(252 S. W.) Combs, and was therefore estopped from as serting title under the deed of 1891. [1] Starting with the proposition that the deed to S. B. Combs was not void, but merely voidable, it is important, as we view the law, to consider the application of the statutes of limitation relied on by James P. Combs. This action has a twofold purpose, one of which is to divide the lands of Clinton Combs, including, as alleged, this tract, among his heirs, and the other to set aside the deed to this tract because of fraud in its procurement. As it pertains to the latter purpose, this is not an action for the recovery of real property, to which the limitation of section 2505, Kentucky Statutes, applies, but it is an action to set aside a deed because of fraud. Section 2515 of Kentucky Statutes provides that "an action for relief on the ground of fraud or mistake" shall be commenced within 5 years next after the cause of action shall have accrued, and section 2519 provides that "in actions for relief for fraud or mistake" the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake, but no such action shall be brought 10 years after the time of making the contract or the perpetration of the fraud. As we have said, the deed of September, 1891, was not void, but at most only voidable. The title to the land passed under the deed from Clinton Combs to S. B. Combs. Hence it seems clear to us that the 10-year statute of limitation is applicable; and, as nearly 25 years elapsed after the deed was made before this action was instituted, the claims of the plaintiffs are barred, unless there is some reason why the statute did not run, or unless some one of the other grounds on which the judgment is based is sustainable. opinion just expressed, we do not regard the later deeds referred to as an evidence of lack of capacity to convey the property to S. B. Combs, or as tantamount to a disaffirmance of that conveyance. Furthermore, it is our opinion, from a consideration of all the evidence, that Clinton Combs in 1891 was not of unsound mind, nor suffering from such mental debility as rendered him incapable of making a valid deed. [3] This brings us to a consideration of the finding of a disaffirmance on the ground of Clinton Combs' retention of the control of the property, which is related to the question of such acquiescence in the disaffirmance by S. B. Combs as estops him from asserting any claim under his deed, and the further question of the acquisition of title by Clinton Combs by adverse holding after the execution of the deed of 1891. The evidence on these points is conflicting, but it is our view that it preponderates in favor of the contention that Clinton Combs did not retain possession and control of the land, but that S. B. Combs took possession of it, cultivated and used it as he pleased, and supported Clinton Combs and his wife so long as they lived. Having reached that conclusion, it must be held that there was not a disaffirmance of the conveyance, nor a divesting of S. B. Combs' title, by any adverse holding, and in consequence no acquiescence on the part of S. B. Combs in any act or conduct that estops him from maintaining his rights under his deed. [4] But it is said that the deed may be attacked on the ground of fraud in its procurement, notwithstanding the 10-year statute of limitation, because at the date of Clinton Combs' death the limitation had not expired, and some of the plaintiffs were then and are now subject to the disabilities of coverture and infancy. However, it appears that several of the plaintiffs were not subject to any disability at the time of Clinton Combs' death, and it is a well-settled rule that, 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 a part does not prevent the statute from running as to the whole. Moore v. Calvert, 6 Bush, 358; May v. C. & O. Ry. Co., 184 Ky. 504, 212 S. W. 131; Henderson v. Fielder, 185 Ky. 485, 215 S. W. 187. It follows that the statute operates as a bar to the action to set aside the deed, and accordingly it was error to adjudge that the land in question constituted a part of the estate of Clinton Combs. [2] The findings of fact on which the chancellor's decision rests are that the deed was procured by fraud and the overreaching of Clinton Combs, that it was subsequently disaffirmed by a later conveyance and the grantor's retention of the control of the property, that S. B. Combs was divested of the title by the adverse holding of the land by Clinton Combs and his widow, and that S. B. Combs' acquiescence in the disaffirmance estops him from asserting claim of title under his deed. The first of these findings takes into consideration as potent factors the later conveyances to other children of what is said to have been the same land, and to have included Clinton Combs' residence and all his lands. From our examination of the evidence we have been unable to conclude that any of these con- As to the second tract involved on the origveyances included Clinton Combs' home, or inal appeal, it appears that on July 8, 1892, that the later conveyances to his sons, except it was conveyed by Clinton Combs to his son, the one to John J. Combs, included any sub-J. J. Combs. Prior to that time it had been stantial part of the land deeded to S. B. sold under execution against Clinton Combs Combs. As to what part of the John J. Combs tract was included in the tract conveyed to S. B. Combs, the evidence is quite unsatisfactory. In view, however, of the 252 S.W.-8 in favor of E. C. Cornett, but Cornett had agreed that the land might be redeemed. After J. J. Combs acquired the deed from his father, he went to Cornett to redeem the large part of this property to his son, D. S. Godsey, all of which D. S. Godsey conveyed in 1883 to Sampson and William Combs. In 1894 Sampson and William Combs divided the property between themselves by deeds which they executed and delivered. Sampson Combs has since that time lived on his part of the land, and William Combs resided on his part until his death, since which his children have lived on it. Sampson and William Combs and their children have been in the notorious, peaceable, continuous, and adverse possession of the Everidge lands since 1883, and also in possession of that part of the two Baker tracts of 200 and 60 acres, respectively, that was adjudged to them by the chancellor. land; but before he could pay the money J. | chase price. In 1869 Godsey conveyed a P. and D. Y. Combs paid Cornett and took a transfer of his bid. They afterwards procured a deed from J. J. Combs, and they had the sheriff make Cornett a deed to the land and Cornett to make them a deed. Subsequently J. J. Combs instituted a suit in the Perry circuit court to set aside the deed made by him, and a judgment was entered granting him that relief. The case was appealed to this court and affirmed in Combs v. Combs, $65 S. W. 13, 23 Ky. Law Rep. 1264, the court *holding that E. C. Cornett only claimed a lien on the land as against Clinton Combs, and that J. P. and D. Y. Combs stood in the shoes of Cornett. They were given a lien on the land for the amount that they had paid Cornett. "The evidence shows that they accepted payments on that lien as late as 1909 or 1910, and that it was finally extinguished. [5] It is said, however, that the purpose of the suit by John J. Combs was to set aside the deed which he had made to J. P. and D. Y. Combs, and that suit in no wise involved the title to that portion of the tract conveyed by Cornett to J. P. and D. Y. Combs not embraced in the deed of Clinton Combs to John J. Combs. Accordingly it is contended that the court should have adjudged James P. Combs the owner of that part of the tract not included in the deed from Clinton Combs to John J. Combs. We are unable to sub [6] It is insisted for plaintiffs that, inasmuch as the Everidge lands, when owned by A. C. Godsey, embraced eight separate tracts, or patents, and the deed from D. S. Godsey to Sampson and William Combs shows a conveyance of only four tracts, the chancellor was in error in adjudging Sampson Combs and the children of William Combs all of the Everidge lands. There are two complete answers to the insistence. The first is that the preponderance of the evidence shows that all the land adjudged to appellees had been adversely held by them or their predecessors for such a length of time as to give them title by adverse possession prior to the death of Clinton Combs, through whom plaintiffs of this court in Combs v. Combs, supra, for, claim; and the second is that the evidence as pointed out in that case, Cornett only fails to show that Clinton Combs had title to claimed a lien on the land, and it was held that the only interest that J. P. and D. Y. the property at the time of his death, or ever Combs obtained under their assignment of held title to it, although the chancellor found Cornett's bid was a lien on the land for the that he did have an equity in it, which was givamount that they paid Cornett. They ac-en to William Combs and Sampson Combs, and quired no title whatever, and, since James P. Combs is claiming this land through the assignment of Cornett's debt and the deed from John J. Combs, it is apparent that his claim cannot be sustained, and in this respect the judgment of the court is right. scribe to this view of the effect of the opinion The appeal of the plaintiffs involves several tracts of land claimed by and adjudged to Sampson Combs and the children of William Combs. These lands are referred to in the record as the Everidge lands. The evidence tends to show that during the Civil War Clinton Combs bought these lands, which adjoined his home place, under a parol contract from A. C. Godsey. It does not appear from any satisfactory evidence in the record that he was ever given a deed or title bond to the lands. However, he paid to Godsey several hundred dollars at different times on the pur for which they were charged in the judgment with $900. From the latter charge no appeal has been taken. But wholly aside from that question, it is sufficient to say that plaintiffs' claim to the Everidge lands cannot be sustained, because Sampson and William Combs had acquired title to them by adverse possession before the death of Clinton Combs, and Clinton Combs never had any title to them, and certainly did not have title at the time of his death; the title at that time and when this suit was instituted being in Sampson Combs and William Combs, or his heirs at law. From the foregoing it will be seen that the judgment as to James P. Combs is reversed in part and affirmed in part, and as to Emaline Grigsby and others, as against Sampson Combs and the heirs at law of William Combs, it is affirmed. (252 S.W.) MELTON v. COMMONWEALTH. (Court of Appeals of Kentucky. May 15, 1923.) 1. Criminal law 1179-Police court judgment not reviewed on appeal from dismissal of appeal to circuit court. On appeal to the Court of Appeals from a judgment of the circuit court dismissing an appeal from a conviction in the police court for a crime, the Court of Appeals is not concerned with the propriety of the judgment rendered by the police court, but only with the question whether the appeal to the circuit court was properly dismissed 2. Criminal law 260 (5)-Appeal from police court to circuit court held properly dismissed for delay. Under Cr. Code Prac. § 369, providing that no appeal shall be taken from a judgment of a police court after 60 days from the rendition thereof, an appeal to the circuit court from a conviction for crime was properly dismissed, where the judgment of the police court was rendered on December 1, 1922, and the appeal to the circuit court was taken on February 16, 1923. Appeal from Circuit Court, Graves County. Mrs. M. E. Melton was convicted in the police court of possessing intoxicating liquor for sale, and her appeal to the circuit court was dismissed, and she appeals from the judgment of dismissal. Affirmed. Hester, Seay & Hester, of Mayfield, for appellant. Chas. I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen., for the Commonwealth. was properly dismissed. The Code provides that no appeal shall be taken from a judgment of a county judge, or of a city, police, or justice's court, after 60 days from the rendi. tion thereof. Section 369, Criminal Code. The judgment of the police court was rendered on December 1, 1922. The appeal to the circuit court was taken on February 16, 1923, or more than 60 days after the rendition of the judgment. As the circuit court was without jurisdiction to entertain the appeal, it follows that the appeal was properly dismissed. Judgment affirmed. CINCINNATI, N. O. & T. P. RY, CO. v. (Court of Appeals of Kentucky. May 25, 1. Master and servant 137(1)-Use by section hand of additional leverage to throw greater weight of hand car onto fellow servant sufficient to support finding of negligence. Where six members of a section crew were lifting a hand car loaded with tools, it cannot be said that the use of a lining bar by one of them which gave a greater leverage was in and of itself negligence, but the added leverage given him may have been so used as to amount to negligence, and undisputed evidence that by the use of such bar he lifted his corner of the car higher and threw an undue proportion of the weight on plaintiff is sufficient to support a verdict finding negligence on his part. 2. Master and servant 155(3)-Section hand assisting in lifting hand car held not on equal footing with fellow servant. Plaintiff, who was assisting five other memCLAY, J. Appellant was convicted in the bers of a section crew to lift a hand car, and police court of Mayfield on a charge of hav- who was at the forward end of the car facing ing intoxicating liquor in her possession for ahead so that he could not see what the others sale for beverage purposes, the liquor being were doing, does not stand on an equal footing described in the warrant as "tincture of with his fellow servants at the rear end of the ginger, containing more than 90 per cent. car, and therefore can recover from the masalcohol, and being intoxicating." Thereafter, ter, under the federal Employers' Liability Act an appeal which she prosecuted to the Graves. S. Comp. St. §§ 8657-8665), for the negligence of one of them in so lifting the car as circuit court was dismissed, and from that to throw an undue proportion of the weight onjudgment this appeal is prosecuted. to plaintiff thereby injuring him. 3. Master and servant 150 (3)-Master liable for unexpected act of servant preventing fellow servant from protecting himself. [1, 2] Appellant attacks the judgment of the police court on the ground that under the statutes and the ruling of this court in Howard v. Commonwealth, 197 Ky. 297, 247 Where a fellow workman without due care S. W. 10, there is no such offense as having for the safety of others does some unexpected Jamaica ginger in one's possession for the act which prevents another servant from propurpose of sale, but that the only offense tecting himself and which results in injury to is knowingly to sell such article for beverage the lattér, the master is liable under the fedpurposes, or to sell same under circumstances eral Employers' Liability Act (U. S. Comp. St. from which the seller might reasonably de- §§ 8657-8665). duce the intention of the purchaser to use it 4. Damages 132(4)—$600 for rupture suffor such purposes. We are not concerned fered while lifting hand car held not exceswith the propriety of the judgment rendered by the police court. The only question before sive. Where the evidence of plaintiff and his docus is whether the appeal to the circuit court tor showed that he received a rupture as result For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of the negligence of a fellow servant, while he was lifting a hand car, and that his injuries were painful and possibly permanent, a verdict for $600 was not excessive. that appellee took hold of the hand car with his hands on the west side and at the north end, with his face to the north; that all of the other six men, except one, took hold of the same with their hands, and that the man Appeal from Circuit Court, McCreary at the south end on the east side, diagonally County. Action by Joe Calhoun against the Cincinnati, New Orleans & Texas Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. Tye & Siler, of Williamsburg, and Edw. Colston and Geo. Hoadly, both of Cincinnati, Ohio, for appellant. Denton & Perkins, of Somerset, for appellee. TURNER, C. Appellee was a member of a section crew working on appellant's road south of Stearns, in McCreary county. The petition alleges that while so at work he was directed, together with others, by the section foreman to assist in moving a hand car loaded with tools, and he alleges that while so assisting, in accordance with such direction, in moving the hand car from a side track to the main track of defendant's road, by reason of the carelessness and negligence of defendant's servants and agents engaged in moving said car, and by reason of the fact that defendant failed to furnish a sufficient force of hands to move the car in reasonable safety to the employees engaged therein, the weight upon said car was thrown upon him by reason of which he was crippled, injured, and ruptured in his bowels, intestines, scrotum, and privates, from which injuries he suffered great pain and agony of body and mind and was permanently injured, for which he prayed judgment in damages. The action was under the federal Employers' Liability Act (U. S. Comp. St. $$ 86578665), it being alleged that the parties were at the time engaged in interstate commerce. The answer was a traverse, and likewise in separate paragraphs pleaded contributory negligence and assumed risk. The trial court declined to submit to the jury the question whether the company had failed to furnish a sufficient force of hands with which to move the hand car, but submitted the question of negligence by the servants and agents of ap pellant while removing the hand car; and the jury returned a verdict for the plaintiff for $600. The instructions are not complained of, and the only ground for reversal urged is that defendant was entitled to a directed verdict. The uncontradicted evidence is that the foreman, who was some distance away, directed the men to remove the hand car from the side track to the main track and that six of them, including appellee, undertook to do so; that there were a number of tools on the hand car which added to its weight; across the car, from appellee, used at his end a lining bar about 4 or 5 feet long by inserting the same under his end of the hand car, and that when he raised that bar it was done in such a way as to throw the weight or a great part of the weight onto appellee's end of the hand car; and that appellee had his back turned at the time to the man using the lining bar and did not at the time see him using it; that the use of the lining bar gave to the man using it more leverage, and the same was so inserted under the car as to give him two hand holds on the lining bar, and that this leverage enabled him to tip or throw the weight of the car onto appellee's end, or a large part of it. This evidence is wholly uncontradicted and is the basis of the verdict in this case. [1] It cannot be said that the use of a lining bar or other instrument in attempting to lift a hand car or other heavy object, while others assisting therein are only using their hands, is in and of itself negligence; but such instrument, which gives to the one using it a leverage or physical power which he knows the others have not at the time, may be used in such manner as to amount to negligence. This evidence justifies the inference that the man using the lining bar was negligent in not recognizing the fact that his increased leverage and power because of its use might and would throw and cast upon some of his fellow workmen an undue or disproportionate share of the weight, if he negligently used the increased leverage and power so given to him. The evidence is undisputed that immediately thereafter appellee complained of being strained and injured, and told the man who had used the lining bar that he could have lifted as much as he did if he had had a fair deal. It further shows that appellant did not go to work, and was unable to do so for eight or ten months thereafter, and even at the time of the trial, a long time after the injury, he still suffered from the results thereof. [2] It is true the six men were COoperating with each other in the moving of the hand car, but they were not co-operating upon an equal footing. In the case of Pruitt v. Norfold & Western Railway Company, 188 Ky. 204, 221 S. W. 552, relied upon by appellant, the workmen were co-operating with each other in the placing of a tie under the tracks; some were pushing and others were pulling, but they were all in plain view of each other and all jointly engaged on an equal footing in the placing of the tie. Here ap pellee's back was to the man handling the (252 S.W.) lining bar, and at the time he did not know of its use, and it is apparent from all the evidence that because of some unusual or unwarranted use of the power given him by the use of the lining bar, he was guilty of negligence in throwing an undue proportion of the weight onto the appellee's side. [3] The Pruitt Case, relied upon, plainly holds that, where a fellow workman without due care for the safety of others does some unexpected thing which prevents the other from protecting himself and which results in his injury, the master is liable. [4] The injuries, as shown by the evidence of appellee and his doctor, were painful and possibly permanent, and there can be no complaint of the size of the verdict. That the workmen were at the time engaged in interstate commerce is not seriously questioned. Judgment affirmed. MOSELY v. MORGAN et al. (Court of Appeals of Kentucky. June 22, 1923.) 1. Judgment 486(2)-Rendition after death of party makes it voldable only. A judgment rendered after the death of a party to an action is voidable merely, and not had died before the judgment was rendered, is demurrable if it does not show that the petitioner was ignorant of the death when the judgment was rendered, since he was not entitled to a new trial if he suffered the judgment to be entered with knowledge of the death and without having the action revived against the proper parties. 5. New trial 167(3)-Vacating judgment without having infant heirs of deceased party represented held error. Where a judgment quieting title was rendered after the death of one of the plaintiffs, it was error to vacate the judgment and grant a new trial on that ground without any one having been summoned to represent the interest of deceased plaintiff's infant children. 6. New trial 167(3)-Petition because judgment was rendered after death of parties should contain entire original record. A petition for a new trial, under Civ. Code Prac. 518, subsec. 6, on the ground that the judgment was rendered after the death of an adverse party, must be accompanied by the entire original record, or contain such a comIplete statement thereof as will enable the court to determine whether or not under all the circumstances a new trial should be ordered. 7. New trial 167(3)-Petition to set aside judgment held defective for not disclosing all material facts. Where a petition for a new trial, because the judgment was rendered after the death of the adverse parties, contained only statements of the substance of the pleadings, and a copy of the judgment without any reference to the 2. New trial 167(1)—Power to vacate judg-proof, and from it it was impossible to tell ment for rendition after death of party is discretionary. void. Under Civ. Code Prac. § 518, subsec. 6, giving the court power after the expiration of the term to vacate or modify a judgment for the death of one of the parties before the judgment was rendered, merely confers upon the trial court the discretion to grant or withhold a new trial on that ground as the facts may warrant, and does not confer upon a litigant an arbitrary right to a new trial if the ends of justice do not require it. 3. New trial 167 (2) -Death of party before rendition of judgment held not to prejudice adverse party. Where one of two plaintiffs in an action to quiet title died after the cause had been submitted for final judgment, the only apparent effect of rendering judgment for plaintiffs after such death without substituting her heirs would be to prevent the judgment from foreclosing the right of defendant again to litigate the matter with the heirs, so that defendants were not prejudiced by the rendition of the judgment after the death of that plaintiff, and are not thereby entitled to a new trial. 4. New trial 167(3)—Petition to vacate judgment on ground of death before rendition of judgment must show ignorance of death. A petition for a new trial, on the ground that one of the adverse parties to the action whether the land was owned by the plaintiffs jointly, successively, or otherwise, which might be controlling in determining whether the judgment should be vacated in whole or merely modified, the lower court should have required the petition to be amended as provided by Civ. Code Prac. § 28. Appeal from the Circuit Court, Leslie County. Action by Hence Morgan and another against Elihu Mosely and another for a new trial of an action to quiet title. From a judgment granting the new trial, defendant Mosely appeals. Reversed, with directions to sustain a demurrer to the petition. Cleon K. Calvert, of Pineville, and L. D. CLARKE, J. On November 19, 1919, the appellant and one Mollie Spurlock instituted an action in equity against the present appellees, Hence Morgan and Polly Ann Morgan, to quiet their title to a described tract of land. A trial thereof resulted in a judgment for the plaintiffs Mosely and Spurlock, and a dismissal of the counterclaim of the Morgans. After the expiration of the term at which For other cases see same topic and KEY-NUMBER in al! Key-Numbered Digests and Indexes |