cuted, and it was done by notice and rule in this action. It is contended that the court erred in summarily rendering the judgment under which the sale was made. The parties were before the court in that proceeding, and the judgment was not void. This court has held that such a proceeding can be had. It was said in Page v. Hughes' Heirs, 9 B. Mon. 115: "The chancellor has the power, after a failure of a purchaser of property sold by his order to pay for it, to order its resale, which may be for cash or on a credit, as the chancellor may deem most proper." It was said in Lloyd v. Wagner, 93 Ky. 653, 21 S. W. 337: "We see no reason why the chancellor could not resell the property. It left the securities in the purchase-money bonds liable for any deficit, and it is the constant practice of courts of chancery to resell where the purchaser fails to pay." We have noticed only such questions raised by the response as we deem necessary to be considered. The judgment is affirmed.

"Not to be officially reported."
Petition for rehearing. Denied.
For former report, see 51 S. W. 608.

HAZELRIGG, C. J. The thing adjudged in the Green-Cummins Case, 14 Bush, 174, was that the assignee of a land note must use due diligence in its collection, in order to hold the assignor on the assignment, although a want of such diligence did not, of course, affect his right to enforce his lien against the obligor in the assigned note. And it is not true, as earnestly insisted by counsel on rehearing, that this question was distinctly reserved by the court in that case. What was expressly reserved by the court in that case was this: There were three Redd notes assigned by Cummins to Green. One of them was paid, and suit was brought against Cummins on the other two, seeking to hold him on the assignment. It did not appear in the record whether there was or was not any liability on Cummins growing out of the assignment of the third note. It was due at a later date, and due diligence might have been exercised by Green in suing on it, for all the record shows to the contrary. Under these circumstances, this court held that, it being conceded that Green had not used due diligence in his suit on the second note, Cummins was not liable as assignor. But, the facts as to the other note not appearing, no question of the marshaling of assets was presented. The judgment below was held to be correct in releasing Cummins on the second note, but erroneous in deciding, in effect, that he was liable on his assignment of the last note, the record presenting no state of case calling for the determination of the priority of liens. Petition overruled.

HOLMES v. HOLMES et al.1 (Court of Appeals of Kentucky. Oct. 25, 1899.)

BILLS AND NOTES-MISTAKE-VENDOR AND PURCHASER VENDOR'S COVERTURE DEFECT IN TITLE CURED BY REMOVAL OF DISABILITY.

1. Defendant cannot plead a mistake in the notes sued on, where it does not appear that he thought they contained the omitted stipulation.

2. A purchaser who has not been disturbed in his possession cannot have a rescission on the ground that the contract was void by reason of the vendor's coverture, of which he had knowledge at the time of the sale and the execution of the deed, provided the vendor is discovert when payment of the residue of the purchase money is sought to be enforced, and a new and sufficient deed is then tendered, especially where the parties cannot be placed in statu quo.

Appeal from circuit court, Pendleton county.

"To be officially reported."

Action by S. J. Holmes and J. R. Holmes against T. J. Holmes to enforce a vendor's lien. Judgment for plaintiffs, and defendant appeals. Affirmed.

J. T. Simon, for appellant. John H. Barker, for appellees.

GUFFY, J. Amanda Holmes, a married woman, was the owner of two tracts of land in Pendleton county; and on the 18th of November, 1892, she sold and conveyed the same by warranty deed to the appellant, at the price of $1,347.81, $542.50 of which was paid in hand, and two notes executed for the remainder, due the 1st of March, 1894, and the 1st of March, 1895, respectively. The vendee entered upon and took possession of said land. It further appears that on December 24, 1894, the said Amanda Holmes, by writing, assigned said notes to the appellees, S. J. and J. R. Holmes, who on the 6th of September, 1895, instituted suit in the Pendleton circuit court seeking to recover judgment upon said notes, and for a sale of enough of the land aforesaid to satisfy the same. It further appears that before the institution of the said suit the said Amanda became discovert, and was then a At the October term, 1895, of single woman. the court, the appellant filed his answer and cross petition, in which it is alleged that at the time of the execution of the deed the said Amanda was a married woman, and that by mistake of appellant and her they thought she could make a valid deed, but that the deed passed no title to him, and that the notes are without any consideration. It is further alleged that at the time of said conveyance and execution of the notes the agreement was that appellant should have as long a time to pay off and discharge said notes as he desired, and upon which condition he executed the same, relying upon the promise of his said mother to indulge him, and with said understanding he paid thereon $420.66, and, relying

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

he had undisturbed possession of the land, and made no objection to the title until payment of the residue of the purchase money was attempted to be enforced. We know of no case in which a rescission has been adjudged under substantially the same conditions surrounding this case. Substantially the same question involved in this case was decided by the supreme court of Iowa in Chamberlain v. Robertson, 31 Iowa, 408. In that case an executory sale had been made of real estate to a married woman. It could not have been enforced as to her on account of her coverture, but she sought a specific enforcement of the contract. The vendor sought to avoid the contract on account of the lack of mutuality. But Beck, J., said in the opinion in that case that in no case will a person contracting with a married woman be relieved from his contract on the ground of want of mutuality, if it appears certain that under the facts of the case he will not be exposed to loss or injustice by its enforcement. It is further said in the opinion supra, "The disability of a married woman, whereby she is exempted from the obligation of her contracts, is not created by the law for the benefit of those who contract with her, but for the protection of herself and husband." Moreover, it seems impossible in this case to place the parties in substantially the same condition that they were before the sale was made. It would therefore be inequitable to adjudge a rescission in this case. Judgment affirmed.

DAVIS et al. v. BAILEY et al.1 (Court of Appeals of Kentucky. Oct. 25, 1899.)

APPEAL AND ERROR-QUESTIONS FOR REVIEW IN ABSENCE OF BILL OF EXCEPTIONS-FAILURE TO EXCEPT TO INSTRUCTIONS-ERROR AS TO DEFENDANT NOT APPEALING.

1. In the absence of a bill of exceptions, the only question presented is as to the sufficiency of the pleadings to support the judgment.

2. There can be no reversal for error in instructions to the giving of which no exceptions were taken.

3. In the absence of the evidence, it cannot be said that instructions given were not authorized by the testimony.

4. There can be no reversal for error in instructions by which a defendant who is not ap pealing was alone prejudiced.

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

Action by A. B. Bailey and others against D. S. Davis and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

J. J. C. Bach, for appellants. J. B. Marcum, for appellees.

GUFFY, J. This appeal is prosecuted from a judgment of the Breathitt circuit court rendered in favor of appellees against appellants and one Carpenter. No appeal is, however, prosecuted by Carpenter. There is no bill of

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

exceptions filed. Hence the only question presented for decision is whether the pleadings are sufficient to support the judgment. After a careful consideration of the petition and other pleadings, we are of opinion that the allegations sustain the judgment, and the verdict of the jury must be considered as fully authorized.

It is suggested for appellants that the court erred in some of the instructions given, but it does not appear that any exceptions were taken to the instructions. Moreover, we cannot say that the instructions were not authorized by the testimony, for the reason that no bill of evidence is before us.

Some complaint is made as to the instruction of the jury to find against Carpenter for the sums claimed. Carpenter, however, is not appealing, and, besides, it may be that the evidence fully authorized the instruction in question. Perceiving no error prejudicial to the substantial rights of the appellants, the judgment is affirmed.

BEATTYVILLE COAL CO. v. BAMBERGER, BLOOM & CO.'S ASSIGNEE,1 (Court of Appeals of Kentucky. Oct. 25, 1899.)

CORPORATIONS-SERVICE OF PROCESS.

Where it appeared by uncontradicted affidavit that the person on whom process was served as "manager" of defendant corporation was in fact only a bookkeeper, and that the company had a vice president and general manager, the service was not good, though the return stated that "the president and chief officers" were absent from the county, there being no designation of the officers who were thus absent.

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

Action by the assignee of Bamberger, Bloom & Co. against the Beattyville Coal Company. Judgment for plaintiff, and defendant appeals. Reversed.

J. M. Beatty, for appellant. G. W. Gourley, for appellee.

WHITE, J. Appellee recovered a default judgment against appellant in the Lee circuit court, and appellant, after notice, moved the court to set aside the judgment as void, because there was no service of summons. The return on the summons reads: "Executed on the Beattyville Coal Co. by delivering W. C. Sympson, manager for said company, a true copy hereof, March 25, 1896, the president and chief officers of said company being absent from Lee county at this time." On the motion to set aside the judgment, appellant filed the affidavit of its vice president and general manager, who was such at the date of the service of the summons on Sympson, and that affidavit denies that Sympson was ever at any time agent or manager of appellant, and was only employed as bookkeeper. It also discloses the fact that Robert Wallace was at that date vice president and general manager

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

of appellant. This affidavit is not contradicted. The court refused to set aside the judgment, and from that order this appeal is prosecuted.

We are of opinion that the service on Sympson was insufficient. Bridge Co. v. White's Adm'r (Ky.) 49 S. W. 36. The uncontradicted affidavit shows that Sympson was not an agent of appellant, and that at that time there was a vice president and general manager; and the affidavit does not disclose the presence of that officer on March 25, 1896, in the county of Lee, nor does the return show that any of the chief officers mentioned in subsection 33, § 732, Civ. Code Prac., save the president, were absent from Lee county; wherefore the judgment is reversed, and cause remanded, with directions to set aside the default judgment rendered, and to quash the return of the sheriff on the summons, and set aside the order sustaining the attachment, but not to affect the levy of the attachment, if otherwise valid, and for further proceedings consistent herewith.

KOETTER v. GERMAN-AMERICAN TITLE

CO.1

(Court of Appeals of Kentucky. Oct. 24,

1899.)

PAYMENT-ASSIGNMENT OF DEBT.

Where the purchaser of mortgaged property had notice that the payee in the mortgage bonds was no longer the owner thereof, a payment of the bonds to such payee did not discharge the debt.

Appeal from circuit court, Jefferson county, chancery division.

"Not to be officially reported."

Action by Mary C. Koetter against the German-American Title Company to cancel certain mortgage bonds to quiet title to land. Judgment for defendant, and plaintiff appeals. Affirmed.

Pryor, O'Neal & Pryor, for appellant. B. K. Marshall and Phelps & Thum, for appellee.

HAZELRIGG, C. J. This case is similar in some respects to the case of Insurance Co. v. Hall (Ky.) 50 S. W. 254, and, as there announced, the principal and interest of the mortgage bonds being payable to the German-American Title Company, the subsequent vendee of the mortgaged property had the right to pay the mortgage debt to that company, unless before such payment such owner had notice that the company was not entitled to collect it, because no longer the owner and holder thereof. On the question of notice, however, this case differs from the former one. We are convinced, as was the chancellor, that the proof conduces to show knowledge on the part of the owner's agent that the title company had sold the mortgage bonds, and was no longer the owner of them.

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

The deposit of the money, therefore, with the title company by the owner, was not in payment of the bonds, but merely operated to constitute the company the agent of the owner to take up and discharge the bonds in the hands of their real owner. The property owner thus trusted the company, and is the loser from the failure of that company to perform its promise. The judgment is affirmed.

CORNETT v. COMBS.1

(Court of Appeals of Kentucky. Oct. 25, 1899.)

CONTINUANCE-AMENDMENT OF PLEADINGSISSUE OUT OF CHANCERY-CONFLICTING LAND PATENTS-BURDEN OF PROOF.

1. It was not error to refuse to grant plaintiff a continuance on account of the absence of one of several attorneys who represented him, there being nothing to show what material advantage the presence of his absent counsel would have been.

2. In an action to enjoin a trespass, an amended petition alleging damages, which was not offered until after the issue had been made up for a year, came too late.

3. Plaintiff was not entitled to the trial of an issue out of chancery, where the only relief sought was an injunction against a threatened trespass by the cutting and removing of timber. 4. Plaintiff's patents and surveys being of later date than defendant's, they were void as to the conflict.

5. Though defendant in an action to enjoin a trespass did not show perfect title in himself to the land, he was entitled to a verdict because of plaintiff's failure to show a perfect title.

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

Action by Elijah Cornett against Sampson Combs for an injunction to restrain a threatened trespass. Judgment for defendant, and plaintiff appeals. Affirmed.

E. E. Hogg, for appellant. W. H. Miller and J. J. C. Bach, for appellee.

WHITE, J. Appellant brought this action in equity, seeking an injunction for threatened trespass by cutting and removing timber. There is no allegation of insolvency of appellee. Appellee answered, and denied that appellant had title to the land claimed. Pending the action, certain timber that had been cut was sold by order of court, and bonds taken for the purchase price. The proof taken is confined to the question of title, as though the action was trespass or ejectment. On the trial before the court, as there was no order for a trial out of chancery, or a transfer to the law docket, the court refused to grant appellant any relief, and dismissed his action, and adjudged the proceeds of the timber sold to appellee. From that judgment this appeal is prosecuted.

This action was filed in August, 1896, and issue was joined by answer at the September term following. At the December term, 1897, after numerous depositions had been taken and filed, the appellant asked a continuance

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

upon the ground of the absence from court of one of his counsel. This motion the court overruled. Appellant, after his motion for continuance was overruled, offered an amended petition, claiming that by reason of the cutting of the timber he was damaged in the sum of $250. The court refused to permit this amendment to be filed. Appellant then asked an issue out of chancery to try the question of damage, and also to try the question of title. The court overruled this motion. All of these rulings, as well as the judgment on the merits, are assigned as errors for which a reversal is asked. The original petition asks for an injunction to prevent appellee from removing timber already cut. There is no claim for damage. There was no error in refusing a continuance. The proof had been taken, and was in deposition, and we are not informed what material advantage to the appellant his absent counsel could have been to him. It is not contended that appellant had only the one attorney. There were others present representing him. There was no error in refusing to permit the amendment to be filed. The timber had been sold by a receiver to appellant for $299.50, and with the timber, and the bond for the price unpaid, there could have been no damage of $250, as claimed. Besides the amendment came too late. as the issues had been made up a year. There was likewise no error in refusing an issue out of chancery. There was no issue to be tried by a jury. The only remedy sought was injunction, a purely equitable remedy. We are of opinion that on the merits the court properly refused to grant relief. However, it was shown that the land from which the timber was cut was covered by a patent and survey to Everege of date in 1848, under which appellee claimed, and also covered by two patents and surveys to appellant of much later dates. Thus it is clear that as to the conflict the patents of appellant were void (Gibson v. Board [Ky.] 43 S. W. 684, and authorities cited), and by the proof it is not shown that he ever acquired title by adverse possession. True, appellee did not show perfect title in himself to the land, there being a missing link, but, being a defendant, he occupied a better position than did appellant. Perceiving no error in the judgment, the same is affirmed.

good; there being no allegation that not enough of defendant's property will be left in the state "to satisfy the plaintiff's claim or the claims of defendant's creditors."

2. Notwithstanding such a defect in the petition, plaintiff is entitled to judgment for the debt after it has matured, no answer being filed.

3. An attachment issued in such an action should be sustained after the debt has matured, if the grounds be sufficient to authorize an attachment for a debt which is due, though not sufficient to authorize an attachment for a debt which has not matured; as plaintiff may, under Civ. Code Prac. § 268, amend his affidavit, and set up a ground of attachment which did not exist when the attachment issued.

4. Where two actions, in each of which an attachment was issued, were consolidated, and the pleadings in one case were treated as if filed in both, the failure of one of the affidavits to state that the debt was just was cured by the denial in the other case that the debt was just; the sufficiency of the affidavit not having been presented or considered in the lower court.

5. One partner may sue another on a note given to him for a sufficient consideration, though growing out of partnership business.

6. An action may be maintained on notes given by a partner to his co-partner where there has been a settlement of partnership accounts, in which defendant has agreed to pay the notes; and that fact may be set up in a reply, by way of avoidance, where defendant has pleaded that the notes were given for accommodation in the firm business, and were without consideration, plaintiff having the right to maintain an action on the notes as if they had been redelivered at the time of the settlement.

7. Such notes are without consideration to the extent that they exceed the amount which defendant owed upon a settlement.

8. An error in the settlement of partnership accounts can be corrected without going over the rest of the account.

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

Consolidated actions by Benjamin Hey against C. M. Harding on certain bills of exchange. Judgment for defendant, and plaintiff appeals. Reversed.

Edward W. Hines, J. T. Simon, and J. Q. Ward, for appellant. Blanton & Berry, for appellee.

HOBSON, J. Appellant, on April 15, 1895, filed his petition in equity in the Harrison circuit court against appellee, among other things on three bills of exchange, aggregating $1,623.15, executed by appellee to him under the name of Benjamin Hey & Co., in which he alleged he did business. The petition was in the usual form, except that it alleged that appellee was a nonresident of the state, and sought to subject to the debt, by attachment, certain property of his within the state. Appellee appeared personally in the action, and filed answer, by which he admitted the execution of the bills sued on, but alleged that they were executed solely for accommodation, and that they were without consideration. He also alleged that he and appellant, prior to the execution of the bills, entered into a contract of partnership for the purpose of training and developing trotting horses; that the expenses of the firm were to be paid by each partner in proportion to the number of horses kept by