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dence to wait upon her, and during her last | prompted by affection or such attentions as illness was with her almost constantly.

No contract to pay for these services was proven, but a number of witnesses testified that the deceased had said to them that she was going to pay Mrs. Hale for taking care of her, thus:

"Said she wanted her to have everything; she would pay her to take care of her.

**

*

Q. When did she say that? A. All during her life, she wanted Mrs. Hale to have everything she had, to pay her for taking care of her." (Mrs. Laura Wolfe.)

"Q. Did you ever hear Mrs. Sarah Qualls make any statements about paying anybody for waiting on her? A. She said she was going to pay Mrs. Hale. Q. How? A. Said she was going to sell her property and pay her. Q. Pay her for what? A. For the work she had done." (Mrs. Addie Wyatt.)

"Q. Did you ever hear Mrs. Qualls say anything about arrangements to pay Mrs. Hale for those services? If so, tell the jury what it was? A. I have heard her say that she was arranging for Mrs. Hale to have everything she had to pay her for what she had done for her; said she was doing more for her than any one else. She has told me that a number of times in my house and in her house too." (Mrs. Crawford Brantley.)

"Q. Do you know anything about any services rendered to her by anybody, about washing and cooking and things like that? A. No, sir; all she said over to my house one day, said she wanted Mrs. Hale to have everything she had because she had been there and waited on her any time she was sick and she wanted her to have it." (Crawford Brantley.)

J. B. Rice testified:

"She came there one evening about 3 o'clock and said she wanted me to write her will; she wanted to know could I write a will, and I

told her I could, and she says, 'I want you to do it,' and I says: 'All right, Aunt Kit; but I can't write it this evening, but if you will tell me how you want it, I'll fix it up for you in the morning.' And I picked up a tablet and asked her full name and her age, and then asked how she wanted her property disposed of, and she said, 'I want all my legal and just debts paid and my doctor's bill and burial expenses, and I want the remainder of my property, whatever it may be, to go to Sarah Hale, and I want her to be executor of the estate without bond.' 'Well,' I said, 'you come back to-morrow morning, and I will have it ready for you.'

"Q. Did she say she was willing to do it? A. Said: 'I want to will it to Sarah Hale, as she has taken care of me during all of my sickness.'"

On the other hand, the witnesses for the defendant intimate that the old lady was not sick often, or long at any time; that Mrs. Hale brought produce to town for sale and would stop with her aunt as a matter of mutual convenience; and in general minimize the services rendered.

[1] Sporadic visits to near relatives in

should be so prompted, are not the character of services that raise an obligation of payment upon the part of recipient, but this is not that character of service. According to her evidence, appellee manifested almost filial affection, and also performed services under conditions that indicated an expectation of compensation.

Deceased lived alone with no one to care for her. When ill she was helpless and seemed to rely solely upon appellee, who willingly left her own home and family and attended her. This occurred repeatedly and at all times when her aunt was in need of such attention during a number of years; her sense of duty as well as her loyalty and fidelity being manifested by walking 11 miles in wintry weather to minister to her charge, and seeing that some one else took her place when she was called away.

The facts stated indicate that appellee was quite poor, and while her aunt was not in affluent circumstances, she had sufficient estate and income to provide for her necessities. She evidently desired and appreciated the services of her favorite niece; she also knew appellee's financial condition and the sacrifice she was making, and recognized an obligation upon her part to recompense her

which she repeatedly expressed by telling her friends and neighbors that she intended to pay her by giving her everything she had and by having a will prepared expressing her wishes.

[2-5] These facts show extraordinary services and also an expectation upon the part of the recipient to pay for them. While Mrs. Hale might not testify as a witness, from the other evidence it is reasonably certain that the same expectation existed on her part. Under such circumstances, notwithstanding the family relation, we think a recovery may be had under an implied contract, and the motion for a peremptory instruction was properly overruled. Nor do

we think the verdict is not sustained by the evidence. While the evidence is conflicting and indefinite in some particulars, the jury were authorized to believe the witnesses for appellee, and the amount is not so excessive as to strike one at first blush as being the result of passion or prejudice.

[6] The court did not err in permitting different witnesses after detailing the facts from their knowledge to give their opinion as to the value of the services rendered. The evidence of the witness Rice detailing the statements of the decedent in reference to the preparation of her will was competent as tending to show the character of services rendered and the expectation of the parties in reference thereto. The court admonished the jury that it could not be considered for any other purpose; hence there

(273 S.W.)

J. B. Snyder, of Harlan, and H. C. Gillis, of Williamsburg, for appellants.

D. D. Fields & Day, of Whitesburg, for appellee.

[7] Eli Coates and Charles Morris, as husbands of the other two nieces, were offered as witnesses in behalf of the estate. Objection was made to Coates testifying on the ground of incompetency, and this was sustained. As his wife did not testify, he would SANDIDGE, C. The appellee, Swift Coal have been a competent witness as to all mat- & Timber Company, instituted this action in ters not involving conversations or transac-equity claiming to own and to be in possestions with the deceased, and as to this could have testified as to anything that occurred in the presence of plaintiff; but no avowal was made as to what his testimony would have been, and therefore we are unable to say that defendant was prejudiced thereby.

[8] Morris was permitted to testify, but an objection was sustained to one question. It was avowed that he would have answered this by saying that the other heirs performed as many services for the decedent as did the plaintiff. If otherwise competent, this would have been a mere conclusion, and the court did not err in rejecting it.

On the entire record, perceiving no error, the judgment is affirmed.

sion of and seeking to enjoin appellants, Joseph and Harrison Cornett, from trespassing upon a tract of land in Letcher county, Ky., particularly described in the petition and amended petition. By answer appellants denied the trespass and claimed and sought to be adjudged to own the same tract of land. By the judgment rendered appellee awarded the injunction sought, and appellants have appealed.

was

[1, 2] Under the issues as made by the pleadings it was incumbent upon the appellee, the plaintiff below, to establish by proof

that it owned the title of the land described herein, a portion and approximately half of in its petition. As developed by the evidence the land claimed by both parties and described in their pleadings is covered by the John Lewis 1,200-acre patent, dated April 6, 1844.

CORNETT et al. v. SWIFT COAL & TIM- Both parties are claiming the title of the

BER CO.

(Court of Appeals of Kentucky. June 9, 1925.) 1. Injunction 35(1)—Plaintiff required to establish by proof that it owned title of land described in petition in suit to enjoin defendants from trespassing thereon.

In suit to enjoin defendants from trespassing on land in which defendants denied the trespass and sought to be adjudged to own the lands, plaintiff was required to establish by proof that it owned title to the land described in its petition.

2. Judicial sales 3-Judgments and order held not to authorize court to convey land therein described to purchaser.

Judgment directing sale of land described in pleadings and title papers, but containing no further description of land directed to be sold, and order confirming commissioner's report of sale thereof not describing any of lands sold nor mentioning any of purchasers, and it appearing from another judgment that deeds were tendered to purchaser and that they were acknowledged, but not indicating what boundary or how much land was conveyed to any of them, held not to authorize court in an ex parte proceeding to convey certain described land to purchaser, in absence of evidence that tract which he described in the proceeding was the same tract which he purchased under the judgments.

Appeal from Circuit Court, Letcher County. Suit for injunction by the Swift Coal & Timber Company against Joseph Cornett and another. Decree for plaintiff, and defendants appeal. Reversed and remanded, with directions.

portion of the land in dispute covered by that grant under title devolving from it.

The remainder of the tract of land is conceded by appellants to be covered by a deed from the Altoona Trust Company to appellee, Swift Coal & Timber Company, and they now disclaim any interest in any of the land described in the pleadings which lies outside the Lewis 1,200-acre grant. So that, as presented to this court, the controversy relates solely to that portion of the tract of land described in the pleadings herein which lies within the John Lewis 1,200-acre grant. Appellee introduced in evidence the deeds constituting its chain of title to the land claimed by it under that grant. Among the number is a deed from B. F. Blankenship and others by H. C. Rice, as commissioner of the Harlan circuit court, to E. C. Baker, dated September 7, 1916. It appears to have been executed in open court September 7, 1916, and shortly thereafter to have been recorded in the proper county court clerk's office. The deed is somewhat remarkable on its face, in that from its recitals it appears to have been executed pursuant to and to carry out a judgment of the Harlan circuit court entered at its September term, 1867. In support of the validity of that deed, there was filed as evidence for appellee a copy of the judgment of the Harlan circuit court rendered Saturday, September 29, 1866, in the action of Benjamin F. Blankenship et al. v. John Lewis's heirs et al. That judgment it appears directed a sale of the lands mentioned and described in the pleadings and title papers on file in the action, except the widow's dower and lands claimed by William Cornett

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

and William Smith. The court's commissioner was directed to make the sale, was given discretion as to what tracts he would sell together or separately, and was directed to report to the court at its next term the description of each parcel sold and the purchaser. The judgment contained no further description of the lands directed to be sold. There was filed as evidence for appellee a copy of the order of the Harlan circuit court entered in that action September 25, 1867, confirming the commissioner's report of sale. That order does not describe any of the lands sold or mention any of the purchasers, merely reciting that the commissioner's report of sale had been filed at the preceding | term of the court, and that no exceptions had been taken, and approving and confirming it, closing with an order directing the commissioner to prepare and tender deeds of conveyance to the respective purchasers for the inspection and approval of the court. There was filed as evidence for appellee a copy of a judgment of the Harlan circuit court entered September 27, 1867, in that action, which recites that the court's commissioner, pursuant to the order above, tendered deeds to the purchasers, namely: One to James J. Lewis; one to John Dixon; one to Ebenezer Dixon; one to Jonathan Lewis; one to Wilson Lewis; two to Elijah Baker; one to William Rolly; one to William Cornett, and one to Jonathan Lewis-conveying to each of them the lands severally purchased by them. The judgment recites that the deeds were acknowledged in open court, examined and approved by the court and so indorsed, and that they were certified to the office of the county court clerk for record. Nothing contained in that judgment indicates what boundary or how much land was conveyed to any of the purchasers. That old action thereupon appears to have been stricken from the docket of the court, and, so far as this record shows, no further steps were taken until the 7th day of September, 1916. On that date E. C. Baker, who appears to be the Elijah Baker mentioned in the order entered September 5, 1867, appeared in the Harlan circuit court, in open court by counsel, and recited the fact that the three foregoing orders and judgments had been entered by that court in the action of B. F. Blankenship, etc., v. John Lewis's heirs, etc., and recited that one of the tracts of land purchased by him and for which a deed was made to him was bounded and described as

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"Lying and being in Letcher and Perry county, in the state of Kentucky, beginning on a Lynn tree on the right-hand side of big Leatherwood as you go down said creek near Cornett's line; thence up said creek so as to include all the forks and all the land that said John Lewis, deceased, owned on Leatherwood that he has not deeded away on through to the

By his counsel he further recited that until recently E. C. Baker and his vendees had thought that the deed made to him in 1867 was of record in the Perry county court clerk's office and in the Letcher county court clerk's office, but that a recent investigation had disclosed the deed never to have been recorded. Thereupon he moved the court to reinstate the old action on its docket and to cause the tract of land he claimed to have purchased at the commissioner's sale in 1866 to be conveyed to him by the court's commissioner. No evidence was offered to the court that the tract of land he described to the court in making his motion in 1916 was the tract of land purchased by him in 1866 other than his mere statement of that fact. Thereupon the court entered an order, reinstating the old action upon the docket, and directed its commissioner to execute to E. C. Baker a deed for the tract of land described above, which he said he purchased in 1866. The action was reinstated upon the court's docket without notice to any one, and, pursuant to the direction of the court, the commissioner executed and the court approved a deed conveying that tract of land to E. C. Baker.

To sustain appellee's ownership of that part of the land mentioned and described in the pleadings herein covered by the John Lewis 1,200-acre survey, the validity of the commissioner's deed made under the circumstances above detailed would have to be sustained. Merely to state the proposition is sufficient to indicate the answer that must be given. No evidence is found in the record that the tract of land mentioned and described in the judgment of the court entered in 1916, and in the commissioner's deed executed and delivered to E. C. Baker pursuant thereto, was sold or was ordered to be sold by the orders and judgments entered in 1866 and 1867. It must be conceded that the proceedings had in that action in 1916 were exceedingly informal. Without notice to any one, after it had rested in peace for more than 50 years, the old action was revived and reinstated on the docket of the court. Without evidence to sustain it, so far as the record shows, save the mere unsworn statement of the party, the court, in the ex parte proceeding above, by judgment declared that in 1866 E. C. Baker purchased a certain described tract of land at a commissioner's sale in the old action, and therefore was entitled to a conveyance of it, and thereupon by his commissioner had it conveyed to him. The old orders and judgments of the court introduced in evidence herein as authorizing the judgment of the court entered in 1916 failed wholly to do so, because from them it cannot be ascertained what lands, if any, E. C. Baker purchased or where they were located. In addition, the three orders or judgments of the court referred to in the judgment of 1916 show that whatever land was

(273 S.W.)

the case coming on for hearing before a jury, there was a verdict and judgment for the defendant. The plaintiff again appeals.

conveyed to him. The court could not in this murrer to the petition. Sandford & Co. v. ex parte proceeding supply the lost deed. Waring, 201 Ky. 169, 256 S. W. 9. On the reIn a proper proceeding some evidence identi- | turn of the case to the circuit court, an anfying the land and supplying the necessary swer was filed, the issues were made up, and, facts would have to be introduced. The commissioner's deed of 1916 made to E. C. Baker, under the circumstances herein detailed, cannot be upheld or accepted as evidence that he acquired title to the tract of land mentioned and described therein. Appellee's claim to ownership of the title of that portion of the land mentioned and described in its petition and amended petition covered by the John Lewis 1,200-acre survey rests upon the commissioner's deed above, and for the reasons indicated its claim to ownership thereof must fail.

Having failed to manifest that it owned the title of that part of the land described in its petition and amended petition, which it claimed under the John Lewis, 1,200-acre survey, to that extent the chancellor should have dismissed appellee's petition.

Wherefore the judgment herein is reversed and the cause remanded, with direction that a judgment be entered in conformity with this opinion.

T. W. SANDFORD & CO. v. WARING.
(Court of Appeals of Kentucky. June 9,
1925.)

Brokers 61 (4)-Broker, with notice of de-
fect in vendor's title, not entitled to commis-
sion where purchaser refuses to accept deed.
Where broker was informed that vendor

had only life estate, he was put on inquiry as to title, and not entitled to commission on refusal of purchaser to accept deed because good title could not be given.

The facts shown by the weight of the evidence are these: Mr. Sandford having in mind a prospective purchaser for the property, went to see Mr. Waring several times about a sale of it. Mr. Waring told him he had only a life interest in the property, and if he would sell it, it might give him some trouble; that he had two heirs, a boy and a girl; they were both of age and they would sign with him in case there was a sale. With this information Mr. Sandford accepted the contract, and on the next day produced the purchaser. When they met to close the trade, the attorney for the purchaser advised him that the deed signed by Mr. Waring and his two children would not convey a good title.

The reason was this, the property was conveyed to T. W. Waring for life, and at his death to his heirs and assigns. The purchaser properly refused to accept the title, for, as he was advised by his attorney, no one could know who would be Mr. Waring's heirs until he died. Mr. Waring then suggested that he would give a bond with surety to the purchaser to indemnify him, and as collateral to the bond would put the purchase money in Liberty bonds and deposit them with a trust company as additional security. This the purchaser declined to accept, for the obvious reason that this was not such a title as he could sell. The property was unimproved; few would be willing to buy and improve property that had a defect in the title. So the sale fell through.

On these facts the court refused to give to the jury a peremptory instruction to find for

Appeal from Circuit Court, Campbell Coun- plaintiffs, and on their motion instructed the ty.

Action by T. W. Sandford, doing business' as T. W. Sandford & Co., against Robert C. Waring. Judgment for defendant, and plaintiff appeals. Affirmed.

S. D. Rouse, of Covington, for appellant. Wm. A. Burkamp and L. S. Shepler, both of Newport, for appellee.

HOBSON, C. Appellants, who are real estate brokers, brought this suit against appellee to recover $1,050, their commissions at 3 per cent. for procuring a purchaser for certain lots in Covington under a contract with appellee; they having procured a purchaser at $35,000, and the sale not being made on account of a defect in the title. The circuit court sustained a general demurrer to the plaintiff's petition. Plaintiff appealed to this court, and on the appeal the judgment was reversed with directions to overrule the de

jury, in substance, that they should find for them, unless they believed from the evidence that at the time the contract was made the plaintiff knew that the defendant could not convey a marketable title to the property, or could not bring about the conveyance of a good title for the purpose of completing the contract of sale, and in that event they should find for the defendant. As the instructions given were those asked by the appellants, the only questions arising on the appeal are as to the refusal to give a peremptory instruction for the plaintiffs and the sufficiency of the evidence to sustain the verdict. In the former opinion the court said this:

"In Renick v. Mann, supra [194 Ky. 251], it was held that the broker is entitled under the

rule stated to his commissions, even where the sale made by him fails because of a defect in the employer's title to the property, unless, at the time of contracting with the latter to make the sale for him, the broker has knowledge of

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

Frank E. Daugherty, Atty. Gen., and Chas. F. Creal, Asst. Atty. Gen., for the Common

such defect of title, or of such facts as would [ R. Monroe Fields and D. D. Fields & Day, be sufficient to put a reasonably prudent person all of Whitesburg, for appellant. on inquiry, which, if followed with reasonable diligence, would bring to him such knowledge; in which state of case he would not be entitled to compensation for negotiating the sale, unless it was the intention of the parties that the employer should subsequently perfect his title for the purpose of completing the contract of sale." 201 Ky. 174, 256 S. W. 11.

When Mr. Waring told Mr. Sandford that he had only a life interest in the property, the broker had knowledge of such defect of title as would be sufficient to put a reasonably prudent person on inquiry. He was then informed that Mr. Waring did not have title; neither of them was a lawyer; neither of them perhaps understood the legal effect of the deed under which Mr. Waring held. But when he knew that Mr. Waring only had a life estate, it was as incumbent on him as on Mr. Waring to make inquiry as to the title. Mr. Waring did everything that he could to carry out the contract. The contract failed from a defect of title, of which Mr. Sandford had notice when the contract was made. The court therefore properly refused to give a peremptory instruction in favor of appellants. The weight of the evidence sustains the verdict of the jury. Judgment affirmed.

CRAFT v. COMMONWEALTH. (Court of Appeals of Kentucky. June 9, 1925.)

1. Homicide 276-Question of self-defense held for jury.

In prosecution for murder, question of selfdefense held for jury. 2. Homicide 250-Verdict convicting defendant of manslaughter held not flagrantly against the evidence.

In prosecution for murder, verdict convicting defendant of manslaughter held not flagrantly against the evidence.

3. Homicide 339-Refusal to permit defendant to contradict his own witness held not prejudicial.

In murder prosecution, refusal to permit defendant to contradict his own witness under Civ. Code, § 596, as to whether he had a pistol in his hand when deceased came out of his house with his pistol held not prejudicial, where issue was whether defendant believed and had reasonable grounds to believe that he was in danger of death or great bodily harm at hands of deceased.

wealth.

CLAY, J. Appellant was convicted of manslaughter and his punishment fixed at five years' imprisonment. A reversal is asked on

the ground that the verdict is flagrantly against the evidence, and that certain evidence offered by appellant was improperly

rejected.

[1, 2] It appears that a short time before the homicide Martin Craft and Reuben Craft, brothers of appellant, went to the home of Ben Newberry and the Newberrys were preparing to eat supper and invited the Crafts to eat with them. Martin declined the invitation on the ground that he had been to supper, but Reuben accepted. While the others were eating Martin left the house, but returned in a short time. Later on some one called at the front gate for Reuben and Martin. Martin went out first, followed by Reuben and one or two of the Polly boys. In a few minutes Ben Newberry joined them. Prior to that time there had been some shooting in the road near the home of Newberry; the evidence for the commonwealth being to the effect that five shots were fired immediately in front of the house, while some of the witnesses for appellant say that the shooting was further away.

For the commonwealth Mrs. Newberry testified to the presence of the other persons at her home and to the fact that her husband was killed and that his pistol was brought into the house, but she did not see the difficulty. John Polly, who was asleep in the house at the time of the difficulty, testified that about three months before appellant and Newberry engaged in an altercation over

the payment of some money and both drew their pistols, but no shots were fired. After that they became friendly. He also stated that he saw the wounds on Newberry and that his clothes and flesh were powder burned.

Milburn Polly testified that he saw the trouble. While they were eating supper some one called for Reuben, and they went out to see what it was, and found Martin and Columbus standing at the gate. As soon as Ben Newberry got through supper he came out to the gate. At that time some one shot up the creek, and Columbus pulled his gun and shot four or five times, and Ben asked him not to shoot in front of the gate. Columbus said, "Ain't I got a right to go up and down this creek when I please?" Ben Appeal from Circuit Court, Letcher Coun- told him that if he was going to shoot to get ty. above the house or below it. Ben then went Columbus Craft was convicted of man- into the house and returned and stood for a slaughter, and he appeals. Affirmed. few minutes. Columbus then walked down

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