103 Ky. 710 | Ky. Ct. App. | 1898
delivered the opinion op the court.
Appellant lloty and appellee Taylor entered into a written contract in March, 1893, reciting that Doty had, on that day, traded to Taylor three lots of land in Lexington, together with certain stock in the building and loan association, for a hundred acres of land in Owen county, it being stipulated that Taylor was to assume the loans on the building and loan association stock. By an additional clause of the contract it was recited “That the party of the second part (Taylor) also trades to the party of the iirst (Doty) the following personalty:” — naming certain live stock, farming implements and farm products —concluding: “We each agree to give the other a general warranty deed to the above described property; possession given of the property this day and date,” etc. Taylor conveyed to Doty the Owen county farm and delivered pos
Doty and wife^failed to answer, and judgment was rendered against them by default. The association was adjudged a lien upon the stock, as well as a lien upon the Fifth street lot. It was adjudged to bé indivisible, and a sale ordered, first, of the stock, then, if necessary, of the lot. A sale was had of the stock and the Fifth street lot, and the association became the purchaser of the lot. On motion of Hardin and Taylor, the sale of the lot was set aside, upon condition of their paying off the entire judgment in favor of the building association against Doty.
A second judgment was rendered, holding that the deed irom Hardin and wife to Doty was a mortgage, and adjudging that, upon the payment by Hardin of the entire judgment in favor of the association against Doty, said deed should* be null and void, and the commissioner should re-convey the title to the lot to Hardin, on behalf of Doty and wife, which was accordingly done.
It was subsequently adjudged that Taylor should recover of Doty and wife the sum of $391; that that amount was part of the purchase price agreed to be paid for the Owen county land; and, to secure it, Taylor was adjudged a lien upon .such land, and sale ordered of so much thereof as might be necessary to discharge the debt. Sale thereof was duly made by the commissioner, the entire property not bringing the. amount of the debt. Doty excepted to the report of sale, but no bill of exceptions was filed of the
Mrs. Doty entered her appearance for the purpose only of moving to set aside the judgments entered, so far as her interests were affected, upon the ground that process on the petition or either of the cross petitions was never served upon her. Doty’s exceptions and his wife’s motion were overruled, and they have appealed to this court.
On behalf of appellant it is contended, that the lot on Fifth street in Lexington being a part of the consideration for the purchase, not only of the Owen county farm, but of the personalty as well, the contract being for the realty and personalty in gross, without any price fixed for either of them separately, either by the contract or the pleadings, a vendor’s lien can not exist upon the realty for any sum which is a part of the purchase price of both the realty and the personalty in gross. It is also objected that, by the judgment, he was given a lien not only for the difference between tbe value of the Fifth street lot and the incumbrance upon it, but for the rents thereof between the date of the contract by which the trade was made and the time of filing the cross-petition. But it is evident that the judgment was only for the difference between the value of the property and the incumbrance thereon to the building association, with interest.
The basis of counsel’s former contention is correctly stated. By the contract in question, fairly construed undoubtedly it was agreed to trade the three Lexington lots in gross for the Owen county farm, farming implements, farm products and live stock in gross, without fix
It is earnestly insisted that the purchase price being the purchase price for both the farm and the personalty, no lien can arise upon the land for any part of the purchase price, because it is the purchase price in gross of both the land and the personalty. A number of authorities are cited as sustaining this proposition, as well as in support of the contention that no vendor’s lien can exist to secure an uncertain or unliquidated demand.
■Without going through the authorities in detail cited in support of these contentions, we may say, that the questions seem to, have been decided otherwise by this court, and, as we think, manifestly upon equitable principles. There is no intervening equity of third persons to be considered. It is a question simply between vendor and vendee.
This record discloses the transfer of a farm and the personalty upon it for a consideration agreed to be paid in other lands. A part of this consideration has been paid. The value of the balance due can be, and has been, judicially ascertained. And the question presented is, whether that part of the property sold, which the court can reach, shall be subjected to the payment of the purchase price remaining unpaid, in a proceeding in which the vendor’s right to payment has been adjudged; or, whether he shall be- compelled to await the result of process of execution, or to bring an attachment suit in a court of another county.
The statute (Kentucky Statutes, section 2858) provides that the grantor shall not have a lien for unpaid purchase
By clear implication of the statute as between vendor and vendee, a lien exists upon the land sold for the purchase price of the land; and it does not seem to be seriously contended that if it appeared, either from the contract or extrinsic evidence, what price in the trade was put upon the realty and what upon the personalty sold by Taylor to Doty, a lien would not exist upon the land for that proportion of the unpaid purchase money which was applicable to the sale of the land. We might suggest that, in such a case, no application having been made of the partial payment of the consideration of the two varieties of property sold, equity would make an application of the payment for the parties, and the consideration actually paid would be applied to extinguishing the obligation for the personalty. But we think it unnecessary to resort to equitable application of payments in this case.
Doty obtained the title and possession of certain realty and personalty by one transaction, one contract, for one consideration. A part of the consideration remains. unpaid. What has become of the personalty thus sold does not appear in this record. Manifestly, personal property
Said the New York court in Warren v. Fenn (28 Barb., 334), “It has become one of the best established principles of natural equity that estates are to be regarded as unconscientiously obtained when the consideration is not paid.” Again in Fisk v. Potter (2 Abb. App. Dec., 138), the court said of a vendor’s lien: “Its existence depends upon and is controlled by no well-settled rules, but on the contrary the existence of the lien is generally made to depend upon the peculiar state of facts and circumstances sunounding the particular case; that is, whether or not a case of natural equity is established.” In 9 R., 747, Thacker v. Booth, Judge Holt delivering the opinion of the
We think it is proper to treat this transaction as one saleand,assumingfor the purpose,of argument that no lien exists upon the personalty, even as between vendor and vendee, after possession has been parted with, we see nothing inequitable in subjecting that part of the property sold, which the court can reach, to a vendor’s lien for the unpaid purchase money due upon all the property sold in the same transaction.
In the case of Davis v. Page (17 R., 622), this court, in an opinion by Judge Guffy, enforced as between the parties thereto a lien retained in an unrecorded title bond, executed upon a sale of both realty and personalty. (Clark v. Curtis, 11 Leigh (Va.), 559.) And as to the question whether a vendor’s lien can , exist for an unliquidated claim — as for breach of contract for personal services to
Counsel himself states that, in his view, a vendor’s lien is a creature of equity, and that the equity is to be decided as to each case upon its peculiar facts. The peculiar facts of this case are, that Doty was in possession of real and personal property for which he had not paid all the consideration. Having, as we think, incidental jurisdiction of the land, it is manifest equity that the court should subject it to the payment of the entire unpaid purchase money.
And this brings us to the consideration of appellant’s contention that the court had no jurisdiction to sell the Owen county land, it being situate in another county.
Upon this contention counsel cites the case of Webb v. Wright (1 Bush, 107). That case was again before the court in 2 Bush, page 126, on which appeal Judge Williams delivering the opinion of the court held, that the court having jurisdiction of the persons and cause of action in a suit which was, in effect, for the settlement of a partnership, the proceeding in rem for the sale of land in another county attached as an incidental remedy. In Fishback v. Green (87 Ky., 107), in an opinion by Judge Holt, this court held, that, in an action to settle an insolvent estate, the court had jurisdiction to deoree the sale of land Situated in another county than that in which the action was pending. In the case at bar, having jurisdiction of the parties and the original controversy, we think the court had jurisdiction to decree the sale of land in another county as incidental to the original relief sought.
As to Mrs. Doty’s appeal, it is claimed that the officer’s return urns not attacked in a “collateral proceeding.” That, however, is not the langugage of the statute (sec. 3760 Ky. Stat.), which provides that, unless in a direct proceeding against himself or his sureties, no fact officially stated by the officer in respect to a matter about which he is required to make a statement in writing shall be called in question, except upon the allegation of fraud in the party benefited thereby, or mistake on the part of the officer. Thomas v. Ireland, 88 Ky., 581; 2 J. J. M., 400; 3 A. K. M. 302.) Robinson v. Mobley, 1 Bush 106, cited by counsel have been overruled by Long v. Montgomery, 6 Bush, 306. Upon the hearing of Mrs. Doty’s motion, the original rule docket— admitted to be such by her counsel— was produced, and the copy of the return of service read therefrom, with testimony by the plaintiff’s attorney that the summons itself could not be found in the papers and records of the case, aft»'r careful search. We think the evidence of loss sufficient to justify the introduction of the secondary evidence, namely, the rule docket.
For the reasons stated, the judgment is affirmed.
The court delivered the following response to a petition fob REIIEARING OCTOBER 21, 1898:
By petition for rehearing, counsel for appellant urges-that Bryant, etc., v. Mack, etc. (19 R., 747,) modifies the-
Petition overruled.