Actions, Cent. Dig. § 657; Dec. Dig. § 172.*] [Ed. Note.-For other cases, see Limitation of evidently was aware of the fact that his par- [ discovery of the mistake, and were in no betticular description might not be sufficient to ter position to maintain an action that he would have been. convey all the lands of Moses F. Ingram; and for the purpose of aiding his particular description he added the general description, certifying that the "above described land and boundary contains one fifty acre survey in his name bearing, date the 29th of May, 1855," and the other surveys therein mentioned. Under that deed Powell Centers and William H. Ingram and their grantees held undisturbed and unquestioned possession of this 50-acre tract for about 35 years, and during 11 years of that time Moses F. Ingram lived in the neighborhood, and upon rented land. It has been shown that upon one occasion, as early perhaps as 1866 or 1868, Moses F. Ingram said in the presence of his son, Marcus D. Ingram, that he still owned a tract of land in this neighborhood. And it is further shown by the witness Money, who is now an old man over 80 years of age, that Moses F. Ingram once said to the witness that he still owned a tract of land in that neighborhood which he would keep as a "nest egg" in case he ever returned there to live. We give little weight, however, to these general expressions, in view of the conduct of Moses F. Ingram throughout the remainder of his lifetime. Moreover, we are of opinion that the deed of 1877 to Centers and William H. Ingram, under the rules of construction above laid down, conveyed the 50 acres in question, thus rendering the statements of Moses F. Ingram ineffectual, even conceding they were made as claimed. Judgment affirmed. EVERSOLE & CO. v. BURT & BRABB LUMBER CO. et al. (Court of Appeals of Kentucky. Oct. 21, 1914.) 1. LIMITATION OF ACTIONS ($ 96*)-RECOVERY OF REAL PROPERTY-EQUITABLE ACTION. Under Ky. St. §§ 2515, 2519, providing that if one injured by fraud or mistake is aware of it when it is perpetrated, he must bring his action within 5 years, but if he is not then aware of it, within 5 years after it is discovered, but in no case more than 10 years after the making of the contract or the perpetration of the fraud, a cause of action arising from an implied contract by defendants as purchasers from plaintiff's grantor to pay for land conveyed to them in excess of the quantity agreed to be conveyed for which they had not paid, the statute ran from the time they paid for what land the grantor supposed he had conveyed, and an action to recover payment therefor, brought more than 5 years after the discovery of such mistake and nearly 18 years after it was made, was barred. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 337, 475, 476; Dec. Dig. § 96.*] 2. LIMITATION OF ACTIONS (§ 172*)-EFFECTPARTIES. Plaintiffs, in an action to recover compensation for land conveyed by their grantor to defendants by mistake, even if subrogated to the rights of their grantor, were chargeable with his Appeal from Circuit Court, Leslie County. Action by Eversole & Co. against the Burt & Brabb Lumber Company and others. Judgment for defendants, and plaintiffs appeal. Affirmed. See, also, 132 Ky. 112, 116 S. W. 316. Cleon K. Calvert, of Hyden, for appellants. Metcalf & Jeffries, of Pineville, for appellees. SETTLE, J. This action was brought by the appellants, A. B. and Abner Eversole, partners doing business under the style of Eversole & Co., in the court below, to recover of the appellees, Burt & Brabb Lumber Company and others, $250, with interest, as the value of 125 acres of land in Leslie county, of which the appellee Burt & Brabb Lumber Company has been adjudged the owner, but for which, it was alleged, it paid nothing. The action, though brought at law, was by consent of the parties transferred to the equity docket and decided by the court as if it were an action in equity. The cause of action asserted grew out of the following state of facts: April 3, 1876, there issued to Leslie Harris a patent for 200 acres of land then in Harlan, but now in Leslie county, lying on Lick branch of Greasy creek, a tributary of the Middle fork of the Kentucky river. The patent was based upon a survey made on August 8, 1873. In November, 1889, Harris conveyed this land to John C. Chappell, G. M. Asher, and H. M. Asher, by deed describing the land according to the boundary given in the patent. This deed was acknowledged before John C. Chappell, one of the grantees, at the time a deputy of the clerk of the Leslie county court, and was recorded in the proper oflice in December, 1889. As Chappell was one of the grantees in the deed, he and the Ashers became afraid that that fact might invalidate the deed, so on the 16th day of July, 1890, they obtained from Harris a second deed, conveying them the same land, bounded as in the first deed and in the patent, with the following additional description: "Containing two hundred acres, more or less, and being the same land granted by the commonwealth of Kentucky to the said Lewis Harris by patent bearing date April 3. 1876, No. 51929, recorded in the register's office in book 94, page 350." Following the execution of the second deed, the partnership of Asher brothers and Chappell was incorporated, under the laws of the state of Michigan, its corporate name being the Asher Lumber Company; and later by resolution of the stockholders and supplemental articles of incorporation, duly adopted, the name of the corporation was changed from the Asher Lumber Company to *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes certificate of the survey previously made of the land, and then by subtracting from that correct boundary the boundary given by the patentee's deed to Chappell and the Ashers. It was held by this court on Hensley's appeal that the patent boundary was incorrect and contained a smaller quantity of land than the survey, on which it was based, manifested, but that, as the patent referred to the certificate of the survey made of the land and the survey contained a correct boundary of the land, the quantity intended to be granted the patentee, and showed the error in the boundary given by the patent, the patent boundary was to be regarded as corrected by that given in the certificate of survey, and the latter as showing the actual quantity of land granted the patentee. It was further held that the deeds from Harris conveying the land to Chappell and the Ashers, though containing the boundary as shown by the patent, should be construed as was the patent, and corrected and controlled by the boundary and description furnished by the certificate of survey. On these grounds the deeds from the patentee Harris to Chappell and the Ashers were held to have conveyed all the land intended to be granted Harris by the patent, and that Hensley and Lewis took nothing by their subsequent deed from the patentee. In closing the opinion, however, the court said: Burt & Brabb Lumber Company. On the patent calls, obviously erroneous, by the 22d day of August, 1890, John C. Chappell, correct calls of boundary contained in the George M. and Hugh L. Asher, together with their wives, conveyed by deed to the Asher Lumber Company the land which had theretofore been conveyed them by the two deeds from Lewis Harris; the land being bounded and otherwise described in the lastmentioned deed as in the deeds from Harris to Chappell and the Ashers and in the patent to Harris. After the change of the name of the corporation of Asher Lumber Company to that of Burt & Brabb Lumber Company the land was owned and held by the latter. On the 10th day of May, 1904, James L. Lewis and H. M. Hensley purchased from Lewis Harris what they and Harris believed to be a part of the land embraced in the 200-acre patent boundary he had theretofore conveyed to the Asher brothers and J. C. Chappell, and obtained from Harris a deed which was duly recorded in the Leslie county court clerk's office. On October 11, 1904, James L. Lewis and wife made to H. M. Hensley a deed purporting to convey to Hensley J. M. Lewis' undivided half of the land, for which Lewis and Hensley had theretofore obtained the deed from Harris. The deed from Lewis and wife to Hensley was also properly recorded. On June 10, 1905, H. M. Hensley sold and conveyed to the appellants, A. B. Eversole and Abner Eversole, partners as Eversole & Co., the land which had previously been conveyed Hensley and Lewis by Harris and in part by Lewis to Hensley. Before the sale from Hensley to Eversole & Co., and while he was claiming to own the land embraced in the deed from Lewis Harris to J. M. Lewis and himself, Hensley cut and removed therefrom certain merchantable timber, and for the alleged trespass thus committed by Hensley he was sued by the appellee Burt & Brabb Lumber Company. As the cutting of the timber was attempted to be justified by Hensley upon the ground that the title to the land upon which it stood was in him, this defense put in issue the question of title, which was decided by the circuit court in favor of the appellee Burt & Brabb Lumber Company. From that judgment Hensley prosecuted an appeal to this court, which affirmed the judgment. See Hensley v. Burt & Brabb Lbr. Co., 132 Ky. 112, 116 S. W. 310. Hensley's claim of title was based upon the theory that the boundary of the land contained in the patent issued to Harris and the deeds from the latter to Chappell and the Ashers, and from them to the Asher Lumber Company, predecessor of the Burt & Brabb Lumber Company, did not contain all the land actually granted to Harris by the patent, and that the residuum was conveyed him and Lewis by the deed which Harris made them, such residuum being discovered, it was claimed, by correcting the "Appellant took the deposition of the patentee Harris, who testified that Chappell had the land surveyed when he bought it, and reported that it contained but 79 acres, and paid him for that quantity only; but it is clear from the testimony of this witness that his intention at the time was, and such was the purpose of the parties, to convey his title to all the land covered by his patent. They may have made a mistake as to its quantity; but that would not affect the conveyance of his title, particularly after it had passed into the hands of an The patentee may have a claim against Chappell for the innocent purchaser for value. balance of the purchase money. The only mistake was as to the amount to be paid for the land, not as to the piece of land sold and intended to be conveyed." The above statement in the opinion as to the probable mistake made by the patentee. Harris in the quantity of land conveyed Chappell and the Ashers, together with the intimation that the former might have a claim against them for the money lost to him by reason of the mistake, furnished the basis for the present action; it being the contention of the appellants that, though the deed from the patentee Harris to Lewis and Hensley, that of Lewis to Hensley, and the deed of the latter to appellants, did not in fact pass to them the title to the land included by mistake in the deed from Harris to Chappell and the Ashers, for which they did not pay, they did, by subrogation, assign and vest in appellants the right, which Harris might have enforced, to recover of the appellee, as the vendee of Chappell and the Ashers, compensation for the land obtained by them on account of the mistake in the deed from Harris, and for which Harris was not paid, the agreed price of which, it was alleged, was $250. [1] Without determining whether there is any merit in this contention of appellants we are constrained to hold that the recovery sought by them is barred by the statute of limitations, aptly pleaded by the answer of appellee. Section 2515, Kentucky Statutes, provides that an action for relief on the ground of fraud or mistake must be commenced within five years next after the cause of action accrues, and section 2519 provides that in an action for relief on the ground of fraud or mistake the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake, but no such action shall be brought 10 years after the time of making the contract or perpetration of the fraud. In other words, if the party who is injured by the fraud or mistake is aware of it at the time it is perpetrated, he must bring his action within 5 years there after, but if he is not apprised of it at the time it is perpetrated, he must bring his action 5 years after the discovery; but in no case can he bring it after the lapse of 10 years from the making of the contract or the perpetration of the fraud. Brown, etc., v. Brown, 91 Ky. 641, 11 S. W. 4; Nave v. Price, 108 Ky. 107, 55 S. W. 882, 21 Ky. Law Rep. 1538; Crane v. Prather, 4 J. J. Marsh. 75; Dye v. Holland, 4 Bush, 635; Young v. Craig, 2 Bibb, 270; Harrison v. Talbot, 2 Dana, 258. The cause of action upon which appellants rely does not rest upon a deed or contract of sale of the land, nor upon any fraudulent representation made by either vendor or vendee at the time of the sale, but wholly upon an implied contract on the part of the vendees of the land to pay the vendor for a quantity of land, by mistake conveyed them by the vendor in excess of the quantity agreed to be conveyed them, and for which excess they did not pay. So the statute of limitations began to run from the date the law implied a contract on the part of the vendees to pay for the excess in the quantity of land conveyed, which was when they paid for what land Harris supposed he had conveyed them, viz., November 7, 1889. So if it be assumed that Lewis Harris' discovery of the mistake made by him in the sale and conveyance of the land to Chappell and the Ashers was not made until he made the deed conveying to Lewis and Hensley the land supposed to be covered by his patent, which he had not intended to convey to Chappell and the Ashers, as the deed to Lewis and Hensley was executed May 10, 1904, this was more than 10 years after the mistake was made; and the present action was not instituted by the appellants until July 15, 1909, which was, not only more than 5 years after the discovery of the alleged mistake, but also nearly 18 years after the mistake was made. [2] Appellants, even if it be granted that they, as his vendees, are subrogated to the rights of the patentee Harris, by and against whom the mistake complained of was made, are chargeable with his discovery of the mistake, and are consequently in no better position to maintain this action than he would have been. It is patent from what has been said that the action of the circuit court in dismissing appellants' petition properly determined the rights of the parties, and the judgment is therefore affirmed. PRATT v. ROUNDS. (Court of Appeals of Kentucky. Oct. 20, 1914.) 1. TRIAL (§ 251*)-INSTRUCTIONS APPLICABILITY TO ISSUES. Where, in an action on a note given for the price of a piano, the issue was whether plaintiff was a holder in due course for value and without notice, the action of the court in of the piano and authorizing a recovery for the injecting into the case the issue of the value fair market value thereof was erroneous. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*] 2. BILLS AND NOTES (§ 494*) BURDEN OF PROOF ACTION BY TRANSFEREE BEFORE MATURITY. Where the execution of notes sued on by a transferee before maturity is admitted by defendant, the burden of proof is on defendant to establish the defense of fraud in the procurement of the note. [Ed. Note. For other cases, see Bills and Notes, Dec. Dig. § 494.*] 3. BILLS AND NOTES (§ 525*)—“HOLDER IN DUE COURSE"-EVIDENCE. The mere fact that a purchaser of notes at a discount of 25 per cent. had purchased many notes from the payee at the same discount did not, standing alone, show that he was not a holder in due course, within Negotiable Instrument Act (Laws 1904, c. 102) §§ 25, 52, 56, 57, defining a holder in due course. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. § 525.* For other definitions, see Words and Phrases, First and Second Series, Holder in Due Course.] 4. BILLS AND NOTES (§ 373*)-BONA FIDE HOLDER IN DUE COURSE EVIDENCE. 1904, c. 102) § 124, providing that, where a Under Negotiable Instrument Act (Laws negotiable instrument is materially altered without the assent of all parties thereon, it is avoided, except as against a party who has himself authorized the alteration and subsequent endorsers, a maker of a note attached to a contract by a perforated line cannot complain that the note was detached and sold to a third person, where the contract gave authority to the payee to detach the note. [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 966-970; Dec. Dig. § 373.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 5. BILLS AND NOTES ($ 343*)-BONA FIDE | man came to the store, representing that HOLDER IN DUE COURSE EVIDENCE. The mere fact that a purchaser before maturity of a note detached from a contract knew that the contract empowered the payee to detach the note did not bring home to him knowledge of any fraud practiced on the maker at the time of the making of the contract and note, which fraud was not discovered by the maker until after the purchase. [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 853-855, 864, 865; Dec. Dig. 343.*] 6. BILLS AND NOTES (§ 365*)-BONA FIDE PURCHASER-NEGOTIABLE INSTRUMENT ACT. Under the Negotiable Instrument Act (Laws 1904, c. 102), promissory notes, which have been transferred to a bona fide purchaser without notice before maturity, are placed on the footing of a bill of exchange, and are not subject to any equities obtaining between the maker and payee, and a maker takes the risk of the note being transferred to a bona fide pur chaser without notice. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 944, 958, 959; Dec. Dig. § 365.*] Appeal from Circuit Court, Daviess County. Action by W. I. Pratt against Elizabeth M. Rounds. From a judgment for defendant, plaintiff appeals. Reversed, and remanded for new trial. Louis I. Igleheart, of Owensboro, and Edward A. Kennedy, of Iowa City, Iowa, for appellant. W. Foster Hayes and C. W. Wells, both of Owensboro, for appellee. HOBSON, C. J. On February 2, 1912, Elizabeth M. Rounds, doing business in the name of B. H. Rounds & Sons, executed to the Brenard Manufacturing Company six notes each for $50, due, respectively, in two, three, four, five, six, and seven months. W. the Brenard Manufacturing Company was going to put pianos in Owensboro on sale, and they had a copyrighted plan of contest which he had misplaced, saying: "Now, we will give in this contest so much commission on every piano that every man sells. We will handle this contest for you, and all these contestants will be at work selling for your store." Rounds signed the contract, and gave the notes on this basis, without seeing the copyThe contract was righted plan of contest. then sent to the Brenard Manufacuring Company and was approved by them. Ten days later Rounds, on examining the copyrighted plan of contest, which in the meantime had been sent to him, saw that it was altogether a different proposition from that stated to him by the drummer. In the copyrighted plan the merchant was to get the contestants and keep them going. He was to have sole charge of it. The Brenard Manufacturing Company was not to send any man to Owensboro to assist in the contest or to sell any piano there. Finding that the proposition was entirely different from what it was represented to him, he on February 12th wired the Brenard Manufacturing Company, reVoking his order, and on the same day wrote to them stating fully the reasons. was no contradictory evidence offered by the plaintiff. The only evidence offered by him was the deposition of Theodore O. Loveland, one of the firm of the Brenard Manufacturing Company. He testified that, after receiving the contract and approving it, they immediately bought the piano and ordered it There sent to Mrs. Rounds; that the piano was bought on February 5th, and was in fact I. Pratt brought this suit upon the notes, shipped by the makers of the piano on Feballeging that the Brenard Manufacturing Company had assigned them to him for ruary 15th; that they sold the notes to W. I. Pratt on February 8th, or four days bevalue before maturity in due course. Mrs. Rounds answered in substance that the notes fore they had notice by wire of the disafhad been obtained by fraud, and denied that firmance of the contract by Mrs. Rounds, and seven days before they received her letter; they had been assigned to Pratt. Pratt replied, denying that the notes were obtained that they at the time had no notice of anyby fraud, and pleaded that he was a bona thing being wrong; that Pratt was not confide purchaser in due course for a valuable nected with the Brenard Manufacturing Comconsideration and without notice of any in-pany and never had been; that they bought their pianos each day, as they received orfirmity in them. The case came on for trial before a jury, who found for the de- ders handling from 500 to 1,000 a year; fendant. The plaintiff appeals. that they received the order on February Mrs. Rounds is the owner of a jewelry 3d; that the piano was shipped from Chistore in Owensboro, Ky. The Brenard Man-cago; that in all they had sold Pratt about ufacturing Company is a partnership doing business at Iowa City, Iowa. They own a copyrighted plan under which pianos are put in the stores of merchants, and the success ful contestant in the contest gets the piano. They send out traveling men, who make contracts with the merchants. One of their traveling men went to Owensboro, made a contract with Mrs. Rounds, through her son, and obtained the notes in suit. The son's evidence as to the fraud in the obtaining of the notes is in substance this: The traveling that, at the time of the transfer of these $40,000 worth of notes from time to time; transferred to him $1,250 worth of notes. notes to Pratt, they got $1,000 from him, and These questions and answers occur in his cross-examination: "Q. Then for each dollar you received, you transferred to him $1.25 face value of the notes? A. Yes, sir. Q. Were these notes transferred without recourse, or is the Brenard Manufac turing Company responsible, providing they are recourse that those words were written upon not collected? A. Do you mean by 'without the note? Q. Yes. A. No; these words were For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 169 S.W.-54 They never were, mitted. The burden of proof was therefore on the defendant, as the circuit court properly held. not written on the note. The defendant offered no evidence contradicting Loveland, and the plaintiff, Pratt, did not testify on the trial. During the examination of a witness for the defendant, this occurred: "The Court: Have you any evidence as to the fair market value of that piano, Mr. Wells? Mr. Wells: No, sir; I think not." Again, at the conclusion of the defendant's testimony, this occurred: "The Court: I think that it is very material that the jury should know the fair market value of the piano. (The court allows the defendant time in which to try and find a witness who will testify as to the value of the piano, and after due deliberation the defendant announced that he could find no witness who would testify on this point.)" The remaining question is: Should the court under the testimony of Loveland, which was not contradicted, have instructed the jury to find for Pratt on the notes upon the ground that he was a holder in due course? Under the evidence, which was undisputed, the notes were assigned by the Brenard Manufacturing Company to Pratt on February 8th, or four days before Rounds himself knew that a fraud had been perpetrated upon him, and four days before he sent the telegram to the Brenard Manufacturing Company revoking his order. It is very evident, therefore, that there was nothing in the case to show that Pratt could have had notice of any infirmity in the notes, when he purchased them on February 8th, by reason of what had taken place in Owensboro between the salesman and Rounds. Section 56 of the Negotiable Instrument Act is in these words: "To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.' Section 57 also provides: "A holder in due course holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties among themselves, and may enforce pay ment of the instrument for the full amount thereof against all parties liable thereon." The notes being complete and regular on their face and having been transferred to Pratt before their maturity or dishonor, he was a holder in due course under subsection 52, if he took them "in good faith and for value" and "at the time had no notice of infirmity" in them, or "defect in the title of the person negotiating" them. Subsection 25 provides: "Value is any consideration sufficient to support a simple contract. [1] The court, by the fourth instruction which he gave the jury, told them in substance that, although a fraud was practiced on the defendant at the time the notes were executed, yet, if the Brenard Manufacturing Company sent the defendant goods of value, they might in their discretion find for the plaintiff the fair market value of the goods so sent. The instruction was erroneous, and, in view of the remarks made by the court in the hearing of the jury, we are not assured that this may not have been prejudicial to the plaintiff, in view of the fact that the plaintiff gave no evidence as to the value of the piano, which had been shipped to Owensboro, and had been left in the railway station; the consignee declining to receive it. The suit was brought by W. I. Pratt, as holder of the notes. He must recover, if at all, on the notes. The evidence offered by the defendant as to the fraud in the obtaining of the notes was not contradicted, and so the essential question in the case was whether Pratt was a holder in due course for value and without notice. No question as to the value of the piano should have been injected into the case, for no fraud as to the piano was complained of; the fraud complained of re-ed, is that the rights of a purchaser of negolated entirely as to the plan of contest. [2] The notes made out a prima facie case for the plaintiff; their execution being ad That, under the evidence, Pratt took the notes for value must be admitted. He is therefore entitled to recover on them, unless he did not take them in good faith, or had actual knowledge of some infirmity in them or defect in the title of the person negotiating them, or had knowledge of such facts that his action in taking them amounted to bad faith. [3] It is insisted that as Pratt did not tes tify on the trial, and as it appeared that he had bought $10,000 worth of notes from the Brenard Manufacturing Company, and as he bought these notes at a discount of 25 per cent., the jury were warranted in inferring that he was not a holder in due course. But the plain meaning of the statute, above quot tiable paper are not to be defeated upon suspicion. To defeat him under the statute, the facts known to him must be such that his |