author: BIRD, Chief Justice.

text:
    COMMONWEALTH of Kentucky ex rel. John B. BRECKINRIDGE, Attorney General, Petitioner, v. William J. WISE, Commonwealth’s Attorney, 17th Judicial District, Respondent.
    Court of Appeals of Kentucky.
    Nov. 17, 1961.
    See also Ky., 351 S.W.2d 493.
    John B. Breckinridge, Atty. Gen., for petitioner.
    William J. Wise, Newport, for respondent.
   BIRD, Chief Justice.

The Commonwealth has asked this Court to exercise its original jurisdiction and prohibit William J. Wise, Commonwealth’s Attorney of the Seventeenth Judicial District, from performing certain duties relating to the Campbell County Grand Jury. It is charged that the Commonwealth’s Attorney, along with divers others, is a subject of the jury’s investigation and that he should therefore be prohibited from serving with that body during its investigation of matters involving him.

We had a similar factual situation in Northcutt v. Howard, 279 Ky. 219, 130 S.W.2d 70, 71, in which the Kenton County Circuit Court was asked to grant relief similar to that sought here. The case came to this Court on appeal and we wrote as follows:

“It is argued for appellant that the commonwealth attorney is absent in legal effect when he is either disqualified or, for some reason, disabled from performing the functions of his office, and that when his own actions are being investigated by the grand jury he is thereby disqualified from assisting the grand jury in any investigations pending before it. This argument is unquestionably sound. * * * This being true, it follows as a matter of course that when the grand jury is actually investigating such a charge against the commonwealth attorney, he is thereby automatically disqualified from assisting the grand jury in such investigation.
. “It must .not be: overlooked, however, . that the current grand jury has made - no report to the court that .it is actually investigating misfeasance, malfeasance or corruption in office on the part of the commonwealth attorney. * * * Such right of appointment is necessarily limited to the situation where the grand jury actually reports to the court that it is investigating the commonwealth attorney, thereby evidencing his disqualification to act in advising the grand jury. * * *
“The office of commonwealth attorney is a constitutional office and such officer may not be deprived of the right to perform the duties of that office except in a manner clearly authorized by law, nor may a substitute be appointed in his place except by virtue of section 120, Kentucky Statutes. [KRS 69.060.] That section authorizes the appointment of a substitute only when the commonwealth attorney is absent. In legal effect, the commonwealth attorney is absent when he himself is the subject' of investigation by the grand jury, or is on-trial. Unless he is physi- . ¿ally absent from court or absent in le- . gal effect by virtue of proceedings ■ pending against him, no right or authority exists in the circuit court or any other official to appoint a substitute for him.”

Northcutt v. Howard clearly defines the remedy in circuit court where the Commonwealth’s Attorney is being investigated by the grand jury as is alleged to be true in this action. This remedy is adequate and prohibition should here be denied for this reason. This Court does not entertain jurisdiction of original actions of this character unless there is no other adequate remedy. Henry v. Harris, 221 Ky. 238, 298 S.W. 690.

However, there are other reasons for delaying the writ of prohibition. In Brents v. Burnett, 295 Ky. 337, 174 S.W.2d 521, 522, we said:

“This original action was filed in this court against Judge Gilbert Bur- ■ nett and the Louisville Bar Association, seeking a writ of prohibition to prohibit Judge Burnett from proceeding with a trial of the rules and the Louisville Bar Association from further prosecuting them. The respondents have filed' a general demurrer to the petition.
“Wilts of prohibition issue from this court pursuant to the power granted by section 110 of the State Constitution to control the action of inferior courts but will not issue except against an inferior court. Manifestly, therefore, no cause of action is stated against the Louisville Bar Association.”

In Pruitt v. Davidson, Ky., 334 SW.2d 899, we said as follows:

“The right of this Court to control inferior jurisdictions is based on Section 110 of the Kentucky Constitution. It applies only to the control of judicial tribunals. Maynard v. Workmen’s Compensation Board, 210 Ky. 708, 276 S.W. 812; Payne v. Kentucky R. Commission, 216 Ky. 188, 287 S.W. 560. This control does not extend to nonjudicial officers of such tribunals. Sandusky v. Alsmiller, 291 Ky. 666, 165 S.W.2d 342; Foster v. Clerk of Lyon Circuit Court, Ky., 254 S.W.2d 942. The respondents, a county attorney and state trooper, in the presentation of charges against petitioners, are not acting in a judicial capacity and are not subject to the control of this Court under Kentucky Constitution Section 110. Morgan v. Clements, 153 Ky. 33, 154 S.W. 370; Old Blue Ribbon Distillers v. Caldwell, 273 Ky. 378, 116 S.W.2d 653.”

In Holliday v. Fields, 207 Ky. 462, 269 S.W. 539, -this Court held in substance that only judicial acts could be controlled under the authority of Section 110 of the Constitution of Kentucky.

In the early case of Patton v. Stephens, 77 Ky. (14 Bush) 324, we held that a writ of prohibition could he directed only to judicial tribunals.

Our review of these and other authorities forces us to the conclusion that prohibition under Section 110 may be directed only to judicial officers who are about to wrongfully perform judicial acts.

The Commonwealth’s Attorney is not a judicial officer about to wrongfully perform a judicial act.

Prohibition is therefore denied.

It will be noted that this action was handled temporarily by order on the 9th day of August 1961, and that the issue in this case is now moot. The Court, however, has directed that its predicate be shown by an opinion.


source: Caselaw Access Project

author: BIRD, Chief Justice. MILLIKEN, Judge

license: Public Domain

text:
    COMMONWEALTH of Kentucky ex rel. John B. BRECKINRIDGE, Attorney General Petitioner, v. William J. WISE, Commonwealth’s Attorney, 17th Judicial District et al., Respondents.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    John B. Breckinridge, Atty. Gen., Robert L. Montague, III, Asst. Atty. Gen., for petitioner.
    William J. Wise, Commonwealth’s Atty., Newport, for respondents.
   BIRD, Chief Justice.

This is an original action in this Court. The Commonwealth seeks to prohibit Ray L. Murphy, Regular Judge of the Campbell Circuit Court and Louis Reuscher, Special Judge of that court, from officiating in the trial of certain penal actions pending on the docket of that court.

The Commonwealth likewise seeks to prohibit William J. Wise, Commonwealth’s Attorney, from performing any of his official duties connected with or related t,o those actions.

The regular judge and the special judge having filed no response to the charges contained in the complaint, it is the judgment of this Court that they and each of them be prohibited from sitting in the trials of those cases or in any hearing thereunto pertaining.

The Commonwealth’s Attorney has responded and moved this Court to dismiss the action as to him upon the grounds that he is not a judicial officer and that a writ of prohibition cannot therefore be directed to him from this Court.

Under the authority of Commonwealth v. Wise, Ky., 351 S.W.2d 491, rendered November 17, 1961, being appeal No. V-66-61, we must sustain the motion of Mr. Wise to dismiss as to him. See also Moreland v. Helm, Ky., 350 S.W.2d 149, rendered October 6, 1961. Prohibition is granted as to the regular judge and special judge as heretofore stated. Prohibition is denied as to the Commonwealth’s Attorney and the petition as to him is hereby dismissed.

It will be noted that this action was handled temporarily by order on November 1, 1961.

MILLIKEN, Judge

(concurring).

Upon the record presented in this case we concur in the result. However, we do not consider the authorities cited in Commonwealth v. Wise, Ky., 351 S.W.2d 491, rendered November 17, 1961, and relied upon here, to be limitations upon the supervisory powers of this Court. Rather, we view those precedents as more in the nature of self-restraints by this Court in exercising its supervisory powers — as efforts to respect and maintain the effectual functioning of local self-government with as little state interference as possible.

However, we believe it well to point out that this Court, like the highest court in any common law jurisdiction, has such supervisory powers, derived from the common law of England, as it may find essential for it to assure the effective administration of justice within this jurisdiction. 14 Am.Jur., Courts, Sections 264-274. The common law history of this development in England and the United States was traced by the Supreme Court in 1838 in Kendall v. United States, 12 Pet. 524, 9 L.Ed. at 1181. Section 110 of our Constitution is an express recognition of these supervisory powers and not a limitation of them.

PALMORE and STEWART, JJ., join in this view.


author: PALMORE, Judge.

text:
    Carl APPLEBY and M. A. Morgan, Appellants, v. Joe J. BUCK et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.

      Davis Williams, Munfordville, for appellants.
    Carroll M. Redford, Glasgow, Joseph Martin, Edmonton, for appellees.
   PALMORE, Judge.

This appeal is from a judgment dismissing appellants’ complaint on the ground of the statute of frauds, KRS 371.010(6).

The substance of the complaint is that after plaintiffs and defendants had agreed to take oil and gas leases on a 21-acre and a 33-acre tract of land the defendants went to the owner, falsely told him that plaintiffs had withdrawn from the deal, and obtained the leases in the name of one of the defendants, who now holds for the benefit of himself and the other defendants. The details of the contract were that plaintiffs, at the instance and request of defendants, had “located” the leases and arranged with the owner to take them for a consideration of $2,000, following.which defendants agreed to furnish the $2,000 and assume the expense of the first test well on the 21 acres. Plaintiffs were to have a ½6 overriding royalty and a ¾6 working interest in the 21-acre lease. The 33-acre lease was to be divided in half and by the toss of a coin plaintiffs drew the north half. This is what the plaintiffs propose to prove, and they demand appropriate assignments and payment of their alleged share of the proceeds thus far realized from successful production.

An oil and gas lease is an interest in real estate, Dempsey v. Diederich, 1950, 313 Ky. 865, 233 S.W.2d 976, within the meaning of the statute of frauds. Beckett-Iseman Oil Co. v. Backer, 1915, 165 Ky. 818, 178 S.W. 1084. However, a trust in land arising out of a parol agreement does not come within the statute. Moore v. Terry, 1943, 293 Ky. 727, 170 S.W.2d 29, 31; Anglin v. Powell, 1930, 235 Ky. 705, 32 S.W.2d 54, 56. Hence the question here is whether the facts alleged in the complaint show a trust.

The object of the statute of frauds “is not to aid but prevent fraud.” Stewart v. Stovall, 1921, 191 Ky. 508, 230 S.W. 929, 932. This sometimes is given as the reason equity will recognize and enforce a constructive trust in spite of the statute. 89 C.J.S. Trusts § 141, pp. 1025-1026. But in this jurisdiction at least, the real reason is that the statute has never applied to trusts, whether express, implied in fact, or raised by implication of law. The English statute of frauds, 29 Car. II, c. 3 (1677), did not apply to the colonies already settled at the time of its enactment. 49 Am.Jur. 364 (Statute of Frauds, § 2). The seventh section, providing that all trusts of lands should be proved and manifested by writing, has never been adopted in Kentucky. Smith v. Smith, 1909, 121 S.W. 1002, 1004; Vizard Inv. Co. v. York, 1916, 167 Ky. 634, 181 S.W. 370, 372; Huff v. Byers, 1925, 209 Ky. 375, 272 S.W. 897, 898. See, for example, Huff v. Fuller, 1922, 197 Ky. 119, 246 S.W. 149 (express trust); Smith v. Smith, supra (resulting trust); and Jones v. Nickell, 1944, 297 Ky. 81, 179 S.W.2d 195 (constructive trust).

In seeking a rationale for the decisions of this ' court declaring the purchaser of land to be or not to be the unintended trustee for another it is important to consider the difference between a resulting trust and a constructive trust in that type of situation, as it is apparent that in some of the earlier opinions oral agreements that could have been given effect under the theory of constructive trusts were held unenforceable because they did not satisfy the requirements of a resulting trust.

“A ‘resulting trust’ is one arising upon the naked fact that one furnishes the consideration, while the title is taken to another, a stranger, without an agreement as to the use or trust. It was held at the common law that a trust resulted from the facts, without agreement to that effect.” Smith v. Smith, 1909, 121 S.W. 1002, 1004. Theoretically, the trust was presumed-as.a matter of law to rest upon intent, though in fact there may not have been such an intent. May v. May, 1914, 161 Ky. 114, 170 S.W. 537, 540. The- essential factor determining equitable ownership is not fraud, but the source of consideration. 54 Am. Jur. 152-153 (Trusts, §§ 193, 194). KRS 381.170 expressly recognizes that a trust may result if a grantee takes title without consent of the person paying the consideration.

On the other hand, the distinguishing feature of a constructive trust is not the matter of consideration, but some element of fraud, either actual or constructive. May v. May, 1914, 161 Ky. 114, 170 S.W. 537, 540; 54 Am.Jur. 167-168 (Trusts, § 218). “It has been broadly ruled that a breach of confidence, * * * rendering an acquisition or retention of property by one person unconscionable against another, raises a constructive trust.” 54 Am.Jur. 169 (Trusts, § 218).

Just what will amount to a “confidential” or “fiduciary” relation is a matter over which equity reserves considerable freedom to say. Bogert, Trusts & Trustees, § 481. “The tendency of the courts is to construe the term ‘confidence’ or ‘confidential relationship’ liberally in favor of the confider and against the confidant, for the purpose of raising a constructive trust on a violation or betrayal thereof.” 54 Am.Jur. 178-179 (Trusts, § 233). According to the Restatement, Restitution, § 190, “Fiduciary relations include among others the relation of trustee and beneficiary, guardian and ward, agent and principal, attorney and client. Each member of a partnership is in a fiduciary relation to the other partners.” Likewise included are joint adventurers, who are partners for a limited purpose, or a single transaction. Jones v. Nickell, 1944, 297 Ky. 81, 179 S.W.2d 195, 196; Bogert, Trusts & Trustees, § 488.

The mere co-ownership of fractional working interests in an oil and gas lease does not create the relation of partners or joint adventurers in the operation of the lease. Summers, Oil and Gas, § 723; Young v. Hill, 1933, 247 Ky. 672, 57 S.W. 2d 470; Terrill v. Carpenter, D.C.E.D.Ky., 1956, 143 F.Supp. 747, aff’d 249 F.2d 142. Even though appellants’ complaint says that according to the alleged agreement the ¾6 working interest they were to have in the 21-acre lease “was to bear its proportionate part of the cost of exploring, developing and producing oil and gas from said lease, except the expense of drilling the first test well,” that circumstance does not indicate that they -and the defendants had agreed, either expressly or impliedly, to participate jointly in the operation of the lease, which is one of the requisites of a mining partnership. “The fact that ,a cotenant’s share of oil or other mineral produced is chargeable with a proportionate share of the cost of' production is consistent with his cotenancy relationship and he does not become a mining partner because' of this fact.” Summers, Oil and Gas, § 623.

Nevertheless, it has been fairly established’ that if two parties agree to purchase land for possible resale at a’ profit, their purpose is to “deal in” the property and the agreement is not within the statute of frauds. Jones v. Nickell, 1944, 297 Ky. 81, 179 S.W.2d 19S. Now, if they agree to obtain a lease in order that the minerals may be extracted and sold at a profit,, is the purpose really any different in principle from a contemplated resale' of land as a whole, or from an intended renting of the property? From the standpoint of whether the parties have a relationship of trust and confidence with each other, which is the heart of a constructive trust, we cannot say so.

The concept of “joint adventure” is a hazy one. Bogert, Trusts & Trustees, § 488. In Whitsell v. Porter, 1949, 309 Ky. 247, 217 S.W.2d 311, 314, on which appellants place great reliance, it was said that a joint adventure may exist for the limited purpose of acquiring title to property. If so, the acquisition and division of their interests among the several parties completes the venture insofar as it is a combined effort, and it would seem immaterial whether ' they - intend theréaftér to manage the enterprise jointly or1 to go their várious ways, as'-"would- be -usual- in the" trading of mineral interests. Though it is argued that the appellants did not risk any loss, they stood to lose the benefit of whatever time and effort they may have invested in discovering the availability of the leases and putting the deal together. Assuming the allegations of the complaint to be true, as we must for the purposes of this appeal, we conclude that the agreement to join together in the acquisition of the two leases had enough of the attributes of a joint adventure to create a confidential relationship, the violation of which with impunity would be unconscionable. ’ For comparison as to result, see 20th Century Coal Company v. Taylor, Ky.1954, 275 S.W. 2d 72 and Goodwin v. Smith, 1911, 144 Ky. 41, 137 S.W. 789. See also Clark v. Smith, 1933, 252 Ky. 50, 66 S.W.2d 93, in which this court assumed for purposes of the argument, but did not find it necessary to decide, that a trust would arise under analogous circumstances.

The end result in Whitsell v. Porter, 1949, 309 Ky. 247, 217 S.W.2d 311, probably could have been reached on the theory of the time-honored precedents holding that a trust will arise where property is bought at a judicial sale under a parol agreement with one who has an interest in or -bona fide claim to it. Fishback v. Green, 1888, 87 Ky. 107, 7 S.W. 881, 9 K.L.R. 959; Brooks’ Ex’r v. Strange, 1912, 147 Ky. 503, 144 S.W. 747; Hunter v. Hunt,’ 1944, 296 Ky. 769, 178 S.W.2d 609. (In Doom v. Brown, 1916, 171 Ky. 469, 188 S.W. 475, this was called a resulting trust, but in fact it is a constructive trust. Erdman v. Kenney, 1914, 159 Ky. 509, 167 S.W. 685, 686; Restatement, Restitution, § 181; 54 Am.Jur. 182-183, Trusts § 241; Bogert, Trusts & Trustees, § 494, pp. 196 et seq.) It might also have been decided, as appellees have suggested, on the basis that the agreement was in writing. Nevertheless, the court chose to rest its. opinion on the equally sound theqry, of joint, adventure and constructive trust.

- It is’hard to' distinguish this result,- in principle; from Éwing v. Clore, 1927, 219 Ky. 329, 292 S.W. 824, wherein it was held that an oral agreement under which one of the parties was to buy a tract of land by private negotiation with the owner and then divide, it in kind with the other party created a mere agency, and could not be enforced after the agent had purchased the property in his own name and with his own money. On the other hand, it is equally difficult to equate Ewing v. Clore and the various agency cases, such as Day v. Amburgey, 1912, 147 Ky. 123, 143 S.W. 1033, and Kimmons v. Barnes & Metcalfe, 1924, 205 Ky. 502, 266 S.W. 891, 42 A.L.R. 5, with the principle more recently stated by this court in Antle v. Haas, Ky.1952, 251 S.W.2d 290, 295, to the effect that if an agent purchases, even with his own money, property he was engaged to acquire for his principal, he holds as a constructive trustee.

In the absence of a confidential relation between the parties, or of some pre-existing ownership interest or claim in the promisee, it was long ago held that an oral undertaking to purchase land and then re-convey to another creates a mere agency, falling within the statute of frauds, and is unenforceable if the purchase is made in the agent’s name and with his own money or credit. Fowke v. Slaughter, 1820, 10 Ky. (3 A.K.Marsh.) 56, 13 Am.Dec. 133. Later cases rejected the trust theory on the ground that the promisee did not provide any of the consideration for the purchase, and in so doing manifested an unmistakable tendency to confuse the requirements of a constructive trust with those of a resulting trust. See, for example, the leading case of Day v. Amburgey, 1912, 147 Ky. 123, 143 S.W. 1033, followed by Kimmons v. Barnes & Metcalfe, 1924, 205 Ky. 502, 266 S.W. 891, 42 A.L.R. 5, and Ewing v. Clore, 1927, 219 Ky. 329, 292 S.W. 824. (The latter opinion distinguishes the partnership cases on the ground that in equity real estate bought for a partnership was treated as personalty, this being a well-recognized principle, completely separate from the trust theory, upon which it often has been held that the statute of frauds does not apply to contracts between partners. See Garth v. Davis & Johnson, 1905, 120 Ky. 106, 85 S.W. 692, 27 Ky.Law Rep. 505, 117 Am.St.Rep. 571; Jones v. Nickell, 1944, 297 Ky. 81, 179 S.W. 2d 195, 196; 49 Am.Jur. 545-548, Statute of Frauds, §§ 220, 221).

“The majority rule is * * * that the breach of contract is a breach of confidence by the agent and gives rise to a constructive trust, the proof of which is not within the statute of frauds or the parol evidence rule, and it has been held to be immaterial that there was no consideration for the agreement of agency, where the agency is entered upon and the purchase made.” 54 Am.Jur. 180-181 (Trusts, § 237). This rule, says Bogert, has “the better of the argument on principle.” Bogert, Trusts & Trustees, § 487, p. 174. As we construe it, Antle v. Haas, Ky.1952, 251 S.W.2d 290, in spite of its nominal recognition of the precedents represented by Day v. Amburgey, 1912, 147 Ky. 123, 143 S.W. 1033, and Kimmons v. Barnes & Metcalfe, 1924, 205 Ky. 502, 266 S.W. 891, 42 A.L.R. 5, (and on which the court expressly relied in Ewing v. Clore, 1927, 219 Ky. 329, 292 S.W. 824) necessarily overrules them by holding that the agent has a trust relationship with his principal. Therefore, between the Antle case and the Whitsell case it would appear that Ewing v. Clore has been cut down along with the agency cases.

Since a constructive trust is enforceable regardless of whether the agreement from which it arises is oral or written, the existence of a writing was immaterial in both Whitsell v. Porter, 1949, 309 Ky. 247, 217 S.W.2d 311, and Antle v. Haas, Ky.1952, 251 S.W.2d 290. If the facts of the Whitsell case established a joint adventure, so do the facts of this case; and if the facts of the Antle case, a simple agency situation, raised a constructive trust, so also do the facts alleged here. In all three, someone took for himself something he had agreed to obtain for another, or for both, and he is answerable not on a promise to convey an interest in land, but as a constructive trustee by virtue of the violation of his obligation of loyalty to his associate. Restatement, Restitution, § 194, Comment d, p. 798.

We think this case is distinguishable from the situation in which the party who purchases property has agreed to sell it, or a part of it, to another: Though it may have been necessary to effect assignments in order to complete the agreed arrangement, the fair import of the allegations is that the parties were to act in concert in obtaining the leases. But even if it had been agreed that the appellees should themselves do the trading with the lessor, the understanding that the appellants were to have an interest in the leaseholds would have made the appellees their agents, thus creating idle confidential relationship that is the essential foundation of a constructive trust.

Judgment reversed for further proceedings consistent with this opinion.


author: STEWART, Judge.

text:
    Moss BROWNING, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 17, 1961.

      P. H. Vincent, Ashland, for appellant.
    John B. Breckinridge, Atty. Gen., Wm. F. Sim'pson, Asst. Atty. Gen., for appellee.
   STEWART, Judge.

Appellant, Moss Browning, was convicted in the Boyd Circuit Court of the crime of incest and sentenced to 21 years in the penitentiary. On this appeal he maintains the verdict (a) was not supported by any competent evidence, (b) was the result of passion and prejudice on the part of the jury, and (c) was contrary to law. Appellant further argues that incompetent evidence was introduced over his objection.

KRS 436.060, which denounces the offense of incest, reads: “Any person who carnally knows his or her father, mother, child, sister or brother, knowing such a relationship to exist, shall be confined in the penitentiary for not less than two nor more than twenty-one years.”

In advancing the theory that the verdict was not sustained by any competent evidence, appellant bases practically his entire argument on a claimed discrepancy as to the exact date of the perpetration of the offense. He was accused in the indictment of carnally knowing his daughter, Tressie Mae Browning, age 16, “in June or July, 1960.” We shall hereinafter refer to appellant’s daughter by her Christian name. Shortly after the return of the indictment he moved the trial court for a bill of particulars, seeking, among other things, to elicit information in respect to the time and place of the alleged crime. On the same day the Commonwealth complied with this motion, and gave the date that the illegal act was committed as July 20, 1960, and the place as the bedroom- in the home of appellant.

When the trial was held, Tressie Mae testified she was pregnant and that appellant was the father of her unborn child. She was asked by the Commonwealth’s attorney when the offense occurred and her testimony on this point was:

“Q. 17. Will you tell the jury your best judgment the time he (appellant) had intercourse with you and got you pregnant? A. January 28th is the only one I recall.
“Q. 18. To refresh your memory I will ask you if it was July 20, 1960.
A. Yes.”

She further stated she remembered the July 20th date because her mother went to Huntington, West Virginia, on that day to visit someone in the hospital there, and that her sister and brother-in-law accompanied her mother to the same city at the same time in order to donate blood to a Mrs. Luna Blevins.

Appellant, a carpenter aged 51 and the father of nine living children, denied the offense. It was shown by the evidence of Edith Browning, his wife, and of James David Browning, his son, and by the records of the hospital in Huntington, West Virginia, that the trip above-mentioned took place on July 30, 1960.

Appellant asserts this evidence proved conclusively that Tressie Mae’s story was untrue and thus the verdict was not supported by the evidence. His argument is that since Tressie Mae was obviously lying, as to the date of the alleged event, her whole accusation which implicated him was a fabrication.

The Commonwealth’s position is that any discrepancy as to the exact date the unlawful relationship was consummated is immaterial and a misstatement on that point does not render Tressie Mae’s story unbelievable. Its agument is that the time factor is not vital in an offense of this type, so long as the incriminating act was proven to have happened before- the date of the indictment.

We believe the contention of the Commonwealth is strongly supported by the language of Section 129 of the Criminal Code of Practice, which reads: “The statement in the indictment, as to the time at which the oifense was committed, is not ■material further than as a statement that it was committed before the time of finding the indictment, unless the time be a material ingredient in the offense.” In 42 C.J.S. Incest § 12(a), p. 510, it is pointed out that' generally the indictment charging incest is not rendered invalid by reason of its failure to state the date of its occurrence. It is our view no greater importance should be attributed to the bill of particulars than to the indictment where uncertainty exists as to when an alleged violation took place. In Salyers v. Commonwealth, Ky., 255 S.W. 2d 605, 606, it was specifically held that time was not of the essence in an indictment charging incest.

Thus it would appear, on the basis of the authorities cited, that the. fixing of the date of the act is not a necessary -element of the offense of incest. Therefore we conclude the Commonwealth had the right to show the commission of the -offense at any time prior to the finding of’ the indictment. See Tester v. Commonwealth, 229 Ky. 403, 17 S.W.2d 260; and May v. Commonwealth, 153 Ky. 141, 154 S.W. 1074.

It is further urged that incompetent evidence was introduced by the Commonwealth, which was objected to by the defendant and which resulted in arousing the passion and prejudice of the jury. The Commonwealth in its direct examination of the prosecutrix, who was the only witness that testified in its behalf, asked only one question which was objected to, and this question was: “Has he (appellant) mistreated you like this on other occasions ?” The reference of course was to other incestuous intercourse that had occurred between the two. The trial judge permitted her to respond to this inquiry, and her answer was: “Yes, before that.” Thereupon the trial judge, without any request being made therefor, properly admonished the jury as to the purpose of such evidence.

In cases of this nature, it has been uniformly held that evidence of similar acts can be considered for the purpose of corroborating the testimony concerning the principal offense. See Alley v. Commonwealth, 231 Ky. 372, 21 S.W.2d 476; Commonwealth v. Stites, 190 Ky. 402, 227 S.W. 574; and Smith v. Commonwealth, 109 Ky. 685, 60 S.W. 531. As the jury was told that the testimony under attack was to be considered only for its corroborative effect it was not error to admit it.

Appellant’s insistence that the verdict was the result of passion and prejudice on the part of the jury is not sustained by the record and therefore this contention cannot prevail. It is also clear appellant is not in any position to complain in respect to any other evidence introduced by the Commonwealth. This is because no objection was made to any of it, other than that hereinbefore noted, which we have shown was properly allowable. Unless an error is brought to the attention of the trial judge and is preserved by an exception to his ruling, this Court is without authority to review the point. See Morgan v. Commonwealth, Ky., 310 S.W.2d 281, 282.

Appellant finally contends the evidence was insufficient to support the jury finding and therefore the verdict is contrary to law. This position seemingly rests upon the assumption that Tressie Mae’s testimony under the circumstances recited, when considered alone, did not make out a case against him. We do not agree. This Court has consistently held in a long line of decisions that under an indictment for incest committed by a father with his daughter a conviction is authorized upon the testimony of the daughter alone, she not being an accomplice. Salyers v. Commonwealth, supra; Nance v. Commonwealth, Ky., 237 S. W.2d 537; Craig v. Commonwealth, 190 Ky. 198, 226 S.W. 1074; and Whitaker v. Commonwealth, 95 Ky. 632, 27 S.W. 83.

It appears appellant had a fair and impartial trial and that no phase of it was prejudicial to his substantial rights.

Wherefore, the judgment is affirmed.


text:
    Don C. YOUNG, Administrator of the Estate of Peggy Marlene Young, Deceased, and Don C. Young, Individually, Appellants, v. J. W. DE BORD and Evelyn DeBord, d/b/a J. W. De Bord Coal Yard, and Dewey Hughes, Appellees.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    Lewis & Weaver, William J. Weaver, London, John C. Prather, Viley O. Blackburn, Somerset, for appellants.
    Fritz Krueger, C. H. Neikirk, Somerset, for appellees.
   STEWART, Judge.

In the late afternoon of October 16, 1957, Peggy Marlene Young, 24 years of age, was driving the car of her father, Don C. Young, appellant herein, on State Highway '192 near Somerset. It was raining and overcast and the road was wet. Appellee, Dewey Hughes, was operating a loaded coal truck owned by appellees, J. W. and Evelyn DeBord, d/b/a J. W. DeBord Coal Yard. The truck and the car were trav-elling in opposite directions and collided on a curve. Peggy Marlene Young was killed, the car was almost totally destroyed, and the truck was badly damaged.

On October 13, 1958, Don C. Young, as administrator of his daughter’s estate, filed a complaint against appellees, alleging the negligence of the truck driver caused his daughter’s death and asking $100,000 in damages. On January 21, 1959, appellees 'filed an answer denying the accident was the result of Hughes’ negligence. J. W. and Evelyn DeBord also filed in their answer a counterclaim against Peggy Marlene Young’s estate for $2,297.92 for damages to their truck, which they averred were produced by Peggy Marlene Young’s reckless operation of her father’s car. On May '18, 1959, appellant denied the allegations in the counterclaim and also filed an amended complaint seeking recovery from appellees, in his individual capacity, of $2,050 for the complete loss of his car.

The jury found Peggy Marlene Young and Dewey Hughes, the drivers of the two motor vehicles which collided, equally guilty of negligence and allowed none of the parties to recover damages. The Youngs have appealed.

They first argue vigorously that the trial court erred in submitting to the jury Instructions IV, VII and VIII. The record discloses they objected to the giving of these instructions upon the ground there “is no evidence in the record” upon which to base them. On this appeal they undertake. to point out specific defects which are raised here for the first time, and this brings up the question of whether they can assign one reason for objecting to an instruction in the trial court and a different one on this appeal.

CR 51 requires that any ground interposed to the giving of an instruction should be set forth in a timely manner and should be definite enough to bring into focus the precise nature of the alleged error. In Clay CR 51, comment 4, p. 458, this statement appears: “The Rule in effect condemns the general objection to the giving or failure to give an instruction. It requires a party making an objection to state specifically (a) the matter to which he objects, and (b) the grounds of his objections. One important purpose of this requirement is to limit the use of a general objection as a device in securing a subsequent reversal, when the court may well have obviated the error if its attention was directed at the proper time to the particular matter about which the party may subsequently complain on appeal.”

Appellants in the trial court protested the submission of the instructions on a general ground. On this appeal they have changed their approach and now undertake to pinpoint certain alleged errors. Obviously, CR 51 condemns such a practice and, in consequence, we must hold they cannot now be heard on these matters. See the recent case of Chaney v. Slone, Ky., 345 S.W.2d 484, where the principle we have discussed was considered and resolved in conformity with the end result we have reached.

It is next insisted the lower court erred because it refused to instruct the jury on last clear chance. Appellants’ theory that such an instruction should have been submitted rests upon the conclusion drawn from a fragment of evidence extracted from the testimony of Roy Paul Dykes, a witness who appeared in behalf of appellees. Dykes, who arrived at the site of the mishap * soon after its occurrence, stated that Hughes, the truck driver, when asked how the accident happened, told him he saw the Young car about 400 or 500 feet away “coming sideways and skidding.” This same witness also testified he examined the car and the truck skid marks near the place of collision, and these revealed the car was straddling the center line and the truck’s wheels in its traffic lane did not come nearer than 30 inches to this same line. Hughes testified he was going around a curve at 15 or 20 miles per hour just before the two vehicles met; he first observed the Young car when it was 50 to 100 feet distant at which time it was travelling 50 to 60 miles per hour, “occupying the middle of the road”; and he then cut to his right as much “as he could.”

If Hughes was in his trafile lane at the instant he saw the Young car, it then being apparently out of the control of its driver while still 400 or 500 feet down the road, there was little else that he could do other than pull over to his right-as far as possible. It is uncontradicted that this is exactly what he attempted to do. It is conceivable he could not then predict whether the car’s operator would be able to regain control of it, or whether it would run off the other side of the road and away from the truck, or whether it would eventually make contact with the truck despite any precautions he might take.

In applying the last clear chance doctrine to a given situation, the defendant must, as a matter of fact, have a last clear chance and not a speculative or a possible chance to avoid the accident. See Swift & Co. v. Thompson’s Adm’r, 308 Ky. 529, 214 S.W.2d 758. Where a motorist, as in this case, was faced with an emergency that made it impossible for him to know what to do, he should not be held responsible for his failure to follow what is after-wards considered the correct course of action. Although the truck driver was perhaps able to control his own vehicle, under the facts presented, he had no certain way of knowing what he should have done to escape colliding with an oncoming car running wild. Thus, in the case at bar, as Hughes had to conjecture what the ultimate direction and final effect of the Young car’s uncertain movement under the circumstance might be, it cannot be said he had a last clear chance to prevent their coming together.

The evidence of Gilmore Phelps, the sheriff of Pulaski County on the occasion of the accident, and of Jack Murphy and George R. Hall, troopers attached at the time to the Kentucky State Police, all of whom investigated the tragic event and testified as to it, is assailed because it is claimed no proper foundation was laid in order to qualify them to state what they saw. The chief contention is that it was not shown the conditions remained the same at the site from the time of the wreck until they arrived. Then, too, it is pointed out that, meanwhile, it had been raining steadily, it had become dark, and several motor vehicles had passed on the highway and some forty or fifty people had walked between and around where the car and the truck had come to rest.

These three officers reached the scene of the mishap from approximately one to two hours after its occurrence. It would be a fair inference that no change had transpired during this interval except possibly as to skid marks or tire tracks made by the car and the truck upon the road; and none of the three witnesses undertook to testify concerning these on direct examination, because they said the rain had washed them away. However, appellants’ counsel in cross-examining Trooper Murphy brought out certain testimony as to skid marks purportedly made by the truck which evidence had no material bearing on the case. The sum and substance of the testimony of these witnesses consisted of things of a durable nature they observed, namely, the positions of the two motor vehicles and the condition of each as a result of the wreck and the location on the highway of ridges or mounds of slack coal. They made certain measurements of fixed objects which they made statements about. They expressed no opinions and drew no conclusions from what they saw. Upon the whole, we believe this line of testimony was competent and admissible. ■ - Certainly these officers could testify to what they observed, and this is all their evidence consisted of.

Other complaints are made in regard to certain testimony that was admitted and in respect to certain admonitions the trial judge gave. We have carefully considered all of these and we are of the opinion no error was committed by the action of the trial court in this connection.

Wherefore, the judgment is affirmed.


author: STANLEY, Commissioner.

text:
    M. G. RAGLAND, Jr., Appellant, v. T. L. HARRISON et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    John S. peering, Nicholas ville,' for apr pellant.
    Watts & Moynahan, Nicholasville, for appellees.
   STANLEY, Commissioner.

This action by the appellant, M. G. Rag-land, Jr., was apparently intended to be for specific performance of a contract to convey real estate, although the prayers of the complaint and the amended complaint only demanded of the defendants that they deliver a deed to the plaintiff “upon receipt of the payments filed in this action” and that plaintiff have judgment for his cost. The plaintiff pleaded that he had previously made a tender by check of what he regarded as the consideration. The circuit court found as a fact that the “option agreement” set up in the complaint as amended was not exercised within the period of thirty days stipulated in the writing filed therewith, and dismissed the action.

Appellant’s brief discusses much that is irrelevant and not in the record. He had alleged that the property was owned by T. L. Harrison and Eliza H. Harrison and that T. L. Harrison had executed a writing filed with the complaint. It recited that in “consideration of the sum of $7.50 per day, payable at the time of conveyance for property or surrender of option and accruing from and after November 4, 1957, do hereby agree to extend for a period not exceeding thirty days after November 4, 1957, the option held by Sidney Royse and M. G. Ragland to purchase my property located” etc. The paper was signed by T. L. Harrison and by Royse and Ragland. It was not signed by Mrs. Harrison. The original option is not in the record, and it is not clear whether it was oral or written.

Aside from questions of the insufficiency of the complaint as amended to state a cause of action, the evidence as to -the expiration of the option and the belated tender of the- consideration fully support the court’s finding. • ■ ■ •-

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    Johnny E. BARNES, Appellant, v. Vernon JONES, DBA Jones Transfer Lines, Appellee. Johnny Earl BARNES and Joan Barnes, Appellants, v. James Lee HENRY and Vernon Jones, DBA Jones Transfer Lines, Appellees.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    Hargadon, Hargadon & Bennett, James B. Lenihan, Louisville, Ben G. Matthews,’ Shelbyville, for appellants.
    Lucien Kinsolving, Kinsolving & Kin-solving, Shelbyville, for appellees.
   WILLIAMS, Judge.

A collision occurred between a truck driven by James Lee Henry but owned by Vernon Jones and an automobile driven by Johnny Earl Barnes in which Joan Barnes, his wife, was a passenger. Jones sued Barnes for damage to the truck and Barnes filed answer. Then, in a separate action, Johnny and Joan Barnes sued Jones and Henry for personal injuries and for damage to the automobile. The circuit court sustained a motion to dismiss the complaint of Johnny Barnes but ordered that same be considered as a counterclaim in the action filed by Jones against Barnes. The cases were consolidated and tried together. The jury found both drivers negligent but awarded a verdict in the amount of $500 in favor of Joan Barnes against Jones and Henry. Both Johnny and Joan Barnes have appealed from the judgment entered on that verdict.

The collision occurred in Simpsonville. Henry was driving east on U. S. 60 and was in the process of negotiating a left-hand turn into a side street when the truck was struck on the right rear wheel by the automobile driven by Barnes. Henry testified that he had activated his turn signal indicator, that Barnes was from 300 to 500 feet away when he started his turn, and that after starting his turn he noticed that Barnes was proceeding at an excessive rate of speed. Barnes on the other hand testified that he was driving west on U. S. 60 at a speed of 20 to 25 miles an hour, that Henry started his left-hand turn when the two vehicles were about 90 feet apart, and that he immediately applied his brakes but was unable to avoid the accident. The Barnes automobile slid on the wet pavement and struck the truck which was in Barnes’ lane of traffic.

At the outset we note there was sufficient evidence to go to the jury, and the court did not err in overruling Barnes’ motion for a directed verdict.

The appellants insist that the court erred in giving the follówing two instructions:

“4. It was the further duty of Johnny Barnes to yield the right-of-way to James Lee Henry so as to permit him to pass into First Street in safety; if the jury believes from the evidence that James Lee Henry reached and entered the intersection toward the center point first, since he thereby had the right-of-way over Johnny Barnes.”
“8. Since Johnny Barnes, who was operating on the right of the truck driven by James Lee Henry, as he turned into the intersection, had the right-of-way through the intersection, it was the further duty of James Lee Henry, the driver of plaintiff’s truck to yield to that right-of-way to Johnny Barnes, unless the jury believes from the evidence that James Lee Henry driving the truck of Vernon Jones first reached and entered the intersection beyond the center point, in which event he and not Johnny Barnes had the right-of-way through the intersection, and it was the duty of Johnny Barnes to yield to him.”

The rule is that a vehicle proceeding in a straight course shall have priority over a vehicle making a change in direction. An instruction giving priority to a turning vehicle if it has reached and entered an intersection first is erroneous. Weaver v. Brooks, Ky., 350 S.W.2d 639; Rankin v. Green, Ky., 346 S.W.2d 477; Smith v. Sizemore, Ky., 300 S.W.2d 225.

The trial court also refuséd-to permit the introduction of testimony in regard to the amount of special damages incurred by the appellants. The appellees admit this was error but argue that it was not prejudicial. They point to the fact that Joan Barnes visited a doctor but few times and was not severely injured. On the other hand it was shown that Joan Bárnes was pregnant at the time and had to make some visits to her doctor in addition to those she would regularly have made. Whéther the $500 allowed by the jury was too much or too little we are not in position to say. Certainly one of the few concrete standards by which a jury may measure pain and suffering is the cost incurred by reason of special damages. To preclude testimony on that point was prejudicial error.

The judgment is reversed.


author: WADDILL, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Fern JUSTICE, Appellee.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Lawrence L. Pedley, Asst. Atty. Gen., for appellant.
    J. D. Atkinson, Jr., Greenup, for appellee.
   WADDILL, Commissioner.

The appeal is from a judgment upholding an award of the Board of Claims granting appellee $6,254 as damages for personal injuries she sustained as a result of appellant’s alleged negligence in failing to remove natural accumulations of ice from the highway and in failing to erect signs notifying the public of such condition after appellant had knowledge of it.

This is a companion case to Commonwealth of Kentucky, Dept, of Highways v. Brown, Ky., 346 S.W.2d 24, wherein we specifically held, under identical facts, that the Commonwealth is not liable for injuries sustained as a result of such hazardous conditions of its highways. The decision in that case is determinative of the instant one.

Judgment reversed.


text:
    KENTUCKY DEPARTMENT STORE, INC., et al., Appellants, v. FIDELITY-PHENIX FIRE INSURANCE COMPANY OF NEW YORK et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    Samuel M. Rosenstein, Stuart A. Hand-maker, Louisville, Squire N. Williams, Jr.¿ Frankfort, Morris Weintraub, Newport; for appellants.

      Malcolm Y. Marshall of Ogden, Brown, Robertson & Marshall, Louisville, for ap-pellees.
   PALMORE, Judge.

This action was brought in the Franklin Circuit Court by four holders of fire insurance policies covering property in this state, suing for themselves and all others similarly situated, against several insurance companies to recover and to enjoin the further collection of amounts added by the companies to or as a part of their premium rates in order to defray the direct and indirect costs of city occupational license taxes (KRS 92.285) levied against and paid by the companies. It was alleged, in effect, that these increments were unauthorized and illegal because, presumably, they were not included in the rate schedules filed with the Commissioner of Insurance. KRS 304.603(10), formerly KRS 296.420 (8), prohibits the issuance of policies not in accordance with effective rate filings. The complaint sought also to make the defending companies class representatives for all other insurance companies likewise offending. The action was dismissed on motion.

The crucial question in this court is whether in a “spurious” class action the claims of the members of the suing class may be aggregated in determining jurisdictional amount. They cannot. Moore’s Federal Practice, R 23, Vol. 3, pp. 3480-3481, and cases there cited.

It has been uniformly held in this jurisdiction that the independent claims of several plaintiffs against the same defendant, even though they may be and are joined (cf. CR 20.01) in one action, cannot be added together for purposes of jurisdictional amount. See, for example, Roth v. Stauble, Ky.1957, 313 S.W.2d 269; Seale v. Compkis, Ky.1958, 311 S.W.2d 567; Russell v. Old Planing Mill Co., Ky. 1954, 271 S.W.2d 371. If the claims of parties who actually join as plaintiffs cannot be aggregated, it is an apodictic proposition that neither can the claims of non-appearing parties.

Since the complaint alleged no amount except in the aggregate, the circuit court could not entertain it unless it was brought within the jurisdictional requirements by a justiciable demand for injunctive relief.

KRS 304.023(3) provides as follows:

“If the commissioner has cause to believe that any person is violating or is about to violate any provision of this code or any order of the commissioner, he may bring 'an action in any circuit court of proper venue to enjoin the person from continuing the violation or doing any act in furtherance thereof.”

In Crimes v. Central Life Ins. Co., 1916, 172 Ky. 18, 188 S.W. 901; Ohio Valley Fire & Marine Ins. Co. v. Wash, 1924, 205 Ky. 819, 266 S.W. 921; Breckinridge v. Kentucky Central Life & Accident Ins. Co., 1924, 206 Ky. 244, 267 S.W. 178; Woodson v. American Life & Accident Ins. Co., 1934, 254 Ky. 224, 71 S.W.2d 447; and Whalen v. Keystone Mut. Cas. Co., Ky. 1953, 258 S.W.2d 450, it was held that remedies expressly vested in the commissioner by the insurance laws are exclusive. They cannot be directly enforced by policyholders. Therefore, the appellants had no standing to sue directly for an injunction in this case.

Assuming, but not so deciding, that the injunctive feature of the case renders the amount in controversy on appeal incapable of ascertainment, so that the appeal would lie as a matter of right, we conclude that since the complaint on its face showed no right to injunctive relief and no amount of claim as to any of the individual plaintiffs the circuit court correctly dismissed it.

Judgment affirmed.

WILLIAMS, J., not sitting.


author: MONTGOMERY, Judge.

text:
    Howard GABBARD et al., Appellants, v. Johnnie SHORT et al., Appellees. A. H. CARPENTER et al., Appellants, v. Howard GABBARD et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    Henry L. Spencer, Jackson, for Howard Gabbard and others.
    Shumate & Shumate, Irvine, Rose & Short, Beattyville, Moss Noble, O. J. Cock-rell, Jackson, for Johnnie and Jennie Short, A. H. Carpenter and C. E. Bush.
    C. S. Landrum, Lexington, J. M. Terry, James F. Wheeler, Louisville, for Louisville & N. R. Co.
   MONTGOMERY, Judge.

Howard Gabbard et al. sued to have their title quieted to 50 acres of land. They appeal from the part of the judgment holding that the Louisville & Nashville Railroad Company is the owner in fee simple of two parcels of the land containing 8.62 acres and 1.68 acres. A. H. Carpenter et al. appeal from the part of the judgment holding that the Gabbards own the fee simple title to the remainder of the 50 acres.

The Gabbards and A. H. Carpenter et al. contend that the L&N conveyances were for an easement instead of a fee. A. H. Carpenter et al. contend that the Gabbards were estopped to deny their title to the 50 acres.

Two conveyances were made by Letch and Sarah Gabbard to L&N dated June 7, 1927, and January 10, 1928, for the parcels of 8.62 acres and 1.68 acres for $3,500 and $200, respectively. These two parcels were part of the 50-acre tract in- question which adjoined two other tracts containing 50 acres and 40-50 acres, respectively. Subject to the L&N conveyances, these three tracts were owned by Letch and Sarah at their deaths.

On or about August 23, 1946, the Gabbard heirs executed a deed to Johnnie and Jennie Short. The Shorts contend that it was intended for this conveyance to embrace the three tracts of land and purportedly all the lands inherited by the Gabbards. The consideration was $1,600. Three tracts were described in the Short deed, but one tract was included twice. The description of the 50-acre tract out of which the L&N conveyances were made was omitted from the Short deed by mistake of the attorney who prepared it. The Short deed contained no reference to the L&N conveyances.

Appellants A. H. Carpenter and C. E. Bush have oil and gas leases from the Shorts and L&N. Two producing oil wells have been drilled on the part of the land claimed by L&N. This action was filed afterward.

In construing the deeds to L&N, the four corners of the deed should be looked to in order to ascertain the grantors’ intention and purpose, and all legitimate provisions contained therein will be given effect. Childers v. Welch, 304 Ky. 700, 202 S.W.2d 169; Williams v. Williams, Ky., 259 S.W.2d 53. Generally, a deed must be construed more strongly against the grantor and more favorably to the grantee. Chaney v. Chaney, 300 Ky. 382, 189 S.W.2d 268; Buchanan v. Watson, Ky., 290 S.W.2d 40. Doubts and ambiguities are resolved in favor of passing a complete title. Kentland Coal & Coke Company v. Blankenship, Ky., 300 S.W.2d 570.

The deeds to L&N are similar in form. Except for certain added provisions, the deeds are in the form of a deed of general warranty by which a fee simple title is conveyed. The descriptions of the land are by metes and bounds. The habendum clause contains covenants of general warranty, freedom from encumbrances, quiet possession and enjoyment, and warranty of defense of title. These factors and the amount of consideration paid indicate the conveyance of a fee simple title. The added provisions in the deeds covering removal of timber and buildings additional land for slope protection of cuts, fills, and slides, the use of stone from the grantors’ land, ingress and egress, and compensation for future damages, to remaining land are not inconsistent with a fee simple title. Under the rules of construction, the Chancellor’s holding that a fee simple title was conveyed is correct. In view of this holding, there is no merit in appellants’ plea of abandonment.

Appellants rely on Sherman v. Petroleum Exploration, 280 Ky. 105, 132 S.W.2d 768, 132 A.L.R. 137. It is distinguishable because the deed therein limited the use of the property to that of railroad right of way. The property description in that deed indicated such a limited use.

Appellants Johnnie and Jennie Short, grantees in the deed from the Gabbard heirs, contend that it was the intention of the parties to the deed to convey all the remaining lands owned by Letch and Sarah at their deaths, including the 50-acre tract in question. This tract would have been reduced by the acreage conveyed to L&N. The deed was prepared by the Shorts’ attorney.

To sustain their contention, the Shorts introduced evidence to the effect that they had entered upon the lands, resided thereon, and had cultivated them. They claimed the entire boundary and sought to show the exercise of ownership by leasing the lands for oil and gas to Carpenter a.nd Bush, by cutting some timber, and by paying taxes.

The Gabbards contradicted the Shorts’ claim that they pointed out the boundaries of the land so as to include the three tracts. The Gabbards said they sold only the “home-place” consisting of two tracts, and denied that they had any part in the preparation of the deed or any notice or knowledge of the Shorts’ acts of ownership since they (Gabbards) were nonresidents. The deed purported to convey 91 acres, as opposed to the Shorts’ claim for three tracts which would have totaled 140 or ISO acres.

The Shorts conceded that at the time they asserted their claim of ownership the statute of limitations would have barred any right to sue for reformation of the deed and that they had not claimed adversely long enough to establish title. The Shorts claim that the • Gabbards’ conduct in standing by without exercising any acts of dominion over the lands and in failing to pay any taxes constitutes an equitable estoppel.

The Chancellor denied the plea of equitable estoppel and held that the Gab-bards were the owners of the fee simple title to the 50-acre tract in controversy, excluding the parcels conveyed to L&N. There is substantial evidence to support such holding. CR 52.

Judgment affirmed.


author: CULLENj Commissioner.

text:
    Wallace McCLAIN et al., Appellants, v. CITY OF INDEPENDENCE et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    William O. Ware, Ware & Ware, Cov-ington, for appellants.
    Charles H. Deters, Covington,- for ap-pellees.
   CULLENj Commissioner.

On August 20, 1957, the City of Independence, Kentucky, enacted an ordinance proposing annexation of certain territory, under KRS 81.100, 81.110 and 81.240. Within the 30-day period allowed by the statutes for filing a remonstrance suit a group of resident freeholders in the territory appeared before the board of trustees of the city and expressed objections to the annexation. However, for reasons that are not significant to the decision of this case, they did not file a remonstrance suit. Some two years later, on September 21, 1959, the city enacted a second ordinance which made the annexation effective. Two of the freeholders in the annexed area then filed this action seeking to have the second ordinance declared null and void. Judgment was entered holding the ordinance valid. The plaintiffs have appealed.

The contention of the appellants that the annexing ordinance is void is based solely upon the fact that there was a lapse of some two years between the enactment of the proposing ordinance, and the enactment of the annexing ordinance.

The appellants do not offer any authorities in support of their contention nor do they suggest any valid reasons why an annexing ordinance must be enacted within less than two years of the enactment of the proposing ordinance. They make no showing of any prejudice or detriment resulting from the delay.

It frequently happens that there is a lapse of several years between the proposing ordinance and the annexing ordinance, in cases where remonstrance suits are filed that result in protracted litigation. It has never been considered in such cases that the lapse of time was of any significance. We see no reason why the lapse of time in the instant case should invalidate the annexing ordinance.

The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky ex rel. John B. BRECKINRIDGE, Petitioner, v. Ray L. MURPHY, Circuit Judge, 17th Judicial District, Respondent.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    John B. Breckinridge, Atty. Gen., William A. Watson, Asst. Atty. Gen., for petitioner.
    Ray L. Murphy, Circuit Judge, Newport, for respondent.
   BIRD, Chief Justice.

On or about August 1, 1961, Ray L. Murphy, Regular Judge of the Criminal Division of the Campbell County Circuit Court, voluntarily disqualified himself from presiding over the court during a session of the Campbell County Grand Jury held in August and September 1961, at which ses^ sion divers matters of vice and corruption were scheduled to be and were investigated in due . course.

A special judge was designated to preside over the court in all matters pertaining to the work of that grand jury. The work continued for about a month and the grand jury made its final report. Thereupon the special judge by proper order continued the investigation to the next succeeding session of the grand jury in October 1961. Judge Murphy, the regular judge and respondent herein, ordered that the grand jury be convened November 6, 1961, rather than in October.

This is an original action in this Court to prohibit the regular judge, Murphy, from presiding over the grand jury scheduled to begin its deliberations on November 6, 1961. The complaint was filed on Saturday before the grand jury was to convene on the following Monday. It was a matter of common knowledge that the grand jury was to convene at that time. The Commonwealth does not contend that it did not have this information.

This Court declined to grant a temporary order of prohibition because of the unwarranted delay in filing the action.

On the merits it is first contended that the work of the special judge was not completed because of his order continuing the investigation and that he continues to be the proper judge to preside over the grand jury at its session beginning November 6, 1961.

However, the record shows clearly that the regular judge voluntarily disqualified and vacated the bench only in matters pertaining to the work of the grand jury at the session beginning August 14, 1961. We have construed his disqualification to mean that he is disqualified to try or hear any part of any case resulting from the action of that grand jury. He has not disqualified himself from presiding over the Campbell Circuit Court in connection with any other grand jury. We find no basis for prohibition in the first contention.

The Commonwealth’s final contention is as follows:

“That it is imperative, in order to preserve the public esteem of, and faith in, the judicial system of the Commonwealth, that the special judge preside over the regular grand jury about to convene, since that jury will consider matters of the same nature as considered by the August special session of the Campbell County Grand Jury, concerning which the respondent disqualR fied himself.
“That irreparable harm will result to the judicial system of the Commonwealth if the respondent presides over the pending grand jury.”

Nowhere in the petition is Judge Murphy charged with wrongdoing, nor is he charged with the slightest complicity in any of the vice and corruption described in the complaint. There is no charge of conflicting interest. In fact, there is no allegation of any fact basically necessary to give this Court jurisdiction. Judge Murphy has filed his response, stating that the reason for his previous voluntary disqualification “no longer exists.” He further asks that the petition be dismissed because it fails to state facts sufficient to constitute or support an action for prohibition.

In Garner v. Shouse, 292 Ky. 798, 168 S.W.2d 42, 48, this Court said as follows:

“ ‘The exercise of the power conferred by section 110 of the Constitution is a subject that addresses itself to the prudence of the court, to be resolved on the merits of the particular case under consideration. The danger of an indiscriminate exercise of the power must be conceded, and, consequently, its invocation cannot be approved where the demand is based solely on counsel’s conception of a remediless error.’ ”

We find nothing upon which to grant a writ of prohibition. The petition is dismissed.


author: . CULLEN, Commissioner.

text:
    Marjorie YEARY et al., Appellants, v. Homer YEARY, Administrator of the Estate of William Yeary, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    Berry & Floyd, New Castle, for appellants.
    Thomas & Thomas, New Castle for ap-pellee.
   . CULLEN, Commissioner.

William Yeary, a resident of Henry County, Kentucky, was killed in an automo•bile accident. He left no estate other than a potential claim for damages finder the wrongful death statute. Marjorie Yeary (or Franzle), a resident of Michigan, cláim-ing to be his widow, filed an application that D. K. Floyd, an attorney of Henry County, be appointed as administrator. William’s father, Homer Yeary, opposed the application and asked that he be appointed administrator. The county court appointed Homer. Marjorie and Mr. Floyd appealed to the circuit court, which entered judgment upholding the action of the county court, and they have appealed from the judgment to this Court. •

Two terms of the county court had elapsed following William’s death, before Marjorie filed her application. Therefore, under KRS 395.040(2), any preference she might possibly have had with regard to the appointment of an administrator was lost, and who should be appointed became a matter of discretion of the court. Beddow v. Beddow’s Adm’r, Ky., 267 S.W.2d 87. (It is exceedingly doubtful’ whether Marjorie ever had any preference rights, because as a nonresident she was not eligible herself to be appointed, and there is authority to the effect that a nonresident does not have the right even to nominate an appointee.’ See Ellwanger v. Ellwanger’s Adm’r, 278 Ky. 584, 129 S.W.2d 127.) So the only question before us is whether the record shows that the county court abused its discretion in appointing Homer as administrator.

Marjorie’s claim to be William’s widow was based on the assertion that they had entered into a common-law marriage in Michigan, where such marriages are recognized as valid. It appears that both the county court and the circuit court were of the opinion, upon the evidence submitted in the respective courts, that she was not the common-law wife of William. We think the evidence requires the opposite conclusion. It further appears that the circuit judge entertained the erroneous view that a common-law marriage in another state, though valid in that state, will not he recognized in Kentucky. See Brown’s Adm’r v. Brown, 308 Ky. 796, 215 S.W.2d 971. However, this is of no significance except as it has bearing on the question of whether the county court abused its discretion in appointing Homer. Neither the county court nor the circuit court made any formal adjudication that Marjorie was not the widow of William, and their judgments are not to be construed as determining that question.

Under the wrongful death statute, KRS 411.130, a widow has a prior claim over a parent of a deceased to the damages recovered for a wrongful death. The argument of the appellants here is that the interests of Homer, as a parent of the deceased, will be to contest Marjorie’s claim that she is the widow and to prosecute the wrongful death action for his own benefit, and thus he occupies such an antagonistic position that it was an abuse of discretion for the court to appoint him as administrator.

Even though Homer will have the opportunity to litigate, in a proceeding for determination of heirs, the question of whether Marjorie is the lawful widow of William, and Homer’s interest in such litigation would be to disprove her claim of being the widow, it does not follow that the court abused its discretion in appointing him as administrator. His holding of the position of administrator would not give him any practical advantage in litigating the question of whether Marjorie is the widow. If it should be established by final adjudication that she is the widow, or even if the administrator should concede now that she is the widow, he could not prevent her from securing distribution of whatever damages may be recovered in the wrongful death action. There is no showing that he has such a hostile attitude that in the event Marjorie should be proved or conceded to be the widow he would not endeavor to prosecute the wrongful death action with diligence and good faith.

Wé are not aware of any rule that where' there are conflicting claimants to an estate the court must always appoint a disinterested third party as administrator. To the contrary, it is pointed out in Ricke’s Adm’r v. Rieke, 183 Ky. 131, 208 S.W. 764, that the statute itself, in recognizing certain rights of preference in appointment, authorizes persons to be appointed whose financial interests are antagonistic to those of other persons entitled to participate in the distribution of the estate.

In Hays v. Coy, Ky., 264 S.W.2d 258, it was held that an heir who would share in the undevised portion of his sister’s estate was not disqualified from appointment as administrator even though it would be to his interest to have the will construed as devising only a small amount of property. See also Barnett’s Adm’r v. Pittman, 282 Ky. 162, 137 S.W.2d 1098.

It is our opinion that there was no abuse of discretion by the county court in appointing Homer as administrator.

The judgment is affirmed.


text:
    LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Ruby TROUTMAN, Adm’x. of Estate of Marshall Troutman, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.

      Glenn W. Denham, Middlesboro, Henry L. Bryant, Pineville, R. H. Daugherty, James M. Terry, James F. Wheeler, Louisville, for appellant.
    Cawood Smith, G. E. Reams, Harlan, for appellee.
   STANLEY, Commissioner.

The appeal is from a judgment for $10,-000 against the appellant, L. & N. Railroad Company, for the death of Marshall Trout-man, who was killed at a grade crossing in a village in Harlan County which the record calls both Lejune and Shields. The appellant contends the trial .court should have directed a verdict in its favor because of absence of evidence of negligence or because of conclusive proof of contributory negligence. Alternatively, a reversal is claimed because of error in giving an instruction concerning an extrahazardous or exceptionally dangerous crossing.

The crossing and surroundings are clearly portrayed by plats and photographs, but a clear word picture is difficult to present. The track runs northeast and southwest but in the interest of simplicity we use the cardinal points. It is practically straight for a half mile or so north of this crossing. The train was southbound.

Kentucky Highway No. 38 parallels the railroad 150 feet on the east. A gravel or worn macadam road goes west from the highway for about 100 feet, then makes a jog to the left of forty feet or more and then turns right and crosses the railroad track practically at right angles. A significant fact is that an old vacant storehouse, 75 or 80 feet long, on the north edge of this road between the highway and the track blocks a traveler’s view of a train coming from the north. But when a traveler gets beyond that building, he has an open view and can see a train coming down the track for at least 2,000 feet, although an automobile driver has his back to the north for a few feet before entering upon the railroad track. Another structure is an old coal tipple on an abandoned parallel spur track 583 feet from the road crossing. At the time of the accident in January, 1958, there were some weeds and bushes along the edge of the railroad or perhaps some within the right of way, but photographs made when the conditions were the same show that these weeds and bushes formed no substantial obstruction to the view of a man in an automobile of a closely approaching train.

The crossing is what is generally called a “country crossing” of a public road. If it is not to be regarded as an extra-hazardous crossing by reason'of its location and surroundings, the question of negligence on the part of the railroad company is determinable by proof of its failure to comply with safety requirements of the statute, namely, (1) to maintain a signal crossing board that may be easily seen by travelers, KRS 277.160, and (2) to ring a locomotive bell or sound its whistle “at least fifty rods” from the crossing and continuously or alternatively until the engine reached the crossing. KRS 277.190. If the evidence was sufficient to describe prima facie an extrahazardous crossing, there was the added common law duty of the railroad company to protect the traveling public. That duty is generally defined to be to use such other or additional means to prevent injury to travelers as in the exercise of ordinary prudence or judgment might be considered necessary to afford protection.

It is undisputed that there was a proper crossing sign board at the crossing.

All the evidence was to the effect that the engine whistle or diesel horn had been blown for or about where Highway No. 38 crosses the track 2,000 or 2,100 feet north of the Shields crossing. The plaintiff’s evidence that such warning was not given between that point and the crossing (which would, be necessary to comply with the statutory requirement of warning within fifty rods or 82S feet of it) was mainly by witnesses who apparently were not listening or were not in a situation to hear the whistle or bell if it had been sounded. On the other side there was very positive evidence by the trainmen and two disinterested witnesses whose attention was directly called to the whistle that it was blown. We do not decide whether or not the evidence as a whole was sufficient in weight to establish a reasonable inference of negligence in this respect, or of proximate cause. Nor need we determine whether the evidence was or was not sufficient to warrant the instruction on additional or greater precautions than the statutory warnings because the crossing could be regarded as extrahazardous in character.

We consider the question of whether the court should have held as a matter of law that the deceased was contributorily negligent.

Two witnesses introduced by the plaintiff testified to the accident. An eleven-year-old boy, who was called principally to testify that the train whistle was not blown, testified on cross-examination that he saw the automobile coming “pretty slow” toward the crossing, and that when the driver got on it “he looked up at the train and then he started to get out” and “he was trying to escape and jump out the door and he didn’t hit the ground until the train hit the car and knocked the car into the hill.” A fourteen-year-old boy testified that he saw the automobile go on the crossing and that the driver was trying to get out when the train struck the car.

We summarize the evidence for the defendant. Charles Evans, who was on the road nearby, heard the train coming, saw the automobile going toward the crossing at a “very slow speed.” He added, “He kept moseying along, barely crawling, and when he got facing the crossing it came into my mind, ‘Ain’t he going to stop ?’ ” He testified that when the driver “looked around and saw what he had done he opened the door and jumped straight up.” Mrs. Florence Hinkle testified that her little boy was out playing, and when she heard the train coming she ran out of her house to see about his safety. She saw the automobile turn off the highway. As it approached the track “it was making a kind of racing noise like it was missing and the man was kind of bent over the steering wheel like this (indicating).” A railroad brakeman riding on the left side of the second engine saw the automobile come out from behind the old building when it was “ten or twelve car lengths back from the crossing” and make the turns in the road and go in front of the train. The fireman, who was sitting on the left side of the first engine, saw the automobile at about the same time and place and called to the engineer, “Hold it,” or “That’ll do” (which are trainmen’s calls “to go into emergency”). The engineer testified the fireman called to him when his engine was about 100 feet from the crossing. He applied the emergency brakes, and the automobile “appeared from the other side to my side, and I struck him about middleways of the car.”

Reverting to the description of the crossing. It is plain that when a motorist passed the old building on his right he could see up the railroad for at least 600 or 700 feet as far as the old tipple. When he turned left, his back was to the north and for a moment or so he could not, of course, see a train, but when he turned to the right, he still had 25 or 30 feet to travel before getting upon the crossing. At that time his view was clear and unobstructed. The train was going about 25 mph and the automobile at 5 mph or less. So, the decedent was bound to have seen the approaching train in time to have stopped or turned away. Instead, he kept right on until he got upon the crossing. No one knows whether he stalled his motor. When he realized his imminent peril, he tried to escape by getting out of his automobile.

It is unquestioned that a railroad crossing is in itself a warning of danger and that a traveler having knowledge of its existence must exercise care for his own safety in such a degree as is proportionate to the danger then present or apparent of being struck by a train. Nashville, C. & St. L. Railway Co. v. Stagner, 305 Ky. 717, 205 S.W.2d 493; L. & N. R. Co. v. Hyde, Ky., 239 S.W.2d 936. If he knows, or in the exercise of reasonable care and prudence must have known, of a train approaching by using his senses of sight and hearing in a way that an ordinarily prudent person would do under similar circumstances, and drives his automobile in front of the train, he assumes the risk of crossing in safety. If he miscalculates and is injured, he is guilty of contributory negligence. Hunt’s Adm’r v. Chesapeake & O. Railway Co., Ky., 254 S.W.2d 705; Louisville & N. Railroad Co. v. Hines, Ky., 302 S.W.2d 553; Chesapeake & O. Railway Co. v. Trimble, Ky., 306 S.W.2d 310.

Where there is reasonable room for a difference of judgment upon positive or inferential facts, the question of contributory negligence is for the jury. But when evidence in a given case is susceptible of only one reasonable inference with respect to a controlling issue, the question becomes a matter of law for decision of the court. In the present case the conditions surrounding the crossing and the facts of the accident are without contradiction. We conclude that the trial court should have directed a verdict for the defendant on the ground of contributory negligence of the plaintiff’s decedent. Nashville, C. & St. L. Railway Co. v. Stagner, supra, 305 Ky. 717, 205 S.W.2d 493; McCarter v. L. & N. R. Co., 314 Ky. 697, 236 S.W.2d 933; Hunt’s Adm’r v. Chesapeake & C. Railway Co., supra, Ky., 254 S.W.2d 705; Louisville & N. R. Co. v. Hines, supra, Ky., 302 S.W.2d 553; Chesapeake & O. Railway Co. v. Trimble, supra, Ky., 306 S.W.2d 310.

As the defendant made a motion for a judgment notwithstanding the verdict, CR 50.02, 50.03, upon return of the case the court will enter a judgment in accordance with this opinion.

Judgment reversed.


author: CULLEN, Commissioner.

text:
    Dewey ANDERSON et al., Appellants, v. UNITED FUEL GAS COMPANY et al., Appellees. Bernard HENSLEY et al., Appellants, v. Dewey ANDERSON et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    Grannis Bach, Jackson, J. K. Wells, Paintsville, H. Raymond Andrews, Jr., Charleston, W. Va., for Dewey Anderson, et al.
    H. Raymond Andrews, Jr. and William Roy Rice, Charleston, W. Va., J. K. Wells, Paintsville, for United Fuel Gas Co., et al.
    Henry L. Spencer, Jackson, for Bernard Hensley.
   CULLEN, Commissioner.

On the appeal of Dewey Anderson, et al., the question is whether the circuit court correctly adjudged that an oil and gas lease held by the appellees covers two tracts of land for which Anderson held unrecorded deeds at the time the lease was executed by Anderson’s grantors and their brothers and sisters, and that the lessees were bona fide purchasers for value so that the lease prevails over Anderson’s unrecorded deeds.

On the appeal by Bernard Hensley, et al., the question is whether a certain deed in Dewey Anderson’s chain of title covers all of one of the two tracts claimed by him, or whether it covers only part of the tract, leaving title to the other part in the appellants, who are children and nieces and nephews of Anderson’s immediate grantors. The circuit court held that Anderson’s deeds covered all of the tract in question.

We shall first consider the Dewey Anderson appeal

In 1939 the eight children of Granville Spencer executed deeds partitioning among themselves three adjoining tracts of land in which they had acquired joint interests under deeds from their grandfather and their father. Raymond Spencer was deeded a tract containing around 43 acres and Curnel Spencer was deeded a tract of around 48 acres. Later in 1939 Raymond and Curnel deeded their tracts to Dewey Anderson, but he did not record his deeds until 19SS.

In 1954 the eight children of Granville Spencer executed an oil and gas lease to the United Fuel Gas Company, purporting to cover a tract of 488 acres. The first question on the Anderson appeal is whether the description in this lease covers the two tracts previously conveyed to Anderson in the deeds which at that time were unrecorded.

The lease described the lands by reference to lands of adjoining owners, and referred to a 1911 deed as the lessors’ source of title. The difficulty with the description lies in the fact that the tract claimed by the lessees to be covered by the lease cannot be identified by reference to the lands of the adjoining owners named in the description. The description in the 1911 deed referred to in the lease as the source of title does adequately cover the tract claimed by the lessees, and it embraces the two parcels deeded to Anderson, but technically the lessors’ source of title to the portion of the tract embracing .the Anderson land was a deed of 1896 rather than the deed of 1911.

Anderson maintains that the description in the lease is so insufficient as to make the lease void. This is the only theory upon which he could prevail, because he is a stranger to the lease and his rights accrued before the lease was executed, so he is not in a position to claim he was misled by the description.

It is our opinion that in order for the lease to be held void the situation would have to be such that the land intended to be covered by the lease could not possibly be determined even as between the parties. Here, the parties are in complete agreement as to what land is covered by the lease. The lessors put the lessees in possession of the tract that the parties intended the lease to embrace. Furthermore, even though the description by reference to lands of adjoining owners was worthless, as between the parties the reference to the 1911 deed as the source of title could be resorted to for the purpose of identifying the land.

Although the description in the lease might not have been sufficient on its face it was capable of being made sufficient as between the parties. Under these circumstances Anderson, as a stranger whose rights arose before the execution of the lease, has no standing to question the sufficiency of the description. Cf. Barnett v. Portwood, Ky., 328 S.W.2d 164.

Anderson contends that the lessees were not purchasers for value within the meaning of the recording statute, KRS 382.080, and therefore his unrecorded deeds should prevail over the lease. Under the terms of the lease the consideration was recited as being “one Dollar * *, * and * * * the covenants hereinafter contained on the part of the said Lessee, to be paid, kept and performed.” The lease provided among other things for delay rentals in the amount of 50 cents per acre “payable annually in advance, beginning June 17, 1955.” At the time the lease was executed the lessees not only paid the lessors the specified $1.00 but also paid them an amount equivalent to one year’s rental, as a “bonus”. Some incidental expenses were incurred by the lessees but no drilling was done on the portion of the tract embraced in Anderson’s deeds before Anderson gave the lessees actual notice of his deeds.

Anderson relies upon Rader v. Shaffer, 186 Ky. 802, 218 S.W. 292, and Payton v. Morris, 240 Ky. 555, 42 S.W.2d 723, 725, as supporting his contention that the payments that had been made by the lessees here did not constitute a valuable consideration within the meaning of the recording statute. In those two cases the lessee had paid nothing but $1.00. The court said that the “substantial consideration” for the leases was the agreement to put down a well within a year or thereafter pay a certain rental, and that the lessees “had not paid any portion of the real consideration for the lease.” In the instant case, however, the lessees had paid an amount equal to one year’s rental ($244), and we think this can be considered a payment of a portion of “the real consideration for the lease”.

Summers, in his treatise on Oil and Gas, Vol. 2, Sec. 231, p. 124, has this to say about what constitutes valuable consideration for an oil and gas lease:

“ * * * But in the absence of an absolute legal duty on the part of the lessee to develop the land, or an actual expenditure of money therefor, it is submitted that under the ordinary modern oil and gas lease the lessee pays sufficient consideration .to entitle him to the position of a bona fide purchaser for value, even though the amount paid on the execution of the lease, judged by the standards used as to other conveyances, may appear to be merely nominal. The value of a lease for oil and gas purposes on land situated in unproven or wildcat territory is wholly speculative. The lessee under the modern lease of land in unproven territory usually pays a fixed sum per acre upon the execution of the lease. In one sense this is a payment in advance of the so-called rental for the privilege of exploring the land for the first year, or some other definite period fixed in the lease. If the land has a more or less proven character, a much larger sum of money may be paid as a cash bonus upon the execution of the lease. The sum paid for the lease, whether large or small, practically always represents the market value of the lease as established by the bargaining between lessors and lessees in the particular community, and the competition between prospective lessees for desirable lands. The mere fact, therefore, that the sum paid by an oil and gas lessee upon the execution of a lease is small, and judged by normal standards may appear to be only nominal, should not prevent the lessee from asserting the position of a bona fide purchaser for value, for the payment made usually represents the market value of the lease.”

We concur in the view expressed by Summers and we hold that the payments made in the1 instant case constituted a valuable consideration.

Anderson further contends that the lessees were not purchasers without notice, within the meaning of the recording statute, because the circumstances respecting the record title of the lessors was such as to put upon the lessees a duty of making inquiry. The circumstances which it is claimed raised the duty of making inquiry were that a long period of time had elapsed since there had been any recorded conveyances of the land, plus the fact that there were some conveyances of record, back in 1939, indicating that the children of Gran-ville Spencer had partitioned the land. We are not aware of any authority to the effect that the mere fact that the record title is old will create reasonable grounds for suspecting that the holders of the record title have sold the land. Nor do we find any basis for a holding that the fact that joint owners have partitioned their land among themselves would lead a prudent prospective purchaser to inquire as to whether any of the partitioned portions had later been sold to a stranger.

It is our opinion that the circuit court correctly decided the issues involved on the Anderson appeal.

With respect to the appeal by Bernard Hensley and others, the contention is that an 1896 deed in Anderson’s chain of title did not cover a certain part of one of the tracts deeded to Anderson, and that Hensley and his coappellees own this part under a deed of 1903. It is claimed that the 1896 deed did not embrace any land on the west side of a certain branch, and that this land passed under the 1903 deed. This claim is supported only by the personal interpretation placed upon these deeds by one of the daughters of Granville Spencer, and by her testimony to the effect that the correct boundaries had been pointed out to her by her father.

From our own examination of the deeds it appears reasonably plain that the 1896 deed does embrace the land on the west side of the branch and the 1903 deed does not. Two surveyors who plotted the descriptions so located the land. We think the evidence amply supports the judgment on this point.

A motion to dismiss the Hensley appeal was passed to the merits. It is hereby overruled.

The judgment is affirmed on both appeals.


author: ' WADDILL, Commissioner.

text:
    Frank BUCKNER, Appellant, v. CITIZENS BANK & TRUST COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Nov. 17, 1961.

      William Mellor, Louisville, for appellant. Millard Cox, Louisville, for appellee.
   ' WADDILL, Commissioner.

This controversy stems from the language used in paragraph 14(c) of the will of Mrs. Mary Buckner Nettelroth. The question to be resolved is whether the trustee under her will is required to pay for necessary repairs to a house which is a part of the trust estate.

Paragraph 14(c) reads:
“* * * should my brother, Frank Buckner, desire to live in my home on Blankenbalcer Hill, he shall be given complete possession and shall have free use of said property and all of its contents, other than those heretofore disposed of by this will, and my trustee shall pay all taxes thereon and the cost of all insurance which should reasonably be provided on said property. If my brother should not desire to live in my said home, the house and grounds are to be sold, and out of the sale price the trustee, if my brother so wishes, shall apply not to exceed Thirty Thousand Dollars ($30,000.00) to the purchase of a home to be selected by him for his use during his life, taxes and insurance on which are to be paid by my trustee. Any such home so purchased for the use of my brother shall remain a part of the trust estate.”

Frank Buckner chose not to live in the home on Blankenbaker Hill, and upon his request the trustee purchased a house in Florida for his use in accordance with the terms of the will. When repairs to this house became necessary, the trustee refused to pay for them and this action ensued. The Chancellor determined that the trust estate was not liable for the cost of ordinary repairs to the house in Florida.

On this appeal Buckner contends that, since the will provides he shall have the “free use” of a house, the Chancellor misinterpreted the will. Plowever, by specifying only that the trustee pay the taxes and insurance it is apparent that the testatrix intended to exclude other maintenance expenses. Consequently, the Chancellor properly interpreted the will.

By paragraph 14(b) of the will Buckner receives $500 a month. It is urged that to burden him with costs of the repairs to the Florida house would defeat the testatrix’s intention that he receive this monetary bequest in addition to the use of a house. The fact that Buckner may expend some of his money in repairing the house does not alter the fact that he is receiving all that the will gives him. The contention is unavailing.

Judgment affirmed.


author: CLAY, Commissioner.

text:
    Robert E. BLAKEY, Appellant, v. LOUISVILLE AND JEFFERSON COUNTY PLANNING AND ZONING COMMISSION, et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 17, 1961.

      Henry J. Burt, Jr., Louisville, for appellant.
    James L. Taylor, Louisville, for appel-lees.
   CLAY, Commissioner.

Appellant, the owner of real estate, sought by application to the Louisville and Jefferson County Planning and Zoning Commission to have the zoning classification of his property changed. The Commission rejected the application on the ground there had been no substantial changes since the merits of the proposed adjustment had been decided on a prior application. No public hearing was had. Appellant appealed to the circuit court and it dismissed the appeal on motion for summary judgment. He here contends the circuit court should have tried the merits of the application de novo, or at least should have granted him some relief.

In 1949, upon an application by a prior owner of the property and after a public hearing, the Commission declined to approve a change in the zoning classification. This decision was appealed, tried on the merits in the Jefferson Circuit Court, and a judgment was entered in 1950 affirming the decision of the Commission. About a year later appellant filed a new application seeking the same zoning change. This was heard by the Commission, the change disapproved, and an appeal was dismissed in 1958. Prior to this last judgment on appeal appellant had commenced other proceedings which ended in further rejections and appeal dismissals.

The principal contention of appellant is that for years he has been attempting to have a new hearing either before the Commission or the circuit court to determine whether or not changes in the development of this and surrounding property justifies a zoning adjustment. The real issue in the controversy, however, is whether the circuit court on appeal may review the action of the Commission in rejecting, without a public hearing, a new application.

The problem presented is procedural. KRS 100.053 provides that before any proposed adjustment is approved or disapproved the proposal “shall be the subject of a public hearing before the commission”. KRS 100.057(1) authorizes an appeal to the circuit court by a party of record “at such hearing”. Section (2) of this same statute provides that on an appeal to the circuit court there shall be a de novo hearing. The procedural scheme prescribed by the statute is unique and restrictive. It has given us trouble before. See Boyd et al. v. Louisville and Jefferson County Planning and Zoning Commission, et al., 313 Ky. 196, 230 S.W.2d 444, and Louisville and Jefferson County Planning and Zoning Commission, et al. v. Grady, Jr., et al., Ky., 273 S.W.2d 563. As a matter of fact, in another jurisdiction, this dc novo procedure has been declared unconstitutional. Ball v. Jones, Ala.1961, 132 So.2d 120.

It is apparent the right of appeal fixed by this statute is for the purpose of having a retrial of the merits of an application after a public hearing before the Commission. No provision is made for review of proceedings of a different character. It is certainly clear the circuit court may not conduct a new trial if there has been no public hearing before the Commission, and appellant was not entitled to that form of relief on his appeal.

The only remaining question is whether the circuit court should have remanded the case and directed the Commission to hold a public hearing on the latest application. Many serious questions arise concerning when and under what circumstances an applicant for a zoning adjustment is entitled to have a new hearing with respect to a proposed change which has theretofore been disapproved. We do not think those issues properly may be presented by an appeal to the circuit court under the statute. If the Commission acted arbitrarily or contrary to law in rejecting appellant’s application without a public hearing, appellant’s recourse must be to an independent action for a determination of this question. As we have observed, the appeal procedure prescribed in KRS 100.057 is limited to a retrial of the merits of an application, and does not extend to a review of the Commission’s alleged improper exercise of authority.

In our opinion the circuit court properly dismissed the appeal.

The judgment is affirmed.