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Page Sizemore, H. F. Davis & Co. v. (Ky.)... 16 State ex rel. Nolen v. Hackmann (Mo.)... 494 Slone v. Commonwealth (Ky.).......... 464 State ex rel. Stroh v. Klene (Mo.)...... 496 Smith, Bever y. (Mo. App.)............ 238 Stauffer v. Stauffer (Mo. App.)........... 240 Smith, Frost v. (Tex. Civ. App.)........ 392 Stegner, State v. (Mo.)................ 826 Snider, Lancaster y. (Tex. Civ. App.). 560 Stephens v. Schadler (Ky.) .....

704 Solan, State v. (Mo.).................. 782 Stewart, Eckert v. (Tex. Civ. App.).... 317 Southern Kansas R. Co. v. Shinn (Tex Stewart, St. Louis-San Francisco R. Co. Com. App.)....

410 Southern l'ac. Co. v. Berkshire (Tex. Civ. Stewart & Threadgill v. El Paso & s. w. App.) ....

R. Co. (Tex. Civ. App.)..........

594 Southern Pac. Co. v. Miller (Tex. Civ. Stiles v. Hawkins (Tex. Com. App.)......

App.) .............................. 55 Stone, Harris & White v. (Ark.).... 443 Southern R. Co. v. State (Tenn.)........ Strange, Home Inv. Co. v. (Tex.)...... 307 Southern Real Estate & Financial Co. v. Stuart, Barron v. (Ark.)............... 22

Bankers' Surety Co. (Mo.)........... Styles, Matagorda Canal Co. v. (Tex. Civ. Southern Real Estate & Financial Co. v.

App.) ...::::::::

502 Bankers' Surety Co. (Mo.)............ Sullivan & Co., Raley v. (Tex. Com. App.) 906 Southern Trust Co., St. Francis County Summit Place Co. v. Terrell (Tex. Civ. Road Improvement Dist. No. 2 v. (Ark.)

145 Southwestern Telegraph & Telephone Co. Supreme Council of Royal Arcanum, v. State (Tex.) ....

Schmidt v. (Mo. App.)..............

874 Southwestern Veneer Co., Bailey & Co. Sursa v. Wynn (Ark.). . v. (Ark.)......

34 Sutherland Building & Contracting Co.. Sovereign Camp, w. 0. W., Weise v. Ogle v. (Mo. App.)..

848 (Mo. App.)....

Sutherland, St. Louis, B. & M. R. Co. v. Sovereign "Camp, w. 0. w., v. Wilson

(Tex. Civ. App.).:::........

982 (Ark.) .......... ....:::::::

Swadley, Hunter v. (Tenn.)...

730 Spearman v. Mims (Tex. Civ. App.)...

Swartz v. Hiler (Mo. App.).............

238 Speer, Pollard v. (Tex. Civ. App.): : ... Spinner-Hay Lumber Co. v. Applebaum

Tate v. Greenlee Tenn.)..........

716 Tex. Civ. App.)................

Taylor v. Blackwell (Tenn.)............

738 Spradlin V. Adams (Ky.)... Sproul v. Interstate Coal Co. (Ky.)....

Taylor, Bush v. (Ark.).....

Taylor v. Commonwealth (Ky.).......... 456 S. Samuels & Co. v. Morgan & Friedlander

Templeton v. Wellington (Tex. Civ. Ann.) 186 Tex. Civ. App.)....... Stailings v. Bradshaw (Ark.)..........

Terrell, Summit Place Co. v. (Tex. Civ. Staples v. Freeman (Ark.)...........

App.) ..

Texas Midland R. R. v. Brown (Tex. Civ. Stark v. Scherf (Mo. App.) ...

S03 Starling, State v. (Mo.).......

App.) ..

... 340 767 State v. Berger (Mo.) .................

Texas Midland R. R. v. Butler (Tex. Civ.
App.) .....

............. State v. Bersch (Mo.) .....

Texas Midland R. Co. v. Cummer Mfg. Co. State, Brooks v. (Ark.)....

(Tex. Civ. App.).... State, Bryant v. (Tex. Cr. App.)

Texas Refining Co., Waco Oil & Refining State, Campos v. (Tex. Cr. App.). State v. Caperton (Mo.) ....

_Co. v. (Tex. Civ. App.)....... State, Clark v. (Tex. Cr. App.)..

Texas & Pacific Coal Co., Haney v. (Tex.

Civ. App.)......
State v. Cook (Mo.) ...
State v. Dinkelkamp (Mo.) .......

Texas &'P.R. Co. v. Duff (Tex. Civ. State y. Fox (Mo.) ...........

App.)

530 . .

Texas & P. R. Co. v. Lester (Tex. Civ. State, Gamewell V. (Ark.)..

App.). State v. Garrett (Mo.) .....

Texas'& P. R. Co. v. McGraw (Tex. Civ. State, Harper v. (Tex. Cr. App.)..

App.) State. Hughes v. (Tex. Cr. App.)...... 990

Texas & P. R. Co. v. West Bros. (Tex. State v. Hunt (Tex. Civ. App.)...... 636

Com. App.) .......

918 State v. Jones (Mo.) .......

793

Thomas v. Derrick (Tex. Civ. App.)..... 140 State, Knight v. (Tex. Cr. App.).. 315

Thompson, Colby v. (Mo. App.)......... State, Lind v. (Ark.)......

Thompson' v. Harmon Tex. Com. App.) 909 State, Lockett V. (Ark.)........

55

Tittle v. Bartholomae (Tex. Civ. App.)... 176 State y, Lundy (Mo.) .....

770
Todhunter, Wilson v. (Ark.)...........

221 State v. Lyons (Mo. App.)........ State v. McHenry (Mo.) ...

Tootle-Campbell Dry Goods Co., Minter v.

808 State, Martinez y. (Tex. Cr. App.).. 930

(Mo. App.)......................... 840

Town of Morristown, Lotspeich v. State, Melton v. (Tex. Cr. App.).... 310

(Tenn.) ... State v. Miller (Mo.) ......

Trammell v. Griffin (Tenn.)..........

726 State v. Moten (Mo.)....

Trevino, Griner v. (Tex. Civ. App.)..... State v. Porter (Mo.)....

947

Troell, State v. (Tex. Civ. App.)........ 610 State, Ray v. (Tex. Cr. App.)....

Truman Cooperage Co. v. Shelton (Ark.) 42 State y, Sibley (Mo.).......

Turner v. Weitzel (Ark.).......

39 State v. Solan (Mo.)........

Turney. Hess & Skinner Engineering Co. State, Southern R. Co. v. (Tenn.)...

v. (Tex. Civ. App.)... State, Southwestern Telegraph & Tele

phone Co. v. (Tex.)... State v. Starling (Mo.)...............

Umsted Auto Co. v. Henderson Auto Co. State v. Stegner (Mo.)..... 826 / (Ark.) ....

437 State v. Troell (Tex. Civ. App.)....... 610 Union Lumber Co., Sherrill v. (Tex. Civ. State, Venable v. (Tex. Cr. App.)...

App.) .:::

149 State, Watkins v. (Tex. Cr. App.)... 926 nion Termina

Büddy v. (Mo.)..

821 State, Wright v. (Tex. Cr. App.)....... 99 United Rys. Co. of St. Louis, Johnston v. State ex rel. and to use of Birmingham

(Mo. App.)......................... 252 v. Hackmann (Mo.)................... 498

Inverferth, Peter Hauptinann Tobacco State ex rel. and to use of Lancaster v.

| Co. v. (VÍo. App.),.. .

....... 283 Kennedy (Mo. App.)....

71 State ex rel. and to use of Mosberg V. | Valdespino v. Dorrance & Co. (Tex. Civ. Owens (lo, App.) .................... 241

App.) State ex rel. Bybee v. Hackmann (Mo.).. 64 ) Val Reis Piano Co. v. Gordon (Mo. App.) 233

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Page Van Valkenburgh v. Ford (Tex. Civ. App.) 405 Western Union Tel. Co. v. Deaver (Tex. Venable v. State (Tex, Cr. App.)......... 520

Civ. App.)..........::::

.....: 972

Whaley, McDonald v. (Tex. Civ. App.).. 609 Wabash R. Co., Bailey v. (Mo. App.).... Whitacre, Daley v. (Tex. Civ. App.).... 350 Wabash R. Co., Paulson v. (Mo. App.).. White, Davis v. (Tex. Civ. App.)........

679 Wabash R. Co., Riffe v. (Mo. App.)..... 78 Wichita Falls Motor Co., McCoy v. (Tex. Waco Oil & Refining Co. v. Texas Refining

Civ. App.).........: Co. (Tex. Civ. App.)...

987 | Wiles, Daugherty v. (Tex. Com. App.).. 900 Wagner & Sons v. Harris (Tex, Civ. App.) 632 Wilie v. Hays (Tex. Civ. App.).

427 Waldschmidt, City of New Braunfels v.

Wilkinson v. Lyon (Tex. Civ. App.)..... 638 __(Tex.) ............................

303 William Wurdack Electric Mfg. Co. v. ElWalker, Howell v. (Ark.).

liott & Barry Engineering Co. (Mo. Warden, City of Kirksville v. (Mo.)..... 66 | App.) ............................044

877 Warren'v. Crawford - Wilson Coal Co. (Mo. Williams v. Commonwealth (Ky.)........ 447 883 Williams, Gillespie v. (Tex. Civ. App.).. 975

572 Warren v. Parlin-Orendorff Implement Co. Williams v. Ogerly (Tex. Civ. App.)..... (Tex. Civ. App.)..

Williams v. Williams (Ky.)........

468 Warren v. Ray County Coal Co. (Mo.

Wilson v. Schaff (Mo. App.)... App.) .....

Wilson, Sovereign Camp, W. 0. W., v. Warren County, Potter Matlock Trust Co. (Ark.) ..........:::::............. __v. (Ky.)::::::....::::::::::::...

709 / Wilson v. Todhunter (Ark.)............. 221 Warren Oil & Gas Co. v. Gilliam (Ky.)....

:
| Wilson & Co., Quinn y. (Ark.)..........
:

211 Washington v. Austin Nat. Bank (Tex. Civ. W. M. Finck & Co. v. Nacogdoches MerApp.) ........

cantile Co. (Tex. Civ. App.).......... 604 Watkins v. State (Tex. Cr. App.)....... 926 W. M. Sutherland Building & Contracting Webb v. Reynolds (Tex. Com. App.)..... 914 Co., Ogle v. (Mo. App.).. Weeks v. First State Bank (Tex. Civ. Wood, St. Louis, I. M. & S. R. Co. v. App.) ......

(Ark.) ..........: Wehrenbrecht v. Wehrenbrecht (Mo. App.) Woodall, St. Louis Southwestern R. Co. Teil v. Hatton (Tex. Civ. App.).......

of Texas v. (Tex. Com. App.)........ Weise v. Sovereign Camp, W. 0. W. (Mo. Word, Chicago, R. I. & G. R. Co. v. (Tex. App.) .....

· 249_Com. App.)......................... 90Weisner v. Missouri, K. & T. R. Co. of Wright v. State (Tex. Cr. App.)..... Texas (Tex. Com. App.)...............

904 Wurdack Electric Mfg. Co. v. Elliott & Weitzel, Turner v. (Ark.)...

Barry Engineering Co. (Mo. App.).... West Bros. v. St. Louis, I. M. & S. R. W. W. Kimball Co., Ray V. (Tex. Civ. Co. (Tex. Com. App.).....

App.) ..
West Bros., Texas & P. R. Co. v. (Tex. Wynn, Sursa v. (Ark.)............

WAPP.) .........:::::................ 351
Com. App.)...:::..
Western Union Tel. *Co. v. Armstrong | Young, Prange v. (Ark.)...

445 (Tex. Civ. App.).....

Youngblood, Benjamin v. (Tex. Civ. App.) 687 Western Union Tel. Co. v. Barrett (Tex. | Yuede v. Funck (Jo. App.).............. 244

Civ. App.).......

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[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

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See End of Index for Tables of Southwestern Cases in State Reports

THE SOUTHWESTERN REPORTER

VOLUME 207

17. PARTITION 97–LIEN NOTE-Right TO KING v. KING et al.*

ENFORCE LIEN AGAINST LAND.

Upon death of owner of farm subject to (Court of Appeals of Kentucky. Dec. 20,

lien note, holder of note has right, upon action 1918.)

to partition land, to assert his claim and to 1. PARTITION 77(3) - SUSCEPTIBILITY OF

enforce his lien against the land, especially LAND TO DIVISION.

where no settlement of estate is made, or efWhere lands are susceptible of division

fort made to show that administrator has sufwithout material impairment of their value, a

ficient funds with which to satisfy lien. division thereof will be had if desired by the 8. PARTITION em 114(1)-CostS-ASSIGNMENT owners, rather than a division of the proceeds OF DOWER. after a sale for that purpose.

In action for partition, in which widow of 2. PARTITION 77(4)_SUFFICIENCY OF Eyi. deceased owner was made defendant, where DENCE-SUSCEPTIBILITY OF DIVISION.

petitioner admitted widow was entitled to dowIn a partition action, evidence held to show

er, the cost of the assignment of dower should lands to be susceptible of division, without ma

not have been taxed against plaintiff, but should terially affecting their usefulness or value.

have been paid by all parties. 3. PARTITION 92-PREMATURITY OF JUDG Appeal from Circuit Court, Logan County. MENT-SATISFACTION OF LIEN. In action for partition of land subject to

Action by V. J. King against D. M. King lien, a judgment directing master commission- and others. Judgment for defendants, and er to sell only enough of tract to satisfy lien plaintiff appeals. Affirmed, with directions. debt, and when sale is made definitely fix bound

| J. Verser Conner, of Louisville, and I, G, ary of the tract sold so that balance can be certainly known and boundaries fixed, was not

Mason, of Adairville, for appellant. premature by reason of leaving unknown num

Judge S. R. Crewdson, of Russellville, for ber of acres for division, where commissioner | appellees. appointed to divide the lands so arranged the division that the part sold for payment of lien SAMPSON, J. D. M. King died intestate could be increased or diminished without chang. Land childless in October. 1915, while a resi. ing the general outline of the remainder. 4. PARTITION Ow86 — RIGHT TO RENT able personal property and a farm of 166 WAIVER.

acres situated near Adairville. He was past Where owner of farm died intestate and 40 years of age, and left surviving him a childless but left surviving him widow, father, widow, the defendant Mrs. Kate King. The and mother, the mother was not entitled to re

plaintiff, Victoria J. King, is his mother, and cover from widow and father, alleged to have

defendant J. M. King is his father. After had use and rental of land during year following owner's death, any portion of the rent, where

his death, J, M. King was appointed adminisshe had not availed herself of father's offer to

trator of his estate and qualified and entered use part of land during such year.

upon the discharge of the duties of the trust.

In September, 1916, this action was insti5. APPEAL AND ERROR 1172(2)-REVIEW

tuted by V. J. King against J. M. King, adFINDINGS.

ministrator, J. M. King, and Katie King, widThat part of a judgment which is sustained by the pleadings, and evidence and admitted to

ow of the deceased, for a sale of the aforebe correct by appellant's brief, will not be dis

said farm owned by D. M. King at his death, turbed on appeal.

and a division of the proceeds. By the peti6. EXECUTORS AND ADMINISTRATORS em 227

tion it is alleged in substance that the father (4)--VERIFICATION-WAIVEB,

and mother are the only heirs of D. M. King; Where no objection was made to claim

that he died intestate; that his wife, Katie based on lien note, because of insufficient veri

King, is entitled to dower in the lands; that fication under Ky, St. 88 3870-3874, but issue

said lands are not susceptible of division was joined upon the claim without objection, without material impairment of the value of the objection was waived.

the whole and of each part thereof; that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 207 S.W.-1

*Rebearing denied February 4, 1919.

there are no other liens upon the lands, and, Mr. E. A. Keller was next called by plainall the debts of the estate have been paid from tiff, and stated that he lived on the farm of the personal property thereof; that defend- Mrs. King in 1916, and cultivated a part of ants Katie King and J. M. King have had it. After telling about the crops which were the use and rental of the farm for the year raised on the farm in that year and the 1916; and that the reasonable rental of the value thereof, he was asked if the farm could farm for that year was $700, and the plain- be divided into three parts without materialtiff V. J. King is entitled to one-half thereof, ly impairing its value, and he answered: $350. J. M. King and Katie King filed sep- | “No, sir; I do not believe it could.” He then arate answers by which the indivisibility of stated, in answer to questions, the locations the lands, described in the petition, is denied, of the several houses and barns and timber and it is affirmatively averred that the lands plots. are susceptible of advantageous division. Then came R. E. Crocker, a farmer, who The answer of J. M. King also asserted a stated that he lived next to the D. M. King lien for purchase money, amounting to about farm, and had known it for some 30 years, $1,300 upon the lands, and averred that said or more. Answering the question whether it tract is subject first to this lien debt, and was susceptible of advantageous division, he then that Katie King is entitled to dower in said: one-third of the remainder, and that the “That is a little hard question to answer. I residue should be divided equally between tell you the truth about it though; I just do the plaintiff V. J. King, and the defendant not think it could, not very conveniently. Now, J. M. King. He denied having used the I can give you my reason why I think so. If lands or received rental therefrom for the lit was cut up into pieces that way-it is a lityear 1916. or at any time, and a verred that | tle out of the way place to start with-and if the defendant Katie King had held and used | you was to cut it up, there would be no coni

petition if you wanted to sell it, it just joins one a part of the lands only, as she had a right

man on each side there. It don't seem to me to do as widow, no dower having been as

to be the proper thing to do." signed, and that the plaintiff, V. J. King, was privileged to have used and occupied a part Mr. E. N. Taylor, a farmer, when asked if of said farm had she desired to do so, but the lands could be divided into three equal that she failed and refused to cultivate or parts without depreciating the value, said: use any part of said lands, and for that | “No, sir; I do not think it could." reason was not entitled to recover rents ei- The foregoing is the strongest evidence ther of J. M. King or the widow, Katie King. given for the plaintiff in support of her averIssue was joined upon the several questions ment that the land was not susceptible of presented.

division. On the other hand, four persons The appellant, Mrs. V. J. King, did not give were called by the defendants who had reher deposition, and the deposition of J. M. | cently gone upon the lands for the purpose of King was, upon motion of the plaintiff. studying the situation and making a tentastricken. The plaintiff, however, offered the

tive division thereof in three parts, after depositions of nine witnesses in support of laying off enough to satisfy the lien debt her contention that the lands were not sus.

of $1,300. These persons fixed the value of ceptible of advantageous division. Upon this the land at about $45 per acre. They estipoint the defendants offered five witnesses. | mated that it would take about 30 acres of Mr. Barnard Johnson, who was called for the

the tract to satisfy the $1,300 lien debt, and plaintiff, stated he lived on an adjoining

that would leave 136 acres to be divided into farm to the lands in question, and, when

three parts. They then laid off 36 acres as asked whether the D. M, King farm was sus

dower, to the widow around the mansion ceptible of division, he answered:

house, including two barns, garden, orchard,

etc., which was satisfactory to her. When "Well, it just depends upon circumstances, these two pieces are lopped off, there is left but my opinion is that you might make arrange

approximately 100 acres to be divided bements to sell part of it and get something for

tween the plaintiff V. J. King, and her husit, and you might not."

band, defendant J. M. King. The widow,

Katie King, stated that she had lived upon He continued:

the farm for a number of years, had no “Well, it would be a little unhandy for an other home, and desired to retain her dower outlet. That is the biggest trouble I can see interest in the lands and to continue to reabout it. You could not get an outlet." side thereon. J. M. King also desired to

have his share in kind. The four witnessFurther along in his deposition he said: es who examined the lands, one of them be"No, sir; I cannot say it could not be done,

ing a surveyor, gave it as their opinion that because I do not know very much about the

the land was easily susceptible of division place. as I said before. except about the line without impairment to its value. They also coming out the road: never been on the place stated that some years before a road had only just on that part of it from the road up passed through this farm, and that the roada to the house."

bed is still intact, and is used for the benefit

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