by certain admitted facts and circumstances, a different case is presented. In the first place, Alexander Hall and Tipton Hall were brothers, and their relations were so cordial that whenever Tipton would sell his home and move away, Alexander would soon follow him and acquire a new home in the same vicinity. The evidence is uncontradicted that Alexander sold his home on Big Mud Creek for $225 cash and a yoke of oxen valued at $75.00, and not only that the trade was made by Tipton, but that the entire consideration was paid to him. The circumstances plainly indicate that Alexander's purpose in selling his home was to acquire a new home near his brother. The land which he sold was of about the same value as the land in controversy. Tipton claims that he merely gave Alex a right to occupy the land for his lifetime. While claiming that he returned to Alex the cash consideration which he had received for the sale of Alex's farm on Big Mud Creek, he admits that he retained the oxen and says that Alex told him to just keep the oxen. In other words, he claims the oxen as a gift from Alex. In this statement he is not corroborated by a single witness or a single circumstance. It is highly improbable that Alex would have disposed of his own home and not used the proceeds as he had done before, for the purpose of buying a new home, and that a person in his poor circumstances would have given the yoke of oxen to his brother who was much better off than he was. Furthermore, it is difficult to believe that Tipton Hall would have sold off two pieces of land adjoining the land in question, and have described certain boundary lines as running to or parallel with the line of Alexander Hall, if, as a matter of fact, Alexander Hall owned no land in that vicinity, and his lines were not fixed in some way other than by an oral agreement permitting him to occupy the land during his lifetime. Indeed, the natural and reasonable conclusion to be deduced from all these circumstances is that Alexander Hall sold his farm on Big Mud Creek, and that in consideration of the proceeds, Tipton Hall conveyed to him the land in question. But in addition to these persuasive circumstances, we have the positive evidence of Mrs. Hall that the deed was executed, and though her evidence is somewhat weakened by the fact that she could not read, this defect is supplied by the fact that she tied a string around the deed and the deed was afterwards read to her by another, which statement is corroborated by the testimony of her son. Further more, it is shown by one witness after another, some of whom, at least, were entirely disinterested, that Tipton Hall spoke of having made a deed to Alex and referred to the land as belonging to Alex. Opposed to this testimony is the statement of Tipton Hall that he merely gave Alex Hall the right to occupy the land during his lifetime, and that Alex Hall made him a present of the yoke of oxen, accompanied by a similar statement from his wife, and by statements of Tipton Hall's children and others, that Alex said that the land belonged to Tipton and that he had only a life estate therein. On the whole, we conclude that the evidence of the execution and former existence of the deed was sufficient to meet the requirements of the rule, and that the chancellor did not err in giving the relief prayed for. But appellants insist that the petition did not state a cause of action, because it failed to allege the date of the deed, or the time of its execution, and the amount of the consideration. A failure to state the exact time, even when it is material, will not always be a ground of demurrer, if the facts alleged show that the cause of action had accrued before the bringing of the suit. Such a defect should generally be reached by a rule upon the party to make his allegation as to time more definite and certain. Newman on Pleading and Practice, section 218b. If the other allegations in the petition were true, plaintiffs were entitled to a restoration of the deed regardless of its date or the time of its execution. The petition alleged that the deed was executed about fifteen years prior to the filing of the petition. This was sufficient, in the absence of a motion to make more specific. While the petition does not state the amount of the consideration, it does allege that the full purchase price was paid. That being true, the amount of the consideration was not material, and the petition was not bad on demurrer because the amount was not stated. Judgment affirmed. Cree v. The Associates Company. (Decided November 1, 1921.) Appeal from Jefferson Circuit Court Corporations-Real Estate-Right to Hold-Constitution.-Section der penalty of escheat, hold real estate except such as may be proper and necessary for carrying on its business for more than five years, does not apply to a corporation organized for the purpose, and engaged in the business of buying, selling, owning, holding and dealing in real estate. J. J. HANCOCK for appellant. SHACKELFORD MILLER, SHACKELFORD MILLER, JR., and NEVILLE MILLER for appellee. SAMUEL M. WILSON, Amicus Curiae. OPINION OF THE COURT BY JUDGE CLAY—Affirming. The question for decision on this appeal is whether a corporation organized for the purpose of buying, selling, dealing in and holding real estate is prohibited by section 192 of the Constitution from holding real estate for a longer period than five years. The question arises in the following way: The Associates Company was incorporated in the year 1919 for the purpose of engaging in the business of buying, selling, dealing in and holding real estate. It is its purpose to buy acreage property adjacent to and adjoining the city of Louisville, divide the property into building lots and sell same to those desiring to build homes. It also intends to build an apartment house, from five to eight stories, upon land owned by it, and operate and conduct the apartment house for a period of from at least six to eight years as a part of its business. The company's authorized capital stock is $50,000.00, divided into 5,000 shares of the par value of $10.00 each. On November 22, 1919, L. T. Cree subscribed for 100 shares of the stock, which he agreed to pay for at the expiration of sixty days. Having refused to comply with his contract, the company brought suit to collect the subscription. Cree defended on the ground that the company proposed to hold some of its real estate for a longer period than five years, which action on its part would subject the property to escheat and render its stock of no value. A demurrer to the answer was sustained, and the defendant having declined to plead further, judgment was rendered in favor of the company. Defendant appeals. The applicable provision of the Constitution is section 192, which is as follows: "No corporation shall engage in business other than that expressly authorized by its charter, or the law under which it may have been or hereafter may be organized, nor shall it hold any real estate, except such as may be proper and necessary for carrying on its legitimate business, for a longer period than five years, under penalty of escheat." It will be observed that this section imposes on a corporation two restrictions: (1) It shall not engage in business other than that expressly authorized by its charter, or the law under which it may have been or hereafter may be organized. (2) It shall not hold any real estate except such as may be proper or necessary for carrying on its legitimate business for a longer period than five years. It cannot be doubted that, in the absence of a constitutional limitation, the legislature has the power to authorize the formation of a corporation for the purpose of carrying on any legitimate business and to determine what is a legitimate business. Our former constitutions contained no provision limiting the legislative power in this respect and it is apparent that section 192, supra, of our present Constitution contains no such limitation. On the contrary, it recognizes the fact that a corporation may engage in any business authorized by the legislature, and the words, "its legitimate business," in the limitation on the power of a corporation to hold real estate, necessarily mean the business which it is empowered to carry on. From our earliest history the legislature has recognized the buying, selling, owning and dealing in land as a legitimate corporate function, and either by special charters or general law has authorized the organization of numerous corporations for the purpose of carrying on such business. Not only so, but section 538, volume 3, Kentucky Statutes, enacted in the year 1916, authorizes the formation of corporations "for the transaction of any lawful business, or to promote or conduct any legitimate object or purpose, including the buying, selling, holding, dealing in, renting and letting of real estate, under the provisions of, and subject to, the requirements of this article." The only restrictions are those applicable to certain designated corporations which are not involved here. Here we have an express determination by the legislature that the buying, selling, holding, dealing in, renting and letting of real estate is a lawful business, and one which a corporation may be authorized to transact. Therefore, the case is one where the corporation has been authorized to carry on such business, and the business is legitimate. What, then, is the effect of section 192? It does not restrict altogether the right of a corporation to hold real estate. The only restriction is that it shall not hold any real estate except such as may be proper and necessary for carrying on its legitimate business for a longer period than five years. Here, the sole business of the corporation is the buying, selling, dealing in and holding of real estate. It cannot be said that the holding of real estate is not necessary and proper for carrying on the legitimate business of a corporation, when the holding of real estate is the very business in which it is engaged and it cannot carry on its business without holding real estate. We, therefore, conclude that section 192 of the Constitution does not apply to a corporation organized for the purpose, and engaged in the business of buying, selling, owning, holding and dealing in real estate. Judgment affirmed. A. D. Sisk's Admr. v. W. H. Sisk's Admr. (Decided November 1, 1921.) Appeal from Hopkins Circuit Court. 1. Bills and Notes-Action Upon Lost Note-Non Est Factum.-On the trial of an action upon a lost note brought by the payee's administrator against the payor's administrator and to which the answer of the latter interposed the plea of non est factum, it was competent for each of two heirs at law and distributees of the estate of the deceased payee to merely testify that he saw the note in question in the safe of the latter three or four years before the trial. Such evidence did not come within the inhibitions of sec. 606, subsec. 7, Civil Code, as it involved "no verbal statement of any transaction with, or any act done, or omitted to be done" by either decedent. 2. 3. Bills and Notes-Limitation of Actions-Action Upon Lost Note. -Evidence upon which the trial court in this action adjudged the plaintiff administrator entitled to recover of the defendant administrator the amount of the lost note in question, and, also, that of a second note to which was pleaded the statute of limitations, examined, and held sufficient, as a whole, to support the judgment. Appeal and Error-Finding of Chancellor.-Where, on the trial of an action at law, a jury is waived by the parties and the issues of law and fact are tried and determined by the court, the latter's findings of fact will, on appeal, be given by the Court of Appeals |