Daniel v. Daniel

• Decision Date: 14 January 1921
• Citation: 190 Ky. 210,226 S.W. 1070
• Parties: DANIEL v. DANIEL.
• Court: Kentucky Court of Appeals

226 S.W. 1070

190 Ky. 210

DANIEL v. DANIEL.

Court of Appeals of Kentucky.

January 14, 1921

Appeal from Circuit Court, Campbell County.

Action in equity by H. F. Daniel against J. M. Daniel. Demurrer sustained, and petition dismissed, from which judgment the plaintiff appeals. Reversed, with directions.

R. G Williams, of Covington, and Barbour & Bassmann, of Newport for appellant.

C. T Baker, of Newport, for appellee.

CLARKE J.

Appellant who is the father of appellee, owned a small tract of land in Campbell county, which was regularly sold by the sheriff under an execution issued upon a judgment against him in favor of a third party. At that sale the land was appraised at $360, and appellee became the purchaser for $113.10, which he paid. By section 1684, Kentucky Statutes, the owner may redeem land, sold under execution for less than two-thirds of its appraised value, by paying within a year after the sale the purchase price, with 10 per cent. interest, to the purchaser, or to the county clerk if the purchaser refuses to accept same or is a nonresident. When the right of exemption exists the purchaser cannot procure a deed to the land until after the expiration of that right. Appellant did not redeem within the year, and appellee procured a deed from the sheriff at the expiration of the year. Thereafter appellant instituted this action in equity to require appellee to accept the purchase money with 10 per cent. for 1 year and 6 per cent. thereafter, which was tendered with the petition; and to reconvey the land to him. A demurrer was sustained to the petition, and same dismissed, from which judgment this appeal is prosecuted.

Plaintiff admits in his petition that he was aware of his right to redeem the land within a year by paying to defendant the purchase price with 10 per cent. interest, but alleges that he was under the impression the payment had to be made at the courthouse in Alexandria, which was a long distance from where he and defendant resided; that he is about 76 years of age, and has no horse or conveyance; that some weeks before the expiration of his redemption right he went to defendant, and informed him that he had the money, desired to redeem his land, and that he would get a horse from a neighbor, and they would go to Alexandria for the purpose; that defendant, knowing of his erroneous impression that the payment had to be made at the courthouse, agreed to take him there to redeem the land, without any intention of doing so, but for the fraudulent purpose of defeating his right to redeem; that he relied upon this promise held out to him by his son "during and up to the last day" for redemption; and that he did not discover until too late to make other arrangements for the trip within the redemption period that the son would not carry out his promise, and had never intended to do so.

If these allegations are true, and they must be so considered upon the demurrer, the son has acquired an unconscionable advantage of his aged father by taking advantage of the latter's ignorance of the law and trust in him. The son will have lost nothing, in fact will have received a rate of interest, otherwise excessive and usurious, on his money for a part of the time he has been out its use, if the father is granted the relief he asks, whereas if this relief is denied him the father loses his land, and the son gets it for less than one-third of its value. No right of any third party is involved. Must equity stand impotent under such circumstances? The just and equitable course for both parties to pursue is at once apparent to the judicial conscience, and surely it cannot be true, as counsel for defendant would have us believe, that judicial logic and rules of procedure block the way out of the predicament, in which this ignorant and trustful old father finds himself.

No case, of course, is cited where the facts are even remotely analogous to support defendant's contention, but general rules of equity are relied upon, which, being general, are applicable to ordinary cases, and by their very nature are inapplicable where the conditions are unusual and extreme as here.

The...