BIG SANDY CO. v. ABSHIRE. (Court of Appeals of Kentucky. June 22, 1923.) 1. Cancellation of Instruments 37(1)-Petttion need not allege plaintiff was in posses sion. Ky. St. § 11, requiring the plaintiff to allege and prove both title and possession in an action to quiet title, does not apply where the action is to prevent the appropriation and conversion of plaintiff's own title, by cancellation of a deed executed by her husband in which she joined, and a petition in the latter case is not demurrable because it fails to allege plaintiff was in possession. 2. Husband and wife15(5)-Wife's separate estate not conveyed by her joining in deed of husband conveying property. A wife's separate estate in the mineral rights of land is not conveyed by her joining in the execution of a deed in which her husband was named as sole grantor and warrantor. Appeal from Circuit Court, Pike County. Action by Nancy Ann Abshire against the Big Sandy Company to cancel a deed for the minerals in a tract of land, and to adjudge the plaintiff to be the owner thereof. Judgment for plaintiff, and defendant appeals. Affirmed. lee. J. J. Moore, of Pikeville, for appellant. CLARKE, J. Alleging that she was the owner of the minerals in a described tract of land, appellee instituted this action against the appellant to cancel a deed for same, executed by her husband to appellant's remote vendor. She further alleged that at the time the deed was executed she was an infant, and that she signed and acknowledged same, but did not join therein as a grantor; that as to her the deed was void, but that under and by reason thereof appellants were claiming the minerals in said land, and "wrongfully and unlawfully attempting to appropriate and convert" her title to its own use. She prayed that the deed be canceled, that she be adjudged the owner of the minerals in the land, and that her title be quieted. After its demurrer to the petition had been overruled defendant filed a pleading styled an "Answer and Counterclaim," in the first paragraph of which it denied that plaintiff was the owner of the minerals in the land, or that the deed from her husband, which she sought to have canceled, was void or ineffectual to pass her title thereto, or that it was wrongfully or unlawfully attempting to appropriate or convert her title to its own use, or that she was an infant when the deed from her husband was executed to its remote vendor, but admitting that it claimed title to the minerals by reason of the deed from plaintiff's husband. In the second paragraph, and as a counterclaim, defendant alleged that it was the owner of the minerals in the land; and prayed that "plaintiff's petition be dismissed, for its cost, and for all general and special relief." By agreement the affirmative allegations in the answer and counterclaim were traversed of record, Plaintiff proved her title to the land from the commonwealth, and that at the time of the execution of the deed which she sought to have canceled she was a minor, and the wife of D. B. Abshire. Her name appears in the caption of that deed merely as the wife of D. B. Abshire, who alone attempts to convey and warrant his title thereto. The defendant did not attempt to prove title to the land, otherwise than through this deed from Abshire. The chancellor canceled the deed, adjudged plaintiff to be the owner of the minerals, and quieted her title thereto, and the defendant has appealed. For reversal it is urged (1) that the court erred in overruling the demurrer to the petition; and (2) in canceling the deed from D. B. Abshire to its remote vendor, and which plaintiff admitted she signed and acknowledged. [1] 1. In an action to quiet title under section 11 of Kentucky Statutes, it is necessary for the plaintiff to allege and prove both ti tle and possession, and as plaintiff neither alleged nor proved possession of the minerals involved in this action, it is insisted that the demurrer to the petition should have been sustained, and that on final submission the petition should have been dismissed, without reference to whether or not the deed she sought to have canceled was valid or not. The basis of this contention is the assumption that this is an action to quiet title under section 11, supra, and if this were true the contention would be sound, unless, as claimed for appellee, the answer and counterclaim converted the action into one to try title simply. But this is not an action under that section of the Statutes, since the defendant is not casting a cloud upon her title by claiming the property under a different and hostile title, but through and under her own title. Hence it is an action to prevent the defendant from wrongfully appropriating and converting plaintiff's title under and by reason of a deed from her husband, and to which she was only a nominal, but not a granting, party. The distinction between these two classes of cases is clearly pointed out in Cumberland v. Kelly, 156 Ky. 397, 160 S. W. 1077, Childers v. York et al., 187 Ky. 332, 218 S. W. 1027, and Frasure et al. v. Northern Coal & Coke Co. et al., 189 Ky. 574, 225 S. W. 479, in each of which will be found a citation of many cases of each class. The rule is thoroughly For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (252 S.W.) settled that where, as here, the action is to prevent the appropriation and conversion of a plaintiff's own title, it is not necessary to allege or prove possession. Hence there is no merit in appellant's first contention. [2] 2. No authority is cited in support of the insistence that the involved deed is valid, and sufficient to convey plaintiff's title to the minerals, which had been conveyed to her by her father, as her absolute and separate estate, and none can be found, we are sure. Aside from the fact that at the time she was an infant, it is clear, under many decisions of this court, that as the deed does not purport to be a conveyance by her or to convey her title, it was wholly ineffectual to accomplish that result. Hatcher et al. v. Andrews et al., 5 Bush, 561; Hedger v. Ward et al., 15 B. Mon. 106. Judgment affirmed. OHIO COUNTY BOARD OF SUPERVISORS Taxation 158-Exclusion of acreage con- ecuted this appeal, and the company has filed a cross-appeal. The valuation of $72,450 was ascertained by both the board of supervisors and the quarterly court, by assessing the entire $9,660 acres at $7.50 an acre. The circuit court also fixed the assessable value of such of the 9,660 acres as had any merchantable minerals in them at $7.50, but the evidence on that trial now before us, shows, without contradiction, that 2,950 of the 9,660 acres have no minerals in them, and as the company only owns whatever minerals are to be found in the land, the circuit court excluded from its estimate this 2,950 acres, and assessed the remainder at $7.50 per acre. All of the evidence relates to the value of these minerals by the acre, and no witness testifies as to their value as a whole, and, in our judgment, there is no merit in appellant's complaint of the court's action in excluding the 2,950 acres which bear no minerals from the calculation to ascertain the total value of the minerals. Both parties complain of the court's finding from the evidence that the value of the minerals was $7.50 per acre, but this is not only the same value per acre as was found by the quarterly and circuit courts, and the same as fixed by the appellant itself at the hearing before it, but it is in our judgment amply supported by the contradictory eviWhere a coal mining company listed its dence as to the salable value of these minmineral rights in 9,660 acres of land for taxa-erals, which are inaccessibly located, as well tion, but evidence showed nearly 3,000 acres had no minerals, and the company owned only the mineral rights, it was proper to exclude the acreage without minerals from the assessment. as by a comparison with the assessments of other similar properties much more favorably located. Wherefore the judgment is affirmed upon both appeals. Appeal from Circuit Court, Ohio County. Proceedings by the Ohio County Board of Supervisors to assess for taxation mineral rights in land listed by the Green River Coal Mining Company. From a judgment of the circuit court on appeal from the quarterly. court, affirming the assessment made by the Board, the latter appeals, and the company files a cross-appeal. Affirmed on both appeals. Chas. I. Dawson, Atty. Gen., Martin T. Kelly, Asst. Atty. Gen., and Otto C. Martin, of Hartford, for appellant. TARTAR, Judge, et al. v. WESLEY. (Court of Appeals of Kentucky. June 22, 1923.) Counties 150 (3)-Excess of expenditures cannot be carried forward from year to year to accumulate beyond debt limit. Though Const. § 157, limiting the indebtedness of a county has been construed as not mistake or inadvertence, slightly exceeded the prohibiting an indebtedness which, through actual income of the county from being carried over to the succeeding year and considered as John B. Wilson and J. S. Glenn, both of a part of the indebtedness of that year, in Hartford, for appellee. estimating the needs and fixing the tax rate, it does not permit a county to carry such excess from year to year and allow it to accumulate and increase beyond the total revenue and income for the county for any year, and such accumulated indebtedness is void under the Constitution. CLARKE, J. For the year 1921, appellee listed its mineral rights in 9,660 acres of land, with the assessor, at $41,040. The board of supervisors raised same to $72,450, and upon an appeal to the quarterly court, the valuation was affirmed. The company appealed to the circuit court, where the assessable value was fixed at $50,325. From The fiscal court of a county has no authorthat judgment the board of supervisors pros-ity to borrow money on behalf of the county 2. Counties 150(1)—Fiscal court cannot borrow to pay indebtedness exceeding constitutional limit. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to pay a floating debt of the county accumulat- | said judge is empowered to pledge the amount ed during preceding years, which was, under due Pulaski county by the state highway comConst. § 157, void, because in excess of the mission, growing out of state contracts hitherindebtedness which the county was authorized to entered into. Be it further resolved that to contract without the consent of two-thirds of the voters. Appeal from Circuit Court, County. in payment of same the original obligation growing out of claims to be paid is hereby also pledged, and that payee to notes are also subPulaski rogated to all the rights of claim holders. Be it further resolved that a committee of three be appointed by this court to apply the proceeds of said loan to road claims now due against Pulaski county and that no claim shall be paid by the county treasurer unless indorsed by whole committee." Taxpayer's bill by Cornelius Wesley against R. C. Tartar, County Judge, and others, for an injunction. Judgment for plaintiff, and defendant named appeals. Affirmed. It is charged in the petition that the total property valuation of Pulaski county sub See, also, 197 Ky. 493, 247 S. W. 353. M. L. Jarvis and R. C. Tartar, both of ject to taxation for county purposes does not Somerset, for appellant. exceed $10,000,000, and that the gross sum Denton & Perkins and James Denton, all which the county may realize from the of Somerset, for appellee. SETTLE, J. This appeal is from a judgment of the Pulaski circuit court entered upon a demurrer to a taxpayer's bill to enjoin R. C. Tartar, county judge, and C. M. Langdon, county clerk, from borrowing $50,000 pursuant to a resolution of the Pulaski fiscal court adopted at a call meeting on the 5th day of January, 1922, upon the ground that the floating indebtedness of the county is greater than the constitutional limit and upon the further ground that the fiscal court has no power or authority to borrow money. A general demurrer was interposed to the petition and overruled by the court, whereupon, the defendants declining to further plead, judgment was entered perpetually enjoining and restraining R. C. Tartar, county judge, from executing, signing, or delivering to any one the note or obligation of Pulaski county for the sum of $50,000, or any other sum under the resolution of the fiscal court hereinafter copied, and from pledging the faith of Pulaski county to any such note or obligation to secure such an amount or any amount. From this judgment Tartar appeals. The resolution passed by the Pulaski fiscal court authorizing appellant to borrow the $50,000 for and on behalf of the county reads as follows: greatest rate of taxation available is $50,000 per year, of which sum $25,000 per year is required for current expenses, such as salaries of officers, etc., leaving only $25,000 available for sinking fund and all new improvements and obligations, and this is admitted on demurrer. The petition further avers that the total floating indebtedness of Pulaski county so far as ascertainable, at the time of the filing of this action, was something more than $191,903.83, and that the county has a bonded indebtedness of more than $305,000. There was filed with and made a part of the petition an itemized statement of the above indebtedness, which recites, however, that the $191,903.83 does not include the entire amount of the county's floating indebtedness, but necessarily omits several thousand dollars further indebtedness, the amount of which the plaintiff was unable to ascertain. All these averments are admit ted by the demurrer. The Constitution of this state (section 157) fixes a limit upon indebtedness which a county or other municipality may incur. It reads: "No county, city, town, taxing district, or other municipality shall be authorized or permitted to become indebted, in any manner or for any purpose, to an amount exceeding, in any year the income and revenue provided for such year, without the assent of two-thirds of "Be it resolved by the fiscal court of Pu-held for that purpose; and any indebtedness the voters thereof, voting at an election to be laski county, that the judge of this court be contracted in violation of this section shall authorized to borrow $50,000 for the liquida-be void." tion of certain existing debts against Pulaski county, due for road construction and improvement; and that it be further resolved that he be authorized to obtain the said $50,000 on the best terms available, and at a rate of interest not to exceed 6%; that he be authorized and empowered to sign the corporate name of Pulaski county to notes for same, and that his signature be attested thereto by the clerk of this court with the corporate seal of said county; be it further resolved that in payment of said loan the said judge be authorized to pledge the faith and credit of the said county, together with all assets due said county from all sources; to secure payment of same, the [1, 2] Just how the county of Pulaski became indebted in a sum in excess of $191,000, without submitting the question to the voters, is not fully set forth; but it does appear that a part of this indebtedness has been carried over from year to year without being taken into consideration in subsequent years in estimating the indebtedness of the county and ascertaining the funds available for public improvements and the extinguishment of existing obligations. The county cannot under section 157 of the Constitution (252 S. W.) But name of and binding upon the county for $50,000 to any one, and from borrowing such sum in the name of the county for any purpose, Judgment affirmed. The whole court sitting. COMBS v. GRIGSBY et al. GRIGSBY et al. v. COMBS et al. June 22, 1923.) In a suit to cancel a deed executed by the the land between the heirs of the ancestor, the ancestor of the parties to a son, and to divide action, in so far as it seeks to cancel the deed, is not an action for the recovery of real property, to which the limitation of Ky. St. § 2505, applies, but is an action to cancel the deed because of fraud, governed by section 2515, requiring such action to be commenced within 5 years after the cause of action shall have accrued, and section 2519, providing that such cause of action accrues on the discovery of the fraud or mistake, but that no such action shall be brought 10 years after the time of the making of the contract, or the perpetration of the fraud. 2. Deeds Incur an indebtedness for any purpose in pellant from executing an obligation in the excess of the income and revenue provided for such year without the assent of twothirds of the voters thereof voting at the election to be held for that purpose. The indebtedness contracted in violation of this provision of the Constitution is declared to be void. We have held in several cases that where, through mistake or inadvertence in calculating the income and revenue of a county or municipality, an indebtedness was contracted slightly in excess of the actual revenue and income of the county, that same might be carried over to the succeeding year and considered as a part of the indebted- (Court of Appeals of Kentucky. ness of that year in estimating the needs and fixing the tax rate for that year. in no case have we held that such overplus. Limitation of actions 37 (4)-Cancellation of deed for fraud is barred in 10 years. could be carried from year to year and allowed to accumulate and increase beyond the total revenue and income of the county for any year, McCrocklin v. Nelson County Fiscal Court, 174 Ky. 308, 192 S. W. 494; Nelson County Fiscal Court v. McCrocklin, 175 Ky. 199, 194 S. W. 323; Carman v. Hickman County, 185 Ky. 630, 215 S. W. 408. Whatever power a fiscal court may have to borrow money cannot be exercised for the purpose of paying debts illegally contracted. It therefore appears from the averments of the petition, and is admitted by the demurrer, that much if not all of the floating indebtedness of the county of Pulaski which is charged to be $191,903.83, is void under section 157 of the Constitution, declaring that without the consent of two-thirds of the voters of the county voting at an election held for that purpose, indebtedness contracted in violation of the provisions of the section shall be void. The purpose for which the $50,000, proposed to be borrowed by the fiscal court is to be used and applied are not made sufficiently definite and certain to enable us to say what particular part of the indebtedness of the county will be extinguished by such funds if obtained through the loan according to the plan set forth in the fiscal court resolution; but it does sufficiently appear from the petition that it is proposed by the fiscal court to ap ply it to outstanding claims against the county contracted after a floating indebtedness of more than $191,000 has been incurred, and that all such indebtedness must be held under section 157 of the Constitution to be void. The county, therefore, through its fiscal court and county judge, cannot contract a new indebtedness binding upon the county to take care of an old indebted-4. Limitation of actions of some of class does not suspend limitations against whole class. ness void because contracted in excess of the constitutional limit. 177, 211(1)-Subsequent deeds by grantor covering small part of same land held not to show incapacity or disaffirmance. Proof that, after the execution of the deed in controversy, the grantor executed other deeds, some of which, under the evidence, may have covered small portions of the land covered by the deed in controversy, but did not cover the residence on that tract, nor any substantial part of the land, was not evidence of lack of capacity to execute the deed in controversy, nor tantamount to a disaffirmance of that deed by the grantor. 177— 3. Adverse possession 64-Deeds Where an owner of land executed a deed conveying it to his son, evidence that grantor continued to live on the land with his son, but that the son took possession of the land as his own, and handled it as he pleased, and supported the grantor and his wife for the rest of their lives, does not show a disaffirmance of the conVeyance by the grantor, nor defeat the grantee's right to the property by adverse possession. 70(2)-Disability Where a cause of action accrues to a class, part of whom are sui juris, and part of whom are under disability, the disability of the part does not prevent the statute from running as For these reasons, and for others that could be assigned, the chancellor did not err in overruling the general demurrer to the petition and in perpetually enjoining the ap-to the whole. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes 5. Judicial sales 58–Grantors of purchaser | Combs owned any of the lands at the time of held not entitled to any portion of tract on which they had only a lien. Where the purchaser of land at a judicial sale assigned his bid to two of the sons of the former owner, who thereafter took a deed from a grantee of a part of the land covered by the sale, and procured a sheriff's deed therefor, but thereafter the former grantee had his deed to the assignees set aside, on repaying to them the amount they paid for the assignment of the bid, they are not entitled, as against the heirs of the original owner, to the portion of the land not conveyed by him to that grantee, since they acquired from the bidder no title to the land, but only a lien for the amount paid therefor. his death, also denying the averments of the petition as to fraud in procuring the deeds sought to be canceled, and affirmatively pleading the 5, 10, 15, and 30 year statutes of limitation in bar of the right of plaintiffs to maintain the action as to a cancellation of the deeds. Pleas in avoidance of these statutes were interposed by plaintiffs on the ground of coverture and other disabilities, which, as they claim, suspended the operation of the statutes. On the issues, made by the pleadings the chancellor dismissed the petition as to certain lands described therein, but sustained the plaintiffs' claim as to two tracts, from which James P. Combs, who claimed to be the owner of those tracts, has appealed. The plaintiffs have prosecuted an independent appeal against Sampson Combs and the children of William Combs, on the ground that they were adjudged to be the owners of land that should have been divided among all the heirs. In a suit for partition among the heirs of a former owner of land, the court properly refused to order the division of certain tracts claimed by two defendants, which were not included in the deeds to those defendants, where On the appeal of James P. Combs two the preponderance of the evidence showed that the defendants had been in possession of those tracts of land are involved, one of which is tracts for more than 30 years, and especially designated in the record as the Mason where the evidence did not show that plain- Combs 400-acre survey, and the other refertiff's ancestor ever had title to the land, but|red to as the Elijah Cornett land. The 400at most had only an equity therein by reason of payments on an oral contract for purchase, which the court charged on the land. acre survey was patented by Mason Combs, the father of Clinton Combs, in 1810. After the death of his father, Clinton Combs became the owner of that part of the survey lying on the east side of the north fork of the Kentucky river, and in 1891 conveyed it to his son, S. B. Combs, who in 1908 conveyed it to J. P. Combs. Clinton Combs died in 1900. He was then about 98 years of age, and the evidence shows that he had been very dissipated from his early manhood. It is Appeal from Circuit Court, Perry County. Action by Emaline Grigsby and others against James P. Combs, Sampson Combs, and others, for division of lands, and to set aside deeds of conveyance to some of the defendants. From a judgment setting aside a conveyance to the defendant James P. Combs of two tracts of land, that defendant ap-contended by plaintiffs that when he deeded peals; and from a judgment refusing to set this land to S. B. Combs in September, 1891, aside a conveyance to Sampson Combs and he was of unsound mind, or at least was sufanother, plaintiffs appeal. Reversed in part, fering from such mental infirmity as renderand affirmed in part on the appeal of James ed him incapable of understanding the conP. Combs, and 'affirmed on the appeal of sequences of his act. Both of these contenplaintiffs. tions are denied by defendants. The chancellor held that Clinton Combs' mental condition was such as to render the deed voidable. but that it was in force until it was disaffirmed. He also held that it was disaffirmed Hogg & Johnson, of Hazard, and C. C. Turner, of Frankfort, for James P. Combs. H. C. Faulkner & Son, of Barbourville, and W. A. Stanfill, of Hazard, for Emaline Grigsby a subsequent conveyance of a part of the by and others. P. T. Wheeler and John D. Carroll, both of Frankfort, for Sampson Combs and others. MOORMAN, J. This action was filed in the Perry circuit court by some of the heirs of Clinton Combs against other heirs of his for a division among plaintiffs and defendants of several described tracts of land alleged to have belonged to Clinton Combs at his death, and to set aside certain deeds of conveyance to some of the described tracts made by Clinton Combs to his sons. Answers were filed by the defendants, denying that Clinton land to other children of Clinton Combs, and by his retention of control of the property until the time of his death. As an additional ground for adjudging that the land belonged to Clinton Combs, it was decided that limitation began to run against S. B. Combs when a part of the land was conveyed by Clinton Combs to John J. Combs, and continued until Clinton Combs' death in 1900 and during the lifetime of his widow, who died in 1910, during which time the title ripened by adverse possession in Clinton Combs and those claiming under him, and further that S. B. Combs acquiesced in the disaffirmance by Clinton For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |