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NEEL'S EX'R Y. NOLAND'S HEIRS
batant enemies from capture as booty of farm, and that the chancellor properly so war.
held. The scope and effect of the act of March [6, 7] 4. The appellees prosecute a cross-ap3, 1863, supra, was fully considered in the peal from so much of the judgment as refused case of United States v. Klein, 13 Wall. 128, them a recovery of the $4,120 realized from 20 L. Ed. 519, in an able opinion by Chief the sale of the 103 acres to Scobee in 1875, and Justice Chase. It was there held that the also from so much of the judgment as denied title to the proceeds of property which came a recovery of the $850 which was paid to into the possession of the federal government Mrs. Neel in 1895 by the Louisville & Nashby capture or abandonment, with the excep-ville Railroad Company for a right of way tion above referred to, was in no case de through the farm. Appellees admit, however, vested out of the original owner, and that that they have been unable to make any diit was for the government itself to deter-rect proof of any reinvestment of the $4,120 mine, and not its military officers, whether received from Scobee; and, as it was sold these proceeds should be restored to the during the lifetime of Pearce Noland, no preowner. The act of 1863 directed the officers sumption will be indulged that the money of the Treasury Department to take into was received or spent by her, or that it was their possession and make sale of all prop- reinvested under the clause of the deed pererty abandoned by its owners, or captured mitting, but not requiring, reinvestments durby the national forces, and to pay the pro- ing Pearce Noland's life. But the $850 receeds into the national treasury.
ceived from the railroad company in 1893
It was then for the Court of Claims to determine, by was received after the death of Pearce Noa proper trial, whether the proceeds should land; and, under the later provision of the be restored to the owner of the property.
deed requiring a reinvestment of the proThe title of the original owner was not dis- ceeds of all sales made after his death, it is
insisted that Mrs. Neal's estate is liable for puted; but he could only recover his prop
the last-named sum. erty or its proceeds by proving his loyalty to the government of the United States. Other-Bettie Neel, about the year 1903, erected
It is stipulated of record, however, that wise, it remained with the government. See, also, the Case of Mrs. Alexander's Cotton, upon the farm in question a tobacco barn, at 2 Wall. 404, 17 L. Ed. 915; United States is still on the farm. As above stated, Mrs.
a cost of more than $850 and that said barn v. Padelford, 9 Wall. 531, 19 L. Ed. 788; Neel was required by the deed to reinvest Lamar v. Browne, 92 U. S. 187, 23 L. Ed. this money for the benefit of the remainder650; Walker's Ex’rs v. United States, 106 men; and it is clear from the proof that U. S. 413, 1 Sup. Ct. 300, 27 L. Ed. 166; Aus- she did invest or spend a great deal more tin v. United States, 155 U. S. 424, 15 Sup. than $850 in permanent improvements upon Ct. 167, 39 L. Ed. 206; Rice v. United States, the farm after Pearce Noland's death. 21 Ct. Cl. 419.
 A life tenant is not bound to make any It follows, therefore, that the act of Gen. permanent improvements on the estate; and, Grant in delivering the cotton to Mrs. No- if he should make them, it will be presumed land, even though it happened precisely as is they were made for his own benefit, and he claimed by appellants, did not affect Pearce will not be permitted to recover anything Noland's title thereto. And, in justice to therefor from the remainderman or the rethe memory of Gen. Grant it should be said versioner. 16 Cyc. 630; Johnson v. Stewart, that he did nothing that can be construed as 8 Ky. Law Rep. 857; Nineteenth & Jefferson a violation of the act of March 3, 1863. He Street Presbyterian Church v. Fithian, 29 did not attempt to confiscate the cotton in S. W. 143, 16 Ky. Law Rep. 581 ; Caldwell question, or to devest Pearce Noland's titlev. Jacob, 22 S. W. 436, 27 S. W. 86, 16 Ky. thereto. On the contrary, he fully recog- Law Rep. 21. But that is not this case. nized that title by directing a surrender of There is no attempt here upon the part of the cotton to its owner. There is evidence the life tenant's executor to recover this in this record that Pearce Noland was a $850, or any sum. It is merely claimed, by Union man, and not a Confederate; and if way of defense, that she reinvested this monthat were true, his cotton was not liable to ey upon the farm, by improving it to that ex
And, as heretofore stated, there is tent, and that the farm, thus improved, goes no competent evidence that it was seized by to the remaindermen. We think this was a the military authorities. It must follow, sufficient compliance with the requirements therefore, under any view of the case, that of the deed. appellants have failed to sustain their claim Judgment affirmed upon both original and to a resulting trust in the Shelby county cross-appeal.
court, in which the divorce suit brought by ROBINSON v. ROBINSON.
appellant was pending, filed a certificate (Court of Appeals of Kentucky. Oct. 28, 1915.) showing that the last order made in that 1. TRIAL 367–SUBMISSION OF CASE-AD- divorce suit was “Submitted for judgment,” MISSIONS IN PLEADING.
and that there was no judgment of record in In a divorce suit by a husband against the the case. Whereupon this case was subwife, in which the petition was amended so as mitted. The order granting alimony was to seek an annulment of the marriage on the ground that the defendant at the time of the set aside, and it was adjudged that the marriage had not procured a divorce from a contract of marriage was void on account of former husband, submission of the case over de- the fact that the appellant had never obtainfendant's objection was not premature, on the ed a divorce from her first husband. ground that the case did not stand for trial, where the wife's answer admitted that she had
[1, 2] On this appeal it is urged as a not been divorced from the previous husband. ground of reversal that the court erred in
[Ed. Note. For other cases, see Trial, Cent. submitting the case over the objection of the Dig. $$ 879, 886; Dec. Dig. Om 367.]
appellant, as it did not stand for trial, and 2. DIVORCE 152-PROCEEDINGS-PROOF.
in dismissing the appellant's claim for aliof on der book of the court is indispensable to estab- mony, as there was no competent evidence lish the fact that a divorce has been granted.
that she had not been divorced from her [Ed. Note.-For_other cases, see Divorce, first husband. The court did not prematureCent. Dig. $ 514; Dec. Dig. Om 152.]
ly submit the case, and no evidence of the Appeal from Circuit Court, Pike County.
fact that the appellant had not been divorced Suit by E. M. Robinson against Eliza Rob- was necessary, as her answer to the amendinson for divorce. From a judgment for ed petition admitted that she had not been. plaintiff, defendant appeals. Affirmed.
The court may have indicated that it would
grant her a divorce from her first husband, J. S. Cline, of Pikeville, for appellant.
and directed her attorney to prepare the CARROLL, J. The appellee brought this the order book of the court was indispensa
judgment; but the entry of the judgment on suit in January, 1914, to obtain a divorce ble to establish the fact that the divorce from the appellant on the ground of adultery. was granted, and it was admitted that the The appellant filed her answer and cross-judgment had not been entered. petition in February, 1914, in which she aver
The judgment is affirmed, red that they were married on the 23d day of December, 1913, and lived together only about four weeks, separating some five days
BETHURUM v. BAKER et al. before the suit was brought. She denied the charge of adultery, and set up that the ap- (Court of Appeals of Kentucky. Nov. 3, 1915.) pellee had abused and mistreated her in such 1. JUDICIAL SALES O35 — VACATION – AU
THORITY OF COURT. a manner as to indicate a settled aversion to
The court's power to set aside a judicial her, and further averred that “although sale is not an arbitrary one, and can be exercisthere was born of the marriage one child, of ed only for cause showing irregularities preventwhich the plaintiff is the father,” he had ing the property bringing its reasonable value; refused to furnish anything for its support. all parties, including the purchaser.
the court taking into consideration the rights of She asked for an allowance pending the suit, [Ed. Note.--For other cases, see Judicial Sales, and for alimony for herself and child. In Cent. Dig. $$ 72, 73; Dec. Dig. Om 35.] March, 1914, the court made an order allow- 2. MORTGAGES Ow522—FORECLOSURE — SALES ing the appellant alimony; and in May, 1914,
-VACATION. an amended petition was filed, in which it sold at judicial sale for less than two-thirds of
Ky. St. & 1684, declares that if property be was averred that the plaintiff had learned its appraised value, the owner may redeem it since the petition was filed that the defend- within one year thereafter by repaying the origant had never obtained a divorce from her inal purchase money, with interest. Mortgaged first husband, although a suit had been property when first exhibited for sale was, after
à controversy between the mortgagee and the brought by her for that purpose, and that in attorney for one of the parties, sold to the representing herself as a single woman she mortgagee for one-fourth of its appraised value. practiced a fraud on him, and therefore he sioner that he would not claim the advantage of
The mortgagee then announced to the commisprayed that the contract of marriage be set his bid, and on resale the property was sold aside and held for naught.
to the mortgagee for two-thirds of its appraised For answer to thisamended petition the value, thereby precluding redemption. Held, appellee, after traversing it generally, affirm that
as the first sale would have been vacated,
the mortgagor cannot complain that the commisatively averred that she had instituted a suit sioner resold the property; it being to his benefor divorce against her former husband, fit that the property bring its reasonable value. which, after being prepared for hearing, was
[Ed. Note. For other cases, see Mortgages, submitted, and the court had directed a judg- Cent. Dig. § 1522; Dec. Dig. Em522.] ment to be prepared granting her a divorce, Appeal from Circuit Court, Rockcastle and this judgment was given to the clerk, County. but for some reason was not recorded on the Action by L. W. Bethurum against W. H. order book. The clerk of the Pike circuit Baker and another, consolidated with an acKy.)
BETHURUM v. BAKER
tion by the People's Bank. From a judg- | Griffin he might again offer the property for ment setting aside a mortgage sale, the nam- sale, and that he would cause them no ed plaintiff appeals. Reversed, with instruc- trouble about his bid of $250. Griffin again tions.
offered the property for sale, and Bethurum
bid $667 therefor, and it was again knocked Bethurum & Lewis, of Mt. Vernon, for ap- down to him, Bethurum complied with the pellant. C. C. Williams, of Mt. Vernon, for terms of sale by giving bond, and the commisappellee.
sioner so reported it to the court. The de
fendant W. H. Baker excepted to the report, MILLER, C. J. On June 2, 1911, the ap- | because the commissioner sold the Langford pellees, W. H. Baker and wife, mortgaged tract for a sum less than two-thirds of its aptheir Langford tract of 15 acres, situated praised value, thereby saving to the defendon Round Stone creek, in Rockcastle county, ants a right of redemption, but that after the to B. F. Hill, to secure the payment of a note land had been sold for less than two-thirds of even date therewith, for $424. Hill as- of its appraised value, the commissioner, signed the note to the appellant Bethurum. without right, and without an order of court, Subsequently, on the 14th of September, resold said tract for $667, which was more 1911, Baker and wife mortgaged the Lang than two-thirds of its appraised value, thereford tract and a house and lot on Main by attempting to deprive the defendant of street, in Mt. Vernon, known as the “Hotel his right to redeem said land. The court Property,” to Williams, Mullins & Richards, sustained the exception, and from a judgto secure three notes aggregating $2,250. ment setting aside the sale, Bethurum proseBy successive assignments, these last three cutes this appeal. notes became the property of the People's
[1, 2] Under section 1684 of the Kentucky Bank of Mt. Vernon. On April 18th, 1913, Statutes, if property be sold at a judicial Bethurum instituted this action to enforce sale for less than two-thirds of its appraised his mortgage lien upon the Langford tract;
value, the owner has the right to redeem it and on August 8th of the same year, the within one year thereafter, by repaying to People's Bank instituted an action against the purchaser the original purchase money, Baker and wife to enforce its lien upon the with 10 per cent. interest thereon. This Langford tract and the Hotel Property. The exception presents only one question for detwo suits were consolidated and proceeded termination upon this appeal, viz: Did the to a judgment on August 30, 1913, enforcing commissioner have the right to make the secthe liens and directing a sale of the mort
ond sale? gaged property to pay the respective debts
The court's power to set aside a judicial of the plaintiffs. The Langford tract was sale and order another sale, is not an arbiappraised at $1,000. The judgment provided
trary power. It can only be exercised for that in case Bethurum directed a sale, the
cause showing such irregularities in the procommissioner should sell only the Langford ceedings, or such' misconduct on the part tract, or so much thereof as was necessary of persons interested, or officious intermedto pay Bethurum's debt, and any surplus dlers, as presumably interfered with the remaining from the sale of that tract should
But be retained by the commissioner, subject to property bringing its reasonable value. be retained by the commissioner, subject to the court must regard the rights of all the the order of the court. Bethurum directed a parties, including the purchaser, and exersale; and, when Griffin, the master commis- cise a legal discretion as to rejecting or consioner, after due advertisement, was pre- firming sales. Hughes v. Swope, 88 Ky. 258, paring to cry the property, C. C. Williams, 1 s. W. 394, 8 Ky. Law Rep. 256; Head v. who had been Mrs. Baker's attorney in a di-Clark, 88 Ky. 364, 11 S. W. 203, 10 Ky. Law vorce case, and was presumably acting for
Rep. 917. her, or for himself as assignor of the notes
In Head v. Clark, supra, in speaking of the then held by the People's Bank, stated to commissioner and his duties, the court said: Griffin that he objected to his selling the
“If it be conceded, however, that, in the case Langford tract first, because the judgment of an ordinary sale by auction, the power of the provided that the Hotel Property should first, auctioneer is at an end the moment the hammer be sold, and, if it failed to bring enough to falls, and that the contract of purchase is, then satisfy the indebtedness for which the mort- closed, no matter what mistakes he may have
committed, or what misunderstanding may have gage was executed, then the Langford tract existed upon his part as to the bidding, yet we should be sold. Bethurum disputed the cor- are unwilling to say that this is true as to a rectness of Williams' statement, and after decretal sale attended by circumstances similar
to those now under consideration. In an ordisome further disputation between Bethurum nary sale by auction, the auctioneer is the agent and Williams, Griffin proceeded with the sale of the seller only until the sale is made, when, of the Langford tract. Bethurum started for certain purposes, he becomes the agent of
both parties. the bidding with an offer of $250; and, there
“A commissioner, acting under a decree, has, being no other bid, Griffin knocked down the however, duties to perform as to the complainproperty to Bethurum. Immediately there-ant, the vendor, the purchaser, and the court; after, and before the crowd had dispersed, and in the performance of those duties he must
exercise his best judgment. He is necessarily Bethurum announced that he would waive invested with a reasonable discretion, in many ing care, however, to obey the decree so far as any interested party. Appellees' exception, it has given him specific directions. In acting however, is based upon the idea that the comunder it, he should adopt all proper means to fulfill its directions; and in doing so he is, un
missioner was representing the defendant less restricted by its terms, or the general law, only when he made the sale, while, in fact, to exercise a sound discretion. He may, for the sale was made at the direction of appelgood reason, decline to sell at the time adver- lant, and for the purpose of preserving his tised. If there be but one person present, or by reason of sham bidding a sacrifice of the prop- rights under the judgment. erty is reasonably certain to occur, he may re- Moreover, it was to the interest of every fuse to proceed. It was said by the Supreme one concerned that the property should bring Court of the United States in Blossom v. Railroad Company, 3 Wall, p. 209 [18 L. Ed. 431, the highest price possible, and the fact that that he might be justified in postponing the sale the property brought more than two-thirds to a future day to prevent the sacrifice of the of its appraised value at the second sale, and
. exercise a reasonable discretion to adjourn such thereby barred appellees' right of redemption, a sale, and all that can be required of him is cannot affect the rights of any of the parties. that he should have proper qualifications, use There is proof to the effect that the wrangle due diligence in ascertaining the circumstances, between Bethurum and Williams before the and act in good faith, and with an honest intention to perform his duty.'
sale deterred other persons from bidding, and “Undoubtedly a sheriff in selling under execu- thereby letting the property go at the nomition may exercise his discretion in the respects nal price of $250. Appellant recognized that to which we have alluded, and we see no reason fact, and promptly notified the commissioner why a commissioner in selling property under decree should not have the same right.
The that his bid need not stand in the way of a fact that his action is not final until approved higher bid. If the tract had been sold under by the court does not present a sufficient reason the bid of $250, there can be little doubt that, for a distinction." In Swafford v. Howard, 50 S. W. 43, 20 and Williams, and the consequent low price,
in view of the controversy between appellant Ky. Law Rep. 1794, the purchaser did not the sale would have been set aside, upon exexecute bond for the purchase money at the ception taken thereto, and a resale ordered. conclusion of the sale, whereupon the com- That has been accomplished to the benefit of missioner resold the property. In approving all concerned by the second sale at more his action, the court said:
than double the bid at the first sale. If “Frederick did not execute bond for the pur- Bethurum's first bid of $250 had prevailed, chase money, and the commissioner had the right to use his discretion as to whether or not and the property had been sold to him for be would resell it, and it does not appear that that sum, instead of for $667, as was done he abused the discretion which he had the right under the second sale, the difference of $417 to exercise. Head v. Clark, 88 Ky. 362 [11 S. would have been thrown upon the Hotel W. 203, 10 Ky. Law Rep. 917]; Wilson v: would have been thrown upon the Hotel Thorne & Co. [13 S. W. 365] 11 Ky. Law Property. Furthermore, if the first bid of Rep. 945; Hughes v. Swope, 88 Ky. 254 [1 s. $250 had been accepted, the appellees' right W. 394, 8 Ky. Law Rep. 256]."
of redemption in the Langford tract could In 24 Cyc. 46, it is said:
have been sold to pay the unpaid balance “If the purchaser, at once upon the property of appellant's debt. It would seem, therefore, being struck off to him, wrongfully refuses to under any view of the case, that it was to the
of may offer the property for sale again without interest of both Baker and his creditors that an order for the resale."
his property should bring the higher rather If a commissioner has the right to make a than the lower price. The usual complaint is new sale in case the purchaser fails to com- that the debtor's property sells for too small ply with his bid at the first sale, we see no a sum. We are of opinion the chancellor was reason why the commissioner may not resell in error when he set aside the second sale. the property, with the consent of the pur- Judgment reversed, with instructions to the chaser at the first sale. Of course he could circuit court to set aside the judgment apnot release the purchaser under the first sale pealed from, and to confirm the sale of the if, by doing so, he would affect the rights of Langford tract to the appellant.
THOMAS v. NATIONAL CONCRETE CONST. CO.
or handle broke, and the bucket fell on THOMAS V. NATIONAL CONCRETE plaintiff's head and injured him. The buckCONST. CO.
ets which were being used were "brand-new" (Court of Appeals of Kentucky. Nov. 3, 1915.) galvanized iron buckets, which had been 1. MASTER AND SERVANT 219-INJURIES To purchased the day before. Plaintiff testifies SERVANT-DEFENSES.
that he had been engaged in concrete work A master will not be exonerated from lia- for a number of years. On the occasion in bility for injuries sustained by a servant hurt question he believed that the work of filling when a bucket used to carry concrete broke, on the theory that it was a simple tool; the the buckets was dangerous, but he feared bucket not being used in the ordinary manner. that, if he did not do the work, he would
[Ed. Note.–For other cases, see Master and lose his place. He further says that the Servant, Cent. Dig. 88 610-624; Dec. Dig. Om foreman told him that he had examined the 219.] 2. MASTER AND SERVANT Om278-INJURIES TO unable to tell what caused the bail to break.
buckets and they were all right. He was SERVANT-RES IPSA LOQUITUR.
The doctrine of res ipsa loquitur applies James Thompson, who at the time of the only in a restricted sense to master and serv- accident was engaged in pulling up the buckant cases, and negligence on the part of the massets which plaintiff filled, says that the foreter will not be presumed from the mere fact that the bail of a bucket loaded with concrete broke; man just before the accident fixed one of the there being nothing in the surrounding circum- buckets, and he heard the foreman say that stances to show that the bucket, which was new, the buckets were all right. On being asked was defective or that any defect was known to what caused the bail to break, he replied that the master.
[Ed. Note.--For other cases, see Master and the bucket must have been too heavily loadServant, Cent. Dig. $$ 954, 956–958, 960–969, ed. John H. Johnson, another employé who 971, 972, 977; Dec. Dig. Om 278.]
was present, says that he heard the foreman 3. MASTER AND SERVANT 101, 102–INJU- tell plaintiff that the bucket was all right. RIES TO SERVANT-ASSURANCE OF SAFETY. In his petition plaintiff charges that the
That a master gives a servant an assur- bucket and bail thereon had become old and ance of safety, does not impose absolute liability, regardless of negligence, but only deprives the worn and out of repair and in a dangerous master of the advantage of the pleas of assump- and defective condition, and that this condition of risk and contributory negligence, unless tion was known to the defendant, or could the defect was obvious.
have been known by the exercise of ordinary [Ed. Note. For other cases, see Master and
He further alleges that defendant asServant, Cent. Dig. $$ 135, 171, 174, 178–184, care. 192; Dec. Dig. Om101, 102.]
sured plaintiff that the buckets and bails
were in safe condition, and that plaintiff reAppeal from Circuit Court, Jefferson Coun- lied on such assurance, and that the danger ty, Common Pleas Branch, Second Division.
attending his employment was not obvious. Action by John Thomas against the Na
 We are not disposed to the view that tional Concrete Construction Company.
a recovery cannot be had because the bucket From judgment for defendant, plaintiff ap- which injured the plaintiff was a simple tool. peals. Affirmed.
It might be so regarded had it been used in S. A. Anderson and J. J. Kavanaugh, both the ordinary and usual way; that is, if the of Louisville, for appellant. Gibson & Craw- plaintiff had been engaged in carrying the ford and J. Jos. Hettinger, all of Louisville, bucket at the time. As a matter of fact, for appellee.
however, the bucket was being used as a
part of the hoisting apparatus, which was CLAY, C. In this action for damages by being operated by another employé. In view plaintiff, John Thomas, against the National of these circumstances, we conclude that the Concrete Construction Company, the trial simple tool doctrine has no application. court, at the conclusion of plaintiff's evidence,  It remains to consider, however, whethdirected a verdict in favor of defendant. er there is any evidence of negligence on the Plaintiff appeals.
part of the defendant. Though plaintiff alThe facts are as follows: On April 4, leges that the bucket was worn and defective, 1911, the defendant was engaged in doing there is not only an absolute failure of proof certain concrete work on a building at Fourth on this point, but the evidence shows that the and Walnut streets, in Louisville. Prior to buckets were “brand-new” buckets. Nor is the accident plaintiff had been employed by there any evidence that the buckets were not defendant as a laborer, and was engaged in of sufficient strength for the purpose for wheeling sand and gravel. On the day of the which they were being used, the proof showaccident defendant's foreman placed him at ing that they were the kind ordinarily used work filling buckets with concrete, which for hoisting purposes. Indeed, the only eviwere being hoisted to the third floor of the dence as to the cause of the accident is the building. For this purpose two buckets were statement of one of the witnesses to the efused, each attached to the end of a rope, and fect that the bucket was probably too heavily as one filled with concrete was being hoisted loaded, and the loading was being done by the empty bucket at the other end of the plaintiff. Is the mere fact that the bail rope would be lowered to be refilled. As one broke sufficient evidence
sufficient evidence of negligence? of the buckets was being hoisted, the bail | While the doctrine of res ipsa loquitur ap