120 S.W.2d 750 | Ky. Ct. App. | 1938
Affirming.
On October 1, 1936, a contract was signed between Mrs. Mildred E. Moore and others, as vendors, and J. Matt Maschinot, as vendee, reciting that the "vendors agree to sell and convey to the vendee, and deliver by general warranty deed, a good and marketable title" to a certain house and lot for $2,000, of which $100 was then paid and the balance agreed to be paid monthly. Deferred payments were to bear interest. The vendee agreed to repair and maintain the property but make no structural changes in the improvements without the written consent of the vendors, and "agrees that if for any reason he releases or forfeits his interest in said property" to deliver up its possession in as good condition as at present, reasonable wear and tear alone excepted. He further agreed to pay all taxes and premiums on fire and tornado insurance. The vendee immediately entered into possession. The fourth paragraph of the contract is as follows: *37
"Vendee agrees to purchase said property, and pay therefor the sum of $2,000.00, in the above-setout manner, and agrees that if he fails to pay any monthly installment when due, and same remains due and unpaid for thirty days thereafter, and if he fails to do and perform any other agreed act upon his part, then and in either of said events, the vendors, or any one of them, may enter and take possession of the premises, and vendee's interest herein shall cease, and any payment made under this contract shall remain in the vendors, as liquidated damages and rent for the use of said property."
Another section of the contract provides that Maschinot could pay the unpaid balance of the purchase price at any time and demand a deed to the property, but his interest in the contract could not be assigned or transferred to another, and any attempt on his part to do so should forfeit his rights in it.
On April 13, 1937, this suit in ejectment was filed by the vendors. It was alleged that the defendant, Maschinot, had paid only two of the monthly installments and had defaulted in the payment of the others and, as well, the insurance premiums; and had refused to surrender possession upon demand. It was further averred that $40 a month was reasonable rent during the period of the defendant's occupancy, and plaintiffs had been compelled to pay $16 insurance premium. The plaintiffs prayed judgment giving them immediate possession of the property, for the rents and sum paid by them for the insurance premiums. Demurrer and a motion to strike being overruled, the defendant answered and plead a counterclaim. He denied the allegations of ownership of a marketable title to the property; denied that plaintiffs could convey or deliver a general warranty deed to it, or that the reasonable rent was $40 a month, or that the plaintiffs were entitled to recover any sum as rent or to have possession of the property. A counterclaim set up the terms of the contract by which it was agreed that the purchaser had the right to pay the unpaid balance in full and demand a deed, and alleged that on or about January 1, 1937, the defendant had offered to pay plaintiffs the unpaid balance and notified them to furnish him a general warranty deed containing a marketable title, but plaintiffs could not do so because *38 there was a certain lien on the property. The defendant alleged that the plaintiffs had refused to clear the title; and, further, that he had been induced to enter into the contract sued on by fraudulent representation as to their ability to convey a good title; that instead of complying with their agreement to make him a good deed when he demanded it, the plaintiffs had instituted forcible detainer proceedings in a magistrate's court. He had been compelled to spend $25 in defending it and $150 in defending this suit, and had been "further damaged in the sum of $500 due to said false and fraudulent representations." The defendant, therefore, prayed judgment for $825 over against the plaintiffs. A reply joined issue.
On the trial, the court peremptorily instructed the jury to find for the plaintiff both on their petition and on the counterclaim. The defendant appeals the resulting judgment but has not brought up a bill of exceptions containing the evidence.
Waiving the insufficiency of the defendant's pleading as showing a good tender or establishing a counterclaim, the decision of those questions against the appellant may be rested upon the conclusive presumption arising from the absence of the evidence that it did not support the pleading.
The only substantial point relied on for a reversal of the judgment is that the action in ejectment could not be maintained. As stated in Day v. Miles,
Judgment is affirmed.