J. The appellees, who, with the exception of three parties joined as husbands, are children and heirs of Martha Townsend, deceased, brought suit against appellant, Stevens, and others, alleging that their mother died seised and possessed of a small tract of land; that her husband, who died in 1893, became tenant by curtesy; that he sold his life estate to one Ford, of whom appellant is the subvendee; and that Ford also became the purchaser of the interests of two other children of Martha Townsend. They alleged that the land was indivisible, and prayed for a sale and division of the proceeds. It was also alleged that the record of the deed to Martha Townsend was destroyed by fire in 1887, by the burning of the Graves county court house. The deed from their father to Ford had not been put to record at the time of bringing the suit, but was produced and filed in the suit. While the deed, on its face, purports to convey the land to Ford with general warranty, a son and daughter of Townsend, recited in the deed to be his legal heirs, joined in the deed, and relinquished all the right, title, or interest they had in the land. It was attempted to be pleaded by appellant that when. the deed to Mrs. Townsend was made the property was paid for by Townsend, and the deed was made to his wife with intent to defraud his creditors, and to defraud subsequent purchasers, and was void; that Ford and his subvendees purchased the property in good faith and without any notice of the fraud; that the record of the deed to Martha Townsend was destroyed by fire in 1887, and appellees had carelessly and negligently failed to have it re-recorded or the record thereof supplied. The sufficiency of the pleading setting up these claims is the sole question for consideration, as there is no bill of exceptions,

We think the demurrer was properly sustained. So far as the existing records showed, the title to the property was still in the McLains,-Mrs. Townsend's vendors. There never was any deed to Townsend, and there is no pretense in the pleadings that he ever had title. And so, even if it be admitted that the case of Tolle v. Alley (Ky.) 24 S. W. 113, correctly states the law, and that the statute which permits the restoration of lost records operates in favor of innocent purchasers, to devest persons of the rights which they had obtained by compliance with the statute as to the recording of conveyances, it cannot apply in this case, as the innocent purchasers did not buy from a person who ever had any title to anything except a life estate. Townsend had no title, except in right of his claim

under his wife, whose title he could not dispute. What his vendees got was what he had. Judgment affirmed.

ROSENHAM et al. v. POTTINGER et al.1 (Court of Appeals of Kentucky. Jan. 18, 1901.)

JUDICIAL SALES-INADEQUACY OF PRICE-ASSURANCES OF PURCHASER THAT HE WOULD BID VALUE OF LAND.

Land sold under decree to pay the debts of a decedent was appraised at $2,500, and the proof showed it to be worth between $2,500 and $3,000. It was purchased for $1,800 by the wife of one of the heirs who lived on the land, none of the other heirs being present at the sale. The husband of the purchaser had assured one of the other heirs that he desired the property, and was willing to give $3,000 therefor, and that other persons were willing to pay an equal sum for it. The heir to whom these assurances had been given, in order to secure a resale, made a written offer, with good security, to bid $2,500. Held, that exceptions to the report of sale should have been sustained, as only slight additional circumstances are required to make it the duty of the chancellor to set aside a sale where the price bid is grossly inadequate.

Appeal from circuit court, Nelson county. "Not to be officially reported."

Action by the administrator of Hardin Pottinger for a sale of land to pay the debts of plaintiff's intestate. Judgment confirming sale of land, and certain of the heirs of Hardin Pottinger appeal. Reversed.

J. W. S. Clements and Nat. W. Halstead, for appellants. Geo. S. & John A. Fulton, for appellees.

It

BURNAM, J. Hardin Pottinger died intestate, leaving a small personal estate, wholly insufficient to pay his debts, and a tract of 321 acres of land, lying in Nelson county. Six children and one grandchild, the only issue of a deceased daughter, survived him. The appellee Fulton qualified as his administrator, and subsequently thereto, on the 22d day of January, 1898, instituted a suit in equity in the Nelson circuit court, in which the adult heirs of decedent, and the husbands of the daughters and the wives of the sons, united as co-plaintiffs, making the infant and certain creditors defendants. was alleged that the personal estate of the decedent was insufficient for the payment of his debts and liabilities; that a sale of a part of the real estate was necessary for their payment; that the land could not be divided between the parties in interest without materially impairing the value thereof; and that a sale of the whole tract would redound to the interest of all concerned; and prayed for a reference to the master to report the debts and settle the accounts of the administrator. On the 9th of November thereafter a judgment was entered decreeing a sale of the whole tract in accordance with the prayer of the petition. It was appraised

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

at $2,500, and was sold in Bardstown, before the court-house door, on the 12th day of De cember, for $1,800; Mrs. Laurinda Pottinger, the wife of R. E. L. Pottinger, one of the plaintiffs, being the purchaser. The confirmation of the sale was resisted by all of the other heirs, upon divers grounds set out in written exceptions filed thereto, all of which were overruled, and the sale confirmed. From that judgment this appeal is prosecuted.

Upon the trial of the exceptions, Mrs. Rosenham, one of the heirs at law, offered, in order to secure a resale of the property, to bid upon such resale $2,500, the amount of the appraisement, being an advance of $700 over the price it had sold for. Her offer was in writing, and signed with good security. She also testified that before the sale her brother had said to her that he wanted the land, and would give $3,000 for it, and that a Mr. Young also wanted it, and that he was willing to give as much as $3,000 for it; that he (Young) had said that he would give $3,500 for it, and that if he bid that much he could take it. She testified that she lived in Louisville, and was prevented from being present at the sale by reason of sickness. R. E. L. Pottinger made similar statements to his brother, Dr. Samuel Pottinger, who also resided in Louisville, and he left the impression upon the mind of the doctor that he would make the place bring at least $2,500. The land was sold on a cold December county court day in Bardstown, 16 miles from the land, none of the heirs being present except the purchaser. The testimony shows that the property was worth somewhere between $2,500 and $3,000, and would, under ordinary circumstances, have realized this amount. While mere inadequacy of price is not alone sufficient to set aside a judicial sale, yet, when the price bid is grossly inadequate to the value of the property, only slight additional circumstances are required to justify and make it the duty of the chancellor to set it aside. See Bean v. Haffendorfer, 84 Ky. 693, 2 S. W. 556, 3 S. W. 138. It seems to us that this is one of the cases contemplated by the Code. Here the purchaser is one of the heirs at law and a joint plaintiff, living upon the property, and the other heirs lived remotely therefrom, and had a right, under the circumstances, to expect that he would protect their interests,-at least that he would not deceive them, with the view of acquiring the property for less than its actual value. His assurances to his sister that he wanted the property, and was willing to give $3,000 therefor, and that other parties were willing to pay an equal sum for it, were certainly calculated to mislead her and induce her to believe that there was no danger of the property being sacrificed or sold for less than this amount, which she regarded as its fair value. The special judge erred in overruling the exceptions, and confirming the sale, on this ground, and it will be unnecessary for us to consider the other

Guffy, J., dissenting.

"Not to be officially reported."
Petition for rehearing. Denied.
For former report, see 59 S. W. 520.

DU RELLE, J. Appellee suggests by petition for rehearing that the doctrine laid down in the opinion, while admittedly applicable to actions for damages sounding in tort, does not apply to actions ex contractu; and, further, that a demurrer is not the proper procedure to take advantage of a departure in pleading. There are numerous cases in which the doctrine of the opinion has been applied to actions ex contractu, the latest being the case of Westerfeld v. Insurance Co., 58 Pac. 92, by the supreme court of California, which in all particulars is almost exactly in point with the case at bar. Further citation upon this point is deemed unnecessary. The demurrer to the reply was not sustained on the ground that it was a departure, but was an insufficient pleading of confession and avoidance to the matter set up in the answer. The petition is overruled.

GUFFY, J., dissenting.

HAMILTON et al. v. COMBS' ADM'R et al.1
(Court of Appeals of Kentucky. Jan. 23, 1901.)
VOLUNTARY CONVEYANCES CONSTRUCTIVE
FRAUD-SALES-FAILURE TO TRANS-
FER POSSESSION.

1. A conveyance executed by a debtor to another without consideration is constructively fraudulent as to his creditors.

2. Where a brother and sister lived together on the same farm, a sale of personal property by the brother to the sister was valid as to creditors, though the property was not removed from the farm, there being a change of possession without such removal.

Appeal from circuit court, Bullitt county. "Not to be officially reported."

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

Action by the administrator of M. C. Combs and others against M. L. Hamilton and C. C. Lee to set aside certain transfers of property as fraudulent. Judgment for plaintiffs, and defendants appeal, plaintiffs prosecuting a cross appeal. Affirmed.

Chapeze & Halstead, for appellants. J. F. Combs, for appellees.

WHITE, J.

The appellees, having judgments and returns of "No property" on executions against C. C. Lee, brought their joint action in equity against Lee and appellant Hamilton, seeking to have a certain conveyance of property by Lee to Hamilton declared to operate as an assignment for the benefit of creditors. The property conveyed was a one-fourth interest in real estate in Louisville, Ky., and also some personalty in Bullitt county. Appellants pleaded that more than six months had elapsed since the date of the conveyances, and that appellees' cause of action was barred by limitation made and provided. After the answer pleading limitation was filed, appellees filed an amended petition, in which it is alleged that the personalty in Bullitt county was at the time of the alleged transfer on the farm of Lee in Bullitt county, and in his possession, and has so continued in his possession ever since, and that no transfer or charge upon said property has been recorded in the Bullitt county court clerk's office, and they allege that the transfer is and was void as against them. They charge that the deed to the Louisville property, as well as the writing transferring the personalty, was made without any consideration, and was voluntary, and therefore void. They asked that the deed be set aside and canceled, and the property, both real and personal, be subject to the payment of appellees' debts. This amended petition was denied, and upon the issues raised proof was taken, and the case tried. Judgment was rendered canceling the deed, and subjecting the real estate to the payment of appellees' debts, but refusing any relief as to the personalty. From this judgment appellants ap peal and appellees take a cross appeal.

We are of opinion that the proof in the case shows that the deed was executed without consideration, and was voluntary. It was, as against these appellees, creditors, fraudulent and void. The judgment of the court as to the realty was, therefore, not error. We are also of opinion that the proof shows that a fair consideration was paid for the personalty, and that, as Lee and Mrs. Hamilton lived together on the same farm, the possession of the personalty did change with the sale, without a removal of the property from the farm. That was her home. Her property was there, and in her possession. The same could be true of any property she might purchase, even of her brother, C. C. Lee. For the reasons indicated, the judgment appealed from is affirmed on both original and cross appeals.

FORDSVILLE BANKING CO. v. GRAY.1 (Court of Appeals of Kentucky. Jan. 23, 1901.) APPELLATE JURISDICTION-AMOUNT IN CONTROVERSY.

The only matter in dispute on defendant's appeal being the amount of a set-off pleaded by him, which was less than $200, exclusive of interest, that is the amount in controversy, and therefore the appeal must be dismissed for want of jurisdiction.

Appeal from circuit court, Ohio county. "Not to be officially reported."

Action by Lelia R. Gray against the Fordsville Banking Company. Judgment for plaintiff, and defendant appeals. Dismissed.

Massie & Robey, for appellant. Sweeney, Ellis & Sweeney and H. P. Taylor, for appellee.

DU RELLE, J. Appellee brought suit, alleging that in July, 1897, she deposited with the appellant bank $1,003.35, which was placed to her credit, subject to her check; that she drew a check for that amount upon appellant to her own order, indorsed it, and demanded payment, which was refused, and the check was duly protested; that appellant converted that sum to its own use, and refused to pay it. The bank answered, pleading various set-offs. It averred that it had loaned appellee $100, for which she executed her promissory note, the note being also signed by her husband and two others, and that to secure the payment of the note she assigned an insurance policy for $1,000 upon her husband's life, payable to her at the death of her husband; that, her husband having died in the meantime, she employed the bank to collect the amount due on the policy, which it collected, and which is the sum of money sued for; that it had a lien, and was entitled to retain the amount of the note, with interest. Another set-off pleaded is the amount of a note for $60 subject to a credit of $36, executed by her husband and two others, which it is averred she promised to pay in consideration of the bank's extension of the time for payment, agreeing that the policy should remain in the bank's possession as collateral security. Another set-off is a note of her husband and two others for $25, as to which it is averred that the other two obligors were hands employed by her to work on her farm after her husband's death; that, when the note matured, they paid her the full amount of the note, which she agreed to pay the bank, and the bank accepted her promise to pay the same. It is further averred that her husband at various times drew upon the bank for various small sums, which checks were honored by the bank, though there were no funds on deposit to the credit of either appellee or her husband, but which she, before and after her husband's death, promised to pay the bank, and agreed that

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

the amount of such payments might be taken out of the money realized upon the policy. Judgment was taken for the amount not controverted by the answer. There was a demurrer, and a motion to strike out from the answer, which do not appear to have been passed upon. By reply appellee put in issue all the material averments of the answer, and pleaded that, if she did any of the things averred in the answer to have been done by her, she was at the time a married woman under the disability of coverture.

Several objections are urged to the testimony admitted and the instructions, the principal one being to the admission of certain testimony as to the payment of the $100 note to appellant, and an instruction which directed the jury, under certain circumstances, to find for appellant the amount of that note, if the same was never paid. These objections are based upon the fact that there is no plea of payment. If these objections can be considered at all,-which is doubtful, inasmuch as there was no exception whatever to the instructions, and there was testimony upon both sides upon the issue of payment, which was submitted to the jury by the instruction, and the instructions as a whole present the law much more favorably for the bank than it was entitled to,-we are still met with the difficulty that the record is obviously imperfect, as the bill of exceptions does not show that the instructions copied were all which were given, offered, or refused, and the amount in controversy is not sufficient to give this court jurisdiction. The amounts which the bank pleads as set-offs aggregate $197.10, exclusive of interest. The bank's set-offs constitute the amount in controversy, as there is no dispute about anything else. Under the circumstances we think the proper order should be one dismissing the appeal, and it is so ordered.

CONNOLLEY et al. v. EISMAN et al.1 (Court of Appeals of Kentucky. Jan. 22, 1901.)

ATTACHMENT-AGREEMENT TO ALLOW SUBSEQUENT EXECUTION TO HAVE PRIORITY.

Where an order of attachment was issued by the clerk, and delivered to the sheriff under an agreement with plaintiff's attorney, which was communicated to the sheriff, that an execution previously ordered should, when thereafter issued, be indorsed by the sheriff as having come to his hands first, but the sheriff indorsed the attachment as having been first received, and levied the execution subject thereto, the attaching creditor cannot claim priority, as the attachment, though in the possession of the sheriff before the execution was received, was not in his hands to be executed.

Appeal from circuit court, Pike county. "Not to be officially reported."

Action by J. Eisman & Co. against A. J. Scott and others, and by W. A. Connolley and others against same defendants, and by

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.