86 S.W.2d 674 | Ky. Ct. App. | 1935
Reversing.
Frank A. Clarke has appealed from a judgment reforming certain purchase-money notes and enforcing them by a sale of the property for which they were given.
The amount of his successful bid was $4,705, of which one-third was to be paid in cash and the balance in two equal payments, one due in one year and the other in two years from that date. Whether these two deferred payments should bear interest or not is this controversy.
A deed dated and acknowledged on July 31, 1931, was executed by the bank conveying this property to Frank A. Clarke, et al., as trustee for the Magoffin Institute, and in that deed there is no mention of interest on these deferred payments. That deed was not delivered for some time, but was held until Mr. Clarke could raise the one-third he was to pay in cash. Later *677 Mr. Clarke made this cash payment and executed notes for the remaining payments, which notes are dated July 31, 1931, and bear interest from maturity. In the early part of 1932 Mr. Clarke began making payments upon the first note, and before it was due had paid $625.
When due date came the bank demanded interest on its note, which Mr. Clarke refused to pay, and he then tendered to the bank the balance due on its note without interest, and it declined to accept it.
The bank has been paid all of its money except this interest, which amounts to $275.90, and it is suggested that interest must be excluded in determining jurisdiction, which is true, ordinarily, when interest is only incidental to the main controversy, but is not true when interest itself is the subject-matter of the controversy. Whitehead v. Brothers Lodge, 71 S.W. 933, 24 Ky. Law Rep. 1633. Only $275.90 is involved, but the bank was attempting to enforce and the court's judgment did enforce a statutory lien given it to secure the payment of this money. See section 2358, Ky. Stats.
Since the evidence was not so clear and convincing as to justify reforming this contract, and the bank has received all that is due it, if the contract be not reformed, it follows the judgment of the trial court is erroneous, therefore it must be reversed. The trial court will set it aside and dismiss the bank's action.
Judgment reversed.