91 Ky. 502 | Ky. Ct. App. | 1891
delivered the opinion of the court.
In the assignment of dower to Susan Sparks as tlie widow of Nimrod Sparks,' there was allotted to her land worth eight hundred dollars more than her one-third portion. The decree, therefore, provided that for the use of so much of this excess as would otherwise have at once passed to their son, N. W. Sparks, she should pay to him a certain sum annually. Having failed to pay this annuity for several years, and having in the meantime marrried H. L. Ball, she, together
The appellee, Mattie A. Robinson, is her child by the last husband. The mother died in February, 1883. The property mortgaged to N. W. Sparks descended equally to him and his half-sister, the appellee. He now seeks to enforce his mortgage. He also asks that the mortgaged property, which constitutes substantially all the estate left by his mother, be also subjected to the payment of the annuity installments which accrued between the time of the execution of the note and her death.
The appellee claims that the mortgaged property was held by her mother in trust for her husband, H. L. Ball, during his life, with remainder to the appellee. If it be conceded that there is competent testimony to this effect, yet the arrangement was not evidenced by any writing, the deed for the property to Mrs. Ball is absolute in its terms, and there is no claim of fraud, accident, or mistake in its execution; nor does it appear that N. W. Sparks had any notice of the alleged verbal trust. It can not, therefore, affect him. She also claims that she was defrauded in the settlement of an indebtedness of her half-brother to her; that there is, in fact, a balance yet owing to her, and this she pleads as a set-off to his claims. This defense is not sustained by the evidence.
The question is, therefore, presented whether the life tenant, or her heir, can, as against a debt owing to the remainderman, when asserted by him in equity, set up as a defense the value of permanent improvements made by her while in possession of the land as the life tenant. It is claimed that the equitable rule, which even in the absence of any statute was applied as between a bona fide occupying claimant
One man should not be benefited by another’s money or labor without making compensation, aud one must do what is just before he can exact equity; but this rule should not be so far extended as to unjustly inflict an injury upon a party when he has no agency in the transaction. If the rule were adopted that a life tenant, who knows he is not the absolute owner of the property, and that his interest in it is liable to terminate at any time, could improve it ad libitvm, and charge the remainderman with it, injustice would
The improvements may be of a character not desired by him; they may be so inferior in quality as to render others necessary in using the property according to his desire, or they may be of so great a value that he may not be able to make the additional ones, and thus he may be forced to sell .his property or virtually be deprived of it. The tenant for life is not bound to accept the estate if he can not render it profitable save at the expense of the remainderman, and if allowed to do this, then the latter is at his mercy.
It would, in our opinion, be an unwarrantable ex tension of the equitable rule to which we have alluded to apply it to cases of improvements made by a life tenant without the request of a remainderman, result
The judgment is reversed, with directions to subject the mortgage property, first, to the payment of the mortgage; and as it appears Mrs. Ball was not otherwise indebted, then to the other annuity debts of both N. W. Sparks and the appellee as may be equitable, and for all further proper proceedings.