Jordon v. Nickell

• Decision Date: 05 December 1952
• Citation: 253 S.W.2d 237
• Parties: JORDON v. NICKELL.
• Court: United States State Supreme Court — District of Kentucky

Page 237

253 S.W.2d 237

JORDON v. NICKELL.

Court of Appeals of Kentucky.

Dec. 5, 1952.

C. F. See, Jr., Louisa, for appellant.

E. E. Adams and C. L. Miller, Louisa, for appellee.

DUNCAN, Justice.

The appellant, Ernest Jordon, Sr., appeals from a judgment which awards appellee $1,533.33; cancels as fraudulent a conveyance made by appellant to his brother; adjudges appellee a lien upon the real estate covered by the conveyance and orders a sale thereof in satisfaction of the judgment.

Prior to July 9, 1948, appellee owned and operated at Fallsburg, Kentucky, a grocery store and filling station. The business was conducted in a two-story business building, with a large store room on the first floor and apartments on the second floor. On July 9, 1948, appellee exchanged the merchandise at invoice price for some cattle belonging to appellant, paying appellant the difference between the value of the cattle and the merchandise.

At the time of the sale of the merchandise, appellant and his son, Ernest Jordon, Jr., planned to continue the business at the same site. It was agreed between the parties that the business building was to be leased to the Jordons, and appellee and appellant went together to the office of an attorney where a written lease was prepared. The lease was for a term of five years and provided for an annual rental of $400, payable in quartely installments. After some minor changes not affecting the term or rental payments, appellee and Ernest Jordon, Sr., signed the lease. It was left in the office of the attorney for the signature of Ernest Jordon, Jr., but was never signed by the latter, and was never delivered to the lessees by the attorney.

The Jordons took possession of the leased premises on July 9, 1948, and continued the operation of the business, with Ernest Jordon, Jr., occupying one of the upstairs apartments. On September 15, 1949, the merchandise was removed from the store building and taken to the residence of Ernest Jordon, Sr. Soon thereafter, Ernest Jordon, Jr., vacated the part of the building occupied by him, and the building has remained vacant since that time. On September 20, 1949, appellant executed a deed to his brother, Conard Jordon, conveying a farm which, apparently, constituted all or a major portion of appellant's assets. The circumstances surrounding this transaction and the conflicting stories of appellant and the grantee concerning its details compel the conclusion that appellant was attempting to place himself beyond the reach of execution or attachment in connection with any possible liability under this lease.

On December 22, 1949, appellee filed this action, seeking to recover the balance of the rental for the full five-year term of the lease and to cancel as fraudulent the conveyance from appellant to Conard Jordon. The Chancellor entered judgment for the full amount claimed and cancelled the deed. Ernest Jordon, Jr., was not named as a defendant, and although he attempted to intervene in the lower court, no judgment was rendered against him. Ernest Jordon, Sr., appeals, insisting that the judgment should be reversed because: (1) the lease sued on was invalid for want of munual delivery; (2) appellee should have been required to minimize the damages by re-renting the premises; (3) an action to collect the full term rental could not be maintained until after the expiration of the term. We shall consider these contentions in the order here given.

Notwithstanding the fact that there was no manual delivery of the lease, appellant took possession of the premises and exercised all rights conferred upon him by its terms. The rule respecting delivery when the lessee has taken possession under a lease is stated in 51 C.J.S., Landlord and Tenant, Sec. 219, p. 824, as follows:

'* * * an actual manual transfer of the instrument is not essential, and, where it is intended that a lease should be considered as delivered, it will not, at least as between the lessor and the lessee, be invalid for want of delivery because of the fact that it remains in the lessor's possession. * * * Where the lessee by formal assent or unequivocal acts, such as entering into possession, treats the instrument as in his possession, it is generally sufficient to show a delivery'.

We think the parties treated the lease as a delivered instrument and that it was not invalid for want of manual delivery.

As we have indicated, the property has remained vacant continuously since appellant surrendered possession. Appellant...