(273 S.W.)

PHILLIPS v. BOWLES et al. (Court of Appeals of Kentucky. June 12, 1925.)

1. Trusts 81(2) Resulting trust arose where title to wife's property was taken in name of husband without her knowledge and consent.

Where property was paid for with funds of the wife, taking of title thereto by the husband, who bought in the property for her at commissioner's sale thereof, without her knowledge or consent, and through some error and mistake, created a resulting trust in such land in favor of the wife, in view of Ky. St. § 2353. 2. Husband and wife 149(1) Claims of creditors to property in husband's name, belonging to wife, would be preferred to those

of the wife.

Where a large amount of indebtedness of husband was created subsequent to recording of deed by which he took title to wife's property, and creditors had no notice of her equity therein, and husband represented himself to be actual owner thereof, claims of creditors against such property would be preferred to those of the wife.

3. Evidence 20(1)-Court judicially knows that business is transacted on faith of persons' apparent title to land.

Court judicially knows that business is transacted on faith of persons' apparent title

to land.

Appeal from Circuit Court, Pike County. Suit by Myrtie Phillips against C. C. Bowles and others. Decree for defendants, and plaintiff appeals. Affirmed.

sulting trust in this land in favor of appellant. See Kentucky Statutes, § 2353. Appellant claims that she did not discover that her husband had taken the deed to this land in his name until a month or so before she brought this suit in April, 1923. Of course, in the meantime the record title was in her husband. At the time appellant's husband took this deed in his name he was engaged in a mercantile business and, as the record shows, contracted numerous debts thereafter.

[2, 3] A short while before the bringing of this suit the husband became bankrupt, and then it was, as appellant says, that she first discovered that her property stood in her husband's name. Under permission of the bankruptcy court appellant then brought this suit against her husband's trustee in bankruptcy seeking to recover the land in question. The trustee, together with a number of her husband's creditors who intervened, defended on the ground that the claim of her husband's creditors, who became such subsequent to the recording, in December, 1920, of the deed, was superior to that of appellant. The lower court so adjudged, and appellant appeals.

In the case of Miller v. McLin, 147 Ky. 248, 143 S. W. 1008, a case almost identical in facts with the case at bar, this court said:

"But this statute [section 2353, supra] cannot be invoked to aid Mrs. Miller in defeating the creditors of her husband, whose debts were in good faith contracted after the conveyances were made to him, without notice of the fact that she furnished the money or that it was agreed the deed should be made to her. This

Roscoe Vanover, of Pikeville, for appel- statute is only intended to assist persons pay

lant.

ing the consideration to reclaim property while it is in the possession of the person who took Moore & Childers and R. H. Cooper, all of the deed to himself in violation of the trust Pikeville, for appellees.

without the consent of the person paying the consideration, or while it is held by a volunteer or purchaser with notice of the trust it does not apply when the rights of creditors or purchasers in good faith and without notice have intervened."

The court further said:

"When the wife gives her money to her hus band, and he invests it in land, taking the title to himself, although it may have been agreed her, her claim will be subordinated to that of the creditors of the husband who are attempting to subject the land to the payment of debts created while the title was in the husband and without knowledge of the equity of the wife. It would be manifestly unfair to creditors to let the wife take the land on the faith of which the husband was allowed to create debts."

between them that the title should be taken to

DIETZMAN, J. [1] In 1916 appellant bought a piece of property, title to which she took in her own name. There was a remote vendor's lien on this property, and thereafter suit was brought to foreclose that lien, in which suit appellant's property was sold at a commissioner's sale. Appellant's husband attended this sale for her and bought in the property. Through some misunderstanding at the time the commissioner made the deed to the property of date October 4, 1920, in the husband's name. This deed was later recorded on December 30, 1920. We think it clearly appears that appellant from her efforts in keeping boarders and from her salary as postmistress at Shelbiana paid for this property out of her own funds, not only It is satisfactorily shown here that a large originally, but also at the commissioner's amount of indebtedness of appellant's hussale, and that the taking of the deed by the band was created subsequent to the recording husband at that time was without appellant's of the deed in which he took title to his knowledge or consent, and through some er- wife's property. It is not shown that any of ror and mistake. Hence there was a re- these creditors had notice of appellant's la

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

tent equity. Not only do we know that busi-, shooting occurred at or near New Home ness is transacted on the faith of a person's Church, on Beck's Creek in Whitley county. apparent title to land, but it is also affirma- Quite a crowd of men, women, and children tively shown here that appellant's husband had gathered there on that occasion to aton several occasions represented himself to tend a rally and box supper given for the certain creditors as the actual owner of this benefit of the Junior Order of American land. Since it is not shown that any of these Mechanics. The deceased was a member of subsequent creditors had notice of appel- that society, and was its councilor. Both delant's latent equity, they must be preferred ceased and his son, John, were intoxicated. to appellant so far as their claims are con- Deceased had taken quite a prominent part cerned. in the exercises; he carried the flag in the parade, and had made a speech or two. In his intoxicated condition, he rather felt his importance and authority.

The judgment of the lower court being in accordance with these views, it is affirmed.

JONES v. COMMONWEALTH. (Court of Appeals of Kentucky. June 12, 1925.)

1. Homicide ~300 (3)—Instruction as to right to kill deceased in self-defense held not erro

neous.

Instruction as to defendant's right to shoot and kill deceased in self-defense held not erro

Near the church there was an old field grown up in sage, and many of those present had gone into the sage field, and by looking about had succeeded in finding, as they say, some moonshine whisky. Deceased seemed to have divided his time between boasting of his patriotism in front of the church and violating his country's laws by keeping and drinking moonshine whisky in the sage field, behind it.

Defendant, though not a member of this neous for failure to include an assailant other society, attended this gathering. He evident

than deceased.

2. Criminal law ~1172(2)—Instruction as to reasonable doubt not in statutory language heid not erroneous.

Instruction, that if jury had "a reasonable doubt from the evidence of the defendant * having been proven guilty" it should acquit, held not prejudicial, though it would have been better in language of Cr. Code Prac. § 238.

3. Criminal law 958 (4)—In absence of affidavit of newly discovered witness, new trial on ground of newly discovered evidence cannot be obtained.

In absence of affidavit of newly discovered witness, new trial on ground of newly discovered evidence cannot be obtained.

4. Criminal law 1087 (3) - Plat of premises involved, used on trial of case, should be made part of record.

Plat of premises involved, used on trial of case, should be part of record under rule 22.

ly was a poor man, as he filed his affidavit that he was unable to pay the cost of the transcript of this record, and this transcript was by order of the court paid for by Whitley county. As a further evidence of his lack of money, he attended this-apparently quite a social gathering-clad in a suit of overalls. Yet, in spite of his poverty, he owned and brought with him to this gathering a .38 special Smith & Wesson pistol.

There seems to have been in the hearts of deceased and his son, John, some malice for defendant and his family. This grew out of a punishment inflicted on some of them by one of defendant's sisters, who was a school

teacher.

tried to start a difficulty with the father of Shortly before the killing, Johnny Jones defendant. That old man was sober and

wisely avoided it, but in the course of 15 or 20 minutes John Jones sought a quarrel with Jim Jones, a brother of defendant; but Jim was sober, and, as a result of his discretion and the advice of parties who were present, these two agreed to forget their troubles and gave public expression of their good feeling by hugging each other. At that point, de

Tye & Siler, of Williamsburg, and R. L. fendant came around the hall and, seeing his Pope, of Knoxville, Tenn., for appellant.

Frank E. Daugherty, Atty. Gen., and J. C. Bird and H. C. Gillis, both of Williamsburg, for the Commonwealth.

DRURY, C. Charged with the murder of Will Jones, the defendant was convicted of manslaughter, and his punishment fixed at four years in the penitentiary. Defendant shot Will Jones about 6 o'clock on the evening of Saturday, October 13, 1923. The wounded man died the following day. This

brother and John Jones in this embrace, asked what it meant. Some witnesses say that he undertook to draw his pistol and demanded that everybody stand back. Не says that at that point John Jones released his hold on Jim, and John and deceased started after defendant. Defendant, running backwards, hastily retreated about 40 feet, stumbled over a brush pile, and fell on his back. It was so dark at that time that it was impossible to recognize any one a few feet away, hence what happened next is not well

(273 S.W.)

All

that he was then and there in imminent danger of death or in the infliction of some great bodily harm at the hands of said Will Jones or at the hands of Johnny Jones, and that it was necessary, or was believed by the defendant, Ed judgment to be necessary to shoot and wound Moss Jones, in the exercise of a reasonable or kill the said Will Jones to avert that dan

ent, then you will find the defendant, Ed Moss Jones, not guilty on the ground of self-defense or apparent necessity therefor."

[2] Defendant insists that after the name "Will Jones," and before the words "to avert," the court should have added "and John Jones," thus saying to the jury that the defendant had the right to shoot and wound

or kill both Wil Jones and John Jones to

known, but at or about the time he fell defendant shot Will Jones. He says that was the only shot he fired, and that at the time he fired it he was on his back, John Jones was on top of him, and the deceased was cutting at defendant with a knife. He says he only fired one shot, and from the evidence about the examination of his pistol that ap-ger, real or to the defendant reasonably apparpears to be true, but other witnesses say that he fired two shots, and there is some evidence that three shots were fired. One or two witnesses testified that they saw blazes coming from the direction of the church and blazes going in the opposite direction. the shooting happened in a very brief space of time, and at the conclusion of the shooting the deceased was shot in the abdomen, from which he died, Jim Jones was shot through the heart, from which he died instantly, and John Jones was shot in the leg, from which wound he recovered. There are witnesses who testified that at the time he was shot deceased was standing up some distance from defendant, and was begging him not to shoot. Fifty-six witnesses testified in the case, some of them being recalled a time or two, and they came very near to telling the story in fifty-six different ways. Under the circumstances, the jury could not have believed all of them, and, unfortunately for defendant, it believed the account of the shooting that fixed the culpability upon him. There was abundant evidence to support the verdict, although we must admit that the numerical weight of the evidence would apparently excuse defendant's action.

[1] In his motion and grounds for new trial, he says that the court failed to properly instruct the jury. The fourth instruction given by the court is as follows:

"Although you may believe from the evidence in this case beyond a reasonable doubt that the defendant, Ed Moss Jones, shot with a pistol loaded with powder, leaden balls, or other hard and explosive substances, the deceased, Will Jones, from which shooting the said Will Jones did then and there presently die, yet, if you shall further believe from the evidence that at the time he so shot and killed the said Will Jones he, the defendant, Ed Moss Jones, believed and had reasonable grounds to believe

avert that danger; but a sufficient answer to this is that the defendant was not on trial for shooting John Jones. He also complains of instruction No. 6, which is as fol

lows:

evidence of the defendant, Ed Moss Jones, hav"If you have a reasonable doubt from the ing been proven guilty, then you will give him the benefit of such doubt and find him not guilty."

[3] We are unable to see how he was in any manner prejudiced by this instruction. It would have been better if the court had followed the language of section 238, Crim. Code. This is something which this court has said over and over again, as will be seen by reference to the notes under that section. Defendant also asks for a new trial upon the ground of newly discovered evidence, but he failed to file the affidavit of the newly discovered witness, hence this cannot avail him.

[4] Upon the trial of this case there was used a plat of the premises, which had been made by the surveyor of Whitley county. Doubtlessly, this map was of assistance to the court and the jury, but it was not made a part of the record, as required by our rule 22, and it has proven very confusing to this court.

The judgment is affirmed.

(Court of Appeals of Kentucky. June 9, 1925.) November 17, 1921, for the sum of $10,420.80,

George E. Stone, of Danville, and J. B. that the mortgage covered all the property Paxton, of Stanford, for appellants.

K. S. Alcorn and P. M. McRoberts, both loan on the property or discharge the indebtof Stanford, for appellees.

(273 S.W.)

of a growing crop of tobacco by an insolvent | whatsoever until October 1st in each year, debtor when it was not subject to execution and to change the rule announced in Blincoe did not operate as an assignment of all the mortgagor's property and effects to his creditors under the act of 1856. Later on this case was overruled in Blincoe v. Lee, 12 Bush, 358, where Judge Lindsay, speaking for the court, said: