JUDGMENTS-See Executors and Administrators; Divorce
Alimony-
Final-Interlocutory Orders.—Orders made pending an action,
directing a trustee to pay to the beneficiary certain sums, will
be treated as having been merged in a final judgment render-
ed, fixing the amount due by the trustee. Patrick v. Patrick.. 71
Dismissal as to All Resident Defendants.-No judgment can
be rendered against the defendant served in another county
when the action is dismissed as to all resident defendants.
Munday v. Gott, et al.......
The Interest on a Judgment for $22,000 recovered by the
plaintiff against the L. & N. R. R. Co. with Damages Which
was Appealed to and Affirmed in the U. S. Supreme Court
must be counted at Six Per Cent. from its rendition until
paid, but no interest must be counted on the ten per cent.
damages.-M. recovered a judgment against the L. & N.
R. R. Co. for $22,000 on September 7, 1906. The railroad com-
pany appealed to the Court of Appeals. The judgment was af-
firmed with ten per cent. damages on May 13, 1908. On May
21, 1908, the railroad company appealed to the United States
Supreme Court, executing a bond that it would prosecute its
writ of error to effect and pay all damages and cost if it
should fail to make good its plea. The Supreme Court on May
21, 1910, affirmed the judgment of the Court of Appeals, but
did not award damages. Held, that the interest on the judg-
ment for $22,000 must be counted at 6 per cent. from its ren-
dition to the time it was paid, and no interest is to be counted
on the 10 per cent. damages. L. & N. R. R. Co. v. Melton ... 242
Collateral Attack-Title-Action to Quiet-An attack upon a
judgment rendered by a court of general jurisdiction in an-
other action in which plaintiff was named as a party defend-
ant, and pleaded by the defendant in bar of plaintiff's recov-
ery, in an action to quiet title, is not direct but collateral,
and can not be maintained unless the record of the pro-
ceedings shows a want of jurisdiction. Bamberger v. Green... 258
5. Pleading Proof.-Where the allegations of the petition are
denied, and plaintiffs introduce no proof to sustain them, judg-
ment for the defendants is proper. McGoodwin Banking Co. v.
Gooch, et al.
550
Effect to Be Given To.-In the case of a judgment rendered
by a domestic court of general or superior jurisdiction, which
is attacked in a collateral proceeding, there is a presumption,
which can only be overcome by positive proof, that the court
had jurisdiction, both of the person and the subject matter,
and proceeded in the due exercise of that jurisdiction, Farns-
worth, et al v. Barret, et al.......
Presumption In Favor of.-In the support of the judgment of
a court of general jurisdiction, as against a collateral attack,
It will be presumed, unless it is expressly shown to the con-
trary, that legal and proper process was issued in the action,
and that it was duly and regularly served upon the defendant.
Idem .
Collateral Attack-Direct Proceeding-A judgment may not
be collaterally attacked; the only way in which it may be
avoided is in a direct proceeding, brought for the purpose of
having it vacated. Duff v. Hagins...
JURISDICTION-See Appeals, 3, 7, 11; Infants, 4; Inheritance,
General Demurrer Sustained-Dismissing Petition for Want of
Jurisdiction Void-Judgment.-The Circuit Court dismissing
an action for want of jurisdiction, and also holding the petition
insufficient on general demurrer, the judgment dismissing the
action for want of jurisdiction being affirmed, so much of the
judgment as held the petition insufficient on demurrer is void,
as the court had no jurisdiction of the subject matter. Com-
monwealth v. Stumpf's Admr....
JUROR, RELATIONSHIP-See New Trials, 1, 13.
LANDS-TAXATION-FORFEITURE-
Assessment-Failure to List and Pay Taxes-Forfeiture-Old
Land Grants. In a proceeding brought pursuant to section
4076b to 4076k, Kentucky Statutes, to forfeit lands for a fail-
ure to list them for taxation, a forfeiture will not be decreed
of the land owned by the claimant in excess of that listed
by him where he in good faith listed for three of the years
embraced by the statute all the land that he believed he
owned, and the State officers accepted the assessments and he
paid the taxes thereon. Commonwealth v. Cornett, et al..... 45
Litigation of Title with Commonwealth.-In such a proceed-
ing the defendant will not be required to litigate his title in
any respect other than that of a forfeiture for non-listing for
taxation, or non-payment of taxes, but the Commonwealth
may show that those through whom the defendant claims
forfeited the lands because of their failure to list or pay
taxes thereon. Idem.
Sale of to Enforce Lien-Equitable Lien and Rights of
Parties. In an action to enforce a lien on land for a balance
of the purchase money for which a judgment was had and
a sale made in February and purchased and confirmed in Sep-
tember, 1909: Held, under an agreement made between ap-
pellee and L. the court should have told the jury that they
should find for appellee, unless they believed that appellee
and his son-in-law, J. L., purchasd the land at commissioner's
sale in partnership. If this agreement was made, J. L. had
the equitable title to one-half of the land, appellee holding the
title to one-half of it in his own right and the balance in trust
for L. In other words, appellee had a lien on one-half of the
land for one-half of the purchase money. Big Sandy Railway
Co. v. Justice ...
Contracts-Specific Performance-Agency.-When a writing
was signed by A. authorizing B. to sell his land to C., and to
buy for him C's land, the writing when signed by C consti-
tuted B the agent of both parties. Posey, et al v. Kimsey.... 205
Sufficiency of Petition-Tender of Title and Defects Therein.
-A petition that tenders a performance of the contract ac-
cording to its terms is good, although it may not aver that
the plaintiff had a good title, as it is incumbent upon the
defendant if he wishes to question the title to point out the
defects, if any, that exist. Idem.....
Description of Land-When Sufficient.-A contract proposing
to sell "my farm known as the Jno. Baskett home farm,"
although it did not contain any other description of the land,
was not void under the statute of frauds. If a writing contains
such a description of or reference to the land as that it may
be identified by parol evidence it will be sufficient. Idem.... 205
Time to Remove Defects in Title.-Ordinarily, time will be
allowed the vendor to remove defects in his title and speci-
fic performance will be decreed, although the title may not
be good when the contract is made or the suit brought, if
it is good when the decree is entered; and, if time is not of
the essence of the contract, the court will permit the vendor
if he can do so within a reasonable time to supply the defects
in his title so as to comply with his contract. Idem.....
Liens Upon Land of-Vendor-Effect of.-If there are liens
upon the land of the vendor that he is seeking to compel
the vendee to accept, and they are less than the amount of
the purchase price that the vendee has agreed to pay, the
existence of the liens will not furnish a reason for not en-
forcing the contract, as the liens can be discharged out of
the money due by the vendee. Idem....
206
Offer of Vendor to Release Lien and Tender Good Title-Ef-
fect of. When there is a lien on the land of the vendor,
which he offers to remove, he need not do so until the vendee
expresses a willingness to take the title freed from the lien
or the court indicates that he will compel him to do so if
the lien is released. Idem......
... 206
10. Discretion of Court in Ordering Specific Performance. The
discretion vested in the court in cases seeking the specific
performance of contracts is not an arbitrary but a sound judi-
cial discretion controlled by established equitable principles.
There is no more reason why a valid executory contract
should not be enforced than there is why any other valid
contract should not be enforced. Idem....
11. Commissions-Sale of Land-Evidence Question for Jury.—
In an action to recover a certain sum alleged to be due as
commission for the sale of real estate, there was some con-
Iflict as to whether S who was sued, was acting for himself,
or the plaintiffs, but this question was left to the jury, which
decided that he was acting for himself in the matter, and
an examination of the evidence shows that it preponderates
in his favor. Crawford-Chesterfield Co. v. Snook....
12. Adverse Possession-Parol Purchase.-A, who owned a re-
mainder interest in land, placed B in possession of it under a
parol purchase, but, before the expiration of the life tenancy,
the life tenant and the remainderman sold the land: Held,
that the possession of B under his entry made by the consent
of the remainderman did not have the effect of putting him in
the adverse possession of the land, as the remainderman
had no right to or interest in the land during the continu-
ance of the life tenancy. Wolford, et al. v. Smith..
13. Quieting Title-Action-Ejectment-Equity Docket.-Though
in an action brought to recover real property, plaintiff sues in
equity, and asks that his title be quieted, a judgment by de-
fault awarding him possession of the property will not be set
aside because the petition failed to allege possession by the
plaintiff, but did allege facts sufficient to support a judg
ment of ejectment. Martin v. Kentucky Investment Co...... 526
14. Auditor's Deed-Prima Facie Evidence of Title.-An Audi-
tor's deed for land made to the purchaser at a sale made by
the Auditor's agent in cases where the land has been sold
by the sheriff and bid in by the State, is prima facie evidence
of title in the purchaser, and a petition which sets out such
a deed is sufficient, although it does not set out the steps
leading up to the sale. Kentucky Lands Investment Co. v.
Simmons, et al
588
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15. What Necessary to Overcome Officers Return To overcome
the officer's return that the taxes were unpaid, the proof must
be clear and decisive. It is not overcome by proof which does
not satisfactorily account for the tax receipt being missing.
Idem
16. What Owner of Property Must Show.-The owner of the prop-
erty must show that any step necessary to a valid sale was
not taken. The rule as to what is necessary is the same now
as heretofore. Idem
17. When Sale Void.-When land is sold for taxes for two years
and only one year's tax is advertised, the sale is void. Idem... 589
18. Pleading-A specific allegation in answer as to how the sale
was advertised, not being specifically controverted by the
reply, must be taken as true. Idem...
19. Lien.-When a sale is set aside, the purchaser should be
adjudged a lien on the land for the taxes he paid with inter-
est and cost and a blank as to the amount in the petition is
not fatal where the subsequent proceedings show the amount.
Idem . .
20. Land on Island-Title by Adverse Possession and Accretions.
-One whose claim of title to land on an island rests on ad-
verse possession, is not entitled to the accretions to the
island during the time he is in possession against as a pat-
entee of the land from the Commonwealth. Carson v. Turk.. 733
21. Possession-Rights as Against One Without Color of Title.—
One in possession of land may maintain an action for tres-
pass against one who has no color of title to the land, al-
though he does not show a perfect title in himself. Idem... 733
22. Action for Trespass-Title-Possession. In an action for
damages for trespass to land, while the evidence is con-
flicting, giving to a judgment under which appellee claims to
have acquired possession the force to which its age entitles
it, he has established the better claim to the land. Duff v.
Hagins.
792
23. Constructive Possession-Rights of Junior and Senior Pat-
entees. There cannot be at the same time two persons in
the constructive possession of the same body of land, and
where there is a junior and a senior patent to the same land,
the constructive possession follows the older title and this
possession cannot be defeated by the junior title holder ex-
cept by actual entry and possession on the interference. Whit-
ley Co. Land Co. v. Powers' Heirs.....
801
24. Adverse Possession-What is Not.-The mere assertion of
ownership, accompanied by occasional entries for the purpose
of cutting timber and the payment of taxes, does not consti-
tute adverse possession, no matter for how many years this
character of ownership continues. Idem....
.... 801
25. Against the Commonwealth.-As the statute provides that
limitation runs against the Commonwealth, its right of entry
can only be defeated by the same kind of adverse posses-
sion that would defeat the title of a patentee holding by
constructive possession. The acts necessary to start and
keep the statute in motion against the individual are neces-
sary to start and keep it in motion against the Common-
wealth. Idem .
26. Adverse Possession by Adjacent Title Owner.-Where A.
owns a tract of land, which he conveys to B. in connection
with another adjoining tract that he does not own and that is
covered by a senior patent, the fact that the deed described
both tracts as one boundary did not have the effect of plac-
ing B. in the adverse possession of the land to which A. had
no title, if B. continued to reside on the land to which A. has
title, and never had physical adverse possession of the adja-
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