Imágenes de páginas

fused to resign his administratorship with the fraudulent intent to defeat appellants' claim and obstruct their suit, for which reasons he was made a party to the action, and joined with appellee the Sebree Coal & Mining Company as a defendant. The appellees filed a special demurrer to the petition upon the ground of alleged misjoinder of parties, want of capacity in the appellants to sue, and want of jurisdiction of the parties by the court. The demurrer was sustained by the lower court. Appellants failing to plead further, the petition was dismissed, and of that judgment they now complain.

The demurrer was sustained upon the ground that the action could not be maintained by the widow and children of the decedent, but should have been brought, if at all, by the administrator alone. It is insisted for appellees that the right to recover damages for the death of a person resulting from the negligence of another is confined by section 241, Const., section 6, Ky. St. 1903, and section 21, Civ. Code, to the personal representative of the decedent, and that by the provisions of section 3882, Ky. St. 1903, he alone may “compromise and settle any claim or demand for damages growing out of injury to or the death of the decedent," and that inasmuch as appellants have elected to sue under the statute that is, for the death of decedentinstead of at the common law, to recover for his sufferings, they are attempting to assert a demand for which only the administrator may sue. Undoubtedly the right of action in such a case as this is in the personal representative, but the statute which gives him the right of action as clearly makes the widow and children of the decedent the beneficiaries, for they take the damages recovered. The personal property of an intestate does not pass to or vest in the heir at law, but the personal representative appointed as provided by law. If suit be necessary for the recovery of a demand due the estate of an intestate, it must be brought by the personal representative; but if he fail to sue the debtor, and refuse on demand of the heir at law to do so, the latter may bring the action by making the administrator a defendant. The same is true as to guardian and ward, trustee and cestui que trust. This doctrine is supported by numerous authorities. Brunk v. Means, 11 B. Mon. 216; McChord v. Fisher, 13 B. Mon. 194; Roberts' Adm'r v. Eales, 10 Ky. Law Rep. 360; Loyd v. Loyd, 46 S. W. 485, 20 Ky. Law Rep. 347. The same rule obtains where an administrator or guardian refuses to defend an action against the estate of the intestate or ward, in which event the heir or ward may interpose and be permitted by the court to defend. Indeed, this rule is recog. nized by the Civil Code, section 24 of which provides : "But if consent of one who should be joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition."

No reason is perceived for not applying the foregoing wise and salutary rule to the case at bar. Indeed, a greater reason exists for doing so than in any of the cases cited, for here the averment is made, not only that the administrator has refused to comply with the demand made upon him by the widow and children of the intestate to sue appellee Sebree Coal & Mining Company, but that he has entered into a fraudulent collusion with it to prevent the bringing of the action, that it may escape liability for the death of the intestate alleged to have been caused by its negligence, and, further, that the fraudulent collusion also went to the extent of procuring the appointment of the administrator for the purpose of preventing the bringing of the action. The demurrer admits the truth of the averments of fraud and collusion contained in the petition, and also the alleged facts manifesting the appellants' cause of action. The reason of the rule allowing the appellants to maintain this action by making the administrator a defendant is as manifest as would be the injustice of refusing them the right to do so. A wrongdoer should not be permitted by collusion and fraud to procure the appointment of an administrator and control him, to defeat an action and recovery for the death of his intestate caused by the negligence of such wrongdoer, as here charged, and admitted by the demurrer.

Judgment reversed, and cause remanded, with directions to the lower court to overrule the demurrer to the petition, and for further proceedings consistent with this opinion.

FOX v. COMMERCIAL PRESS CO. (Court of Appeals of Kentucky. Sept. 26,


A third person represented to plaintiff that he had a contract with a newspaper company to sell all copies of the paper within a certain terri. tory. Plaintiff relied on the representations and paid the third person a specified sum for his rights. Thereafter the company recognized plaintiff as the owner of the third person's rights. Held insufficient to estop the company from asserting that the third person had no contractual rights; it not being shown that it knew the terms of the contract between plaintiff and the person.

[Ed. Note.--For cases in point, see vol. 19, Cent. Dig. Estoppel, $$ 128--132, 242--246.) 2. CONTRACTS-TERMINATION.

A contract whereby a company agrees to give a person the exclusive right to sell its newspaper in a territory described so long as the company should publish it terminates on the company going out of business.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Third Division.

"Not to be officially reported.”

Action by Joseph Fox against the Commercial Press Company. From judgment dismissing the petition, plaintiff appeals. Affirmed.

Wirgman & Underwood and Baird & Rich

ardson, for appellant. Bodley, Baskin & tions were made to plaintiff by said Herrman, Flexner and C. R. Robinson, for appellee. and at the time plaintiff was accepted in the

place and stead of said Herrman by said HOBSON, C. J. Appellant complains of Louisville Press Company, and for a long the judgment of the circuit court dismissing

time subsequent thereto, said Louisville Press on demurrer bis petition seeking the recovery

Company was a corporation organized under of $300 damages of appellee. The material

and existing by virtue of the laws of the state part of his petition is as follows: "That

of Kentucky, with power to make contracts about eight years ago, one Charles Herrman

and to sue and be sued in its corporate name. represented to plaintiff that he was the sole owner of a certain exclusive right and priv. That plaintif continually exercised and held ilege to sell and deliver any and all copies

said right, and continuosly, faithfully, and of the newspaper published by the Louisville promptly delivered said newspapers in said Press Company within the following bounded

boundaries, and promptly paid said Louisterritory in the city of Louisville, towit:

ville Press Company for said newspapers un[Here follows boundary.] That said Herr

til the

day of , 1902, at which man further represented to plaintiff that he

date the defendant, Commercial Press Com[said Herrman) was under a corresponding pany, purchased from said Louisville Press liability to faithfully and promptly deliver Company the business and good will of said said newspapers in said boundaries, and that Louisville Press Company. That at said said Louisville Press Company was bound to time plaintiff's right was very valuable to sell to said Herrman, from time to time, as him, and the obligation of plaintiff to faithmany copies of said newspaper as might be fully and promptly deliver said newspapers necessary to supply subscribers in said bound- in said boundaries and to promptly pay said aries, so long as said Louisville Press Com- Louisville Press Company for said news. pany should publish such newspapers, and so papers was a valuable asset of said Louislong as he [said Herrman) should faithfully ville Press Company, and was so considered and promptly deliver said newspapers in said by the defendant, Commercial Press Comboundaries and promptly pay said Louisville pany, in making said purchase. That upon Press Company for said newspapers. That said purchase being, made the defendant said Herrman further represented to plain

continued the publication of said newspapers, tiff that, should be (said Herrman) fail to but gradually changed the name of said pubfaithfully and promptly deliver said news- lication. That defendant recognized the papers in said boundaries, or fail to promptplaintiff's exclusive right to sell and deliver ly pay said Louisville Press Company for its newspapers in said boundaries, and that said newspapers, then said Louisville Press defendant also exercised its right to require Company should have the right to require plaintiff to deliver said newspapers in said said Herrman to relinquish said right to it boundaries promptly and faithfully and to upon paying him the reasonable value there- pay defendant promptly for said newspapers; of, and after having notified him that he was and plaintiff says that he did promptly and not delivering said papers promptly and faithfully deliver in said boundaries the faithfully in said boundaries, or that he was newspapers published by the defendant, and not promptly paying said Louisville Press did promptly pay defendant for same, until Company for said papers, and after having February 14, 1903. That a short time before given him a reasonable time within which to this date, and after defendant had succeeded sell or dispose of said right himself to a com- in establishing itself in the good will sold by petent person who would perform all of said the aforesaid Louisville: Press Company, deobligations. That said Herrman further rep- fendant demanded that plaintif sell to it resented to plaintiff that he [said Herrman) plaintiff's said right for the sum of $75. That had been authorized by said Louisville Press plaintiff refused to accede to said demands, Company to sell and dispose of said right, and thereupon, on February 14, 1903, defendwith all of its emoluments and obligations, ant did, without any fault on the part of the to any responsible and reliable person, and plaintiff, wrongfully refuse thereafter to sell said Herrman offered to sell said right to the plaintiff any of its newspapers to be sold plaintiff for the sum of $300. That plaintiff by plaintiff in the aforesaid boundaries, and relied on the representations thus made by informed plaintiff that it would no longer said Herrman, and paid said Herrman $300 recognize plaintiff's said exclusive right and for said right. The said Louisville Press privilege to sell and deliver said newspapers Company thereupon accepted the plaintiff in in said boundaries, and converted said right the place and stead of said Herrman in the and privilege to its own use, thus depriving exercise and ownership of said right, and rec- plaintiff thereof. That said right was reaognized and admitted the ownership of plain- sonably worth the sum of $300 at said time. tiff of such right as represented by said Herr- Wherefore plaintiff prays judgment against man. That, had not said Louisville Press the defendant for $300, with interest thereon Company thus accepted him in the place and at the rate of 6 per cent. per annum from the stead of said Herrman, he would have de- 14th day of February, 1903, for his costs manded and recovered from said Herrman herein expended, and for all other proper said $300. That at the time said representa- relief."

It will be observed that it is simply char- by either party at will. A contract to furged in the petition that Herrman represented nish a certain man with newspapers to sell to the plaintiff that he (Herrman) had a cer- as long as the company published the newstain contract with the Louisville Press Com. paper must be presumed to have been intendpany. It is nowhere averred that Herrman ed as simply the company's obligation, and in fact had the contract with that company to cease when the company went out of busiwhich is set up in the petition. All that is ness. stated in the petition may be true, and Herr- Judgment affirmed. man may have had no contract at all with the Louisville Press Company. It is not averred that the plaintiff paid Herrman $300 upon the faith of any representations made to BOARD OF TRUSTEES OF FORDSVILLE bim by the Louisville Press Company, or

et al. v. POSTEL et al. that plaintiff was in any manner induced by (Court of Appeals of Kentucky. Sept. 26, the Louisville Press Company to make the

1905.) contract with Herrman and pay him $300. 1. TRUSTS-FOLLOWING TRUST FUNDS-SALE It is simply averred that the plaintiff relied OF VOID BONDS-RIGHT OF BONDHOLDERS. upon the representations made by Herrman

The holders of void bonds issued by a school

district in violation of Const. § 157, may obtain and paid Herrman $300 for his rights, and

relief, under the doctrine that equity follows thereupon the Louisville Press Company ac- a fund, on showing that the proceeds of the cepted plaintiff in place of Herrman and rec- bonds were used exclusively in procuring a ognized and admitted the ownership of

lot, schoolhouse thereon, and school furniture. plaintiff of such rights as represented by


Ky. St. 1903, § 2353, providing that, when Herrman, and but for this he would have

a deed shall be made to one person and the condemanded and recovered from Herrman his sideration shall be paid by another, no trust $300. This is not sufficient to create an es- shall result, but this shall not apply to a case toppel, for the plaintiff had already parted

where a grantee takes a deed in his name with

out the consent of the person paying the conwith his money, and it is not even shown

sideration, does not affect the equitable doctrine that the Press Company, in accepting plaintiff, that equity follows a fund and compels a restiknew what representations Herrman bad

tution, as long as it can be identified. made, or knew that plaintiff was relying on


Where bonds issued by a school district its action in any way when it admitted that

are void, and the proceeds are used in the be owned the rights of Herrman. There is erection of a schoolhouse, that the judgment in nothing in the petition to show that the favor of the holders of the bonds in a suit to Louisville Press Company authorized Herr

follow the proceeds thereof provides for a conman to make the contract with plaintiff, .or

veyance to them of the property, instead of a

sale thereof, is not prejudicial, where the propthat he was its agent in making it. No prin- erty is not of more value than the fund deciple of agency therefore applies, and the rived from the bonds. estoppel fails, because it is not shown that

4. PARTIES—REAL PARTY IN INTEREST. the Press Company knew what was the con

The holders of bonds illegally issued by a

school district stand in the place of the original tract between the plaintiff and Herrman, or purchasers of the bonds, and may maintain a that it should have known that its conduct suit in their name as the real party in inwas misleading the plaintiff in any way. An

terest to recover from the proceeds of the prop

erty purchased by the proceeds of the sale of agent's authority cannot be shown by bis

the bonds the amount due them. own representations. The plaintiff enjoyed his contract for eight

Appeal from Circuit Court, Ohio County. years. The contract was represented by

“To be officially reported." Herrman to be that he was to sell the paper

Action by John Philip Postel and others as long as the Louisville Press Company

against the board of trustees of Fordsville should publish it. This the plaintiff did.

and others. From a judgment for plaintiffs, The Louisville Press Company sold out to

defendants appeal. Affirmed. the appellee and no longer publishes the Glenn & Ringo, for appellants. E. B. Andpaper. We do not think that the contract, erson, Geo. W. Jolly, and G. B. Likens, for fairly construed, can mean that appellant appellees. was bound to sell the newspaper in the district named if it was published by another,

HOBSON, C. J. In the year 1897 the or that he would have been liable to an ac- trustees of the Fordsville graded common tion by the Commercial Press Company if he

school district issued bonds to the amount of had been sued by it for refusing to sell its $4,000 on behalf of the district for the purpapers after it bought out the old company. pose of providing it with a lot, schoolhouse, It was a personal contract between the plain- and suitable furniture. The bonds were sold, tiff and the old company. The purchasing and the trustees used the proceeds of the sale corporation did not assume the obligations in buying a lot, building a schoolhouse, and of the old company simply by buying its furnishing it. But no vote of the legal voters paper, plant, and good will. Such a con- of the district was taken before the issual of tract as the plaintiff alleges did not run with the bonds, and they were adjudged void unthe property. The rule is that contracts in- der section 157 of the state Constitution : definite as to duration may be terminated "No county, city, town, taxing district, or other municipality shall be authorized or paid is distinctly traced into the schoolhouse, permitted to become indebted in any manner the lot, and furniture, and no other money or for any purpose, to an amount exceeding, went into them. This property can be rein any year, the income and revenue provided claimed, without taking any other property for such year, without the assent of two- with it or injuring any other person or interthirds of the voters thereof, voting at an fering with his rights. In Chapman v. Doug. election to be held for that purpose ; and any las County, 107 U. S. 348, 2 Sup. Ct. 62, 27 indebtedness contracted in violation of this L. Ed. 378, land was conveyed to a county for section shall be void. Nor shall such con- a poorhouse. The county had no authority tract be enforceable by the person with whom under the law to buy the land. It was held made; nor shall such municipality ever be that the county must give up the land to the authorized to assume the same." The hold

vendor, when it failed to comply with its ers of the bonds, being in part the original contract; in other words, that it could not purchasers and in part persons who had keep the land which it had received under bought the bonds from them, instituted this the illegal contract. In Geer v. School Disaction in equity asking that the lot, house trict, 111 Fed. 682, 49 C. C. A. 539, it was and furniture which was purchased with the held by the Circuit Court of pea of the proceeds of the bonds be transferred to them; United States of the Eighth Circuit, that, and, the court having adjudged them the re- where a school district issued bonds without lief sought, the school district appeals.

authority and used the proceeds to pay a Appellant relies on Grady v. Pruit (Ky.) 63 debt which it owed, the bondholders were enS. W., 283, and Grady v. Landram, Id. 284. titled to be subrogated to the rights of the In these cases the contractor who had built creditors whose debts their money had paid; the schoolhouse, and to whom a balance of the bonds being void. The same principle $604 was due, sought in the first case to hold was followed by the same court in Kearny the trustees personally liable, and in the sec- County v. Irvine, 126 Fed. 689, 61 C. C. A. ond to remove the house or such part of it .607, where a county issued bonds and used as would be of value $604, or place the house the proceeds to pay off the outstanding in the hands of the receiver. The district county warrants which it was authorized had paid him $2,173 on the contract. It was to issue. The bonds being void under a conheld in the first case that the trustees were stitutional provision similar to ours, it was not personally liable, and in the second that, held that the bondholders were entitled the building being a single structure, a part by subrogation to the rights of the holders of it could not be removed without injury of the county warrants which had been to the remainder, and, the district having paid off with the proceeds of the bonds. paid $2,173 on the building, the chancellor No liability, direct or indirect, may be imcould not destroy $2,173 worth of property posed upon the school district under the belonging to the district to give the contractor bonds in question. It is not liable on the $604. It was also held in these cases that the bonds, nor can it be made liable by indireccontract, being void under the Constitution, tion in any way. But, if we ignore the bond could not be enforced directly or indirectly, transaction altogether, what have we? The and therefore that the property could not be district received $4,000 from the bondholders. placed in the hands of a receiver. To the The bonds being void, the district should have same effect is the opinion of the Supreme returned the money to the bondholders. If Court of the United States in Litchfield v. the bondholders had learned of the invalidity Ballou, 114 U. S. 190, 5 Sup. Ct. 820, 29 L. of the bonds while the district still had the Ed. 132. In that case the city of Litchfield $4,000 in its treasury which they had paid to had issued bonds which were void under the it, manifestly a court of equity would have Constitution and with a part of the proceeds required the district to pay back their money of the bonds and other funds had constructed to them. It was money obtained by a mua system of waterworks for the city. The tual mistake. While under the Constitution land on which the works were constructed no liability would attach to the district for was bought before the bonds were issued. The the money if it had lost it, or if it had spent streets through which the pipes were laid it and the fund could not be identified and were public property then owned by the city, followed, where it may be followed and idenand much of the expense of the construction of tified, there is no more reason why property the waterworks was paid by taxation or other which represents the fund should not be reresources of the city. The plaintiffs were turned than there would be for not returning unable to identify the property which repre- the money, if it had been placed in a bag sented the money they had paid, so that it and the district had the bag locked up in its could be reclaimed and delivered without safe. The purpose of the Constitution is taking other property or injuring other per- not to enrich municipalities at the expense of sons or interfering with their rights. The bill innocent people who deal with them, and was dismissed.

when they repudiate their bonds they must The case before us is distinguishable from act honestly. A loss must not be placed upon these cases. The money which the plaintiff's the district; but, when justice may be done

without inflicting any loss upon the district,

CAMPBELL et al. V. ASHER. equity will lay hold of the conscience of the (Court of Appeals of Kentucky. Sept. 26, parties and make them do what is just and

1905.) right. To illustrate: If, while the common- 1. CONVEYANCES HUSBAND AND WIFE law disability of coverture was in force, a


A deed executed to a husband and wife married woman had borrowed $400 and given subsequent to the statute abolishing resulting her note for it, and, when sued on the note, trusts gives to each an undivided half interest had pleaded her coverture, if she still had the

in the land as tenants in common, without

reference to what part of the consideration each $100 in bank, equity would have required her of them paid, and without reference to the unto surrender the money, or if she had invest- derstanding of the husband accepting the deed ; ed the $400 in a horse, and the fund could be

and their children take an undivided half as

heirs of the wife on her death, and share with clearly identified, equity would compel her to the children of the husband by a second wife on surrender the horse. In other words, as has his death in the other half. been held, coverture is a shield, not a sword, 2. HOMESTEAD_PARTITION DETERMINATION

OF INTEREST OF INFANTS. and a married woman is never allowed to use

In partition, the fee-simple interest of inher coverture to enrich herself at the expense fants should be laid off with respect to their of others. Chilton v. Braiden, 2 Black, 458, rights, given by Ky. St. 1903, § 1707, to occupy 17 L. Ed. 304. The same rule has been ap

the homestead of their deceased father during

their minority, and if the homestead is less than plied in the case of infants. Ison v. Cornett,

their fee-simple interest the latter should be 75 S. W. 204, 25 Ky. Law Rep. 366, and cases made to include the former, and if the homecited.

stead is of greater value the fee-simple inSection 2353, Ky. St. 1903, is relied on for

terest should be included in the homestead in

terest. appellants: “When a deed shall be made to one person, and the consideration shall be

Appeal from Circuit Court, Bell County. paid by another, no use or trust shall result

"Not to be oflicially reported.". in favor of the latter, but this shall not ex

Action by T. J. Asher against Milburn tend to any case in which the grantee shall

Campbell and others. From a judgment for have taken a deed in his own name without

plaintiff, defendants appeal. Reversed. the consent of the person paying the consid- Logan & Jeffries, for appellant Milburn eration, or where the grantee, in violation Campbell. Calvin Hurst, for appellants Ade of some trust, shall have purchased the lands line and Clementine Campbell. deeded with the effects of another person.” This statute was not intended to affect the O’REAR, J. Prior to September 3, 1857, equitable doctrine that equity would follow a Mount Pursifull, who owned a considerable fund and compel restitution as long as it quantity of land on the Cumberland river could be identified and followed. It was not in what was then Harlan county, this state, the aim of the statute to enable one person placed his son, H. C. Pursifull, in possession to keep the money of another, and thus be of a portion of it, under some kind of an enriched at his expense, simply because, in- arrangement not clearly disclosed by the recstead of holding the money in specie, he has

ord, whether it was a gift or a sale. Afterinvested it in a tract of land. The true own

ward Mount Pursifull also placed in posseser of a fund may in equity pursue it, where sion of an adjoining tract his son-in-law, it is clearly identified, equally whether it has Wilkerson Campbell, and the latter's wife, been transmuted by the holder into personal- Martha Campbell. Wilkerson Campbell havty or realty. Properly, under the statute, he ing bought the tract of H. C. Pursifull, Mount should not be adjudged the land, but a sale of Pursifull on September 8, 1857, made a conit to satisfy his claim. But in this case ap- veyance of both tracts by the following pellants are not prejudiced by the form of writing: the judgment, as the property is not of value “Know all men to these presents shall more than the fund. We see no reason why

come greeting that I Mount Pursifull and the right to follow a fund should not be ap- Mary his wife both of the county of Harlan plied against municipalities under the clause and state of Kentucky, have this day given of the Constitution above quoted, just as it

and bequeathed unto Wilkerson Campbell is against other persons obtaining the prop

and Martha his wife a certain tract or parerty of another under a void contract, where cel of land supposed to be 500 A., be the the fund may be identified and is separated same more or less, and lying and being in the from other property of the municipality. The

Co. and state aforesaid on the waters of present holders of the bonds stand by subro- Cumberland river and bounded as follows, gation in the shoes of the original purchasers

to wit: Beginning near the head of a from whom they bought, and under the Code branch about a quarter of a mile below said the action may be maintained in the name of Camp's house, thence down the branch to the real party in interest. The judgment Cumberland river, thence up the river with complained of does justice between the par- the meanders thereof so as to include the ties, and we see no reason for disturbing it.

island to the lower end of Mount Pursifull Judgment affirmed.

field below the mill, thence south to Mount

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