"Real estate" or "Land how construed. "Personal es "-how con tate strued. may extend and be applied to bodies-politic and corporate, societies, communities, and the public generally, as well as individuals. § 13. The words "real estate" or "land," in the statute law, shall be construed to mean lands, tenements, and hereditaments, and all rights thereto and interests therein, other than a chattel interest; and the words "personal estate" shall include chattels real and other estate, as, upon the death of the owner intestate, would devolve upon his personal representative. 14. No part of this revision is retrospective, unless Not retrospective expressly so declared. (a) No § 15. There shall be no distinction in the construction of distinction statutes, between criminal or civil and penal enactments. penal enactments All statutes shall be construed with a view to carry out the intention of the Legislature. between civil & § 16. The rule of the common law, that statutes in deroTo be liberally gation thereof are to be strictly construed, is not to apply to this revision; on the contrary, its provisions are to be liberally construed, with a view to promote its objects. construed. -how construed. § 17. All words and phrases shall be construed and unWords & phrases derstood according to the common and approved usage of Technical words language; but technical words and phrases, and such others. as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such meaning. -how construed. "Grantor § 18. The word "grantor" may be construed as including and every person from or by whom any freehold, estate, or interest passes in or by any deed, and the word "grantee" as including every person to whom any such estate or interest passes in like manner. "Preceding ' "Will " construed. "Issue construed. & 19. The words "preceding" and "following," when used by way of reference to any section of these statutes, shall be construed to mean the section next preceding or next following that in which such reference is made, unless when some other is expressly designated. § 20. The word "will" shall be construed to mean codihow cils as well as wills, and the words "last will" as meaning last will and testament. how § 21. The word "issue," as applied to the descent of real (a) No statute will be construed as being retrospective, unless such interpretation is inevita estate, shall be construed to include all the lawful lineal descendants of the ancestor. § 22. When a law which may have repealed another shall be repealed, the previous law shall not be revived, unless the law repealing it be passed during the same session of the General Assembly. § 23. No new law shall be construed to repeal a former law, as to any offense committed against the former law, nor as to any act done, any penalty, forfeiture, or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture, or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings. If any penalty, forfeiture, or punishment be mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. § 24. A person injured by the violation of any statute may recover from the offender such damage as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed. "Devisee " con- em brace the same 25. The words "legatee" and "devisee" shall each be "Legatee" and held to convey the same idea, and the words "bequeath" and "devise" to mean the same thing; and the words "bequest" and "legacy" shall each be held to mean the same thing, and to embrace and include either real or personal estate, or both. § 26. When the law requires any writing to be signed by a party thereto, it shall not be deemed to be signed unless the signature be subscribed at the end or close of such writing. 27. The term "action," when used in this revision, shall be construed to include all proceedings in any court of this Commonwealth. 28. The words "circuit court" shall be construed to mean any court of similar jurisdiction, either criminal, ordinary, or equitable. Writing, if to be signed at the end signed, must be or close of it. "Action 'cludes all inpro I R. S., 264. No action lies upon parol representation. CHAPTER 22. CONTRACTS. Parol Contracts-Written Contracts, Seals, and Scrolls-Assignments-Joint § I. No action shall be brought to charge any personFirst, for a representation or assurance concerning the character, conduct, credit, ability, trade, or dealings of ancerning the char- other, made with intent that such other may obtain thereby credit, money, or goods; nor, 1st. For representation con acter, &c., of another. ad. On a prom ise to pay a debt dur Secondly, upon a promise to pay a debt contracted during infancy, or a ratification of a contract or promise made during infancy; nor, Thirdly, upon a promise of a personal representative as 3d. By personal such to answer any liability of his decedent out of his own representative. estate; nor, Fourthly, upon a promise to answer for the debt, default, nor,(a) 4th. Debt of an- or misdoing of another; nor, (a) other. Fifthly, upon any agreement made in consideration of 5th. Marriage marriage, except mutual promises to marry; nor, agreement. Sixthly, upon any contract for the sale of real estate, or 7th. Agreement any lease thereof for longer term than one year; nor,(¿) 6th. Sale of land. not one to be performed in year unless in writing. Seventhly, upon any agreement which is not to be performed within one year from the making thereof. Unless (a) A promise, by a third party, to a creditor about to sue out an attachment against his debtor, that if he would desist and not sue, that he, the third party, would pay or see the debt paid, is within the statute, and not binding, unless in writing. (Jones vs. Walker, 13 B. M., 357.) So also if the promise was made in consideration that an attachment already levied should be discharged, and the property released. (Lieber, Griffin, &c., vs. Levy, 3 Met., 294.) 2. A promise to a debtor, based on sufficient consideration to pay his debt, or hold him harmless, is not within the statute. The statute applies only when the promise is made to one to whom another is bound. (North vs. Robinson, 1 Duv., 73.) 3. When applying this statute, a distinction must always be observed between contracts executed in part or in whole, and those wholly unexecuted. In the latter case neither party could sue, and it is tantamount to declaring the contract void. In the former case, as the statute does not declare the contract void, but only refuses the remedy, yet as the law implies an obligation to pay for the consideration received, a suit may be maintained not to enforce the contract, but to recover for the consideration on the implied obligation. For a full exposition of this principle, see Montague vs. Garnett, 3d Bush, 297. (b) A parol sale of trees growing upon the land will be valid or not, depending upon the fact whether they were marked or rendered capable of identification, and the sale made in contemplation of their immediate removal from the soil. For the adjudications on this question see Cain vs. McGuire, 13 M. M., 341; Byassee vs. Reese, 4 Met., 373; Moss vs. Meshew, 8th Bush, 187. 2. An oral agreement, fixing a dividing line between adjoining tracts of land, is not within the statute. (Jamison vs. Petit, 6th Bush, 669.) the promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof be in writing, and signed by the party to be charged therewith, or by his authorized agent; but the consideration need not be expressed in the writing; it may be proved when necessary, or disproved by parol or other evidence. § 2. A seal or scroll shall in no case be necessary to give effect to a deed or other writing. All unsealed writings shall stand upon the same footing with sealed writings, having the same force and effect, and upon which the same actions may be founded. But this section shall not apply, nor shall it alter any law requiring the State or county seal, or the seal of a court, corporation, or notary to any writing. §3. The consideration of any writing, with or without seal, may be impeached or denied by pleading verified by oath. 4. The execution of a writing on which a suit or defense is founded, or its assignment, shall only be denied by answer or other pleading verified by oath. tickets void. § 5. Every contract or assurance made or given in con- Given for lottery sideration, in whole or in part, of any ticket or share in a lottery, or share in a prize therein, is void. signable. § 6. All bonds, bills, or notes for money or property shall Bonds, etc., asbe assignable so as to vest the right of action in the assignee; but except in case of bills of exchange, not to impair the right to any defense, discount, or offset that the defendant has and might have used against the original obligee or any intermediate assignor, before notice of the assignment.(a) 3. A dedication of land to public or charitable purposes may be made by parol. (Griffy vs. Bryars, 7th Bush, 471; see also 9th B. M., 200; 11 B. M., 155; 5th Bush, 401.) 4. The statute inhibiting an action on a parol lease, for a longer term than one year, relates to the term or duration of the lease, and not to the time at which the contract to lease was made. If the agreement to let the premises is to be performed within a year, and the lease is for a year from its commencement, the contract is good. (Chinn vs. Bland, MS. Opinion, 1856, by Marshall, Chief Justice.) 5. An agreement made by purchaser at execution sale, that the debtor should have the right or privilege of redemption, even after the expiration of a year, though verbal, is not within the operation of the statute, and will be enforced. ( (Williams vs. Williams, 8 Bush, 241; see also 9 B. M., 452; 16 B. M., 8; 2 Bush, 408; 4 Bush, 586.) (a) The law implies, from an unconditional assignment of a note or bond, an agreement or undertaking that the assignor is the absolute owner thereof, and has an indefeasible right to demand what the same calls for; and if he has not such ownership or right, there is a breach of this undertaking, for which an action lies in the first instance, without suit on the bond to establish the fact. (Emerson vs. Chaynell, 14 B. M., 19.) 2. The drawing a bill of exchange by a debtor, and acceptance by the drawee, is an appropriation pro tanto of funds in hands of drawee to the holder of the bill. The drawer has no right thereafter to control that fund. (Buckner, &c., vs. Sayre, 18 B. M., 755.) 3. Though none but bonds, &c., are assignable, so as to pass the legal title and right of Consideration must be averred signments. § 7. In an action on any assignment of a writing, it shall be necessary to aver the consideration for the assignment; in action on as- and only the consideration actually paid by the plaintiff for the note or assignment thereof shall be recoverable by him. 8. If any person, jointly bound with another in any Joint obligations. contract or by judgment, shall die in the lifetime of such other obligor, his heir, devisee, or representative may be charged in the same manner as if the contract or judgment had been separate as against the decedent. § 9. A written obligation to a person or persons who, or Obligations to a some of whom, happen to be dead at the time of its execudead person good tion, may be proceeded on by the representative of such person, or by the survivor, as if it had been executed in the lifetime of such dead person or persons. eign bills of exchange. 10. If any bill of exchange, drawn on any person out Interest on for of the United States, shall be protested for non-payment or non-acceptance, it shall bear ten per cent. per year interest from the day of protest, but not longer than eighteen months, unless payment be sooner demanded from the party to be charged, or unless by the contract a rate greater than six per cent. is stipulated for. Such interest shall be recovered to the time of the judgment, and the judgment shall bear six per cent. interest thereafter. Damages on all other bills are disallowed. action, yet an open account may be assigned so as to vest the assignee with an equity and beneficial right. (Forepaugh vs. Appold, 17 B. M., 630.) 4. The delivery of a note or bill, with a blank indorsement, vests the holder with authority to receive the amount thereof, and if necessary, to fill up the blanks with a formal assignment to himself. A person who, in good faith, for value and without notice, becomes the holder of such paper, can hold the same, and collect the money even against the rights of one from whom it may have been stolen, or by whom lost. (Caruth vs. Thompson, &c., 16 B. M., 575.) 5. Although, strictly speaking, the law regulating and defining the rights, duties, and responsibilities of assignor and assignee, do not fall within our province, yet we have considered it not improper to refer the reader to some of the more recent decisions of our Appellate Court, in which that subject has been discussed, viz: Chambers vs. Keene, 1 Metcalfe, 293; Bowman vs. Curd, 2 Bush, 565; Wynn vs. Pointer, 3 Bush, 54; Idem, 168, 660, 678; Tucker vs. Fogle, 7 Bush, 290; Hyatt vs. Bank of Kentucky, 8 Bush, 193; Barker vs. Curd, 1 Metcalfe, 642. 6. Although it may not appear on the face of the note that a party thereto is only a surety, yet if such be the fact, it may be alleged and proven in a contest with an assignee, although he had no notice of the fact when he became the holder, or afterwards. Any defense available as against the assignor will be equally good as against the assignee; as, for instance, the statute of limitations. (Day vs. Billingsly, 3 Bush, 157.) 7. The assignment of a note carries with it all securities given for its payment. (Forwood vs. Dehoney, 5 Bush, 174.) 8. The student will do well to keep constantly in mind the different effect given to the assignment of a promissory note, if made to a private individual, and if to any bank or other institution in Kentucky authorized to discount notes. In the latter instance, such paper, if discounted, is placed on the footing of a foreign bill of exchange, which deprives the maker of all defense by reason of any right against the original payee, and authorizes suit in the first instance against all whose names appear on the note. (See Story on Bills, 188, section 21; Smith vs. Shotwell, 1 Metcalfe, 317.) |