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569, 27 Ky. Law Rep. 186; Myers v. Saltry,
supra. Though the petition in this instance
may have been technically defective, yet we
conclude that, under the above rule, its alle-
gations are sufficient after verdict and judg-
ment to support the judgment.
Judgment affirmed.

tract of insurance, in which plaintiff was | Harmon v. Thompson, 119 Ky. 528, 84 S. W. made and named as beneficiary; that by said contract it agreed and promised to pay to her, as such beneficiary, the sum of $600, in case of the death of George F. Taylor caused solely by external, violent, and accidental means, excluding suicide or any attempt or any attempt thereat; that George F. Taylor died on May 1, 1913; that his death was caused solely by external, violent, and accidental means, and not from suicide, or any attempt there



Evidence in a husband's action for divorce
on the statutory ground of abandonment, in
which the wife counterclaimed on the ground of
cruel and inhuman treatment and danger of
great bodily harm and asked a divorce, as al-
lowed by the statute in such case, and alimony,
held not to establish cruelty or danger of bodi-
ly harm so as to entitle her to alimony.
[Ed. Note.-For other cases, see Divorce,
Cent. Dig. §§ 442-445; Dec. Dig. 130.]
Appeal from Circuit Court, Johnson

at; and that said contract of insurance was (Court of Appeals of Kentucky. Oct. 19, 1915.)alive and in full force and had been so kept and maintained since the date of its execution and delivery. A trial before a jury resulted in a verdict and judgment in favor of plaintiff for $600. The company appeals. [1] On motion of the plaintiff below, the transcript of evidence has been stricken from the record. The policy of insurance is not made a part of the record, but appears only in the transcript of the evidence, which has been stricken from the record. In the absence of the transcript of the evidence, it will be presumed that the omitted portions of the record will support the judgment, and Sarah A. Rice, with counterclaim for divorce Action for divorce by J. P. Rice against the only question to be determined is whether or not the pleadings support the judgment as denied her right to alimony, defendand alimony. From so much of the judgment. Jones v. Jackson, 16 S. W. 458, 13 Ky. Law Rep. 253; Hackney v. Hoover, 67 S. W. 48, 23 Ky. Law Rep. 2061; Sanson v. Connolly, 141 Ky. 120, 132 S. W. 159; McKee v. Stein, 91 Ky. 240, 16 S. W. 583, 13 Ky. Law Rep. 49; Bradford v. Jones, 150 Ky. 355, 150 S. W. 387; Duker's Adm'r v. Kaelin, 90 S. W. 959, 28 Ky. Law Rep. 900; Anheuser-Busch Brewing Co. v. Seelbach, 40 S. W. 671, 19 Ky. Law Rep. 375; Louisville Bridge Co. v. Neafus, 110 Ky. 571, 62 S. W. 2, 63 S. W. 600, 23 Ky. Law Rep. 185; Myers v. Saltry, 163 Ky. 481, 173 S. W. 1138.

[2, 3] In the absence of the policy of insurance, we are unable to say that it contradicts the averments of the petition or the amended petition. It is insisted that the petition is defective because it does not allege that the premiums on the policy were paid, but merely that the policy "was alive and in full force and had been so kept and maintained since the date of its execution and delivery." It is argued that this allegation is a mere conclusion, and therefore insufficient. In the absence of the transcript of evidence, it will be presumed that the premiums necessary to keep the policy in force were paid. It is the rule that after verdict and judgment pleadings are liberally construed to sustain the judgment, and that any formal defect in the pleadings is deemed to be cured by a verdict and judgment. Winstead v. Hicks, 135 Ky. 154, 121 S. W. 1018, 135 Am. St. Rep. 446; Hill v. Ragland, 114 Ky. 209, 70 S. W. 634, 24 Ky. Law Rep. 1053; Dunekake v. Beyes, 79 S. W. 209, 25 Ky. Law Rep. 2002; Ashland, etc., R. Co. v. Lee, 82 S. W. 368, 26 Ky. Law Rep. 700;

ant appeals. Affirmed.

D. J. Wheeler and John W. Wheeler, both of Paintsville, for appellant. Fogg & Kirk, of Paintsville, for appellee.

NUNN, J. The court granted the husband a divorce on his petition. The wife appeals from so much of the judgment as denied her right to alimony. The husband brought the action, seeking a divorce on the statutory ground of abandonment. By her answer and counterclaim she admitted the abandonment, but undertook to justify it by the plea that:

"He was eccentric and seemed not to care for her; that he absolutely refused to provide for her girl, Mamie, by her former marriage, and refused to furnish her clothing."

On these grounds she asked for divorce and alimony in the sum of $1,500. amendment she restates her grievances; that is, paraphrases them in words of the statute. Thus she makes it appear that for more than six months prior to her abandonment of him he habitually behaved toward her in such inhuman and cruel manner as to indicate a settled aversion to her and destroy permanently her peace and happiness, and such cruel attempt to injure her as indicated an outrageous temper in him and probable danger to her life or great bodily injury if she longer remained with him. The testimony given in her behalf tends to establish the allegations of her original pleading, rather than the amendment.

They were beyond middle age when they married, and each had a daughter by a former marriage who became a member of the family. No children were born to them. He

had property worth about $4,000. Her property was considerable, although not worth quite so much. It consisted of one house and lot and a two-thirds interest in another, and some personal property. Her daughter had more than $900 in cash, and drew a pension from the United States government because her deceased father served in the Union Army. The marriage occurred in 1904. She left him in about a year. They lived apart for several months. Then they were reconciled, and lived together until September, 1911. The husband and wife testified concerning the alleged "cruel and inhuman treatment." Whatever errors may have been in the admission of testimony, they were participated in by both parties. These questions are not pressed in the briefs, and are not passed upon. They admitted numerous quarrels and disagreements, but they must have been of little consequence, as measured by the statute, for, except the first separation, even their next-door neighbors knew nothing of discord between them; in fact, all the neighbors testified that, so far as they knew, Mr. and Mrs. Rice were kind and affectionate toward each other. The chief cause of difference between them was his persistent refusal to pay for her daughter's wearing apparel. But it is undenied that when they were reconciled after the first separation, Mrs. Rice, who was her guardian, agreed that such expense should be paid by the daughter. It is claimed that he was rude in his conduct toward her daughter's beaux; that he objected to young men keeping company with her at his home. Mr. Rice testified that he never objected to young men coming to see her. He did object, however, to the late hours they kept. He said that 9 or 10 o'clock was his bedtime, and they disturbed him by remaining longer, and he told them so.

The only evidence that his unkindness preponderated came from Mrs. Rice and her

daughter, but the testimony of Mr. Rice, his daughter, and five neighbors tipped the scales the other way. Mrs. Rice admits that she, too, “quarreled to beat the band sometimes," and she has convinced us that she never was in danger. The only threat in the case is where she says at one time they were fussing about how best to make the cow stand for milking and whether her feed meal should be sifted. Finally, as she

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Ky. St. § 4085, provides that the property of all corporations shall be assessed in the name of the corporation in the same manner as that of a natural person, and that so long as the corporation pays taxes on all its property of every kind, individual stockholders should not be required to list their shares in the corporation. Foreign corporations in which defendant owned stock purchased small lots in the state, at the instigation of defendant stockholder, on which they paid taxes. These lots were not used for any corporate purpose. Held, that defendant, the shareholder, could not claim the benefit of the exemption so as to avoid taxation a mere colorable one on the part of the coron the stock owned by her; the attempt being porations to bring defendant within the statute. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 292; Dec. Dig. 169.]

Appeal from Circuit Court, Shelby County. Action by the Commonwealth of Kentucky against Mollie P. Slater. From a judgment for plaintiff, defendant appeals. Affirmed.

Willis, Todd & Bond, of Shelbyville, for E. H. Davis, Co. Atty., of Shelbyville, for appellant. Matt J. Holt, of Louisville, and E. H. Davis, Co. Atty., of Shelbyville, for

the Commonwealth.

lie P. Slater, resides in Shelbyville, Ky. MILLER, C. J. The appellant, Mrs. Molof the Long-Bell Lumber Company, a MisShe owns 123 shares of the capital stock souri corporation, with its principal office in Kansas City, of the par value of $500 per share, and 24 shares of the Minnetonka Lumber Company, likewise a Missouri corporation, of the par value of $100 per share. This action was instituted by the commonwealth, through its revenue agent, seeking to subject to taxation the shares of stock above mentioned for the years 1913 and 1914, and cash in bank amounting to $1,715 for the year 1913, and $150 for the year 1914. The judgment of the lower court was for the commonwealth, and Mrs. Slater appeals.

There is no complaint of that part of the judgment which taxed the cash in bank for the two years, it being conceded that Mrs. Slater did then have that much money on hand. The answer admits that the fair cash value of Mrs. Slater's stock in the LongBell Lumber Company, at the assessing pe

assessable against it, upon its property located ty be realty, personalty, tangible or intangible, in the state of Kentucky, whether that properor franchise, in nature.

riods, was its par value of $500 per share, I stock is held has paid all taxes due from it, and aggregating $61,600, and that the fair cash value of the 24 shares of stock in the Minnetonka Lumber Company was its par value of $2,400. In August, 1912, the Long-Bell Lumber Company and the Minnetonka Lumber Company each bought a lot in Catalpa Court addition adjoining Shelbyville on the west, paying $250 for each lot. These lots are in a new, desirable residence portion of the town, and the deeds therefor contain the following building restrictions:

"No outbuildings of any kind shall be erected on the property hereby conveyed nearer than 35 feet to the pavement line of any street running in front of or on the side of same, nor shall said property or any part thereof be sold, or leased, or conveyed to colored persons. It is further agreed that no residence shall be erected on the lot hereby conveyed to cost less than $1,500.00, nor shall any residence be erected thereon nearer than 25 feet to the pavement line of the street running in front thereof."

each of the Missouri corporations in which In the case at bar appellant answered that she owned the stock, as above recited, owned a lot in Catalpa Court addition to Shelbyville during the years 1913 and 1914, and that they had paid all the taxes due thereon or demanded by the commonwealth, thus bringing appellant within the protection of the rule announced in Commonwealth v. Fidelity Trust Co., supra. The commonwealth insists that these two insignificant lots were bought by the two Missouri corporations at the suggestion of appellant, and for the purpose of relieving her from taxation upon her stock in said two corporations; and it is evident from the proof that this was the purpose of the purchases. Appellant insists, however, that the lumber companies had the right to buy these lots, and, having bought and paid for

Appellant had compromised a suit against her similar to the one now before us, prior to the purchase of the lots by the two Mis-them, the purpose or motive of the purchase souri corporations.

The authority to assess these shares of stock is claimed under section 4085 of the Kentucky Statutes, which reads as follows: "The property of all corporations, except where herein differently provided, shall be assessed in the name of the corporation in the same manner as that of a natural person, except that, when legally called on, the chief officer shall report a full statement of the prop erty of such corporation for taxation, and, for a failure, shall be subject to the penalties in this article provided; and so long as said corporation pays the taxes on all its property of every kind, the individual stockholders shall not be required to list their shares in said corporarequired to list their shares in said corporation."

cannot affect the case; that a bad motive may make a bad case worse, but it cannot make that wrong which, in its essence, is lawful. In support of this contention, appellant cites Chambers & Marshall v. Baldwin, 91 Ky. 121, 15 S. W. 57, 12 Ky. Law Rep. 699, 11 L. R. A. 545, 34 Am. St. Rep. 165, and Bourlier Bros. v. Mocauley, 91 Ky. 134, 15 S. W. 60, 12 Ky. Law Rep. 737, 11 L. R. A. 550, 34 Am. St. Rep. 171, which hold, in effect, that an act legal itself, and which violates no right, cannot be made actionable on account of the motive which induced it, and that the amount and nature of the property owned by the respective lumber companies is immaterial.

Considerable confusion had resulted from the application of this statute, and the conThe language quoted from the opinion in structions that had been given to it, particularly in Commonwealth v. C. & O. Ry. Co., Commonwealth v. Fidelity Trust Co., supra, 116 Ky. 951, 77 S. W. 186, 25 Ky. Law Rep. is very broad and sweeping. It is, indeed, 1126; Commonwealth v. Lovell, 125 Ky. 491, broad enough in its scope, when taken literal101 S. W. 970, 31 Ky. Law Rep. 105; Com- ly, to include this case, and exempt appelmonwealth v. Harris, 118 S. W. 294; Com-lant's stock from taxation. Appellee insists, monwealth v. Steele, 126 Ky. 670, 104 S. W. 687, 31 Ky. Law Rep. 1033; Commonwealth v. Ledman, 127 Ky. 603, 106 S. W. 247, 32 Ky. Law Rep. 452; and Commonwealth v. Walsh, Trustee, 133 Ky. 103, 117 S. W. 398. These cases were carefully reviewed by this court in Commonwealth v. Fidelity Trust Co., 147 Ky. 77, 143 S. W. 1037, decided February 21, 1912, with the view of reconciling them, if possible, and laying down a certain rule for future guidance. In closing that opinion, we said:

however, that the statute refers to property held by the corporation for corporate purposes, in pursuance of the corporate business, and not to property subject to escheat for nonuser and incapable of corporate use, and that the language quoted above from Commonwealth v. Fidelity Trust Co. should be qualified so as to limit the rule to that extent. None of the cases reviewed and criticized in Commonwealth v. Fidelity Trust Co. present the precise question we now have before us. In all of those cases the property "We have endeavored to so state the authori- of the company upon which the payment of ties and their relation to this case as to avoid taxes by the corporation operated to relieve future confusion upon the subject. It is just the stockholder from taxation upon his to the rights of established property that the shares was property used by the corporation whole involved subject should be understood once for all. The conclusions reached are easily in its business in this state. The court was understood; i. e., that the holders of shares of not called upon, in any of those cases, to stock in domestic or foreign corporations, consider the case where a corporation owned whether franchise or nonfranchise in nature, need not list nor pay taxes upon their shares property in this state which it did not use of stock when the corporation in which the in its business; and, in our opinion, it is evi

Appeal from Circuit Court, Leslie County. Action by the Frick Company against Wilson Chappell and wife. From a judgment for plaintiff, defendants appeal. Reversed in part and affirmed in part.

Lewis & Lewis, of Hyden, and Miller &
J. M. Muncy, of Hyden, for appellants.
Wheeler, of Hazard, for appellee.

dent from the discussion, and the scope of the opinion in Commonwealth v. Fidelity Trust Co., supra, that the rule above quoted therefrom was intended to apply only to cases where the property of the corporation within the state was used in the corporate business. Under that rule, wherever the corporation owns property within this state, and uses it bona fide in its business, be it ever so little or insignificant a proportion of its entire property, the payment of taxes thereon HURT, J. Wilson Chappell, of Leslie counby the corporation exempts the stockholders ty, executed to the Frick Company six promfrom taxation upon his stock. But the prop-issory notes, and to secure the payment of erty must be acquired in good faith, and for these notes he and his wife, Martha Chapthe corporate use and purposes, and not for pell, executed, acknowledged, and delivered a the sole purpose of rendering the stock in the mortgage to the Frick Company upon some hands of a resident stockholder exempt from personal property, and, in addition, upon a taxation. We believe this to be the full meaning of the opinion in Commonwealth v. Fidelity Trust Co., supra, when applied to the facts of this case, and that the judgment

of the trial court was correct. Judgment affirmed.

CHAPPELL et ux. v. FRICK CO.* (Court of Appeals of Kentucky. Oct. 20, 1915.) 1. MORTGAGES 559- FORECLOSURE-PERSONAL JUDGMENT.

In an action against a husband and wife to recover on notes secured by a mortgage and to foreclose the mortgage, it was error to render a personal judgment against the wife for the amount of the notes where she was not a party to the notes and never subscribed them, though she was a party to the mortgage.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 1592, 1600-1603; Dec. Dig. 559.]



A deed conveying to the grantees the property therein described to have and to hold the land, together with all appurtenances, unto them, their heirs and assigns forever, and containing a covenant by the grantors to warrant the title unto the grantees, their heirs and assigns forever, vested a fee-simple title in the grantees.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. $$ 345-355, 416-428, 434, 435, 439, 452; Dec. Dig. 124.]


tract of land containing about 250 acres. The Frick Company instituted this action in the Leslie circuit court against the appellants, Wilson and Martha Chappell, and sought a recovery of a personal judgment against them for the amount of the notes and an enforcement of the lien created by the mortgage, and a sale of the personal property and land to satisfy the personal judgment. The appellants filed an answer, in which they controverted the right of appellee to have or to enforce any lien upon the land by reason of the mortgage to satisfy the debt. A demurrer was filed to the answer, which was sustained, and a judgment rendered according to the prayer of the petition of the plaintiffs, to which the appellants excepted, and prayed an appeal to this court.

[1] The appellant Martha Chappell was not a party to the notes sued on and never subscribed same, and was in no way personally bound upon the notes, and it was error in the trial court to render a personal judgment against her for the amounts of the notes.

The defense presented by the answer to the enforcement of the lien upon the land and for a sale of it to satisfy the debts was that the land was conveyed to the appellants, Wilson Chappell and Martha Chappell, by one Reuben Chappell, and that the power of alienation, by the terms of the deed, was withheld from the appellants, except they should convey it to some of the heirs of ReuIt is the rule in this jurisdiction that a ben Chappell. The answer set out the fact reasonable restraint on alienation by the gran- that Reuben Chappell was still alive, and tee or devisee may be imposed by a deed or will, though the instrument passes a fee-simple title. that he had six living children, and that [Ed. Note. For other cases, see Perpetuities, they were his only children and future heirs Cent. Dig. §§ 4-47, 49-53, 56; Dec. Dig. 6.] at law. It is contended that the mortgage, 4. PERPETUITIES 6-RESTRAINT OF ALIEN- So far as it attempted to create a lien upon the land, was something which appellants were without power to create and was void.



A provision of a deed passing a fee-simple title that the grantee was not to sell or convey the land to any one except the heirs of the grantor was void as imposing an unreasonable restraint on alienation; the grantor being still alive and having six children living when the question as to the validity of such provision

[2] The deed from Reuben Chappell to the appellants, under which they held title to the lands embraced in the mortgage, was executed on the 7th day of December, 1901. The granting clause of the deed recited that, [Ed. Note.-For other cases, see Perpetuities, in consideration of $500 in hand paid, the Cent. Dig. §§ 4-47. 49-53, 56; Dec. Dig. 6. parties of the first part "do hereby sell and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


convey to the party of the second part" the | sonable and which ones are unreasonable, property described in the deed. The habendum clause of the deed was to the effect that the parties of the second part were "to have and to hold the land, together with all the appurtenances thereunto belonging, unto the party of the second part, their heirs and assigns forever," and was followed by the covenant of the grantors to warrant the title to the land conveyed "unto the parties of the second part, their heirs and assigns forever." This deed, upon its delivery, vested the appellants with a fee-simple title to the property. Following the habendum clause of the deed, was the one relied upon by the appellants, and is as follows:

"The party of the second part is not to sell nor convey this land to any one, except the heirs of the party of the first part."

[3, 4] If the latter clause is valid, the appellants had no power to convey it by a mortgage or to create a lien upon it, but, the deed first having vested them with a feesimple title, if the clause in question constituted an unreasonable restraint upon the appellants' power of alienation of the land, it was void, and the fee-simple title, with full power of alienation, vested in appellants from delivery of the deed. The question presented is not whether or not, by the

and each particular case must be considered upon the particular circumstances of it. In the case at bar the grantees, although holding under a fee-simple title, which carries with it, as one of the essential qualities of such an estate, an unlimited power of disposition, are attempted to be restrained by the clause of the deed supra from making any disposition of their lands, not for a limited time and a limited number of persons, but for so long as they may live, unless they can sell it to one of Reuben Chappell's heirs. Reuben Chappell is still alive, and has six children now living. Whether Reuben Chappell may have any children living at the time of his death cannot be known, or whether he may have one or more heirs cannot be known. Whether any heirs of Reuben Chappell may ever desire to buy the land or whether any of his heirs may ever be financially able to buy the land cannot be known. If one of such persons should be willing to purchase it, the appellants, if they sold, would be compelled to submit to receiving such a price and upon such terms as such person would dictate. The heirs of Reuben Chappell might not, in all probability, ever be able financially to purchase the

terms of the deed, a perpetuity was created, land, or, if so, they might not desire to buy, as is prohibited by section 2360, Kentucky or, if they desired to buy, they might be Statutes 1915, but is the restraint placed which would be ruinous to appellants. If willing to become purchasers only at a price upon the grantee's power of alienation inconsistent and repugnant to the terms of compelled to make a sale, it is very appartheir deed and title and an unreasonable lim-ent that appellants would be entirely at the itation upon their right of disposition of the mercy of a half dozen or less number of property vested in them by the deed, and people, if the clause in the deed limiting therefore void? The general rule prevailing their power of disposition is valid. The cirin most jurisdictions is that, where the fee-cumstances would, in effect, withhold from simple title to real estate passed under a deed or will, any restraint attempted to be imposed by the deed or will upon the right of the grantee or devisee to alien it is to be treated as void. In 13 Cyc. 669, the rule is

thus stated:

"Where an estate in fee simple is granted to a person by proper and sufficient words, a clause in the deed which is in restraint of alienation is void and will be rejected."

The rule prevailing in this jurisdiction, however, is that a reasonable restraint may be imposed, and that such a provision in a deed or will will be upheld. Lawson v. Lightfoot, 84 S. W. 739, 27 Ky. Law Rep. 217; Stewart v. Brady, 3 Bush, 623; Wallace v. Smith, 113 Ky. 263, 68 S. W. 131, 24 Ky. Law Rep. 139; Stewart v. Barrow, 7 Bush, 368; Rice v. Hall, 42 S. W. 99, 19 Ky. Law Rep. 814; Kean v. Kean, 18 S. W. 1032, 19 S. W. 184, 13 Ky. Law Rep. 956; Best v. Conn, 10 Bush, 36; Page v. Frazer, 14 Bush, 205; Ernst v. Shinkle, 95 Ky. 608, 26 S. W. 813; Johnson v. Dumeyer, 66 S. W. 1025, 23 Ky. Law Rep. 2243; Morton v. Morton, 120 Ky. 257, 85 S. W. 1188. There has been no general rule laid down, however, by which it


lands for their entire lives, if they are bound
appellants the power of alienation of the
lands for their entire lives, if they are bound
by the limiting clause of the deed.
which have imposed upon the grantees a
restraint of the power of alienation to cer-
tain specified persons or a person of certain
the restraint a reasonable one, but in the
designated class have been held valid and
the restraint a reasonable one, but in the
case at bar the restraint is upon alienation
to the entire world, except a half dozen or
less persons. To uphold a restraint upon
the power of alienation of a fee-simple es-
tate, except to a certain designated person,
would put it into the power of a grantor to
limit the grantee's right of disposition to one
who will never be able or willing to pur-
chase, and thus take the absolute power of
alienation from the grantee for an unrea-
sonable length of time. The rule making
void the restraints attempted to be imposed
upon the power of alienation of vested fee-
simple estates is founded upon reasons of
public policy, as being restraints upon the
commercial and social advancements of a
community. In Chappel v. Chappel, 119 S.
W. 218, this court, having under considera-
tion a clause in a deed similar to the one in

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