Roberts v. Brown

261 S.W. 614, 203 Ky. 11, 1924 Ky. LEXIS 833

• Court: Court of Appeals of Kentucky
• Decided: May 2, 1924
• Status: Published

Opinion

Opinion op-the Court by

Judge Thomas

Affirming.

Tbe appellees and plaintiffs below, Charlie Wood Brown and others, filed this action against the partnership of Abell & Hurst, composed of appellant G-eorge M. Abell and Len H. Hurst, to recover the balance due on a note for $5,000.00 executed by defendants to plaintiffs on June 30,1920, the amount unpaid being about one-half of the principal sum. At the same time -an attachment was ■sued out which the sheriff levied on the unexpired portion (about three years) of a leasehold interest held by defendants on about forty acres of land in Nelson county belonging to appellant, Edmonia Roberts. Tbe lease was executed by her on September 10, 1919, to Abell, Brown & Company, composed of defendant, George M. Abell, and tbe plaintiffs in tbis action. It ran for a period of five years from tbe first day of January, 1920, and was in consideration of a total rental of $500.00 payable annually, tbe first installment to be due for tbe year 1920. Subsequently plaintiffs, as members of tbe lessee firm, sold their interest to defendants, Abell & Hurst, and tbe note sued on was executed in part payment for tbe transfer of that lease to tbe new firm. The lessor, Mrs. Roberts, filed an intervening petition in tbe cause in wbicb sbe averred that sbe was induced to execute tbe lease because of ber great confidence in the dependability of George M. Abell, and that but for that fact sbe would not have executed it, and by reason thereof it was understood and agreed that when be ceased to be a member of tbe lessee firm and became no longer interested in tbe lease it should terminate, and that, since tbe sale under tbe attachment of tbe unexpired term would bring about that result, it was not subject to sale for tbe payment of bis debts, and sbe asked that tbe court so adjudge and to, in effect, cancel tbe lease and restore to ber tbe possession of tbe leased premises.

Hurst made no answer in tbe case whatever, nor did Abell defend bis liability on tbe note, but only denied tbe grounds of attachment. A default judgment was entered for tbe unpaid balance of tbe note and, following that, tbe grounds of attachment were tried, as was also the issue raised by tbe intervening pleading, when tbe court dismissed tbe latter, sustained tbe attachment and ordered a sale by tbe sheriff of the unexpired time of tbe lease, from which orders Mrs. Roberts and defendant Abell prosecute tbis appeal.

It perhaps should be first stated that there was no averment in tbe pleading of Mrs. Roberts of any fraud or mistake in tbe draft of tbe lease, without wbicb nothing but its terms may be examined in disposing of tbe isgpe presented by ber pleading. It is therefore contended that tbe lease itself sustains ber interpretation thereof, and that contention is based upon a clause therein saying: “That first party (Mrs. Roberts) has leased to second party (George M. Abell and bis associates) and to tbe successors in partnership with second party, George M. Abell,” and also upon a statement contained in tbe last clause of tbe lease which says: “This contract is to expire in the event of the death of the first party or of second party, George M. Abell, at the option of the survivors of this partnership.” It is strenuously insisted that the two excerpts from the lease sustain the contention of the lessor, but we are unable to agree with that contention. The caption of the lease names as second parties all of the lessees, including George M. Abell, and the first excerpt above, which immediately follows the caption, does not subtract from or add to the status of George M. Abell as a lessee. At most it contains but a useless effort to render his partners or associates also lessees with him. If the lease had been executed to him alone, it being for a longer term than two years, it is conceded that it would have been assignable without the consent -of the lessor in the absence of some stipulation to the contrary, and we find nothing in the language even impliedly providing for any such stipulation.

The excerpt from the last clause in the lease rather fortifies our construction above than to support counsel’s interpretation. There is an express provision therein for the termination of the lease, but it is confined only to the event of the death of George M. Abell, and if it had been the intention to also provide for its termination upon his retirement as lessee before his death, it would have been easy to have said so, and no place in the lease could be found more appropriate for that purpose. Furthermore, in that same provision, it is said that the lease might expire ‘ ‘ at the ■ option of the survivors of this partnership,” which necessarily means the lessee partnership and left it optional with them as to whether the lease should then expire, even upon his death. We, therefore, conclude that the court properly dismissed the intervening petition of Mrs. Roberts.

It is next insisted (a), (and which may only be made in the proper manner, by Abell, the defendant lessee) that the sheriff did not properly levy the attachment on. the unexpired leasehold interest, and (b), that the order of the court directing its sale by the sheriff under the attachment did not fix the amount of the debt to be paid with the proceeds of the sale. We are not altogether clear as to whether either of those contentions can be made by Abell on this appeal, since no sale has yet been made and probably the appropriate time and place to' raise those questions would be upon exceptions to the sale after it was made. But, passing that point and treating the questions as properly presented for determination, it is urg’ed on this appeal that contention (a) should be sustained because the attached property (the unexpii-ed leasehold interest) was personalty of a nature and character incapable of manual delivery and of which the sheriff could not take corporeal possession, in which case the lev3" of the attachment upon it should be made as directed by subsection 3 of section 203 of the Civil Code of Practice, i. e., ‘ ‘ By delivering a copy of the order with a notice specifying the property attached to the person holding it,” and it is insisted that no such notice was given in this case. Counsel, however, is evidently mistaken because it was shown that Abell was in possession of the leasehold property and was pasturing the leased land, and the sheriff gave to him a copy of the order of attachment in which there was a notice specifying the leasehold interest as the property sought to be attached.

In support of contention (b), we are cited to a number of cases defining the requisite certainty of judgments and orders directing the sale of property, in which it is held as a general proposition that the directions to such officer should be contained in the judgment, and not left to be obtained by him from other parts of the record. We fully agree with that principle of the law relating to judgments, but we do not regard it as applicable to the facts of this case. The purpose of its promulgation was to make it obligatory upon the court in its judgment to fix and determine the facts by which the officer should be guided in making the sale and not leave the determination to be made by the officer from other papers in the cause. In other words, when the record contains an adjudication of those facts, they need not be repeated in the order directing the sale, though rendered later in the progress of the cause. The sheriff, therefore, in this case could and should look to the default judgment in order to obtain the amount of money to be raised by the sale of the property which he was ordered to make, and in conformity to the provisions of section 696 of the Civil Code of Practice, he should insert that amount in his advertisements of the sale.

We, therefore, conclude that no error was committed in rendering the judgment appealed from, and it is therefore affirmed.