
    Case 87 — PETITION EQUITY
    May 3.
    Bent & Co. v. Barnett, &c.
    APPEAL FROM LOUISVILLE LAW AND EQUITY COURT.
    Improvement by Guardian of Ward’s Beal Estate — Bight of Contractor to Subject Increase, in Rents. — Where the property of wards had been enhanced in valnebyimprovements erected under acontract made by the guardian in good faith for the benefit of the wards, and it was held upon a former appeal that, although the guardian had no power to make the contract, the contractors might subject the rents of the property to the payment of the actual cost of the improvements to the extent that they had been increased by reason of the improvements,- the fact that it now appears that by reason of the decline in business or from other causes there has been such a falling off in the rents that they are very little in excess of what they were prior to the making of the improvements, does not entitle the contractors to apportion the rent so as to throw upon the infants any part of the burden of the loss. Tiie contractors can subject only the amount in excess of that which the property yielded before the improvements were made.
    STONE & SUDDUTII for appellants.
    1. Under the opinion of this court on the former appeal holding that the claim of Bent & Co. should he paid out of the enhanced rental value of the property by reason of the improvements (90 Ky., 610), the time at which the enhanced rental value should he estimatedand determined is immediately following the completion of the improvements, and not, as counsel for Barnett’s Heirs contend, as of this date after the lapse of seventeen years from the time said building was finished.
    2. The proof is clear and satisfactory that all the rental value of the property after it was improved was enhanced rental value, resulting directly and wholly from the work and labor and materials furnished in the new building.
    THOMAS E. HABGIS of counsel on same side.
    JOHN S. JACKMAN for appellees.
    1. The infant wards can only he charged upon the idea that they received a benefit, and the proof showing the benefit in such cases should he clear and positive, which is certainly lacking in the present case. (Bent & Oo. v. Barnett, 90 Kv., 600 ; Hobbs v. Harlan, 10Lea (Tenn)., 280.)
    2. The order allowing appellees to withdraw the interest until appellants established their claim was not a final order. (Helm v. Short, 7 Bush, 623; Heal v. Thomasson, ,7 By. Law Kep., 444; Lewis v. Melvin, 6 liy. Law Bep., 639.)
   JITDGB PR YOB

delivered the opinion oe the court.

This case has been heretofore in this court, and the judgment reversed, that the appellants might recover the enhanced rental value of the property by reason of the large expenditure made by them on appellees’ property, the pleadings conducing to show that the increase in rental was almost double that of the old building.

The opinion was not based on the idea that the guardian had the power to make contracts that would involve his wards in debt or subject their estate to the liens of the builders, but for the reason that the guardian and the appellants were acting in good faith, and to give to the wards the proceeds of their labor and the material furnished without any consideration whatever, would he inequitable and unjust, when the rights of the infants, by giving the enhanced value of the rents, could in no wise be prejudiced.

They had improved the building under these contracts -with the guardian at a cost of near $22,000, when it now appears from the testimony that the property has been sold, the ground upon which the. building stands being-valued at $550 or $500 per front foot, being twenty-five feet, and the improvements at less than $10,000.

It is evident from the facts before us that an expenditure of three- or four thousand dollars would have been sufficient to have remodeled the structure orto have placed it. in such condition as its rental would have been equal to the improvement, costing- over $20,000. Those connected •with the Fidelity Trust and Safety Vault Company, and having charge of this property, state that since August, 1890, after deducting the yearly necessary expenses on the property, taxes, insurance, etc., there was a net rental of $1,145 per year, a part only of which went to these appellees.

The building after its improvement never exceeded in rental value, $2,000. Erom the year 1876 to the date of sale, a period of fourteen or fifteen years, the wards, who are now adults, did not receive in the "way of net rental a sum exceeding five or six hundred dollars per annum. The old building at the time it was vacated was renting for $2,500 per annum, and it may well be argued from this proof that the old building would have rented for as much as the new building, but whether so or not is immaterial. It may be conceded that the decline in business, or its transit from that part of the city to more favorable locations, has caused this falling off in the rent, still these owners of the property are not in law or equity required to share their burden of the loss.

This case was placed distinctly upon the ground that by giving to the appellants the enhanced value of the rents, it would leave the rights of the appellees undisturbed, givmg to them the rent they had been receiving, and placing them in the possession of a new building. We are now asked to apportion this small rental between these parties, when tin1 appellants have no right whatever to be heard, except such as arises from a plain equity that would give them a small pittance for their labor, and injures no one else. The facts when made to appear present no such case, and the chancellor acted properly in refusing to encumber the property of the appellees and in dismissing the claim of the appellants. The judgments belowr are affirmed. 
      ~90”Ky., 600.
     