On January 1, 1902, J. T. Halsell and his wife, Willie Halsell, and William Perkins, then an unmarried man, as parties of the first part, conveyed the land in question to C. C. Reynolds, as party of the second part. The consideration was $9,545.76, of which $4,927.76 was paid in cash, and the balance represented by certain notes. Perkins joined in the deed for the purpose or releasing his lien. He also made a written release of his lien on the margin of the record of the deed from him to Halsell and wife. The granting clause of the deed was as follows:

"Hath bargained and sold, and do by these presents now sell, alien and convey unto the said second party, his heirs and assigns forever, and should B. E. Reynolds, wife of the said C. C. Reynolds, survive him, the title to the property hereby conveyed shall be and remain in her during her natural life, and at her death to be divided equally between our heirs."

On December 1, 1910, C. C. Reynolds and wife conveyed the land in question to Fred B. Young and his wife, Janie Young. The consideration was $5,418.75 cash, and two notes for a like amount, payable in one and two years. Young attempted to borrow money on the land to pay off the lien notes. The question was raised as to the character of title C. C. Reynolds took under his deed from Halsell and wife and Perkins.

C. C. Reynolds brought this action for the purpose of having the deed which he received from Halsell and wife and Perkins reformed. In the action Mrs. Reynolds, the heirs of William Perkins, Halsell and wife and their children, as well as the children and infant grandchildren of Reynolds and wife, were made parties. Some of the parties were non-residents and some infants, but all of them were properly brought before the court. The petition alleged that it was the intention of Halsell and wife and William Perkins, and of the plaintiffs, C. C. Reynolds and his wife, B. E. Reynolds, to vest a perfect, fee simple title in C. C. Reynolds and his heirs and assigns. forever, but with the provision that if said C. C. Reynolds should not sell or dispose of same prior to his death, and if his wife, B. E. Reynolds, should survive him, she should then have a life estate in said land, and after her death said land should descend to the heirs of C. C. Reynolds. It is further alleged that it was not the intention of the parties to the conveyance to give the plaintiff, B. E. Reynolds, a life estate in said land, unless she should survive C. C. Reynolds and he should fail to

dispose of same prior to his death, and that it was never the intention of the parties to said deed that the land should, in any event, revert to or be divided between the heirs of the grantors; that the habendum clause of the deed above set out, which apparently gave to B. E. Reynolds a life estate in the property whether the property was disposed of or not, and which directed the land, upon her death, to be divided between "our heirs," was the result of a mutual mistake of the parties and a mistake on the part of the draughtsman. Proof was heard and on final hearing the chancellor directed the deed to be reformed so as to carry out the intention of the parties. From that judgment the infant defendants, by their guardian ad litem, prosecute this appeal.

In view of the fact that every person having an interest in the land, either directly or indirectly, was before the court, it is unnecessary to determine whether or not some of them were proper parties. Perkins himself merely joined in the deed to Reynolds for the purpose of releasing his lien on the land. All the adult parties to the suit entered their appearance and consented that the deed be reformed. The depositions of C. C. Reynolds and Thomas Pepper, a banker who drew the deed, were taken. They both testified that it was the purpose and intention of the parties to the deed to vest in C. C. Reynolds a fee simple title, with full power and authority to sell and dispose of the land in question, and that the deed was executed with the understanding that this was the case. It was never the purpose of the parties that the land should revert to or be divided between the heirs of the grantors. Mr. Pepper simply drew the deed in accordance with the direction of Mr. Reynolds and inadvertently placed a limitation on the power of said Reynolds to sell and dispose of the land, and further used the word "our" instead of the word "his." In doing this he made a mistake and did not represent the true intention of the parties. The evidence further shows that Reynolds and wife were not related to Perkins or Halsell and wife. The land was not given to Reynolds. He paid. $9,545.76 for it. Aside from the direct testimony on the question, this fact of itself is sufficient to show that the grantors received full value for the land, and never intended to provide for a reversion to their heirs. The power of a court of equity to reform a deed which, because of a mutual mistake of the parties, does not express their true intention, has been long recognized. In this

vol. 154-6.

case the evidence of the mutual mistake is clear and convincing and fully supports the finding of the chancellor. Judgment affirmed.

Lagerwahl v. White.

(Decided May 29, 1913.)

Appeal from McCracken Circuit Court.

1. Attachment-Against Property of Non-resident Defendant.—An attachment under section 194 of the civil code cannot be obtained against a non-resident defendant upon the sole ground of nonresidency except on a claim arising on a contract, express or implied, or a judgment or award.

2.

3.

4.

5.

Attachment-Against Property of Non-resident Defendant.—An attachment may be obtained against the property of a non-resident upon the grounds specified in subsections 6, 7 and 8 of section 194, when he is about to remove his property, or a material part thereof, out of this State, not leaving enough to satisfy the plaintiff's claim, or has sold, conveyed or otherwise disposed of his property, or is about to sell, convey or otherwise dispose of it, with the fraudulent intent to cheat his creditors. When an attachment is obtained on these grounds, it may be levied upon property of the defendant, whether he be a resident of the State or a permanent or a temporary non-resident.

Attachment-Against Property of Non-resident.-An attachment under subsections 2, 3, 4 and 5 of section 194 of the civil code, cannot be obtained against a defendant who has never been a resident of this State. These subsections only authorize an attachment against a resident defendant who has been absent from the State four months, or has departed from the State with the intent to defraud his creditors, or has left to avoid the service of summons, or conceals himself so that a summons cannot be served upon him.

Attachment-In Actions to Recover Damages for Tort.-In an action to recover damages for personal injury or other tort, the plaintiff may obtain an attachment against the property of the defendant if he can bring himself within the provisions of the code authorizing such an attachment.

Process-Non-resident Doing Business in This State-Service Upon Agent or Manager.-Under subsection six of section fiftyone of the code, authorizing service of summons upon the manager or agent of a non-resident doing business in this State, it is doubtful if a non-resident, who only collects rents from property owned by him in this state and gives to the property such attention as an owner usually does, is doing business in this State within the meaning of this section.

6.

Process Service as Authorized by Section 56 of the Civil CodeEffect of.-When a non-resident defendant has been summoned as provided in section 56 of the code, his property in this State, upon which the plaintiff has a contract, attachment, or other statutory lien, may be subjected to the payment of the plaintiff's debt.

D. G. PARK for appellant.

H. S. CORBETT and CAMPBELL & CAMPBELL for appellee.

OPINION OF THE COURT BY JUDGE CARROLL-Affirming,

To understand the points at issue in this case it will be necessary to state at some length the proceedings had in the lower court. In May, 1908, the appellant, Lagerwahl, brought a suit in the McCracken Circuit Court against White to recover damages sustained, as he alleged, by the falling of the wall of a building owned by him. An affidavit for a warning order filed with this petition stated that White was a non-resident of this state and a resident of the state of Tennessee, and that his postoffice address was Nashville, Tenn., and thereupon a warning order attorney was appointed. A summons also issued upon this petition and was executed in August, 1908, upon L. M. Rieke, president of the American German National Bank in McCracken County.

In September, 1908, an amended petition was filed in which it was averred that White was a non-resident of the state and that he owned some business houses in McCracken County, and that the American German National Bank was his agent to rent out his property and collect rents. After this, White, without entering his appearance, moved to quash the return on the summons executed on the president of the American German National Bank upon the ground that he was not engaged in business in this state, nor was the American German National Bank or Rieke his agent.

Before the motion to quash was disposed of by the court, and in December, 1909, Lagerwahl filed another affidavit in which he said that the claim sued on was a just claim and he ought to recover thereon the sum of $2,000, and that the defendant, J. M. White, had been absent from the state for more than four months past. On the day this affidavit was filed another summons was issued on the petition, and this summons, on the day of its issual, was executed on C. E. Jennings, who it was claimed was an agent for White, and on the same day Lagerwahl

executed an attachment bond, and thereupon an attachment was issued against the property of White, and it was levied upon a business house in McCracken County owned by White.

At the January term, 1910, White, without entering his appearance, made a motion to quash the service of the summons upon Jennings, and upon hearing the motion it was sustained by the court as was also the motion made in September, 1908, to quash the service of process upon Rieke, president of the American German National Bank. After these motions to quash the returns on the summons had been sustained, Lagerwahl filed another affidavit amending his grounds for attachment, in which he said that White "has purposely absented himself from this state and had done so when the attachment was sued out in this action for more than four months in order to avoid the service of a summons on him in this action, and thus so conceals himself that a summons cannot be served on him."

In February, 1910, Lagerwahl filed another amended petition in which he set up that White did not own any personal property in this state, but that he did own the business house upon which the attachment heretofore noticed was levied, and that although White had, previous to the institution of this suit, frequently visited McCracken County, he had since purposely remained out of the county "to avoid service of a summons on him in this action, and he also purposely remained outside the state of Kentucky for the same purpose, or concealed himself elsewhere than in McCracken County in this state, if he has ever returned, for the same purpose, so that such summons could not be served upon him, and plaintiff now says that by reason of his absence from this state in such manner for more than four months before the suing out of his attachment in this action, and his continued absence in such manner ever since, plaintiff has been unable and is still unable to obtain any service of his summons on the defendant in this action, and by reason of such conduct he has been unable to reduce his claim to a judgment or other form of debt than unliquidated damages by reason of such injury, and for such reasons the court should not require any judgment or debt arising upon a contract, or judgment or award in order to sustain his attachment herein sued out."

He further averred that the business house upon which his attachment was levied was worth twenty thou