95 Ky. 261 | Ky. Ct. App. | 1894
delivered the opinion oe the court.
In 1867, Mrs. Mary Bullock, wife of Judge W. E. Bullock, owned- as general estate a lot of ground in the city of Louisville, with the power to dispose of the same by will. Mrs. Bullock and her husband, on the 17th day of April, 1867, made and acknowledged, and had recorded, a contract with the firm of McKee & Cunningham, in substance as follows: They leased to said firm said lot “ for the term of twenty-five years,” commencing the 1st of June, 1867. The firm was to pay therefor three - thousand dollars per annum, payable 'quarterly, being six per cent on the then estimated value of said property, and to pay all taxes assessed on the property. The property, at the option of either party, was to be periodically valued, and the firm was then to pay six per cent per annum on said valuation.' The firm was also to erect upon said lot a stone or brick building of not less than eight thousand dollars in value, which was to be fully completed by the 1st of September, 1867, and to keep the same insured, and the building was to be liable for the rent reserved and all taxes assessed against the property. It was also agreed that “ at the end of the term aforesaid, it shall be optional with the lessors to take the improvements which shall be erected thereon at a valuation to be fixed by referees, . . . payable in four equal installments, a lien being herein created and reserved on said premises for the payment of the same, or to renew the lease for same, on the’ same terms and conditions and stipulations contained herein, for an additional twenty-five years.” It was also agreed that if the lessors should “ renew the lease at the end of the second term of twenty-five years, they should take and pay for said improvements at a valuation
By the terms of the contract of lease, “ the term toas twenty-jive years, beginning from the 1st day of June, 1867.” “At the end of the term aforesaid it was optional with the lessors” to renew the lease, upon the same terms and conditions, for an additional twenty-five years, and if the-option to “renew” was exercised, the terms of payment for the improvements were different from the terms of payment for tlie improvements in case the lessors elected to take them at the end of the first twenty-five years. If the language used to express the contract is to
But it is urged that the agreement to take and pay for the improvements Avas not binding on Mrs. Bullock because it Avas collateral to the lease and stood upon the same footing as to its binding force as a covenant of Avarranty in a married Avoman’s deed, Avhich has been held by this court not to bind her. Also that the lien reserved in the lease on the premises to secure the payment of the improAmments Avas not binding on Mrs. Bullock, because it Avas an obligation to take effect in futuro and not in
But it seems to us that the obligation was not a collateral one, but a direct and positive one to pay for improvements contracted to be put upon her properly and to secure the payment for the improvements by lien upon the property. She had the legal right to sell and convoy the title to her land, or such interest therein as she and her husband might choose; and she and her husband did choose to sell the exclusive right to the land for the term of twenty-five years. She and her husband also agreed with the lessees that they should erect improvements on the property worth not less than eight- thousand dollars, which was to he paid for at a fair vahiation at the end of the term, and a lien was given on the property to secure the payment. Now, here was a direct and positive agreement to pay for the improvempnts to he erected on her property, and a lien reserved to secure the payment. Let us concede, however, for the sake of the argument, that she had no power, by simple contract, to bind her estate for the payment of the improvements. But what is to he done with the lien that she created on her promises to secure the payment? But it is said that she had no power to create the lien for such purpose, because it is not a mortgage, and that she can only create a lien by mortgage. It is a fact that a mortgage is simply a lien created on property to secure the performance of a cei’tain undertaking. It is also a fact that the husband and wife may execute, a mortgage upon her landed estate that will hind it, to secure the performance of his undertaking or
The judgment is affirmed.