179 Ky. 1 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming in part and reversing in part.
On November 18, 1913, defendant executed his promissory note to plaintiff, agreeing to pay him on May 1, 1915, the sum of $3,650.00, and to secure it the defendant and his wife executed a mortgage on the one-half undivided interest of the defendant in and to all of the Meade county land, including the Grahamton mill tract. After the note became due, Bridgeford sold his one-half undivided interest in all the Meade county land to one Hubbard,- who in turn sold it to plaintiff, whereby he became a joint owner of one-half of the land with the defendant owning the other half. In the meantime Bridgeford and the defendant had neglected to pay the taxes assessed against the land and for several years it was sold by the sheriff of Meade county under a levy made upon it to collect the taxes, and at the sales the plaintiff became the purchaser, and for at least some of those sales the sheriff in due time executed to plaintiff a deed, after, as it is insisted, fully complying with the law in regard to such matters. This suit was filed on December 27, 1915, seeking the collection of the note before mentioned and an enforcement of the mortgage lien upon the land, as well as a lien for the defendant’s portion of the taxes which plaintiff had paid. During the progress of the cause taxes for other years accrued, which were likewise paid by the plaintiff, by him purchasing
A number of matters are relied upon by defendant and his wife in their defense, the chief of which was that defendant had not received his proportion of rents under the lease .to which he was entitled. It was also insisted by defendant that the lands could not be divided without materially impairing their value, and since plaintiff had become a joint owner a sale of the land in its entirety was insisted upon by defendant. With the condition of the accounts between plaintiff and defendant unsettled and undetermined, and by agreement of parties, the court at its April, 1916, term ordered a sale of all of the property for the two purposes of division and the enforcement of the liens upon defendant’s one-half. In due time the land was sold by the master commissioner as directed by the judgment, and the plaintiff became the purchaser at the price of $9,976.00, it having been appraised at $8,400.00. Bonds were executed for the purchase price and the sale was reported and confirmed without exceptions. After the sale plaintiff filed a pleading styled “An Amended Beply and Amended Petition” in which, among other things, he claimed the right to collect from defendant his proportion of the sum which Bridgeford and himself had agreed to pay under the second clause of the lease which we have hereinbefore quoted, and which sum so claimed to be due from the defendant was $1,287.82, being one-half of the amount which Bridgeford and defendant agreed to pay under the clause of the lease referred to, and it was alleged in that pleading that defendant’s portion of the rent which he claimed had not been paid had been credited on that sum, which plaintiff asked the court to ap- • prove and to give him judgment for the balance due from defendant under the second clause of the lease.
The right of plaintiff to collect from defendant in this or any other manner the item of $1,287.82 was, in the court below and is here, strenuously resisted, upon the ground that it was a lien upon the land, (the lease having been acknowledged and recorded) and that plain
The briefs of counsel, while not so voluminous, contain a discussion of multiplied questions, many, and indeed the greater portion of which, according to our view, are not relevant to the question presented. We shall consider such of them as we think relate to a correct determination of the controversy, omitting those which we deem foreign thereto.
The argument of counsel for defendant is that the item of $1,287.82, with which defendant was charged in the judgment, is an agreement by the lessor to pay for improvements put upon the premises by the lessee and in law becomes a lien upon the premises, and that defendant at the timé of his purchase had actual knowledge of such lien, to say nothing of constructive knowledge arising from the recording of the lease, and that his purchase was- therefore “subject to” this alleged lien; that he took thé property under his purchase burdened with that lien and he necessarily fixed .his bid with that amount in contemplation, therefore correspondingly reduced his bid resulting in defendant’s property discharging it, and to again require him to pay this it would constitute double payment. Another insistence is that if the first position be incorrect then the item complained of was not due at the time of the rendition of the judgment, which was on January 24,1917, and would not be due until the first of May following, at which time the extension privilege of the lease for two years would expire, and the disputed item, if payable at all, would become due.
Plaintiff’s counsel rely upon these cases from this court: Willis v. Terry, 15 Ky. Law Rep. 753; Holtzclaw v. Craynor, 114 S. W. R. 721, and Gray v. Cornwall, 95 Ky. 566, as sustaining his position that the purchase in this case was made subject to the lease item in controversy. Without encumbering this opinion with a recitation of the facts of those cases or a discussion of the legal principles announced in the opinions, it is sufficient to say that we do not find them applicable under the facts of this case. For instance, in the Terry case referred to the sale of the land was made by the sheriff under the levy of an execution, which levy was made subject to. a prior mortgage, and the sale was made with the same reservation. In the deed which the sheriff executed it was stated: “Less the one-fifteenth part of said undivided interest on which Laura Willis has a mortgage executed to her by Frank Willis on November 19, 1883, and of record in the Barren county clerk’s office, book No. 12, page 314”; and the court adjudged that the purchaser bought the land encumbered with the mortgage debt, and to this' extent he knowingly purchased an incomplete title and that the price was correspondingly^ fixed, saying: “Terry purchased this land at $90.87 in the year 1886, and subject to this mortgage, that was recognized by both himself and the sheriff as being a lien superior in date to that of the levy. . . The appellee (Terry) recognized it (mortgage) as existing and was entitled to no more than he purchased.”
The opinion in that case announces a wholesome principle the application of which will be readily invoked by courts of equity in administering justice between litigants when the facts authorize it; but clearly, as we have seen, there is no room for such application under the facts of this case. Illustrating our position, suppose the land here sold under the decree of court .had been purchased at a private sale, as was the interest
This brings us to the second contention, that the item which defendant is contesting was not due until May 1, 1917. This under adjudicated cases, as well as sound principles, is far more meritorious that the one just considered. In support of the contention we are referred to the cases from this court of Miller v. Albany Lodge, 168 Ky. 755; Brown v. Samuels, 24 Ky. Law. Rep. 1216, and Grant v. Collins, 157 Ky. 36. The doctrine of these cases is that there is a distinction in the law between a covenant in a lease to renew it and a provision therein conferring upon the lessee the privilege of extending his term. It is pointed out in those opinions that in the case of a covenant for renewal in order for the renewal to be effected some positive act on the part of the parties, such as notice by the lessee to the lessor, or an actual renewing of the lease, must occur; whereas, in cases giving the privilege of extension to the lessee.no such positive act is essential, but a mere holding, over by him is sufficient to continue the lease.
The position of this court upon this question is well stated in the following excerpt from the case of Brown v. Samuels, supra:
“It will be observed that by this instrument the premises were leased to Brown for “the period of five years, with the privilege of five years more.’ In the Amer. & Eng. Ency. of Law, volume 18, page 693, 2nd edition, it is said: ‘A provision in a lease giving to the lessee the
“The reason for .this rule is that the additional time is not a new demise, but a continuation of the old one. ’ ’ •
The other cases referred to state the rule equally strong, and indeed there is but little if any dissent therefrom in any of the authorities. However, it is .ocognized that this rule of interpretation, as in other cases, is to be governed by the intention of the parties as- gathered from the instrument, and,notwithstanding the-rule, if it should appear from the language emplo) d that the parties intended that a different effect should be given their lease contract, the courts will govern themselves accordingly. Ky. Lumber Co. v. Newell, 32 Ky. Law Rep. 336, and Grant v. Collins, supra., There is nothing in the lease here involved indicating- any intention on the part of the parties thereto to take it out of the rule or that it should be construed otherwise than in accordance therewith. Neither are we convinced that the authorities relied upon by appellee’s counsel conflict with the cases, supra. Chief among them is the one from 24 Cyc. 102.1, to this effect: “The taking of a new lease will not defeat a cause of action already accrued under the old lease, or destroy any right or privilege reserved to either party at the expiration of the original term, and the renewal lease executed in pursuance of the covenant to renew will not satisfy any of the covenants of the old lease, except the covenant to renew.”
In the first place the author of the work from winch the quotation is made is treating of renewal under a covenant to renew contained in the old one, which, under the cases, supra, from this- court is a new lease and not necessarily governed by stipulations in the old one. Again, the rule laid down in the .quotation “begs the question” here involved because it assumes that the “cause of action” is one which “accrued under the old lease,” which assumption is the very question involved in this case. If, as stated in the opinion in the case of
We are therefore constrained to hold that the item of $1,287.82 did not mature until May 1, 1917, which was after the rendition of the judgment. It might have been proper for the court to charge the defendant with the amount and order it to be paid when it matured; but, however this may be, defendant should not have been charged with interest thereon for the two years intervening between May 1,1915, and May 1,1917, and to this extent the judgment is erroneous.
Wherefore, the judgment is reversed as to the errors pointed out, but in all other respects it is affirmed. Upon a return of the case the state of accounts between plaintiff and defendant will be calculated as herein directed, and a judgment will be rendered in favor of plaintiff accordingly.