Worthington v. Campbell

• Decision Date: 09 November 1886
• Citation: 1 S.W. 714
• Parties: WORTHINGTON v. CAMPBELL.
• Court: Kentucky Court of Appeals

1 S.W. 714

WORTHINGTON v. CAMPBELL.

Court of Appeals of Kentucky.

November 9, 1886

Appeal from Pendleton chancery court.

Leslie T. Applegate, for appellant, Worthington. C. H. Lee, for appellee, Campbell.

LEWIS J.

By the terms of the judgment rendered in this action, April 7, 1882 appellant, Worthington, was given an election to either consent to a resale of land which he purchased at $750 under the judgment in the action brought by him against Campbell or to a rescission of the original contract between him and Campbell; and it appears that he did, in open court, exercise that election by abandoning his purchase at the judicial sale. But April 12, 1882, during the same term, the court, as it had the power to do, so modified the first judgment as that Campbell was not to be held bound in any event for more than the value of the use of the land while he held it under the contract of sale, and the value of personal property which he got of Worthington with the land, which he never returned, or offered to return; and it was at the same time adjudged that, on account of that modification, Worthington be allowed to withdraw his election, or to change it.

The practical effect of the judgment, as modified, was to vacate the judgment rendered in the previous action of Worthington v. Campbell, and to set aside the sale of the land made under it, and also to rescind the contract between them as to the land; for if Campbell was not to be held liable in any event for more than the value of the use of the land while held by him under his purchase, and the value of the personal property which he got under the contract, it necessarily followed that the original contract was pro tanto rescinded, and the judgment of the previous action, and the sale under it, were vacated and set aside; and, if this be so, there was nothing else to be thereafter done in this case but to restore the possession of the land to Worthington, render judgment in his favor for the value of the rents while Campbell or his committee was in the possession, and for the value of the personal property subject to a credit for the amount of interest on the purchase price of the property paid by Campbell before his committee was appointed, for it appears he did pay one installment of interest. But it appears that October 12, 1882, an order was made directing the receiver of court to take charge of the land, and collect rents from tenants, and to rent the land again, and on the same day the receiver filed a report. He also made a report at the next term.

April 12, 1883, a judgment was rendered for a sale of the land, and it was directed therein that the proceeds of the sale, after paying costs, be applied to the...