197 Ky. 589 | Ky. Ct. App. | 1923
Opinion op the Court by
Affirming.
This equity action, filed by appellee, J. Arthur Collins, plaintiff below, against appellants, defendants below, sought the recovery of a judgment on described notes executed by appellant and defendant, (George W. Hughes, to plaintiff as deferred payments on a tract of land in Marion county theretofore sold by plaintiff to defendant and upon which a lien was retained to secure the deferred payments. The answer defended upon the ground that the title conveyed by plaintiff to defendant was defective and a rescission was sought, although the title was warranted in the deed and defendant was in peaceable possession of the land and there was no allegation that plaintiff was insolvent, or a nonresident of the state, or that he fraudulently misrepresented the title. It was furthermore alleged as a defense, in substance, that plaintiff represented that the land Avas suitable for a dairy farm and that he concealed the fact that it was infected with Avild onions, which, as alleged, rendered it unsuitable for any kind of agriculture, and especially so as a dairy farm. A demurrer was sustained to the answer and defendants declining to plead further a judgment was rendered in favor of plaintiff for the amount of the notes and for the enforcement of an adjudged lien upon the land, and complaining of it defendants have appealed.
If it were true that the title conveyed by plaintiff Avas imperfect then this court has held in numerous cases that defendant, holding by warranty deed, and in peaceable possession, may not defend this character ‘ of action therefor, unless plaintiff was’ either insolvent, a nonresi
In the case of Ison v. Sanders, 163 Ky. 605, the rule applied by this court is thus stated: “In the absence of fraud, insolvency or nonresidence of the vendor, a vendee in peaceable possession of the granted premises under a deed containing a covenant of general warranty is not entitled to a rescission of the contract when sued for the purchase money, although the vendor may have represented the title as perfect, when in fact it was not. In such a case the vendee must pay the purchase money and rely upon the covenant of general warranty in case of an eviction. Simpson v. Hawkins, 1 Dana 303; English v. Thomasson, 82 Ky. 283.” In the English case, referred to in the excerpt, the right to a rescission in such a case is denied “although the vendor may, at the time of the sale, have represented his title as perfect when in fact it was not so; and that in such a case the vendee must pay the money and rely upon a covenant of warranty in case of an eviction.” Other cases to the same effect are Smith v. Jones, 97 Ky. 670; Joiner v. Trail, 27 Ky. L. R. 844, 86 S. W. 980; Abner v. York, 19 Ky. L. R. 643, and Trumbo v. Lockridge, 4 Bush 415.
If, however, the rule of practice were otherwise, the defense relied on would not be available in this case, since plaintiff’s title was not defective, as alleged. The land was conveyed to plaintiff by W. H. Purdy and wife on December 4,1917, and it was conveyed to Mrs. Purdy by her grandfather, R. 0. Daniel, on April 30, 1909. In the caption of that deed Mrs. Purdy was named as “party of the'second part.” In the granting clause the conveyance is made “unto said Edna B. Daniel (who afterwards married W. H. Purdy) my said granddaughter and her bodily heirs and issue of her body the following described real estate,” etc. In the habendum clause of the same deed it is said: “ To have and to hold unto the said Edna B. Daniel and her bodily heirs and heirs of her body forever with covenant of general warranty, subject, however, to the following conditions.” The grantor then provided that if his granddaughter died “without bodily heirs or issue of her body and her sister Cettie E. Putnam should survive said Edna B. Daniel then the aforesaid property shall hereby pass to and become the property of Cettie E, Putnam,”
It appears that the beneficiary of the limitation over, Mrs. Putnam, conveyed to her sister, Mrs. Purdy, by quit claim deed, all of her interest in the land and her deed operated to destroy the defeasance clause and to perfect the title in Mrs. Purdy. We, therefore, conclude that the alleged defect in plaintiff’s title did not exist.
The attempted defense relating to the infection of the farm with wild onions is not discussed in brief of counsel and seems to have been abandoned on this appeal. Whether false and fraudulent representation by the vendor, made under proper conditions, as to the quality of the land for specific purposes, would be a meritorious defense it is not necessary to determine, since we are satisfied that the allegations of the answer attempting to rely thereon were insufficient for the purpose. It was nowhere alleged in the answer that plaintiff knew that defendant was purchasing the farm for dairy purposes, nor, even that defendant was purchasing it for such purposes. Neither is it alleged that defendant would not have purchased the farm had he known of such defects, and it is not even alleged that any representation was fraudulently made by plaintiffs. The substance of the allegation is, that plaintiff represented the farm to be suitable for dairy purposes, when in fact it was not because of the existence of the wild onions concerning which defandant was ignorant, and that it was practically impossible for him to discover the fact. It is not alleged that on account thereof defendant was prevented from, or sustained damages as a result of, using the farm for any purpose. Pleadings are construed more strongly against the pleader, which rule does not require the court to infer or imply necessary allegations to constitute a cause of action or defense.
We, therefore, conclude that whatever merit, if any, such facts might.possess as a defense in an action of this