James' Heirs & Exr's v. McKinsey, Pulaski, 1830

James' Heirs & Exr's. vs. McKinsey.

COURT OF APPEALS OF KENTUCKY

27 Ky. 625; 1830 Ky. LEXIS 343; 4 J.J. Marsh. 625

October 21, 1830, Decided

PRIOR HISTORY:  [**1]  Error to the Pulaski Circuit; JOHN L. BRIDGES, Judge. 

DISPOSITION: Reversed and remanded.

COUNSEL: Owsley, for plaintiffs; Cunningham, for defendant. 

JUDGES: Chief Justice ROBERTSON. 

OPINION BY: ROBERTSON 

OPINION

 [*625]  Chief Justice ROBERTSON, delivered the opinion of the court.

DURING the last war between the United States and Great Britain, James McKinsey, son-in-law of John James, being in the north-western army, his wife was settled by her father, on a tract of land which he (the father) owned.

After his return from the army, McKinsey lived on the land some years with his wife, and having made some improvements upon it, left it in the possession of a tenant, and removed with his wife to Tennessee. The wife having died, James sued the tenant in ejectment, and evicted him. This suit in chancery was afterwards brought by McKinsey, against the executors and heirs  [*626]  of James (he having died in the mean time) for compensation for the improvements.

The bill alleges, that McKinsey was induced by James to settle upon and improve the land, in consequence of a parol gift of it to him and his wife, as an advancement by her father.

The answers deny these allegations of the bill, and insist that the [**2]  use of the land had been worth more than the improvements.

Only two depositions tend to prove the alleged gift. David McKinsey swore that he had heard John James say, that he had settled James McKinsey on the land, and that McKinsey was to be entitled to it by paying $ 20, the state price.

William Clouch swore, that before Mrs. McKinsey settled on the land, and whilst her husband was in the army, he heard her father say, that McKinsey must settle on the land, and that he intended to give it to him, he (McKinsey) paying the state price, $ 20; and he also swore, that shortly after this conversation, Mrs. McKinsey settled on the land.

The circuit court decreed, that McKinsey was entitled to the value of all lasting and useful improvements made by him, before service of the notice in ejectment, and should account for waste if any had been committed, and for rents from the notice, until the possession of the land had been surrendered to John James.

Commissioners appointed to assess the value of improvements &c., having reported that there had been no waste; and that the improvements were worth $ 72, and that the rent, since the notice, was worth $ 12, the circuit court decreed to McKinsey [**3]  $ 60 and the costs of the suit.

If James gave or promised to give the land to his daughter, or to her husband, or to both, and afterwards without sufficient cause, refused to effectuate the gift, McKinsey would be entitled in "foro conscienciae" to the value of the ameliorations, which he was induced, by his faith in the promise of James, to add to the land. Shrieve vs. Grimes, IV Littell's Rep. 224.

 [*627]  And if the gift had been entire and unqualified, without any other consideration, than a desire to advance Mrs. McKinsey; rent should not be charged to McKinsey, until after he had notice of the revocation, or intention to revoke.

But even then, the decree has transcended the just limits prescribed by the principles of equity. If James was guilty of no fraud, (and none is proved) he should not be charged with the cost, or abstract value of all the improvements which McKinsey may have made on the land. They may be of no value to him or to his heirs. They may not increase the value of the land. They may be of such a kind as to subduct from the value of the land in an unimproved state. The principle and only one, which can entitle McKinsey to any decree for improvements,  [**4]  is the broad and plain maxim of equity, that "no one shall be enriched by another's loss." If, when James took possession of the land, the improvements put upon it by McKinsey, and which went with the land, rendered it more valuable than it would have been without them, to the extent of such accession, James was profited, and McKinsey sustained a correspondent loss. And to this extent, equity would entitle McKinsey to relief. As he is not within the provision of any positive law, he is entitled to no more.

But the decree of the circuit court does not appear to have been regulated by this standard. The commissioners were directed to ascertain the value of the improvements. They reported their value; and the court decreed that value. The value of the improvements may, and probably does, exceed the value of the ameliorations. The improvements may be worth $ 72; and nevertheless, there may be no amelioration of the land, or accession to its value. James may therefore, not be benefitted by the improvements; and consequently, McKinsey would not be entitled to any decree, according to the principle of equity, which has been stated.

Besides, the parol promise, if it was ever [**5]  made, was not a pure gift; McKinsey was to pay $ 20. If James gave the land, he could not claim rents. So far therefore, as he did give it, rents are not chargeable before notice. But as McKinsey never paid the $ 20, he should not be exempt from a charge for rents. He  [*628]  should be charged at least with the profits or legal interest of the $ 20, from the time he took possession; because, to this extent, there was a sale and not a gift, and McKinsey should not be allowed the use of both the land and the money, without rent or interest. The presumption is, that James paid the state price for the land. This he did not give to McKinsey; and therefore, as McKinsey enjoyed the use of the land, he should account for the value of the use of the $ 20, unless he paid it, and there is no intimation that he ever did.

It is even doubtful, whether the defendant in error has shown that he is entitled to any relief. But as the decree will be reversed for a defect of parties, and the cause will be remanded for further proceedings, it is not proper now to decide on the merits, except so far as may be useful in the further progress of the case in the circuit court.

The heirs of John James were [**6]  necessary parties. The bill alleges, that Elizabeth Vardiman was one of the heirs; but also alleges her death; and therefore, she was not made a party. An answer was filed, purporting to be the answer of Elizabeth Vardiman. But as the bill alleged, that Elizabeth, the heir of James, was dead, and as she was not made a defendant, the answer did not make her a party.

Wherefore, the decree is reversed, and the eause remanded, for such further proceedings as may be proper.