3. EXECUTION Cw276(1)—TITLE OF PURCHAS- , proceeds appropriated' to paying the debts of ER - NONRESIDENT DEFENDANT—CONSTRUC- the estate, but the proceeds were insuffiTIVE SERVICE-REFUNDING BOND.

Civ. Code Prac. & 417, protecting the title cient for such purpose in the sum of about of purchasers in good faith against new trial | $5,000. Among the other indebtedness is the proceedings brought under Civ. Code Prac. $ commission due the administrator for the 414, by a nonresident against whom judgment receipt and disbursement of the proceeds of has been rendered upon constructive service of summons, held to give good title to buyer of land the personal estate, as it appears that he did under judgment against nonresident defendant not retain in his hands the commissions due constructively served where no refunding bond when disbursing the proceeds of the personal was executed, as required by Civ. Code Prac. $ estate in the payment of the debts. The de410. 4. JUDGMENT Om 123(1) - ENTRY AFTER CON- cedent owned, at the time of his death, sever

STRUCTIVE SERVICE-NONRESIDENT DEFEND- al disconnected tracts of land, and one tract
ANT-REFUNDING BOND.
Civ. Code Prac. $ 410, requiring refunding widow as her dower in all of the lands.

and a portion of another was allotted to his bond before rendition of judgment against a nonresident defendant constructively served, This action was instituted by Clarance does not make the execution of such bond a Julian suing both as administrator of the de. prerequisite to jurisdiction by the court to ren-cedent and guardian of the infant, and the der such judgment, and a failure to execute bond before rendition of judgment does not in-object sought was a final settlement of his validate the judgment.

accounts as administrator, and the sale of a 5. JUDGMENT Ow123(1) – DEFAULT-REFUND-tract of land which contained 117 acres, and ING BOND.

Where the land of a nonresident has been application of the proceeds of the sale to the sold under a judgment rendered without the payment of the remaining indebtedness of execution of a refunding bond, as required by the estate, and the excess, after the payment Civ. Code Prac. $ 410, the court may direct the of the debts, to the maintenance and educaexecution of such bond or the retention of the purchase money until the expiration of the five- tion of the infant. The defendants in the year period within which defendant can move original petition were the infant, Alexander for new trial. 6. GUARDIAN AND WARD Om89 – MAINTE-I and certain of the creditors, but thereafter

Julian, Jr., the surviving widow of decedent, NANCE AND EDUCATION OF WARD-SALE OF WARD'S REAL ESTATE.

several amendments to the petition were In an action by a guardian to have infant's made, and a reference of the cause to a comland sold for his maintenance and education, missioner to receive, hear, and report claims evidence held sufficient to justify court in directing such sale under Ky. St. § 2039, provid- against the estate, and either by the amending that the court may direct such sale where it ments to the petition or the appearance of is a clear case of necessity, notwithstanding sec- the creditors before the commissioner all tion 2034, subds. 1, 2.

the creditors became parties to the action 7. EVIDENCE Om 383(3)–CERTIFIED RECORDS, ADMINISTRATOR-GUARDIAN.

before the rendition of the judgment under Where an administrator sues in his repre- which the land was finally sold. The petisentative capacity, and also as guardian of an tion and its amendments together contained infant son of decedent, the certified records of a all the averments necessary in an action for county court as to his appointment and qualification as administrator and guardian are suffi- the settlement of the decedent's estate and cient evidence thereof.

a sale of the lands belonging to it for the pay. Appeal from Circuit Court, Franklin ment of its indebtedness, as required by secCounty.

tion 429, Civil Code. Action by Clarance Julian, administrator With reference to the action of the guardand guardian, against Alexander Julian, Jr., ian against the ward for the sale of such and others. Judgment for plaintiff directing portion of the land as was not necessary to sale of land, and from judgment overruling be sold for the payment of the debts, which exceptions to such sale by J. B. Carpenter, action was joined to that for the settlement the purchaser. J. B. Carpenter appeals. of the estate, it was alleged that the income Affirmed.

of the estate of the infant was insufficient to E. B. Beard, of Shelbyville, and Frank maintain and educate him, and that his mothChinn, of Frankfort, for appellant. Paul c. er was not financially able to maintain and Gaines and Ira Julian, both of Frankfort, for have him properly educated, and that it was appellees.

proposed to use remaining portion of the pro

ceeds of the sale of the lands after the payHURT, J. Charles H. Julian, who was ment of the debts of the estate in the educadomiciled in Franklin county at the time, tion and maintenance of the infant, and that died, intestate, several years ago, and left there was no other way to enable him to be surviving him an only heir, Alexander Julian, educated other than by the use of such proJr., and his widow, now Mrs. J. D. Stewart. ceeds. It was further averred that the tract Clarance Julian qualitied as administrator of of land could not be divided without materithe decedent, and also as the statutory guard-ally impairing its value, and as a consequence ian of the infant heir, Alexander Julian, the interest of the infant defendant therein, Jr. The personal property of the decedents and that it was further to the best interest of estate was sold by the administrator and the the infant that the tract of land sought to be sold should be disposed of, rather than to , of a warning order and the appointment of an sell any of the other tracts which he had attorney for him, as provided by section 57, received by inheritance from his father. The Civil Code. infant defendant was a nonresident of the [2] It will be observed that the applicastate, and absent therefrom, and was over tion of section 493, Civil Code, which rethe age of 14 years, but before a judgment quires a bond by the guardian to his ward was rendered for a sale of the land he was before a sale is ordered of the real estate of brought before the court by constructive the ward, is specially excepted from a sale service as a nonresident, as provided by sec- of infant's real estate for the payment of tions 57 and 58, Civil Code, and in addition the debt of his ancestor or his own debt. thereto a guardian ad litem was appointed Section 489, subsecs. 1 and 2, Civil Code. If, who filed an answer as such. Before the however, a sale of an infant's real estate is rendition of the judgment for the sale of the made for the satisfaction of the debts of his iand proof was properly taken and filed, ancestor, and it is necessary to sell more which proved the existence of the indebted-land in the protection of the infant's interness of the decedent's estate to the adminis- est than is necessary to pay the ancestor's trator and creditors and the necessity for the debts and the costs, on account of indivisisale of the lands to satisfy the debts, and bility of the lands, sections 493 and 497, Civil the impracticability of a division of the tract Code, apply to the excess, and the bond reof land, the value and character of the other quired by section 493, supra, must be executland, and that it would be to the best interest ed before judgment and recorded with the

, of the infant to sell the land sought to be judgment, or else the purchase price, for the sold rather than either of the other tracts. excess sold, must not be paid, but must reBefore judgment the board provided for main a lien upon the land until the infant by section 493, Civil Code, was duly executed arrives at his majority, or until the bond, as by the guardian to the infant and recorded provided by section 497, supra, is executed. with the judgment. The land was adjudged Oldham v. McElroy, 134 Ky. 454, 121 S. W. to be sold according to the prayer of the 414; Foley v. Graham, 110 S. W. 838, 33 Ky. petition when the appellant, J. B. Carpenter, Law Rep. 627; Carter v. Crow's Adm'r, 130 became the purchaser at the sum of $11,785, Ky. 41, 112 S. W. 1098; Elliott v. Fowler's but fearing that he would not receive a good Guardian, 112 Ky. 376, 65 S. W. 849, 23 Ky. title he declined to execute the sale bonds, Law Rep. 1676; Louisville Banking Co. v. and filed exceptions to the report of sale as Pranger, 68 S. W. 632, 24 Ky. Law Rep. 408. well as a response to the rule against him, Hence the bond provided for by section 493, which required him to show cause for declin supra, was properly executed by the guarding to comply with the contract of sale and ian to his ward, touching the excess of land execute the bonds for the purchase price. The sold, over what was necessary to satisfy the response to the rule was held insufficient, and debts of the ward's ancestor, but it is not he was ordered to execute the bonds, the ex- the land necessary to be sold to pay the an

applicable to the proceeds of the portion of ceptions were overruled and the sale confirm

cestor's debts. ed, and from this judgment he has appealed.

[3] In Morrison v. Beckham, 96 Ky. 72, 27 The grounds relied upon for reversal are (s. W. 868, 16 Ky. Law Rep. 294, which was three: First. The bond provided for by section 410, Civil Code, was not executed before from joint claimants of the land, some of

a suit in ejectment to recover a tract of land judgment. Second. The pleadings nor evi- whom were nonresidents, it was held to be dence were sufficient to justify a sale of an reversible error to render judgment against infant's real estate for his maintenance and the nonresidents who had not appeared in education. Third. There was no evidence the action before the execution of the bond in the record to support the allegation that required by section 410, supra. In Stephens the plaintiff is either the administrator of v. Stephens, 85 S. W. 1093, 27 Ky. Law Rep. decedent or the guardian of the infant.

555, it was held that the bond provided for [1] (a) As to the first ground of exception by section 410, supra, must be given when a to the sale it is urged by appellees that the judgment was rendered to sell the lands of insant being over 14 years of age, and a a nonresident who has not appeared in the copy of the petition and summons having action in the enforcement of liens for debts. been served upon him, as provided for by The same principle was adhered to in White section 56, Civil Code, that such service v. Moyers, 31 S. W. 280, 17 Ky. Law Rep. dispenses with the necessity of execut- 402, and Tatum v. Gibbs, 41 S. W. 565, 19 ing the bond provided for by section 410, Ky. Law Rep. 696. Section 414, Civil Code, Civil Code, before the rendition of the judg- permits a defendant who was constructively ment. If such service had been made, the summoned and did not appear at any time contention would be, doubtless, true. Young within five years from the rendition of a

. v. Bullen, 43 S. W. 687, 19. Ky. Law Rep. judgment against him to reopen the case and 1561. The record, however, fails to show make defense to the action, and “thereupon that any such service was ever had upon the the action shall be retried as if there had infant defendant, and the only service shown been no judgment,” and the court may then was the constructive service by the making | confirm the judgment or modify or set it aside and order restored to the defendant the , Kentucky Statutes, a guardian is confined in value of any property which may have been his disbursements for the maintenance and taken under an attachment or under the education of his ward to the income of the judgment and not restored. Section 417, ward's estate, except where the ward is of Civil Code, provides that the title of pur- such tender years or of infirm health that chasers in good faith to any property sold he cannot be bound out as an apprentice, or under an attachment or judgment against a no suitable person will take him as such, or nonresident shall not be affected by the new when it is necessary to make a judicious trial provided for by section 414, supra, ex- | application of the principal, or some of it, cept such as was obtained by the plaintiff in the payment of the board and tuition of in the judgment, and not bought of him in an infant, and where these exceptions occur good faith by others. Hence, as if, in the the guardian may encroach upon the prininstant case, the property sold should pass cipal of the personal estate, and if properly to a purchaser in good faith, the nonresident and judiciously spent to the best interest of owner could not recover it, although the the ward, the expenditure will be approved, claim under which it was sold might be but the ward's real estate cannot be used shown by him to be spurious upon a retrial, for such purpose without an application havand then if the ones having received the pro- ing been first made to a court of equity and ceeds of the lands should be insolvent in the a clear case shown of the necessity for it, absence of a bond, as required by section when the court may direct a sale of the 410, supra, the new trial provided for by sec- ward's real estate and the use of the protion 414, supra, would be of no value, and ceeds in his education, as provided by section the judgment for the restoration of the prop- 2039, Kentucky Statutes. Dixon v. Hosick, erty or its value would avail nothing. Kel- | 101 Ky. 231, 41 S. W. 282, 19 Ky. Law Rep. lar, etc., v. Stanley, etc., 86 Ky. 240, 5 S. W. 387; Overfield v. Overfield, 30 S. W. 994, 477, 9 Ky. Law Rep. 388. Hence the judg. 17 Ky. Law Rep. 313; Cox v. Storts, 14 Bush, ment for a sale of the land for the debts of 502; Fidelity Trust Co. v. Butler, 91 S. W. the ancestor of the nonresident, infant de- 676, 28 Ky. Law Rep. 1268; Nunnelly's fendant, without requiring the execution of Guardian v. Nunnelly et al., 180 Ky. 131. the bond provided for by section 410, supra, The purpose, as appears here from the eviby those for whose benefit the judgment was dence, is to give the ward, who is now 18 procured, was erroneous. Such error, how- years of age, a collegiate education, and his ever, is one of which the purchaser cannot mother has not the necessary means to do complain, as it does not affect the title to so. The ward has only a small income aristhe property which he will receive.

ing from his property, as it now exists, and [4, 5] The fact of the execution of the bond is entirely insufficient to accomplish the puris not a jurisdictional fact, as is the execu- pose of giving him an education. The tion of the bond provided for by section 493, amount of the funds arising from the sale supra, when, under the provisions of that of the land which will be available for that section, the bond is required to be executed purpose after payment of the sums due the before a judgment and recorded with it. creditors of decedent and the costs of the ac. The court having jurisdiction, the failure to tion does not seem to be a sum greater than execute the bond does not affect the title is reasonably necessary for the payment of which the purchaser will receive. Oldham, his board and tuition while at college and etc., v. McElroy, etc., supra; Thomas v. Ma- the expenses which will necessarily be inhone, 9 Bush, 125; Brown v. Early, 2 Duv. cumbent upon him. - The court below should, 372; Allen v. Brown, 4 Metc. 342. The deed however, keep a supervision over the purpose has not been made, nor the purchase price and the amount of the expenditures desired paid. The provision is solely for the benefit from time to time, and the guardian can seof the nonresident defendant, and the court cure the necessary advice of the chancellor may yet take the necessary steps provided by such amended pleadings and necessary by law for the security of his rights before proof as may be required. any distribution of the funds is made by re- [7] (c) With respect to the third ground of quiring each of the creditors, including the exception to the sale, the certified records administrator so far as he is a creditor, to of the county court on file in the action execute a bond to the nonresident defendant, seem to be sufficient evidence for the purconditioned as provided by section 410, su- poses of this action of the appointment and pra, according to their respective interests, qualification of the plaintiff as administrator or else retain custody and control of the of decedent and as guardian of the ward. funds until the time has expired within It appearing that there is no sufficient which the nonresident may move for a new reason shown why the purchaser will not trial under section 414, supra.

obtain a good title to the land when the [6] (b) Neither does the second ground of purchase price shall have been paid and the exception seem to be well taken. It is true deed executed, it is therefore ordered that tha. under section 2034, subsections 1 and 2, the judgment be affirmed.

r

(140 Tenn. 41)

ed of Ben Thompson, the principal stockMATHENY et al. v. PRESTON HOTEL CO. holder of the defendant corporation, $600, (Supreme Court of Tennessee. April 27, 1918.) but he exacted as a condition of granting the 1. ACTION Omw53 (3)—SPLITTING CAUSES-AC-loan that they should pay all arrearages of TIONS FOR RENT.

rent due the corporation, and to make sure Where a tenancy from year to year results that this condition should be faithfully obfrom mere holding over, there is no continuous contract or transaction such as will require an served, he placed the whole sum in the hands action for rent due in one year to include rent of an officer of the corporation, with instrucdue in a previous year, and separate actions tions that the balance due the corporation may be maintained.

should first be deducted before handing over 2. ACTION Cw53 (3)—SPLITTING CAUSES—AC- the residue of the money to complainants. TIONS FOR RENT.

Where, on execution of lease, separate notes It was ascertained that a balance of $250 were drawn for each month's rent, each note is was due for the year 1915. This was deducta separate cause of action, and each may be ed and the rest of the loan turned over to sued on separately, although the others are then due.

complainants. 3. ACTION Omw 53(1) SPLITTING ACTIONS

Some months later defendant produced WAIVER.

three notes made for the rent of 1911, mạThe rule against splitting actions growing turing respectively October 30, 1911, Novemout of the same transaction is for the benefit of ber 30th, and December 30th of that year, the debtor, and he may waive his right. 4. JUDGMENT Om 593 - BAR - SEPARATE and demanded payment. Complainants reBREACHES OF SINGLE CONTRACT.

fused payment, insisting that these notes had Although, under Thomp. Shan. Code, ş 4620, been paid in 1911 to the First National Bank actions may be brought for each separate breach of an entire contract as it occurs, yet, where of Paris, Tenn., where all of the notes of several breaches have occurred at the time suit that year and the previous year had been deis brought, they must all be sued together, oth-posited for collection. Defendant disputed erwise those omitted cannot be subsequently this contention, and brought suit before a sued on.

justice of the peace of Henry county on the Appeal from Chancery Court, Henry Coun- notes. The present bill was then filed by ty; J. W. Ross, Chancellor.

complainants to enjoin that suit on the Bill by H. W. Matheny and others to en- ground that the notes had been already paid. join the Preston Hotel Company from suing The contention was also advanced in the bill on certain notes. From a decree of the Court that the action could not be maintained beof Civil Appeals, affirming a decree for de- cause all of the notes taken for the years fendant, complainants appeal. Reversed and 1910 and 1911, and the various sums agreed rendered.

to be paid as monthly rent for the remainFitzhugh & Morton, of Paris, Tenn., for ing years 1913 to March, 1916, grew out of appellants. Lewis & Bryant, of Paris, Tenn., one continuous transaction; that certain for appellee.

rental sums due for certain months in the

year 1915, aside from the $250 already menNEIL, C. J. In January, 1910, complain-tioned, matured, and were sued on, and judgants leased from defendant for the period of ment rendered, without including the prior one year its hotel building, at a rental of three notes of 1911 involved here. The evi$110 per month, evidenced by 12 proraissory dence fully sustains the allegation as to the notes, maturing respectively January 30th, suit on the rents of 1915 just referred to. February 28th, March 30th, and so on through An answer was duly filed. the year. At the close of the term complain- The chancellor and the Court of Civil Apants continued in possession, but without any peals both denied relief. further formal contract, executing, however, We shall consider here only the questions their 12 promissory notes, for the

notes, for the same of law. amounts, and maturing as during the pre- [1-3] In the first place, it is not true, as ceding year, covering the year 1911. At the matter of law, in our judgment, that all of close of that year complainant remained in the years constituted one continuous conpossession as during the two preceding years, tract, or transaction, as in case of an ordibut executed no notes; the rent, however, nary demise from year to year where the was reduced by agreement between the par- tenant is said to have a growing interest in ties to $100 per month for that year, 1912. the ensuing year. This does not apply where And so for the year 1913. They continued the so-called tenancy from year to year rein possession as before during the years sults from a mere holding over. 16 R. C. L. 1914 and 1915, and during January and Feb- p. 615, $ 94. Under the facts stated we think ruary, 1916, but for these years paid only each renewal was a new contract, but carry$95; no promissory notes having been exe- ing by implication the same terms as those cuted for any of the years 1912, 1913, 1914, of the preceding year, except in so far as 1915, or 1916. The property was surrender- specially modified (Shepherd & Mitchell v. ed at the end of February, 1916, or about Cummings, 1 Cold. (41 Tenn.] 354, 356; Noel March 1. 1916.

V. McCrory, 7 Cold. [47 Tenn.] 623, 627; During the year 1916 complainants borrow-| Hammond v. Dean, 8 Baxt. [67 Tenn.] 193 ;

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Wilson v. Alexander, 115 Tenn. 125, 131, 88 i be divided into four parts payable at differS. W. 935), though called, perhaps somewhat ent times, it was held that separate suits inexactly, at the common law, and in the might be brought on the several parts as they cases cited, a tenancy from year to year. It fell due, or one suit on all, when all fell due, does, however, possess one of the chief at- or separate suits at that time on each at the tributes of such a tenancy, in the requisite option of the plaintiff. Parris v. Hightower, of notice to terminate it. But, as stated, it | 76 Ga. 631.

But, as stated, it 76 Ga. 631. A debtor and creditor may for a is not the same contract as the original let- consideration agree that part of a single deting. Still, even if treated as one contin- mand may be sued on at one time, and the uous contract the rule referred to, against residue later, the debtor thus waiving the splitting causes of action, would not apply, rule against splitting a single cause of acsince each note would constitute a separate tion. Mills v. Garrison, *42 N. Y. (3 Keyes) cause of action. The rule was designed for 40. So a debtor and creditor may by agreethe debtor's benefit, to protect him from a ment between them change one large debt multiplicity of suits, and for that reason may due by note into several smaller ones (Dews be waived by him. When he executes prom- v. Eastham, 13 Tenn. [5 Yerg.] 297); but in issory notes he must know they can be sold such case, where several suits based on such by the payee to different persons, or may be demands between the same parties appear on in like manner used as collateral security for the docket at the same time, the court will loans, or may be otherwise disposed of, and order a consolidation (Id.). However, as to all may so reach separate hands, and thus contracts for personal services, see Tarbox v. may naturally be the occasion of as many Hartenstein, 4 Baxt. (63 Tenn.) 78. separate suits as there are notes. Knowing

There is a line of cases cited by counsel to this result as probable, or even lawfully pos- the effect that where one party holds a series sible, he must be held to have intended such of promissory notes, arising out of the same a consequence, and hence to have waived transaction, and all are subject to the same any protection of the rule against splitting defense or defenses, as want or failure of concauses of action; or rather it must be true sideration, or illegality, a judgment in an acthat papers capable of such use have, re- tion brought on one of them, in which the despectively, such a separate and independent fense was either sustained or defeated, as the existence that the rule was never intended case may be, is conclusive, between the same to be applied to them. That it does not ap parties, as to all of the other notes. But ply to such instruments fully appears from these cases rest on the doctrine of res judicaa recent able work. 1 Corpus Juris, title ta, and not on the rule against splitting the Actions, p. 1115, § 295. And see 1 R. C. L. cause of action. title Actions, $ 24, note 13, citing Dulaney [4] We understand the rule to be general v. Payne, 101 Ill. 325, 40 Am. Rep. 205, and that where the contract is entire, and there section 30, note 8, citing Kennedy V. New are several breaches of it, even though each York, 196 N. Y. 19, 89 N. E. 360, 25 L. R. may be sued upon as it occurs, as under our A. (N. S.) 847. The authority first cited re- Code (Thompson-Sh. 8 4620; Barnes Bros. v. fers to sundry cases as sustaining the prop- Coal Co., 101 Tenn. 354, 360, 47 S. W. 498); osition that different notes, although between yet where several breaches have already octhe same parties, give rise to different caus- curred at the time a suit is brought they es of action, upon which separate suits may must all be sued on in the same action, otherbe maintained, although the notes arose out wise those omitted cannot be subsequently of the same transaction (Williams v. Kitch-recovered on in another action, since the seven, 40 Mo. App. 604, and Nathans v. Hope, eral breaches, after they have occurred under 77 N. Y. 420), notwithstanding they were all such a contract, constitute only one cause of due at the time of the first action (Presst- action (Cook v. Hadly, Cooke [3 Tenn.] 465, man v. Beach, 61 Md. 203; Paton v. Doyne, 466; Perkins v. Hadley, 4 Hayw. [5 Tenn.] 74 N. J. Law, 319, 65 Atl. 843; Nathans v. 148, 151, 152; Carraway v. Burton, 4 Humph. Hope, supra; Ferguson v. Culton, 8 Tex. [23 Tenn.] 108, 113; Thomason v. Rice, 1 283). To same effect, Marshall V. John Shan. Tenn. Cas. 69, 73; Saddler v. Apple, 9 Grosse Clothing Co., 83 Ill. App. 338; Id., Humph. [28 Tenn.] 342; Railroad Co. v. Mat184 Ill. 421, 56 N. E. 807, 75 Am. St. Rep. 181. thews, 115 Tenn. 172, 91 S. W. 194; Whitak

Other instances, based on the same princi- er v. Hawley, 30 Kan. 317, 1 Pac. 508; Barple, may be cited as follows: 'Where plaintiff tels v. Schell [C. C.] 16 Fed. 341; Joyce v. had agreed to sell defendant a lot of cattle, Moore, 10 Mo. 272). deliverable in units of 20 or more at intervals But in the case now before us, as already between February 1st and July 31st, and ten pointed out, each note constituted a separate dered to defendant the first 20, which he re- cause of action; therefore the failure to sue fused, it was held plaintiff might sue for this on the three notes of 1911 when the arrearbreach, without waiting to tender the residue ages for 1915 were sued on did not operate of the lot sold. Coleman v. Hudson, 2 Sneed as an estoppel on the present action. How(34 Tenn.) 463. Where the plaintiff had sold ever, after a very careful examination of all the defendant a quantity of goods on the of the facts adduced in the record, we are