4.

Local Option Election-Submission of Case-Subsequent Hearing of Evidence-Right of Petitioner to Withdraw.-Where on petition for the calling of a local option election the case is submitted, the hearing of evidence thereafter on a disputed question of fact renders ineffective the order of submission, and does not deprive a petitioner of the right to withdraw his name from the petition before it is finally acted on.

ELBERT WESLEY, WESLEY & BROWN and DENTON & FLIPPIN for appellants.

O. H. WADDLE & SONS and W. M. CATRON for appellees.

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

This appeal involves the validity of a local option election held in the county of Pulaski on December 10, 1912. After the election Sylvester Newton and others filed a contest. The contest board held the election valid. On appeal to the circuit court the election was adjudged to be invalid. From that judgment the contestees appeal.

The facts are as follows: On September 14, 1912, there was filed with the county court a written petition asking for an election to take the sense of the legal voters of Pulaski County on the proposition whether or not spiritnous, vinous or malt liquors should be sold, loaned or bartered in such county, and that said law and prohibition apply to druggists. Application was made by written petition, signed by legal voters from each of the precincts in the county equal to 25 per cent of the votes cast in each of said precincts at the last preceding general election, which was held in November, 1911. On the calling of the case on the docket for hearing on September 16, 1912, ten of the signers in Beaver precinct No. 33 produced and filed in open court a written request to strike their names from the petition, and moved the court that this be done. At the same time the attorneys represent ing the "wets" moved the court to dismiss the petition asking for the election on the ground that there were only 47 votes cast at the preceding general election in Beaver precinct, and as only 20 legal voters from that precinct had signed the petition and ten had requested the withdrawal of their names, the number of signers remaining on the petition did not equal 25 per cent of the votes cast in that precinct at the next preceding general election. The attention of the court was then called to the fact that since the November election,1911,the county of McCreary

had been created, and that the line separating that county, from Pulaski County passed through Beaver precinct, thus transferring to McCreary County about one-half the territory and about one-half the population of Beaver precinct. Without passing on the question of the withdrawal or the striking of the names of the parties from the petition, the court adjourned in order that it might be advised what number of signers was necessary in order to constitute 25 per cent of the legal voters in Beaver precinct, and ordered that the case be closed on the facts as they then existed and that it be submitted for judgment. On September 20, 1912, the court re-convened, pursuant to adjournment, for the purpose of rendering judgment. The court entered an order appointing Wesley Collyer and Ben Branchcomb special commissioners to go to Beaver precinct for the purpose of ascertaining and reporting to the court the number of voters in said precinct who cast their votes at the last regular election in said precinct, and who, at the time of casting their votes, resided in that portion of the precinct which is now a part of Pulaski County. Branchcomb having declined to act as such commissioner, Huston Howard was appointed in his place. Howard also refused to act, and on September 24, 1912, Wesley Collyer presented and filed his report as such commissioner, fixing the number of voters who voted at the next preceding general election, and who, after the creation of McCreary County, still lived in Pulaski County in Beaver precinct, at 29. The contestants objected to the report of the commissioner being received, and asked that there be stricken from the petition the names of those who had asked that this be done, and that the petition asking for an election be dismissed. The court declined to pass on any of these questions, but continned the case until September 25th. When the case was called on that day, a request, signed by three of the original petitioners, was presented, asking that their names be stricken from the petition asking the election. The court refused to strike these names from the petition, but did enter an order striking from the petition the names of the ten petitioners who had previously asked that this be done. He then entered an order calling the election.

While a different rule prevails in cities and towns, it is well settled that when the election is proposed to be held in territory comprising precincts, the petition should be signed by a number of voters equal to 25 per cent of

Vol. 154-16

the votes cast in each precinct at the last preceding general election. Kentucky Statutes, Sec. 2554; Nall v. Tinsley, 107 Ky., 441. The validity of the election in question, therefore, depends on whether or not the petition in question was signed by a number of voters in Beaver precinct equal to 25 per cent of the votes cast in that precinct at the next preceding general election. After the general election in November, 1911, the county of McCreary was created. A portion of Beaver precinct was transferred to that county. There remained in that precinct only about half of its former territory and population. The statute providing for the calling of such an election makes no provision for a case of this kind. It was never contemplated that where the population and territory of a precinct were transferred to another county there should still be required a number of signers equal to 25 per cent of the votes cast at the next preceding general election which occurred before such transfer. We therefore conclude that the county court properly held that it was only necessary to have the petition signed by a number equal to 25 per cent of the voters who voted at the November election, 1911, and who still lived in that part of Beaver precinct left remaining in Pulaski County. As the petition was originally signed by 20 voters, and the names of ten of these were stricken from the petition, there remained only ten signers. Even if we concede that the commissioner's report was correct, the number of voters who voted at the November election, 1911, and who still resided in Beaver precinct was 29. Had the names of the three additional petitioners who asked that their names be stricken from the petition been stricken therefrom, there would have remained only seven. Seven is not 25 per cent of 29. It follows that the validity of the election turns on the right of these petitioners to withdraw their names, and the propriety of the court's action in refusing to permit them to do so. We have, in a number of cases, refused to follow the rule announced by the Supreme Court of Arkansas in the case of Colvin v. French, 75 Ark., 154, and have held that one who signs a petition for a local option election had a right to withdraw his name at any time before the petition is acted on. O'Neal v. Minary, 125 Ky., 571; Davis v. Henderson, 127 Ky., 13; Barton v. Edwards, Judge, et al., 143 Ky., 713. It is insisted, however, that this rule does not apply under the facts of this case, because the case was actually submitted for judgment at the time the withdrawal of the three names was asked. While it is true

that an order was made submitting the case, it also appears that after it is claimed the case was submitted, the court appointed a commissioner, who heard evidence on the number of voters who voted at the November election, 1911, and still remained residents of Beaver precinct after the formation of McCreary County. A case cannot be said to be submitted when evidence is thereafter heard, unless consented to by the parties. In this case there was no consent. The necessary effect of hearing evidence on the question in dispute was to annul the order of submission. That being true, it follows that the three petitioners had the right to withdraw before the petition was acted on.

Judgment affirmed.

1.

Roberts v. Cardwell.

(Decided June 17, 1913.)

Appeal from Breathitt Circuit Court.

Lis Pendens-Vendor and Purchaser.-A lis pendens purchaser from one who is a party to the action, and who has been divested of title by the judgment entered, acquires no title, and where his vendor, for a period of nearly twenty years, contests the action without raising the plea of fraud, the lis pendens purchaser is precluded by the judgment, and cannot attack the judgment and the subsequent proceedings on the ground of fraud. 2. Lis Pendens-Laches-Adverse Possession.-Though a purchaser pendente lite is bound by any judgment that may be rendered against the person from whom he purchased, yet where there is an unreasonable delay in the prosecution of the suit, a party may lose the benefit of the lis pendens and deprive himself of any remedy against a bona fide purchaser, and such purchaser may rely upon the statute of limitations.

G. W. FLEENOR and MARTIN T. KELLY for appellant.

MCGUIRE & MCGUIRE, ADAMS & HOLLIDAY and HAZELRIGG & HAZELRIGG for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER-Reversing.

In October, 1886, William Smith died intestate in Breathitt County, Kentucky, leaving surviving him his widow, Nancy, and one son, George Smith. In July,

1887, John W. Cardwell, a creditor of the decedent, brought suit in the Breathitt Circuit Court to settle his estate. In this action he alleged that the decedent did not leave sufficient personal property to pay his debts, and he asked that a certain described piece of real estate be sold for that purpose. In 1889 Charles J. Little filed his petition in the action asking that he be made a party and that his petition be taken as his answer and cross petition. In his petition he alleged that in July, 1887, more than six months after the death of William Smith, one Harry Baldwin, for a good and valuable consideration paid to Nancy Smith and George Smith, purchased from them the tract of land described in the petition, and on that day the same was conveyed to plaintiff by deed. In August, 1888, plaintiff sold and conveyed the land to him, and in 1889 Nancy and George Smith conveyed it to him. Immediately after the purchase he took possession of the land and was in possession at the time he filed his petition. He prayed that the petition be dismissed and that he be adjudged the owner of the land. In 1888, and prior to the filing of the petition by Little, an order was entered referring the case to the master commissioner to report claims. The commissioner filed two reports during that year. In his last report he stated that there were no funds in the hands of the administrator, and that it was necessary to sell the real estate of the decedent to pay his debts. In 1889 the reports of claims, excepting two small items, were confirmed. In 1891 the action was submitted and a judgment entered directing the commissioner to sell the land mentioned in the petition for the purpose of paying the debts due by the estate. In 1894 the commissioner filed his report of sale, reciting that the real estate was sold to W. T. Hogg for $418. On the 13th day of September, 1892, it appearing to the satisfaction of the court that the papers in the case were lost, the case was referred to the master commissioner to supply same. On March 17, 1894, a similar order was again entered. In March, 1896, Cardwell made a motion to confirm the commissioner's report of sale. In 1896 C. J. Little filed his petition to be made a party defendant, and plaintiff excepted. On November 17, 1898, Emily Crane, executrix of W. T. Hogg, assigned the bid of W. T. Hogg to J. W. Cardwell. November 23, 1899, plaintiff made a motion to have the commissioner's report of sale confirmed. On June 21,

On