Davis v. Willson

74 S.W. 696, 115 Ky. 639, 1903 Ky. LEXIS 142

Opinion

Opinion of ti-ik cotntr by

JUDGE BARKER

Affirming.

John I. Jacob, by Ms last will and testament, devised to his son, Charles D. Jacob, a large estate in fee simple, and also real estate in , the city of Louisville, Ky., worth the sum of $30,000, in trust to him for life, with remainder to his children living at the time of his death. At the time of the death of his father, Charles D. Jacob was an infant, and Ms guardian, in order to improve his trust estate, instituted an action in the Louisville chancery court, and therein obtained a decree authorizing the -sale of a portion of his ward’s fee-simple estate, and the right to invest the proceeds in improving the trust estate in order to increase its productiveness. Under this decree about $18,000 worth of the fee-simple estate was sold, and invested in improving a part of the trust property situated at the corner of Fourth and Main streets, in Louisville, Ky. After reaching his majority, Charles I). Jacob became dissatisfied with the investment made by his guardian, and instituted an action in the Louisville chancery court against all parties in interest except his two daughters, Mrs. I. P. Caldwell and Miss Lucy D. Jacob, -who were then infants. In this action a decree was rendered refunding to the fee-simple estate the sum that had theretofore been taken from it to improve the trust estate, and for this purpose a house and lot at the corner of Third and Main streets, belonging to the trust estate, and which was supposed to be about equal in value to the sum taken from the fee-simple estate to improve the trust property, was conveyed to Charles D. Jacob in fee simple by the commissioner of the court. This lot he afterwards improved by building a new business house thereon at an outlay of $27,000 from his fee-simple estate, and later conveyed the lot and improvements to W. Y. Davis for the sum of $36,000, with covenant of general warranty. Subsequently, W. Y. Davis, learning that the children of Charles D. Jacob were claiming to be owners of the reversion of the property sold to him, instituted an action in the Louisville chancery court against them for the purpose of quieting his title. Upon the institution of this action, Mrs. I. P. Caldwell and her husband employed the plaintiff, A. E. Willson, who is an attorney of the Louisville bar, to defend the action; the sum of $1,500 was agreed upon as a fee for his services to be thereafter rendered, for which they executed and delivered their promissory note, to secure which Mrs. Caldwell and her husband, I. P. Cald well, executed, acknowledged and delivered a mortgage upon her interest in the property involved in the litigation, which was recorded by the clerk of the Jefferson county court in his office. Upon the trial of the case in the court below the chancellor rendered a decree sustaining the prayer of the petition, and quieted the title of W. Y. Davis to the property. From this judgment an appeal was taken, and the case reversed in an opinion to be found in 15 R., 21, 22 S. W., 436, 27 S. W., 86. In this opinion it was decided by this court that the life tenant, Charles D. Jacob, had no right to have refunded to him out of the trust property the money which his guardian had taken out of his fee-simph estate to improve the trust estate, and that as his daughters, Lucy D. Jacob and Mrs. I. P. Caldwell, were not parties to the action instituted by him for the purpose of obtaining the decree by which this refunding was authorized, they were not bound by it. The court further said that, if it could be made to appear that the trust estate had not been injured by the whole transaction, and that there still remained to the contingent remaindermen the $30,000 worth o£ property devised to them in remainder by their grandfather, with its natural increase in value, then W. Y. Davis would be entitled to a decree quieting his title. After the case returned to the lower court, no further steps were taken for several years, W. Y. Davis making no effort to establish the fact that the trust estate had not been depreciated by the action of Charles D. Jacob in taking from it the house and lot at Third and Main streets. After the lapse of three or four years, without notice to appellee, W. Y. Davis made a settlement with the contingent remaindermen, by which he paid to them the sum of $1,000, in consideration of which sum they signed and delivered to him an agreed judgment quieting his title to the property in question in accordance with the prayer of his petition. Subsequently Charles D. Jacob died, and A. E. Willson instituted this action in the Jefferson circuit court, chancery division, for a judgment on this note, and an enforcement of his mortgage lien by which its payment was secured. In bar of the'action W. Y. Davis pleaded, first, that at the time of the execution of the mortgage he was in actual adverse possession of the property, claiming it as his own adversely to all the world, and therefore the mortgage was champertous and void; second, that appellee was a pendente lite purchaser, and consequently bound by the judgment rendered in the action to quiet the title to the property mortgaged; third, that appellant had no notice of appellee’s mortgage at the time he settled with the contingent remaindermen, "and that appellee’s mortgage, being a chose in action, was not a recordable instrument, and therefore did not give constructive notice of its contents or existence to appellant.

Under the deed from Charles D. Jacob, W. Y. Davis took such estate as the grantor had power to dispose of, which was a life estate. The life tenant’s holding is not adverse to the remaindermen, but, on the contrary, is amicable to them; the possession of the life tenant being the possession of the remaindermen. At common law a remainder could not be created without a particular estate to support it, the reason being that an estate of freehold of inheritance could not be created without livery of seisin or delivery of possession; and therefore it was necessary that there should be a tenant of the particular estate to whom livery of seisin could be made, the possession of the tenant of the particular estate being the possession of the remainderman. That the life tenant does not hold adversely to the remainder-man is so elementary as hardly to need citation of author ity. Smith v. Shackelford, 9 Dana, 475; Gregory v. Ford, 5 B. Mon,. 475; Phillips v. Johnson, 14 B. Mon., 472; Turman v. White, Id., 560; Simmins v. McKay, 5 Bush, 31; DeCoursy’s Adm’r v. Dicken, 1 Ky. Law Rep., 260; Mays v. Hannah, 4 Ky. Law Rep., 50; McIlvain v. Parter, 9 R., 899, 7 S. W., 309, 8 S. W., 705; Gudgell v. Tydings, 10 R., 737, 10 S. W., 466; Tucker v. Price, 17 R., 11, 29 S. W., 857; Berry v. Hall, 11 R., 30, 11 S. W., 474; May v. Scott, 14 S. W., 191; Davidson v. Kelly, 23 R., 1011, 64 S. W., 623. As appellant’s holding was amicable to the remaindermen, the contract by which Mrs. Caldwell conveyed her interest in the land, by mortgage, to appellee, was not champertous under the provisions of chapter 15, sections 209-216, of the Kentucky Statutes of 1899. She had the right to mortgage her contingent interest. Section 2341 of the Kentucky Statutes of 1899 provides: “Any interest in, or claim to, real estate, may be disposed of by deed, or will, in writing.” In construing this section, this court, in the case of the Bank of Louisville v. Baumeister, 87 Ky., 6, 9 R., 845, 7 S. W., 170, said: “And that the right to dispose of such interest or claim was intended to include the right to mortgage, as well as to sell absolutely, is unquestionable; for it is well settled that every kind of interest in real estate may be mortgaged, if it be subject to sale and assignment. Jones on Mortgages, section 136.” The court then held that an option upon real property was such an estate as was subject to sale and mortgage. In the case of Overton v. Means, 2 Ky. Law Rep., 211, this court said: “Whether an interest by devise in lands is vested or contingent, it is vendible, and subject to sale for the satisfaction of debts.” In the case of White’s Trustee v. White, 86 Ky., 603, 9 R., 757, 7 S. W., 26, it is said: “It is contended that by the common law the contingent remainder could not be sold by a decree of court for the reason that the decree could operate on the title only, and, as no title' passed to' the contingent remaindermen, until the happening of the contingency, there could be no sale in the interim by a decree of court. But section 6, art. 1, c. 63, Gen. St. (section 2341, Ky. St.), provides: ‘Any interest in, or claim to, real estate may be disposed of by deed, or will, in writing/ This provision clearly embraces a contingent remainder interest in the land.” To the same effect is McAllister v. Ohio Valley Banking & Trust Co.'s Assignee, 114 Ky., 540, 24 R., 1307, 71 S. W., 509.

As the interest of the remaindermen was subject to mortgage appellant had constructive notice of the existence of appellee’s lien from the time of the recording in the county clerk’s office. Undoubtedly, the general rule is that a pendente lite purchaser is bound by the judgment rendered in the case pending at the time of purchase; but this rule is subject to this modification: that the right of the purchaser is subservient only to the cause of action pending at the time of his purchase, and is not affected by a cause of action set up subsequent to his purchase. Van Fleet, in his. work on Former Adjudication, vol. 2, section 586, p. 1116, declares the rule as follows: “A lis pendens purchaser is not affected by a decree made on new matter incorporated into the bill by way of amendment after his purchase.” See, also, Freeman on Judgments, Sections 199 to 202, inclusive. In the case of Stone & Warren v. Connelly, 1 Metc. (Ky.), 652, 71 Am. Dec., 499, in discussing the precise question involved here, it was said, in the opinion: “It is argued on the part of the appellants that a lis pendens was created by the filing of the original petition and the service of the process thereon; and that, as the object of the action, from its commencement to its conclu sion, was to subject to sale tbe house and lot in tbe pleadings mentioned for tbe payment of tbe debt due to tbe plaintiffs, the alienation of tbe property during tbe pendency of tbe action was unauthorized, and that tbe purchaser is affected in tbe same manner as if be bad actual notice of tbe proceeding, and in every respect occupies tbe attitude of a pendente lite purchaser. Tbe general rule is that a person who purchases during the pendency of a suit is bound by tbe judgment that may be rendered- against tbe person from whom be derives title. Tbe rule," however, does not operate to annul the conveyance, but only to render it subservient to tbe rights of tbe parties to tbe action. The original petition was a proceeding in rem to subject real estate to tbe payment of the plaintiffs’ demand. Tbe jurisdiction of tbe court to furnisli the relief sought for was based and depended upon the allegation that tbe debt- or intended to make a fraudulent disposition of tbe attached property. As that allegation was not sustained by proof, the court bad no power on that ground to order a sale of the property, nor were the plaintiffs entitled to any relief on their original petition. Tbe purchase was made during tbe pendency of tbe litigation, under tbe original petition. Tbe purchaser held subject to tbe result of that litigation, and subservient to the rights of the plaintiffs arising out of it. As, however, tbe plaintiffs were not entitled to a judgment upon the matters then in litigation, are the rights of the purchaser to be affected by another distinct ground of equitable relief, which was subsequently asserted.by them in an amended petition? An entirely new lis pendens was created by this amendment. By it tbe plaintiffs’ right to come into a court of equity was placed upon a different and distinct ground. It did not operate as a continuation of the original equity which bad been re lied on, but asserted an additional and independent ground of equitable relief. It presented an entirely different state of case, and amounted, substantially, to a new cause of action. The lis pendens which it created can not be- permitted to relate back to the commencement of the action, so as to affect intervening rights.”

The judgment obtained in this action was not based upon the ground for equitable relief set up by appellant in his action' against the remaindermen; on the contrary, this court decided adversely to him on the issues raised by his pleadings. It is true that the court in the opinion said that if, when the case went back to the lower court, it could be shown that the trust estate of the remaindermen was in statu quo (that is, that it remained intact with its natural advancement in value), then, in that case, a judgment quieting the title might be rendered; but this state of facts was never set up by amended pleading, nor was it attempted to be shown by the evidence. Instead of doing-this, appellants purchased the interest of the remainder-men by the payment of money, and the agreed judgment entered in pursuance of this contract was, in effect, nothing more than the purchase of a quitclaim deed from them. This newly purchased title to the land of the remaindermen can not be allowed to relate back as so to defeat the claim of appellee acquired years before.

We think the chancellor adopted the correct basis in estimating the value of the interest of Mrs. Caldwell. Appellee could not acquire a greater interest than Ms mortgagor, and as the parties, by their own agreement, fixed the value of the interest of both the remaindermen at $1,000, Mrs. Caldwell’s interest was justly placed at $500. It does not alter the status of matters to show that Mrs. Caldwell actually got the whole sum of $1,000 paid for the outstanding interest. As a matter of law, she was only entitled to one-half this sum, and this must be considered as the real value of her interest, and the value of her interest mnst limit the right of appellee’s recovery under his mortgage.

Wherefore the judgment of the chancellor, both upon the original and cross appeals, is affirmed.