Hagins v. Sewell

| Ky. Ct. App. | Feb 8, 1907

Opinion of the Court by

Judge Nunn

Affirming'.

On the 5th day of March, 1895, the appellee sold and conveyed to the appellants a lot in the town of Jackson, Ky., for $1,500, $1,266.80 cash in hand paid, and lien was retained for the remaining $233.20, dne in four months. The deed contained this further stipulation, to-wit: “In addition to the money consideration aforesaid, the said parties of the second part agree to build within 18 months', upon the lot hereinafter described, a two-story brick building, the stories to be 22 feet high, and the wall above the square to be of proper height in front and rear; the said building to be 60 feet in length, and the wall and cellar wall on the eastern side to be fireproof, and to be so constructed that the party of the first part or his successors can join to it another building of the same height and length, and any conveyance by them shall require their vendee to do likewise.” The money consideration has all been paid; but the appellants have failéd to erect this house as stipulated in the deed. The lot sold to appellants is situated on the corner of Main and Jail streets. The appellee owns, and did at the time of the conveyance, the lot east of and adjoining this lot; and the object of requiring a fireproof wall was for the purpose of allowing him, or any vendee of the lot, to^ use this fireproof wall as a wall of a building that he might erect upon the vacant lot. In September, 1902, appellee instituted this action against appellants, by which he sought to compel them to perform the contract in the erection of the building and to recover damages for the loss sustained from the time they should .have built it under the contract to the time of filing the suit. The appellants answered, making an issue as to the damages claimed, and alleging that they were, willing, and had been willing all the time, to comply with their contract if appellee had demanded it, which he had failed to do, and pleaded the statute of five years’ limitation, against appellee’s claim.

The court tried the case and entered the. following judgment, viz.: “The plaintiff moves to submit this case for judgment on the merits. Defendants moved the court to grant them an issue out of chancery to try the question of damages, and by agreement the case was submitted on each of the said motions; and the court, being sufficiently advised upon the pleadings, proof, and exhibits, is of the opinion, and now adjudges, that the defendants purchased from the plaintiff the lot of land described as follows. ’ ’ Then, describing the lot, it proceeds: “The court is further of the opinion that the defendants have failed to pay any part of the said consideration, except to pay the $1,500. And the court now adjudges that the plaintiff has been, at all times since the 5th day of March, 1895, entitled to a specific performance of said contract and obligation, and that the plaintiff has an enforceable vendor’s lien upon the lot of land herein described for the purpose of enforcing said contract. The court is further of the opinion, and now adjudges, that the defendants construct said building as herein mentioned, and time is given them until the 1st day of October, 1905, to complete same. Should they fail to do so, the court is of the opinion, and so adjudges, that the plaintiff recover of the defendants the value of the building as contracted for to him, which- is $600. So much of the defendants’ motion for an issue out of chancery to try the question of damages resulting to-plaintiff by reason of defendant's’ failure to construct said building within 18 months from the 5th day of March, 1895, to the filing of the plaintiff’s petition, as is independent of the value of said building, which is fixed at $600, is granted, and said issue is awarded them.”

It is conceded by the parties that the court fixed $600 as the costs of the fireproof wall which appellants agreed to erect between theirs and appellee’s lots. Appellee testified that it wo-uld cost that sum to erect it, and introduced a witness, who was a contractor and builder-, who testified that it would cost $800; and appellants testified that they had obtained estimates, from skilled men in contracting and building, showing that it would cost léss than that sum. The appellee also testified that the use of such a wall to his lot was Worth $100 per annum, and, if it had been built, would have largely enhanced the value of his lot. The appellee did not allege or prove that he had lost a sale of his lot by reason of appellants’ failure to erect this wall, nor did he allege or prove that he had intended himself to erect a building on his lot; and we are at a loss to understand how the use of this fire wall would have been of the value of $100 per annum, unless he had a building on his lot. We can understand how the erection of the wall with the .privilege of joining his building would have enhanced the’ value of his lot. ' If appellee is permitted to recover the cost of building this .wall, his loss occasioned by the failure of appellants to construct the wall will be adjusted. We are of the opinion that the court did not err in allowing appellee to recover the cost of erecting the wall; and, should he collect this judgment and fail to erect the wall, and the appellants, or their vendees, should afterwards erect it, as stipulated in the deed, appellee, nor his vendees, should be allowed to join thereto without paying for the privilege. If appellee collects the judgment, and he or his vendee construct the wall, then appellants or their vendee should be permitted to. join their building to it.

The appellants’ plea of limitation cannot avail them, for the reason that the contract was in writing. Accepting the deed, with the consideration named therein, the statute :>of 15 years applies.

The appellants also contend that the lower court had not the power to enforce specific performance and require the appellants to erect the building. As we understand the judgment, the court did not do this. It only fixed the time in which the appellants might perform the contract, so as to save themselves from being compelled to pay the $600 judgment. It was optional with them to perform the contract or pay that amount of money.

The appellants further complain of the action of the court in adjudging a lien upon the lot sold appellants for the payment of the $600. It is true that it was not stipulated in the deed that a lien was retained for the damage sustained by appellee on account of the failure of appellants to perform their obligation; but it was stated in the deed what part of the consideration remained unpaid, which meets the requirements of section 2358 of the Kentucky Statutes of 1903. A lien exists as to the vendee, although it does not appear from the deed, that the purchase money remains unpaid; but in such cases the lien would not exist as against bona fide creditors and purchasers.

In our opinion the judgment of the lower court was an equitable settlement of the matters in litigation between the parties, except the transfer to the ordinary docket for the trial of the issue on the question of damages. As stated, • there was no such issue formed by the pleadings..

For the reasons stated, the judgment of the lower court is affirmed.

Petition for rehearing by appellant overruled.