the appellee with one-half the Fraize purchase money, and the appellant with one-half the rents he had received after the Fraize purchase.

This judgment is in accordance with the principles announced. above, and is, therefore, affirmed.

EDMUNDS V. COMMONWEALTH.

(Filed October 2, 1896-Not to be reported.)

There being evidence which tends to show the defendant's guilt in this case,. this court can not reverse the judgment on the ground that the verdict is not supported by the evidence.

Boles & Duff and George T. Duff for appellant.

W. S. Taylor for appellee.

Appeal from Barren Circuit Court.

Opinion of the court by Judge Lewis.

It is not contended there was nor do we perceive in the record of this case any error of law that occurred during the trial, but reversal is asked upon the only ground that the verdict is not supported by the evidence.

This court can not set aside the verdict of a jury on any case merely because we may believe it was not determined according to the weight of the evidence or may not be supported by sufficient evidence. We can interfere only where there is no evidence in support of it.

In this case there was evidence tending to show appellant's guilt, and there is no alternative for this court but to affirm the judgment of conviction, which is done.

ISERT, &C. v. DAVIS.

(Filed October 6, 1896-Not to be reported )

The court below haring proceeded in this case according to the intimation and direction of this court upon a former appeal, the judgment rendered will not be disturbed.

Phelps & Thum for appellants.

Maxwell Davis for appellee.

Appeal from Jefferson Circuit Court, Common Pleas division.

Opinion of the court by Judge Guffy.

The appellee, Davis, instituted suit in the Jefferson Circuit Court to remove a cloud from his title to a certain lot in Louisville, Ky., and to quiet his title thereto. The court adjudged in his favor, but J. G. Hunt, &c., prosecuted an appeal to this court and the judgment was reversed. The opinion is reported in 17 KY. LAW REP., 686.

The opinion, supra, intimated that such proceedings might be

had, proof taken and conditions complied with as would authorize the chancellor to elect for the infant appellee to accept the sale of the lot already made under a former judgment not appealed from.

Upon return of the cause it seems that amended pleadings were filed and proof taken showing that the sale was beneficial to the infant, and the proper bond executed and a judicious investment of the proceeds had been made. Thereupon the chancellor elected for the infant to accept the sale, and adjudged that he had no further right or title in or to said lot; and from that judgment the infant and others prosecute this appeal.

It seems that the court below has proceeded according to the intimation and directions contained in the former opinion, and the judgment is, therefore, affirmed.

BOWMAN, &c. v. HUMPHREY, &C.

(Filed October 6, 1896-Not to be reported.)

1. Acceptance of forged note in renewal of genuine note- Right of action on original- Where the principal in a genuine note induced the payee to accept in renewal thereof a note which was a forgery as to the sureties, the payee, being ignorant of the forgery at the time he surrendered the original note and accepted the new note in its stead, still had a right of action against the sureties upon the original note; and the holder in this action against the sureties setting up the facts as to the forgery, and the false representations by which he was induced to surrender the original note, had the right to recover thereon.

2. Limitation-As the original note was executed September 30, 1884, due in twelve months, this suit thereon, brought September 23, 1892, was not barred by limitation as to the sureties.

3. Assignment of forged note-Liability of assignor-The forged note having passed upon the death of the payee to his executor, who afterwards received it as distributee in the distribution of the estate, his assignment of the forged note passed to his assignee the claim which the testator had against the sureties upon the original note. And it is immaterial whether the legal or only an equitable titled passed, as both assignor and assignee are parties to the suit. And if it were true that the assignor was released from liability upon his contract of assignment the right to maintain the action would not be thereby impaired.

4. Same--The renewal note being a forgery, the assignor was not released from liability upon his contract of assignment by the failure of the assignee to prosecute the makers of the note with diligence.

George S. Fulton and John A. Fulton for appellants.

John S. Kelley for appellees.

Appeal from Nelson Circuit Court.

Opinion of the court by Judge Guffy.

It is substantially alleged in the petition in this action that one T. O. Crozier and the appellants executed to William Johnson their note for $1,200 September 30, 1884, due in twelve months, with interest from date, no part of which had been paid except some interest set out in the petition; and that on the 30th of September, 1886, said Crozier delivered to said decedent a note in renewal of the firstnamed note, with the names of the appellants signed thereto, which note amounted, principal and interest, to $1,257.20, and represented

to decedent that appellants had signed said note; that said William Johnson died June 4, 1888, and that appellee Johnson was his executor, and, in the distribution of the estate, appellant Johnson became the owner of the last-named note, which said Crozier in like manner, as before stated in regard to the first, pretended to renew, with the names of the appellees thereon, purporting to be their note executed to appellant Johnson, for $1,366.20, dated June 23, 1888, due one day after date, some interest having been paid on the other named renewal note, and afterwards appellant assigned same to appellee Humphrey.

It is also alleged that no part of the original debt had been paid except $86.80, accrued interest at the time of the first renewal, and $81.71 paid as interest on the first forged note, from September 30, 1886, to October 29, 1887. Judgment was prayed for $1,200, with interest from the 30th of September, 1884. Proper allegations as to the false representation and the forgery of appellants' names were made.

Appellants demurred to the petition, which demurred was overruled. Thereupon appellants answered, and in the first paragraph thereof the statute of limitation is pleaded, and a denial of the execution of the note mentioned in the petition, but say that they did, as sureties for said Crozier, execute a note for $1,200 to Wm. Johnson, but the note so signed was executed and bore date more than eight years prior to the institution of this suit, and matured more than seven years prior to the institution of this suit, exclusive of the time which elapsed between the date of the death of William Johnson and the qualification of his executor, Ben Johnson.

In the second paragraph of the answer the appellants denied the right of appellees, or either of them singly or jointly, to maintain this action, for the reason that the appellant, Johnson, had no interest in the notes at all, because released by the failure of Humphrey to use diligence in the collection of the assigned note; also denied that either of appellees ever had any interest in the original note; that there never, at any time, existed any privity of contract between them and either of the appellants; also denied knowledge or information of the execution of the two alleged forged notes, or of any representations concerning same, and averred that they were induced by Crozier to believe that he had paid off the genuine note, otherwise they would have compelled the collection of the note.

The third paragraph sets up the fact that appellee Humphrey brought suit against appellants on the last-named note, and that they pleaded non est factum, which was traversed by Humphrey, and, upon issue joined, judgment was rendered in favor of appellants, and that suit is relied on as a bar to this action.

Appellees demurred to the second and third paragraphs of the answer, which demurrer was sustained by the court, and upon final hearing judgment was rendered in favor of plaintiffs for the amount of the original note, with interest from the 30th of September, 1884, subject to the credits aforesaid, and to reverse that judgment this appeal is prosecuted.

It is insisted by counsel for appellants that the proof does not show that the forged notes were in fact renewals of the original note.

It may be conceded that the direct proof on that point is not beyond reasonable doubt, but the execution of the genuine note on the 30th of September, 1884, due in twelve months, seems to be clearly established, and there is no plea nor evidence that it was ever paid or settled except the fact that it is not produced by appellees, except what is shown by the renewal notes, if they show anything.

This action was instituted September 23, 1892, hence the cause of action on the original note was not barred by the seven years' statute, even if we assume that an executor was immediately appointed, but appellants also insist that the court erred in sustaining the demurrer to the second and third paragraphs of the answer.

It is manifest that whatever claim William Johnson had against appellants passed to Ben Johnson, first as executor and next as distributee or heir, and that he sold and assigned same to appellee Humphrey, and it is immaterial whether the legal or only an equitable title vested in Humphrey, as both Humphrey and Johnson are parties to the suit.

If it was true that Johnson was released from liability to Humphrey on the assignment, the right to novation in the action would not be thereby impaired, but the opinion in Ware v. McCormack, 96 Ky., 139, determines that appellants' contention in that respect is

erroneous.

Appellants quote from the opinion of this court, in National Bank of Covington v. Gaines, &c., 87 Ky., 602, and insist that it sustains the third paragraph of the answer, but it will be seen by an examination of the opinion that the question there decided was essentially different from the question in the case at bar. The creditors in that case had not pleaded nor relied on the first note, but complained because a recovery was denied on the forged note, contending that the mere fact that the defendants owed the original debt authorized a recovery.

It seems to us that the case of Stratton v. McMachin, 84 Ky., 641, conclusively establishes appellee's right to recover in this case. In that case it appears that the plaintiff had sued on the forged note and been defeated, and afterwards brought suit on the first note, which had been delivered up to the principal upon the delivery of the forged note, and this court held that he was entitled to recover. The judgment of the court below is affirmed.

SCHAMBERG, &c. V. FARMER, ADM'R.

(Filed October 7, 1896-Not to be reported.)

1. Lease granting right to operate oil and gas wells-Validity of A lease granting to the lessees for a sufficient consideration the sole right to drill and operate oil and gas wells on a tract of land for a period of fifteen years, and providing for an absolute forfeiture of the lease in the event the lessees shall fail to complete a test well within twelve months, and also giving them the right, after the conditions have arisen requiring them to pay rent, to elect to cancel the leases by nonpayment of rent, was not void for want of mutuality, and, therefore, constituted an incumbrance on the land.

2. Incumbrance--Vendor and vendee--The owner of the land having sold it after executing the lease, in an action by him to recover the purchase price the vendees can not claim a reduction on account of the incumbrance referred to without alleging facts showing that the incumbrance still exists. The general statement that the lessees have fulfilled the conditions of the lease and that the incumbrance still exists is not sufficient, as it is but a conclusion of the pleader.

W. S. Harkins and Connolly & Connolly for appellants.

A. J. Auxier and Nat. J. Auxier for appellee.

Appeal from Pike Circuit Court.

Opinion of the court by Judge Landes.

This was an action in the Pike Circuit Court in the name of the appellee against the appellants, on a note executed by the latter to the former for the balance of purchase money for a tract of land that was sold and conveyed and the possession thereof delivered by Benjamin Mead in his lifetime to appellant Schamberg, by deed of general warranty, dated May 18, 1893. Schamberg afterwards sold the land to appellant Hopson.

The defense was based upon the fact that, previous to the sale and conveyance of the land to Schamberg, the said Benjamin Mead had executed an instrument of writing, which was recorded in the clerk's office of Pike county, by which he leased or granted to G. H. Demich and L. H. Gormley, for a sufficient consideration, the sole right to drill and operate oil and gas wells on the same tract of land for the period of fifteen years, which it was claimed was an incumbrance on the land, and a breach of the covenant of warranty in the deed from Mead to Schamberg, and naturally reduced the value of the land; and it was alleged that Mead in his lifetime was insolvent, and that his estate after his death was insolvent, by reason of which fact, which was not denied by the appellee, it was claimed that the appellants had the right to have the amount of the said note for purchase money reduced. This claim was controverted by the appellee.

The said lease was made a part of the record, and contained among other things in substance the following provision, viz: That the lessees were bound to commence operations under the lease and complete one well on the land within two years after finding oil in paying quantities in one of the test wells which they were to bore in the neighborhood, or thereafter pay as rent for the land "ten cents per acre yearly in advance until such well is completed or until" the lessees "elect to cancel their lease by nonpayment of said rent;" and that the lessees should complete one or more of such test wells within twelve months from the date of the lease, and that "a failure so to do" should "work the absolute forfeiture of this lease."

The court below on final hearing gave judgment against the appellants on the note, and decreed the sale of the land to satisfy the judgment as prayed for in the petition, and the case is before us on appeal from that judgment.

We do not concur in the contention of counsel for the appellee that the lease was invalid for the want of mutuality, and for that reason it created no incumbrance on the land.

It was a valid contract, and created an encumbrance; but defense having been made on the ground that the encumbrance was still existing, it devolved upon the appellants to properly allege it and prove it if denied. Provisions were made in the lease, which we have quoted, for a termination of it by the lessees by electing not to pay rent for the land, when the conditions existed requiring them to pay rent, and for a forfeiture of it by the failure of the lessees to complete one of the test wells stipulated for within twelve months from the date of the lease.

The facts of the case affecting the lease in such a way as either to put an end to or to prolong its existence must have been within the knowledge of the appellants, one of whom, at least, was in possession of the land; and if, under the facts, the lease was still in force, in order to avail themselves of it as a defense to the action it de volved on the appellants to allege the facts and to prove them, if denied by the appellee.