206 Ky. 383 | Ky. Ct. App. | 1924
Opinion of the Court by
Reversing.
On December 28, 1922, appellant Marceiliac entered into a written contract with appellee, Lattie Stevens, whereby he contracted to purchase a house and lot in Providence at the price of $2,000.00 and paid down $300.00 and agreed to pay on January 15, 1923,- the further sum of $200.00; the balance to be paid in installments of $25.00 each on the 15th of each succeeding month until the full amount was paid.
The contract provided that appellant should forfeit his rights to the property in case he failed to pay the $200.00, or any of the succeeding installments when due. Before the 15th of January, after the making of the contract, appellant became dissatisfied with his trade and, being less than twenty-one years of age, decided to rescind on the ground of infancy. He tendered his house and lot back to the vendor and demanded his $300.00. He
Following this appellee Stevens, W. B. Snow and J. H. Taylor filed a rejoinder and answer to plaintiff’s reply and cross-petition. It consists of a traverse of the affirmative matter in the .reply.
When the issues were made up appellant Marceiliac took evidence in his behalf and Miss Stevens took evidence also to support her contention. From this evidence we learn that appellant Marceiliac, a Frenchman by birth, had only been in this country a short time when he entered into the contract to purchase the house and lot in Providence; that he was only about twenty years of age at the time the contract was made and that he had but slight knowledge of the value of property in America. Evidence for appellee Stevens tends strongly to prove that Marceiliac was asked at the time of the making of the contract if he were twenty-one years of age and if he were doing business for himself, and he responded he was more than twenty-one years of age and that he was in business for himself. He denies this and says he was not asked the question and made no representations concerning his age. It is also shown that Taylor, who bought the property from appellee Stevens, knew of the purchase of the property by Marceiliac and of the terms and conditions thereof. He was not, therefore, an innocent purchaser. It was further shown by the evidence that Marceiliac was in possession of the house and lot at the time Taylor sold it to Snow. On these facts it is insisted, that Snow was not an innocent purchaser because the possession of Marceiliac was sufficient to put him as purchaser on inquiry. As a general rule possession of land by one not a vendor is sufficient notice to put a purchaser on guard and require him to make an investigation. It has also been held that possession under an executory contract of purchase is notice to a prospective purchaser of an adverse interest. 27 R. C. L. 719; East Jellico Coal Co. v. Hays, 133 Ky. 4; Wyatt v. Touvelle, et al., 185 Ky. 565.
The lower court decided that appellant Marcailiac was an infant at the time of the making of the contract and was, therefore, entitled, on account of his infancy, to a rescission thereof, thus, in effect, holding he was not guilty of any misrepresentations or fraud. The evidence sufficiently supports this finding. We will not, therefore, disturb it.
The court further found Snow, the present owner of the property, to be an innocent purchaser for value of the house and lot in question. In this we think the court was in error, for appellant Marceiliac was in possession of the house under the executory contract which is the basis of this litigation at the time Snow became the purchaser and paid the purchase price. Under such circumstances Snow was, as a matter of law, put upon notice and should have investigated Marceiliac’s possession, and his presence on the place was sufficient to put Snow upon inquiry. He failed to exercise that degree of diligence which the law requires of one purchasing real property, and having failed to do so he is not an innocent purchaser within the meaning of that term. Marceiliac was, therefore, entitled to have the $300.00 paid by him on the purchase price adjudged a prior lien on the house and lot. This, however, is subject to a credit by rent for the use of the house, which was a necessity to the infant, the evidence showing that the house was reasonably worth $20.00 to $25.00 per month. Marceiliac held and used it for several months, just how many we are unable to tell from the record. Nor are we able to say with certainty the reasonable rental of the house during that period. He testified that he purchased the house and took possession of it as a home because he was required to vacate another house in which he lived, and it was absolutely necessary for him to have a place to live. The house, therefore, was a necessity and the rental charged
For the reasons indicated the judgment is reversed insofar as it refused appellant Marceiliac a lien upon the house and lot for the amount of the judgment in his -favor, with directions to the court to enter a judgment granting him a lien subject to a credit by the reasonable rental of the house and lot for the period he occupied it. If necessary the court should allow the parties to plead to an issue.
Judgment reversed.