90 Ky. 572 | Ky. Ct. App. | 1890
delivered ti-im opinion op the court.
On the 15th of September, in the year 1876, one O. P. Wright sold to John S. Dickson a tract of twenty acres of land, executing to Dickson a bond for title, by which he agreed to make to Dickson a general warranty deed to the land upon the payment of the purchase money. On the 25th of June, in the year 1885, Dickson assigned this title bond to his wife, Margaret Dickson, reciting in the assignment that the purchase money had been paid. Dickson and his wife took possession of the land, and have held it since the date of the purchase. In the year 1883 the appellant, Robert Morton, obtained a judgment in the Mason Circuit Court against O. P. Wright, the vendor of the land to Dickson, for one hundred and fifty dollars and costs, upon which an execution issued, and was levied on this land for which Dickson or his wife held the bond for title. The land was sold, and purchased by the appellant, who afterwards obtained a deed from the sheriff vesting in him, as he maintains, the legal title. He obtained his judgment, and the deed under it, after the execution of the title bond and the delivery of the possession to Dickson, but prior to the assignment made by Dickson to k:s wife, the present appellee, her husband being dead. Having this sheriff’s deed, Morton, the appellant, brought his action of ejectment against the wife, Margaret Dickson, to recover the land. An answer was filed by Mrs. Dickson, alleging that she was the equitable owner and in the rightful possession under the bond for title executed to her husband and assigned to her; that the pur
The case was submitted on the pleadings alone, and counsel for the appellee maintains that the recital in the assignment by Dickson to his wife shows that the-money has been paid-, and must be taken upon the submission of the case on the pleadings alone to be true.
We infer the action was brought in the nature of an ejectment, as some of the authorities maintain, for the reason that the vendee having failed to pay the purchase money under his executory contract, could be ejected by an action at law. Some, if not all, of the common law writers say that a vendor may regain possession from the vendee in an executory contract after the latter has failed to perform it on his part; that the vendor may elect either to compel specific performance or treat the contract as rescinded,
In such, oases there must be a demand of possession or a notice to quit. A mortgagee invested, as at common law, with the legal title, was entitled to enter after condition broken, and if we were deciding this ■case upon the old common law rule, or even as the law existed in our own State prior to the adoption ■of the practice that permitted equitable defenses to actions at law, we might consider the questions presented by counsel. But such a practice belongs to the past, and now, when the equitable defense is presented, the chancellor will not rescind the contract, although executory, but will require the vendor to ask for a specific performance, unless there is fraud or some other equitable reason for rescission.
When in equity and in the possession the holder of a bond for title is treated as if he held the fee subject to the lien of the vendor, and this necessarily defeats the action of ejectment. Should the v.endee repudiate his executory agreement, or if facts are made to appear showing the contract to be void, the action might be maintained; but the failure to pay works no forfeiture of the rights of the equitable owner to the land, or invests the vendor with the right to pursue him as he would a trespasser or a tenant whose time has expired. Where the vendor vests in his vendee an equitable title to land, and places him in possession, although default in payment is made, he has no remedy at law to recover possession by reason of the default. If the appellant had made his purchase and obtained his deed
The authorities relied on by the appellant from many of the States give to the vendor of land by ■executory contract various. remedies against the vendee who has failed to comply with his contract. The vendor may institute his ejectment after notice to quit, and recover the possession, the vendee being treated after default made as a mere tenant, or the vendor may bring his action at law for the purchase money, •or institute his action for a specific performance subjecting the land to the payment of the purchase money. Such is not the rule in this State, and the action of ejectment is never allowed where the vendor, under an ordinary executory contract of sale, has taken from the vendee his purchase money notes and placed him in possession. If the party in possession enters as a purchaser, the vendor can not elect to make himself the owner, and regain the possession by any proceeding at law upon, the statement alone that the vendee has failed to pay him.
As said by Scott, Justice, in the case of Tibeau v. Tibeau, 19 Mo., 78: “Law and equity being now blended, an equitable title arising out of a contract for the sale of land is a defense to an action instituted to recover the possession of the land, the subject •of the contract.'”
The actor in this case is the vendor, who seeks by his action at law to recover the possession, when he is only entitled to a lien for the purchase money.
The appellant wants no specific performance, but insists on a recovery of the possession at law, with the purchase-money notes in his pocket. The defense is, that the entry and possession was under a valid contract of sale, and this being shown, defeated the action at law. Prior to the Code, and in the absence of any statute, the equitable defense could not have been made by the vendee, even if she had paid the purchase-money, but the remedy was an appeal to the chancellor for an injunction to prevent the entry upon a rightful possession. If the defendant had been-the actor, seeking, as a vendee, to recover the possession by enforcing the contract, the chancellor would have denied her any relief until she paid the purchase-money, if such had been the terms, of the contract. No action of ejectment could be maintained upon the-equitable title by the vendee, nor relief granted in the-nature of a specific performance in equity unless-a performance, or an offer to perform, had been shown. It is not conceded or adjudged that a bond for title-gives to the vendee a right to the possession before the payment of any part of the purchase money. The-right to enter into the possession would depend upon the terms of the executory agreement. If, by the terms of the contract, this right to the possession was-
Judgment affirmed.