Bent v. Barnett

• Decision Date: 30 October 1890
• Citation: 14 S.W. 596,90 Ky. 600
• Parties: BENT et al. v. BARNETT.
• Court: Kentucky Court of Appeals

14 S.W. 596

90 Ky. 600

BENT et al. v. BARNETT.

Court of Appeals of Kentucky.

October 30, 1890

Appeal from Louisville law and equity court.

"To be officially reported."

Hargis & Eastin and H. L. Stone, for appellant.

John S Jackman, for appellees.

PRYOR J.

W. A Barnett, the father and statutory guardian of his infant children, five in number, entered into an agreement with one Shryock, by which he leased to Shryock a three-story brick building in the city of Louisville for the term of seven years, the lease to begin on the 1st of January, 1876. The object of the lease was to enable Shryock, who was an architect, to reconstruct the building, and then rent it out and apply the rental to a lien held by the Herberts for the purchase money and to the payment of the cost of reconstructing the building, that cost being estimated at nearly $15,000. Barnett had purchased in his own right the interest of the Herberts in this property, which was 9-32, at the price of $4,500, for which he gave his notes. He also owned 1-6 of 23-32 by inheritance from one of his children. The five children owned the remaining interest in the building, and this was its condition as to title when the guardian made the lease to Shryock. Barnett then made a contract as guardian and in his own right; for he then had an interest in the property with the appellants I. M. Bent & Co. to execute the stone-work on the building, for which he was to be paid $7,393.50, and for this he executed notes. He also gave a lien on the rents, and a mechanic's lien on the property. He made contracts with other parties for work and materials, the entire building costing before its completion the sum of $21,959.06. In January, 1876, he executed another lease to Shryock & Bent in his own right, and as guardian, for the term of seven years, under which the lessees were to rent out the building, and pay taxes, insurance, and repairs; to pay the infants a certain sum per month, ($50;) and the balance to be applied to the payment of the costs of reconstruction, the debts that had already been incurred, as well as those thereafter incurred, necessary to the completion of the building, and also to pay the Herbert heirs the purchase money due them by him, Barnett. One of the material-men, Robert Briggs, shortly after this lease was made, filed his petition in the Louisville chancery court to enforce his mechanic's lien under a contract with Barnett. When this petition was filed, the children, by Thornsberry, their next friend, filed their petition against their father, who was their statutory guardian, alleging that they were suffering for the necessaries of life, and had or were receiving no income from their estate. The cases were consolidated, and the creditors who had worked upon and furnished materials in erecting the building asserted their liens. The heirs of Herbert filed their petition, or asserted their claim for the purchase money due them by the guardian, and after this purchased back their interest, thereby divesting Barnett of the title he had received from them. The consolidated causes were submitted to the chancellor, who enforced the lien of the Herbert heirs, and a mechanic's lien on the 1-6 of 23-32 of the building that came to Barnett by inheritance, in favor of certain mechanics and material-men who had complied with the law, and further directed that from the renting under the lease to Shryock & Bent, the taxes, insurance, and repairs were to be paid, $50 a month to the children, and the balance of the rents to be paid out to the workmen and materialmen in proportion to their respective claims. Bent & Co., it seems, had purchased material and employed labor on the building, and at the expiration of the seven years' lease had received nothing for their work and material furnished. They then tendered a supplemental petition, alleging that the work they did on the building was necessary to make it habitable; that it had greatly enhanced its value, and nothing had been received by them from the rents. They asked that the property be placed in the hands of a receiver, and the rents applied to the payment of their debt. They also claim that Barnett was a co-tenant with his children, and had the right to make the improvement, and therefore they were entitled to be substituted to his rights so that they could compel the children as co-tenants to contribute to the costs of reconstruction. A general demurrer was filed to the petition as amended, and sustained by the vice-chancellor, and the appellants declining to plead further, their petition was dismissed, except as to their claim against Barnett in his individual right.

Barnett it seems had gone into bankruptcy, and had but little if any estate when these contracts with reference to the reconstruction of the building were made and executed. The question presented is, were the plaintiffs on the facts...