be given to the sue. § 9. Unless a different purpose be plainly expressed in the Construction to instrument, every limitation in a deed or will, contingent upon a person dying "without heirs" or "without children" or "issue," or other words of like import, shall be construed a limitation to take effect when such person shall die, unless the object on which the contingency is made to depend be then living, or if a child of his body, such child be born within ten months next thereafter. Deed to one and then to his heirs -estate for life in first and fee simple in last grantees. Contingent mainder not fail. re to Alienation of par ticular estate not to operate as a merger of the remainder. Joint tenants to make partition. Dying, his por tion descends, &c. tate held as fiduciary. § 10. If any estate shall be given by deed or will to any person for his life, and after his death to his heirs, or the heirs of his body, or his issue or descendants, the same shall be construed to be an estate for life only in such person, and a remainder in fee-simple in his heirs, or the heirs of his body, or his issue or descendants. § 11. A contingent remainder shall in no case fail for the want of a particular estate to support it. 12. The alienation of a particular estate on which a remainder depends, or the union of such estate with the inheritance by purchase or descent, shall not operate by merger or otherwise to defeat, impair, or affect such remainder. § 13. Joint tenants may be compelled to make partition; and when a joint tenant dies, his part of the joint estate, real or personal, shall descend to his heirs, or pass by devise, or go to his personal representatives, subject to debts, curtesy, dower, or distribution. 14. The preceding section shall not apply to any estate The rule when es which joint tenants have as executors or trustees, nor to an estate conveyed or devised to persons in their own right, when it manifestly appears, from the tenor of the instrument, that it was intended that the part of the one dying should belong to the others; neither shall it affect the mode of proceeding on any joint contract or judgment. to after born child or children effectual. § 15. When any estate shall, by deed or will, be limited Limitation, when in remainder to the son or daughter, or to the use of the son or daughter, to be begotten of any person, such son or daughter, born after the death of his or her parent, shall take the estate in the same manner as if he or she had been born in the lifetime of the parent, notwithstanding no estate shall have been conveyed to support the remainder after the death of the parent. § 16. The attornment of a tenant to a stranger shall be Attornment by void, unless it be with the consent of the landlord, or pur tenant-effect of. suant to or in consequence of the judgment of a court. A conveyance or devise of a rent, reversion, or remainder, shall be valid without an attornment of the tenant; but no tenant who shall pay the rent to the grantor before notice of the conveyance shall suffer any damage thereby. (a) § 17. A deed and warranty of land purporting to pass or assure a greater right or estate than the person can lawfully pass or assure, shall operate to convey or warrant so much of the right and estate as such person can lawfully convey, but shall not pass or bar the residue of the right or estate purporting to be conveyed or assured. § 18. If such deed as is mentioned in the last section contain a general warranty of the estate it purports to convey, and there shall be a claimant of the land who has received any estate, real or personal, by gift, advancement, descent, devise, or distribution from the vendor, such claimant shall be barred of recovery to the extent of the value of the estate so devised. And if after the said claimant shall have recovered the land from the vendee aforesaid, or if, after having been required to answer, he has denied the reception of any estate in either of the modes before named, estate shall come to him in any such manner, it shall be lawful for the vendee, his heirs or personal representative, to recover from such claimant upon the warranty the value of such estate, or so much thereof as may be sufficient to satisfy his demand. The action may be instituted in any court having competent jurisdiction. abolished. § 19. When a deed shall be made to one person, and the Resulting trusts consideration shall be paid by another, no use or trust shall result in favor of the latter(); but this shall not extend to Exceptions. any case in which the grantee shall have taken a deed in his (a) An attornment by a tenant of the possession of the land of his landlord, without the consent of the latter, is void; and if superinduced by a fraud upon the tenant, is voidable by him. (Payne vs. Vandevere, 17 B. M., 19.) 2. According to the common law and the old statutory law of Kentucky, a tenant's attornment, without the consent of the original landlord, was void, and the legal possession was not changed by it; but the Revised Statutes (section 16, chapter 80) modified the pre-existing law, by providing that "the attornment of a tenant to a stranger shall be void, unless it be with the consent of the landlord, or pursuant to, or in consequence of, the judgment, order, or decree of (McMurtry vs. Adams, 3 Bush, 70.) a court." 3. An attornment, made pursuant to a judgment of a circuit court, is valid when the judgment was not superseded, although, in an appeal thereafter taken, the judgment was reversed and set aside; but if the conveyance made to the attornee, in pursuance of such judgment, should be set aside, then the tenant will hold under the original landlord, who will be entitled, as against the attornee, to the money paid to him by the tenant for rent. (Ibid.) (b) This section changed the law as to resulting trusts, but it does not apply to conveyances made before the Revised Statutes took effect. Before that time, when a deed was made convey Deed to one, consideration paidby own name without the consent of the person paying the consideration, or where the grantee, in violation of some trust, shall have purchased the lands deeded with the effects of another person. § 20. Such deeds shall be deemed fraudulent as against another, fraudu- the existing debts and liabilities of the person paying the lent as to credit ors of latter. Estates held in trust liable to the debts of cestui que trust. Trust estates can be sold only by judgment of a court. Exceptions. consideration. § 21. Estates of every kind, held or possessed in trust, shall be subject to the debts and charges of the persons to Whose use, or for whose benefit they shall be respectively held or possessed, as they would be subject if those persons owned the like interest in the property held or possessed as they own or shall own in the use or trust thereof. 22. No sale made of any real estate by a trustee, by virtue of a deed of trust or pledge to secure the payment of debts, shall be valid, nor shall the conveyance by such trustee pass the title of the property specified in such deed or pledge, unless the sale thereof shall be in pursuance to a judgment of court, or the maker of such deed or pledge shall join in a writing evidencing the sale. (a) § 23. Every deed shall, unless an exception be made thereA deed for land in, be construed to include all buildings, privileges, and apbuildings, &c., purtenances of every kind attached to the lands therein con includes all the found on prem ises. veyed. ing land to one person, and the consideration was paid by another, a trust resulted in favor of the latter, and that trust may be enforced. (Martin vs. Martin, 5 Bush, 47.) 2. If one party should accept a deed for land at the instance of another who has paid the consideration, although the policy of the statute forbids a resulting trust in the land, its object was not to enable one party to rob another of his subsistence, by undertaking a trust that the law would not enforce, and, at the same time, refuse to execute the trust, or return the money, a recovery may be had against the party who receives the title on the implied promise raised by law, to refund to the party paying for the land the money laid out and expended by his consent. (Ibid; see 7 Bush, 394; Miller and wife vs. Edwards, &c.; Faris and wife vs. Dunn, &c., 7 Bush, 276; and Ewing vs. Bibb, 7 Bush, 654.) (a) A trusteee to whom property is conveyed for the payment of debts cannot make a valid conveyance unless the grantor in the deed unite with him. (Lyon vs. Field, 17 B. M., 549.) 2. But if property is conveyed absolutely to a trustee, and the grantor has no further interest in it, the trustee may convey alone. (Butler vs Miller, 15 B. M., 625.) 3. Private sales by trustees pass no title, except where the maker of the deed of trust shall unite in the conveyance. (Smith's executor vs. Vertrees, 2 Bush, 63.) A 4. Husband and wife conveyed real estate to a trustee, with power to sell, to secure a debt due by the husband to the wife, and to hold the proceeds for the separate use of the wife. conveyance of such real estate by the trustee, in which the husband and wife joined, passed to the purchaser an indisputable title. (Belknap vs. Martin, 4 Bush, 43.) 5. The application of the statute of 1820 (1 M. and B., 449), providing that no sale made by a trustee under a deed of trust shall be good or valid, or pass the legal title, unless decreed by a court, or unless the maker of such deed shall join in the sale, was not intended to be universal in cases of trusts, as its language would seem to imply. Certain trusts are exempted from its operation. (3 J. J. M., 236; 5 B. M., 164; 6 Dana, 476; 15 B. M., 625; Prather, &c., vs. McDowell, &c., 8 Bush, 46.) money-how se § 24. When any real estate shall be conveyed, and the Lien for purchase consideration, or any part thereof, remains unpaid, the cured. grantor shall not have a lien for the same, against bona fide creditors and purchasers, unless it is stated in the deed what part of the consideration remains unpaid. § 25. Rights of reversion may be sold and conveyed. Sale of reversion. The purchaser thereof shall be invested with all the privileges and advantages which attached to the estate in the hands of the reversioner, and shall be subject to all the duties and responsibilities in law or equity which any tenant might assert against the owner of the reversion, the right to which accrued before notice of the transfer. § 26. Unless the contrary be expressly provided against in the writing, no agreement of a lessee that he will repair, or leave the premises in repair, shall have the effect of binding him to erect similar buildings if, without his fault or neglect, the same may happen to be destroyed by fire or other casualty. Leased buildings &c. destroyed by fire, restraint on power of alienation. 27. The absolute power of alienation shall not be sus- Limitation as to pended, by any limitation or condition whatever, for a longer period than during the continuance of a life or lives in being at the creation of the estate, and twenty-one years and ten months thereafter. ARTICLE II. Shares in land, of the value of one hundred dollars or less, of infants, persons of unsound mind, imbeciles, married women under twenty-one years of age, how they may be sold. § 1. Real estate, or any interest therein, owned by one or more persons, either of whom is an infant, idiot, lunatic, imbecile from age or other cause, married woman under twenty-one years of age, or a non-resident of this State, when the share of each owner is of the value of not more than one hundred dollars, may be sold by the judgment of the circuit court of the county in which the land or part of it lies, upon the petition of any or all of the owners; but those not joining as plaintiffs must be made defendants, and be brought before the court. The report of value and privy examination hereafter provided for, shall not be necessary under this section. (a) (a) Under article 1, chapter 86, of the Revised Statutes, the authority of the court to adjudge the sale depends on the existence of the particular facts named in the statute. It is necessary to allege and prove that the share of each heir is not of greater value than one hundred dollars. For Lands of infant, &c., how sold. What the petition nust state. By whom filed. Title papers to be filed, ARTICLE III. Sales of Land of Infants and Persons of Unsound Mind. § 1. The interest of an infant, idiot, or lunatic in any real estate, unless it be the separate estate of a married woman, may, on a petition to the circuit court of the county in which the same or a part thereof lies, be sold by the judgment of such court. But no such interest shall be sold in contravention of the will, deed, or contract under which it is held. The petition must be filed by the statutory guardian or committee, allege his belief, and be verified by his affidavit that the sale will benefit the infant, idiot, or lunatic. The title papers under which the interest is held must, in all cases, be filed. Who to be made The infant and the wife and children, if any, of a lunatic or idiot, must be made defendants to the petition, and no sale shall be made of the real estate of an idiot or lunatic, except it plainly appears by written evidence that such sale is necessary to pay his debts, or for his maintenance, or both. All the persons interested in the real estate, and the statutory guardians of the infants, if any, who are not petitioners, must be made parties. If any objection is made to the sale by adults, par by any of the parties to the petition, the shares of such shall not be sold. In such case a division may be made, and the part of those desiring a sale may be sold. (a) defendants. When objection tition may be had be appointed, & duty. § 2. Before a court shall order a sale of infant's, idiot's or Commissioners to lunatic's real estate, three commissioners must be appointed herein of their to report, and must report under oath to the court, the net value of the real and personal estate, and the annual profits thereof, and whether the interest of the infant, idiot, or lunatic requires the sale to be made. Proof may be taken or required by the court, showing the propriety of such sale, or the reverse. The guardian of each infant, and the committee of each lunatic or idiot, whether petitioner or defendant, must execute a bond to the infant or lunatic or idiot, with not less than two sureties, worth at least double the value of the estate to be sold, to be approved by the. court, for a faithful discharge of all his duties, and that he will comply with the judgment and orders of the court, and Bond to be executed. the want of such proof in this case, the judgment of sale is reversed on the appeal of one of the heirs, a married defendant, to the petition. (Gardner, &c., vs. Craddock, 4 Bush, 370.) (a) If infants be defendants, their interest cannot be sold until their guardians have filed answers, stating the same facts required in the petition of the guardian of those who are made plaintiffs, and commissioners have reported as required by law. (Carpenter, &c., vs. Strother, 16 B. M., 296; Wyatt vs. Mansfield, 18 B. M., 781.) |