appellee having taken the matter out of his hands by invoking the judicial power of the bankrupt court to have the land sold, and thus deprived him of his statutory security, can not now be permitted to visit on appellants the disastrous consequence of an erroneous decision which he procured to be rendered. Galloway, &c. v. Soaper. October 8, 1884. Henderson Cir. Ct. Opin. by Bowden, J., Sup. Ct., rev, Yeaman & Lockett for appellants; Montgomery Merritt for appellee. 4. Suit in equity to sell land levied on-Where an execution has been levied upon land subject to a prior lien, the plaintiff is not obliged to enforce his levy by an execution sale, but may resort to a suit in equity, as only a lien would be acquired by the execution sale, and a resort to a court of equity would finally be necessary. 5. Where there are conflicting claims to land upon which an execution has been levied, the plaintiff may, before sale, bring a suit in equity to settle the rights of the claimants. Crume, &c. v. Spaulding, Carothers & Co., &c. September 30, 1884. Nelson Cir. Ct. Opin. by Holt, J., Ct. Ap., aff. Lewis, J., dissenting. J. C. Wickliffe for appellants; Muir & Wickliffe for appellees. Franchises 1. A privilege in which the public have an interest, and which can not be exercised without authority from the sovereign power, is a franchise. Cumberland River Lumber Co. v. Commonwealth. October 8, 1884. Whitley Cir. Ct. Opin. by Bowden, J., Sup. Ct., trans. to Ct. of Ap. Wm. Lindsay for appellant. Fraud 1. Inadequacy of consideration-The fact that the price paid for an interest in certain claims was far below the amount of the interest sold does not prove unfairness, as their value rested very much on opinion, litigation being anticipated and the claims having been offered at a heavy discount and not sold. Cain v. Hahn. October 15, 1884. Lou. Ch. Ct. Opin. by Bowden, J., Sup. Ct., rev. Clay & Jackson for appellant; Samuel B. Richardson for appellee. Fraudulent Conveyances 1. A judgment for the defendants in an action to have a conveyance declared to operate as an assignment under the act of 1856 is not a bar to an action to set aside the same conveyance as fraudulent. Cline v. Smith, &c. October 30, 1884. Pike Cir. Ct. Opin. by Pryor, J., Ct. Ap., rev. R. T. Burns for appellant; L. T. Moore for appellees. Guardian and Ward-See Judgment, 2 1. Suit by guardian-Limitation-The guardian is only authorized to sue in his own name when a recovery is sought upon a contract made with him as guardian. When he sues to recover the property of his ward the suit must be in the name of the infant by the guardian or next friend; the statute, therefore, does not begin to run in favor of the surety of an executor or administrator against the devisee or distributee when the guardian is appointed, but when the devisee or distributee arrives at full age. Wilson, &c. v. Hodges' Gd'n. October 15, 1884. Bath Cir. Ct. Opin. by Ward, P. J., Sup. Ct., aff. Reid & Stone for appellants; J. A. Turner and J. J. Nesbitt for appellee. 2. Maintenance of ward-Where the ward lived with his mother on a small farm, which he cultivated for her, and his services were worth more than his board and clothes, it was not proper for the guardian to pay his board, and the guardian is not entitled to credit therefor. Dawson v. Mann. October 15, 1884. Hart Cir. Ct. Opin. by Bowden, J., Sup. Ct., aff. Julian & Martin for appellant; D. W. Lindsey for appellee. Heirs 1. Suit by heir-The heir can not sue to recover the unadministered personal estate of his ancestor unless the administrator has failed or refused to sue; in that event the heir may sue the debtor and the administrator, showing the neglect and refusal of the latter to sue. 2. Suit against heir-It is generally improper to sue the heir for the debt of the decedent without joining the administrator; but there are exceptions to the rule, as where there has been no administrator, or where the administrator, having been sued, has died pending the action, and, there being no administrator de bonis non, the action is revived against the heir at law. Wilson, &c. v. Hodges' Gd'n. October 15, 1884. Bath Cir. Ct. Opin. by Ward, P. J., Sup. Ct., aff. Reid & Stone for appellants; J. A. Turner and J. J. Nesbitt for appellee. Homestead-See Judicial Sale, 1- 1. Renewal of note given prior to homestead act-The renewal of a note given before the passage of the homestead exemption act of June, 1866, is not a satisfaction of the original debt, but only a change of the evidence of it, and no homestead is exempted as against the renewal note. The fact that the original note was executed by a firm, and the renewal executed by a single member of that firm originally bound for the debts, does not lessen the liability of the obligor in the renewal note, or exempt his homestead before subject. Miller v. Clemmons. October 2, 1884. Nelson Cir. Ct. Opin. by Lewis, J., Ct. Ap., aff. J. W. Thomas, Wathen, Wickliffe & Wickliffe for appellant; Nat W. Halstead for appellee. 2. The waiver by a debtor of his right to a homestead as to one creditor does not amount to a waiver as to any other creditor, and the property embracing the homestead having been sold by reason of its being indivisible, the debtor is entitled to the surplus, not exceeding $1,000, after satisfying the】 lien, to enable him to purchase another homestead. This fund can not be seized by a creditor before it reaches the hand of the debtor, and an assignment or transfer of the fund by the debtor in good faith for value will pass the right to the assignee as against a creditor whose attachment may be prior in date. 3. Neither the homestead nor its proceeds is an estate for life, nor can either be encumbered by liens unless those liens have been created by the debtor in the mode pointed out by the statute. It is only where the owner of the homestead dies and it passes to his wife and children that the creditor of the debtor may subject it, subject to its occupancy by the family. Schmidt v. Oliges, &c. October 4, 1884. Lou. Ch. Ct. Opin. by Pryor, J., Ct. Ap., aff. Richards & Baskin for appellant; P. A. Gaertner for appellees. 4. Where a widow and infant children were living together and occupying the home place of the deceased husband and father at the date of the passage of the homstead law, dower not having been assigned, the widow became entitled to the homestead for herself and children just as if the descent had been cast after the passage of the homestead law. 5. The widow has the right to elect whether she will claim homestead or dower, but she can not claim both. Funk v. Walters. October 9, 1884. Lou. Ch. Ct. Opinion by Pryor, J., Ct. Ap., rev. Thomas B. Fairleigh for appellant; Kohn & Barker for appellee. Husband and Wife 1. The wife of the plaintiff having filed an amended petition in her name, alleging that her husband had deserted her, and asking that she might be allowed to prosecute the action in her name for her husband, an order simply providing that she might prosecute the action for him was a substantial compliance with subsection 4 of section 34 of the Civil Code, although the order did not provide that the prosecution should be in the wife's name. Harris v. Lavin, &c. October 21, 1884. Floyd Cir. Ct. Opin. by Holt, J., Ct. Ap., aff. R. H. Weddington and James Gobel for appellant; W. C. Ireland and W. S. Haskins for appellees. 2. Wife's equity to settlement-In an action by husband and wife upon a note for $200 executed to the wife for borrowed money, the defendant attempting to set off a debt due him from the husband, the lower court properly recognized the wife's equity to a settlement of the whole amount, it appearing that the husband had not had any sort of possession of the money loaned, which was the proceeds of land owned by the wife; that the note was held by the husband for her and not as his own; that he had very little property, the evidence tending to show that he was insolvent; that the wife had no estate except the note in controversy, and that of her five children the oldest was not over nine years of age. Meyler v. Maraman, &c. October 15, 1884. Bullitt Cir. Ct. Opin. by Bowden, J., Sup. Ct., aff. R. G. Meyler for appellant; W. R. Thompson for appellee. 3. Release by husband of mortgage executed to wife-In an action brought by husband and wife to foreclose a mortgage executed to the wife, there being nothing to show that the mortgaged debt was the separate estate of the wife, the husband had a right to release the mortgage and dismiss the suit. Graves v. King, &c. Opin. by Holt, J., Ct. Ap., aff. H. F. Turner for appellees. October 28, 1884. Henderson Cir. Ct. 4. Proceeds of wife's land-A note executed to husband and wife for the purchase price of the wife's land can not be reached by an attaching creditor of the husband unless it was provided in the conveyance or the obligation of purchase that the proceeds of the land should not belong to the wife. The fact that the note was made payable to the husband and wife does not show a provision that it was to be the husband's. Rousseau, &c. v. Flower's Adm'r. October 8, 1884. Russell Cir. Ct. Opin. by Ward, P. J., Sup. Ct., rev. J. E. Hays for appellant. Injunctions 1. Jurisdiction-An action to enjoin an officer from selling under execution property claimed to be exempt is not an action to stay proceedings on a judgment, and need not, therefore, be brought in the court in which the judgment was rendered. ( (Ward, P. J., and Bowden, J., concur in this proposition.) 2. To prevent sale under execution-An officer can not be enjoined from selling under execution property claimed to be exempt unless the remedy at law is inadequate. 3. Trespass-An injunction will not be granted to restrain a trespass unless the trespasser is insolvent or the injury irreparable. C., O. & S. W. R. R. Co. v. Reasor, &c. October 15, 1884. Meade Cir. Ct. Resp. by Ward, P. J., to pet. for reh'g, Bowden, J., dissenting. (See opinion, 5 Ky. Law Rep., 931.) Dissenting opinion by Bowden, J. 1. The allegation of the plaintiff's petition that the property levied on is necessary for the prosecution of its business as a common carrier, and that a sale of the property would close the station where it is used "and stop the transaction of plaintiff's business with the public as a common carrier at said station,'' is sufficient to authorize an injunction to prevent a sale of the property. 2. The fact that the property levied on had been mortgaged to trustees for creditors before the levy was made was sufficient to authorize the injunction, as it left the defendant in the execution with only an equitable interest. When asked to protect a legal interest the chancellor will inquire if the redress at law is adequate, but when asked to protect a purely equitable interest the question can not arise. H. Cummins and P. H. Darby for appellant; C. C. Fairleigh for appellee. Inn-keepers 1. The liability of inn-keepers is now just as it was at the common law, except to the extent they are relieved from responsibility by a compliance with the act of February 5, 1874; the guest, therefore, is not guilty of contributory negligence in failing to deposit his valuables with the inn keeper unless the latter has complied with that act and given the notice therein required. McClay v. Nash. October 8, 1884. Jeff. Ct. Com. Pleas. Opin. by Ward, P. J., Sup. Ct., aff. Elliott & Hemingray for appellant; Kohn & Barker for appellee. Insurance-See Purchasers, 2. Interest 1. Under the conventional interest law, after the death of the obligor in a contract for the loan of money at a higher rate of interest than six per cent., the contract, after maturity bears only six per cent., and when, after the death of one of several obligors in such contract, a payment is made, no matter by whom, in so far as it affects the estate of the decedent, it first satisfies the interest his estate is bound to pay, to wit, six per cent., and the balance goes to extinguish the principal; in so far as it affects the other obligors it first satisfies the interest they are bound to pay, to wit, ten per cent., and then goes to the extinguishment of the principal. The law appropriating partial payments appropriates them so as to satisfy the obligations of all parties to the paper. Snelling's Adm'r v. Atchison. October 22, 1884. Bath Cir. Ct. Opin. by Ward, P. J., Sup. Ct., rev. R. Gudgell & Son and A. Duvall for appellant; H. L. Stone for appellee. Judgment-See Pleading, &c., in Crim. Cases, 2 1. Restitution of money paid on judgment subsequently reversed-Money paid upon an erroneous judgment may, after the reversal of the judgment, be collected by rule upon the party to whom it was paid. To this rule any legal or equitable defenses occurring after judgment may be made, and where one received the money in a fiduciary capacity he may show that he has paid it to the persons designated. 2. Where a guardian has collected a judgment in his favor as guardian and the judgment is subsequently reversed, in order to escape payment, he must show that he has expended the money in good faith for the benefit of his ward, and in a way in which he had the right and in which it was his duty to expend it. A response to a rule against him that he. "in good faith," expended the money for the benefit of his ward is not sufficient, being merely a conclusion of law. He must allege facts showing that he has expended the money in good faith. If the guardian has in his hands or under his control other estate of the infant, he must use that before using the money wrongfully collected on the judgment. Humphrey v. Hughes' Gd'n. October 22, 1884. Nelson Cir. Ct. Opinion by Ward, P. J., Sup Ct., rev. Muir & Wickliffe for appellant; J. C. & J. A. Wickliffe for appellee. 3. Appellant having executed a bond to perform the judgment of the court, and thereby discharge the attachment of the fund in the hands of the railroad company and created a personal liability upon himself, a personal judgment against him for the pro rata sum allowed the appellee out of the attached fund was properly rendered. Graham v. Sheets. |