third tract lies between the railroad on the | Morgan v. Renfro, 124 Ky. 314, 99 S. W. 311, east and the lines A-D and D-G. 30 Ky. Law Rep. 533. It follows, therefore, that the record title to the two strips lying between the lines B-C and E-F on the west, and C-D and F-D on the south, is in defendants, and there being no adverse possession by plaintiffs of either of these two strips for the statutory period plaintiffs failed to show title to either of said strips. The evidence shows that if the courses and distances mentioned in the second deed to Joe Crossland be followed the land so conveyed will be represented by the figure B, C, D, A. The conveyance, however, does not show any established corners at the points B, C, and D. The evidence does show, however, that there are established corners [2] As to the triangular strip of land, at E and F, and that these corners corre A, D, G, A, a different question is presented. spond to the corners called for in the second There is no established corner at D or beyond deed to Joe Crossland. There is also evi- D. The line F-D does not call for a corner dence to the effect that there is a marked on the railroad right of way; nor does the line from E to F, and from F to D and for last call in the deed run with the railroad a short distance beyond D. If the courses right of way. On the contrary, the call from and distances in the second deed to Joe F to D corresponds in distance with the Crossland be followed, the survey stops at call from A to E, and the last call in the the point D; but there is no established deed corresponds with the line A-D and runs corner either at D or at G. There is some northeast, instead of northwest with the evidence tending to show that Joe Crossland railroad right of way. There can be no claimed to the line E-F on the west, the doubt, therefore, that the tract A, D, G, is line F-G on the south and to the railroad not included in the second deed to Joe Crossright of way on the east. There is also evi-land. Having no record title to this tract, dence to the effect that he claimed no fur- the Crosslands could not acquire title against ther than the lines B-C on the west, C-D the superior title holder by merely claiming on the south, and A-D on the east. The evidence further shows that none of the strips of land in controversy were inclosed until a short time prior to the institution of this action, although there is evidence to the effect that a field of about 60 acres on the 80-acre tract was cleared and in cultivation, and this field extended in places west of the line B-C and south of the line C-D. The evidence, however, fails to show for what period of time the field was cleared or cultivated. There is practically no evidence of possession of the tract A, D, G, A, except the occasional cutting of timber. About a year or more before the bringing of the action defendants extended their fence so as to follow the lines A, E, F, G, A. [1] The trial court evidently construed the second deed to Joe Crossland as including only the land embraced within the lines of A-B, B-C, C-D, and D-A, as he authorized a recovery on behalf of defendants only in the event that they and those through whom they claimed had been in adverse possession of the land in dispute for the statutory period. In reaching this conclusion the court was evidently of the opinion that the courses and distances in that deed controlled. In this conclusion he was in error. As stated above, the points E and F are established corners, fixed by the original deed to Joe Crossland. While the distances in the first and second calls of the second deed to Joe Crossland do not reach the corners E and F, yet those corners are called for. That being true, the distances must give way to the established corners called for in the deed. Doe v. Kennedy, 21 Ky. (5 T. B. Mon.) 174; Wallace v. Maxwell, 1 J. J. Marsh. 447; Creech v. Johnson, 76 S. W. 185, 25 Ky. Law Rep. 657; Brockman v. Rose, 90 S. W. 539, 28 Ky. Law Rep. 673; beyond their deeded boundary, and defendants, who acquired title through the Crosslands, who had no title, although their deed covered the triangular strip in controversy, acquired no title by their deed; and being junior title holders, and not having actually entered on the strip in controversy and held actual possession of it for the statutory period, they acquired no title to this strip by adverse possession. [3, 4] As defendants have no record title to the triangular strip, and as the proof is insufficient to show adverse possession for the statutory period, it remains to consider the plea of champerty. In this connection it is proper to say that, in order to maintain a plea of champerty, possession by actual inclosure is not required. All that is necessary is actual adverse possession, manifested by some act or fact sufficient to indicate to others that the person claiming to have been possessed had, in fact, the possession. Moss v. Scott, 2 Dana, 271; Brown v. Wallace, 116 S. W. 763. As neither of the Crosslands ever had actual possession of the triangular strip, the plea of champerty is confined to those deeds of plaintiffs' grantors made after December 23, 1908, when Joe Crossland conveyed to the defendant; and as to deeds made after that time the plea of champerty is available only in the event that defendants actually entered upon the triangular strip, and were in actual adverse possession of it at the time any of said deeds were made. In this connection it is proper to say that a sale of land by a trustee in bankruptcy is a judicial sale and valid, though the land be adversely held. Carlisle v. Cassady, 46 S. W. 490, 20 Ky. Law Rep. 562; Bryant v. Prewitt, 132 Ky. 799, 117 S. W. 343; Cardwell v. Sprigg's Heirs, 1 B. Mon. 369. The plea of LEE. (Court of Appeals of Kentucky. May 7, 1913.) 1. GUARDIAN AND WARD (§ 8*) APPOINTMENT-RESIDENCE. Under Ky. St. § 2015, providing that the several county courts shall have jurisdiction of the appointment and removal of guardians to minors, the court of the county where the minor resides at the time of the appointment having jurisdiction, but if the appointment be made the court of the county in which it was proven, by the will of a parent jurisdiction shall be in and if the minor be a nonresident the jurisdiction shall be in the court of that county in which some part of his real estate, or, if there be none, his personal estate, may lie, the county court of a county other than that of a minor's residence and in which none of her real property was located has no jurisdiction to appoint a guardian; it appearing that the appointment was not made by the will of either of her parents. champerty, therefore, is confined to the SOUTH COVINGTON & C. ST. RY. CO. v. deed made by Salmon to the Hardy Grain Company on March 16, 1909. As defendants did not acquire title by their deed, a mere claim of possession under their deed did not constitute actual possession as against the superior title holder. In order to maintain the plea of champerty, they had to be in actual possession of the land, as hereinbefore defined. If there be no other proof of actual possession at the time of the deed from Salmon to the Hardy Grain Company, the question of adverse possession will depend on whether or not the triangular strip was then inclosed by a fence. The question whether or not defendants were in the actual adverse possession of the triangular strip of land will be the only question to be submitted to the jury on the return of the case. [5] Other questions arise which it will be necessary to consider. The objection that the United States court for the district of Tennessee had no jurisdiction of the land in controversy, because it lies in Kentucky, is without merit. Under the Bankruptcy Act the trustees acquire the title of the bankrupt wherever his property is located, and the court having jurisdiction of the bankrupt has jurisdiction to order and approve a sale of his real estate, though lying in a district other than the district in which the proceedings are instituted. Thomas v. Woods, 97 C. C. A. 535, 173 Fed. 585, 26 L. R. A. (N. S.) 1180, 19 Ann. Cas. 1080, and cases cited. [6, 7] The deed from the trustees to plaintiffs having been properly acknowledged and recorded, a certified copy of the deed was properly admitted in evidence. Kentucky Statutes, § 519. Notwithstanding this fact, however, there is a link in plaintiffs' title which has not been sufficiently proven. Under our statutes and decisions a commissioner's deed proves itself; that is, it is evidence of the vesting in the grantee of the title of the parties to the proceeding. For that reason no other evidence is required. Helton v. Belcher, 114 Ky. 172, 70 S. W. 295, 24 Ky. Law Rep. 927. We have no statute making a deed of a trustee in bankruptcy, or its recitals, prima facie evidence of title. In the absence of a statute, such recitals in a deed are only binding on the parties, and cannot be regarded as evidence of title against strangers. As plaintiffs' title stands, therefore, there is no proof of title in the trustees or of authority to make the sale. On a return of the case this hiatus may be supplied by properly certified copies of the orders in the bankruptcy proceeding, showing the adjudication of bankruptcy, the appointment and qualification of the trustees named in the deed, and the approval of the sale. Judgment reversed, and cause remanded for new trial consistent with this opinion. [Ed. Note.-For other cases, see Guardian and Ward, Cent. Dig. §§ 9, 13-18; Dec. Dig. § 8.*] 2. NEW TRIAL (§ 150*)-AFFIDAVITS-CONSID ERATION. Where new trial was sought on the ground of newly discovered evidence, and one of defendant's employés made an affidavit as to davits of only some of the witnesses were prowhat certain witnesses would testify, but affiduced, no satisfactory reason being shown why affidavits of the others were not produced, only the testimony of those whose affidavits were introduced may be considered. Cent. Dig. §§ 308-310; Dec. Dig. § 150.*] ANCE UPON NEWLY DISCOVERED EVIDENCE. A new trial will not be granted on the ground of newly discovered evidence, unless the evidence be of a decisive nature, and such as to render a different result reasonably certain. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. § 108.*] 4. NEW TRIAL (§ 108*)-NEWLY DISCOVERED EVIDENCE-SUFFICIENCY. In a personal injury action by one who the case turned largely on whether the first apwas a minor at the time of the accident, where pointment of a guardian was valid, newly discovered evidence held insufficient to authorize a new trial, not showing that, at the time of the appointment, the minor resided in the county in which it was made. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. § 108.*] 5. NEW TRIAL (§ 105*)-NEWLY DISCOVERED EVIDENCE-SUFFICIENCY. cannot be allowed upon newly discovered eviIn a personal injury action, a new trial dence merely upon a showing that the physician who testified for plaintiff at the first trial contradicted himself in a prosecution against plaintiff for perjury, for such testimony would on a subsequent trial only tend to impeach the witness. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 183, 221-223, 229; Dec. Dig. $ 105.*] Appeal from Circuit Court, Kenton County, Common Law and Equity Division. Action by Rosa Lee against the South Covington & Cincinnati Street Railway Company. From a judgment for plaintiff and an The order denying a new trial, defendant ap-| ground of newly discovered evidence. peals. Affirmed. affidavits filed by the defendant bear upon the residence of plaintiff at the time of the Robert C. Simmons, of Covington, for appellant. B. F. Graziani, of Covington, alleged compromise, and the cause and ex for appellee. CLAY, C. In this action for damages for personal injuries against the defendant, South Covington & Cincinnati Street Railway Company, plaintiff, Rosa Lee, recovered a verdict and judgment for $3,000. The railway company appeals. According to the evidence for plaintiff, she was on a visit to her married sister, Mrs. McVay, who lived in Kenton county, South Latonia. On April 25, 1908, Mrs. Winston, who lived near plaintiff's sister, informed plaintiff that she and her daughter, Bessie Winston, intended to drive to Covington. Plaintiff asked permission to ride with them. They then started to town in a covered spring wagon. Miss Winston sat on the right side of the seat of the wagon and drove. Mrs. Winston was seated on the left. Plaintiff sat in the rear of the wagon. Immediately in front of her was an onion barrel which had been cut in two. When they reached Covington and were driving down Madison avenue near the corner of Wallace avenue, one of defendant's cars, without notice or warning, ran into the wagon from the rear. Plaintiff was thrown across the sharp edge of the barrel and injured. After the injury she returned to her home in Glencoe, Gallatin county, Ky. Her physician there advised an operation. She afterwards returned to Covington and consulted Dr. Eckman, who placed her in Speer's Hospital, Dayton, Ky., and performed on her the operation of laparotomy. At the time of the trial, plaintiff weighed 40 pounds less than she did before the accident. It seems that Miss Winston was injured and the wagon practically destroyed. Defendant's attorney compromised with Mrs. Winston and Miss Winston by paying them $125 each. Mrs. Winston qualified in Kenton county as guardian for the plaintiff, who was an infant at the time, and a like sum of $125 was paid to her in compromise of plaintiff's claim. In addition to a denial of the allegations of the petition with reference to defendant's negligence and plaintiff's injuries, defendant not only pleaded contributory negligence of plaintiff, but also pleaded the aforesaid compromise as a bar to her right of recovery. Plaintiff filed a reply to the effect that she was a resident of Gallatin county, and not of Kenton county, and that the appointment of Mrs. Winston as her guardian was not only void, but was obtained by fraud. Our attention has not been called to any prejudicial errors occurring on the trial. Indeed, the only ground urged for reversal is the error of the trial court in failing to award the defendant a new trial on the tent of her injury. Among the affidavits filed is one of defendant's claim agent to the effect that upon a new trial the defendant would be able to show by Harry Gibson that plaintiff resided in Covington with the Crosthwaites and Wilsons during the year next preceding the accident; by Mike Culbertson that plaintiff resided for some time in Kenton county during the year preceding the accident; by Mary Kerney that the plaintiff stayed with her a part of the time in Cincinnati during the year preceding the accident; by Mr. and Mrs. Shumate that the plaintiff resided in Kenton county during several months of the year preceding the accident; by John Wilson and Amanda Wilson that the plaintiff lived with them during the fall preceding the accident; by F. Crosthwaite that the plaintiff lived with them in Covington in August and a part of September, 1907. No affidavits of any of the parties mentioned in the affidavit of the claim agent, with the exception of F. Crosthwaite and John Wilson, are filed. Crosthwaite's affidavit is to the effect that plaintiff, who was then known as Rosa Lee Jones, lived with her husband, Luke Jones, at 1121 Prospect avenue for a period of about six weeks during August and September, 1907. They then moved to 75 East Thirteenth street. The affidavit of John Wilson relates to a conversation occurring in September, 1907, between him and Luke Jones, plaintiff's husband. From this affidavit it may be inferred that plaintiff lived at 75 East Thirteenth street in September, 1907. The alleged conversation with her husband is to the effect that Jones objected to his wife's working because she told affiant she was suffering from female trouble. In addition to the foregoing affidavits, the affidavit of Bessie Jones, a sister-in-law of plaintiff, is to the effect that during August and September, 1907, plaintiff lived at 1121 Prospect avenue. It also contains a statement that plaintiff suffered continually with female trouble, and had pains in the region of her ovaries, especially when she did any work. In addition to the foregoing affidavits, there is filed the affidavit of plaintiff made after the trial, and when she was under arrest charged with the crime of perjury. In this affidavit she says that she informed her attorney of the fact that she had lived in Covington several months before the accident; that her attorney told her that if she would testify to all that he told her to they would get good money out of the accident. He also told her it would never do to testify that she lived in Kenton county before the accident, which conversation was in connection with the matter of the appointment of the guardian, which was then being discussed. The affidavit then goes on to relate certain facts which affiant alleges her attorney instructed her to testify to. There is also in the record an affidavit, made by plaintiff subsequently to her arrest, repudiating the statements contained in the above affidavit, and alleging that the above affidavit was obtained from her while she was under arrest, and by the fraud, threats, and intimidation of the arresting officers and an attorney and claim agent of the defendant, and at a time when her mental condition was such that she did not appreciate what she was saying. To rebut this affidavit, there were filed the affidavits of several parties who were present when the first affidavit was made, to the effect that no coercion or fraud of any kind was practiced on her, and that she made the affidavit voluntarily and willingly, and knew exactly what she was talking about. Counter affidavits of several prominent citizens of Gallatin county, to the effect that plaintiff was a resident of that county, were also filed. It further appears that at the time of the accident she had an action for divorce pending against her husband, Luke Jones, in the circuit court of Gallatin county, Ky., and that that court subsequently granted the divorce. It further appears that on the trial of this case Dr. Eckman testified that he removed plaintiff's ovaries. In his opinion, the condition of her ovaries was due to a blow or injury. It was necessary to remove the ovaries because of the inflammatory condition of the ovaries. He also stated that the trouble with which plaintiff suffered could have been caused by gonorrhea. When he got into plaintiff's pelvis he found it was not the result of gonorrhea. Subsequently, upon the trial of plaintiff for false swearing, Dr. Eckman testified as follows: "I performed the operation called laparotomy. When I operated I found what I had already found by the examination, the retroverted womb, and ovaries misplaced. I removed the ovaries and Fallopian tubes, which were at that time filled with pus. I shortened the ligaments to restore the parts to their normal condition as far as possible." He further testified that any infectious disease or inflamed condition of any kind would produce pus in the Fallopian tubes. He knew of no case where an injury produced pus in the pus tubes. Only a microscopic examination would determine what caused the pus in such cases. In the case under consideration there was no miscroscopic examination. He did not recall that there was any pus in the pus tubes, and did not remember whether there was any or not in plaintiff's case. On cross-examination, he said that his statement as to the existence of pus was made from the record at the hospital, and not from his recollection. He did not make the record. He had been asked to sign cards made the records of the operation. On his original examination, a day or two before, he testified: "Q. You found in addition to that pus in the tubes leading from the ovaries? A. That was recorded in the hospital record. Q. Is it true? A. Yes, sir." He further testified that the most frequent cause of pus in the tubes was gonorrhea; that it was estimated by some that 85 per cent. or 90 per cent. of the cases resulted from this cause, but he would say that it resulted from that cause in the majority of cases. He also said that he had not known of a case in his reading where the condition was produced from an injury, but that the condition in which he found plaintiff was absolutely due to the injury. The claim agent, in his affidavit, also says that after the trial of the case Dr. Eckman told him that the trouble for which plaintiff was operated on had existed previous to the accident, and, while the accident in question might have caused some aggravation of the trouble, it was not the cause of the operation which had been performed on plaintiff. In the rebuttal affidavit filed by Dr. Eckman, this statement is denied. In the rebuttal affidavit he distinguishes between the cause of the retroverted womb and the displacement of the ovaries and the existence of pus in the pus tubes. He says that the former was the cause of the operation, and that if pus tubes existed at the time of the operation, they were removed as they should have been. Dr. Eckman further says in his affidavit that if another trial is had, and he is again summoned, his testimony will be the same as it was on the first trial. [1] The plaintiff's residence was a material issue in the case. She was not a nonresident owner of real estate, nor was the appointment of Mrs. Winston as guardian made by the will of her father or mother. That being true, only the county court of her residence had jurisdiction to appoint a guardian, and if at the time of the appointment plaintiff was not a resident of Kenton county, the appointment of Mrs. Winston was void and the settlement which she as guardian made with defendant was also void. Section 2015, Kentucky Statutes; Ware v. Coleman, 6 J. J. Marsh. 198. On the trial, defendant's agent who made the settlement with Mrs. Winston testified that plaintiff told him that her residence was in Kenton county; that she was a married woman at the time, but was not living with her husband; that she and her husband had lived with her sister, but had separated because of some disagreement. She was at her sister's house when she rode down with Mrs. Winston. Plaintiff's sister testified that plaintiff was married and came to live in Kenton county in 1907. Plaintiff and her husband first boarded with her sister, Sarah Holmes, near Latonia. They stayed there about two weeks and then went out to Mr. Ed ness three or four months before she got | W. 1071, 20 Ky. Law Rep. 1021; Oberdorfer hurt. [2] While the affidavit of the claim agent refers to a number of witnesses by whom could be proven certain facts with reference to plaintiff's residence, affidavits of only two of these witnesses accompany the affidavit of the claim agent, and no satisfactory reason is shown why the affidavits of the other alleged witnesses are not produced. That being true, only those affidavits that accompany the affidavit of the claim agent can be considered. City of Dayton v. Hirth, 121 Ky. 42, 87 S. W. 1136, 27 Ky. Law Rep. 1209; Travelers' Insurance Co. v. McInerney, 119 S. W. 172. v. Newberger, 67 S. W. 267, 23 Ky. Law Rep. 2323. Another statement of the rule is: To entitle a party to a new trial when the point upon which it is sought was in issue in the former trial, the newly discovered evidence must be of such a permanent and unerring character as to preponderate greatly, or have decisive influence upon the evidence to be overturned by it. Owsley v. Owsley, 117 Ky. 47, 77 S. W. 397, 25 Ky. Law Rep. 1186; Allen v. Perry, 6 Bush, 85; Paducah Ice Co. v. H. E. Hall & Co., 113 S. W. 104. It is manifest that the newly discovered evidence relied on in this case does not come up to the required standard. The question is: What was plaintiff's residence in June, 1908? All the facts which it is claimed the new witnesses would testify to may be absolutely true, and yet they tend only to show that plaintiff lived with her husband in Covington at a period several months before the qualification of Mrs. Winston as her guardian. Opposed to this evidence is the fact that she left her husband and instituted an action for divorce against him in the month of April, 1908, and prior to the accident, as well as the testimony of several witnesses that she actually resided in Gallatin county at that time, and at the time of the qualification of her guardian. Under these circumstances we cannot say that the newly discovered evidence is so decisive in character as to render a different result reasonably certain. [3, 4] There remain, then, only the affidavits of T. Crosthwaite, John Wilson, and Bessie Jones. Crosthwaite's affidavit is to the effect that plaintiff lived at 1121 Prospect avenue, Covington, Ky., for a period of about six weeks during August and September, 1907, when she and her husband moved to 75 East Thirteenth street. Wilson's affidavit is to the effect that plaintiff and her husbånd lived at 75 East Thirteenth street in September, 1907. Bessie Jones' affidavit is to the effect that plaintiff lived at 1121 Prospect avenue in August and part of September, 1907. In addition to these affidavits, there is the affidavit of plaintiff made after her arrest, and which she repudiated the next morning, to the effect that she told her attorney that she had lived in Covington several months before the accident, but that he told her that it would never do to testify [5] The only newly discovered evidence that she had lived in Kenton county before that refers to the extent of plaintiff's inthe accident. It will be seen that the newly juries is the evidence given by Dr. Eckman discovered evidence relates entirely to the on the trial for false swearing, which it is residence of the plaintiff during the fall of claimed is contradictory of his evidence givthe year preceding the accident. Plaintiff's en in this case. In this connection it is inown affidavit shows merely that she had in- sisted that his evidence in this case was to formed her attorney "that she had lived in the effect that plaintiff's injuries were causCovington, Kentucky, for several months be- ed by trauma, while his evidence in the crimfore the accident for which she brought suit inal case tends to show that it was the reagainst the street railway company." This sult of a diseased condition. We have carestatement may be true, and yet her residence fully read his evidence on the two trials, have been elsewhere at the time of the ap- and, when considered as a whole, it is doubtpointment of Mrs. Winston as her guardian ful if his evidence in the criminal case conin June, 1908. None of the affidavits show tradicts his evidence in this case to the explaintiff's actual residence at that time. As tent claimed by counsel for the defendant. a matter of fact, plaintiff may have resided But even if this be the case, the effect of the in Covington for several months prior to evidence is simply to show that the witness the accident, and she may have resided there on the trial of the criminal case made statein the fall of 1907; yet this evidence is only ments in conflict with his testimony in this a circumstance tending to establish that she case. Therefore, if the evidence now offered actually lived there in June, 1908. It is the had been produced on the trial, it would still invariable rule not to grant a new trial on be an open question whether the witness the ground of newly discovered evidence un- swore to the truth on the first trial or on the less the evidence be of a decisive character trial of the case for false swearing. Maniand such as to render a different result rea- festly the evidence now offered would be sonably certain. Hays v. Davis, 46 S. W. admissible only for the purpose of impeach212, 20 Ky. Law Rep. 342; C. & O. Ry. Co. ing the witness. It is the general rule that v. Friel, 39 S. W. 704, 19 Ky. Law Rep. 152. newly discovered evidence which tends only The rule has also been stated as follows: to discredit or impeach a witness does not "Newly discovered evidence not of a con-authorize a new trial. L. & N. R. R. Co. v. clusive or preponderating character does not Tinkham's Adm'x, 44 S. W. 439, 19 Ky. Law authorize a new trial." Shely v. Shely, 47 S. Rep. 1784; Louisville Insurance Co. v. Hoff |