Bullitt v. Eastern Kentucky Land Co.

• Decision Date: 29 May 1896
• Citation: 99 Ky. 324,36 S.W. 16
• Parties: BULLITT et al. v. EASTERN KENTUCKY LAND CO.
• Court: Kentucky Court of Appeals

36 S.W. 16

99 Ky. 324

BULLITT et al. v. EASTERN KENTUCKY LAND CO.

Court of Appeals of Kentucky.

May 29, 1896

Appeal from circuit court, Menifee county.

"To be officially reported."

Action by the Eastern Kentucky Land Company against Thomas W Bullitt and others. Judgment for plaintiff, and defendants appeal. Reversed.

W. B Dixon and T. W. Bullitt, for appellants.

A. T Wood, for appellee.

PAYNTER J.

By executory contract the Bullitts conveyed to the Eastern Kentucky Land Company a boundary of land situated in Menifee county, supposed to contain 3,000 acres, for the sum of $5,000. Twenty-five hundred dollars was cash, and the balance to be paid under certain conditions of the contract. If there were less than 3,000 acres in the boundary, then the price was to be at a given sum per acre, and in no event was the price for the whole boundary to be more than $5,000. This action was instituted by the appellee in the Menifee circuit court to rescind the contract, to recover the sum paid thereon, and to enforce a lien therefor on whatever part of the boundary of land belonged to the Bullitts. The contract required the vendors to free the land of squatters, and place the vendee in possession of it. It was alleged that the vendors had failed to do either, that part of the land was in possession of squatters, that the vendors could not comply with the terms of the contract by making a deed with covenants of general warranty, etc. The alleged squatters were made defendants to the action, and served with process in Menifee county. The Bullitts, who resided in Jefferson county, were served with process in that county.

If the contract was rescinded, and any part of the land embraced in the contract belonged to the vendors, we are of the opinion the vendee had a lien thereon to reimburse it for any sum which it had paid the vendors on the purchase money notwithstanding the vendors failed to place it in possession of the land. In many cases in this court, when the vendee had taken possession of land under a purchase, and afterwards the court rescinded the contract, the vendee was adjudged a lien for such purchase money as he had paid the vendor. In these cases, the court recited the fact in its opinion that the vendee was in possession under his purchase. While the court recited the fact of the vendee's possession, it did not hold, in terms, that the vendee would not have been entitled to the lien except for such possession. One who enters upon land under a parol contract cannot maintain an action to enforce it, but he has a lien upon it for whatever he may have paid for, or improvements made on, it. Speers v. Sewell, 4 Bush, 239; Usher's Ex'r v. Flood, 83 Ky. 563. It is a resisting equity, and the court will not deprive the vendee of his possession until he is reimbursed. In such states of case, courts of equity endeavor to place the parties in statu quo, as they do in cases of rescission of contracts of sales of land. We can see no reason for the rule which would deny a vendee a lien upon the land for the money he had paid the vendor, simply because the vendor had broken his contract in failing to place the vendee in possession of the land. The equitable title to whatever land the vendors actually owned within the boundary sold was conveyed to the vendee. If there is a rescission of the contract, the vendee should not be compelled to surrender this equitable title to the land until it has been reimbursed the sum paid the vendors. In Bibb v. Prather, 1 Bibb, 316, it does not appear whether or not the vendee had been placed in possession of the land. The contract was rescinded, and the court adjudged that the lien existed. In Miller v. Hall, 1 Bush, 237, the inference is that the bidder at a judicial sale did not get possession of the land; but the court held that, for the money he paid before the judgment under which the sale was made was superseded or appealed from, he was entitled to a lien on the land. In Vaughan v. Myers, 2 Dana, 113, the conveyance was set aside, which was made under a sale by the sheriff under an execution against Myers, and the court held, as Myers was insolvent, it was proper to allow Vaughan, the purchaser, a lien on the land conveyed to him to recover the...