Dant v. Head

• Decision Date: 10 June 1890
• Parties: Dant v. Head.
• Court: Kentucky Court of Appeals

90 Ky. 255

Dant v. Head.

Court of Appeals of Kentucky.

June 10, 1890.

APPEAL FROM MARION CIRCUIT COURT.

ROWNTREE & LISLE FOR APPELLANT.

HARRISON & BELDEN FOR APPELLEE.

CHIEF JUSTICE LEWIS DELIVERED THE OPINION OF THE COURT.

September 12, 1881, appellee, in consideration of four thousand dollars, sold and conveyed to appellant his interest in a tract of land leased jointly with B. F. Bryant from R. C. O'Bryan for ten years, beginning June 1, 1879, upon which was a distillery.

The deed, in addition to the contract for sale of the realty, contained the following: "It is hereby covenanted and agreed that said F. M. Head, party of the first part, for and in consideration of one hundred dollars per annum, payable at the end of each year during the time of the present lease from R. C. O'Bryan, which is eight years from June 30, 1881, sells, conveys and confirms unto said J. B. Dant, his heirs, executors and assigns, all his right, title and interest in or to a certain distiller's brand, known to the trade as `F. M. Head & Co.' To have and to hold all and singular the above mentioned premises, together with all and singular the appurtenances," &c.

November 28, 1883, appellee instituted this action for judgment on the second installment of purchase price of the brand mentioned, which became due September 12, 1883, the first having been paid, and judgment also upon the remaining six installments, to take effect as they respectively become due. The judgment rendered was for recovery of the second installment, together with interest, and that defendant be required to show cause by the next term of court why he should not be adjudged to pay these other installments, which the plaintiff suggested to the court had then become due and remained unpaid. Power to enforce payment of the other installments from time to time was reserved.

Section 135, Civil Code, provides: "A party may be allowed on motion to file a supplemental pleading alleging material facts occurring after the filing of the former pleading; but if a plaintiff, having a lien for a debt due and a debt not due upon property which he seeks to subject, state both claims in his petition, he may, upon a suggestion of record that one of them has become due, pendente lite, have judgment for a sale of the property therefor."

A plaintiff may, under that section, by supplemental pleading, allege another or other notes of the same series, and given for the same consideration as the one sued on, have become due during pendency of the action, and have judgment therefor. But it does not seem to us a mere suggestion on record of such fact was intended to authorize judgment on a note not due when the action was commenced, except when a lien on property to secure it exists. It thus results the only judgment appellee was entitled to as the the record stands, if any at all, was for amount and interest of the installment sued on.

The main defense set up in the answer, to which a general demurrer was sustained, is, that the agreement sued on is not enforceable, because within operation of section 1, chapter 22, General Statutes, as follows: "No action shall be brought to charge any person * * * * upon any agreement which is not to be performed within one year from the making thereof, unless * * agreement * * * or some memorandum or note thereof be in writing, and signed by the party to be charged therewith, or by his authorized agent; but the consideration need not be expressed in writing; it may be proved when necessary, or disproved by parol or other evidence."

It was definitely settled by this court as early as Roberts v. Tennell, 3 Mon., 247, that a parol agreement to pay money, though not to be done within a year, is not void if the consideration be legal. In that case a distress warrant for rent, payable in two years, was issued, and the court said: "On a verbal lease for more than a year no action will lie; but as the statute has not declared the lien void, any use may be made of the lease by either party, except that of maintaining an action upon it. The lessee, therefore, in case he enters in virtue of the lease, may use it for the purpose of showing he is no trespasser; and after he has enjoyed the leased premises for a term, he will be liable for the rent, not upon the express contract, but...