Opinion of the Court by
Chief Justice Clay
Affirming.
On February 25, 1935, A. J, Asber instituted a forcible detainer proceeding against Bob Roberts in tbe county court of Leslie county. -Tbe property involved is located on Short creek, in that county, and is known as “tbe Mack Mosley place.’’’ Tbe jury returned a verdict in favor of Asber, and in due time Roberts filed a traverse and proper bond, and tbe proceedings were transferred to tbe circuit court. There the cause was submitted to tbe court for trial without the intervention of a jury, and tbe court, after stating in writing its conclusions of fact separately from its conclusions
of law, again found in favor of Asher. Prom that finding, this appeal is prosecuted.
The facts disclosed by the record and found by the circuit court may be summarized as follows: Several years ago Asher leased the premises to Roberts, and the lease was renewed from year to year.
On May 2, 1932, Asher conveyed the premises and other property to Sidney Helton, wife of Carter Helton; by deed absolute on its face, and giving the consideration as $1 and o|;her good and valuable consideration. On the same day Asher, as party of the first part, entered into a written agreement with Sidney Helton and Carter Helton, her husband, parties of the second part, and Morgan Helton, party of the third part, reciting that Carter Helton had paid or assumed to pay certain indebtedness of Asher, and stating that the deeds referred to in the agreement were made by Asher to Carter Helton’s wife to indemnify him against loss, and providing that if Asher paid or caused to be paid to Carter Helton the sums which Helton paid and was required to. pay, together with interest, the land should be reconveyed to Asher. It was further provided that Asher should have two years from the date of the contract to reimburse Carter Helton, Sidney Helton, and Morgan Helton for any money they or any of them might pay out for Asher. The written agreement was not put to record.
On May 3, 1934, Sidney Helton and her husband, Carter Helton, conveyed „the property to Parmer Helton, of Rockcastle county, for the recited consideration of $1,500 cash.
Roberts continued to pay the rent for the premises either to Asher or to his agent until January 1, 1935. Soon thereafter Asher demanded the rent for the year 1935, but Roberts refused to pay on the ground that he had rented the premises from Farmer Helton, who claimed to be the owner of the land. According to Roberts, he received no request for the rent for the year 1935, but on or about the middle of February he met Parmer Helton in Hyden, and Parmer Helton told him that he was the owner of the Mack Mosley farm, and he purchased it from A. J. Asher some two years before. He and Parmer Helton then went to the coun
ty clerk’s office and examined the records. They found a deed from A. J. Asher to Sidney Helton, dated the second day of May, 1932, and another deed from Sidney Helton and Carter Helton, her husband, to Farmer Helton, dated May 3, 1934, both absolute on their face. Farmer Helton asked him if he wanted to rent the property again for the year 1935, and he replied that he did. Thereupon he and Farmer Helton agreed upon a lease for the year 1935 at a rental of $25, which amount he paid to Farmer Helton in cash. Some time after that he received notice from Asher to vacate the premises. He took the lease from Farmer Helton in good faith, believing that Farmer Helton was the rightful owner of the land. He had no knowledge or notice, either actual or constructive, that A. J. Asher was still claiming the land or any interest therein, and he had no notice, actual or constructive, of the written contract between A. J. Asher and Sidney and Carter Helton, or of any understanding between them in regard to the land.
The court’s conclusion of law was that Roberts could not deny the title of Asher unless Asher had conveyed . the property, and that the deed which Asher made to Sidney Helton, read in connection with the supplemental agreement of the same date, was in fact a mortgage and did not relieve Roberts of the duty of acknowledging the title and right to possession of his landlord.
The general rule is that the estoppel of the tenant to deny the title of his landlord extends only to the title at the time of the lease, and the tenant is not precluded from showing that the landlord’s title has expired or been extinguished. 16 R. C. L., p. 665, sec. 151. Merryman v. Bourne, 9 Wall. 592, 19 L. Ed. 683. So broad is the rule, that the landlord’s property when sold under execution may be purchased by the tenant in possession thereof, and he is not estopped by the relation that exists between them. Casey v. Gregory, 13 B. Mon. 505, 56 Am. Dec. 581. Indeed we have a statute providing that, if the owner of holder alien or assign his estate or term, or the rent thereafter to fall due thereon, his alienee or assignee may recover such rent, section 2304, Kentucky Statutes; and where, on a conveyance of property subject to lease, the lease is
assigned by the grantor to tbe grantee, the latter is entitled to all the rights of the lessor, not only by virtue of the assignment, but by virtue of the statute, and is entitled to recover the rent. Ventura Hotel Co. v. Pabst Brewing Co., 109 S. W. 354, 33 Ky. Law. Rep. 149. We may also add that the statute (Ky. Stats, sec. 2298) providing that the attornment of a tenant to a stranger shall be void unless .it be with the consent of the landlord, or pursuant to, or in consequence of, the judgment of a court, applies only to a stranger, and the grantee of the landlord is not a stranger within the meaning of the statute or the general rule on the subject. Raines v. Hindman, 136 Ga. 450, 71 S. E. 738, 38 L. R. A. (N. S.) 863, Ann Cas. 1912 C, 347. Furthermore, in view of section 2304, Kentucky Statutes, supra, the general rule that in an action of forcible entry' and detainer, no question of title is involved, does not prevent the tenant from showing that during the tenancy the landlord has conveyed the premises.
It follows from what has been said that Roberts could defend on the ground that Asher had in some way parted with his title. The evidence shows that the deed to Sidney Helton, wife of Carter Helton, though absolute in form, was accompanied by a contemporaneous agreement for a reconveyance of the property on payment of certain debts. It follows that the deed was made for the purpose of securing the debts, and is therefore a mortgage. Skinner v. Miller, 5 Litt. 84; Louisville Joint Stock Land Bank v. Kenner, 255 Ky. 44, 72 S. W. (2d) 751; Bender v. Kaelin, 257 Ky. 783, 79 S. W. (2d) 250. A deed absolute on its face, but in fact a mortgage, will be adjudged a mortgage as between the original parties, and as against a subsequent purchaser with notice, but not against a purchaser for value without notice. Lewis v. Williams, 192 Ky. 763, 234 S. W. 317. No attempt was made by Roberts to put Farmer Helton, the grantee in the second deed, on the stand and prove by him that he purchased and paid value for the property without notice of the defeasance agreement. Indeed Roberts’ position is that when Farmer Helton told him he had purchased the property, and the record disclosed that Asher had conveyed the property to Sidney Helton, and Sidney Helton and husband had conveyed the property to Farmer Helton,
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Opinion of the Court by
Chief Justice Clay
Affirming.
On February 25, 1935, A. J, Asber instituted a forcible detainer proceeding against Bob Roberts in tbe county court of Leslie county. -Tbe property involved is located on Short creek, in that county, and is known as “tbe Mack Mosley place.’’’ Tbe jury returned a verdict in favor of Asber, and in due time Roberts filed a traverse and proper bond, and tbe proceedings were transferred to tbe circuit court. There the cause was submitted to tbe court for trial without the intervention of a jury, and tbe court, after stating in writing its conclusions of fact separately from its conclusions
of law, again found in favor of Asher. Prom that finding, this appeal is prosecuted.
The facts disclosed by the record and found by the circuit court may be summarized as follows: Several years ago Asher leased the premises to Roberts, and the lease was renewed from year to year.
On May 2, 1932, Asher conveyed the premises and other property to Sidney Helton, wife of Carter Helton; by deed absolute on its face, and giving the consideration as $1 and o|;her good and valuable consideration. On the same day Asher, as party of the first part, entered into a written agreement with Sidney Helton and Carter Helton, her husband, parties of the second part, and Morgan Helton, party of the third part, reciting that Carter Helton had paid or assumed to pay certain indebtedness of Asher, and stating that the deeds referred to in the agreement were made by Asher to Carter Helton’s wife to indemnify him against loss, and providing that if Asher paid or caused to be paid to Carter Helton the sums which Helton paid and was required to. pay, together with interest, the land should be reconveyed to Asher. It was further provided that Asher should have two years from the date of the contract to reimburse Carter Helton, Sidney Helton, and Morgan Helton for any money they or any of them might pay out for Asher. The written agreement was not put to record.
On May 3, 1934, Sidney Helton and her husband, Carter Helton, conveyed „the property to Parmer Helton, of Rockcastle county, for the recited consideration of $1,500 cash.
Roberts continued to pay the rent for the premises either to Asher or to his agent until January 1, 1935. Soon thereafter Asher demanded the rent for the year 1935, but Roberts refused to pay on the ground that he had rented the premises from Farmer Helton, who claimed to be the owner of the land. According to Roberts, he received no request for the rent for the year 1935, but on or about the middle of February he met Parmer Helton in Hyden, and Parmer Helton told him that he was the owner of the Mack Mosley farm, and he purchased it from A. J. Asher some two years before. He and Parmer Helton then went to the coun
ty clerk’s office and examined the records. They found a deed from A. J. Asher to Sidney Helton, dated the second day of May, 1932, and another deed from Sidney Helton and Carter Helton, her husband, to Farmer Helton, dated May 3, 1934, both absolute on their face. Farmer Helton asked him if he wanted to rent the property again for the year 1935, and he replied that he did. Thereupon he and Farmer Helton agreed upon a lease for the year 1935 at a rental of $25, which amount he paid to Farmer Helton in cash. Some time after that he received notice from Asher to vacate the premises. He took the lease from Farmer Helton in good faith, believing that Farmer Helton was the rightful owner of the land. He had no knowledge or notice, either actual or constructive, that A. J. Asher was still claiming the land or any interest therein, and he had no notice, actual or constructive, of the written contract between A. J. Asher and Sidney and Carter Helton, or of any understanding between them in regard to the land.
The court’s conclusion of law was that Roberts could not deny the title of Asher unless Asher had conveyed . the property, and that the deed which Asher made to Sidney Helton, read in connection with the supplemental agreement of the same date, was in fact a mortgage and did not relieve Roberts of the duty of acknowledging the title and right to possession of his landlord.
The general rule is that the estoppel of the tenant to deny the title of his landlord extends only to the title at the time of the lease, and the tenant is not precluded from showing that the landlord’s title has expired or been extinguished. 16 R. C. L., p. 665, sec. 151. Merryman v. Bourne, 9 Wall. 592, 19 L. Ed. 683. So broad is the rule, that the landlord’s property when sold under execution may be purchased by the tenant in possession thereof, and he is not estopped by the relation that exists between them. Casey v. Gregory, 13 B. Mon. 505, 56 Am. Dec. 581. Indeed we have a statute providing that, if the owner of holder alien or assign his estate or term, or the rent thereafter to fall due thereon, his alienee or assignee may recover such rent, section 2304, Kentucky Statutes; and where, on a conveyance of property subject to lease, the lease is
assigned by the grantor to tbe grantee, the latter is entitled to all the rights of the lessor, not only by virtue of the assignment, but by virtue of the statute, and is entitled to recover the rent. Ventura Hotel Co. v. Pabst Brewing Co., 109 S. W. 354, 33 Ky. Law. Rep. 149. We may also add that the statute (Ky. Stats, sec. 2298) providing that the attornment of a tenant to a stranger shall be void unless .it be with the consent of the landlord, or pursuant to, or in consequence of, the judgment of a court, applies only to a stranger, and the grantee of the landlord is not a stranger within the meaning of the statute or the general rule on the subject. Raines v. Hindman, 136 Ga. 450, 71 S. E. 738, 38 L. R. A. (N. S.) 863, Ann Cas. 1912 C, 347. Furthermore, in view of section 2304, Kentucky Statutes, supra, the general rule that in an action of forcible entry' and detainer, no question of title is involved, does not prevent the tenant from showing that during the tenancy the landlord has conveyed the premises.
It follows from what has been said that Roberts could defend on the ground that Asher had in some way parted with his title. The evidence shows that the deed to Sidney Helton, wife of Carter Helton, though absolute in form, was accompanied by a contemporaneous agreement for a reconveyance of the property on payment of certain debts. It follows that the deed was made for the purpose of securing the debts, and is therefore a mortgage. Skinner v. Miller, 5 Litt. 84; Louisville Joint Stock Land Bank v. Kenner, 255 Ky. 44, 72 S. W. (2d) 751; Bender v. Kaelin, 257 Ky. 783, 79 S. W. (2d) 250. A deed absolute on its face, but in fact a mortgage, will be adjudged a mortgage as between the original parties, and as against a subsequent purchaser with notice, but not against a purchaser for value without notice. Lewis v. Williams, 192 Ky. 763, 234 S. W. 317. No attempt was made by Roberts to put Farmer Helton, the grantee in the second deed, on the stand and prove by him that he purchased and paid value for the property without notice of the defeasance agreement. Indeed Roberts’ position is that when Farmer Helton told him he had purchased the property, and the record disclosed that Asher had conveyed the property to Sidney Helton, and Sidney Helton and husband had conveyed the property to Farmer Helton,
he had the right to rely on the deeds, both of which were absolute in form, and to pay the rent to Farmer Helton, who appeared of record as the owner of the property, and Asher, who had misled him to his prejudice, was estopped by his deed to Sidney Helton to claim the contrary. Whether this position would be sound under other circumstances, we need not determine; Roberts had entered under Asher, and for years had been paying him the rent. Though Farmer Helton claimed and appeared to be the owner of the property, he acquired title from Sidney Helton, to whom Asher conveyed the property on May 2, 1932. Thus it was apparent to Roberts that, although Asher had conveyed the property to Sidney Helton, he himself for more than two years had been paying the rent to Asher without any claim on the part of Sidney Helton to the rent. We think this circumstance, in view of the relation of the parties, was sufficient to require Roberts to inquire of Asher concerning the situation, and to charge him with notice of all the facts that such inquiry would have elicited, and, therefore, the fact that the deed from Asher to Sidney Helton was a mortgage and not an absolute conveyance. It follows that the payment of the rent to Farmer Helton was not a defense to the action, and that the circuit court properly rendered judgment in favor of Asher.
Judgment affirmed. Whole court sitting.