Under this rule were these voters qualified to vote at this election? The circuit court rejected the votes of Mrs. Allen Burdette, Mrs. York, and Mrs. Riddle-three in all; it counted the other three contested votes that were cast for Burdette. Mrs. Allen Burdette, who is now 55 years old, testified The petition specifies (1) James Burdette, unequivocally that she could neither read nor (2) Mrs. James Burdette, (3) Mrs. Allen write at the time she voted, although she Burdette, (4) Mrs. C. H. York, (5) Mrs. W. had read the newspapers when she was H. Riddle, and (6) Mrs. Charles Phillips as girl. The circuit court properly rejected this the illegal voters who voted for Burdette. vote. It is agreed of record that Mrs. York We will consider the case of each voter was not a legal voter, and the circuit court briefly. properly rejected her vote.

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[1] Mrs. Riddle can read a little, but she cannot write anything except her name. That, however, does not satisfy the statute as construed in Williams v. Hays, supra, which requires the voter to be able to do more than merely write her name. She must be able, by the use of alphabetical signs, to express in a fairly legible way words in common use and of average difficulty. The court properly rejected this vote.

The circuit court counted the vote of Mrs. Chas. Phillips. She testified however, that she was "no book scholar," but that she could read and write a little. When she was asked to write a sentence taken from the headlines of a newspaper, Mrs. Phillips wrote the line suggested to her in a fairly legible manner, sufficient, we think, to satisfy the statute. The circuit court properly counted her vote. This disposes of the 6 votes claimed to have been improperly counted for Burdette, and requires us to reject 5 of them, reducing Burdette's vote from 32 to 27.

The counterclaim specified (1) Millie Mullins, (2) Fannie Sigmon, (3) Margaret Griffin, (4) Helen Helton, (5) J. Mullins, (6) Joe Taylor, and (7) Charles Smothers as the seven persons whose votes were illegally cast and counted for Helton. Pursuant to an agreement of record that Margaret Griffin was an illiterate, and that J. Mullins had been convicted of a felony, and that both of these votes should be excluded, the circuit court so ruled.

Helton could not read and write is that
shown by a deed of record in the county court
clerk's office that purports to have been sign-
ed by her by mark. The county court clerk
testified, however, that there are two other
deeds of record in which Mrs. Helton signed
her name in person. One of the original
deeds is in this record, and shows that Mrs.
Further-
Helton wrote her name legibly.
more, the signing of the deed by her mark is
explained by the fact that she was out in a
field picking beans at the time, and that the
clerk told her it would be less trouble for
her to sign by her mark than to write her
name. There being no other proof of her
inability to write, the presumption will be
indulged that she could write more than her
name. The circuit court properly counted her
vote.

[4] It is claimed Charles Smothers did not
live within the district. It appears, however,
that he lived upon the farm of Jeff. Holman,
and that the record of the county superin-
tendent shows the following facts bearing up-
on the question: Oak Hill district is No. 9;
Green Hill is No. 29. Jeff. Holman is a trus-
tee in Oak Hill district and lives on what
was formerly known as Jeff. Coffey's farm.
The school record fixing the boundary of
Green Hill district in 1896 shows that it "in-
cluded Jeff. Coffey's farm." That boundary
was, however, changed in 1911, by the follow-
ing recital: "Jeff. Holman is changed from
district 29 to 9." Appellant insists that the
effect of these two descriptions is that the
1896 boundary placed the Coffey farm in
Green Hill district, and that the change of
1911 only removed Jeff. Holman from that
district, leaving the farm, or at least that,
portion of it upon which Smothers lived as
a tenant, in the Green Hill district. G. M. Bal-
lard, who was county school superintendent
from 1902 to 1910, testified that in such cases
he always ruled that a change like that of
1911 would only affect Holman and would not
remove the farm; while Mrs. Davis, the
present superintendent, testified that she and
her predecessors in office, in so far as she is
advised, have always held that a man's whole

[2] Taking up the cases of the five remaining voters, Mrs. Mullins testified that she could write her name and the names of her children, and she did so in a fairly legible manner. But, as above stated, this did not satisfy the statute. Opposing counsel asked her to read section 26 of the Civil Code of Practice, and it is contended that she did not read it fluently; how well we can only conjecture. Appellant insists, however, that section 26 of the Civil Code should not be used as a test of the voter's ability to read, since it is not "composed of words of common use and of average difficulty." We are inclined to agree that this criticism is well taken. The witness was then asked to read the twen-farm is included in the district whenever the tieth chapter of Exodus, and it is contended that she read this reasonably well. She was then asked to spell the words, "and," "God." "earth," "boy," and "Exodus," which she did fairly well, making a few mistakes. She further testified that she had read the Bible and a newspaper whenever she had one, but her ability to write was confined to writing her own name and the names of her family. This was not sufficient, and her inability to write made her ineligible. The circuit court properly rejected her vote.

It is clear from the testimony of Mrs. Fannie Sigmon that she can write her name only. Under the rule above announced she was not a qualified voter. Her vote should therefore be excluded.

owner of the farm is included. While it is conceded that Holman lives in Oak Hill district on the same farm upon which Smothers lives as a tenant, it is not shown that any portion of that farm is in Green Hill district. Appellant rests his argument solely upon the strict letter of the order of 1911. We think this is a strained construction of the language used. It is much more reasonable to hold, as we do, that when a school boundary includes the owner of a farm, naming him, it also includes his farm and those living upon it, unless there are words of exclusion showing a contrary intention. We conclude that Smothers was not a resident of Green Hill district, and his vote should not be

By thus excluding the five votes of Mrs. | chase price. In another paragraph they askMullins, Fannie Sigmon, Margaret Griffin, J. ed a rescission of the conveyance on the Mullins, and Charles Smothers, Helton has ground of defective title, and the fraud and 26 votes to his credit, as against Burdette's nonresidency of the plaintiff. From a judg27 votes. It therefore becomes unnecessary ment in favor of plaintiff, the defendants apto consider the question of Joe Taylor's in- peal. eligibility, based upon his alleged insanity, since in no event could it change the result. It would, if counted, leave the result standing 27 to 26, in Burdette's favor; if rejected, it would reduce Helton's vote to 25. Judgment affirmed.

(180 Ky. 485)

VAUGHN et al. v. WELLS. (Court of Appeals of Kentucky. 1. VENDOR AND PURCHASER SION-FRAUD.

May 10, 1918.)
35 RESCIS-

308(8) - · Ac

Innocent misstatement by vendor that his title was good was not such fraud as to warrant rescission, where all material defects in the title were cured at the time of his action for the balance of the purchase price. 2. VENDOR AND PURCHASER TIONS-BALANCE DUE-TITLE. Requirement that the vendor show perfect title from the commonwealth does not apply, where he sues for the purchase money due under an executed contract with covenants of warranty and the vendee whose possession has not been disturbed asks rescission on the ground of defective title and nonresidency of the vendor. 3. VENDOR AND PURCHASER 112(1) RESCISSION-DEFECT OF TITLE.

To sustain a bill for rescission of an executed contract for the sale of realty after the vendee has accepted the conveyance, he must show defect of title and imminent danger of eviction and loss exist.

Appeal from Circuit Court, Laurel County. Action by W. W. Wells against J. C. Vaughn and wife, wherein Florence Grant intervened. Judgment for plaintiff and against intervener, and defendants and intervener appeal. Affirmed.

H. C. Clay, of London, for appellants. Hazlewood & Johnson, of London, for appel

lee.

CLAY, C. On March 31, 1914, W. W. Wells sold and conveyed to J. C. Vaughn and Martha Vaughn, his wife, a tract of land in Laurel county consisting of 40 acres more or

less.

Of the consideration of $1,000, J. C. Vaughn paid $100 in cash and drew his check on the First National Bank of London for $900. In due time this check was deposited for collection in the First National Bank of East Bernstadt and presented for payment at the First National Bank of London. Before the arrival of the check, however, the latter bank ceased to do business and was placed in the hands of a receiver. Thereupon Wells brought this suit to recover the balance of the purchase price and enforce his lien on the property. In one paragraph of their answer, defendants pleaded that plaintiff accepted the check in full payment and satisfaction of the balance of the pur

We deem it unnecessary to set out the evidence bearing on the claim that plaintiff accepted defendants' check in full payment for the land. It is sufficient to say that plaintiff denies that any such agreement was made, and defendant's own evidence is not sufficient to support his contention.

[1] It does not appear that plaintiff made any misrepresentation of fact as to his title. He merely stated that his title was good, and, even if this statement was not correct When made, it was at most a mere innocent

misrepresentation as to the state of the title, and was not such fraud as will warrant a rescission in view of the fact that all material defects in the title were cured at the time of the trial. Buford's Adm'r v. Guthrie, etc., 14 Bush, 690.

[2, 3] In the matter of plaintiff's title, counsel for defendants seems to have proceeded upon the theory that it was necessary for plaintiff to exhibit a perfect title from the commonwealth. That rule, however, does not apply where the vendor sues for the purchase money due under an executed contract with covenants of warranty, and the vendee whose possession had not been disturbed asks a rescission on the ground of defective title and the nonresidency of the vendor. It is only where the vendor seeks specific performance of an executory contract with covenants of warranty that he is required to exhibit a good legal title. Payne v. Cabell, 7 T. B. Mon. 198. Here the defendants are in the undisturbed possession of the property under an executed conveyance with covenants of warranty; and in such a case a bill for the dissolution of the contract cannot be sustained, and the payment of the consideration enjoined, except in the case of fraud, insolvency, or nonresidency of the vendor, and a palpable and threatening danger of immediate or ultimate loss without legal remedy, by reason of the defects in the title conveyed, and the inability of the vendee to protect himself against eviction under it. And to sustain such a bill after the vendee has accepted the conveyance, the onus lies on him to establish to the satisfaction of the chancellor that the defect of title and imminent danger of eviction and loss exist. Houses' Heirs, 5 B. Mon. 537. Without discussing at length the technical defects of title relied on by defendants, it is sufficient to say that all material defects were cured during the progress of the action, and that there are now outstanding no superior rights such as to justify a well-grounded apprehension of immediate or ultimate eviction or loss of the land. We therefore conclude that

Vance v.

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the chancellor did not err in refusing to vorce from him, cannot thereafter keep the adjudge a rescission of the contract.

During the progress of the action, Florence Grant intervened and asserted title to a small portion of the land under a deed made to her by the trustee in bankruptcy of the New Diamond Coal Company. The chancellor adjudged that she acquired no title, and she appeals. In our opinion that company had parted with its title prior to the institution of the bankruptcy proceeding, and therefore no title passed to the trustee. That being true, it follows that Florence Grant took nothing under the deed from the trustee, and that the chancellor did not err in so holding.

Judgment affirmed.

(180 Ky. 476)

policy alive by paying the annual premiums thereon, because she has no insurable interest in the life of her divorced husband. Western & Southern Life Insurance Co. v. Webster, 172 Ky. 444, 189 S. W. 429, L. R. A. 1917B, 375, Ann. Cas. 1917C, 271; Western & Southern Life Insurance Co. v. Grimes' Adm'r, 138 Ky. 338, 128 S. W. 65; Schauberger v. Morel's Adm'r, 168 Ky. 368, 182 S. W. 198, Ann. Cas. 1917C, 265. This rule applies to the nominal wife, as well as to one lawfully married and afterwards divorced. In the case under consideration Carrie Weesner, now Webster, was not the lawful wife of Weesner at the time he abandoned her, because at that time Weesner had a living wife from whom he was not divorced. But in this character of case the relation which the

WESTERN & SOUTHERN LIFE INS. CO. parties sustained to each other is that which ⚫

V. NAGEL.

alone gives each an insurable interest in the other, and it therefore follows the instant this relation is severed, whether by divorce or abandonment, the insurable interest is terminated.

It is admitted that on the 29th of January

(Court of Appeals of Kentucky. May 10, 1918.) 1. INSURANCE 123-LIFE INSURANCE-INSURABLE INTEREST-ILLEGAL MARRIAGE. The rule that a wife, who is named beneficiary in a policy of insurance on the life of her husband, and who obtains a divorce from him, 1907, the appellant company issued to James cannot thereafter keep the policy alive by the payment of premiums, she having no insurable P. Weesner a policy of life insurance, whereinterest in the life of her divorced husband, by it undertook to and did insure the life applies to a wife who was never legally married of Weesner in the sum of $1,000, and the polto her husband, as well as to one lawfully mar-icy was to remain in full force as long as 2. DEATH 2(2)-PRESUMPTION-CONTINUED the premiums thereon were paid, and at the ABSENCE.

ried and afterwards divorced.

The presumption of death arising from a continued absence for seven years unheard of arises only at the end of the seven-year period, and does not relate back to the beginning thereof.

3. INSURANCE 114 LIFE INSURANCE PAYMENT OF PREMIUMS.

Payment of premiums on a life policy by a beneficiary, who in fact has no insurable interest in the life of the insured, is ineffectual for any purpose.

4. INSURANCE 349(1)- LIFE INSURANCE FAILURE TO PAY PREMIUMS.

Where a life policy provided that it should lapse in case of failure to pay premiums, and the insured was presumed to be dead after an absence of seven years unheard of, his estate could not recover on the policy, where no premiums had been paid during such period; death being presumed to have occurred at the end of such period.

death of Weesner to pay to his nominal wife, Carrie Weesner, the said sum upon proper proof of the death of the insured. On January 7, 1909, Carrie Weesner obtained a divorce from her husband, the insured; but she had paid and continued to pay the annual premiums due upon the policy issued upon the life of Weesner, in which she was beneficiary. These premiums were promptly paid by her up to March 29, 1915. The insured on March 22, 1908, unexpectedly abandoned his wife and home and went out of the state of Kentucky, and did not return, and for more than seven successive years was not heard of or from. After the expiration of the seven-year period, upon which the presumption of the death of Weesner arose his divorced wife, who has since married a

Appeal from Circuit Court, Campbell man by the name of Webster, instituted an County.

Action by C. W. Nagel, administrator of the estate of James P. Weesner, deceased, against the Western & Southern Life Insurance Company, on a policy of insurance. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

A. M. Caldwell, of Newport, for appellant. Judson A. Shuey and L. J. Crawford, both of Newport, for appellee.

SAMPSON, J. [1] A wife, who is named beneficiary in a policy of insurance on the life of her husband, and who obtains a di

action in the Campbell circuit court to recover on the policy of insurance, alleging she had paid all the premiums and that her former husband had died on or before the 22d of March, 1915. In the lower court she recovered judgment for the full amount of the policy. From that judgment the company appealed to this court, and a reversal was had; the opinion holding that the divorced wife did not have an insurable interest in the life of Weesner, and she therefore could not, by continuing the payment of premiums, keep the contract of insurance in force. See Western & Southern Life Insur

3. INFANTS 88-ACTION BY NEXT FRIEND.

A minor may sue in his own name by next friend; and, if, while such an action is pending he attains majority, he may, by motion, be permitted to prosecute in his own name. 4. PRINCIPAL AND AGENT 22(1)-PROOF OF

ance Co. v. Webster, supra. It was held, [ employé to elect against which of defendants, however, in that case, that the wife, who the corporation or the partnership, he would had paid the premiums, was entitled to re- prosecute his action. cover the sum thus paid, with interest, and this amount was, on the return of the case to the lower court, adjudged to her and paid. The administrator of Weesner, conceiving that the estate of Weesner was entitled to recover on the policy of insurance, instituted this action, and on a hearing in the lower court recovered a verdict for $729.90, and the company again appeals.

[2, 3] The status of this case is briefly this: Weesner's death is presumed by reason of his continued absence for seven years unheard of; but this presumption arises only at the end of the seven-year period, and does not relate back to the time of his disappearance. He disappeared in 1908. Weesner paid no premiums upon the policy, but his divorced wife, or rather his nominal wife, undertook to pay them for him, to keep the contract in force; but this she could not do, because she had no insurable interest in his life, and the law forbids one not in such relation to carry or enforce an insurance policy upon the life of another. The premiums thus paid by the nominal wife were ineffectual for any purpose. Afterwards she recovered back the entire amount she paid for the premiums, with interest, thus leaving nothing in the hands of the insurance company with which to satisfy the premiums upon the policy for eight years.

[4] By a clause in the policy of insurance it is provided that in case of failure to pay the premiums, as in the contract provided, the policy should lapse and become of no force or effect; and this provision of the policy is relied upon to defeat a recovery here. Since the premiums were not paid for more than eight years before the commencement of this action by the administrator, it follows that the policy had by its terms lapsed, and there was nothing due the estate of Weesner under the contract.

For these reasons, the judgment is reversed, with directions to dismiss the peti

Only in cases where the parties themselves intend a partnership will an agreement between them to share the gross receipts of the business render them liable as partners to third persons. 2. MASTER AND SERVANT 313-INJURIES TO EMPLOYÉ-LIABILITY.

AGENCY-STATEMENTS OF AGENT.

Agency cannot be established by proof of statements or admissions of the alleged agent, though the acts and conduct of the parties are competent to that end.

Appeal from Circuit Court, Butler County. Action by J F. Hayes, by next friend, J. M. Massey, against the Ohio Valley Tie Company and others. From a judgment for plaintiff against it, the named defendant appeals. Reversed for new trial in conformity with the opinion.

Baskin & Vaughan, of Louisville, and N. T. Howard, of Morgantown, for appellant. Procter & Gardner, B. F. Procter, and W. R. Gardner, all of Bowling Green, for appellee.

SAMPSON, J. [1, 2] A young man named J. F. Hayes, by his next friend, J. M. Massey, instituted this action in the Butler circuit court to recover of the Ohio Valley Tie Company, incorporated, and Lyons & Livers, a partnership, damages for personal injury sustained by him while working at a sawmill, which he charges was owned and operated by said corporation and partnership jointly. Each of the defendants answered and denied the averred negligence, and pleaded contributory negligence on the part of Hayes. By the traverse issue was made upon the question of who operated the mill, each defendant denying the allegation of the petition that it operated the mill. The evidence is very unsatisfactory as to which of the defendants was the master of the mill. ceded that the partnership of Lyons & Livers was in charge of and conducted the business at the mill, and it is claimed by each of the defendants that the Ohio Valley Tie Company had no interest in or control over the mill

But it is con

further than that it was to receive 10 per cent. of the gross returns from all shipments of the products of the mill after the payment of freights, in return for money loaned by it to the partnership with which to carry on the business. At the conclusion of the evidence for the plaintiff the defendants each entered a motion to require the plaintiff to elect against whom he would prosecute his action, and the court sustained this motion, whereupon the plaintiff elected to prosecute his action against the Ohio Valley Tie Company. Thereupon the court dismissed the action as to Lyons & Livers. It then overruled a motion for peremptory instructions made by the tie company. The defendant then called Mr. Lyons as a witness, who testified in chief

If a partnership and a corporation were partners operating a sawmill, each was the agent of the other, but if they were not partners, and the partnership was operating the mill as the agent only of the corporation, both were liable for tortious injuries to an employé concerning the accident to young Hayes, but and the trial court should not have required the he was not asked in chief concerning the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-13