167 Ky. 646 | Ky. Ct. App. | 1916
Opinion of the Court by
Reversing.
On January 20, 1909, the mother of appellees, Florence M. Berry,. together with her husband, D. Gr. Berry, who was the father of appellees, executed and delivered to the appellant, J. W. Smith, a warranty deed, absolute on its face, to a certain house and lot in the city of Owensboro, Kentucky. Mrs. Berry acquired title to the property through a conveyance made to her by her husband in 1907, and at the time of the execution of the deed to the appellant, she was the ■ owner in fee to same. In September following the date of the execution of the deed to appellant,. Mrs. Berry died intestate, leaving surviving her, her husband and six children, the appellees herein, whose ages range from six to eighteen years. Whatever interest, if any, Mrs. Berry owned in and to said property was inherited by the appellees, subject to the interest which the law conferred lipón the sur
On January 2, 1912, the plaintiff instituted forcible entry and detainer proceedings against D. Gr. Berry, the father of appellees and who was head of the family, to recover possession of the house and lot, and in due time a judgment by default was obtained against the father and ordering the possession of the premises to be restored to the appellant. Some time later and before the 24th day of that month a writ of restitution was issued by the justice of the peace rendering the judgment and placed in the hands of W. J. Cole, the duly and regularly elected, qualified and acting constable for the magisterial district, and he, on the 27th day of February, in the afternoon about 2:30 o’clock, proceeded to execute said writ by removing from the house the contents thereof and placing same upon the grass plot between the sidewalk and the curbing of the street, and which household goods, were, within a short time thereafter, removed with the wagons of appellant and put into another house some few blocks away, and into which the appellees and their father, and their aunt, moved and took up their residence.
Three days before the execution of this writ and on February 24,1912, the appellees, through their father as next friend, filed a suit in equity in the Daviess circuit court against appellant, alleging and charging that the deed which had been executed to the defendant therein, dated January 20, 1909, although absolute on its face, was intended to be, and had been agreed between the parties thereto, to be, only a mortgage for the security of a debt, and prayed the court to so adjudge. The appellant filed his answer in that suit denying the allegatións of the petition and claiming that the deed was
On July 20, 1914, the property was sold under the judgment and was purchased by Miss Ann Harben for the sum of $1,325.00, and is claimed by her, for the use and benefit of the appellees.
On January 9, 1913, the infant appellees, by Miss Arm Harben as their next friend, filed separate suits in the Daviess circuit court against the appellant, and the adult appellees at the same time filed suits against him in the same court, in each of which, damages were sought to be recovered for what are termed the trespasses committed by the constable in executing the writ of restitution hereinbefore mentioned; it being charged that the appellant procured him wrongfully to remove the clothing, wearing apparel, pictures, and other personal effects of each of the appellees, and that the appellant, through the said constable, “wantonly, forcibly, unlawfully, wrongfully, maliciously and without plaintiffs’ cbnsent, threw all of plaintiffs’ personal effects into Main street,etc.” It is further charged that the constable, through the procurement of the ■ appellant, did, at the said time, “maliciously and in a high-handed manner take possession of plaintiffs’ homestead and domicile and deprived plaintiffs of the use thereof,” he knowing at the time that plaintiffs owned the homestead therein and entitled to reside therein. It is furthermore charged that said actions were done with the malicious purpose of humiliating and injuring the feelings of the respective plaintiffs, and that they were each greatly humiliated and suffered “great mental pain and anguish,” to the amount claimed in each petition, for which judgment was prayed. As the cause progressed each petition was amended so that the damages claimed therein werlei ■ $1,500.00, or an aggregate, in the six suits, of $9,000.00. '
The appellant in his answers denied the allegations of the petition, and in addition relied upon the deed of January 20, 1909, which at the time of the institution of the forcible detainer proceedings, or the judgment
At the beginning it may be stated that the appeals granted by the court below are not available. These judgments are each for money and they are for sums less than $500.00; they are each separate, and distinct and can not be added to each other for the purpose of making the aggregate sum sufficient to give this court appellate jurisdiction.- (See Covington Bros. & Co. v. Jordon, 125 Ky., 73, and cases therein cited). It results, therefore, that the only method by which an appeal may be prosecuted is under the act of 1914, giving this court the right to grant an appeal when the amount involved is not less than $200.00 nor more than $500.00 upon motion being made therefor in this court within the time provided by the law governing appeals. Under rule 20 of this court, adopted since the taking effect of the act of 1914, it is provided that:
“If, on considering the case, it appears-to the court that an error was committed by the lower court prejudicial to the substantial rights of appellants, * * * the motion to grant an appeal shall be sustained.”
We have concluded that the lower court committed errors prejudicial to the substantial rights of- the appellant and the motion for an appeal in each of the cases is sustained and the appeals are granted.
. It is insisted by appellant that the judgment in the forcible' detainer proceedings furnishes a bar to these actions, because, as he contends, in the absence of any agreement to the contrary he, having an absolute deed at the time to the premises-' and vested w-itli- the -legal title, was-entitled, contrary • to-the rule existing between mortgagor and mortgagee, -to the possession of the premises, and that where a lien is given by such an
“In the absence of an agreement between the parties in regard to possession of the premises, it has been held in some jurisdictions that the grantor is not entitled to hold the possession against the demand of the grantee; for an absolute deed, although intended as a security, ■differs from an ordinary mortgage in this particular, .and must be regarded as vesting both the legal title and the right of possession in the grantee. ’ ’ This quotation is immediately followed by the author with the following:
■ “The grantee, like any mortgagee in possession, must .account to the grantor for the rents and profits of the property.” The text relied upon by appellant is supported by the courts of only two states, those of Iowa and Michigan. But in the same note the rule in cases from Kansas, Nebraska, Indiana, New York, and in the case of Cox v. Radcliff, 105 Ind., 374, it is held:
“That where an absolute deed under such circumstances might give the grantor the prima facie right to the possession, still the facts showing it to be only a mortgage might be shown in a proceeding to recover the. possession as a complete defense.” From the same volume of Cyc. and on page 1235, we quote as follows:
“It is generally held that one who is in reality a mortgagee, although the conveyance to him is in the form of an absolute deed, has no greater rights than a mortgagee under a mortgage in the usual form and, therefore, is not entitled to possession of the premises, if not voluntarily surrendered to him by the grantor.”
The text being supported by a number' of authorities from various states, including that of Radcliff v. Folsom, 58 Iowa, 473, which is a later case from that court than the one supporting the text upon which appel
It has long been the law in Kentucky that-as between -the mortgagor and the -piortgagee, the legal title was held by the former, and fier-was entitled to all the benefits and rights given to such title-holder, and that .the mortgagee acquired only an equitable lien-to the extent of his debt and the right only to subject the property . in payment of his debt. He also has other rights flowing from-his, mortgage lien, such as the right to protection against waste and destruction of the mortgaged property, none of which have any application to the question in hand. We think it the better rule and in more conformity with the objects and purposes of a mortgage and more in accord with modern jurisprudence, to hold that in Kentucky the grantee in a deed absolute upon its face, but given only as a mortgage, has no greater rights than the ordinary mortgagee. It results, therefore, that this -contention of appellant can not be upheld.
It will then be seen that at the time of the procuring of the judgment in the forcible detainer proceedings, the appellees having inherited their mother’s interest in the premises, had the right of possession thereof as between themselves and the appellant, and in as much as they were not parties to that proceeding, the judgment therein furnishes-no bar to these actions, unless the appellees were occupying the premises under an agreement by which the appellant should receive rent for the premises. The record in the forcible detainer proceedings, although not a bar to this suit, is admissible to show the intent of the appellant in procuring the -eviction and to rebut the charge of malice on his part.
The principal grounds relied upon for a new trial are: (1) incompetent evidence introduced .before the jury over the objections and exceptions of appellant; (2) improperly instructing and refusing to properly instruct the jury, and (3) the verdicts are excessive. We will consider these in the order named.
First: During the progress of the trial the attorneys for appellees upon cross-examination of the appellant, interrogated him as to whether .or not, upon the day of the sale of- the land, as hereinbefore stated (which was eighteen months after the eviction), he had not endeavored by persuasion to procure one Hazel not to sign the purchase bond of Miss Ann Harben for the premises
Second: The court upon the trial and upon its own ■ motion, gave to the jury instructions Nos. 1, 2, 3 and 4, to all of which the appellant objected and excepted. ■Instruction No. 1 is substantially a peremptory instruction to find for the appellees in nominal damages. The' ■
It was contended and testified to by appellant that after the execution of the deed to him' of January 20, 1909, D. G. Berry and Florence Berry, the father and' mother of appellees, agreed to occupy the premises as
Third: It is complained that the verdicts are excessive. In this we concur. What we have said eliminates the question of punitive damages, leaving only for the determination of the jury the compensatory damages for what humiliation, if any, that may have been suffered. We will not elaborate this feature of the case, contenting ourselves with saying that it is difficult for us to see how these plaintiffs, for the brief time that their respective possessions, some of which unfortunately were limited, remained unhoused could have possibly been humiliated to the extent of $450.00. The wrong as we have seen was but a technical one, and for which the actions will lie; but the law is not an engine of oppression, but strives like the blind goddess, to deal out to those who have occasion to invoke its application, evenhanded justice and to allow no one to profit by the misapplication or non-application, in proper cases, of any of its rules. We think the latter has been done in this case and that the verdicts are so excessive as to “strike the mind at first blush” that they were rendered under the influence of passion and prejudice on behalf of the jury.
The judgments are each reversed with instructions to proceed in accordance with this opinion.