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fact that the land was not susceptible of division, and her only remedy, if any remedy she has, is by appeal from the former judgment. This suit for partition is in effect res judicata. She is therefore in no position to claim a division of this land, unless she can do so upon the alleged understanding or agreement asserted by her to have been made between her and Major Hays, whereby she was to have her portion, one-tenth, in land instead of money. She solemnly asserts that such an agreement was made, while Major Hays with equal firmness declares it was not made. The trial court in passing upon this point found against plaintiff, Laura Hays, and we are not inclined to disturb the 'finding of fact. Aside from this, the defendant, Major Hays, alleged that the land was not susceptible of division without great impairment of its value, and the only evidence in the record upon that point sustains the allegations of the answer. It follows, therefore, that under the state of record, the trial court did not err in refusing a division, especially where it is affirmatively asserted that such tract cannot be divided without impairing its value. Judgment affirmed.

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FIDE PURCHASER-NOTICE-INQUIRY. For an intended purchaser of property from a vendor with a good record title to be a bona fide purchaser, he need inquire only when informed of facts and circumstances that would lead an ordinarily prudent man to believe there was some infirmity of title.

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3. EXECUTORS AND_ADMINISTRATORS SETTLEMENT OF ESTATE-SETTING ASIDE OF DEED IN PART.

Where a deed to son from his father, later deceased, was set aside for undue influence except as to a part of the land which had been transferred to a bona fide purchaser, the son should be charged, in settling the estate, with the money paid to him for such land.

Appeal from Circuit Court, Harlan County. Suit by Clarinda Davis and others against Elisha Creech, in which G. A. Eversole intervened. From a judgment dismissing the petition, plaintiffs appeal. Reversed in part and affirmed in part.

Hall & Jones, of Harlan, for appellants. Zeb A. Stewart and G. A. Eversole, both of Harlan, for appellees.

CARROLL, J. In January, 1912, Isaiah Creech, who was then about 83 years old, executed a deed conveying to the appellee,

Elisha Creech, a tract of land in Harlan county worth about $6,000, for the recited consideration of $500. In June, 1912, Isaiah Creech died, leaving several children, and all of them, except three, brought this suit in 1913 for the purpose of having the deed made to Elisha set aside upon the ground that Isaiah, at the time he made it, was mentally incapable of executing the instrument, and its execution was procured by undue influence. Soon after the petition was filed, G. A. Eversole came into the case by an intervening petition, and set up that subsequent to the conveyance to Elisha he had purchased from Elisha a part of the land deeded to him by his father, and, after averring that Isaiah was capable of making the deed, and there was no fraud or undue influence in its procurement, he asked that the petition be dismissed in order that his interest in the land might not be affected by the suit. To the petition an appropriate answer was filed by Elisha, and to the intervening petition of Eversole an appropriate answer was filed by the children who brought the suit. Thereafter the case was prepared for trial, and the petition of the children, seeking to have the conveyance set aside, was dismissed.

[1] The evidence in this case presents the usual features appearing in cases of this character. A number of witnesses testified in support of the respective contentions of the parties, and as the issues in the case are purely ones of fact, it will be necessary to make, at least, a brief review of the evidence. The substantial facts are that Isaiah Creech was about 83 years old when this conveyance was made, and that he had been for some years before this time, and was at this time, a heavy drinker of intoxicating liquors, with which he was kept well supplied by his son Elisha. Elisha Creech was the youngest child, and had always lived in the home of his father, whose wife died about 1900. That he should have been very much attached to his son Elisha, who had always lived in the same house with him, is nothing more than natural, and especially did the intimacy and the dependency of the old man on the young one grow with the old man's declining years. There is much evidence in the case that for several years before the death of his father Elisha had practically controlled all of his business affairs, and that he would not make any trade unless he had first consulted his son Elisha.

J. J. Huff wrote the deed, and, as he was not cross-examined when introduced as witness for the children attacking the deed, we may reasonably attach considerable weight to his evidence, and recite certain parts of it as a fair sample of what other witnesses said. Huff testified, in substance, that he was called on by Elisha to write the deed, and said that Elisha had told him sev

eral times that he wanted him to write a deed for his father; that when he came to write the deed, the old man was present, but the witness could not say whether he was drunk or sober, nor did he undertake to give the boundary of the land, saying that he, Huff, knew the boundary, and thereupon Huff, Elisha, and Alex Creech fixed the boundary; he said he asked what consideration should be expressed in the deed, and that the old man said he did not know, "and I believe Elisha Creech says, 'What about making it $300?' and I suggested that they make it $500, which they did." He further says that his understanding was that there was no consideration paid for the land; that he had written a good many deeds at different times, for Isaiah Creech, and he always signed them with his own hand, but that he did not sign this deed or two others that he made at the same time, but made his mark. When asked what influence Elisha had over his father, he said that all he knew about it was that Elisha managed the affairs at the home of Isaiah, and seemed to have full control of his business matters.

Although the deed recites a consideration of $500, it is very evident that no consideration at all was paid, and there is also evidence tending to show that the old man several times said before this deed was made that he wanted what he had left for his children in equal shares.

It further appears that on the day this deed to Elisha was made the old man deeded some property, of small value, to his sons Alex and William, and that he had, about 2 years before, conveyed to his daughter Polly a little piece of land. No attack, however, has been made on any of these conveyances, because it does not appear that either of them amount in value to more than what the legitimate share of the grantee would be in the estate of Isaiah Creech. But the property deeded to Elisha was several times more valuable than his equal share in the estate would have been.

Taking into consideration the age of Isaiah and the natural physical and mental weakness attending it, together with the undoubted influence that his son, Elisha, exercised over him, we are of the opinion, in the light of all the circumstances surrounding the transaction, that this conveyance was not the product of a free and independent mind, but was the result of an improper influence exercised over the grantor that constrained him to do that which he would not have done if left to the uncontrolled exercise of his own judgment.

[2, 3] In respect to the conveyance made by Elisha to Eversole, there are some circumstances in the record that tend to show that Eversole, before his purchase, had some doubt as to whether Elisha had secured a good title to the property conveyed to him

by his father, but we think the circumstances are not so controlling as to justify us in setting it down that Eversole should be charged with notice of the vice in the deed to Elisha. The intended purchaser of property from a person who has a good. record title is not obliged to make inquiry in order to put himself in the attitude of a bona fide purchaser; he is only charged with such notice as may come to him in the way of facts or circumstances that would lead a person of ordinary prudence to believe that there was some infirmity in the title, and this character of notice is lacking. But Elisha, in the settlement of the estate, should be charged with the money paid to him by Eversole for the land.

Wherefore the judgment is reversed, with directions to set aside the deed made to Elisha, except to the extent of the conveyance to Eversole. As to Eversole, the judgment is affirmed, and his title will remain unaffected by this decision.

(180 Ky. 760)

SCHUSTER v. CITY COUNCIL OF CITY OF OAKDALE.

(Court of Appeals of Kentucky. May 31, 1918.) MUNICIPAL CORPORATIONS 867(2) INDEBTEDNESS-STREET IMPROVEMENTS-STATUTE AND CONSTITUTION.

Under Const. § 157, providing that no city, town, taxing district, or other municipality shall be authorized, or permitted to become indebted to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters, a city of, the fifth class cannot create, pursuant to the ten year bond plan of Ky. St. § 3643, an of its current revenue for the year, without the indebtedness for street improvements in excess assent of two-thirds of the voters, though the property abutting on the street improvements is in lien to the city for the debt and primarily liable therefor.

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Frank J. Schuster against the City Council of the City of Oakdale, etc. Judgment for defendant, and plaintiff appeals. Reversed.

Chas. Carroll, of Louisville, for appellant. P. D. Crawford, of Louisville, for appellee.

SAMPSON, J. This is an agreed case, instituted to test the validity of a proposed bond issue, by Oakdale, a city of the fifth class, in Jefferson county. Between January 1 and April 1, 1918, the city council of Oakdale, by various ordinances, provided that certain streets of that city should be improved by grading, curbing, guttering, and otherwise, under section 3643, Kentucky Statutes, known as the "ten-year bond plan," whereby the property of abutting owners is in lien to the city for the costs of the improvements.

At the time of the enacting of the ordinanc

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

Subsection No. 3 is as follows:

es and the letting of the contracts thereun- | buildings and other improvements upon the der, the city of Oakdale was incumbered property so improved." with debt up to the constitutional limit. The entire revenue of the city from all sources for the year 1918 will not exceed $16,000, of which amount about $7,000 will be consumed in current expenses, such as salaries, rents, lights, water, etc. The proposed improvements will reasonably cost, and, indeed, are let to a contractor at, approximately $58,000. Hence the proposed bond issue will greatly exceed the revenue for the current

year.

"The original construction or reconstruction of any streets, avenues, highways, alleys, sewers and public places may be made at the exclusive cost of the owners of the lots and parts of lots or lands fronting or abutting or bordering upon the proposed improvements to be equally number of front feet owned by them respectiveapportioned by the city council according to the ly, or in part at the cost of the owners, and in part at the cost of the city, upon the petition of a majority of the property owners of lots or parts of lots, or land abutting or bordering upon the proposed improvement; or the city

Section 157 of the Kentucky Constitution council may cause same to be done without provides in part:

"No county, city, town, taxing district, or other municipality shall be authorized or permitted to become indebted, in any manner or for any purpose, to an amount exceeding in any year, the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void."

The question presented by this appeal is: Can a city of the fifth class create an indebtedness in excess of its current revenue for the year without the assent of two-thirds of the voters of such municipality, voting at an election held for that purpose, though the property fronting and abutting upon the improvements be in lien to the city for the debt, and primarily liable therefor? The plaintiff, Schuster, contends that the contracts made and the ordinances passed by the city council of Oakdale, as above set out, are unconstitutional and void, for the reason that by the passage of the ordinances an unwarranted indebtedness is authorized, and by the making of said contracts an indebtedness is attempted during the year 1918, by the city of Oakdale, in excess of the revenue of said city for said year. This is denied by defendants, who claim that, as the owners of the property sought to be improved are pri

marily liable for the direct costs of the im

provements and the property improved is in lien to secure payment of the contract price for said improvements, the constitutional prohibition does not apply.

The ten-year bond plan for improving streets, which is the one here attempted to be invoked, was enacted in 1912, and is now section 3643, Kentucky Statutes, divided into 13 subsections. Subsection 1 of this, act, in part, provides:

such petition upon the vote of four memberselect of said council at a regular meeting thereof; or the council may, by a majority vote of any regular meeting thereof, cause any such improvement to be made upon the ten-year bond plan as hereinafter provided."

Subsection No. 4 is as follows:

"But any work undertaken under the provision of the preceding section to wit: Upon the ten-year bond plan is completed in accordance with the contract, the work shall be received by the city council and the said council shall order the payment for the same made to the contractor by issuing an order [to] the city treasurer to pay same in full out [of] the 'street improvement fund.'

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Subsection No. 5 is as follows:

"Whenever any work done hereunder [upon the ten-year bond plan] has been completed and accepted, the city council shall issue the bonds of the city, in sums not to exceed the cost of tion therewith, including the expenses and the said improvement, and all expenses in connecissual and sale of said bonds, and shall sell the same to the highest bidder after due advertisement at a price not less than par and accrued interest. Said bonds shall be divided into ten series, each series to be as nearly equal as possible, said series to be paid respectively in one, two, three, four, five, six, seven, eight, nine and ten years after date. Said bonds shall be of the denomination of one hundred dollars or multiple thereof not exceeding five hundred dollars and shall bear interest at a rate not to exceed six per cent. per annum and shall be payable at a Kentucky bank to be designated by the city council."

The substance of subsection 6 is: That

the city shall create a fund, to be known as be held by the treasurer separate and apart the "street improvement fund," which shall

from other funds in his hands, and out of this fund the city shall pay for all such street year bond plan. By subsection 7 it is proimprovements provided for under the tenvided that the assessments shall be made to meet the expenses of the improvement, and the same shall be made upon a flat rate by the front foot upon the property fronting, "The cost and expenses incurred in con- or abutting, or bordering, upon said improve structing or reconstructing streets, avenues, highways, sewers and public places shall be ment. This assessment must be made as soon paid out of a general fund of the city or by the as the cost of improvement is fully ascertainowners of the land fronting and abutting there- ed, and the sum assessed against each piece on, as the city council may in each case deter- or property, and shall be placed upon the tax mine; or the city council may order and direct that two thirds only of said cost and expenses list of the city against the owners of the so incurred shall be paid by the owners of the property, and to be payable to the city treaslands fronting and abutting said improvements urer in ten equal annual installments, with and the other one-third paid by the city; but interest. the local assessments shall not exceed fifty per centum of the value of the ground after such

The ten-year bond plan, which cities of

the burden of the cost of such improvements upon those who derive the greatest benefit, the owners of the property fronting and abutting on the improvements, and is often entirely fair and just. It does not, however, increase, nor was it intended to increase, the debt limit of such cities. Improvements made under this plan must be under the authority of an ordinance duly enacted by the city council, and the contract must be let and enforced by the city. When the work is completed, the money is paid to the contractor from the "street improvement fund" of the city, into which fund all moneys arising from the sale of bonds under subsection 5 of the act is gathered. The bonds authorized to be sold are "the bonds of the city," and not of the owners of the improved property. The property owners are assessed in proportion to the frontage owned by each, and this amount is divided into ten equal installments payable in one, two, three, four, five, six, seyen, eight, nine, and ten years after the assessment, and is placed upon the tax bill of the property owner, and collected like other taxes and at the same time. The city has a lien upon the improved real estate for the payment of the installments as they become due, which lien may be enforced by the city in an equitable proceeding for that purpose. Obviously such bonds are the obligations of the city, and the city alone is liable thereon, although it may in turn collect the whole thereof from the property abutting and fronting on the improvement made by the expenditure of the money. The city pledges its credit and assumes the debt; nevertheless it expects to be fully repaid by the property holders.

As a further evidence that the Legislature, in enacting this section of the Statutes, did not intend to give cities of the fifth class an opportunity to increase their indebtedness beyond the constitutional limitation, we refer to subsection 12 of the act itself, wherein it is provided that:

"If it shall be necessary to raise an amount of money for said 'street improvement fund,' which would create an indebtedness greater than the amount which could be met by the levy authorized by law, the city council shall cause the question of such issue and sale of bonds to be submitted to the qualified voters of said city at an election to be held for said purpose, as provided for in section 3637, subsection 3, of the Kentucky Statutes.'

99

the limit of debt to be incurred by a city of this class at the time of the enactment of the ten-year bond plan.

Since the proposed bond issue is for $58,C00, and the revenue of the city for the year from all sources cannot be greater than $16, 000, it follows that the constitutional limita tion of debt would be greatly more than exceeded. The trial court was therefore in er ror in holding legal and valid the ordinances enacted by the council of the city of Oakdale, upon which the bond issue must rest for support, and a like error was committed in sustaining and adjudging valid and binding the contracts for such improvements. Judgment reversed.

(180 Ky. 843)

LOUISVILLE & I. R. CO. v. COMMONWEALTH.

(Court of Appeals of Kentucky. June 4, 1918.) 1. RAILROADS 255(2)-ACCOMMODATIONS— WATER-CLOSETS.

What is a reasonably suitable and convenient water-closet required at railroad stations by Ky. St. § 772, depends upon the facilities, and should be in accord with the best in common use in the vicinity. 2. RAILROADS 255(11)-ACCOMMODATIONS-

WATER-CLOSETS-CRIMINAL REPONSIBILITY.

In criminal prosecution, evidence held insufficient to sustain finding that a privy maintained at a distance from a station in a town without a waterworks was not reasonably suitable and convenient as required by Ky. St. § 772, although several buildings in the town and another railroad maintained inside water-closets and provided water for flushing them. 3. RAILROADS 255(2)- WATER-CLOSETS LOCKS.

To comply with Ky. St. § 772, requiring railroads to maintain reasonably suitable and convenient water-closets, a railroad which locks its water-closets must provide a means for patrons to obtain a key during the hours that they have a right to be at the stations. 4. RAILROADS

255(11)-WATER-CLOSETS

CRIMINAL PROSECUTIONS.

held insufficient to warrant a finding that railIn prosecution under Ky. St. § 772, evidence road did not provide means to patrons at a station to obtain the key to the water-closet. Appeal from County.

Circuit Court, Oldham

The Louisville & Interurban Railroad Company was convicted of a failure to provide a suitable and convenient privy at a depot in violation of Stats. § 772, and it appeals. Reversed and remanded.

Willis, Tood & Bond, of Shelbyville, for appellant. Chas. H. Morris, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen., for the Commonwealth.

In other words, cities of this class, when desiring to issue bonds, or create an indebtedness greater than the revenue receivable from all sources for the calendar year, even where the property abutting on the improvement is primarily liable, must submit the CLARKE, J. The appellant was indicted, question to the voters of the municipality, charged with failing to provide a suitable and the proposition must receive the assent and convenient privy at its depot in the city of at least two-thirds of the voters voting in of La Grange, in violation of section 772, said election. This section of the statute Kentucky Statutes; and, the trial resulting leaves no doubt that the lawmakers had in in a judgment of conviction imposing a fine mind section 157 of the Constitution, fixing of $100, it has appealed upon the ground

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

that there was not sufficient evidence to authorize a submission to the jury, rendering erroneous the court's denial of its motion for a directed verdict.

La Grange is a city of the fifth class, the county seat of Oldham county, and has a population of 1,300 or 1,400, but is without a public waterworks or sewerage system, and defendant had erected and maintained, within 50 or 60 feet and in the rear of its passenger station, a privy with separate compartments for the sexes. There is no complaint that the building was not suitable, or that it was not kept clean and in good condition, and it is conceded it was as conveniently located as was practicable under existing conditions, if located outside the passenger station. So the principal question involved here is whether or not there was any evidence that it was reasonably practicable and necessary, under existing conditions, to have located it within the station, because, in construing this statute, it was held by this court in L. & N. R. Co. v. Commonwealth, 137 Ky. 802, 127 S. W. 152, that the word "convenient" means as near the depot and of as easy access as the circumstances of the case will admit, and that each case shall be governed by the circumstances and surroundings peculiar to it.

The defendant claims that, under the rule laid down in L. & N. R. Co. v. Commonwealth, 131 Ky. 268, 114 S. W. 1192, there was no evidence of criminal liability, and cites the following from that opinion:

"There was no complaint that the building was not suitable, or that it was not kept clean and in good condition. The only complaint was its location. The evidence offered should have been admitted; for, if there was no point where the closet could be placed to be more suitable or convenient, the defendant has not violated the statute. The law only requires that the closet shall be reasonably convenient, considering the existing conditions, and all the proof as to conditions existing, including the proof as to a better location for the closet, should be admitted. In towns without a water supply a very different condition is presented from that presented in a city where the water-closet may be in the station next to the waiting room. The defendant must necessarily exercise judgment as to what is the best place for the closet in such cases, and no criminal liability should be imposed where the defendant has exercised such care and judgment as may be reasonably expected of a person of ordinary prudence in locating the closet. The court on another trial will so instruct the jury."

The commonwealth insists, however, that in that case we were dealing with a much smaller town, and, under the opinions in the more recent cases, L. & N. R. Co. v. Commonwealth, 175 Ky. 282, 194 S. W. 313, and L. & N. R. Co. v. Commonwealth, 179 Ky. 279, 200 S. W. 464, a different rule has been established with reference to towns of the size and importance of La Grange.

In the latter case, while the question involved was the same as here, the facts were quite different, since in Taylorsville, the city

terworks system, and the defendant had located the closet for women inside the depot, with some satisfactory and practical ar rangement for sewage disposal, and in、several homes and business houses in the vicinity inside toilet facilities were provided; and this evidence was held to be some evidence of the practicability of and necessity for the location in the station of the men's privy, located outside of and at a considerable distance from the depot, which required a submission to the jury of the question of fact whether or not the location selected by the defendant was convenient under the cir cumstances. In the former of the two cases referred to above a question involved was whether or not, at Horse Cave, a town haying two public service water companies and a natural drainage available for sewage disposal, the defendant in locating the privy outside the station had complied with the reasonably convenient and suitable location required by the statute, and, in holding the evidence sufficient to warrant a submission of the question to the jury, we said:

"What constitutes a reasonably convenient and suitable water-closet or privy depends upon the facts and circumstances surrounding each case. In small, sparsely populated communities the old back or garden house, if kept clean and decent, may fulfill the requirement of the statute, but in a live, active, and progressive town like Horse Cave, where a large population is served, the facilities should accord with the best in common use, in homes and business houses, in the immediate vicinity of the depot. Nothing less than this will satisfy the statute. It is argued that this will necessitate considerable expenditure of money. It will cost something. So also does it cost money to erect an old-fashioned privy, and, while the modern closet may be somewhat more expensive, it must be remembered that great progress has been made in recent years along similar lines, and the public sense has been quickened upon questions of sanitation and public health, things but slightly considered in former years."

[1] It is unquestionably true that what is reasonably suitable and convenient for one town may not be so for another, whether of the same size or not, for, under all the cases, the question is determined by the facts of each case; and we are unable to discover any conflict in these opinions in the principles announced, because the care and judgment that may reasonably be expected of a person in locating the closet as required in the case reported in 131 Ky. 268, 114 S. W. 1192, is that he will so locate it as to provide toilet facilities in accord with the best in common use in the vicinity, as required in the two latter cases, regardless of the size of the town.

[2] Let us, therefore, examine the evidence here to see if there was any evidence that in the location of the closet outside rather than inside the depot, for that is the only dereliction complained of, the defendant failed to exercise such care and judgment as may be reasonably expected of a person of ordinary prudence who is required

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