In Carey v. Sampson, Judge, 150 Ky. 460, 150 S. W. 531, Carey sought from this court a writ of prohibition to prevent Sampson, judge of the circuit court, from trying him under an indictment for practicing medicine without a license, the punishment for which offense is a fine not exceeding $50. The grounds chiefly urged by Carey for the writ were that, as Sampson had said in advance of a trial that he intended to find him guilty and would fine him, and there could be no appeal from the maximum fine to be assessed against him, in the absence of the writ of prohibition asked, he would be left without any adequate remedy. In denying the writ we held that the fact that no appeal is given by law from the judgment of an inferior court cannot affect the question of the propriety of the Court of Appeals' granting a writ of prohibition, since the legislative department of the state has the power of limiting the jurisdiction of this court as to appeals; the right of appeal being not an inherent right, but one that may be granted as a matter of grace, or withheld by the Legislature, in the exercise of its discretion. In the opinion it is, among other things, said: "In determining whether there is an adequate remedy, each case must be adjudged upon its merits. In Rush v. Denhardt, 138 Ky. 245 [127 S. W. 787, Ann. Cas. 1912A, 11991, this court said: 'If we should once lay down the rule that application by original proceeding might be made to us to stay the hand of the inferior jurisdictions, whenever in the opinion of counsel the ruling was prejudicial, although it might not leave the complainant without adequate remedy, we would have much of our time occupied in the settlement of questions that could be brought before us in the regular way by appeal. Inferior courts would be obstructed in the hearing and disposal of cases, and much confusion and uncertainty would follow.'

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this court, no appeal can be prosecuted from fact, no ruling to the contrary can be found, his judgment. It has long been held, and in that such a writ issued only to prevent the inferior tribunal from exercising, or attempting to exercise, a jurisdiction that does not belong to it. provides that this court "shall have power to isSection 110 of the Constitution sue such writs as may be necessary to give it general control of inferior jurisdictions." Under this provision it is claimed this court may rightthe question of jurisdiction in the inferior court, fully exercise the power of determining, not only but may go so far as to determine questions that necessarily belong to courts of original jurisdiction, and over which they have complete an appeal is allowed. It is not contended the control, subject to an appeal to this court where circuit court is without jurisdiction to try these indictments, and it must be conceded it has full and complete power to determine all questions pertaining to the trial made by counsel on either side. With such a latitudinous construction given this provision of the Constitution as we are asked to give, this court would convert itself into a tribunal of original jurisdiction, and in of the sufficiency of any pleading in a civil acevery case, as to the validity of indictments, or tion, this court could interfere and direct the inferior court as to what the judgment should be. If the statute imposing the penalty in such cases diction to so decide, or if the indictment or prohas been repealed the court below has the jurisceeding is defective the same power exists, so that there can be no reason for this court to interfere with the exercise of the rightful jurisdiction of any court except in cases where appeals are prosecuted, and it is only in cases where the inferior tribunal is beyond the bounds of its jurisdiction that this writ should go. The fact that no appeal is given cannot affect the question, because the legislative department of the state has the power of limiting the jurisdiction of this court as to appeals.'"

Here the question whether the plaintiff, in case of a refusal of the mandamus, has any other adequate means of relief cannot be considered, for there was a hearing of proof by the circuit court and decision that the service of process was not sufficient to bring the Old Dominion Steamship Company before the court. If correct in this decision, the court could not proceed to try the case, owing to its not having obtained jurisdiction of the person of the defendant. The question determined was jurisdictional, in the decision of which there was a complete exercise of the discretion of the court, which cannot be interfered with by the writ of mandamus; nor can the decision itself be reviewed by this court on an application for such writ.

Whether the Kenyon Building is exempt from taxation depends upon the character of the appellee corporation and the use to which it puts said property, or its income derived therefrom. It will be observed that so much

of section 170 of the Constitution as is above quoted exempts from taxation two classes of property: (1) Institutions of purely public charity; and (2) institutions of education, not used or employed for gain by any person or corporation, the income thereof being devoted solely to the cause of education. It is not necessary in this opinion to consider whether the appellee is an institution of purely public charity, since we are of opinion it clearly comes within the second clause of exemptions above referred to, in that it is an institution of education whose property is not used or employed for gain, and the income thereof is devoted solely to the cause of education. In considering this question of exemption from taxation, it would be useless to discuss the cases decided under the Constitution of 1850, since section 170 of the present Constitution of 1891 made a change in this respect, and is, of course, controlling. The meaning, scope, and effect of section 170 of the present Constitution was discussed at great length by this court in 1897 in the cases of Trustees of Kentucky Female Orphan School, of Midway, v. City of Louisville, 100 Ky. 470, 36 S. W. 921, 19 Ky. Law Rep. 1091, 40 L. R. A. 119; City of Louisville v. Southern Baptist Theological Seminary, 100 Ky. 506, 36 S. W. 995, 19 Ky. Law Rep. 1100;

It is sufficient to say, in passing, that the case of Widows' and Orphans' Home v. Bosworth, 112 Ky. 200, 65 S. W. 591, 23 Ky. Law Rep. 1505, relied upon by counsel for appellant, was expressly overruled in Widows' and Orphans' Home v. Commonwealth, 126 Ky. 386, 400, 103 S. W. 354, 31 Ky. Law Rep. 775, 16 L. R. A. (N. S.) 829; and also that the dissenting opinions in the Midway Orphan School Case and the Southern Baptist Theological Seminary Case, supra, are not to be now considered, unless this court should be of opinion that the decisions in those cases should be departed from. Indeed, counsel for appellant concedes that, if the law is as it was declared by the court in the majority opinion in the Midway Orphan School Case, and the like cases above mentioned, the judgment of the circuit court must be affirmed; but he now asks that those cases be overruled, although they have repeatedly been approved and followed by this court.

It has often been held by this court that the phrases "institution of purely public charity," or "institution of education," used in section 170 of the Constitution, embrace not only the buildings actually used in teaching, or actually used in administering charity, but that they also embrace all the property of the institution, wherever situated. taken from the opinion in the Midway FeThis appears from the following language male Orphan School Case, supra:

"We think, therefore, a proper construction of the language used in the section requires the exemption of the entire property of this institution, wherever situated, and in whatever form 36 S. W. 925, 19 Ky. Law Rep. 1091, 40 L. R. its investments may be found." 100 Ky. 489, A. 119.

In that case the school was located at Mid

way, while the property which the city of Louisville sought to assess was, of course, located within the corporate limits of the city of Louisville.

At the same time the court decided the case of the Southern Baptist Theological Seminary, reported in the same volume, which likewise involved the question of the right of the state to impose a tax on the property of the seminary located in Louisville, and certain lands and property not actually used in teaching, and some of which was situated in a distant county. The same ruling was there made, and all the property of the seminary, wherever located, was declared exempt from taxation. The reason for the ruling was, that it was the use to which the property, or the income therefrom, was put, that exempted it from taxation. use of the property and income for the purposes of education, although it was sectarian, exempted it from taxation under section 170

The

held to affect the nature of the charity. The peculiar tenets of this denomination are doubtless taught, but a belief of them is not required, and it is not made the test of admission."

The case at bar is stronger for the exemption than the Baptist Theological Seminary Case, supra; since here Union College does not teach the doctrines of the Methodist Church, as distinguished from other Christian doctrines, although it might do so and still be exempt under the rule laid down in the Baptist Theological Seminary Case. See, also, Burd Orphan Asylum v. School District of Upper Darby, 90 Pa. 21, quoted with approval in the Midway Orphan School Case, supra. This view of the case was made plain in Widows' and Orphans' Home of Odd Fellows v. Commonwealth, 126 Ky. 386, 103 S. W. 354, 31 Ky. Law Rep. 775, 16 L. R. A. (N. S.) 829, where the exemption was claimed upon the ground that the orphanage was a purely public charity, rather than an institution of education. In that case we said:

"The convention meant by the word 'purely' to describe the quality of the charity, rather than the means by which it is administered, that it should be wholly altruistic in the end to be attained, and that no profit or selfish interest should be fostered under the guise of charity; but it was never meant that, because a charity was limited by its terms to objects belonging to a certain sect or fraternal order, or color or class, it was a private, and not a public, charity. The members of the convention were wise and practical, and knew that men, as a rule, administer their charity through the organization or organizations to which they belong. Thus Catholics will naturally distribute their charity through the organization of the Catholic Church; Presbyterians through those of the Presbyterian Church; Masons through the organization of the Masonic order," etc.

And, as was said in Commonwealth v. Young Men's Christian Association, 116 Ky. 711, 76 S. W. 522, 25 Ky. Law Rep. 940, 105 Am. St. Rep. 234, the fact that some part of the expense in maintaining an institution is required to be paid by those who enjoy all its privileges does not change its character, since that regulation merely made it partly self-sustaining.

It follows that the judgment of the chancellor dismissing the petition was right, and it is affirmed.

company so organized, which executed a mortgage securing bonds aggregating $100,000, and plaintiffs executed their deeds to the company in consideration of "the sum of $10 and other considerations in hand paid," and received bonds at 80 cents on the dollar which showed on their face that the whole number of bonds aggregated $100,000. In the transactions plaintiffs, who were neither ignorant nor unlettered, had the for 2 years, drawing the interest thereon, but advice of an attorney. They retained the bonds after the company became in failing circumstances they brought a suit to cancel their deeds, or have it adjudged that they had a prior lien on the lands for the balance of the purchase money, alleging that it was represented to them that the mortgage, which covered lands in addition to their own, would secure only enough bonds to cover the purchase price of the mortgaged lands. There was no allegation, however, that any such provision was omitted from the option contract, and no such stipulation was therein contained. Held, that plaintiffs had no right to a priority of lien over innocent creditors and other bondholders, but had only the same rights and remedies as the holders of other bonds, no fraud having been shown, and there having been no relation of trust or confidence the interests of plaintiffs. imposing on the optionees the duty to protect

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dec. Dig. 566.] 2. DEEDS 70-RESCISSION AND CANCELLATION-FRAUD.

The company's inability to make good its promise to repurchase the bonds at 90 cents on the dollar was neither a badge of fraud nor a ground for canceling the deed.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 165-182; Dec. Dig. 70.] CONVEYANCE TO 3. CORPORATIONS_437 CORPORATIONS BEFORE COMPLETION OF ORGANIZATION.

Where, pursuant to an option for the purchase of land stating that the conveyances were to be made to a company to be organized by the optionees, a deed was made on the day the charter was filed for record in the county clerk's office, and 12 days thereafter a certified copy of the articles of incorporation were filed for record with the secretary of state, the conveyance was valid as between the parties, though made before the organization of the corporation was complete.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. § 1773; Dec. Dig.

437.]

4. CORPORATIONS 34, 388 ESTOPPEL TO DENY CORPORATE EXISTENCE.

A person executing an obligation to a corporation cannot, in an action thereon by the corporation, deny that such a corporation had an existence, nor deny its power to contract, unless the contract be expressly forbidden by law.

JOHNSON et al.

(Court of Appeals of Kentucky. Nov. 11, 1915.)

1. CORPORATIONS 566-INSOLVENCY-PRIORITY OF CLAIMS-FRAUD.

Plaintiffs gave options to purchase land owned by them for $25 an acre, one-third to be paid in cash when the conveyance was made, and the remaining two-thirds in mortgage bonds of a corporation to be organized by the optionees at 80 per cent. of their par value. The option further provided that plaintiffs should have the option at any time after the expiration of 18 months, and within 24 months to sell the bonds to the company at 90 per cent. of their par value. The options were assigned to the

5. MORTGAGES

13-PROPERTY SUBJECT TO MORTGAGE-AFTER-ACQUIRED PROPERTY. As a general rule, a mortgage of property to be acquired in futuro is void as against mortgagors, creditors, or purchasers for value. Cent. Dig. § 15; Dec. Dig. 13.] [Ed. Note.-For other cases, see Mortgages,

6. MORTGAGES 12-PROPERTY SUBJECT TO MORTGAGE-OPTIONS TO PURCHASE.

Under Ky. St. § 2341, providing that any interest in or claim to real estate may be disposed of by deed or will in writing, an assignee of an option for the purchase of land had such an estate in the land as could be conveyed by mortgage, and, when it acquired the legal ti