and my two daughters shall both die or mar- | necessary to give effect to the intention of the ry as aforesaid, be likewise sold by my ex- testator. Here there is merely a direction to ecutors, the proceeds divided equally in the the executor to sell at a particular time. same manner as the other property is direct- There is no devise to the executor to sell, but ed to be divided." By the death of the wife merely a direction that he shall sell at a cerof the testator and his daughter Manelia, tain time. The distinction drawn by some Rachel, who is unmarried, became entitled of the cases is that, where the devise is to to the use of the land above named for life, the executor to sell, he is invested with the in the event of her non-marriage. In her fee; but where he is merely directed to sell, own right, and by purchase from some of the the fee passes to the heir, subject to be diother children, she became the owner of vested by the exercise of the power. Ware's four-ninths of it in fee. Litigation arose Ex'rs v. Murph, 33 Amer. Dec. 97; Clendenbetween her and the appellee English, in ning v. Lanius, 56 Amer. Dec. 518. The which a homestead was allotted to her out of legal title of this property passed to the heirs, the property, consisting of the house, yard, subject to be divested by a sale by the execuand garden of the smaller tract. In settle-tor. Counsel urge that, if mistaken in this ment of this litigation she conveyed to him position, yet it was the intention of the testaall her interest in both tracts, save she re- tor that no sale should be made until the death tained for life the homestead. He brought or marriage of both of his daughters; and this action against the co-owners, seeking a that this intention should not be violated, sale of the property, save the homestead, and where some of the interested parties are not a division of the proceeds among the owners sui juris, and the executor, vested with the in proportion to their interests. The daugh-power of selling, is objecting to a sale. If ter, Rachel, answered, consenting to it. The under the provisions of the Code no sale appellant, T. N. Warfield, who is the execu- could be had in a case like this one, because tor under the will, and also the owner of of an inhibition in the will, yet there is none two-ninths of the property, alone resisted it in this instance. Manifestly the provisions upon several grounds, among which are: (1) of the will above cited relative to a sale were That under the will no sale can be had until for the benefit of the wife and daughters. Rachel's death; (2) no advantageous sale can He had their support in view. His children now be made, owing to the condition of the were ultimately to get the benefit of the propmarket; (3) a sale without including the erty, but not until the death of his wife, and homestead of Rachel would impair the value the marriage or death of his two daughters. of the entire property. Section 490 of the He therefore directed that no sale should be Civil Code provides: "A vested estate in made by his executor until that time should real property jointly owned by two or more arrive. The testator had in mind such a sale persons may be sold by order of a court of only. The inhibition referred only to the equity in an action brought by either of them, exercise of the power of sale given to the exthough the plaintiff or defendant be of un- ecutor. It cannot fairly be construed as resound mind or an infant, (1) if the share of lating to any sale which a court might dieach owner be worth less than one hundred rect. Conditions against alienation are dollars; (2) if the estate be in possession, and strictly construed. To be effective, they the property cannot be divided without materially impairing its value, or the value of the plaintiff's interest therein." The first subdivision of section 492, that " no sale shall be ordered if forbidden by the deed, will, or contract under which the property is held," does not apply to a sale under section 490, supra. Kean v. Tilford, 81 Ky. 600. The answer of the appellant admits that the land sought to be sold cannot be divided without a material impairment of its value. A demurrer was sustained to it, and judgment of sale rendered. It is now contended that by the will the title to the land in fee is in the executor, in trust to sell at a particular time, and that he was not given merely a naked power of disposition.

The course of descent of an estate to the heirs at law can only be interrupted by a devise to some other person; and the current of decisions, both English and American, is that a mere direction to an executor to sell lands for the purpose of distribution does not vest the title in him. To cut off the heir the estate must be devised expressly or by implication to another; and a devise to an executor should not be implied unless it be

must be clear and explicit. The testator had in mind the division of his estate by his executor among his devisees. He did not provide for the state of case which now exists. Circumstances have so changed that the interest of the owners requires a sale, and a case exists where the statute expressly authorizes it. The prime intention of the testator will be executed, rather than violated, by a sale; and, under such circumstances the donee of a mere naked power of sale, to be exercised for the benefit of the beneficiaries, cannot stand in the way. The law has expressly provided that joint owners of real estate may by means of a sale part company, and one not be at the mercy of the other, whenever it cannot be divided without materially impairing its value; and to permit an executor, clothed merely with a power of sale at a certain time for purposes of distribution, and in fact representing their interests, to defeat it, would be an absurdity which the law will not sanction. No facts are stated to support the opinion of the pleader that this is a bad time to sell, or that a sale without including the homestead of Rachel will impair the value of the entire

property. How or why it will do so is not | The ground of attack upon said conveyance stated. The situation of the several parts of is that the property was paid for with the the land tend to show that it is a mistaken money that belonged to S. D. Hinkle, and opinion; and in any event this mere expression of belief is not ground for a denial of the relief demanded, and which the lower court has seen proper to afford. Judgment affirmed.

the deed was made to his wife to defraud his creditors. Mr. Brown was made a defendant for the purpose of setting aside a mortgage that said Hinkle and wife executed to him apparently to secure the payment of $1,300, upon the ground that it was a sham and fraudulent arrangement. Neither Brown nor Mrs. Hinkle answered. So the appellee's allegations, so far as he is concerned, must be taken as true. But he swears that the $800 mentioned in the mortgage was a gift by him to Mrs. Hinkle, and was paid on the house and lot; also that he gave her the $500 mentioned in the mortgage, and that he took the mortgage from her, not as the evidence of indebtedness, but to show his other children, in case of his death, that he had advanced her these sums; also for the secondary purpose of preventing the property from being subjected to the appellee's debt. So this mortgage, so far as the present action is concerned, must be regarded as out of its way.

HINKLE et ux. v. GALE'S ADM'X. (Court of Appeals of Kentucky. May 25, 1889.) FRAUDULENT CONVEYANCES-PARTIES-APPEAL. 1. Certain land was conveyed to the wife of a judgment debtor, and part of the price was paid, and two notes for the balance secured by a lien retained on the land were given by the debtor and wife. The wife's father gave her $800, which were paid on the land, and also gave her $500 in addition and took a mortgage on the land for $1,300, but not as evidence of indebtedness. The judgment debtor paid one of the notes with his money. an action by the judgment creditor to set aside the deed, held that, whether the payment of the note on which the debtor was bound as surety for his wife was treated as entitling him to subrogation to the rights of the lienholder, or whether it was treated as a gift to the wife, it should be treated as an investment in the property for his benefit so far as his creditors were concerned, and that the It is conceded that the appellant S. D. property being indivisible, should be sold for the payment of the judgment, but subject to the $800 Hinkle did in 1884 pay off one of the purgiven to the wife, and the remaining purchase-chase-money notes. He contends that the

money note.

In

2. Where the statements of the petition as to the judgment, execution, and sheriff's return were full and not denied, and no rule requiring the judgment creditor to file such papers was asked, the judgment will not be reversed because they

were not filed.

3. It was sufficient as to the debtor and his wife, that the holder of the outstanding note for the price, was brought into court in time to get his

money.

not his, but was the price of a horse or mare money with which he paid off this note was sold by him that belonged to his infant son, about 14 years old. Without going into the proof in detail, it is sufficient to say that the proof shows almost conclusively that the money belonged to the appellant S. D. Hinkle. He was bound on the note as, in law, surety for his wife. A lien was retained on the

Appeal from circuit court, Nelson county; land as security for this note. Therefore, to W. E. RUSSELL, Judge.

treat him as entitled to be subrogated to the "Not to be officially reported." rights of the lien holder, or as having paid Suit by R. H. Gale's administratrix against the money on the land as a gift to his wife, S. D. Hinkle and others, to set aside as fraud-in either case, so far as creditors were conulent certain conveyances, and to subject the cerned, it should be treated as an investment property to the payment of plaintiff's judg- for his benefit in said property, and as liable ment against S. D. Hinkle. Berkily was the for his debts. Therefore, as Mr. Brown had assignee of the outstanding purchase-money paid $800 on the property as a gift to Mrs. note. Hinkle and wife appeal. Hinkle, and as a portion of the other purGeo. S. Fulton and J. W. Thomas, for ap-chase-money note remained unpaid, the chanpellants. J. S. Kelley and J. A. Fulton, for appellee.

BENNETT, J. The appellee, as administratrix of Dr. R. H. Gale, obtained a judgment for money against the appellant S. D. Hinkle, upon which execution was issued, and returned "No property found." Upon this return the appellee instituted this action in equity against the appellants, S. D. Hinkle and his wife, and Mr. Brown, for the purpose of setting aside a deed which conveyed à house and lot to Mrs. Hinkle in consideration of $1,900, $800 of which was paid down, and the remaining part evidenced by two notes of $550 each, executed by the appellants, S. D. Hinkle and wife to the vendor, Caldwell. A lien was retained on the property to secure the payment of these two notes.

cellor did right in subjecting the house and lot to the payment of said judgment, but subject to said two sums, and ordering a sale of the entire property-it being indivisiblefor the payment of said sums.

The appellant contends that the case ought to be reversed because copies of the judgment, execution, and return of the sheriff were not filed. The statements of the petition are full as to these matters, and are not denied; nor was there a rule asked, requiring the appellee to file these exhibits. It seems that, the truth of these matters having been admitted, no more could well be required. Berkily having no interest in the litigation, except to get his purchase money, and having been brought before the court in time for this, the appellants have no right to complain. The judgment is affirmed.

court upon oral testimony. It dismissed the petition, upon appellee's motion, at the close of the plaintiffs' evidence as to the appellee, with a judgment for his costs against the plaintiffs, and they have appealed.

1. In an action by heirs to obtain a sale of land alleged to belong to the estate of plaintiffs' intestate, The testimony showed that neither John it appeared that neither the intestate nor any of Simmes nor any of his heirs had ever been in his heirs had ever been in possession of the land; that it was uninclosed woodland until one defend the actual possession of the land; that it was ant, F., took possession of it about 14 years before, woodland, and uninclosed, until the appellee and that he had improved it, and occupied it as his F. Simmes took actual possession of it, about own ever since. It was also shown that in the di- 14 years before, by clearing portions of it, vision of other lands of plaintiffs' intestate, made not long after his death, there was no division of fencing the same, and building houses therethis land, though two of the heirs were given an on, and occupying it as his own ever since. interest in a certain number of acres of it by way No paper title in John Simmes was exhibited of equalizing them with the other heirs, but F. was not a party to the proceeding. The only evi- save a deed to him from one Mary Stawyer dence of a paper title in the intestate was a deed for the land, dated February 4, 1860, and to him, dated in 1860, and recorded in 1886. Intes-proven and lodged for record September 10, tate had died in 1864. Held, that the court proper: 1886. It was also shown that in the division ly dismissed the action as to F., as no sufficient title in intestate or his heirs was shown. of the other lands of John Simmes, made not long after his death, under a court proceeding, this land was treated as belonging to his estate by two of the heirs being given an interest of a certain number of acres in it by way of equalizing them with the other heirs; but the interests so given were not defined save as a certain number of acres. There was no division of it, and, moreover, the appellee was not a party to the proceeding. Manifestly this evidence authorized the court's conclusion. It failed to show either a possessory or a sufficient paper title in John Simmes or his heirs.

2. Where the petition averred that "John Simmes" was the owner of the land, an answer denying that "Jack Simmes" was the owner is not insufficient when it plainly shows that it refers to the person named in the petition.

is sufficient.

3. Though such action is based on statute (Civil Code Ky.490) allowing actions to sell property of joint owners to be brought by either of them, yet, where plaintiffs assert a right to the land, and aver that defendant, though he is in possession, has no right thereto, a plea of the general issue 4. Civil Code Ky. § 47, provides that a summons may be served "by any person appointed by the officer to whom it is directed, by an indorsement on the summons, and the affidavit of such person indorsed thereon shall be proof of the time and manner of service," and section 49 provides that the affidavit must state when and how the summons was served. Section 544 defines an "affidavit" as "a written declaration under oath." Held, that the return on a summons which showed the appointment of a special deputy to serve it, which stated service by delivery of a copy at a certain date, but was not signed by the deputy, was insufficient, though a certificate of an officer is attached that such return was sworn to before him by the special deputy.

Appeal from circuit court, Lincoln county; T. Z. MORROW, Judge.

"To be officially reported." W. H. Miller and D. R. Carpenter, for appellants. Hill & McRoberts, for appellees.

It is urged, however, that the answer was insufficient in two respects: First. The petition avers that "John" Simmes was the owner of the land; while the answer denies that "Jack" Simmes was the owner, or in possession of it at his death, or that it descended to his heirs. It is said that this is no denial of John Simmes' ownership. This is at best quite technical. The denials of the answer are, however, responsive in such a way to the averments of the petition as to plainly show that by the "Jack" Simmes named in the answer the pleader referred to the "John" Simmes of the petition. They identify the person. Evidently all the parHOLT, J. Some of the heirs of John ties so understood it, and no motion was Simmes, who died intestate July 4, 1864; made to make it more definite. Second. brought this action August 8, 1888, to obtain That in this character of an action it was not a sale of a tract of land, which they claim sufficient for the defendant to merely deny belonged to him at his death. Those of the title in the plaintiffs, but that it was necesheirs who did not join as plaintiffs were made sary for him to plead affirmatively, and set defendants, several of them being infants up a title in himself, either by adverse holdwithout any statutory guardian. The peti-ing, or of record, superior to that of the tion avers, in substance, that the decedent plaintiffs. True, the answer merely prewas the owner and in possession of the land at his death, and that it cannot be divided without materially impairing its value. The appellee F. Simmes, who is not an heir, was made a defendant; the only averment in the petition as to him being that he was residing upon the land, but had no interest in it. He filed an answer admitting the possession of it, and averring that he was the owner; also denying that "Jack" Simmes, Sr., was the owner, or in possession of, or had any title to it, at his death, or that it descended to his heirs. By agreement the issue was submitted to the

sents the general issue. It is conceded this would be sufficient in an action in the nature of ejectment. But it is contended that this action, based upon statute, (Civil Code, § 490,) is more in analogy to the ancient writ of right; that in this, as in that, the plaintiff must plead actual seisin in himself, or his ancestor; and the defendant cannot rest upon a denial of the plaintiff's right, or

by two or more may be sold by order of court in This section provides that realty jointly owned an action brought by either of them.

It results that the rights of these infants could not have been determined in this action. The judgment cannot affect them. There is, however, no appeal as to them. In fact there was no judgment against them. Their rights were not determined. It could not have been done, because they were not before the court. They were not joined as plaintiffs, but were named as defendants in the petition; and the judgment dismisses it at the cost of the plaintiffs. It is affirmed.

SAME v. BOREING et al.

SCHOOL-DISTRICTS-TAXATION.

avail himself of a better title in a third party | ten declaration under oath." He acts under as a defense, but must plead his own title af- no oath of office, and the statute has therefirmatively, thus enabling the court by a fore required his affidavit. In case it be comparison to determine the better right. false, he is subject to indictment. The law Our Civil Code has abolished forms of ac- requires particularity. Not only should it tion. Here the appellants asserted a right be regularly made, but its statements should to the land. They admitted the appellee was be plain, and positive. The rights of parin possession of it, but averred that he had ties are made to depend upon it. The preno right to it. Conceding that the action sumption in favor of the return of an officer was not in the nature of ejectment, certainly does not exist where the return is made by a the object of it, so far as he was concerned, private person as a special bailiff. Lloyd v. was a recovery of the land; and it is well set- McCauley, 14 B. Mon. 535. The due adtled in this state that where the plaintiff ministration of justice requires a substanseeks such relief the defendant, by denying tially strict compliance with the statute in his ownership, may compel him to recover such a case. upon a showing of his own right, or else suffer a defeat. The appellee was bound to make defense, if he intended to claim the land. A judgment for the sale of it would have divested him of both the title and the possession, as he had been made a party to the suit. In any action by the purchaser he would have been estopped from defending by the judgment in this one. The answer put in issue the claim to the land asserted in the petition, and was therefore sufficient. The plaintiffs were then bound to make good their claim, and in this they failed. After the guardian ad litem had filed his report for LOUISVILLE & N. R. Co. v. JOHNSON et al. the infants, and after the evidence had been heard, and the motion made by the appellee to dismiss the action, a motion was made by (Court of Appeals of Kentucky. May 23, 1889.) the plaintiffs and the guardian to quash the return upon the summons against the infant defendants, Mattie and Hannah Simmes, and set aside the submission of the cause upon the ground that it was premature. The motion was overruled. It was based upon the ground that the infants named were not before the court. A summons for them, in proper form, had been issued, directed to the sheriff of the county. It has this return upon it: "I appoint Robert Smith a special deputy to execute this summons on Mattie and Hannah Simmes. Oct. 1, 1888. T. D. NEWLAND, S. L. C. Executed on Mattie Simmes and Hannah Simmes by delivering to each of them a copy of this summons, this Oct. 4, 1888. Sworn to before me by Robert Smith, Oct. 6, 1888. GEO. B. COOPER, Clk., by W. L. MCCARTY, D. C." Section 47 of the Civil Code provides that a summons may be served "by any person appointed by the officer to whom it is directed, by an indorsement on the summons; and the affidavit of such person, indorsed thereon, shall be proof of the time and manner of service;" and section 49 says: "The return or affidavit mentioned in section 47 must state when and how the summons was served, and, if erroneous, may, with leave of the court, be amended according to the truth." Section 544 defines an affidavit thus: "An affidavit is a written declaration, under oath, made without notice to the adverse party." It will be noticed that the statement as to the execution of the summons is not signed by the special bailiff. It is in such form that it cannot be regarded as his affidavit or "writ

Act Leg. Ky. April 3, 1878, relative to the taxing of railroads, provides for a return to the state auditor for taxation of the length of the road “in each county, city, and incorporate town, " and that the rolling stock and real estate shall be taxed for the purposes of each county, city, town, or precinct Held, that a common-school district is not a “prein which any portion of any railroad is located. cinct," and, there being no provision for finding the length of the road within a school-district, there could be no valid assessment for school-district purposes.

Appeals from circuit court, Laurel county; H. C. EVERSOLE, Judge.

"Not to be officially reported."

C. C. Johnson and others, trustees of common-school district No. 28, in Laurel county, instituted an action against the Louisville & Northern Railroad Company, to recover certain school-taxes, alleged to be due for the year 1885. Judgment for plaintiffs, and defendant appealed to the superior court. Also Vincent Boreing and others, trustees of common-school district No. 1, in Laurel county, brought suit against the same defendant to recover taxes alleged to be due for the years 1884-1885. There was a judgment for plaintiffs, and defendant appealed to the superior court. These two cases were heard together in that court, and reversed on April 18, 1888. An appeal was granted to appellees to this court.

Alcorn & Craft, for appellants.

HOLT, J. The common-school law authorizes the imposition of a tax upon the taxable property of a school-district to build or repair its school-house. It, however, makes no pro

vision for an assessment of the property of either in that part of the act requiring the the district for school taxation, but evidently length of the road within designated territolooks to the assessment of the property of the rial divisions to be reported to the auditor, county made for taxation for governmental nor in that part of it subjecting the road to purposes as furnishing it. These appeals taxation for local purposes. The law having present the question whether in the years provided no means of ascertaining the length 1884 and 1885 the then existing law rendered of the railroad within a school-district, there railroads liable for such a tax upon the value could be no valid assessment. The report of of the road located within the district. The the board of equalization upon the return fragmentary taxation of railroads is within made by the officer of the railroad constitutes the control of the legislature; but, unless it under the law the assessment; and, while the has provided a rule for the taking of the steps mode of assessment is entirely within legisnecessary thereto, it cannot of course be en- lative control, yet, unless some mode of arforced, and the courts will not extend the riving at the value of the property is provided, power to tax beyond the language of the law no tax can of course be collected. The necescreating it. When the taxes now in question sity of such a step is apparent. Valuation were attempted to be levied the act of April taxes cannot be apportioned without it. It 3, 1878, relative to the taxation of railroads, is the first step towards taxation, and is the was in force, and, if they are collectible, it foundation of all which follow. Without it is by virtue of it. After providing in the they have no support, and are merely nullifirst section that the chief officer of the road, ties; and in making it the law authorizing it in making a return to the state auditor for must at least be substantially followed. In taxation, shall give its length within "the this instance the legislature had not provided state, and in each county, city, and incorpo- a mode of assessment. It is true the statute rate town," the fourth section provides: was so amended in 1886 as to embrace not "The same rate of taxation for state purposes only "each city, town, and county," but "part which is or may be in any year levied on other of a county or tax district of any kind;" but real estate in this commonwealth shall be, this additional legislation was provided suband is hereby, levied upon the value so found sequent to the years for which the taxes in by the said board [board of railroad commis- question are sought to be collected. The fact sioners] of the railroad, rolling stocks, and that the petitions aver the length of the road real estate of each company; and the same within the districts, and its value, does not rate of taxation for the purposes of each coun-avail, because the making of an assessment ty, city, town, or precinct in which any por- is not a judicial power, and cannot be made tion of any railroad is located, which is or may be in any year levied on other real estate therein shall be, and is hereby levied on the value of the real estate of said company therein, and of the number of miles of such road therein reckoned as of the value of the average value of each mile of such railroad with its rolling stock, as ascertained as aforesaid. And, immediately after the said board shall have completed its valuation each year, the auditor of public accounts shall notify the clerk of each county court of the amount so assessed for taxation in his county, and each railroad company of the amount of its assessment for taxation for state purposes, and for the purposes of such county, city, town, or precinct. And all existing laws in this state authoriz- 2. Under Code Crim. Proc. Tex. art. 735, providing the assessment and taxation of the prop-ing that a husband and wife may testify for each erty of railroad companies by counties, cities, or incorporated towns are hereby repealed; and no county, city, or incorporated town in this state shall hereafter assess, levy, or collect any taxes on the property of railroad companies of this state, except as provided by this act." A common-school district is a territorial division, distinct from "a precinct.' Our state constitution and laws distinguish them. The words, as used therein, are not convertible terms. The word "precinct," in this statute, cannot, therefore, be construed as meaning "district;" and it follows that the law then in force did not require the length of a railroad within a school-district to be reported, and thus ascertained for assessment. A common-school district is not named

by the court. The question whether the railroads, like other property holders, should contribute to the support of our common schools, or whether the legislature so intended, is not presented. If such purpose existed, it had failed at least up to 1886 to provide a mode of effectuating the intention. The judgment in each case is reversed, with directions to dismiss the petition in each case.

JOHNSON v. STATE.

(Court of Appeals of Texas. June 1, 1889.) MURDER-EVIDENCE.

deceased, a charge as to circumstantial evidence is unnecessary.

1. Where defendant confesses to having killed

other in criminal cases, but that they shall in no case testify against each other, unless for an offense by one against the other, where a wife has testified in a murder trial as to threats of deceased against her husband, the defendant, and as to the cannot be cross-examined by the state as to a gun latter's whereabouts on the day of the murder, she and pistol of defendant, as to which she had not testified in chief.

3. Where defendant proved that deceased was a dangerous and violent man, and the state introduced evidence to the contrary, an indictment against deceased for aggravated assault and battery on defendant is competent evidence.

Appeal from district court, Collin county; E. W. TERHUNE, Judge.

T. V. Johnson was convicted of murder, and appeals.

Jenkins & Pearson, for appellant. Asst. Atty. Gen. Davidson, for the State.