made as required by the policy. It is further claimed that if the suit is upon the policy it was not brought in time, but that it is evidently, as in fact is claimed by appellant, not brought upon the policy, but on the award, and that the award is conclusively shown to be an award, not as to what the company owed Herd, but solely as to the amount of Herd's loss, all other questions between the company and Herd being expressly reserved; that, therefore, such an award does not constitute a cause of action, and that the action should have been upon the policy, in which cause the award would establish one of the constituents of a cause of action.

Without going into the details of the testimony, it may be stated that we have reached the conclusion that in this case the arbitration and award, taken in connection with the immediate notice of loss and the circumstances shown in the testimony as attending the award, show a waiver on the part of the company of what is termed in the policy "satisfactory proof of loss."

The next question is as to the effect which the award had in fixing a liability upon the company. We think it had no such effect, except in so far as it tended to show a waiver of the proof of loss required, and as it did establish one fact necessary to constitute a cause of action upon the policy, to wit, the amount of the loss occasioned by the fire. Manifestly, it did nothing more than this. By its terms it was limited to this. By the terms of the policy under which the arbitration was had its effect was limited to this. As between the parties, it established what was the amount of the loss occasioned by the fire, and, in the absence of fraud or mistake, the question of the amount of the loss, as between the parties, was distinctly settled, and could not be further inquired into. This seems too plain to require any argument other than a statement of the conditions of the award itself. From this it follows that if, as both parties claim, the action is not upon the policy, but solely upon the award, no cause of action is made out, because the award, in and of itself, does not constitute a cause of action.

But, assuming that the petition as amended sufficiently sets out a cause of action upon the policy for the amount fixed by the award, we reach the question whether in such a contract a provision is valid which limits the time within which an action may be instituted to a period less than that fixed by the statute of limitations. The great weight of authority in this country seems to be in favor of the validity of such a provision, and the general doctrine has been so well stated by Mr. Justice Field in Riddlesbarger v. Insurance Co., 7 Wall. 389, 19 L. Ed. 257, that we quote his argument in full upon this branch of the case: "The objection to the condition is founded upon the notion that the limitation it prescribes contravenes the

This

policy of the statute of limitations. notion arises from a misconception of the nature and object of statutes of this character. They do not confer any right of action. They are enacted to restrict the period within which the right, otherwise unlimited, might be asserted. They are founded upon the general experience of mankind that claims which are valid are not usually allowed to remain neglected. The lapse of years without any attempt to enforce a demand creates, therefore, a presumption against its original validity or that it has ceased to subsist. This presumption is made by these statutes a positive bar, and they thus become statutes of repose, protecting parties from the prosecution of stale claims, when by loss of evidence from death of some witnesses and the imperfect recollection of others, or the destruction of documents, it might be impossible to establish the truth. The policy of these statutes is to encourage promptitude in the prosecution of remedies. They prescribe what is supposed to be a reasonable period for this purpose, but there is nothing in their language or object which inhibits parties from stipulating for a shorter period within which to assert their respective claims. It is clearly for the interest of insurance companies that the extent of losses sustained by them should be speedily ascertained, and it is equally for the interest of the assured that the loss should be speedily adjusted and paid. The conditions in policies requiring notice of the loss to be given, and proofs of the amount to be furnished the insurers within certain prescribed periods, must be strictly complied with to enable the assured to recover. And it is not perceived that the condition under consideration stands upon any different footing. The contract of insurance is a voluntary one, and the insurers have a right to designate the terms upon which they will be responsible for losses; and it is not an unreasonable term that in case of a controversy upon a loss resort shall be had by the assured to the proper tribunal, while the transaction is recent, and the proofs respecting it are accessible. stipulation in a policy to refer all disputes to arbitration stands upon a different footing. That is held invalid because it is an attempt to oust the courts of jurisdiction by excluding the assured from all resort to them for his remedy. That is a very different matter from prescribing a period within which such resort shall be had. The condition in the policy in this case does not interfere with the authority of the courts; it simply exacts promptitude on the part of the assured in the prosecution of his legal remedies, in case a loss is sustained respecting which a controversy arises between the parties." In a note to the opinion in the Riddlesbarger Case is given a long list of authorities in support of the doctrine there announced. See, also, Joyce, Ins. § 3181.

A

While this question does not seem to have

been expressly passed upon in this state, the validity of such a provision was distinctly recognized in Owen v. Insurance Co., 87 Ky. 574, 10 S. W. 119, where, in an opinion by Judge Bennett, it was held that, under a provision limiting the bringing of such a suit to one year, it was clearly the intention of the parties to the contract that the insuree should have 365 days in which to bring his suit, and that Sundays should be counted to make the number of days, but that he should be as much entitled to the last day of the 365 as to the first day, and, as that day fell upon Sunday, he was equitably entitled to bring his suit upon the Monday following.

Did the bringing of the action at law set up in the amended reply operate to suspend the running of the contract limitation? We think not. That suit does not come within the meaning of section 2545, Ky. St., as it was not dismissed for want of jurisdiction. And in the Riddlesbarger Case, supra, it was held: "The action mentioned, which must be commenced within the twelve months, is the one which is prosecuted to judgment. The failure of a previous action from any cause cannot alter the case. The contract declares that an action shall not be sustained, unless such action, not some previous action, shall be commenced within the period designated. It makes no provision for any exception in the event of the failure of an action commenced, and the court cannot insert one without changing the contract." In that case it appeared that the statute of limitations of Missouri, where the action originated, provided that, if in any action commenced within the periods mentioned the plaintiff should suffer a nonsuit, he might commence a new action within one year afterwards. So, in Joyce, Ins. § 3204, it is said: "The rule is that if a suit is brought within the time provided in the policy, but is dismissed or discontinued for any reason, and a subsequent suit is brought after the expiration of the time limited, though perhaps immediately upon the dismissal or discontinuance of the first suit, the second action cannot be maintained." But it is contended that section 227 of the Civil Code of Practice applies. That section provides: "If a garnishee fail to make a disclosure satisfactory to the plaintiff, the latter may bring an action against him, by petition or amended petition, in the same manner, and the proceedings therein shall be the same as in other actions; and the plaintift may procure an order of attachment in the same manner, and the proceedings thereupon shall be the same, as is hereinbefore and hereinafter authorized concerning attachments, except that the plaintiff's affidavit shall state, in addition to the facts required to be stated in section one hundred and ninety-six, the sum which the defendant owes to the plaintiff's debtor; and the plaintiff shall not be entitled to attach for or recover more than that sum and costs not more than the amount of the plain

tiff's claim against his debtor and costs." Under this section it is contended that, as the garnishee did not make a disclosure satisfactory to the claimant, he had the right, either in that suit, by amended petition, or in a separate suit, by original petition, to assert his rights under the lien which it is insisted that he obtained by virtue of the service of garnishee process in the action at law, and that, therefore, the proceeding is a continuous one, the present proceeding being a continuation of the one which was dismissed.

In the first place, the present proceeding was not brought for any such purpose. The former suit is not referred to in the petition or any of the amendments. It does not seek to assert any lien by virtue of the service of the garnishee process. And even if we were authorized to consider the averments of the amended reply as an amendment to the petition, and to hold that the defendant company was not entitled to ignore those averments, as it did, an examination of them discloses the fact that they are not only palpably not intended to assert any such right, but are not sufficient to do so if such right existed. It does not appear by any averment that either of the causes of action against Herd which are set up on this proceeding is the same as the cause of action against him sued on in the action at law. On the contrary, in so far as the averments show anything upon that question, they show that the cause of action sued on in the action at law was not the same as either of the ones upon which the judgments against Herd set up in the present proceeding were obtained; for one of the judgments alleged in the petition was for $799.48, subject to a credit of $100, and the other was for $250, subject to four credits, while the action at law averred in the amended reply is stated to have been "upon a promissory note for over $250." The fact is that the present suit was an ordinary proceeding upon return of nulla bona, and neither at the time of filing the petition nor of filing the amended reply could there have been any idea of relying upon section 227 of the Code. The judgment is affirmed.

GUFFY, WHITE, and O'REAR, JJ., dissenting from that part of the opinion which holds that the contract limitation is valid.

FELIX v. CRAIL.1

(Court of Appeals of Kentucky. Feb. 20, 1901.)

CONSTRUCTION OF DEED-RESTRICTION OF POWER OF ALIENATION CONVEYANCE OVER UPON FAILURE TO ALIENATE. A deed to a married woman, after conveying to her a fee-simple separate estate, provided that, in the event of her death without leaving issue surviving her and her husband. the property conveyed should go to the bus

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

band's heirs, but that she and her husband should have full power to sell and convey the land, and that the sole condition of the husband's heirs inheriting any title whatever was the death of the wife and the death of the husband without issue surviving, and the title remaining in the wife. It was further provided that upon the death of the wife before that of the husband without issue surviving, and before any such sale and conveyance, the property should go to the husband in fee simple. Held, that the wife's power of alienation did not cease upon the death of the husband, and a purchaser from her after the death of the husband must comply with his contract.

Appeal from circuit court, Jefferson county, chancery division.

"Not to be officially reported."

Action by Josephine Crail against J. S. Felix to enforce specific performance of a contract for the sale of land. Judgment for plaintiff, and defendant appeals. Affirmed. Joseph Doniphan Felix, for appellant. Fairleigh, Straus & Eagles, for appellee.

DU RELLE, J. This is an agreed suit entered by appellee against appellant to enforce specific performance of a contract to purchase a lot of land in Jefferson county; the defense relied on being that appellee, under the deed to her, did not take, and could not convey, a fee-simple title. At the time of the execution of the deed under which appellee holds, she was the wife of Samuel B. Crail, who has since died, leaving two children born of that marriage, and two brothers and a sister, who would have been his only heirs at law had he left no children. The deed is between Davis and wife, of the first part, and appellee, the wife of Samuel B. Crail, of the second part, and, after stating the consideration, recites: "The said parties of the first part have bargained, sold, granted, conveyed, and confirmed, and by these presents do bargain, sell, grant, convey, and confirm, unto the said Josephine Crail, the following described lot, piece, or parcel of ground: * To have and to hold the same, together with the appurtenances thereon, unto the said Josephine Crail, as a separate estate, for her sole use and benefit, with the covenant of general warranty, and against all liens, incumbrances, taxes, or assessments of any and every kind whatsoever." So far the usual form of a deed conveying a feesimple, separate estate is employed. The deed continues: "In event of the death of the said Josephine Crail without leaving lawful issue surviving her and the said Samuel B. Crail, the property herein before described and conveyed shall go to the heirs at law of the said Samuel B. Crail, as it would pass if it had descended from Samuel B. Crail to said heirs. It is, however, distinctly understood that if at any time the said Josephine Crail and Samuel B. Crail shall determine to make a sale and conveyance of said property, or of any part thereof, they reserve full power to sell and

convey the same, irrespective of any person or persons whomsoever included or contemplated in any provision herein expressed, and to warrant title thereto in fee simple as effectually as though the conditions as to a separate estate or as to the heirs at law of said Samuel B. Crail had not been included herein; the sole condition of said heirs at law inheriting any title or estate whatever being the death of the said Josephine Crail and the death of the said Samuel B. Crail without leaving issue surviving, and the title at the date of said deaths remaining in said Josephine Crail. Upon the death of the said Josephine Crail before the said Samuel B. Crail without so leaving lawful issue surviving, and before any such sale and conveyance as herein provided for, then said property herein before described and conveyed to go to said Samuel B. Crail in fee simple."

The agreed facts show a will of Samuel B. Crail devising all his property to his wife, and a quitclaim deed to appellee from the surviving brothers and sisters. In our view of the case, these matters are entirely immaterial. Appellant claims that under this deed there was a joint power of sale in appellee and her husband, and that after his death the power ceased, but there could be no conveyance of the title except under this joint power, and therefore that the estate which appellee took was a defeasible fee, subject to be defeated by her death without issue surviving, in which event the collateral heirs at law of her husband took. Appellee was the sole grantee. The lot was conveyed to her without limitation of time. If nothing followed the habendum clause, she would take the absolute fee simple. For what contingency was the subsequent language intended to provide? Clearly, it seems to us, for two contingencies: First, the death of both appellee and her husband without children, and with the title to the property still remaining in her at her death; and, second, the death of appellee without children. Upon the happening of the first contingency the collateral heirs of the husband were to take; upon the happening of the second, the husband himself was to take. In the first event intended to be provided for, if appellee were the absolute owner in fee simple, her heirs would take, and his would have no interest; in the second, if she were the absolute owner, her heirs would take,. and he would have no interest except by virtue of his marital rights. It may be presumed from these provisions that the consideration was furnished by the husband. But, be that as it may, it is evident that no restriction was intended to be placed upon the grantee's power of alienation, except that which was imposed by the statute of conveyances, that her husband should join in the conveyance. This is manifest from the fact that no provision is made for the issue born of the marriage, and no restraint

is placed upon the power of alienation in favor of the children. Had there been any intention to place a restriction upon her power of alienation, except in the remote contingency of the death of the grantee with the title still in her, and without issue born of that marriage, surely there would have been a provision that such issue should take. But there is no such provision. If children were born of the marriage and survived her, she might by will exclude any one or all of them from participation in the property, and dispose of it as she wished. In our judgment, the deed in question was not intended to restrict her absolute power of alienation, and the provision under consideration was intended to apply only in the event of her failure to alienate, and her death without living issue who are also the issue of Samuel B. Crail. For the reasons indicated, the judgment is affirmed.

PENDLETON et al. v. TACKETT et al.1 (Court of Appeals of Kentucky. Feb. 20, 1901.) GARNISHMENT-RIGHT OF DEBTOR TO CREDIT ON ORIGINAL DEBT.

Where defendant had been adjudged to pay a part of the note sued on to creditors of plaintiff in a garnishment proceeding instituted by them, he should have been allowed an unconditional credit by the amount actually paid by him on the judgment against him as garnishee, and a proper order should have been made as to the residue of that judgment.

Appeal from circuit court, Johnson county.

"Not to be officially reported."

Action by A. J. Tackett and others against James Pendleton and others to enforce a vendor's lien. Judgment for plaintiffs, and defendants appeal. Reversed.

W. H. Holt, for appellants. B. H. Conley, for appellees.

GUFFY, J. The chief object sought in this suit by the plaintiffs was to obtain a Judgment against the appellant Pendleton for several

sums aggregating something over $300. The substance of the defense made by the appellants is that their vendor, James M. Green, had, before his sale and conveyance to appellants, conveyed to Tillman Green a passway through the best part of the land for a distance of 1,340 yards, which damaged the land in the sum of $200; that he had also conveyed to said Tillman Green 12 or 15 acres of the land embraced in the deed to appellants, which was worth $100; that $73.75 of the notes sued on were garnished in favor of John W. Moore, etc., and the defendants were adjudged to pay same, and a judgment was rendered against them therefor. Some other credits were claimed by appellants. After the issues were made up, and proof taken, the court rendered a judgment in favor

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

of the plaintiff Tackett, who was assignee of James M. Green, the vendor of the land, for the sum of $150, besides interest, credit by $20 October 10, 1892, and for the further sum of $200, subject to a credit of $30, and also $35; the $35 being the adjudged value of the right of way and for 16 acres of land. Judgment was also rendered for enforcing a lien upon the land purchased by appellants to satisfy said judgment, and from that judgment this appeal is prosecuted.

It seems to us that the court below should have made a proper order in respect to the $73.75 which appellants were adjudged to pay under the garnishment by one of Green's creditors, part of which appears to have been paid by appellants, and for that appellants should have had an unconditional credit. The court should have made a proper order as to the residue of the $73.75, to the end that the plaintiff in the garnishment proceedings should be protected, and that appellants should not have to pay the same sum twice. It is very evident from the proof in this case that the injury to the land by reason of the passway and the other land lost to appellants damaged the farm much more than the $35 allowed by the court below. We think it clear that appellants should have at least $150 credit upon the notes, instead of the $35, to have taken the date of the notes in suit. For the reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent herewith.

MANUFACTURERS' LAND & IMPROVEMENT CO. v. COVINGTON SAWMILL CO.1

(Court of Appeals of Kentucky. Feb. 20, 1901.) PLEADING VARIANCE-WAIVER OF OBJECTION.

Where the bill of items filed with a counterclaim was in the name of a firm of which defendants were the successors, and that fact was shown on the trial without objection, it was too late to object upon motion for new trial, for the first time, that the account pleaded as a counterclaim was not owing to defendants.

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

Action by the Manufacturers' Land & Improvement Company against the Covington Sawmill Company to recover rent. Judgment for defendant on a counterclaim, and plaintiff appeals. Affirmed.

O'Hara & Rouse, for appellant. Harvey Myers, for appellee.

WHITE, J. The appellant brought this action on account to recover rent for certain property. Appellee denied the account, and by answer and counterclaim sought to recover for repairs to the same premises. Appellant denied the liability for repairs, and pleaded

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

settlement of the disputed claim for repairs. Appellee denied settlement. On these issues the case was tried in the lower court by a jury. Their verdict was for appellee on the counterclaim reduced by the amount of appellant's account. Appellant's motion for a new trial having been overruled, this appeal is prosecuted.

The grounds relied on for reversal, and same on motion for new trial, are that the verdict is against the evidence, and that the counterclaim was proven to have been due, if at all, to Culberson & Bro., and not to appellee. The proof showed that the repairs were made by the firm of Culberson & Bro., who were the predecessors of appellee, and also that the members of the firm of Culberson & Bro. are almost entire owners of the present firm of the Covington Sawmill Company, which, it seems, is not a corporation, but a partnership. The bill of items filed with the answer and counterclaim is in the name of Culberson & Bro., and on the introduction of the proof the fact was clearly shown without objection, and the question is first presented in the motion for new trial. This, it seems to us, is too late. The issues as to its justness and the settlement were submitted to and tried by a jury, and now, after verdict adverse to appellant, it will not be permitted to raise the question. There is no objection raised as to the instructions given to the jury, and they having seen and heard the witnesses testify, and the law of the case having been correctly given, we are not disposed to reverse their finding. The testimony is conflicting, and, while on another trial a different verdict might be reached, it could not, under the evidence, be directed; nor is there any reasonable certainty that another trial would result differently. For these reasons the judgment is affirmed, with damages.

FERGUSON v. MASON.1 (Court of Appeals of Kentucky. Feb. 20, 1901.)

EXECUTION SALE-AGREEMENT OF PURCHASER TO ALLOW DEBTOR TO REDEEM.

An agreement by the purchaser of land at an execution sale to allow the defendant to redeem will be enforced as against the purchaser's wife, to whom he conveyed the land without consideration, for the purpose of defeating the contract right of redemption.

Appeal from circuit court, Montgomery county.

"Not to be officially reported."

Action by Ann B. Mason against George Ferguson to recover an interest in land. Judgment for plaintiff, and defendant appeals. Reversed.

A. T. Woods, for appellant.

WHITE, J. The question on this appeal arises on demurrer to an answer and cross

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

petition of appellant, George Ferguson, to the petition of appellee, Ann B. Mason, in which she claimed a one-sixth interest in cer tain lands by sheriff's deed to her. Appellee alleges that the land was sold by the sheriff under certain executions against appellant, and deed made to her. For answer and cross petition, appellant alleged that the land was sold under the executions, and was purchased by the husband of appellee, and that before the sale the husband of appellee, who was the beneficiary in all the executions save one, agreed with appellant to purchase the land, and to permit appellant to redeem same at any time by the payment of the full sum of the purchase price and interest at 6 per cent., and that after the sale the purchaser, husband of appellee, recognizing the agreement to permit redemption, received from appellant sundry sums, set out, on the redemption thereof. It is further alleged that the purchaser procured the deed to be made by the sheriff to appellee, his wife, for the purpose of defeating, if possible, the right and claim of appellant to redemption, as well as to defeat or delay the creditors of the husband, and that there was no consideration paid by appellee for the land; that the transfer to her was voluntary and fraudulent. Appellant then offered to redeem and pay any balance due on the 'purchase price, and asked that the appellee be compelled to convey to him or be declared to hold in trust for him. The court sustained a demurrer to this answer and cross petition, and hence this appeal.

We are of the opinion that the answer and cross petition was sufficient, and the demurrer should have been overruled. Williams v. Williams, 8 Bush, 241; Fishback v. Green, 87 Ky. 107, 7 S. W. 881; Butler v. Prewitt (Ky.) 53 S. W. 20; Green v. Ball, 4 Bush, 586. For this error the judgment is reversed, and cause remanded, with directions to overrule the demurrer to the answer and cross petition as amended, and for proceedings consistent herewith.

BEGLEY V. COMMONWEALTH.1 (Court of Appeals of Kentucky. Feb. 19, 1901.)

ARREST BY PRIVATE PERSON-SOLICITATION TO MURDER-WHETHER FELONY OR MISDEMEANOR-BELIEF THAT PERSON ARRESTED WAS GUILTY-ARREST FOR PURPOSE OF EXTORTING MONEY.

1. A private person may, as provided by Cr. Code Prac. § 37, make an arrest when he has reasonable grounds for believing that the person arrested has committed a felony, but in no oth

er case.

2. A private person indicted for unlawfully arresting another cannot escape punishment on the ground that he had reasonable grounds for believing that a certain offense committed by the person arrested was a felony, and not merely a misdemeanor, as ignorance of the law does not excuse; and, in any event, he cannot be acquitted if he made the arrest merely for the

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