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surrender the surplus; and, on the other hand, see Whaley v. ElliotCs heirs and Lewis t.
Merriwether, supra, in which, respectively, the vendor was held entitled to recover a sur-
plus of 30 acres and 37 j£ acres ; and in Beam v. Grundy's heirs, &V., supra, which relates
to a surplus of 101 acres, and in which it seems to be clearly inferable that Grundy's heirs
and devisees sued for compensation, the court held that " Beam must be allowed his
election to pay the money or surrender to Grundy's heirs and devisees the amount of the
surplus ; " from which, if the above mentioned inference is correct, it follows that, if the
heirs and devisees, instead of suing for compensation, had sued for the land, they would
have been entitled to recover it. However, in Dawson v. Goodwin, supra, in which a
creditor of the vendor attached a surplus of 31 acres to which the vendor was entitled,
the court held that, "as in other cases of suits for surplus-land," the vendee had a right
to elect whether he would surrender the surplus or pay for it according to the contract-
price ; but I am not aware of any other case holding that the vendee is entitled to such
right of election unless the vendor had impliedly authorized it by claiming compensation
when he had a right to claim the surplus-land, as in Harrison v. Talbott, and, presuma-
bly, in Beam v. Grundy's heirs, supra.

It seems to be settled that, when the vendor is entitled to recover compensation, the
criterion of recovery is the value of the surplus according to the contract-price of the land,
no matter how long the vendor has delayed suing : see Campbell's ex'rs v. Wumore, Thomp-
son v. Robertson, and Hut c kings v. Moore, supra ; and Grundy* s heirs v. Grundy, 12 B. M.,
269 ; in the first three of which cases the court said nothing about interest ; and in the
last of which the vendor was held to be entitled to interest from the commencement of
the action, though it seems to be inferable from a statement of the court (12 B, M., 276)
that the plaintiff might have entitled himself to antecedent interest by averring and
proving that he had, at a stated time, notified the defendant of the existence of the sur-
plus and requested payment therefor : at any rate, such seems now to be the law. See ante,
note VI, p. 73; note (2), p. 78; and 86 Ky„ 675-76.

When the vendor is entitled to recover the surplus-land, it must be taken from a side
or end of the tract, to be designated, not by the vendor (4 Bibb, 314-15), but by the ven-
dee (I Mar., 343; 2 Dana, 268; 12 B. M., 277 ; 15 Id., 442), unless the court direct it to
be laid off in some other equitable manner. 9 B. M., 184-85.

As to the right of such vendor to recover rent for the surplus, see 9 B. M., 172, I73»
183, and 184, and 12 Id., 276.

5.. AS TO THE ADMISSIBILITY OF PAROL EVIDENCE CONCERNING DEFICITS AND SUR-
PLUSES.*

(I) As to proving the existence of a deficit or surplus.

It seems clear that the fact that there is a deficit or surplus can not generally be
proved, if denied, except by parol evidence, such as the testimony of a surveyor or
proof of the admission of a party. In most of the cases relating to these subjects the
existence of the deficit or surplus was admitted by the pleadings ; and I am aware of only
four cases of actions brought by plaintiffs for relief on account of a deficit or surplus in
which its existence was contested; namely, Shelby &> Roberts v. Smith's heirs, 2 Mar., 504;
Moredock v. Rowlings, 3 Mon., 75; Thompson v. Robertson, 9 B. M., 383, and Hutckwp



* The following notes leave out of view cases of fraud and cases of mistake in reducing the contract
to writing, concerning which parol evidence is admissible as to all contracts; and in the absence of which
parol evidence is clearly inadmissible, under the statute of frauds, to prove that more land was «oW
than is described in the written contract. Smith v. Smith, 4 Bibb, 8a; Churchill v.Rtgtrt, 3 Jfr*» •«•
Thompson v. Robertson, 9 B. M., 384-85.



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PETITIONS IN ACTIONS IN EQUITY. 59!



v. Moore, 4 Met., no; in the first three of which parol evidence was admitted in behalf
of the plaintiff to prove the existence of the deficit or surplus ; whilst the fact that, in
Hide kings v. Moore, the case was remanded for further proceedings, proves that, in the
opinion of the court, the plaintiff had a right to prove the existence of the surplus, though
the kind of evidence which would be necessary was not indicated, as would have been
done, perhaps, if only written evidence had been regarded as admissible.

(2) As to the admissibility of parol evidence to show whether or not the deficit or surplus was
contemplated.

The right of defendants to introduce parol evidence for that purpose has never been
questioned; the only controversy being whether or not, under the statute of frauds {G. S.,
ch. 22, § 1), plaintiffs have a right to introduce such evidence to prove that the deficit or
surplus was uncontemplated.

If, as was held in cases above cited, parol evidence is admissible for a plaintiff, to prove
the fundamental fact that there is a deficit or surplus, if denied; it seems to follow,
a fortiori, that such evidence ought to be admissible for the plaintiff, to prove that an
admitted deficit or surplus was not contemplated by the parties : but, according to Harrison
v. Talbott, 2 Dana, 258, it is not admissible for that purpose, but is admissible for a
defendant, to prove that the deficit or surplus was contemplated. The facts in that case
are that Harrison covenanted to convey to Talbott a tract described as containing 400
acres, for $6,000; that Talbott, having discovered that there was a surplus of 90 acres,
brought a suit against Harrison, alleging that fact and praying that Harrison be required
to convey the 490 acres pursuant to the contract ; which Harrison resisted by answer and
cross-bill, offering, however, to convey 400 acres for the $6,000, or to convey the 490
acres for a proportionate consideration ; and that the court decreed that Harrison should
convey the 490 acres without any compensation for the surplus. But, on Harrison's
appeal, in view of " the date of the contract £that is, the year 1847, and not at an early
period of this country], the value of the land and its locality," and the largeness of the
surplus, fortified by the fact, which the court regarded as having been "satisfactorily
proved," " that the land was, in fact, sold at fifteen dollars an acre," the Court of Appeals
held that the surplus must be regarded as uncontemplated ; and reversed the decree and
remanded the case, " with instructions to dismiss the bill and remit Talbott to his legal
right and remedy, unless he shall elect to take a conveyance as proposed by Harrison ;
. . . and with instructions, also, to dismiss Harrison's cross-bill, because he can not,
in the attitude of a complainant, compel a specific execution of the contract, varied or
modified by parol evidence, nor otherwise than according to the import of the written
memorial of the sale;" and the court said in the opinion (2 Dana, 265) : "In executory
contracts of sale in gross, it will not be so difficult to obtain relief from the literal effect
of the agreement as, for obvious reasons, it must generally be when the legal title has
passed;" the meaning of which evidently is that a vendor, by conveying the land, makes
an action for a conveyance of the legal title unnecessary, and thus deprives himself of an
opportunity to introduce, as defendant, parol evidence showing that there is an uncon-
templated surplus.

Thus, according to Harrison v. Talbott, in an action by a vendor for specific perform-
ance of an executory contract (that is, for a sale of the land for payment of purchase-
money), the court will relieve the vendee from praying for a deficit proved by parol
evidence not to have been contemplated; but a vendee who has paid all the purchase-
money can not, upon such evidence, maintain an action to recover compensation for the
deficit: and, on the other hand, in an action by a vendee for a conveyance pursuant to an
executory contract, the court will not compel the vendor to convey a surplus proved by
parol evidence not to have been contemplated ; but the vendor can not, upon such evi-
dence, maintain an action (even by counter-claim) to compel the vendee to relinquish his
equitable title to the surplus ; and, a fortiori, a vendor who has conveyed the land can not,
upon such evidence, maintain an action to recover the surplus or its value.

No doubt, that distinction between plaintiffs and defendants is correct, if, as was
assumed by the court in Harrison v. Talbott, the right to a surplus, or to compensation for
a deficit, is founded on the contract of sale. But I submit that the court radically erred
in assuming that Harrison was seeking to "compel a specific execution of the contract" of sale ;
that, to the contrary, Talbott sought, and Hirrison opposed, a specific execution of the contract ;
that the right to a surplus or deficit, though a consequence of the contract of sale, is not
founded on it ; that it would be nearer the truth to say that such right is claimed in
opposition to, than to say it is founded on, the contract ; that, however, neither of those
assertions would be true ; that the claimant of such right does not seek to add a word to
the contract or to take a word from it, or to modify or vary it in any way ; but, conceding
its validity just as it was written, he founds his claim on an implied equitable right resulting



38

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592 FORMS.



from a mistake as to the subject of the contract :* and I submit that those views are sustained
by a decided preponderance of authorities, even placing out of view the decisions whka
hold parol evidence admissible for a plaintiff to show that there is a surplus or deficit.

The right to a surplus of a vendor who has conveyed the land is "an equity arisiag
from circumstances dehors the deed" (Parberry's heirs v. Coram, <5rV., 3 Bibb, 110); and in
an action by a vendor who had conveyed the land, for the recovery of a surplus, not only
was parol evidence admitted in his behalf, but the court, iterating the doctrine announced
in Parberry's heirs v. Goram, &V., said: "There is no mistake in the deed, in the writing.
There is no necessity to call in parol proof to explain or contradict the writing. Toe
mistake is on the part of Allen, the surveyor, in laying off more land than the com-
plainant sold. This can be rectified without affecting the deed, and equity requires that
it should be corrected." Gilmore v. Morgan, 2 J. J. Af. t 65. And, of the four cases
above cited (p. 588) as holding that, to aid the court in determining whether or not a
deficit or surplus was contemplated by the parties, parol evidence is admissible to show
that a contract, though on its face a sale in gross, was in fact a sale by the acre, two
(namely, Elliott's heirs v. Whaley and CampbeWs ex'rs v. Wilmore) were actions by vendors
who had conveyed the land, for the recovery of surpluses; and it was in their behalf that
the parol evidence was held to be admissible. And parol evidence, to prove that a
surplus or deficit was uncontemplated, was held to be admissible in behalf of plaintiffs, in
Shelby & Roberts v. Smith's heirs, 2 Mar., 504; Moredock v. Rawlmgs, 3 Man., 73; Lewu
v. Merrrwether, 9 B. M., 163, and especially, 176-77 ; and Beam v. Grundy's heirs, 12 B. M.,
269, 271 ; and see Crane v. Prather, 4 J.J. M., 75, and Dye v. Holland, 4 Bush, 635.

(b) It seems clear that this action is transitory, whether it be for a conveyance of the
surplus or for compensation therefor, or for compensation for a deficit : see note (2), ante,
p. 48.

61. Petitions of creditors against defendants constructively sttmmonei.

a. Petition against a non-resident defendant (with an attachment) (a):



A. B., Plaintiff, ^ {b) CIRCUIT COURT.

against \ Petition in Equity (c).

CD., Defendant. J

The plaintiff, A. B., says that [set forth a legal or equitable cause of oxtion "arising**
a contract, express or implied, or a judgment or award," and which entitles the plaintif tc
" money" (d)] ; and that the defendant is a non-resident of Kentucky and owns property

in county (e) [or — has a valid claim for money (or — property) on a person who

resides in county (e)].

Wherefore the plaintiff asks for a judgment against the defendant for dollars (/),

and interest thereon from the ... day of , and costs, and that so much of the

defendant's property as may be necessary may be subjected to the satisfaction of said
demand of the plaintiff and for any other relief he may appear entitled to.

E. F., Attorney.

(The petition should be verified unless the cause of action " is founded on a written
contract, or upon a written endorsement or assignment thereof," which is filed with the
petition: see Form I and notes thereto).

Affidavit for attachment {g).

(After stating the style of the action.)

(I) Affidavit of plaintiff.

The plaintiff, A. B., says —

I. That his claim in this action is for the value of merchandise sold and delivered by
him to the defendant [or — for money due on the defendant's note to the plaintiff: or-&c,
according to the fact] ;

* Though I have not found it so stated, it seems clear that the existence of a surplus or deficit, if it be
not such as to raise a legal presumption concerning the understanding of the parties, creates a ittemtam-
biguity as to the subject of the contract which makes parol evidence admissible to show what *a* ****
understanding. See note ^a), xi, to Form 94, fost.



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PETITIONS IN ACTIONS IN EQUITY. 593

2. That said claim is just;

3. That he ought, as he believes, to recover thereon dollars ; * and

4. That the defendant, C. D., is a non-resident of Kentucky (k). A. B.
(2) Affidavit of plaintiff's agent or attorney.

E. F. says that he is the agent (or — attorney) of the plaintiff, A. B., that said A. B. is

absent from county (stating the name of the county in which the action is brought) ;

and —

1. That the claim in this action is (stating the nature of it) ;

2. That affiant believes it is a just claim (1) ;

3. That the plaintiff ought, as affiant believes, to recover thereon dollars ; * and

4. That the defendant, C. D., is, as affiant believes, a non-resident of Kentucky.

E. F.

Signed and sworn to by said A. B. [or — E. F.] this .... day of , before me,

clerk of the circuit court [or— &c, stating official title : see Code, J 549.]

G. H.

Affidavit for warning order (J).

(After stating the style of the action).

The plaintiff, A. B., says that the defendant, C. D., is a non-resident of Kentucky,

and is, as affiant believes, absent therefrom ; and that he resides in the State of

and town of , and that a post-office is kept in said town [or — resides in the State

of . .j , . . and county of , but affiant does not know the name of the place wherein

a post-office is kept nearest to the place where he resides or may be found] (or — and that
the plaintiff does not know in what country the defendant resides]. A. B.

[Or—

E. F. says that he is the agent (or — attorney) of the plaintiff, A. B., that said A. B. is
absent from ...... county (stating the name of the county in which the action is brought),

and that the defendant, C. D., is a non-resident of Kentucky and, as affiant believes, is

absent therefrom ; and that the defendant resides in the State of and county of

, but affiant does not know the name of the place where a post-office is kept nearest

to the place where he resides or may be found (or — and that affiant does not know in
what country the defendant resides) ; and that, as the affiant believes, the plaintiff is
ignorant of the fact (or — facts) which is (or — are) unknown to the affiant as above stated.

E. F.]

(Officer's certificate as-ajpove.)

(a) Before the adoption of the Code, courts of equity had jurisdiction, independently
of statutes, to subject the real or personal property, in this State, of a non-resident debtor,
even upon a legal demand, as an action at law was unavailing (Moore v. Simpson, 5 Litt.,
49; Scott v. McMillen, 1 Id., 302; Scott v. Coleman, 5 A/on., 73; Lytic v. Breckenridge, 3
J. _/. M., 671); and the plaintiff could obtain a lis pendens lien on the property by de-
scribing it in his petition and causing the defendant to be constructively summoned.
Scott v> McMillen and Scott v. Coleman, supra. But §418 of the Code declares that "no
lien on the property of a defendant constructively summoned shall be created otherwise
than by an attachment as is provided in chapter 3 of Title 8, or by judgment; " and in
Grigsky v. Barr, 14 Bush, 330, it was held, erroneously I believe (see note to #418, ante,
p. 309), that an attachment is necessary to give jurisdiction of an action to subject such
property; and, consequently, that a judgment for a sale of it was void, there having been
no attachment: and, on the other hand, in Trabue v. Conners, 84 Ky., 283, it was held,
erroneously I believe (see note above referred to), that, in an action on a return of no
property found against a defendant constructively summoned, the plaintiff can acquire a
lien on his property by describing it in his petition.

(b) As to the county in which the action must be brought, see Code, \ 75.

(c) Not only did courts of equity have jurisdiction, independently of statutes, of
actions to subject the property of non-resident debtors, even on legal causes of action
(see note (a), supra); but an act of 1837 (3 S. L., 12) gave to courts of equity juris-
diction of attachment-cases against non-residents, upon "any claim or demand, in law or



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594 FORMS.



eauity." Consequently, courts of equity now have like jurisdiction under J 6 of the Code.
Moreover, as J 419 of the Code forbids personal judgments against defendants who are
constructively summoned, unless they choose to give jurisdiction of their persons by
entering their appearance, actions against them are proceedings in rem and, as it seems to
me, of exclusively equitable cognizance, there being no statute expressly giving such
jurisdiction to courts of law.

(d) See Code, J 194.

(e) These averments are necessary to show that the court has jurisdiction ; but a de-
scription of the property in the petition is unnecessary, unless to enable the court to order
a sale of it (see note (b), ante, p. 297); and that, it seems, ought to be done in the sheriff's
return or amended return. Code, §217.

(/) The plaintiff can not have a personal judgment unless the defendant appear in the
action. Code, J 419. But, as the plaintiff is not entitled to an attachment except "in an
action for the recovery of money," it seems that he ought to ask for a judgment therefor;
and, moreover, the defendant's appearance in the action may entitle the plaintiff to a per-
sonal judgment.

(g) See Code, $ 196 and 550. The requisite statements may be made in the petition,
if properly verified, or in a separate affidavit. 17 B. M., 321; 2 Bush, 191.

(h) Neither the petition nor the affidavit for an attachment need to state that the de-
fendant is out of the State, as his property can be attached though he be in the State. 13
B. M., 231.

(*) See I Met., 156.

(J) See Code, g§ 57 and 58. The requisite facts may be stated in the petition, if prop-
erly verified, or in a separate affidavit : see note 2, ante, p. 44.

b. Petition against a resident defendant (with an attachment) (a).

A. B Plaintiff, } (b) Circuit Court.

against \ Petition in Equity (c).

CD., Defendant. J

The plaintiff, A. B., says that [set forth an equitable or legal cause of action, arising either
ex contractu or ex delicto, and which entitles the plaintiff to "money" (</)]; and that the de-
fendant resides in county in the State of Kentucky (e).

Wherefore the plaintiff asks for a judgment against the defendant for dol-
lars (f) and interest thereon from the day of , and costs, and any other relief

the plaintiff may appear entitled to. E. F. f Attorney.

(As to verifying the petition see parenthetical note to the last foregoing Form.)

Affidavit for attachment (g).
(After stating the style of the action.)

(1) Affidavit of plaintiff .

Pursue the affidavit on page 592, down to the * and add — ; and

4. That the defendant, C. D., has been absent from Kentucky during the four months
last past.

[Or — has departed from Kentucky with intent to defraud his creditors.]
[Or — has left the county of his residence to avoid the service of a summons.]
[Or — so conceals himself that a summons can not be served upon him.]
[Or — has departed from Kentucky to avoid arrest upon a criminal charge, and thereby
prevented the service of summons upon him.] A. B.

(2) Affidavit of plaintiff's agent or attorney.

Pursue the first affidavit on page 593, down to the *, and add a statement of the ground
of attachment as in the last foregoing Form. E. F.

Officer's certificate as on page 593.

Affidavit for warning order (h).

(I ) Affidavit of plaintiff, after slating style of the action.

The plaintiff, A. B., says that the defendant, C. D., resides in county, in the State

of Kentucky, and has departed from said State with intent to delay or defraud his creditors;



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PETITIONS IN ACTIONS IN EQUITY. 595



[Or — has left the county of his residence to avoid the service of a summons, or, perhaps —

to avoid arrest upon a criminal charge, and thereby prevented the service of a summons

upon him:]

[Or — so conceals himself that a summons can not be served upon him;]

[Or — and has been absent from said State during four months last past; and that he may

be found in the town of , in the State of , in which town a post-office is

kept. ( Or — and that he may be found in the State of , but affiant does not know

the name of the place wherein a post-office is kept nearest to the place at which he may
be found.) {Or — and that affiant does not know in what country he may be found.]

A. B.

(2) Affidavit of plaintiff"* s agent or attorney.

E. F. says that he is the agent [or — attorney] of the plaintiff, A. B., who is absent

from county [state the name of the county in which the action is brought]; and

that [state the ground for the application as in the last foregoing Form; and, if the ground
be the defendant's absence from the State four months, add — and that he may be found in the

town of , in the State of , in which town a post-office is kept (or-^and that

he may be found in the State of , but affiant does not know the name of the place

wherein a post-office is kept nearest to the place at which the defendant may be found,
and affiant believes that the plaintiff is ignorant of that fact)].

(Officer's certificate as on page 593.) £. F.

(a) That an attachment of the defendant's property, if he be constructively summoned,
is necessary in order to create a lis pendens lien, if not to give jurisdiction to the court,
see note {a), ante, p. JJA3.

(b) As to thecounry in which the action should be brought, see Code, \ 75.

{c) The reason for holding that, independently of statutes, courts of equity have juris-
diction to subject the property of non-residents, even in actions on legal demands — viz.,
the inefficacy of an action at law (see note (a), ante, p. 593), seems applicable to resident
debtors who prevent the service of a summons by departing from the State, or concealing
themselves, &c; though I am not aware of any decision which applied that doctrine to
resident debtors. But an act of 1837 (3 5. Z., 12) gave jurisdiction of attachment-cases,
upon "any claim or demand in law or equity," against resident defendants leaving the
State to avoid the service of a summons or absenting themselves from the State during a
term of court. Therefore, under \ 6 of the Code, courts of equity have jurisdiction of
some attachment-cases against resident defendants who are constructively summoned ;
moreover, as I have suggested in note {c) p. 593, all actions against defendants construct-
ively summoned are, under the Code, proceedings in rem and, therefore, of equitable cog-
nizance.

{d) See Code, \ 190, subs. I, and Clark v. Seaton, 18 B. A/., 226.

(e) The petition should show that the court has jurisdiction of the action ; and the
words " in which he has property, or in which a person resides against whom he has a
valid claim for money or property," in \ 75, probably refer to non-residents : it seems clear,
at any rate, that, if a defendant who is constructively summoned reside in Kentucky, the



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 81 of 142)