that he threatened to arrest her, by means of which representations he obtained from the prosecutor effects and money of the value of $100. It was held that this was such an obtaining of money under false pretenses and indictable under the twenty-first section of the act of the 12th of July, 1842 (P. L. 345). See, also, Commonwealth v. O'Brien, 172 Mass. 248, 52 N. E. 77; Horton v. State, S5 Ohio St. 13, 96 N. E. 797, 39 L. R. A. (N. S.) 423, Ann. Cas. 1913B, 90; and case note to 17 L. R. A. (N. S.) 276. [2] The essence of the offense is that the false pretense should be of a past event, or a fact having a present existence, and not of something to happen in the future; as a promise to do an act in the future is not sufficient. The promise made to the prosecuting witness by the defendant that he would protect the witness and would settle the crime with the federal authorities was a reference to a future act; and, being a promise to do an act in the future, was not a pretense within our statute. Besides, the prosecuting witness was bound to know that defendant had no power to compromise a crime. However, in Parker v. State, 98 Ark. 575, 137 S. W. 253, the court said: "The false pretense itself is a fraudulent representation of an existing fact or past event by one who knows that it is not true, and of such a nature as to induce the party to whom it is made to part with something of value; and the facts constituting such false pretense should be stated with due certainty. But the false pretense need not be the only inducement to cause the party defrauded to sign the instrument or part with his goods; the pretense may be combined with other motives or be partly founded upon some promise. It is sufficient if the false pretense operated either alone or with other causes. Therefore it will not invalidate an indictment to allege other facts, promises, or causes in conjunction with the false pretense which is specifically set forth, if such false pretense is sufficient." And in Johnson v. State, 36 Ark. 242, the court held that it is not necessary that the false pretense should be such as is calculated to deceive a person of ordinary prudence or caution; that it was as criminal to defraud the unwary as the wary. [3] The testimony of the prosecuting witness, when given its strongest probative force, tended to prove that the defendant falsely represented to him that he was a revenue officer, and that he had the power and that it was his duty to arrest the witness; that, if witness would pay him $300, that would be the end of the matter. The false pretense was that defendant had the power and that it was his duty to arrest the prosecuting witness, but the defendant stated that he would not arrest him if he would comply with the terms of the defendant. In short, there was an implied threat that defendant would arrest the prosecuting witness if he did not comply with his terms. The evidence, we think, if believed by the jury, was sufficient to warrant a conviction. [4] It is also contended that there is a fatal variance between the indictment and the evidence as to the effect of the pretenses; and in this contention we think counsel are right. An indictment for obtaining money by false pretenses must set out the offense in such terms as will give the defendant notice of the specific criminal act with which he is charged. The indictment is quite lengthy, and we do not think any useful purpose could be served by setting it out in full. We deem it sufficient to say that it, in substance, charges the offense to have been committed by the defendant falsely representing to the prosecuting witness that he had the power to withhold from the federal authorities charged with the enforcement of the criminal laws of the United States all information against him, and that he would withhold such information for the consideration of $300. This was an allegation essentially descriptive of the offense as charged. As we have already seen, the evidence in behalf of the state at the trial tended to prove that the defendant falsely represented that he was himself a revenue officer; that he had the power and that it was his duty to arrest the prosecuting witness; but that he would not do so if $300 were paid him. Thus it will be seen that there was a fatal variance between the proof and allegation, and the court should have so instructed the jury. For the error in not doing so, the judgment will be reversed, and the cause remanded for further proceedings according to law. JOHNSON et al. v. WHITCOMB et al. (Court of Appeal of Kentucky. Nov. 11, 1915.) 1. WILLS 634-VESTED REMAINDERS-EX TINGUISHMENT. Where a will creates a life estate in trust, with remainder over at the death of the life tenant, the devisees take a vested remainder in fee, subject to defeat by their death prior to that of the life tenant. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig.. 634.] 2. REMAINDERS 16-VESTED REMAINDERSSALE. Gen. St. c. 63, art. 6, § 1, providing that remainders and contingent interests in land may be sold on petition of the owner of the present or a vested interest, all persons in being interested in the land being made parties, and the purchaser under such sale shall take all title of the present and future contingent claimants to said lands, authorizes the sale and reinvestment of estates of persons taking vested remainders after a life estate created by a will. [Ed. Note.-For other cases, see Remainders, Cent. Dig. § 11; Dec. Dig. 16.] 3. REMAINDERS 16 COURT-TITLE PASSING. SALE BY ORDER OF A testator created a life estate in trust for his wife and a remainder over on her death to four of his six brothers and sisters, but made no provision for the contingency of death of all the remaindermen pending the life estate. During the life estate the life tenant, by action under Gen. St. c. 63, art. 6, providing that sales of contingent interests may be made which shall be binding upon all contingent interests in the real estate, all persons in interest made parties, in which action the remaindermen and the heirs at law of the two sisters not named in the will were parties, procured the sale of a lot of land. Held, that children of the remaindermen were barred from attacking the sale, although they were not parties to the action for the sale. [Ed. Note. For other cases, see Remainders, Cent. Dig. § 11; Dec. Dig. 16.] 4. REMAINDERS 16 SALE BY ORDER OF COURT-OPERATION AND EFFECT. Where sale is made under Gen. St. c. 63, art. 6, providing for the sale of contingent interests in lands and a reinvestment of the funds, the sale and reinvestment cut off all rights of contingent takers, who must then look to the fund derived from the sale for their share. [Ed. Note.-For other cases, see Remainders, Cent. Dig. § 11; Dec. Dig. 16.] 5. PLEADING 8 PLEADING JUDGMENT CONCLUSIONS OF LAW. Action by Charles M. Johnson and others against J. A. Whitcomb and others. From a judgment for defendant on sustaining his demurrer to the petition, plaintiffs appeal. Affirmed. Edw. C. Wurtele and John Irick, both of Louisville, for appellants. Oscar Bader, of Louisville, for appellee Whitcomb. HANNAH, J. In 1888 Charles M. Thruston died, domiciled in Louisville. His will contained this language: "After the payment of the above legacies and my just debts. I devise and bequeath to my sister, Barbara F. Thruston, in trust for my dearly beloved wife, all the rest and residue of my estate of every kind and description, the income arising therefrom to be paid to my said wife during her life. After her death, to be equally divided between my brother and sisters hereinbefore named or such of them as may be living at that time." The brother and sisters referred to were John Thruston, Emma C. Thruston, Barbara F. Thruston, and Anna B. Johnson. The testator had two other sisters, Mary T. Rogers and Eliza Snydor Hornsby. He had no children. The widow died August 19, 1913. The remaindermen mentioned in the will had all died before that date. On May 21, 1890, an action was instituted in the Louisville chancery court, being No. 43540, and styled Leonora Thruston v. Barbara Thruston et al., to obtain a sale by the court of a lot on Fifth street, *in Louisville. The parties to that action were the life tenant, the remaindermen named in the will, and the heirs at law of the other two sisters of the testator. In that proceeding the lot in question was sold; and from the purchaser it passed by mesne conveyances to J. A. Whitcomb. After the death of the life tenant certain children of the devisee remaindermen and of Mrs. Hornsby instituted this present action against Whitcomb to recover possession of the property so sold. For the purpose of presenting at once all of the matters involved in the controversy, the plaintiffs, in addition to the usual allegations in ejectment actions, In ejectment for land plaintiffs alleged the conceded in their petition the sale of the sale of the land under order of the court in an property to Whitcomb in the aforesaid acaction "seeking a sale and division of the pro- tion No. 43540, but did not make the record ceeds of certain property of [testator's] estate,' to which the life tenant and remaindermen, and therein or a copy thereof a part of the peticertain heirs of testator not named in the will, tion so as to enable the court to determine were parties, but failed to set out any of the whether the proceedings in that action were record in such action, or to further allege, its regular; plaintiffs contenting themselves in contents. Held, on demurrer to the petition, that, in view of the presumption on collateral respect of the object and nature of that acattack in favor of the prior judgment, the alle- tion and the disposition of the proceeds of gation of the purpose of such action was a the sale therein, with the allegation that mere conclusion of the pleader and insufficient such action was instituted "seeking a sale to show that the action was not brought under Gen. St. c. 63, art. 6, under which plaintiffs, and division of the proceeds of certain propwho were heirs of the remaindermen, and not erty of said estate," including the property parties, would be bound by the sale. here in question. [Ed. Note.-For other cases, see Pleading Cent. Dig. §§ 12-282, 68; Dec. Dig. 8.] Appeal from Circuit Court, Jefferson Coun ty, Chancery Branch, First Division. The lower court sustained a demurrer to the petition, the plaintiffs declined to plead further, and the court dismissed the petition. Plaintiffs appeal. cient to overcome the presumption of regularity that attaches to the judgment there [1] 1. The devisees took under the will a vested fee simple estate in remainder; but this was subject to be defeated by their in. The plaintiffs have chosen to attempt a deaths before that of the life tenant. Mercantile Bank v. Ballard's Assignee, 83 Ky. 481, 7 Ky. Law Rep. 478, 4 Am. St. Rep. 160; Pruitt v. Holland, 92 Ky. 641, 18 S. W. 852, 13 Ky. Law Rep. 867; Lewis v. Shropshire 68 S. W. 426, 24 Ky. Law Rep. 331. [2] 2. Under article 6 of chapter 63, General Statutes, a sale of property so held was authorized. Sheirick v. Maxwell, 89 S. W. 4, 28 Ky. Law Rep. 173. That statute authorizes the sale of remainder and contingent interests in real property upon the petition of any person having a present or vested interest therein, for the purpose of reinvestment of the proceeds. See Kalfus v. Davie, 110 S. W. 871, 33 Ky. Law Rep. 663, wherein the whole of article 6 is cited. collateral attack upon that judgment; and, having so chosen, it was incumbent upon them to set forth the proceedings had therein, in such manner as to enable the court to determine whether the judgment therein was void. For these reasons, the chancellor's action in sustaining the demurrer to the petition was right. The judgment appealed from is therefore affirmed. GAMBILL et al. v. GRIGSBY et al. (Court of Appeals of Kentucky. Nov. 16, 1915.) 1. VENDOR AND PURCHASER 281 - BONA FIDE PURCHASERS-LIENS. [3] But it seems to be contended by the ap-ant's grantor, evidence held to warrant a finding In an action on notes executed by defendpellants that, under the statute mentioned, that the notes were not a lien and that the such a sale would not take with it the rights defendant purchased without knowledge of the of persons not made parties to the action; debt, and never assumed its payment. that, as the testator died intestate in respect of the disposition which should be made of the property in the event of the death of all the remaindermen prior to that of the life tenant, there was a possibility of reverter which came into being upon the death of the last remainderman and passed to the heirs at law of the testator upon the defeat of the fee; and that, as appellants were not made parties to the action in which such sale was had before the defeat of the fee, the sale could not operate to extinguish their possibility of reverter. The statute in question provides that the sale thereunder made shall invest the purchaser with all the title of the present and future contingent claimants to the said real estate; and we think this is amply broad enough to cover the possibility of reverter in such a case as this. No sale may be had under the statute mentioned unless it be for the purpose of reinvestment of the proceeds. [4] And, when the action is brought under this statute, and the judgment directs a reinvestment of the proceeds of the sale, the proceedings being regular, the purchaser takes an absolute title; the possibility of reverter being extinguished, so far as the property sold is concerned. Such a proceeding cannot prejudice the rights of those in whom there is a possibility of reverter in the event of the defeat of the fee; for in such event they may look to the proceeds of the sale or to the property therewith purchased. [5] The petition herein alleged that the action No. 43540 was brought for a sale and "division of the proceeds of sale." But this is a mere conclusion of the pleader. In the absence of the record in that proceeding or a more definite averment with respect to what it contains, such allegation is insuffi [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. 88 792-794; Dec. Dig. [.281ܚ A finding of the chancellor will not be disturbed on appeal, unless against the preponderance of the evidence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. 1009.1 Appeal from Circuit Court, Perry County. Action by J. C. Gambill and others against Mat Grigsby and others. From a judgment for defendants, plaintiffs appeal. Affirmed. J. B. Eversole, of Hazard, for appellants. Hogg & Johnson, of Hazard, for appellee Grigsby. NUNN, J. In this action J. C. Gambill and Louisa Colwell sue upon two notes executed by their brother, Joe Gambill, one for $400, payable to J. C. Gambill, and one for $250, payable to Louisa Colwell. It is alleged that they were executed on April 27, 1902, and were due and payable one year from date. It is further alleged that the notes were appellant's shares of the consideration for a tract of land which they then sold to Joe Gambill, the same land which Joe Gambill conveyed to the appellee, Mat Grigsby, on August 28, 1902. Suit was filed in 1910 against Grigsby and Joe Gambill, wherein appellants prayed for a lien and a sale of the land to pay the notes. No questions of law are involved. The court found, as a matter of fact, that appellants had no lien on the land. [1] It seems that in 1879, Elizabeth Gambill, the mother of Joe Gambill and appellants, owned the land in question. In February of that year she executed what purported to be a deed conveying it to Joe Gambill in consideration of $750, $300 of which was paid in cash and the balance evidenced by note. Joe Gambill took possession and resided there until 1902, when he conveyed to Grigsby. Joe Gambill's deed from his mother was not properly acknowledged, and, in February, 1902, a long while after her death, he filed an action on the deed, asserting that he had paid the consideration named, and that he was the equitable owner of the land. All of the heirs of Elizabeth Gambill were made parties defendant. Although served with process, none of them answered. The suit was settled in May of that year, by all of the heirs, including the appellants, joining in a deed, whereby they conveyed the land to Joseph Gambill. Appellants attempt to prove that some time after Grigsby took possession, but before Joe Gambill executed the deed to him, that Joe Gambill told Grigsby of the notes, and Grigsby agreed to pay them. It is not necessary to undertake an analysis of this evidence. The lower court found, and we are of the opinion that the evidence abundantly sustained his finding, that Mat Grigsby had no notice of appellants' demands or of their claim of lien against the land, if any they had, and never assumed their payment. [2] It is a well-settled rule that the chancellor's finding will not be disturbed on appeal unless against the preponderance of the evidence. In this case the evidence preponderates in favor of the judgment. Quigley v. Beam's Adm'r, 137 Ky. 325, 125 S. W. 727; O. F. L. Beckette & Co. v. Goodman, 140 Ky. 399, 131 S. W. 185; Collins v. Lawson's Committee, 140 Ky. 510, 131 S. W. 262; Paine "In consideration of the sum of $750, which was paid to the said Elizabeth Gambill during her lifetime by the said Joseph Gambill of the second part, and whereas, there was a suit in stituted in the Perry circuit court for the purpose of extracting said [land] from said first parties, and the said first parties for the purv. pose of compromising and avoiding said suit and V. Levy, 142 Ky. 619, 134 S. W. 1160. quieting said second party in his title to the hereinafter described tract of land, do hereby sell and convey to the party of the second part, his heirs and assigns the following described property, to wit," etc. The thing that prompted Joe Gambill to file the suit against the heirs of his mother was his desire to clear the title to his land so that he could complete a sale of it to Grigsby, which he had already agreed to make to him for $1,200. In February, 1902, when Grigsby was ready to carry out the trade, some question was raised about the efficacy of the deed under which Joe Gambill claimed title. Joe put Grigsby in possession under a title bond, with the understanding that the deed was to be made and the money paid when the title was cleared. After filing the suit, and securing from the heirs the deed already referred to, Joe Gambill conveyed the land to Grigsby by general warranty deed on August 28, 1902, "in consideration of the sum of $1,200 in hand paid." The deed was recorded on the day it was executed. Appellants lived in the same neighborhood, and knew that Grigsby was in possession, claiming title, and never asserted any lien or made any attempt to collect their notes, although themselves not in the best of circumstances, and one of them a borrower of money from other people. By this action, which they filed in 1910, they claim that the draftsman of the deed, by oversight or mistake, left out of it a provision setting up their notes with reservation of a lien to secure their payment. The evidence is not at all convincing that any such notes were executed as a consideration for land. The deed from the heirs to Joe Gambill and the deed from Joe Gambill to Grigsby recited full payment of consideration, and made no mention of notes, and there was nothing in either deed to apprise Grigsby of their existence or of a claim of lien on the land to secure their payment. Judgment affirmed. PATCHEN-WILKES STOCK FARM CO. v. WALTON. (Court of Appeals of Kentucky. Nov. 16, 1915.) ANIMALS 20-AGISTER'S LIEN "LEASE" -"AGISTMENT. Under Ky. St. § 2500, providing that all persons feeding and grazing cattle for compenreasonable charges, where plaintiff leased lands sation shall have a lien upon the cattle for their for grazing purposes, and his lessee pastured certain mares thereon for defendant, plaintiff had no lien upon such mares covering a charge for grazing them; since a "lease" is a conveyance of real property divesting the owner for a time of his estate, leaving him only the reversion, while "agistment" is a species of bailment, and cannot arise where the animals are not delivered into the possession of the person asserting an agister's lien. Plaintiff's lessee was in possession of the premises; consequently plaintiff was not in possession of the mares. [Ed. Note. For other cases, see Animals, Cent. Dig. $$ 54-69; Dec. Dig. 26. For other definitions, see Words and Phrases, First and Second Series, Agistment; Lease.] Appeal from Circuit Court, Fayette County. Action by J. F. Walton against the Patchen-Wilkes Stock Farm Company and another. Judgment for plaintiff, and defendant named appeals. Reversed, with directions to enter judgment dismissing the petition. Harry B. Miller and H. E. Ross, both of Lexington, for appellant. Matt. S. Walton and Rives & Shannon, all of Lexington, for appellee. HANNAH, J. J. F. Walton leased to W. E. Bean certain lands in Fayette county for grazing purposes, the term to begin March 15, 1913, and to continue for one year, the rental being $200 per month, payable on the 15th days of April, May, June, July, August, September, October, and November, and $300 per month thereafter for the remaining four months. Bean leased this land from Walton for the, claiming that he was indebted to it. The purpose of grazing thereon certain brood mares, however, remained on the premises mares, the property of the Patchen-Wilkes Stock Farm Company, with which corporation he had a contract of agistment. The mares The mares were grazed on the premises so leased from March 15, 1913, to October 15, 1913; and Bean paid to Walton the rentals due under the lease up to July 15, 1913 (less the sum of $64.20), and thereafter he made no further payments. On October 22, 1913, Walton sued Bean and the Stock Farm Company in the Fayette circuit court for the rentals due under the lease to October 15, 1913, amounting to $664.20; the company being joined as a defendant upon the theory that Bean leased the lands as its agent. By an amended petition it was charged that the defendant corporation (by its president, Stokes) had agreed to pay plaintiff for the grazing of the mares. The cause was submitted on July 11, 1914, and on July 15, 1914, the order of submission was set aside, and plaintiff filed a second amended petition, wherein he sought to as sert an agister's lien on the mares, which, it seems, were at that time on Walton's premises under a contract between him and the corporation direct. An attachment was a few days later sued out. The chancellor rendered a judgment in plaintiff's favor against the defendant corporation in the sum of $664.20, and sustained the attachment. The defendant Patchen-Wilkes Stock Farm appeals. It appears from the evidence that Stokes, the president of the Stock Farm Company, promised Walton to make such checks as were sent to Bean for the board of the mares, payable to both Bean and Walton, so that the latter could protect himself in the matter of the rentals due him from Bean under his lease, although Stokes claims this promise was qualified to the extent that such checks were to be so sent only so long as the Stock Farm Company was indebted to Bean. In any event, the proof fails to show any promise of the defendant corporation to pay the rentals provided for in the lease from Walton to Bean, and it is therefore unnecessary to discuss whether, as appellant contends, such promise is within the statute of frauds. Appellee upon this appeal, in fact, abandons that theory of the case, and rests his right of recovery purely upon the ground that he was entitled to an agister's lien. It appears from the record that the Stock Farm Company did, in fact, send checks for the board of the mares made payable to the order of Bean and of Walton, up to August 15, 1913, after which date the company refused to make further payments to Bean, leased by Walton to Bean, and the Stock Farm Company knew this. Bean made no further payment of rentals under the lease. Appellee states in his brief (though it does not otherwise appear) that the chancellor, in considering the case, became convinced that, in view of the fact that the company had sent checks for the board of the mares, made payable in the manner above mentioned, and then ceased to make further payments to Bean, but left its mares "on Walton's premises," such act was equivalent to the placing of the mares thereon by the corporation itself, and that Walton was therefore entitled to recover under Kentucky Statutes, § 2500, giving liens to agisters.. This section reads as follows: "All owners and keepers of livery stables, and persons feeding or grazing cattle for compensation, shall have a lien upon the cattle placed in such stable or put out to be fed or grazed by the owner or owners thereof, for their reasonable charges for keeping, caring for, feeding and grazing the same; and this lien shall attach ed, fed, grazed and cared for, or are placed at whether the cattle are merely temporarily lodgsuch stables or other place or pasture for regular board; but it shall be subject to the limitations and restrictions as provided in case of a landlord's lien for rent." 1. A lease is a conveyance of real property, and it divests the owner for a time of a certain estate therein, leaving in him the reversion. Mattingly's Ex'r v. Brents, 155 Ky. 571, 159 S. W. 1157. Walton, having leased the premises in question to Bean for the term of one year beginning March 15, 1913, and ending March 15, 1914, was not in possession of the premises during the period of August 15, 1913, to October 15, 1913. In intendment of law, the lands so leased were in the possession of Bean, the lessee, and the landlord could not be entitled to an agister's lien on the brood. mares thereon grazed. He was not "feeding or grazing" them; Bean was doing this.. "Agistment" is a species of bailment, and cannot arise where the animals were not delivered into the possession of the person who asserts the agister's lien; and, as the tenant was in possession of the premises, the landlord was not in the possession of the mares. thereon grazed. Cotton v. Arnold, 118 Mo. App. 596, 95 S. W. 280. It follows, therefore, that the chancellor erred in holding Walton entitled to an agister's lien on the mares in question and in rendering judgment in his favor against the defendant Stock Farm Company. The judgment is reversed, with directions to enter a judgment dismissing the petition as to the defendant company. |