quoted supra, repeals, by implication, so much of section 2506 as applies to married women. In Onions v. Covington and Cincinnati Elevated Railroad Transfer Bridge Co., 21 Ky. Law Rep., 820, it was contended for appellee that section 34 of the Civil Code, which provides "that in actions between the husband and wife, and in actions concerning her separate property, and in actions concerning her general property, and in actions for personal suffering or of injury to her personal character, in which he refused to unite, she may sue alone," authorized women to sue for damages to her real estate, and by necessary implication repealed section 2525 of the Kentucky Statutes, In response to this contention this court said: "Although married women after 1876 might sue alone as to her general estate, she was by no means relieved of the disability of coverture; she was not only under the domination of her husband, but he owned absolutely her personal property; he might reduce to possession her choses in action, and had the right to use all of her real estate, with power to rent it out for not more than three years at a time and receive the rent. * * * It would be contrary to the entire spirit of our laws to allow limitation to run against her during her husband's lifetime; that the legislature did not intend to do so is apparent from the particular language of the exception, and the fact that it was brought over into both the Revised and General Statutes after the adoption of the Code, which empowered the wife to sue in her own name in certain actions." It was held that the legislature did not have in mind the statute of limitation in the adoption of section 34 of the Civil Code; and that the statute did not run against the married woman until the death of her husband. The act of March 15, 1894, regulating the property rights of husband and wife, does not refer to the statute of limitation, and we can not presume an intention on their part to change the statutes of limitation in so far as married women are concerned, which had been a part of this State since 1846. We, therefore, conclude that section 2505 of the Kentucky Statutes is still in full force and effect in so far as married women are concerned, unaffected by the enactment of the act of March 15, 1894, regulating the property rights of the husband and wife. For reasons indicated the judgment is reversed, with directions to sustain the demurrer to the third paragraph of defendant's answer, and for further proceedings not inconsistent with this opinion. RHODES v. STONE, &c. STONE v. COLUMBIA FINANCE AND TRUST CO., &c. (Filed November 11, 1903-Not to be reported. ) Rescission of contract-A., being the owner of two houses and lots, mortgaged them to a building and loan association, and afterwards purchased a third lot, which was between and adjoined the other two, and erected a house partly on lot No. 3 and partly on one of the other lots, all three of the houses being thereafter insured for the benefit of the loan association; subsequently the assignee of the association foreclosed its mortgages and purchased at judicial sale all three of the houses and lots, and later sold them to B. for a valuable consideration; A., having instituted proceedings to recover lot No. 3, which was not included in the mortgage, the assignee of the asociation plead an estoppel by reason of the fact that all of the houses were insured for the benefit of the association, and that the assignee was allowed to take possession under its purchase without being notified of A.'s claim. Held-That the proof does not warrant the application of an estoppel, and in view of the fact that each party labored under a mistake as to the actual facts of the case, there should be a rescission of the sale to B., and an accounting by him of the rents received, subject to credit for repairs, taxes, etc., and a return of his purchase money, with interest; as between A. and the assignee, the house in question being partly on the lot of each, there should be a sale and a division of the proceeds, with a due accounting of rents and disbursements for repairs, taxes, etc., between them. Thos. E. Ward for appellant Rhodes. John F. Lockett for appellant Stone. R. H. Cunningham for appellee Trust Co. In January, 1895, Moses Rhodes and his wife, the appellant, Rosalie Rhodes, to secure a debt of $1,300, executed to the United States Building and Loan Association a mortgage upon two lots on Alvasia street in Henderson, Ky., the property of the husband, and indicated on the plot by the letters S and T. In June, 1895, Rhodes bought the lot R on the plot, and after this built a house, two-sevenths of which is on lot S and the remainder on lot R He conveyed all his property to his wife. There was a house on lot T and also on lot S before the erection of the one referred to on lots R and S. All three of these houses were insured in the name of Mrs. Rhodes for the benefit of the mortgagee, and the policies were delivered to it. The building and loan association became insolvent and made an assignment to the Columbia Finance and Trust Co. for the benefit of its creditors, which brought a suit to foreclose its mortgage. A judgment was obtained for the sale of the property mortgaged to pay the debt. The sale was had and the property was bought in by the trust company for less than the amount of its debt. The trust company then took possession of all three of the houses and collected the rents from the tenants. Mrs. Rhodes offered it something over $1,200 for the property. It declined to accept this offer, and some months later sold the property to J. W. Stone for $1,300. On August 8, 1900, Mrs. Rhodes began this suit against Stone and the trust company to recover lot R and the rents, the deed to the trust company having been made in October, 1899, and the deed from it to Stone having been made in April, 1900, The situation of the three lots is shown on the following plot: It is clear from the proof that Moses Rhodes did not own lot R at the time the mortgage was executed to the building and loan association. It is also clear that the mortgage only included lots T and S, the lot T being properly described and lot S being described in such a way that the representatives of the trust company understood it included the ground embraced by lots R. and S. But this is admitted now to have been a mistake on their part, and it is conceded that the title to lot R was and is in Mrs. Rhodes. It is insisted, however, for the trust company that she is estopped to claim the house put on that lot for the reason that she insured it for the benetfi of the mortgagee, and led it to understand it was included in the mortgage; also that she allowed it to take possession of the property after the foreclosure and to sell it to Stone without notice of her claim. While there is force in this position, we do not think the proof sufficient to warrant the application of an estoppel. Part of the house was on lot S., and the making of the insurance on all the houses for the benefit of the mortgagee simply increased its security. After the sale under the mortgage the trust company took possession as a matter of right, and Mrs. Rhodes did not mislead it in any way. On the contrary, she attempted to notify it of her present claim, although it would seem from the evidence that there was a misunderstanding between the parties as to what she claimed. It seems to be simply a case of mutual mistake, the trust company acting upon what it thought to be its rights, while Mrs. Rhodes denied its right and yet referred to its assertion of right, neither party understanding the facts accurately as they now appear or their legal rights under them. When the difficulty came up the trust company offered to rescind the contract with Stone. This he declined to do, insisting upon his bargain and for an abatement of the price to the extent of the property lost. Under all the facts we conclude that there was a mutual mistake here innocently made, and that the contract between Stone and the trust company should be rescinded. The jurisdiction of the chancellor to grant a rescission in a case of mutual mistake is undoubted, and under the facts of this case we are clearthat this is the most equitable solution of the difficulty. Stone must account for the rents collected from the property while in his hands, less proper disbursements on account of repairs, taxes, insurance and the like, as in other cases of rescission between vendor and vendee. He will be entitled to a return of his purchase money, with interest to the extent that it has been paid to the trust company on his purchase. He must also account for any rents not collected which might have been collected by ordinary care. As between Mrs. Rhodes and the trust company, Mrs. Rhodes is the ownerof lot R and so much of the house as stands on it, and the trust company is the owner of lot S and so much of the house as stands on it. As since the trust company took possession, it, or Stone claiming under it, has received all the rents of the property, it must account to Mrs. Rhodes for five-sevenths. of these rents, and as in other cases between joint tenants, where one has. collected the entire rent. will be entitled to credit out of the rent collected for necessary repairs, taxes, insurance and the like paid by it or by Stone; and it will be chargeable with any rents uncollected which might have been collected by ordinary care. The court can not fix a value on the property of either of the parties and require the other to take it at the valuation so fixed. The house being indivisible, if the parties can not agree upon a basis of settlement, the court, upon the petition of either, can lay off a lot about the house in such manner as may be equitable and necessary for its proper enjoyment, and may decree a sale of the house and lot and divide the proceeds between them according to their interest in the property. The judgment appealed from is reversed on both the appeals and on the cross appeal. Each of the parties will pay his own cost in this court, and the cost of making the transcript will be taxed one-third to each of them. In the circuit court Mrs. Rhodes will recover her costs of the trust company, and as between the trust company and Stone, each will pay his own costs. KELLY v. GARDNER. (Filed November 11, 1903-Not to be reported.) 1. Pleading-Construction against pleader-Under the rule that a pleading must be construed most strongly against the pleader, the allegation of a pleading of the committee of a person adjudged of unsound mind, setting out the statements of two physicians made for the purpose of dispensing with the presence of such person, must be presumed to contain all of their statements favorable to the pleader. 2. Persons of unsound mind-Absence from inquest-Physician's affidavit -Under section 2157 of the Kentucky Statutes, the affidavits of physicians made for the purpose of dispensing with the presence of one charged with being of unsound mind and incapable of managing her estate at the trial of that question, which failed to state that they had personally examined her, and that they verily believed her to be incompetent to manage her estate, and which merely stated that it would be unsafe to bring her before a jury for trial, were insufficient for the purpose, and a judgment finding her incompetent to manage her estate in her absence was void. 3. Same-Notice-Where an officer, instead of arresting a person charged with being incompetent to manage her estate, as directed by the summons issued by the court, delivered to her a copy of the summons, there was not sufficient notice of a trial as to her competency to sustain a judgment finding her incompetent. J. P. Thon.pson, Ben Spaulding and S. A. Russell for appellant. H. P. Cooper for appellee. Appeal from Marion Circuit Court. Opinion of the court by Judge Barker. This action was instituted in the court below by appellee, against appellant, for the purpose of recovering from him certain property held as her committee, and for a settlement of his accounts as such committee. On the 15th day of April, 1901, an information was filed in the Marion Circuit Court by the county attorney against appellee, Susan Gardner, charging that she was a person of unsound mind, and not capable of managing her estate, and requesting that a jury be impanelled to try that issue. Upon the filing of this information the following warrant was issued by the judge of the county court: To the Sheriff of Marion County: "From information furnished by Ben Spaulding, county attorney, there are reasonable grounds to believe that Miss Susan Gardner is a person of unsound mind, and not capable of managing her estate. You are, therefore, commanded to arrest said Gardner, and bring her before me, to be dealt with as by law required. This 15th day of April, 1901. (Signed) "O. G. KELLY, P. J. M. C. C." Upon which the following return was made: "Executed the within warrant by delivering a true copy to Miss Susan Gardner this April 16, 1901. (Signed) J. M. COOPER, S. M. C., "By J. C. FISH, D. S. M. C." Appeliee was not present upon the trial of the case, her presence having been dispensed with upon the filing of the affidavit of two physicians that it would be unsafe to have her present in court. An attorney was appointed by the court to defend for her, and upon the trial she was found to be of feeble mind; whereupon a judgment was entered by the court in conformity to the verdict, and appellant was appointed her committee, executed bond, and took charge of her estate. On the 23d day of May, 1901, upon the personal application of appellee, the judge of the county court entered this order: "The judgment entered in this. case on the 15th day of April, 1901, is ordered set aside and held for naught, and a new trial is ordered to be held on the 23d day of May, 1901.” Afterwards, a trial was again had on the subject of appellee's competency of mind, which resulted in the jury's finding in her favor on this issue. From this second judgment an appeal was taken to the Marion Circuit Court, which reversed the judgment of the county court ascertaining appellee to be of sound mind. Appellant, in his answer, pleads the first judgment in the county court, establishing the imbecility of mind of appellee, and that the fact that he had been duly and legally appointed her committee, and rightfully held possession of her estate. Appellee replied, setting up the second judgment of the county court, which vacated the first judgment, and which established her soundness of mind. Appellant then replied, pleading the judgment of the Marion Circuit Court, vacating the second judgment of the county court, and holding it to be void for want of jurisdiction. Appellee rejoined, claiming the judgment of the circuit court to be. void for want of jurisdiction. The question involved is one of law growing out of official records about which there can be no dispute. The chancellor rendered a judgment in favor of appellee, from which appellant prosecutes this appeal. The first question arising is whether or not the original judgment, finding appellee to be of unsound mind and the appointment of appellant as committee, is void; if it be, there is no necessity of examining any other question. Appellee was not personally before the court when the judgment establishing her infirmity of mind was rendered. Section 2157 of the Kentucky Statutes provides: "No inquest shall be held, unless the person charged to be of unsound mind, or an imbecile, or incompetent to manage. his estate, is in court and personally in the presence of the jury. The per sonal presence of persons charged shall not be dispensed with unless it shall appear by the oath, or affidavit, of two regular, practicing physicians, that, |