158 Ky. 396 | Ky. Ct. App. | 1914
Opinion of the Court by
Affirming on Original Appeal and Reversing on Cross Appeal.
Lena Lancaster Cambrón, wife of D. C. Cambrón, acquired title to 91 acres of land lying in Daviess County, Kentucky, in the year 1892. She died prior to the enactment of the Weissinger Act in 1894, leaving surviving her, her husband, D. C. Cambrón, and an infant son Thomas Cambrón. The title to the land vested in the infant son, Thomas Cambrón, subject to the life estate of D. C. Cambrón. Thomas Cambrón died in the year 1894, and left surviving him as his only heir at law his maternal grandmother, Mary Lancaster. Mary Lancaster died and left surviving her as her only heirs at law J. R. Lancaster, Jr., Miles Lancaster, Addie Mattingly,. Susan Gough, Lillie Elder, Susan Lancaster, James Lancaster, Eva Mulligan, Martin Lancaster and Charles Lancaster, who became the owners of the 91 acres of land subject to the life estate of D. C. Cambrón.
On August 25, 1905, D. C. Cambrón conveyed to his nephew, Leslie Cambrón, his life estate in the 91 acres of land by deed recorded .in the Daviess County Clerk’s office in Deed Book No. 79 at page 416. Some time in
On December 5,1912, plaintiff, D. C. Cambrón brought this action against J. R. Lancaster, Jr., to recover the agreed consideration. Lancaster defended on the ground that plaintiff had conveyed his life interest to Leslie Cambrón for the fraudulent purpose of cheating, hindering and delaying his creditors, and that at the time he made the purchase from plaintiff, plaintiff had no right title or interest in or to the land, and therefore nothing to sell or convey. As another ground of defense, Lancaster also pleaded that the contemplated purchase by him from plaintiff was in fact abandoned, and that during the summer of 1911, plaintiff agreed to take $1,500 for his interest in the land. It was also pleaded that the consideration for this latter agreement was the fact that between the date when plaintiff’s original proposition of sale was accepted, and the date of the subsequent sale, plaintiff had collected the rent of $350 a year due on the premises, and that during that time the premises had been badly damaged by plaintiff’s tenant. The allegations of the answer were denied by reply. The case was tried by the court without the intervention of a jury.
The court found as a matter of fact that D. C. Cambrón owned a life estate in the 91 acres of land, and that the land was worth about $7,000. He also found that defendant purchased plaintiff’s life estate on November 26, 1910, for the sum of $2,500, of which $1,500 was to be paid January 1, 1911, and $1,000 of which was to be
Prom the foregoing findings of fact the court concluded that the purchase price should be abated to the extent of $4.00. Plaintiff was thereupon given judgment for $1,100, with interest from January 1, 1911, and for $1,000, with interest from January 1, 1912. Defendant appeals, and plaintiff prosecutes a cross appeal.
“A defendant shall not have judgment upon a set-off or counterclaim, unless the caption of the answer contain the words, answer and set-off, or the words, answer and counterclaim; but a misdescription in the caption, of the nature of the defendant’s claim, shall not prevent him from having judgment; nor shall a plaintiff have judgment upon a counterclaim unless the caption of his reply contain the words, reply and counterclaim.”
In construing this section it has been held that though the answer does not contain the words answer and
In the present case the answer does not contain the words answer and counterclaim or the words answer and set-off, nor does it allege any facts sufficient to constitute a counterclaim or set-off. It does not ask judgment over. It simply alleges the abandonment of the sale made by plaintiff to defendant in November, 1910, and consummated by the deed of December, 1910, and the subsequent agreement by plaintiff to accept the sum of $1,500 for his interest in the land. The fact that plaintiff was to collect the $350 rent for the year 1911, and the further fact that the premises had been badly injured by plaintiff’s tenant, constituted it is alleged, the consideration for the subsequent agreement. Moreover, there was no proof' on the question of damages, and no proof on the question of who was to receive the rent except that given by plaintiff to the effect that he told defendant’s agent that possession of the land could not be given until January .1,1912. There being no plea of payment, and no sufficient pleading or proof either of a counterclaim or set-off, we conclude that the trial court erred in allowing a reduction of $400 from the purchase price.
Judgment affirmed on original appeal and reversed on cross appeal with directions to enter judgment in conformity with this opinion.