* * *

he might do were there no express contract, the borrower might avail himself of the express contract to prevent the recovery. In these cases, to give to the statute the effect of rendering the contract void, and thereby utterly preventing the lender from recovering the money lent, or if he be allowed to recover the money upon the implied contract, resulting from the loan, to give to the statute the effect of not permitting the borrower to prevent the recovery of the money lent, before it is due, or of a higher rate of interest than is due by the terms of the contract, would be extending the operation of the statute beyond its letter, and instead of making the statute the means of preventing frauds, it would be converting it into an instrument of fraud and injustice; it most certainly could not be said to be demanded by the reason and spirit of the statute."

To the same effect is the case of Montague v. Garnett, 3 Bush, 297; Dart v. Head, 90 Ky., 255, and Berry v. Graddy, 1 Met., 553. It follows, therefore, from the principle enunciated in these cases, that, although the contract between appellant and her son was within the statute of frauds, yet her claim against his estate is not invalid, and that she can recover it, if there be no other impediments to such recovery.

These cases also settle the question of the statute of limitation, if there be such a question in this case. The rule is that, in order to be available, the statute of limitation must be expressly pleaded; and this plea was not made in this case. But passing that question, inasmuch as the verbal contract was not void, and could have been used as a defense to the collection of the money by appellant, if she had undertaken to enforce its payment prior to the expiration of the contract period, she had no cause of action until the expiration of the two years, and, therefore, the statute did not begin to run until that time.

We think the proof of appellant's claim was fully made out according to the form required by the statute. The evidence as to the merits of the claim seem conclusive. Several witnesses testified of the declaration of the dece. dent that he was going to borrow the money from his mother with which to purchase a home; also of his admission that he had borrowed it; and there was in the evidence the written assignment by appellant to the decedent of the note, secured by mortgage for the sum of $1,100, and the decedent's written release of the lien showing that he collected it; also the evidence of another party, who owed appellant $100, that he had paid this money over to the decedent for the purpose of being paid on the land purchased by the latter. This, with no uncontradicted evidence whatever, seems to us conclusive.

There is no reason shown in this record to suppose that the grandmother desires to swindle her grandchildren by the collection of a false claim based on perjured testimony; on the contrary, the evidence shows that the debt sought to be collected by appellant is genuine, and the surrounding circumstances show it to be just such a contract as would naturally take place between mother and son where the utmost confidence prevails. As appellant's debt was created for the purpose of purchasing a homestead, there is no exemption in favor of appellees as against her claim. (Section 1703, Kentucky Statutes.)

Wherefore, the judgment is reversed for proceedings consistent with this opinion.

STURGILL, &c. v. CHESAPEAKE & OHIO RY. CO., &c.

(Filed November 11, 1903.)

Married woman-Repeal-Limitation-Section 2128 of the Kentucky Statutes, which is a part of the married woman's act of 1894, and which authorizes a married woman to sue and be sued as a single woman, with certain exceptions, does not have the effect to repeal the provisions of section 2525, which extends the limitation period within which an action may be instituted for damages to her real estate for a like number of years after the removal of her disability or her death as is allowed to a person having no disability to bring such an action after the right accrues.

Jas A. Scott for appellants.

W. H. Wadsworth and E. L. Worthington for appellees.

Appeal from Boyd Circuit Court.

Opinion of the court by Chief Justice Burnain.

The appellants, Melcina Sturgill and her husband, J. J. Sturgill, brought this suit on the 5th day of April, 1901. She alleges in her petition that in 1880 she was the owner and in possession of two houses and lots abutting on a street in Catlettsburg, and that the appellee, the Elizabethtown, Lexington & Big Sandy R R. Co. in that year constructed a railroad in the street in front of her property so as to obstruct the access to and egress therefrom; and that the running of the trains thereon caused her house to be jarred, and smoke, soot and cinders to be thrown thereon; that these injuries were permanent in their nature, and damaged her property $2,000; that after operating the railroad for a time, the Elizabethtown. Lexington & Big Sandy leased it to its co-appellee, the Chesapeake & Ohio Railway Co., who had continued its operation, and damages are sought to be recovered against both companies. The appellees, by separate paragraphs of their answer, plead the five, ten and fifteen years' statutes of limitation to the cause of action set up in the petition. To these pleas the appellants demurred. The court overruled the demurrer. Thereupon the appellants filed a reply, in which they plead in avoidance of the various pleas of limitation that at the time of the accrual of the cause of action set out in their petition Melcina Sturgill was then, and is now, and had been ever since the accrual of her cause of action, continuously a married woman, and by reason of which the statute of limitation did not run against her. Thereupon defendants interposed a general demurrer to the plaintiffs' reply, which was sustained, and plaintiffs declining to plead further, their petition was dismissed and they have appealed.

As the injury complained of was inflicted twenty-one years before appellants instituted their suit, it is clear that their right of action is barred, unless the fact that she was at the time of the injury and had ever since been a married woman prevents the running of the statute. Section 2525 of the Kentucky Statutes provides that: "If a person entitled to bring any of the actions mentioned in the third article of this chapter, except for a penalty or forfeiture, was at the time the cause of action accrued an infant, married woman, or of unsound mind, the action may be brought within the like number of years after the removal of such disability, or death of the

person, whichever happened first, that is allowed to a person having no such impediment to bring the same after the right accrued.'

Under this statute the various pleas of limitation relied on by the appellee were ineffectual to bar her claim unless this statute has been expressly, or by necessary implication, repealed. Appellee contends, and the circuit court held, that section 2128 of the Kentucky Statutes, which is a part of the act of March 15, 1894, defining the property rights of the husband and wife: had this effect. The statute is as follows: "A married woman may take, acquire and hold property, real and personal, by gift, devise or descent, or by purchase, and she may, in her own name, as if she were unmarried, sell and dispose of her personal property. She may make contracts and sue and be sued as a single woman, except that she may not make any executory contract to sell or convey or mortgage her real estate unless her husband join in such contract, but she shall have the power and right to rent out her real estate, and collect, receive and recover in her own name the rents. thereof, and make contracts for the improvement thereof. A gift, transfer or assignment of personal property between husband and wife shall not be valid as to third persons, unless the same be in writing, and acknowledged and recorded as chattel mortgages are required by law to be acknowledged and recorded; but the recording of any such writing shall not make valid any such gift, transfer or assignment which is fraudulent or voidable as to creditors or purchasers."

Whilst this statute is materially different from all former statutes relating to the property rights of husband and wife, it does not remove all of the disabilities of coverture. For instance, she can not make a contract for the sale, conveyance or mortgage of her real estate unless her husband join in such contract. Nor can a married woman's estate be subjected to any liability upon a contract made after marriage to answer for the debt, default or misdoing of another, including her husband unless such estate shall have been set apart for that purpose by deed, conveyance or other conveyance. In Martha Higgins v. Clint Stokes, 24 Ky. Law Rep., 2427, Mrs. Higgins sued on the 4th of January, 1902, to recover possession of a lot of ground, which she alleged belonged to her, but which her husband had sold and conveyed without her consent by general warranty deed, in which she did not unite; that she continued to live with her husband as his wife until his death in January, 1990. In that case the defendant, as in this, plead that the plaintiff's cause of action accrued more than fifteen years prior to the 15th of March, 18:4; and that her disability as a married woman was removed by that act, and that her right to recover the land was barred. The trial court sustained this contention, but it was held upon appeal that section 2128 did not, by necessary implication, repeal so much of section 2506 as applied to married women. In Onions v. C. & C. Elevated R. R. Transfer Bridge Co., 21 Ky. Law Rep., 820, it was contended by the defendant that section 34 of the Civil Code, which provides "that in an action between the husband and wife, and in an action concerning her separate property, and in actions. concerning her general property, and in actions for personal suffering or injury to her personal character, in which he refused to unite, she might sue alone," authorized women to sue for damages to her real estate, and bynecessary implication, repealed section 2525 of the Kentucky Statutes. It vol. 25-58

was held not to have this effect. Indeed before the enactment of section 34 of the Civil Code married women had all the power conferred by that section. If the husband refused to unite, such suit could have been instituted through a next friend. It can not be presumed that the general assembly intended by implication to repeal a provision of the statute relating to limitation by an act amending and changing the statute which regulated the property rights of the husband and wife.

We, therefore, conclude in this case that section 2525 of the Kentucky Statutes is unaffected by the act of March 15, 1894, and that the trial court erred in sustaining a demurrer to appellants' reply, and the cause is, therefore, reversed and remanded for proceedings consistent with this opinion.

McCORMICK v. APPLEGATE.

(Filed November 11, 1903-Not to be reported.)

1. Location of land boundary-Although corner trees called for in a deed have been cut down, upon proof of their existence and exact location, the rule that courses and distances must give way to known objects will control in locating the boundary as if the corner trees were still standing.

2. Agreement in bar-A written agreement between adjoining land owners that the county surveyor should establish the dividing line between them by survey, and that each would abide by the location thus made is not a bar to an action instituted by one of them to settle the controversy where there is not satisfactory proof to show that the surveyor established the line called for.

W. C. Halbert for appellant.

R. D. Wilson and U. C. Thoroughman for appellee.

Appeal from Lewis Circuit Court.

Opinion of the court by Judge Hobson.

Appellant and appellee owned adjoining tracts of land in Lewis county. "This controversy has arisen between them as to the dividing line between their tracts, and involves about one-fourth of an acre of ground, consisting of a triangular strip fifty nine feet wide at the base and running out to nothing at the other end The land in controversy is of small value, except that appellant's road runs over it, and from the conformation of the ground it would be difficult for her to get a road elsewhere. Appellee's deed calls for appellant's line, and so the only question in the case is the proper loca tion of her line under her deed. She got the land from her father, David Tonery, who lived on it and held it for a great many years. The difficulty in determining where her line runs arises from the fact that if it is run upon the courses of the deed it does not strike the point at which she claims the corners stood, and the trees called for in the deed as the corners are no longer in existence. In the absence of evidence establishing the actual location of the corners the courses and distances of the deed must control in the location of the survey. But when the corners, as actually located, are established, the calls of the deed must give way to the marked objects found on the ground, and the lines must be run to the established corners. Although the corner trees have been cut down, still if their existence is proven, and

the spot where they stood is clearly identified, the rule is the same as when the corner trees are still standing. These principles have been long settled by this court.

The evidence in the case leaves no doubt that the corner claimed by appel. lant at B on the surveyor's plot is the original corner claimed by her father and recognized by the persons under whom appellee claims while the trees were still standing. The evidence shows when and by whom the corner tree was cut down, and that after this a large rock was planted in its roots to mark the corner. There is practically little controversy in the testimony on this subject, and the testimony for appellant is confirmed by the use of the land with the road on it by her father and those claiming under him as far back as the memory of any of the witnesses run, although some of them are old men. It is also confirmed by the fact that to locate the line as claimed by appellee would be to place it where there is no testimony that the corner ever stood, and where, from the nature of the ground, it would seem that this could not have been the corner. We, therefore, locate the corner in controversy at the stone claimed by appellant at the point B on the plot, and locate the dividing line between the parties as located by the lines on the plot indicated by the letters 9-C B-12. In other words, the dividing line is to be run with the red lines on the plot from 9 to B, and from B a straight line will be run to the corner at 12. The confusion in the case has arisen from the evident mistake in the courses of the deed as to two of the lines, but the mistake in the course is not material when the corner is actually located. In January, 1895, the parties entered into the following written contract: **This agreement, made and entered into by Maggie P. McCormick of the first part, and Alvin Applegate of the second part:

"Party of the first and second part agrees to have it surveyed by the Toncray deed of the Cordingly farm, by the county surveyor, and each party to pay one-half of the expenses of surveying, and both parties agree to let the county surveyor establish the line, and each party agrees to stand to the lines, and party of the first agrees to pay the party of the second part $50 if she fails to stand to this article of agreement and the party of the second part agrees to pay the party of the first $50 if he fails to stand this article of agreement

"MAGGIE P. McCORMICK,
"ALVIN APPLEGATE."

The county surveyor testifies that he made a survey of the land, and was told that there was an agreement that he should run the line from Mrs. McCormick's deed and locate the line between the two parties by it; and that the line located by him should settle the dispute between the parties. He also states that he ran the lines by her deed, and found that the course and distance given in her deed did not include the land in dispute. The written contract and the survey made pursuant to it are relied on in bar of the present action subsequently instituted by appellant.

The submission was in writing. It was a controversy in regard to land and it would seem reasonable that the parties contemplated a written award. No written award was made. There is nothing to show what line the sur. veyor ran, except the verbal testimony of witnesses as to where he ran. He set no stone for any of the corners, and made no marks on the ground to