money. Hence the court did not err in refusing to modify instruction number one as indicated by appellant it should have been.

Upon the whole case we fail to find any error which would justify a reversal. Two juries have heard the facts, and in their verdicts have said that $10,000 is a fair and reasonable compensation to the estate of deceased for the destruction of her power to earn money, and we are unwilling to disturb that finding. Judgment affirmed.

1.

2.

Varney v. Deskins, et al.

(Decided December 15, 1911.)

Appeal from Pike Circuit Court.

Deed-Cancellation-Bona Fide Purchaser-Finding of Chancellor. In an action to cancel certain deeds on the ground that the land had been previously conveyed by deed which was not recorded, and the further ground of the incompetency of defendant's grantor, evidence examined and held to sustain the chancellor's finding that the grantee in the second deed was an innocent purchaser for value without notice.

Purchaser from Bona Fide Purchaser for Value Without Notice.A purchaser from a bona fide purchaser for value without notice is protected against prior equities.

WILLIS STRATTON for appellant.

BUTLER & MOORE, J. M. ROBINSON, ROSCOE VANOVER and CHILDERS & CHILDERS for appellees.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, Commissioner-Affirming.

On January 15, 1900, Anderson Varney and his wife signed, acknowledged and delivered to their son Melvin Varney a deed to a small tract of land in Pike county, Kentucky, Melvin Varney delivered the deed to his sister for safe keeping. Shortly thereafter, Melvin Varney, though he was an infant only twenty years of age, sold the land by oral contract to his brother, Henry Varney. The consideration was $175.00, for which Henry delivered to Melvin a mule valued at $100.00, two shot guns, some geese and hogs and $25.00 in cash.

according to Henry's testimony this was the full value of the land. Subsequently, Henry Varney sold the land to Thomas Deskins, and for this purpose the deed executed by Anderson Varney to Melvin Varney was obtained from Melvin's sister, Lydia May, and the parties repaired to the house of Anderson Varney whereupon he and his wife executed and delivered to Deskins a deed to the land in question. It is evident the parties thought that as the deed to appellant had not been put to record, the title was still in Anderson Varney. About two years later, Deskins sold and conveyed the land to his sister, N. J. Phillips. In the spring of 1907, N. J. Phillips and her husband sold the timber on the land in question to H. G. Rush; and on May 25, 1907 they sold the land to Polly A. Williams. The deed to Polly A. Williams embraced two tracts, and the whole consideration was $600.00, of which $380.00 was paid and $220.00 was due at the time Polly A. Williams testified in this case.

Appellant, Melvin Varney, brought this suit against Thomas Deskins and N. J. Phillips for the purpose of canceling the deeds from Anderson Varney to Thomas Deskins and from Thomas Deskins to N. J. Phillips. Subsequently, Polly A. Williams and H. G. Rush were made parties defendants. Appellant bases his right to recover on the fact that the land had been previously conveyed to him, and the further fact that his father, Anderson Varney, at the time of the making of the deed to Deskins, was mentally incapable of entering into such a transaction. All the defendants answered, pleading that they were innocent purchasers for value without notice either of appellant's deed or of his father's incompetency. Upon a submission of the case appellant was denied relief, and he prosecutes this appeal to review the propriety of the finding.

At the time appellant filed his suit, he was not in possession of the deed upon which he relied, but it subsequently developed that it was in the possession of N. J. Phillips and her husband, who upon being ruled produced it in court. As this deed was in possession of the Phillips, it is insisted that this was sufficient proof that they purchased the land with notice thereof. Both Mrs. Phillips and her husband, W. T. Phillips, who attended to the transaction for her, swear that the trade was closed without their knowing anything

of the deed in question. They testified that at the time of the transaction all the purchase money was paid, part in cash and part by assigning a note without recourse; that shortly after the transaction was closed, Thomas Deskins said to them they had better take these deeds, and W. T. Phillips thinking they were deeds from prior owners of the land, took them and without examining them placed them in his saddle pockets, carried them home and deposited them in a safe. Both Mr. and Mrs. Phillips also testified that they knew nothing of Anderson Varney's mental condition when the trade was made. Their evidence is corroborated by that of Thomas Deskins who claims that he said nothing either to Mr. or Mrs. Phillips, before the deed was made to them, with reference to the deed to Melvin Varney; that after the trade was closed he delivered that deed along with others to W. T. Phillips under the circumstances detailed by the latter. In our opinion, the explanation given by all these parties is sufficient to overcome the strong presumption of notice arising from the possession of the deed. While there is substantial evidence, pro and con, as to the mental condition of Anderson Varney when he made the deed to Deskins, there is nothing in the record tending to show that his incompetency, if any existed, was known to either N. J. Phillips or her husband, who acted as her agent. Upon these facts, we are not inclined to disturb the finding of the chancellor to the effect that N. J. Phillips was an innocent purchaser for value without notice.

As to the other appellees, Polly A. Williams and H. G. Rush, the weight of the evidence is to the effect that they purchased without notice; but even if they had notice the law is well settled that a purchaser with notice from a bona fide purchaser for value without notice will be protected against prior equities. (Am. & Eng. Ency. of Law, Vol. 23, page 477; Moore v. Dodd, 1 A. K. Marshall, 140, and Lindsey v. Rankin, 4 Bibb, 482.) The wisdom of this rule is well illustrated in this case, for at the time Polly A. Williams testified she still owed a balance on the land in question, which was due to N. J. Phillips, and if it could be subjected by appellant on the ground that Polly A. Williams was not a purchaser for value, the effect would be to deprive N. J. Phillips

of her rights as a bona fide purchaser for value and without notice.

As to whether appellant is entitled to a personal judgment against Thomas Deskins, no opinion is expressed as the pleadings are not sufficient to present this question. This is an action to cancel certain deeds and recover the land. (Arnett's Com. v. Owens, &c., 23 Ky. Law Rep., 1409).

Judgment affirmed.

McCandles v. Commonwealth.

(Decided December 15, 1911.)

Appeal from Metcalfe Circuit Court.

1. Local Option-Section 2557b, Kentucky Statutes-Offense of Having Intoxicating Liquor in One's Possession for the Purpose of Sale in Local Option Territory.—It is not necessary to sustain a conviction under section 2557b, Kentucky Statutes, for the offense of having spirituous, vinous or malt liquor in ones possession for the purpose of selling same in territory where the local option law is in force, to allege and prove that the defendant had such liquor in his possession for the purpose of furnishing or seelling it to another, for the purpose of sale by the latter in local option territory; the defendant is guilty if he have such liquor in his possession for the purpose of selling it himself in territory where the local option law is in force.

2.

Former Conviction.-A conviction for selling spirituous, vinous or malt liquors in local option territory is not a bar to a prosecution for having such liquors in one's possession for the purpose of selling them in such territory, where the evidence shows that the defendant had in his possession for the purpose of sale other whiskey than that sold to the prosecuting witness and for the sale of which the defendant was previously convicted.

J. R. BEAUCHAMP for appellant.

JAS. BREATHITT, Attorney General and CHAS. H. MORRIS for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, Commissioner-Affirming.

On October 8, 1910, the grand jury of Metcalfe County returned an indictment against appellant, Bud McCandles, charging him with the offense of having

unlawfully in his possession spirituous, vinous and malt liquors for the purpose of selling them in local option territory. The indictment charged that McCandles on the blank day of December, 1910, and within twelve months before the finding of the indictment, "did unlawfully have in his possession spirituous, vinous and malt liquors for sale, and did sell same to Leeper Yates in violation of local option law then and there in force. Contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the Commonwealth of Kentucky." When the case was called, appellant moved the court to require the Commonwealth to elect whether it would prosecute him for the offense of selling or for the offense of having such liquor in his possession for the purpose of sale in local option territory. The motion was sustained and the Commonwealth elected to prosecute for the offense of having the liquors in his possession for the purpose of sale in local option territory. Appellant then demurred to the indictment, but it was overruled. A trial was had and the jury returned a verdict of guilty, fixing the punishment at a fine of $80.00 and ten days in jail, and this appeal is prosecuted from the judgment of conviction.

The only evidence in the case is that given by Leeper Yates, a witness for the Commonwealth. He testified that he bought one pint of whisky from Bud McCandles in December, 1909, at his place of business in Edmonson, Metcalfe county, Kentucky, and paid him fifty cents for it; that after that, but in the same month and year and at the same place, he bought another pint of whisky from appellant and paid him fifty cents for it; that at the times he purchased the whisky, he saw some other bottles on the shelf where appellant got the ones he sold him, which had something in them, but he did not know what it was-whether it was whisky or not, but that the bottles were like the ones appellant sold him and the bottle contained whisky. On cross examination, the witness stated that appellant was engaged in the family grocery business and also ran a drug store in the same building at the time he bought the whisky from him. The witness went before the grand jury of Metcalfe county and indicted appellant for selling him the whisky, in two cases, and at the October term, 1910, the indictments were called for