age which he suffered at any time prior to the 23rd day of April, A. D., 1905; and the only damages for which he may recover since said date, are such damages, if any, as must have resulted from changes occurring since said date in the conditions at the place named by plaintiff.

"6. The court further instructs the jury that if they believe from the evidence that the bridge and embankment of which the plaintiff complains were so constructed by the defendants and so kept by them as to render same adequate to carry off the water that accumulated on plaintiff's land from usual and ordinary rainfalls and floods in that vicinity they will find for the defendants; or if they believe from the evidence that the overflow or damage to plaintiff's land, if any, was caused by extraordinary rains or floods, such as were of unusual occurrence in that vicinity and could not have been anticipated by persons of ordinary experience and prudence, they will find for the defendants; or if they believe from the evidence that Muddy Creek became obstructed below the point where the bridge of the defendants is built across it and that such lower obstruction, if any, caused the damage to plaintiff's land complained of by him, they will find for the defendants.

7. Nine or any greater number of jurors concurring may make a verdict. If the entire twelve concur in a verdict it will be signed by only one of them; but if less than twelve concur, then those concurring in the verdict shall sign same."

The court will give the jury no other instructions than instruction No. 1 given upon the former trial and instructions 2 to 7, inclusive, as herein set out.

It is only necessary to say that we do not decide the question of whether any privilege would arise upon fifteen years' adverse use, as claimed by defendants, as that question is not before us under the facts of this case. For the reasons given the judgment of the trial court is reversed for a new trial consistent herewith.

1.

Pike County v. Sowards, et al.

(Decided February 20, 1912.)

Appeal from Pike Circuit Court.

Alteration in an Instrument-Absence of Proof-Presumption.-
It is presumed in the absence of proof to the contrary that an

2.

3.

4.

alteration in an instrument apparent on its face, was made before delivery.

Deed-Liability-Good Faith.-A deed made pursuant to a title bond acquired before the liability was created is not fraudulent. Nor is a deed fraudulent where the transaction was in good faith and had before the liability was fixed on the debtor. Debtor-Exemptions-Housekeeper.-The debtor is entitled to his exemptions as against a debt due the county and the county cannot complain of a sale by an attorney of his law library worth less than $500, he being a bona fide housekeeper with a family.

Purchase of Property-Intended Fraud.—A purchase of property at its full value will not be held fraudulent unless it is shown that fraud was intended.

5. Homestead-Conveyance by Debtor.-The county cannot complain of a conveyance by a debtor of his homestead or in satisfaction of the purchase money notes on it to the value of the property.

6. Employer and Employe-Payment in Advance.-An employer has the right to pay his employee in advance and the chancellor will not prevent him from so doing in order that the employees earnings may be subjected to his debts.

7.

Husband and Wife-Rights of Creditors.-A creditor cannot require a husband to renounce his wife's will and the husband takes only under the statute although the wife may devise him nothing by her will.

JAMES M. ROBERSON and J. J. MOORE for appellant.

YORK & JOHNSON and HAGER & STUART for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE HOBSONAffirming.

James Sowards was county attorney of Pike County for the term expiring on the first Monday in January, 1902, and during his term of office collected certain taxes due the county. After his term expired and on April 12, 1902, an action was brought by the county against him to recover therefor. The circuit court dismissed the petition but on appeal to this court the judgment was reversed, and on the return of the case from this court at the February term, 1908, a judgment was rendered in favor of the plaintiff against him for $3,951.36, with interest from April 12, 1902, and cost. execution issued on the judgment which was returned no property found. Thereupon this suit was brought by the county against him and his wife, Hester A. Sowards, and the Northern Coal and Coke Company to enforce satisfaction of the judgment under section 439 of the Code.

An

The circuit court on final hearing of the case dismissed the petition, and the plaintiff appeals.

It was charged in the petition that James Sowards had conveyed and caused to be conveyed to his wife, Hester A. Sowards, certain property without valuable consideration and for the fraudulent purpose of cheating and defrauding Pike County. The transactions which are assailed are as follows:

1. On March 26th, 1902, James Damron and wife conveyed to Hester A. Sowards, 120 acres of land and on May 20, 1903, a deed from M. D. Damron and wife and James M. York, as executor, was executed to her to confirm the previous deed. The deed of March 26, 1902, was executed before any suit had been brought by the county against James Sowards, but it was executed after his term of office had expired, and after there had been some agitation in regard to a suit against him by the county. The defendants, however, showed that these deeds were made pursuant to a title bond which Hester A. Sowards had acquired by assignment from Miles Coleman on February 10, 1900, or two years before there was any agitation about a liability of James Sowards to the county. It is insisted for the county that the assignment was really made to James Sowards and that the bond had been changed so that the deed might be made to Hester A. Sowards. The original paper has been brought up for our inspection and while there is some evidence on the face of the paper that a "J" has been changed to an "H" there is nothing in the evidence to show when this change was made. We can not assume that a forgery was committed without proof. The presumption is that the change was made before the delivery of the document. (1 Greenleaf on Evidence, section 564, James v. Holdam, 142 Ky., 450, and cases cited.)

The deed to Mrs. Sowards pursuant to the bond was made before any suit was brought against her husband for the money, and in the absence of some evidence to show a fraudulent alteration of the bond, the circuit court properly refused to hold the deed fraudulent.

2. On May 2, 1902, a commissioner's deed was made to Mrs. Sowards for an interest in the Corley Smith survey which had been bid in at the commissioner's sale by James Sowards and assigned by him to his wife. He had bought a half interest, the whole property selling for $12. The deed was made a few days after the suit was brought against him by the county, but he had previously

assigned the bond to his wife and we can not believe that this $6 transaction was made with a view of cheating and defrauding his creditors. He testified that he bought the land in for his wife, and that the assignment was made to correct the mistake of the commissioner in reporting him as the purchaser. There is no contrary evidence. It is said that he is not a competent witness, but he is one of the parties to the action. This is an action which might been brought by or against the wife, if she had been unmarried, and in such an action either but not both of them may testify. (Civil Code, section 606.) She did not testify.

3. By a deed dated December 23, 1902, he conveyed to his wife his law library, and it is insisted that this was fraudulent. But he was a bona fide housekeeper with a family. By section 1700, Kentucky Statutes, professional libraries of attorneys at law, not exceeding in value, $500, are exempt from execution. Under the undisputed evidence the library was of less value than $500 and the county can not complain of the conveyance as fraudulent if the property was exempt from execution. It is insisted, however, that the exemption laws do not apply to the tax dues of the State, and that the county being but an arm of the State government, the same rule should apply here. We do not find in the statute any provision exempting counties or other municipalities from its operation, and to say that debts held by municipalities are privileged, would be to make an exception to the statute which would greatly impair its efficacy. The purpose of the statute is not to protect the debtor but to protect the family, and to effectuate this purpose it is as necessary to protect the family from debts due to municipalities as to other debtors. (Commonwealth v. Lay, 12 Bush, 285; Central Ky. Lunatic Asylum v. Craven, 28 Ky., 105, 21 Cyc., 519; Thompson on Homestead, section 386.)

4. On July 16, 1903, James Sowards conveyed to his wife a one-half interest in 50 acres of land on Burning Fork of Raccoon Creek for $100 cash then paid by her. The amount she paid for the property appears to have been more than its value. While the deed was made after the suit was brought against her husband, it was made when he was defending the action and some five years before any judgment was rendered against him. In view of the amount of the consideration and the other circumstances of the transaction we conclude that the

court properly declined to hold the transaction fraudulent.

5. On January 9, 1904, James Sowards conveyed to Hester Sowards a one-half interest in what was known as the stable lot. He and his wife had purchased this property jointly some years before and she then paid him $225, the full value of his half interest. This deed was also made when there was no judgment against him, when he was making a vigorous defense against the claim of the county and four years before any judgment was rendered. She having paid full value for the property the court properly refused to hold the conveyance fraudulent.

6. On April 20, 1907, James Sowards conveyed to his wife the house and lot where they then lived for $2,250, which was the full value of the property. She held a purchase money lien against the property for $1,250, and if this lien was valid, the county can not complain of the conveyance, as he was entitled to a homestead of $1,000 in the property. It is undisputed that the purchase money notes for the property were outstanding, but it is insisted that the assignments on the notes by which they were assigned to Hester A. Sowards, had been mutilated, and that these assignments were not made to her. We have examined the notes which have been brought up for our inspection, and find that the assignments do bear evidence of having been changed; but the notes were executed by James Sowards to Mrs. Mary K. Salyer and were assigned by her. If James A. Sowards had paid off the notes to Mrs. Salyer there was no need that an assignment to anybody should be placed on the back of them. In addition to this, it is proved by the testimony of the banker that in the transaction in which Mrs. Salyer assigned these notes, Mrs. Sowards transferred to Mrs. Salyer five shares of bank stock which she then held which were of value about the face of the notes. There is also proof that Mrs. Sowards kept her papers in the safe of her brother, and that years before there was any trouble between her husband and the county, these notes were in the safe with her papers. We, therefore, conclude that the circuit court properly held that she had a lien on the property for the amount of her notes, and that the defendant being entitled to a homestead in the property, the county can not complain of the transaction.

7. Mrs. Sowards is a daughter of A. J. Auxier, late