Thompson v. Elmore

• Decision Date: 14 January 1892
• Citation: 18 S.W. 235
• Parties: Thompson v. Elmore et al.
• Court: Kentucky Court of Appeals

18 S.W. 235

Thompson v. Elmore et al.

Court of Appeals of Kentucky.

January 14, 1892

Appeal from court of common pleas, Fayette county.

"Not to be officially reported."

Petition by S. F. Thompson against Kitty B. Elmore and another. Judgment for defendants. Plaintiff appeals. Reversed and remanded.

Holt C.J.

In 1871 the appellant, S. F. Thompson, sold a tract of land in Fayette county to the appellee Kitty B. Elmore and her husband, J. J. Elmore, taking their notes for the unpaid purchase money, for which the deed, which was made to the wife, retained a lien. In 1879 the husband sold to Thompson by written contract, a tract of about 216 acres of land in Jessamine county, and as a part of the first payment of the purchase money the latter surrendered to Elmore the note for the balance then owing for the Fayette land, and which then amounted to about $2,500. Elmore assigned to Thompson the note of the tenant for 1879, and the latter went into possession in March, 1880. Elmore had previously conveyed 106 acres of the land to one Lundy, but the purchase money was unpaid, and the title in Lundy's heirs, he having died. The contract between Thompson and Elmore provided that the latter was "to take steps to enforce his lien on said land, and procure the title to himself. So soon as he can accomplish this the said Elmore is to make the deed to the said Thompson." The notes for this unpaid purchase money were then held by one Hanna, Elmore having assigned them to him to secure a debt. The balance of the land was under mortgage to one Patterson for $3,000. The appellant Thompson, claims Elmore represented to him that he held the Lundy notes, and, saving them, that there was nothing against any of the land; thus fraudulently inducing him to make the purchase. It is said this claim is unsustained, because, while Thompson so testifies, Elmore contradicts him. There are other circumstances, however which sustain Thompson. The contract between them does not mention the Patterson mortgage, nor speak of Hanna being the holder of the Lundy notes. In fact, referring to Elmore, it speaks of them as "his lien." Moreover, the appellant, counting the balance owing upon his Fayette land note, paid to Elmore over $3,000, leaving him owing but about $6,600, when the liens on the land amounted to over $8,300. This we can hardly presume he would have done if he had known of their existence, and that they were held by third parties. The appellant, disregarding the purchase by him of Elmore, sued to recover the balance that was owing to him for the Fayette land when he purchased the Jessamine land, and to enforce a lien therefor.

The petition states that the note had been obtained by the Elmores by fraud. Before an answer was filed the appellant filed an amended petition, fully setting forth the purchase by him of Elmore, the false representations by him as to the land, his inability to make title, the liens against the land, the insolvency of Elmore, and asking a rescission of the contract upon equitable principles, he offering to account for the reasonable use or rent of the land while held by him. This pleading was improperly stricken from the files. Its object was to annul the transaction through which the appellant's note was obtained by the Elmores. They then pleaded payment. An agreed state of facts was filed, evidence taken, and on April 10, 1883, the court entered a judgment giving the appellant a lien upon the Fayette land for the balance unpaid upon his note when it was surrendered to the Elmores at the time of his purchase of the Jessamine land and referred the case to a commissioner under proper directions to ascertain how much he was owing, if anything, by reason of the use or rents of it. The judgment further provided that whatever might be found due upon this account should be first applied in discharge of a written agreement by J. J. Elmore to pay extra interest for indulgence upon the indebtedness to the appellant, and that the balance, if any, should go as a credit upon the principal. The commissioner acted; made a report; exceptions were filed to it by...