44 Ky. 45 | Ky. Ct. App. | 1844
delivered the opinion of the Court.
In May, 1837, A. K. Sewell, guardian of G. W. Camden and Elizabeth Camden, guardian of J. and W. (3am-den, and widow of George S. Camden, of whom the three wards were the heirs, leased to one Dupont, for ten years, and upon a ground rent of $200, payable quarterly, a lot of vacant ground in the city of Louisville, fronting 35 feet on Jefferson, and 105 feet on Seventh Cross street, which was undivided, and in which the dower of said widow had not been assigned, with covenants on the part of the lessee, to erect thereon certain described buildings, to cost $3500, &e., and with covenant on the part of the lessors, that he and his assigns should enjoy, &e. during the term ; and should at its expiration be paid the value of the improvements at that time, or should be permitted to continue in the occupation of the premises until such value should be paid by the reasonable rent, the value of the improvements and of the rent, to' be estimated in a mode prescribed in the instrument. In July, 1838, the buildings having been erected as prescribed in the lease, the mechanics and materials-men, who had claims on account of it, filed their bill in the Louis
Mrs. Camden, by way of cross bill, prays that the sale from Graham and Butler to her, may be rescinded, alledging in substance, that she was ignorant of the price at which they had purchased; that they represented the property to be worth $3000; that confiding in their friendship, and their supposed interest in her affairs; in their representations that she was able, and they would make her
George S. Camden having arrived at full age, denies the power of the guardian to make the lease, and repudiates it, unless Graham and Butler will rescind their sale to his step-mother, Mrs. Camden, in which case he says he will confirm it. And J.[and W. Camden, the children and wards of Mrs. E. Camden, who are still infants, answer by their guardian ad litem, also denying the power of their guardians to make the lease. There are no depositions except one, relating exclusively to the assignment of the note, and the character and'title of the Chatoque ‘Bank.
On final hearing, the Chancellor being of opinion that the guardians exceeded their authority in making the •lease, pronounced it void. And being also of opinion that the sale from Graham and Butler to Mrs. Camden, was unfair, rescinded that contract on her cross bill, and dismissing the bill, and prayers for a sale under the lien reserved, decreed Graham and Butler to pay the Chatoque Bank the amout of the note held by them.
We cannot concur in the grounds, or the result of this decree. Mrs. Camden had her dower interest in the lot, being one third, during her life, and she and Sewell had a right to control and manage the interests of their wards during their respective minorities, unless for gross misbehavior or mismanagement, the disposition of their wards’ estate, made by them, should be set aside. The lease does not exhibit in its terms, any evidence of such mismanagement. On the contrary, as the lot in its unimproved condition, would be unprofitable for use, and could bring in no income, an arrangement by which a reasonable ground rent should be secured without any unreasonable
In the most unfavorable aspect then, the lease was not only not void, but to the extent above indicated, was available, as securing an interest in the land. And, as far as Mrs. Camden is concerned, its value might properly be estimated as if it were to all intents, and in all its provisions, valid and effectual. And there being no evidence that $3000 was more than its value, thus considered, when Mrs. Camden purchased it from Graham and Butler, and no evidence of any fraud, imposition, undue advantage, or inequality in that transaction, we perceive no sufficient grounds for setting it aside, and especially after Mrs. Camden had occupied for a considerable portion of the term, and less than half of it remained. She had guarantied in effect, the sufficiency of the lease for the whole term, and a fair remuneration for the improvements afterwards. The real change in her condition, affected by her purchase, if she had completed it, is that the extent of her liability on this guaranty is limited, and the liability virtually merged, while she is to occupy the lot and enjoy the improvements as long as the lease is effectual to secure these advantages; and the question of ultimate remuneration will be loft between her and the heir
It follows from these views, that as there was a valuable and sufficient subsisting consideration for the notes of Mrs. Camden to Graham and Butler, and as the sale ought not to be rescinded, the Chatoque Bank was not entitled to a decree against them as assignors, on the ground of a want or failure of consideration of the note assigned, and having failed to show due diligence by suit at law against the obligor, they are not entitled to such decree, on the ordinary grounds of liability between assignor and assignee. But as there was, and still is, a valuable and subsisting interest under the lease, on which the lien reserved in the deed of Graham and Butler to Mrs. Camden, attached, and to which it still adheres, we think the Bank and Graham and Butler show an equity for the enforcement of the lien, by a sale of that interest.
But as the holder of the third note executed by Mrs. Camden to Graham and Butler, for the purchase of the lease, is entitled to share ratably in the proceeds of such sale, and he has not been brought before the Court, the suit was not and is not in-a state of preparation for decreeing the sale; and the most that can now be done, upon reversing the decree which has been rendered, is to ascertain the interest which is subject to the lien, and to direct the steps necessary for a fair sale.
First, then, it will be proper to divide the lot as if it were unimproved, assigning one third thereof in value as the dower of Mrs. Camden, and dividing the residue equally according to value, between the three heirs, laying
Second. Assuming that the lease was advantageous to the wards, and being of opinion that the lessee having placed improvements on the lot, with the sanction and by authority of their guardians, does not occupy the condition of a tortious or officious intermedler with their estatate, we think it would be inequitable for the heirs to enter upon the land and take the improvements, after having also received advantage from them in the ground rent reserved, without making a fair remuneration to the extent that their land has been actually and beneficially ameliorated. To this extent, therefore, George W. Camden, should he elect to enter on his portion of the lot, should be decreed to make remuneration, which should go as the proceeds of the lien to the discharge of the notes of Mrs. Camden to Graham and Butler. And to the extent that the interest in said lot shall be sold, the purchaser should acquire a right to a similar remuneration upon the termination of the lease as to any part, either by lapse of time or by the entry of either or all of the heirs. But the heirs, and each of them, have the right of making such remuneration, by permitting a further occupation of the premises, according to the provisions of the lease.
Wherefore, the decree is reversed, and the cause remanded for further proceedings consistent with this opinion.