Cornelison v. Million.

years preceding his induction into office; that, not finding any settlement made by Bales, or any record in the settlement book concerning his guardianship within the two years, he had no notice that Bales was then or had ever been a guardian. It is admitted in the record that the last settlement, and, indeed, the only one prior to the time Million became county judge, made by Bales, was in 1889. If Judge Million had examined the records of the county court as far back as 1889, he would have discovered that Bales made a settlement showing a balance of some $400 in his hands.

The argument of counsel for appellee is that, as the statute requires county judges to make settlements with guardians every two years, which are recorded, each county judge may presume that his predecessors have performed their duties under the statute, and is not required to examine the records further back than two years preceding his induction into office for the purpose of ascertaining what guardians are delinquent. We cannot agree in this construction of the statutory duties of a county judge in respect to guardians. Section 1065 provides that the county judge "shall when called on by a fiduciary settle his accounts, and shall once in each two years, require all fiduciaries to settle their accounts, unless there is an action pending in the circuit court for such settlement." And section 1068 provides that "it shall be the duty of the county judge at least once in each year to carefully inquire into the solvency of all the sureties upon the bond of each fiduciary; and if upon such inquiry there is reasonable grounds to believe that any bond is not amply sufficient to protect from all loss to those interested, he shall at once give notice to such fiduciary that a new bond or additional

Cornelison v. Million.

surety on the old one is required, and upon the failure of the fiduciary to give said bond or surety within a reasonable time to be fixed by the court, he shall be removed." These statutes are mandatory. They impose unconditionally upon the county judge certain duties that he must perform. He cannot excuse a performance upon the ground that he presumed his predecessors in office did their duty. Each county judge must do his duty as pointed out in the statute, without reference to what his predecessor did, or whether he was punctual or careless in discharging the duties of his office. Judge Million was county judge of Madison county for two years. It was his peremptory duty to at least once in each of those years carefully inquire into the solvency of the sureties upon the bond of Bales and all other fiduciaries who had executed bond in the county court, and to require settlements to be made in accordance with the statute. If by his failure to perform this duty the ward's estate, or any part of it, was lost, the ward may recover upon the bond of the county judge the amount of the loss so sustained. It is not material when Bales was appointed, or whether he made any settlement within the two years preceding the induction into office of Judge Million. The record showed that he was appointed guardian, and in the settlement of 1889 that he had in his hand money due his ward. These two facts made it the duty of Judge Million to comply with the statute.

As suggested by counsel, these statutes impose upon the county judge duties that may, unless great care and diligence is exercised, involve them in serious loss. But the law is so written, and it has been so construed, and we are not disposed at this day to impair the useful purpose of the statute by getting

vol. 129-2^

Burrow v. Maxon.

away from the opinions that seem to us do no more than give them the effect intended by their enactment. The law applicable to cases of this character is so fully and clearly settled in Cosby v. Commonwealth, 91 Ky. 235, 12 Ky. Law Rep. 808, 15 S. W. 514, and Commonwealth v. Lee, 120 Ky. 433, 86 S. W. 990, 89 S. W. 731, 27 Ky. Law Rep. 806, that it is unnecessary to further elaborate it in this opinion. As the case went off on the pleadings, we express no opinion whatever as to the liability of Million. Whether he is liable or not will depend upon the facts developed when the case is prepared for trial.

The judgment of the lower court is reversed with directions to proceed in conformity with this opinion.


Burrow v. Maxon

Appeal from McCracken Circuit Court.

W. M. REED, Circuit Judge.

Judgment for defendant, plaintiff appeals Affirmed.

1. Appeal and Error-Matters Open for Review.-There being no motion for new trial, no separate findings of law and fact, and no bill of exceptions, the only question open for review is whether the pleadings warrant the judgment.

2. Homestead-Exemptions-Purchase After Debt.-One does not

Burrow v. Maxon.

purchase land, within Ky. St. 1903, section 1702, providing the homestead exemption shall not obtain as against a debt existing prior to purchase of the land, where it is given him in settlement of his contest of a will, which, if successfully prosecuted, would have given him, as heir of testator, a greater share of his estate.

J. R. GROGAN, Atty. for appellant.


Issues, formed by answer and reply:

1. Was appellee owner of the land under parole gift or by deed of gift.

2. Was he owner by gift or by purchase within the meaning of section 1702 Kentucky Statutes?

3. If by purchase was the land subject to the debt and execution. (a) Debt created in the years 1896 to 1902 under allegations of reply and admissions of answer; also shown by deposition of R. C. Burrow.

(b) A proceeding under section 1689 Ky. Statutes and sections 444-449 Civil Code. Error of Court in over-ruling plaintiff's motion to transfer to equity. (Civil Code, section 449; Sargeant v. Farrar, 2 Ky. Law Rep., 212; Couchman v. Maupin, 78 Ky., 33; Scott v. Mitchell, 19 Ky. Law Rep., 218; Wilson v. Flanders, 24 Ky. Law Rep., 1302.)

(c) In such proceedings purely common law issues are triable before jury, etc.; otherwise when an equitable issue is presented. (Pendergrist v. Heekin, 94 Ky., 484; Holcomb v. Hood, 12 Ky. Law Rep., 240; Hester v. Lynn, 20 Ky. Law Rep., 1460.)

(j) Appellant not entitled to writ of possession if deed from Jesse Ware, etc., is not a deed of purchase within the common or statutory meaning.

(k) Though lower courts are frequently biased in favor of the homestead claimant, courts of last resort should not be. Reference to the affidavit in plaintiff's behalf and his motion to be allowed to introduce further evidence.

(1) The deed from Jesse Ware, etc., shows conclusively the character of appellee's title, there being no evidence to the contrary. This deed is not a deed of gift but of purchase within the statutory meaning. (Bouvier's Law Dictionary (Rawl's Revision) "Gift;" Am. & Ency. of Law, 1st Ed., vol. 8, 1309.)

(m) The deed from Jesse Ware, etc., to the appellee, the only evidence in the record of his title or the character of his title to the land which was sold under execution to the appellant, is

Burrow v. Maxon.

clearly a deed of bargain and sale to him and a purchase by him within the meaning of section 1702 Ky. Statutes. The transaction between the grantors and appellee shows clearly and positively that the appellee by contract and trade purchased or acquired this land and other valuable property.

CAMPBELL & CAMPBELL for appellee.

(No brief in record.)


D. E. Burrow had a debt against O. W. Maxon, which was created between the years 1896 and 1902. He sued Maxon upon the debt, and recovered judgment. Execution was issued upon the judgment and levied upon a tract of land, the property of Maxon. The land was sold, and was purchased by Burrow. It was not redeemed, and Burrow instituted this proceeding by motion in the McCracken circuit court for a writ of possession. By his answer Maxon set up that the land was a homestead, and as such exempt from execution sale. The case was heard by the court, and judgment entered in favor of Maxon, from which Burrow appeals.

There was no motion for a new trial in the circuit court, no separate finding of law and facts, and no bill of exceptions was filed. So the only question before us is: Do the pleadings warrant the judgment? Maxon alleged in his answer that the tract of land was of value less than $1,000; that it was the homestead of himself and family; that he was a bona fide housekeeper, with a family, consisting of his wife and four infant children, actually residing on the land before the creation of the debt and continuously to that time; that his father, M. Maxon, had, many years

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