has uniformly held that when either of the conditions (a) or (b) exist, a trust will result, notwithstanding the statute. It is true that the cases hold that the evidence authorizing the establishment of a trust must be clear and convincing. The facts in the cases supra relied on by appellant are so entirely different from those in this case that we hardly deem it necessary to point them out. Suffice it to say that in some of them the absolute deed sought to be declared a trust had been executed for as much as 70 years, and in all of them it was shown that the wife who sought to establish the trust was fully acquainted with the fact that the deed conveyed the land to the grantee. In some of the cases there were contradictions in the testimony upon the issues involved, and the trial court found against the one seeking to establish the trust, and, under the well-recognized rule that the findings by the chancellor will not be disturbed unless they are against the preponderance of the evidence, this court affirmed the judgment. In this case we have an opposite finding by the chancellor, and the testimony, as well as the circumstances in the case, very clearly indicates that plaintiff was deceived as to how the deed from Stephens had been executed. The learned judge who tried the case filed an opinion in which a concise as well as correct summary of the evidence appears, and, recognizing our inability to improve upon it, we have concluded to adopt a portion of his statement as a part of this opinion. After finding that plaintiff had furnished and paid the entire consideration for the land, the court adds: "While this is not sufficient to establish the trust, it is further testified by Maria J. Roche that it was understood that the property was to be conveyed to her, and that she believed it had been until after the death of her husband, when she then ascertained that the husband, while acting as her agent, had taken the title to himself, which, if true, constituted a breach of trust, and by reason of which he would be deemed a trustee for her in the land. The plaintiff was not a competent witness to testify to that fact. Aside, however, from her own evidence to that effect, the deposition of witness after witness is without controversy that the husband always and repeatedly stated that the land was his wife's; that in matters pertaining to it, with reference to selling it, or removing from it, recognized her dominion as to it, declaring that he could not do it because his wife owned the place. I have no doubt but that the husband knew and understood that the title to the farm was in him, for it is uncontroverted in the evidence that for several days preceding his death he was appealing to his neighbors who visited him to get some one to write his will, saying that everything belonged to his wife, and he wanted her to have it; and, as it appears that he had little, if any, property other than the title to this land, it would seem evident that he knew both of the fact and effect of the property being in his name. But that very evidence introduced a fact which is very convincing that the plaintiff did not know it, for it is shown that, when being appealed to to have some one procured to write his will, which was done in the presence of plaintiff, the neighbor, who from repeated statements of the husband believed and thought that the land belonged to the wife, asked the wife if that (the making of the will) was necessary, to which the wife responded no, and not to bother about it. If the wife had known that the title to the property was in her husband, it would seem to be greatly contrary to the nature of people under such circumstances, knowing that her husband was desiring to make a will giving her all the property, for her to have treated the matter so lightly and have declared it to be unnecessary, when the effect of her husband's death without such will would be to leave her at an advanced age without any estate with which to support herself. The only reasonable explanation of that act upon her part is that she believed that the property was hers, that the making of such a will would be for that reason the doing of a vain and useless thing, and therefore declared it unnecessary two or three days prior to his death, when he was desirous of procuring his will to be made. "The entire evidence in the record tending in any way to show that the plaintiff knew that the title had been conveyed to her husband consists of the statement of Mr. Stephens, from whom the property was purchased, who stated that at the time of the transfer of the property the deputy county clerk who took the acknowledgment of himself and wife to the deed asked both the plaintiff and her husband to whom they desired the deed made, and that the plaintiff said she desired it made to her husband. It is evident in the opinion of the court that the witness' recollection about that matter is somewhat at fault. He started out by saying that he understood that it was to be made that way, and in his statement of his recollection about the matter transpiring there seems uncertain and hazy. He testified that the clerk drew the deed. The plaintiff in rebuttal stated that the conversation did not take place. The deputy clerk who took the acknowledgment testified that he did not draw the deed, and never drew one in his life; that the deed was fully prepared when presented to him for acknowledgment; that there were no blanks in the deed for the name of the grantee or grantees to be filled; that it was already filled just as the deed appears now; that he has no recollection of asking either of the persons there how they wanted the deed made; that there would be no occasion for him asking such a question; and that he is convinced that he did not make such inquiry, or that the plaintiff answered as stated. The sale of the property was made through a real estate agent, and he testified that the deed was fully prepared before it was taken to the clerk's office to be acknowledged, and that there was no uncertainty about who the deed was made to that would cause the clerk to make such inquiry; that he has no recollection about the matter of the sale, except that he sold the property; that he does not recollect any inquiry about the deed at all; that all the clerk did was to take the acknowledgment; that the clerk did not make the deed, or fill any blanks (222 S.W.) in the deed; that he did not know who made | apart, can be subjected to payment of her liathe deed, but that Mr. Roetkin was the attorney in the matter. Mr. Roetkin was not introduced as a witness. "The court is of the opinion from the evidence that the husband did hold the property in trust for the plaintiff, and that she paid the purchase money, and that the title was taken by her husband without her knowledge and consent, and a trust results under such circumstances under the express provisions of the statute." The testimony being sufficient to support the judgment of the court, it is therefore affirmed. MOODY et al. v. BARKER. (Court of Appeals of Kentucky. June 4, 1920.) 1. Appeal and error 1040(16)—Overruling demurrer based on defective certificate cured by filing of new certificate. bility on her contract of suretyship made in another state, where she then resided, and where her property could be so subjected without any setting apart thereof by her for such purpose. 6. Courts 90(6)—Earlier decisions as to liability of married woman followed under rule of stare decisis. Whatever might be said as to the soundness of the doctrine of decisions of this court that property in the state of a married woman is liable to satisfaction of her obligation contracted in another state, where her property would be so liable in the state of the contract, though it would not be if the contract was made in Kentucky, the rule of stare decisis would require this court to follow them. 7. Homestead 87 Exemption may be claimed by married woman owning the property. The exemption provided by Ky. St. § 1702, of homestead owned by resident debtors, actual bona fide housekeepers with a family, may be claimed by a married woman owning the propAny error in overruling demurrer to peti-erty in her own name, though she be not the head of the family. tion based on the copy of the foreign judgment sued on being certified by deputy clerk was cured by a copy certified by the clerk being filed. 2. Contracts 101(1)—Will not be enforced if void where made. 1 A contract, if void under the law of the state of contract, will not be enforced in another state, though it would be valid if executed there. 3. Contracts 101 (2)-If valid where made, will be enforced unless violative of public policy of forum. 8. Homestead 94-Exempt, though purchased after liability, where purchased with subsequent bequest. The exception in Ky. St. § 1702, withholding the homestead exemption as against a liability existing prior to purchase of the homestead, does not extend to a homestead pur chased with a bequest made after the liability was contracted. 9. Homestead 90 Exemption. enforced against liability contracted in another state. The homestead exemption, being part of It is the general rule that, if the party the remedy, will be enforced against a liability sought to be held on a contract had legal capacity to enter into it where it was made, or where it was to be performed, and if it is transitory or concerns movable property, it will be enforced, because of comity, in another state, though the party was incapacitated under its laws to make it, unless its enforcement would violate some established rule of public policy prevailing in the jurisdiction of the forum. 4. Contracts 325-Matters of procedure and remedy governed by lexi fori. The rules with reference to the procedure and matters pertaining exclusively to the remedy, relative to enforcing a contract of another state, are governed by the lexi fori. 5. Husband and wife 1462 - Property of married woman liable on contract of suretyship where liable in state where contract made. contracted in another state. Appeal from Circuit Court, Warren County. Action by G. W. Barker against Susie E. Moody and another. Judgment for plaintiff, and defendants appeal. Reversed, with di rections. Bradburn & Harlin and Sims, Rodes & THOMAS, J. The appellee and plaintiff below, G. W. Barker, obtained a judgment in the district court of Sumner county, Kan., against the appellants and defendants below, Susie E. Moody and her husband, J. W. Moody, for the sum of $597.38, with interest and costs. He obtained a duly certified copy Notwithstanding Ky. St. § 2127, providing of that judgment, and filed suit on it against that no part of a married woman's estate shall the same defendants in the Warren circuit be subjected to payment or satisfaction of any court, in which he obtained an attachment liability on a contract made after marriage to which was levied upon a small piece of real answer for the debt or default of another, unless she shall have set apart the estate for estate in that county containing about 11 such purpose by mortgage or other conveyance, acres, and upon which the defendants and her property in Kentucky, though not so set their family resided. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1] A demurrer was filed to the petition up- ↑ tion. It is likewise practically universally on the ground that the Kansas judgment was held that, if the one sought to be held had certified by the deputy clerk of the Kansas legal capacity to enter into the contract at court instead of the clerk himself, but the the place where it was made, or where it demurrer was overruled and a corrected copy was to be performed, and if it was transitory of that judgment was filed, which was cer- or concerned movable property, it will be uptified to by the clerk; so that this error, if held and enforced by the lex fori, although one, was cured. the defendant was incapacitated under its An answer was filed consisting of a denial, laws to make the contract. The enforcement which denial was refuted by the properly of such a contract by the lex fori is because certified copy of the Kansas judgment. An- of comity between the different states and other defense made was that the defendants countries. It cannot be claimed as a right, were husband and wife, and that the note since under it the recognition by the forum upon which the Kansas judgment was ren- of foreign laws is by virtue of a species of dered was the debt of the husband alone, he favor or courtesy toward the other sovereignbeing principal therein, and that it was sign- ty; hence it will be denied when to do so ed by the wife as his surety only, that the would violate some established rule of pubattached property was her separate estate, lic policy prevailing in the jurisdiction of and that she at no time had set it apart for the forum. In all cases the rules with refthe purpose of paying the note or the judg-erence to procedure and matters pertaining ment, by deed, mortgage, or other convey- exclusively to the remedy are governed by ance, as required by section 2127 of the Kentucky Statutes. It was further averred in this connection that under the laws of the state of Kansas it was competent for a married woman to obligate herself personally as surety for another, including her husband, and to render her property liable therefor as though she were entirely free from the disabilities of coverture. Another defense was that the husband and wife, after the rendition of the Kansas judgment, moved from Kansas to Warren county, Ky.; that Mrs. Moody received, through a bequest from a deceased aunt, the sum of $900 in cash, with which she purchased the 11 acres sought to be subjected by the attachment; that the deed to the land was executed to her, and that she and her family resided on it as a homestead; that the homestead laws of Kansas are the same as in Kentucky, with the exception that a housekeeper in Kansas who would otherwise be entitled to the homestead exemption could claim it, although the homestead was purchased after the creation of the debt which was sought to be realized by its subjection. the lex fori. These general rules will be found stated and extensively discussed in the annotations to the cases of Union National Bank v. Chapman, 57 L. R. A. 513; Mayer v. Roche, 26 L. R. A. (N. S.) 763; International Harvester Co. v. Gertrude McAdam, 26 L. R. A. (N. S.) 774; Wharton's Conflict of Laws, vol. 2, § 428a; and Elliott on Contracts, vol. 1, § 432. In stating the above general principles, we have assumed that the domicile of the contracting parties was identical with the place of the contract, since such is the fact in this case. [5] It is insisted by defendants that it is the public policy of this state, as declared by the section of the Statute supra, that a married woman's property shall not be subjected to a debt for which she was surety only, except in the manner pointed out in the statute, which statute it is claimed, was enacted in furtherance of such public policy, for her benefit, and in order to protect her from some supposed domination of her husband. But, if it should be conceded that the opportunities for such domination once existed because of inequalities in the legal status of the parties with reference to capacity to contract, to own and control property, etc., later modifications of the law have largely removed those opportunities, since to-day the wife stands on almost an equality with her husband before the law with reference to property and property rights, as well as contractual capacity and political privilege, and his only superior pow[2-4] The defense, relying upon the wife's er through which he might exercise dominanoncompliance with section 2127 of the Stat- tion is physical strength, which, happily, he utes, so as to subject her property to the pay- is likewise prevented from employing. But, ment of the debt, presents a question upon however this may be, this court, in the cases which there is a great diversity of opinion of Gibson v. Sublett, 82 Ky. 596, and Young's among the various courts. It may be stated Trustee v. Bullen, 43 S. W. 687, 19 Ky. Law without exception that, if under the lex loci Rep. 1561, held that the wife, as well as her contractus the contract for any reason is property, was liable to the payment of a debt void, it will be invalid everywhere, and will contracted by her in a state under whose not be enforced by the lex fori, although it laws the contract was valid, and where her would be valid if executed in that jurisdic-property could be subjected to the discharge A demurrer filed to the answer was sustained, and, defendants declining to plead further, judgment was rendered in favor of plaintiff, in which the attachment was sustained, and the property ordered sold for the satisfaction of the debt, and, complaining of that judgment, the defendants prosecute this appeal. (222 S.W.) of its obligations, although neither she nor her property would be liable if the contract had been entered into here, and in each of the cases the separate property of the wife was held liable for her debt contracted in the foreign state. At the time of the rendition of the opinion in the Gibson Case, section 2127, supra, had not been enacted; but at that time, under the provisions of section 2, art. 2, c. 52, General Statutes 1888, a married woman's real estate could be subjected to her debts only when they were contracted by her before marriage or for necessaries for herself and family after marriage, but in the latter case the debt must have been evidenced by writing signed by her. The debt involved in that | case was not contracted by the wife before marriage, nor for necessaries after marriage. It was made in the state of Louisiana, where both she and her property were liable for the particular character of debt, and this court held that her real estate in this state, under the law of comity, could be subjected to the payment of that debt. The debt involved in the Young Case grew out of a note executed by the wife in Mis souri before the enactment of section 2127 of the Statutes, but the debt was contracted after marriage, and was not for necessaries for the wife or any member of her family, but this court subjected to its payment her real property situated in this state, as was done in the Gibson Case. We find no cases from this court in conflict with the doctrines an nounced by the cases referred to. The case of Brown v. Dalton, 105 Ky. 669, 49 S. W. 443, 20 Ky. Law Rep. 1484, 88 Am. St. Rep. 325, relied on by defendants, is empts from sale for the satisfaction of a debt the homestead, not exceeding in value the sum of $1,000 "owned by debtors who are actual bona fide housekeepers with a family, resident in this commonwealth." This court, in the cases of Herring v. Johnston, 72 S. W. 793, 24 Ky. Law Rep. 1944, Lee & Hester v. Hughes, 77 S. W. 386, 25 Ky. Law Rep. 1201, and American National Bank v. Mathews, 124 S. W. 811, held that a married woman could claim the benefit of the homestead exemption when she owned the homestead in her own name. So that, if the right otherwise exists, Mrs. Moody is not deprived of it from the fact that she may not be regarded as the head of the family. [8] In the cases of Meador v. Meador, 88 Ky. 217, 10 S. W. 651, 10 Ky. Law Rep. 783, Jewell v. Clark, 78 Ky. 398, Spratt v. Allen, 106 Ky. 274, 50 S. W. 270, 20 Ky. Law Rep. 1822, Miller v. Bennett, 12 S. W. 194, 11 Ky. Law Rep. 391, Burrow v. Maxon, 129 Ky. 578, 112 S. W. 661, Frizzell v. Rozzell, 155 Ky. 631, 160 S. W. 244, Staun v. Procter, 152 Ky. 142, 153 S. W. 196, and Roberts v. Adams, 96 S. W. 554, 29 Ky. Law Rep. 848, this court held that the debtor could claim his homestead right in land which was inherited by him after the creation of the debt if he was in the occupancy of it at the time it was sought to be subjected, and in a number of cases it has been held that the proceeds of a homestead may be invested in another one, if done within a reasonable time after the sale, and the newly acquired one will be exempt, though purchased after the creation of the debt. In the cases of Burrow v. Maxon, 129 Ky. not so, nor is the case of Griswold v. Gold-578, 112 S. W. 661, Holcomb v. Hood, 1 S. W. ing, 3 S. W. 535, 8 Ky. Law Rep. 777 (re- 401, 8 Ky. Law Rep. 255, and Staun v. Procported only in abstract). The only question ter, supra, it was held that the homestead in the Brown Case was whether Kentucky | exemption would prevail against a prior debt courts would enforce a contract between hus- where the homestead was acquired by gift, band and wife entered into in Virginia, where and in the case of Hester v. Lynn, 49 S. W. such contract was valid. It was held that it 431, 20 Ky. Law Rep. 1460, it was held that was so patently against the public policy of the debtor was entitled to the homestead exthis state that it would not be enforced. emptions in land purchased with money inherited from his son as against a prior debt when he was occupying the homestead at the time it was sought to be subjected. In the Griswold Case the contract of the wife was executed in Missouri, under whose laws it was invalid as to her, although the same contract would have been valid here, and the court, for the reason above announced, declined to enforce it here. [6] Whatever might be said as to the soundness of the doctrine of the Gibson and Young Cases, the rule of stare decisis would compel us to recognize and follow them. We therefore conclude that the court properly sustained the demurrer to the defense now under consideration. In all of the cases referred to the reason for upholding the homestead exemption as against prior debts was that "the creditor has not been prejudiced, because the debtor has not converted any debt-paying part of his estate into exempt property" (Roark v. Bach, 116 Ky. 457, 76 S. W. 340, 25 Ky. Law Rep. 699), and its allowance was not forbidden by the exception in section 1702 withholding the exemption as against debts or liabilities existing prior to the purchase of the homestead. [7] That portion of the answer relying on the homestead exemption presents to our minds a valid pro tanto defense, and the de- The same reason for upholding the exempmurrer thereto was improperly sustained. tion as against prior existing debts is thus Section 1702 of the Kentucky Statutes ex-stated in the case of Jewell v. Clarke, supra, and quoted with approval in the case of Bur- premises were outside the proposed drainage row v. Maxon, supra: "The object of this provision was to prevent debtors from purchasing homesteads after creating debts or liabilities, and then claiming the exemption against such debts. The means with which a homestead was purchased might be the very means to which the creditor looked for payment, and gave the debtor the credit which enabled him to create the debt; and it would be unjust to the creditor to allow the debtor, by thus investing in a homestead, the means on the faith of which he obtained credit to defeat the collection of the debt. But, when the debtor derives title to the homestead by descent, no injury is done to the creditor in exempting the homestead so acquired. The means upon the faith of which he gave credit have not been diverted, and the case does not, therefore, come within the reason of the statute, and the rule that a case not coming within the reason of a remedial statute is not affected by it applies." [9] We are convinced that the facts of this case, which are admitted by the demurrer, bring it strictly within the principle of the cases referred to, and that Mrs. Moody manifested her right to the homestead exemption as against plaintiff's debt, although it was created before the acquisition of defendant's homestead. The exemption laws of Kentucky, being a part of the remedy (Barker v. Brown, 33 S. W. 833, 17 Ky. Law Rep. 1172, and Minor on Conflict of Laws, § 209), will be enforced here under the rules hereto fore referred to. The court therefore erred in sustaining the demurrer to that portion of the answer relying upon the homestead exemption, and the judgment is reversed, with directions to overrule the demurrer to that part of the answer, and to proceed in accordance with this opinion. MIDKIFF et al. v. CARTER et al. (Court of Appeals of Kentucky. May 28, 1920.) 1. Drains 60-Establishment of drainage district does not preclude assertion of damage to land outside its area. A judgment establishing a drainage area or district will in no wise bar or estop persons whose lands lie without the district, and who were refused permission to become parties from asserting injury to their lands as the result of the establishment of the district. 2. Drains 14(1)-Persons whose lands lay outside of drainage area are not entitled to become parties to proceedings. As Acts 1912, c. 132, § 4 (Ky. St. 1915, § 2380, subsec. 4), provides that if a petition for a ditch be not dismissed process shall issue against the landowners named in the petition and viewers' report, landowners whose district are not, though they asserted that its establishment would injure their property, entitled to become parties, for the establishment of the ditch would not prevent them from recovering such damages. 3. Drains 14(3)—On appeal from county court, issues should be confined to those raised therein. As Drainage Act of 1912, under which it was proposed to organize a district, provides in section 5 that the issues shall be confined on reaching the circuit court to those raised in the lower court, landowners not parties to the proceedings in the county court, and whose premises lay outside the drainage district, are not entitled to come in and file objections on the ground that the establishment of the ditch would injure their property. 4. Evidence 535-0 pinion as to injury which might result from drainage district can be given only by qualified person. Only qualified persons can give opinion testimony as to the practicability of constructing a drainage ditch, and as to whether, if established, it would be beneficial to public health and conducive to general welfare, and other witnesses may merely testify to the facts. 5. Appeal and error 1026-Only those errors which injuriously affect party's rights are ground for reversal. Only those errors which injuriously affect a party's rights are ground for reversal. 6. Trial 296 (1)—Deficiency in one instruction may be cured by subsequent instruction. Though the first instruction was insufficient, standing alone, yet, where the second referred back to and made the first instruction part of it, and the two, taken together, of the first is no ground for objection. properly submitted the issues, the insufficiency 7. Drains 14(3)—Objectors to establishment of drainage district have burden of proof, viewers' approval making out prima facie case. The viewers' report, recommending the establishment of a drainage ditch, makes out a prima facie case, under Acts 1918, c. 64 (Ky. St. Supp. 1918, § 2380b9), for petitioners, and the exceptors have the burden of proof, so the complaint, cannot complain. exceptors, having accepted such burden without Appeal from Circuit Court, Ohio County Petition by Finley Carter and others for the establishment of a drainage district, begun in county court and appealed to the circuit court. From a judgment in favor of petitioners, which also denied the petition of J. J. Midkiff and others, who sought to intervene, J. J. Midkiff and others appeal. Affirmed. J. S. Glenn and Barnes & Smith, all of Hartford, for appellants. Heavrin & Martin and Woodward & Kirk, all of Hartford, for appellees. |