the posts and chains was the only way to abate the nuisance.

There was no error in overruling the motion to transfer the case to the ordinary docket for a trial of the question whether there was a nuisance. Equity has always entertained jurisdiction to abate nuisances, and the defendant was not entitled to a jury trial of a question of fact arising in an action of exclusively equitable cognizance. Section 12 of the Civil Code of Practice has no application to such a case. The chancellor could never get through with his docket if either party were entitled to a jury trial on every issue of fact made in the cases.

The city was not estopped by the contract made in the year 1883. As population increases things become nuisances which occasioned little inconvenience when the population was not so dense or the traffic so great. The contract of 1883 did not contemplate the creation of a nuisance; the town trustees could not have legalized a nuisance if they had contemplated it.

On the question of fact, we see no reason for disturbing the chancellor's conclusion.

Judgment affirmed.

O'NEAL v. SPALDING et al.1 (Court of Appeals of Kentucky. Jan. 14, 1902.) ATTORNEY AND CLIENT-RIGHT OF CLIENT TO ENJOIN ATTORNEY FROM COLLECTING JUDGMENT.

1. The plaintiff in a judgment was entitled to an injunction restraining her attorney from collecting the judgment, though he had a lien thereon for a reasonable fee, and in an action for that purpose was entitled, under proper pleadings and proof, to have the chancellor fix the extent of the attorney's lien.

2. Plaintiff had a right to discharge her attorney, and the institution of the action to enjoin him from collecting the judgment which he had obtained was notice of his discharge.

Appeal from circuit court, Marion county. "Not to be officially reported."

Action by Kate O'Neal against Ben Spalding and another for an injunction. Judgment for defendants, and plaintiff appeals. Reversed.

W. J. Lisle, for appellant. Ben Spalding, for appellees.

GUFFY, C. J. It appears from the petltion in this action that the appellant recovered judgment against Ben O'Neal for the sum of $984.32, with interest from February 28. 1899; that the appellant is the daughterin-law of defendant Ben O'Neal, and does not wish an execution to issue on said judgment, and has so informed defendant Lancaster, clerk of the Marion circuit court; that her attorney in said action, Spalding, has a lien on said judgment for a reasonable attorney's

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

fee, which plaintiff is willing, ready, and able to pay and has offered to pay said attorney, but he (Spalding) claims a fee of one-half of said judgment, which plaintiff averred to be unreasonable, and said attorney was then ordering said clerk to issue an execution on said judgment, and the defendant O'Neal was insisting upon paying said judgment to said Spalding, which judgment at that time amounted to more than $1,100; and that the defendant O'Neal had ordered the Marion National Bank to pay said sum to said Spalding. It is further averred that said attorney is insolvent, and that the collection of the sum by him would produce great and irreparable injury to her. Plaintiff also asserted her right to control the collection of said judgment, subject to the attorney's lien for a reasonable fee, which it is averred should be $100, and no more, which she was then ready, willing, and able to pay, "and here and now offers to pay," but her said attorney would not agree thereto. She asks for an injunction against said Spalding, said bank, and O'Neal, enjoining Spalding from collecting, the clerk from issuing the execution, and O'Neal from paying said judgment. It was averred in an amended petition that she had paid before the institution of her said suit $50 to her said attorney, aud never gave him any power or authority to sue out an execution for and collect said judgment; that all right or authority he had ceased upon the rendition of the final judgment in the action named in her original petition, and said Spalding had no right in said judgment or in its collection, except to the extent of his statutory lien for a reasonable attorney's fee. The court was further asked to fix said defendant's fee in the action against this plaintiff. Demurrer was sustained to the petition as amended. Appellant also offered a second amended petition, which the court refused to permit to be filed, the substance of which was to the effect that, but for the injunction sued out, the clerk of the Marion circuit court would have issued execution on her said judgment, and the amount thereof and the costs would have been paid over to the defendant Spalding. The court finally dismissed plaintiff's petition and dissolved the injunction. From that judgment this appeal is prosecuted, with a supersedeas.

It seems to us that the appellant had a perfect right to control the collection of the judgment against the defendant Ben O'Neal, except that she might not claim so much of the judgment as would be a reasonable fee to her attorney, who had been given a lien thereon for a reasonable fee. She certainly had a right to discharge him from acting as her attorney, and the institution of this suit was evidently notice to that effect. Root v. McIlvaine (Ky.) 56 S. W. 498. The appellee Spalding would have a right by appropriate proceedings to enforce his lien upon the Judgment herein mentioned in satisfaction of

We deem it unnecessary to pass upon the various motions heretofore filed in this court, but, for the reasons given, the judgment appealed from is reversed, and the cause remanded, with directions to overrule the demurrer, and for proceedings consistent herewith.

ASHER LUMBER CO. et al. v. CLEMMONS.1

(Court of Appeals of Kentucky. Dec. 18, 1901.) QUIETING TITLE-ADVERSE POSSESSION.

As against a title derived from the commonwealth, plaintiff was entitled to judgment quieting his title to only so much of the land in dispute as had been inclosed by him for seven years prior to the institution of the action.

Appeal from circuit court, Knott county. "Not to be officially reported."

Action by Lewis Clemmons against the Asher Lumber Company and others to quiet title to land. Judgment for plaintiff, and defendants appeal. Reversed.

Baker & Baker and J. L. Scott, for appellants. John E. Patrick, for appellee.

GUFFY, J. This action was instituted in the Knott circuit court by the plaintiff, Clemmons, against the Asher Lumber Company. The plaintiff claimed to be the owner of a lot of land, and claimed to have been in the actual possession thereof for more than 15 years last past. It is further alleged that defendant had branded the poplar trees on said land, and is setting up some claim to said trees, and giving it out that it is the owner thereof, and thereby creating a cloud on plaintiff's title to said land and trees; and the trees are now standing and growing on said land. The kind of brand is set out. It is further alleged that defendant's claim is worthless, and is a fraud on plaintiff's title, and that his title is superior to de fendant's, and that by the entering upon said land and branding said trees plaintiff has been damaged in the sum of $100; wherefore he prays judgment quieting his title to said land and trees, and that defendant be required to remove the brand from the timber, and that his title to said timber and land be adjudged superior to defendant's and all others, and for his costs and proper relief. The answer may be treated as a denial of all the averments of the

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

fendant also set up title to the trees in controversy, showing specifically how it became the owner of the trees, and filed a deed from William Everidge and others thereto. All the material averments of the answer were denied by reply. The Everidges were made parties to the suit, and asserted a title to the land by virtue of a patent granted by the commonwealth to John Walker, bearing date April 6, 1850, upon a plat and survey of a still earlier date. Upon final hearing of the issue between plaintiff and the Asher Lumber Company, the court adjudged that plaintiff is the owner of the land described in the petition, and that the defendants are not the owners of same, and that the plaintiff be and is quieted in the possession of same, and all other questions are reserved for future adjudication, and this cause is continued on other such questions. From this judgment appellants Asher Lumber Company, William Messer, and William Everidge prosecute this appeal.

Without attempting to recite in detail the testimony introduced, it may be observed that the appellants claim under the 500acre patent to John Walker. The appellee has sought to defeat that claim upon several grounds: First, he says that Walker, and those claiming under him, by petition to the legislature secured an act of the legislature changing the boundary of his patent so as not to cover the land in contest; second, that there was a suit between Everidge, etc., and John Begley, in which the land was adjudged to Begley; third, that plaintiff, and those under whom he claims, have been in the actual adverse possession of the land for more than 15 years before the institution of the suit. All of these contentions were denied by appellants. There is absolutely no proof tending to sustain the first and second contentions. As to the third contention, the proof is insufficient to prevail against a clear, unmistakable title derived from the commonwealth. It is, however, suggested that Everidge, etc., have not shown the complete title from the patentee, John Walker, but they undoubtedly have derived some title, assuming that John Walker had good title; and, if it be true that the Walker title is good, it follows that the

judgment is erroneous, without regard to the title of Everidge, etc. We are of opinion that the plaintiff is entitled to hold only so much of the land in dispute as has been inclosed by fencing for seven years prior to the institution of this action, and to that extent, when ascertained, it will be proper to render a judgment quieting his title thereto. But it is manifest that he is not entitled to a judgment quieting his title to the entire tract of timber or land adjudged to him. We do not mean to decide that the appellants have perfect title to the land in question, but only hold that plaintiff is not entitled to a judgment quieting his title and

adjudging to him the land and timber in controversy.

Judgment is reversed, and cause remanded for proceedings consistent herewith.

WATSON V. CHILDERS et al.1 (Court of Appeals of Kentucky. Jan. 8, 1902.) JUDICIAL SALES-VENDOR AND PURCHASERAGREEMENT TRANSFERRING LIEN FROM ONE TRACT TO ANOTHER-RIGHTS OF MORTGAGEE.

1. A mortgagee has no ground to complain of a sale of the mortgaged land made by a commissioner to satisfy a prior vendor's lien, where he was present at the sale, and made no bid in excess of the amount of the prior lien.

2. An agreement between vendor and purchaser transferring a lien from one tract of land to another was void as to one who held a mortgage on the tract to which the lien was transferred.

Appeal from circuit court, Menefee county. "Not to be officially reported."

Action by J. W. Childers against W. R. Stacy to enforce a vendor's lien, consolidated with an action by Henry Watson against J. W. Childers and W. R. Stacy to enforce a lien and to vacate an agreement and a judgment. Judgment refusing to set aside agreement and judgment, and Henry Watson appeals. Reversed.

Henry Watson, in pro. per. A. T. Wood and J. H. Williams, for appellees.

BURNAM, J. On the 24th day of October, 1893, the appellee John W. Childers and wife sold and conveyed by general warranty deed to W. R. Stacy two tracts of land on the waters of Long Branch creek, in Menefee county. In the deed the first tract is described as lying on the south side of the state road, and containing 70 acres, more or less. The second tract is described as lying on the north side of the state road. The calls in the deed describing both tracts of land are with fences and natural objects, there being no calls by courses and distances. The consideration expressed in the deed is $700, paid in cash, and $700 due 12 months after date, and to secure the payment of which a lien is retained upon the property conveyed. And on the 21st day of June, 1893, Arch Childers and wife sold and conveyed by general warranty deed to W. R. Stacy a tract of land adjoining the land purchased from John W. Childers for $500, $250 of which was paid in cash, and the residue of the purchase money was evidenced by a note for $250, due 12 months after date. The description of this land is also by natural objects, with the exception of one call. In November, 1894, Arch Childers transferred and assigned the $250 note executed to him by Stacy to J. W. Childers. After his purchase, W. R. Stacy took possession of both tracts of land, and on the 22d day of March, 1895, he gave three notes to appellant, Watson, for $200 each, and to secure their payment ex

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

ecuted a mortgage on each of the tracts of land theretofore purchased by him from John W. and Arch Childers. Watson's mortgage was duly recorded in the county court clerk's office. On the 14th day of November following, J. W. Childers instituted a suit in equity in the Menefee circuit court to enforce his liens on the lands sold by him to Stacy, and also upon the land sold by Arch Childers to Stacy. Watson was not made a party to this proceeding. Stacy, in his answer, alleged that he was entitled to a credit of $95 upon the $700 note, and also claimed that Childers at the date of the sale had represented that the two tracts of land covered by his deed contained about 135 acres, when in fact they only contained about 85 acres; and alleged that the credit and the deficit in the land was sufficient to extinguish the balance due upon the $700 note. He also alleged that he had paid $21.25 on the $250 note executed to Arch Childers, which had been subsequently assigned by him to J. W. Childers, and that Arch Childers had represented to him at the time of the sale that the tract of land contained 85 acres, when as a matter of fact it only contained 60 acres, leaving a deficit of at least 25 acres, worth at least $150, and that the $250 note should be credited with this sum. All these averments in Stacy's answer were denied by reply, and testimony was taken, and the case submitted for judg ment. After its submission, and before judgment was entered, it was agreed between them that Stacy and wife should convey to Childers all the land embraced in the deed from Arch Childers to Stacy, and that the plaintiff J. W. Childers should take judgment against Stacy for $450, with interest, with lien adjudged against the land conveyed by John W. Childers to him, the judgment not to be enforced for 18 months. In March, 1898, the appellant, Henry Watson, instituted a suit for the enforcement of his mortgage lien, making the defendant Childers a party, in which he sought to vacate the agreement between Childers and Stacy and the judgment rendered pursuant thereto, claiming that the notes of Childers should be credited with the same sums which had been

pleaded by Stacy in the suit instituted against him by Childers. This suit was consolidated with the suit of Childers against Stacy, whereupon John W. Childers filed an answer controverting all the affirmative averments of the petition in so far as the credits were claimed on his debt. No additional proof was taken, and by a judgment in the consolidated suits the lands conveyed by J. W. Childers to Stacy were directed to be sold, and to satisfy, first, the judgment of J. W. Childers for $450, with interest and costs, and, second, the $600, with interest and costs due the appellant, Watson. At this sale Childers became the purchaser of both tracts of land covered by his deed to Stacy for the amount of his judgment. Watson appeals, and complains that the court erred in refus

The testimony which was taken between Childers and Stacy fails to support the contention of Stacy either as to the credits claimed by him or the alleged representations as to the amount of land contained in the tracts sold to him by John W. Childers. Besides, appellant had an opportunity to take additional evidence before the sale of these tracts of land if he had so desired, which he failed to do. He was present at the sale made by the commissioner, and made no bid in excess of Childers' debt, and, in so far as this tract of land is concerned, we are of the opinion that he had no ground of complaint. But the tract of land purchased by Stacy from Arch Childers was only incumbered by a lien for $250 at the time Stacy mortgaged this tract of land to the appellant, Watson, and he was entitled to have this tract of land also sold to satisfy any balance that might be due on the $250 lien note for purchase money assigned by Arch Childers to J. W. Childers, and have the overplus applied to his debt. J. W. Childers and W. R. Stacy could not, after the execution of the mortgage to appellant by Stacy, transfer the lien held by J. W. Childers against the land sold by him to Stacy to the land sold by Arch Childers to Stacy. The sales were separate, and liens for unpaid purchase money were also distinct.

For the reasons indicated, the judgment is reversed, and the cause remanded for proceedings consistent with this opinion.

HOMESTEAD-RENTED HOUSE-EXEMPT PREMISES-AGGREGATE VALUE.

As it is not the location of property, but the use of it, which determines whether it is a part of the homestead, a house rented out by the debtor is not exempt, though erected on the same lot on which the debtor's residence is located, and though the value of both houses together does not exceed $1,000.

Appeal from circuit court, Robertson county.

"Not to be officially reported."

Action by Penn Bros. against J. S. Garrison and S. C. Garrison to subject real estate to the payment of a debt. Judgment for plaintiffs, and defendants appeal. Affirmed.

S. Holmes and W. J. Osborne, for appellants. Kennedy & Williamson, for appellees.

HOBSON, J. On January 3, 1893, a deed was made to J. S. Garrison and his wife, S. C. Garrison, for a house and lot in Mt. Olivet, Ky., in consideration of $625. The lot contained about three-fourths of an acre of ground. The house stood on one side of the

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

new house, which cost him about $800, on the other side of the lot; and as soon as this house was completed he moved into it with his family, and has since resided there. He fenced off the old house so as to include about it a small lot, and has since rented out this house and lot. Appellees, Penn Bros., furnished him material for the building of the new house. He did not pay them, but within 60 days after the completion of the house they went on a note for him for the amount, and the money raised on the note was received by him. He failed to pay the note, and they, having paid it, brought this suit to subject the property to the debt. The court below subjected to the debt the half interest of J. S. Garrison in the house and lot which was fenced off to itself and rented out. The judgment is based on the finding of the court that Garrison and family have since 1893 occupied the other house on the lot, renting out this house and lot to tenants; the lots being separated by a fence, and not used in any way as one property. From this judgment the appeal before us is prosecuted.

If the lot that is rented out was situated a mile from the other lot, it would hardly be supposed that it was exempt from debt as a homestead. But it is not the location of the property, but the use of it, which determines whether it is a part of the homestead. statute exempts "so much land including the dwelling house and appurtenances

The

as shall not exceed in value one thousand dollars." Ky. St. § 1702. The purpose of the exemption is to secure a home for the family. It does not include land on which the family does not reside, or which is not used in any way in connection with the home. Thus, in Brown v. Martin, 4 Bush, 47, this court said: "According to our interpretation of the statute, the right of exemption depends upon the present and actual purpose and intention of the debtor to use and enjoy the property sought to be exempted as a home for himself and family. The right does not exist where the residence of the debtor and his family is permanently located elsewhere." This is the general conclusion of the authorities. "A homestead necessarily includes the idea of a residence. It must be the owner's place of residence, the place where he lives." Thomp. Homest. & Ex. § 100. Thus it has been said that the question whether the property is a homestead does not depend on its situation, external appearance, or internal arrangement, but upon the fact that it is really and truly occupied as a home for the family. Thomp. Homest. & Ex. § 100. In section 102, after referring to a number of cases, he adds: "We are thus conducted to use as a test by which to determine whether particular premises are or are not the homestead of the owner. It may be stated broadly that use is one of the concurring conditions of homestead. Unless the premises are used as