Dean v. Cassiday

• Decision Date: 16 May 1889
• Citation: 11 S.W. 601,88 Ky. 572
• Parties: DEAN v. CASSIDAY et al.
• Court: Kentucky Court of Appeals

11 S.W. 601

88 Ky. 572

DEAN v. CASSIDAY et al.

Court of Appeals of Kentucky.

May 16, 1889

Appeal from circuit court, Marion county; W. E. RUSSELL, Judge.

"To be officially reported."

Action by Mary E. Cassiday against Philip Dean and another. Dean appeals.

G. W Craddock, S. Cleaver, and Chas. F. Exum, for appellant.

Rowntree & Lisle, for appellees.

HOLT J.

The appellee Mary Cassiday is the mother-in-law of the appellant Philip Dean. He was the owner of a vacant lot, worth about $400. Under a verbal contract between them she erected a brick business house thereon, costing over $2,000, and improving the property in that sum. They do not agree as to the character of the contract. He testifies, in substance that she was to have the rent of the property during her life, as compensation for building it. She says in her petition that she was to have the use of it for her life with the privilege of selling it at any time, if she desired and paying him $400 of the proceeds. In her testimony, however, she says that nothing was said as to her selling it, but that she was to have the rents. Both agree, however, that the contract was verbal. Some time after the erection of the store-house she, without the knowledge of the appellant, who did not live in the vicinity, sold it to one Graham. He paid a portion of the purchase money to her, and this action was brought against him by her upon the notes for the remainder of it, the appellant also being made a defendant. The latter objected to the sale, and, as a necessary result, owing to his being a title-holder, the sale to Graham was rescinded, with a reference to the master to ascertain the value of the rents and improvements by Graham, and how much purchase money he had paid to Mrs. Cassiday. The appellant, Dean, objected to any sale of the property, and insisted upon the fulfillment of the contract between him and his mother-in-law, as he understood it. The lower court held, however, that there was no binding contract between them. It ordered a sale of the property, the proceeds to be divided between the appellant and the appellee in the proportion of $400 to $2,130, the value of the lot and the improvements being thus fixed, respectively, by the court, and the claims of Graham to be satisfied out of what might be coming to Mrs. Cassiday. Rents were, when ascertained, to be accounted for by Mrs. Cassiday to the appellant in the same ratio. The appellant now insists that it was error to order a sale of the property, because he was willing and consented by his pleading to carry out the contract with Mrs. Cassiday, and let her have the rents of the property during her life; and that as he was not questioning her right to the use of it, and she had gone into possession, she could not treat the contract as within the statute of frauds, and abandon it, and look to the property for pay for her improvements. It is true the statute does not declare parol contracts as to land void, but merely provides that no action shall be brought to charge any person thereon. They are often, therefore, as was said in Gudgell v. Duvall, 4 J. J....