it was divided into lots, and conveyed to the parties entitled thereto. Lot No. 5 was assigned to Robert Cochran, and lot No. 6 to W. H. Fosdick. The appellant has acquired by purchase lot No. 6, and the appellee lot No. 5. The appellee claiming that the appellant had cut and removed timber from the lot belonging to it, this action was instituted against it to recover damages alleged to have resulted therefrom. The dispute arises over the location of the division line between the lots named. In the partition proceedings it appears that each of these lots was supposed to contain the same number of acres, and in describing each the same courses and distances are used. Each lot was supposed to contain 628 acres. The appellant claims that to follow the calls of its deed the land in dispute is covered by it. On the other hand, the appellee claims that the division line was located, and the corners at the north and south end of it were marked. Besides, the line was plainly marked between the points named. In our opinion, the parol testimony conduces to establish the fact that the commissioners in the partition proceedings located the line between the corners named, and along the route as claimed by appellee. Their report describes lot No. 5 as beginning "at a small white oak in the base line, with large white oak, hickory, and elm pointers; thence N. 225 poles to a gum, with 3 gum pointers;" and lot No. 6 as beginning "at the N. W. corner of lot No. 5, a gum with 3 gum pointers." The fourth call is with line of No. 5 to the beginning. The plat returned by them shows that Prairie or Clear Lake is situated east of the line established by them as the division line between lots Nos. 5 and 6, while, if the line was located at the place claimed by appellant, it would leave part, if not all, of Prairie or Clear Lake west of the line. The lake is represented on the plat. In addition to the parol testimony, the partition proceedings recognize the corner at "the gum and 3 pointers.”

The appellant insists that the courses and distances called for in the deed should control, and not the line as marked. If the line was established and marked at the place claimed by appellee, then the courses and distances called for in the deed would have to yield. In instructing the jury the court below took that view of the law. It has been so universally recognized by this court that courses and distances must yield to well-known natural objects called for in a deed it is no longer a debatable question.

Instruction No. 1 given by the court to the jury reads as follows: "The court instructs the jury that it is admitted in this case the plaintiff is owner of lot No. 5, and the defendant is the owner of lot No. 6, and the only question with reference to the land for the jury to determine is the boundary line between said lots Nos. 5 and 6. If the jury shall believe from the evidence the commis

sioners who divided said lands into said lots, or the surveyor acting under their direction, established the corners by making them, or the division line by making it, between said lots, then such line or corners as thus established by them must be regarded by the jury as the true boundary between said lots for the purpose of this trial, notwithstanding the lines of one lot may be longer than those of the other, or the quantity of land in lot No. 5 may be greatly in excess of the quantity in lot No. 6. If, however, the jury shall believe from the evidence the said commissioners, in dividing said lands, did not establish the line between said lots, then said boundary line between said lots should be determined by the jury to be equidistant between the west line of lot No. 6 and the east line of lot No. 5." Perceiving no error to the prejudice of the substantial rights of the appellant, the judgment is affirmed.

O'REAR, J. Appellant was injured while traveling along the streets of the city of Flemingsburg, January, 1899. He fell. breaking a thumb, making its amputation necessary. The fall was caused, he alleges, by his stumbling on a step made in the pavement of the street he was walking. This step was four or five inches high. He sues the city, alleging that the step was not necessary, and was in itself dangerous to those passing over it. On the trial it developed as an undisputed fact that there was a slight grade in the street for some distance before the point where the step was made, and that the purpose of this step was twofold: First, to level the grade to some extent; and, second, thereby to serve as a watershed, throwing the surface water of the street from the pavement. There was nothing to show that the step was out of repair, or unskillfully constructed. Some of

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

It

appellant's witnesses testified that, in their opinion, the step was dangerous; others, that it was not. But this was not because of any special manner of construction. seems that some of the witnesses thought any step was necessarily dangerous to pedestrians at night. And this is doubtless true to some extent. The circuit court having, at the close of plaintiff's evidence, given a peremptory instruction in favor of the city, we are brought to consider whether the building a sidewalk with a step, which, from the nature of the grade, the city government deemed necessary and proper, is of itself such negligence as will warrant a recovery by one injured in a fall caused by the step. The city, when it assumes to construct sidewalks, engages to do so in a reasonably safe manner, affording pedestrians reasonably safe conditions of travel; they at the time using due caution. The rule is fairly stated in Dill. Mun. Corp. § 1019, as follows: "A municipal corporation is not an insurer against accidents upon the streets and sidewalks. Nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient, we think, if the streets (which include sidewalks and bridges thereon) are in a reasonably safe condition for travel in the ordinary modes, by night as well as by day." The same author lays down the further rule that this implied liability of the corporation is only on the ground of negligence. "The liability is not that of a guarantor of the safety of the traveler. The corporate authorities are only bound to use reasonable skill and diligence in making the streets and sidewalks safe and convenient for travel. It is under no obligation to provide for everything that may happen upon them, but only for such things as ordinarily exist, or such as may be reasonably expected to occur." Section 1015. It is argued for the city in this case that the plan of street improvements is one within the discretion of the council, and not to be interfered with by the courts. Some authority is cited from other states supporting this contention. But we rather incline to the view that, while the city governing body may exercise its discretion in the selection of a plan of street improvement, if the plan adopted is one palpably unsafe to travelers, the city would be liable. But when the plan is one that many prudent men might approve; or where it would be so doubtful upon the facts whether the street as planned or ordered by the city governing board was dangerous or unsafe or not,-that different minds might entertain different opinions with respect thereto,-the benefit of the doubt should be given the city, and it should not be held liable. To this effect we find Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822; City of Madison v. Ross, 3 Ind. 236;

Mayor, etc., v. Bailey, 2 Denio, 433. Nor is the city bound to maintain an even or perfect grade of its streets and pavements. Town of Gosport v. Evans, 112 Ind. 133, 13 N. E. 256. We are cited the case of Blyhl v. Village of Waterville, 57 Minn. 115, 58 N. W. 817, in support of appellant's claim. In that case the municipality had adopted a plan for constructing a plank walk, requiring a drop or step seven or eight inches high. The appellant was injured by stumbling over this step in the nighttime. The court found that the step was unnecessary, and there was no reason for having it. This decision seems to be contrary to those of New York, Pennsylvania, Michigan, Indiana, and Kansas; and, furthermore, in that case Judge Canty dissented, saying: "Unless it appears that the alleged defect is of ministerial origin, it must, appear that there is such gross mistake in the adoption of the plan as would imply a failure to exercise the legislative judgment. If two reasonable minds might have adopted different plans, the legislative judgment cannot be impeached for having adopted either one of those plans." In Dubois v. City of Kingston, 102 N. Y. 219, 6 N. E. 273, the plaintiff was injured by stumbling and falling over a stepping stone placed in one of the defendant's sidewalks. In denying his right of recovery, the court used this language: "It would be extending the rule of the liability of municipal corporations far greater than has yet been done in any decided case, to hold that they are liable for assenting to the placing of stepping stones on the edge of sidewalks in front of hotels, stores, public buildings, and private residences. The courts have gone quite far in holding such corporations to a very strict responsibility in reference to accidents caused by the failure of their officers to keep the streets and sidewalks in a proper and safe condition, but it would be adding to the corporate liability beyond reasonable limits to hold that stepping stones, which are almost a necessity in providing for the interests, comfort, and convenience of the public in the maintenance of walks, avenues, and streets, constituted a nuisance or obstruction, and that corporations are liable for damages by reason of accidents caused thereby." It may frequently be, and we know it is sometimes, necessary to break the angle of sidewalk grades by steps. The determination of the necessity and the plan should be left to the discretion of the governing or legislative body of the city, subject to control in cases of such manifest error or mistake as would indicate a failure to consider or a purpose to misconstruct the work. The ruling of the lower court in giving the peremptory instruction being in accord with these views, the judgment is affirmed.

SHORT et al. v. RUSSELL.1

(Court of Appeals of Kentucky. Feb. 8, 1901.) MORTGAGES-TITLE BOND-IDENTITY OF

LAND DESCRIBED.

Where the description of a town lot in a title bond showed that it adjoined the property of M. and C., the court cannot say, upon demurrer to an answer asserting claim under the bond, that the land described in the bond is included in a mortgage describing the mortgaged property as a town lot adjoining M. and C.

Appeal from circuit court, Marion county. "Not to be officially reported."

Action by S. A. Russell against James Short and others to quiet title to land. Judgment for plaintiff, and defendants appeal. Reversed.

H. S. McElroy, for appellants. S. A. Russell, in pro. per.

WHITE, J. The appellee, S. A. Russell, brought this action in equity to quiet title and remove a cloud from his title. He alleged that in 1893 James and Didema Short had executed to him a mortgage on certain real estate at Riley's Station (describing same) to secure an indebtedness to him; that afterwards, in an action in the Marion circuit court, the mortgage was foreclosed and the property sold; and that at that sale appellee became the purchaser, and after confirmation a deed was made. Appellee then alleged that appellants, trustees of a colored school district, were claiming a right and title to a portion of the property; that is, a two-story frame house, and the lot on which it stands. The trustees answered and set out their claim by description of the lot, and claimed an equitable title under a bond for deed executed by the Shorts in the year 1890, and then denied specifically that the land they claimed for the district was embraced by or included in the mortgage to appellee. The court sustained a demurrer to this answer, it is presumed on the idea that the description in the title bond, as pleaded, was necessarily included in the description in the mortgage. Upon a failure to plead further, judgment was rendered as by default, and hence this appeal.

We are of opinion that the court erred in sustaining the demurrer to the answer. The description in the mortgage is: "One town lot, and two houses thereon, in Riley's Station, Ky., adjoining Louis McHenry and Clark Crowdus, containing about 4 of an acre." The description in the title bond is: "Beginning at the west corner of said Short's lot, and running south with Clark Crowdus' line 12 poles and 15 feet to a white-oak stump; thence east 922 feet with Louis McHenry line to a stone; thence north 12 poles 15 feet to a stake; thence west 92% feet to the beginning." The court is not authorized to say, as a matter of law, on demurrer, that

Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

the latter boundary is included in the former, and especially in view of a specific denial that it was included. It seems to us that the answer presented an issue of fact, and the demurrer should have been overruled. Wherefore the judgment is reversed, and the cause remanded for further proceedings consistent herewith.

MCCRACKEN v. McCRACKEN.1

(Court of Appeals of Kentucky. Feb. 8, 1901.) DIVORCE-POWER TO SET ASIDE JUDGMENT DURING TERM.

A judgment for divorce cannot be set aside, even during the term at which it was rendered, except upon petition of the parties. as provided by Civ. Code Prac. § 426.

Appeal from circuit court, Campbell county. "To be officially reported."

Action by James E. McCracken against Mary E. McCracken for divorce. Judgment setting aside judgment of divorce and dismissing plaintiff's petition, and he appeals Reversed.

C. L. Raison, Jr., for appellant.

GUFFY, J. It seems that appellant insti tuted this action in January, 1895, against the appellee, seeking to obtain a divorce, upon which summons was issued and duly executed January 5, 1895. On the 26th May, 1898, the judgment of divorce seems to have been entered. On the 16th of July, 1898, the following order was entered: "Came defendant and filed motion to set aside judgment herein, and judgment May 26, 1898, is set aside." And thereafter, on July 27th, the affidavit of appellee was filed, in which it is substantially stated that plaintiff's petition was filed January 5, 1895, and that depositions were taken in his behalf shortly after said date, but she is informed, and she states the fact to be, that the said depositions were not filed herein until May 6, 1898. She says she was led to believe that plaintiff had abandoned his suit, that she did not know that this cause was submitted for judgment, and that she only learned by accident that judgment had been rendered herein in favor of plaintiff. She says she employed attorneys, and instructed them to file her answer herein, but that they failed to do so, and she says she has, and will make, a valid defense. On the 29th of September, 1898, appellee filed her answer, which may be treated as a traverse of the averments of the petition; also traverses the allegations that appellant had been a faithful husband, and makes averments tending to show that he had been guilty of cruel and inhuman mental treatment towards her. In the third paragraph it is alleged that until the 16th of July, 1898, she and plaintiff had lived and cohabited together as man and wife. To the filing

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

of this answer plaintiff objected, which objections were overruled. The reply of plaintiff traverses the averments of the answer. On January 14, 1899, plaintiff's petition was dismissed, and on the 21st January, 1899, plaintiff moved to set aside the submission and judgment of January 14, 1899, and to offer an amended petition. "Came also plaintiff, and moved to set aside order of July 16, 1898, setting aside the judgment of May 26, 1898, and defendant objected. The court sustained the objection, and the said motion is overruled, and plaintiff excepts. And plaintiff's motion to set aside the submission of January 14, 1899, is overruled, and the fil ing of said amended petition is refused, and plaintiff excepts, and on his motion said amended petition was made a part of the record; and plaintiff excepts, and prays an appeal to the court of appeals, which is granted."

It is the contention of appellant that the order setting aside the judgment rendered in his behalf was and is void and of no effect, and that his motion to set aside said order vacating the judgment of divorce should have been sustained. It seems to us that the case of Bentz v. Bentz (Ky.) 54 S. W. 715, sustains the contention of appellant. It appears from the opinion in the case supra that: "On the 2d of August, 1899, an absolute judgment of divorce was entered in Kenton circuit court. * The judgment reserved nothing for future adjudication, and was of such a character as to take the case off the docket finally. On the 7th of the same month an order was entered setting aside the judgment of divorce, and plaintiff excepted and at once moved to set it aside. His motion was overruled, and from this judgment this appeal is prosecuted. If it be conceded that, for cause shown, the court had the power to set aside the judgment of divorce, still that cause must appear of record, and there must be something of record on which the court can act; otherwise, the action of the court would be unauthorized. Upon the record as it stood, the court was without authority or power to redocket the case and make an order vacating the judgment of his own motion. Indeed, it seems, from the principles announced in Bristow v. Bristow (Ky.) 51 S. W. 819, no order annulling such a judgment can be made, except upon petition of the parties thereto, as provided under section 426 of the Civil Code of Practice. We can but regard this order of annulment as unauthorized and void, and the judgment overruling the motion to set it aside is therefore reversed." It seems clear to us that the order complained of, which set aside the judgment of divorce, was unauthorized and void, and appellant's motion to set the same aside ought to have prevailed. If, however, this be not so, we are still of the opinion that the appellant showed himself entitled to a divorce, and that a judgment divorcing him from the appellee should have been entered, under the evidence finally in60 S.W.-46

DU RELLE, J. On the 7th day of May, 1894, R. E. Wilson and wife executed a mortgage to J. W. Bradley upon a tract of land in Robertson county to indemnify him as surety on a note of Wilson to a bank for some $800. This mortgage was acknowledged by Wilson on June 13, 1894. On June 18th and 19th suits were filed by Monroe and Cray, and attachments sued out, which were levied on Wilson's property, including the land mortgaged. A month later amendments were filed in the suits of Cray and Monroe, seeking to have the mortgage adjudged to operate as an assignment for the benefit of all the creditors of Wilson. These suits were consolidated, and appellant, Throckmorton, made a party, seeking the same relief sought by the amendments. By judgment entered March, 1896, the mortgage was adjudged to have been made in contemplation of insolvency, and with the design to prefer Bradley to the exclusion of Wilson's other creditors, and to operate as an assignment of all his property for the benefit of all his creditors. This judgment reserved all questions as to priority by reason of the attachments, and is not appealed from here. By a subsequent judgment, entered in December, 1896, it was adjudged that the attachment liens of Cray and Monroe upon the 49 acres of land were prior and superior to the claims of the general cred

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

itors. This judgment, and some subsequent orders disposing of money in court, are appealed from by Throckmorton, one of the general creditors, and whose claim as such had been allowed.

As the mortgage was executed and delivered before the attachments were sued out, it would seem clear that, as the mortgage operated as an assignment for the benefit of all the creditors before the levy of the attachments, such levy cannot operate to secure any priority. In First Nat. Bank of Covington v. D. Kiefer Milling Co., 95 Ky. 104, 23 S. W. 676, this court said: 66* * And as, according to repeated decisions of this court, a creditor acquires by attachment only a lien upon, or an equitable right to, property levied on, it necessarily follows that we have in this case merely a contest between equities; and applying the doctrine that, in such state of case, the equity which is prior in time must prevail, there is no other alternative but to decide that the deed of assignment in this case prevails against the attachment." That was in a case of voluntary assignment for the benefit of creditors. To the same effect, in principle, are the cases of Baldwin v. Crow, 86 Ky. 679, 7 S. W. 146, and Hawkins v. Trapp (Super. Ct.) 12 Ky. Law Rep. 794. And in Scanlan v. Wickliffe, 5 Ky. Law Rep. 927, which was, like the case at bar, a case of preference under the statute, it was held that the levy of an attachment upon the property of the debtor after the act of preference gave the attaching creditors no priority over other creditors. For the reasons given the judgment is reversed, and cause remanded, with directions to set aside the judgment in so far as it gives a preference to the attaching creditors, and enter judgment in accordance herewith.

MAY et al. v. BALL et al.1 (Court of Appeals of Kentucky. Feb. 12, 1901.) JUDICIAL SALES-REVERSAL OF JUDGMENTPAYMENT OF BONDS BEFORE MATURITY. 1. The fact that a judgment for the sale of land has been reversed furnishes no ground for reversing a judgment confirming the sale and ordering a deed to be made to the purchaser, which was rendered pending the appeal from the former judgment.

2. An order directing a conveyance to the purchaser, and permitting her to pay the sale bonds before maturity, was not erroneous.

Appeal from circuit court, Mason county. "Not to be officially reported."

Action by W. W. Ball and others against H. H. Cox and others to enforce a mortgage lien. Judgment confirming report of sale of land, and L. L. May and others appeal. Affirmed.

For former report, see 56 S. W. 7.

A. E. Cole & Son, for appellants. T. R. Phister, for appellees.

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

GUFFY, J. This appeal is prosecuted from a judgment of the Mason circuit court, confirming a sale of certain real estate purchased by Annie P. Shanklin. It is contended by appellants that the court erred in decreeing to the purchaser permission to pay the sale bonds, and that the conveyance to Shanklin, having been ordered without the payment of the purchase price or the retention of a lien therefor, is without consideration and void, and passed no title to the purchaser; that the same was made on June 4, 1898, under a judgment rendered on the last day of the February term, 1898, the orders of which were not signed until June 6, 1898, and that the commissioner had no power to make the sale when he made it; that the judgment for the sale was reversed on an appeal to this court in the case of May v. Ball, 56 S. W. 7. It will be seen from the opinion in the case supra that this court held that: "The receiver was bound to pay, every six months, interest on the sum of money named in the bond, to a named person. It follows, therefore, that the statute began to run from the time these several sums should have been paid, and to that extent the plea of statute of limitation pleaded in the second paragraph of the answer and amended answer was good and sufficient, and the demurrer thereto should have been, to that extent, overruled. * This record shows that,

as between appellant and appellees other than Ball, his lien upon the land purchased by him was superior to that of said appellees. The court, therefore, erred in not so adjudging. For the reason indicated, the judgment is reversed, and cause remanded, with direction to the court below to overrule the demurrer to the second paragraph of the answer as amended, and to adjudge that appellant's lien upon the land purchased by him under execution sale, to the extent of his debt, interest, and cost, is superior to that of all other appellees, except Ball, and for proceedings consistent with this opinion.” It will be seen from the record upon this appeal that the sale complained of was made under the judgment hereinbefore referred to, which judgment was not superseded. The plain inference from the judgment on the former appeal is that no one had a homestead right in the land claimed by appellant under his execution sale. Numerous authorities are cited both by appellant and appellee as to the validity of sales made under a judgment which was afterwards reversed. It clearly appears in this case that the confirmation of the sale, deed of conveyance, and the payment of money were made at an earlier date than that fixed in the judgment, all of which occurred during the pendency of the original appeal in this case. After a careful consideration of the facts and circumstances, and the authorities relied on by the appellant and appellee, we are of opinion that the court below did not err in the confirmation of the sale, nor in ordering a conveyance to the