143 Ky. 63 | Ky. Ct. App. | 1911
Opinion of the Court by
Reversing.
Appellant leased to appellee a small house in Winchester, Kentucky, upon terms set out in the lease which is as follows:
“This is to witness that Ike Gary has this day leased to Ameen Mire a small house and lot on Washington Street in Winchester, Kentucky, adjoining the 0. & 0. railroad right of way and Cliff Green, now used as a barber shop, for one year from February 1, 1909, to February 1, 1910, with the privilege of renting same for ten years on the part of said renter, on the following terms and conditions: Said Ameen Mire promises to pay said Cary for said premises sixty dollars a year, thirty dollars to be paid on February 1, 1909, and thirty dollars to be paid every six months thereafter in advance and on failure to pay this at the beginning of every six months or within thirty days of such time when this lease shall ejind and the renter shall surrender possession of said premises to said Cary without further notice — Cary to do no improvements. .Ameen Mire may improve said place at his own expense.”
Both parties signed this contract. Appellee paid $10.00 of the rent in advance, improved the house by erecting several rooms and sub-leased it to Rogers and Denny for $15.00 a month, and went to the City of Lexington to live. On August 9th he paid appellant $20.00 more on the rent, and also $20.00 on September 11th. On .September 7th appellant made the necessary affidavit and caused a writ of forcible entry and detainer to issue against appellee, which fixed September 14th as the ■date of the trial. The writ was served on appellee in the city of Lexington September. 11th. He paid no attention to the time of the trial and a default judgment was entered against him. On September 20th the justice issued in behalf of Cary, a writ of restitution of the property which was executed and Cary put in possession of the property, and he rented it to Rogers and Denny. Eight days afterwards, appellee filed a petition
Conceding that the opinion of this court in the case of Swanson v. Smith, 25 Ky. L. R., 1260, 77 S. W., 700, does not bar appellee from maintaining a petition for a new trial in a proceeding like this, which we do not decide, the pleadings of appellant are not sufficient to authorize the court to set the judgment aside. When one files a petition relying upon fraud as a basis of his action, he must allege and specify the acts constituting the alleged fraud. (Gray v. Gregory, 140 Ky., 266.)
For these reasons, the judgment of the lower court is reversed and remanded for further proceedings consistent herewith.