12 Ky. Op. 355 | Ky. Ct. App. | 1883
Opinion by
Appellee being the owner of certain hotel property transferred it to appellant in transfer for land, and at the same time and in the same written contract of exchange appellant agreed to take the bar fixtures at a price to be agreed upon and to pay for them in land adjoining the piece given in exchange for the hotel, at $25 per acre. After the exchange was effected and appellant had taken possession of the hotel and bar fixtures, and appellee had taken possession of the land given in exchange for the hotel, an action was instituted to enforce a mortgage lien on the hotel property, existing prior to the exchange, and the property was sold. Appellant then instituted this action to rescind the contract, appellee asking also for a rescission, the one because appellee could not make good title to the hotel property, and the other because appellant could not make good title to the land on account of the preexistence of a dower claim to the land. It was admitted in the pleadings that the bar fixtures had been agreed to be worth $275.
In June, 1878, judgment was rendered rescinding the contract of
Both on the appeal and the cross-appeal, the evidence as to the value of the rents and as to the increased value of the land by reason of the improvements, which was the standard properly adopted by the court as to the improvements, is so conflicting, as is usual in such ca,ses, that we are not disposed to disturb the judgment as to these matters; nor do we deem it necessary to fortify this conclusion by an elaborate discussion of the evidence bearing upon these points.
Among the other complaints of appellant is that the court erred in giving judgment against him for the value of the bar fixtures, with interest from the time they went into his possession, he contending that the decree should have been for eleven acres of land in satisfaction of this claim. This complaint is not well founded. The decree of June, 1878, purported to rescind the written contract which embraced the stipulation in regard to the bar fixtures as well as the exchange of the other property. The contract was of such an entirety, and of such a nature that the one part could not, without manifest inequality and injustice, be rescinded without rescinding it as a whole. To have rendered a decree as contended for by appellant would have allowed him to retain property of the agreed value of $275 and compelled appellee to have accepted eleven
Appellant further complains that the court erred in allowing rent on the land to the time of the filing of the commissioner’s report on December 2, 1878, instead of allowing it to the date of the judgment appealed from. The complaint is based upon the grounds that as the pleadings admit the possession it must be presumed to continue until the final decree. There is nothing in the record to show any possession after the 2d of December, 1878, and we will not undertake upon such a naked presumption to revise a decree rendered by a court in more immediate contact with the parties and with the witnesses, especially as it would have been an easy matter for appellant to show affirmatively that the possession continued after December 2, 1878. This applies as well to the complaint that the court did not decree a writ of possesion. Such a writ does not appear to have been applied for, and the failure to apply and the failure of the court to so decree strengthens the conclusion that the possession was surrendered at the date of the filing of the commissioner’s report.
Appellant also contends that appellee should not have been allowed for the improvements, because he insists that appellee had notice, by this action, of the desire to rescind before any of the improvements were made and that some of.them were made after the decree of rescission in June, 1878. As to the last proposition the evidence shows to our satisfaction that the improvements were made before the decree of rescission, and as to the second we are of the opinion that, in the absence of any fraud, appellee was entitled, up to the time of the rescission, to pay for the improvements to the extent that they enhanced the value of the land. The cases of Harrison’s
The last complaint by appellant is that the court adjudged in the decree confirming the commissioner’s report that he should pay the cost. It will be observed that in the decree of June, 1878, rescinding the contract appellant was given judgment against appellee for his entire costs, so that a proper construction of the last decree gives appellee cost on the reference only, to which he was certainly entitled as he was the successful party on that reference, the commissioner finding appellant to be indebted to him in the sum of about $600.
Judgment affirmed on the appeal and cross-appeal.