44 Ky. 537 | Ky. Ct. App. | 1845
delivered the opinion of the Court.
In 1830, Robert G. Vance sold and conveyed to Simeon House, a tract of 111 acres of land, in the^county of Jefferson, lying on the Turnpike road fort, for $1,150, payable in instalment from the date. House executed to V$ upon the land, to secure the payment tion, and was put into possession. Ini House on a note for $425, which had bt was made to embrace two of the instalme before fallen due, and iecovered judgment and fired out execution thereon, and had the same levied on the land sold to House, and purchased the greater part of it in satisfaction of his execution, at less than two thirds of its value. He also recovered judgment against Plouse for another instalment of $200, Vance still holding a note for the last instalment of $150. In 1835, House filed his bill enjoining further proceedings against him, alledging that the title of Yance was defective, and that he had, at the time of the sale, represented to him that he had a good and perfect title, and executed and delivered the
Vance answered, positively denying that he had made any false representations to said House respecting the title to the land, and insists that'his title is good. He admits that it was agreed between them, that the land should be re-surveyed, and if it should hold out more than the 111 acres, that House was to pay for the surplus, at the rate of the original purchase, and says that it has been re-surveyed and ascertained to contain 116 acres, and he prays a decree for the surplus. He sets out his derivation of title, and making his answer a cross bill, prays that the land may be subjected to the payment of the residue of the consideration. He also brings the heirs of Lee White before the Court, and prays that if there be any defect in the deed executed by him as trustee, to Vance, in conjunction with George W. White and wife, that they may be required to perfect the same.
House answers the bill, denying that he was to pay for the surplus, and uses the following language in relation to the representation of title by Vance: “He says that said Vance did represent that he was the owner of the land described in the deed filed with the respondent’s original bill; that the deed is evidence of the fact, and if the said Vance has not the legal title, that then he did make false representations about the title,” He tenders the money in Court, with ten per cent, thereon, which Vance bid for the land when sold under execution, before the time had expired for redemption, and which Vance was allowed to take out of Court, upon executing bond with security, to return the same if required by the decree of the Court.
Plouse died, and the bill was revived in the name of his heirs, who pray that they have a deed for the title to the whole land, if Vance is able to make a good title, and if not, that they have a deed for the title to so much as he is able to make a good title to, and for general relief.
The Chancellor, upon the hearing, annuled the con. tract of conveyance, upon the ground of a defect in the title, fixed the terms and principles upon which rents, improvements, waste, and consideration paid, should be settled, accounted for, and refunded by the parties respectively, and appointed Commissioners to make the assessment, settlement, and report. The report was made and exceptions to the same being taken by Vance, time was allowed to take affidavits for and against the same. In the progress of this inquiry, numerous and contradictory affidavits have been taken, and the record swelled to an enormous size, and the costs oppressively and unnecessarily increased. • The Chancellor, on the examination of the affidavits and proof, sustained the report of the Commissioners, and rendered a decree upon it according to the principles indicated in his decree dissolving the contract, and Vance has appealed to this Court.
We would here premise, that it is passing strange, that the rule should have been adopted for the ascertainment and liquidation of the rents, profits, and interest, which was adopted, when a rule so fair and easy was furnished by the express stipulations of the contract between the parties, in the covenant of warranty. For it is expressly provided that in case of eviction, Vance shall refund the consideration without interest, as the use of the land is considered equal to the interest upon the consideration. If upon the loss of the land Vance was not bound to refund interest upon the consideration, nor House to account for rents and profits, it would seem that upon a dissolution of the contract for a defect of title and appre. hended loss of the land, that the same rule of mutual responsibility should have been adopted. And though all the consideration had not been paid by House, as Vance had not been permitted to enjoy the use of the money to that extent, while House had been permitted to enjoy the entire use of the land, equal justice might have been rendered between them, by estimating in favor of Vance, the interest upon the consideration which had not been paid him, and which he had not consequently been permitted to use and enjoy; and with this estima, tion and allowance in favor of Vance, to have settled the
But passing from this preliminary suggestion, we would remark upon the merits of the controversy, that this is the case of an executed contract, when the conveyance has been made and[accented, with warranty of title, and possession delivered, and uninterruptedly enjoyed, without eviction or molestation. In such a case, a bill for the dissolution of the contract cannot be sustained, and ther payment of the consideration' injoined, except in the case of fraud, insolvency, or non-residency of the vendor, and a palpable and threatening danger of immediate or ultimate loss, without legal remedy, by reason of the defects in the title convéyed, and the inability of the vendee to protect himself against eviction under it. And to sustain such a bill after the vendee has accepted the conveyance, the onus lies on him to establish to the satisfaction of the Chancellor, that the defect of title and iminent danger of eviction and loss, exists.
Testing this- case by these principles, we must say that there is no allegation of fraud, insolvency, or non-residency charged, according to our understanding of the bill, nor is either attempted to be made out in proof, nor is such defect of title shown, as to justify a well grounded apprehension of immediate or ultimate eviction or loss of the land sold.
An attempt is made to sustain the bill on the ground of an allegation of fraud in the representation of good title, when the title was not good, and the failure of Vance to answer this charge. The representation of good title is not charged to have been fraudulently made; nor is it charged that Vance knew that his title was defective-, and knowing it, had falsely represented it to be good, with a view to deceive or delude him into the purchase. Every allegation that is 'made may be strictly true, and yet Vance be exempt from the slightest imputation of fraud or of a fraudulent intent or purpose. He may have honestly believed that his title was good and the presumption is that he did believe it good, from the fact that he
So also with respect to the deed made by Lee White, in conjunction with George W. White and wife to Vance; the conveyance passes the naked legal title of Lee White, and the omission to record it cannot redound to the injury of
Upon the whole, without going more minutely into the examination of the title, we are satisfied, from the most careful examination, that the complainant has not shown any good ground for apprehending that there is immediate or ultimate danger of disturbance to their title or possession. Their bill must therefore be dismissed.
But as much of the costs have been incurred and accumulated in the vain and unsuccessful attempt of Vance to reduce the amount of assessment for rents, and as we have already suggested that the rule adopted was errone
The decree of the Circuit Court is reversed, and cause remanded, that the complainant’s bill may be dismissed upon the terms indicated, and that Yance, if he desire it, may have leave to proceed upon his cross bill, to enforce payment of the residue of the consideration out of the land, and the costs in this Court is to be divided equally between the parties litigant.