Haag v. Dixon

• Decision Date: 28 January 1913
• Citation: 152 S.W. 930,151 Ky. 768
• Parties: HAAG et al. v. DIXON et al.
• Court: Kentucky Court of Appeals

152 S.W. 930

151 Ky. 768

HAAG et al. v. DIXON et al.

Court of Appeals of Kentucky.

January 28, 1913

Appeal from Circuit Court, Henderson County.

Action by the Ohio Valley Banking & Trust Company against Joseph C Dixon and others. From the judgment, certain defendants appeal and others cross-appeal. Affirmed.

Vance &amp Heilbronner, of Henderson, for appellants.

Yeaman & Yeaman and John C. Worsham, all of Henderson, for appellees.

CARROLL J.

Before and after 1907, Joseph C. Dixon, his wife and two of his three children, who were adults, mortgaged land owned by them to the Ohio Valley Banking & Trust Company to secure loans made by it to Dixon in 1905, 1908 and 1911. On November 27 1907, Dixon his wife, and his two adult children entered into a contract with Frederick Haag, the appellant, by which they leased to him for a term of five years, beginning on January 1, 1908, their farm of 392 acres in Henderson county, in consideration of a rental of $1,140 a year. It was also provided in this contract that: "The said lessee shall have the option to purchase the said farm at any time during the said lease at the price of $24,000, but the said Joseph C. Dixon reserves the right after the expiration of two years to withdraw the proposition to sell said farm to said Haag for $24,000 unless the said Haag after four month's notice of such intention of said Dixon shall complete the purchase of said land by paying therefor the said sum of $24,000, or making other satisfactory arrangements for the purchase thereof."

In April, 1911, the Banking & Trust Company brought its suit against the Dixons, making Haag and one Aaron Mann assignee of Haag parties, for the purpose of enforcing its mortgage lien upon the property. To this suit Haag and Mann filed the answer, which was made a cross-petition against the Dixons. In this pleading it was averred that Mann had acquired from Haag an interest in the lease contract and all the rights arising thereunder, and that they had frequently notified the Dixons, in accordance with the provision of the contract giving Haag an option to purchase the land; that they were ready and willing to comply with the contract to purchase; and they asked a specific performance of the contract. They further set up in this pleading that Joseph C. Dixon had an infant daughter, Margaret Dixon, and that their offer to purchase the land under the option was conditional upon being protected against the interest of the infant, Margaret, who had not joined in the contract, and who in fact was never made a party to these proceedings and is not a party to this appeal. They further set up that under the written contract, as well as under a verbal contract made with Dixon, they had expended, in making improvements on the land during the term of the lease, $3,385.78, and they asked a judgment against the Dixons, excepting Margaret, for this amount, and also that they be adjudged a lien on the land to secure its payment.

After the case had been prepared for trial, the chancellor rendered a judgment dismissing the pleading of Mann and Haag in so far as it sought a specific performance of the contract, giving them a right to purchase the land, but gave judgment against the Dixons, excepting Margaret, for $1,685.78 on account of improvements and repairs made by them on the land, and gave them a lien on the leased land, subject to the prior lien of the Banking & Trust Company to secure its payment. The judgment also provided for the enforcement of the lien of the Banking & Trust Company and protected the interest of the infant, Margaret. From this judgment, Haag and Mann prosecute this appeal, and the Dixons prosecute a cross-appeal from the judgment in favor of Haag and Mann against them on account of improvements and repairs, insisting that this judgment was for $359.78 more than it should have been.

As we understand the record there are only two questions for our consideration: (1) Whether the judgment in favor of Haag and Mann against Dixon is larger than it should have been; and (2) whether or not Haag and Mann are entitled to a specific performance of their contract with the Dixons.

So far as the judgment in favor of Haag and Mann against the Dixons is concerned, we are not disposed to disturb the finding of the chancellor. This judgment involved a settlement of accounts between the parties and presented merely a question of fact; and, while some of the items in the account were disputed by Dixon, the evidence that the amount allowed is correct is well sustained, and we are not disposed to disturb the conclusion reached by the chancellor.

On the question of Haag and Mann being entitled to a specific performance of the contract, we have been furnished with elaborate briefs by the attorneys for Haag and...