Hill v. Irons

• Decision Date: 12 June 1952
• Citation: 92 Ohio App. 141,109 N.E.2d 699
• Parties: , 49 O.O. 261 HILL v. IRONS et al.
• Court: Ohio Court of Appeals

Page 141

92 Ohio App. 141

109 N.E.2d 699, 49 O.O. 261

HILL v. IRONS et al.

Court of Appeals of Ohio, Warren County.

June 12, 1952.

Robert J. Stoecklein, Dayton, for appellants.

C. Donald Dilatush and Cedric A. Stanley, Lebanon, for appellee.

MATTHEWS, Judge.

This is an appeal on questions of law and fact.

In her amended petition, the plaintiff alleged that on or about the 3rd day of February, 1925, she was the owner of certain described real estate located in the village of Lebanon, Ohio; that on that date she entered into the following contract with the defendants, to wit:

'This agreement entered into this third day of February, A.D., 1925, by and between Carrie B. Williams party of the first part, and Elbert W. Irons and May A. Irons, parties of the second part,

'Witnesseth: That whereas the party of the first part has this day conveyed by deed to the parties of the second part, certain real estate located in Lebanon, Warren county, Ohio, said real estate being more particularly described in said deed, to which reference hereby made, and whereas the parties of the second part are sureties for the party of the first part and her husband, D. W. Williams, on a renewal note calling for the sum of $7,879.90, with interest, payable to The Citizens National Bank & Trust Co. of Lebanon, Ohio, and, whereas it is the purpose and intention of the party of the first part to secure and save harmless said parties of the second part from any loss by reason of said surety obligation.

'Now be it therefore agreed that if after the payment of the mortgage claim of the Peoples Building & Loan & Savings Co., of Lebanon, Ohio, with interest, the payment of the obligations or claims, with interest, on which the parties of the second part are sureties and the payment of all costs and expenses which the parties of the second part may incur by reason of the ownership of said property, there remain any balance or net profit, same shall be paid to the party of the first part.

'It is further agreed that if the party of the first part pay or cause to be paid the indebtedness above referred to at any time before parties of the second part dispose of said property, parties of the second part agree to reconvey said property to the party of the first part.

'This contract to be binding on parties hereto, their heirs, executors and administrators.'

The plaintiff alleged also that as set forth in such contract she conveyed the described real estate to the defendants, in trust and subject to all the terms, provisions and conditions set forth in such contract.

The plaintiff alleged also that the defendants thereupon entered into possession of said real estate and have ever since been and are now in possession thereof, and have received the entire benefit and income therefrom, and then set forth the amount of cash income therefrom for a part of the period; that the total amounted to $27,815; and that all the incumbrances on the real estate had been paid and the obligations referred to in said agreement had been discharged.

The plaintiff alleged also that the defendants had not conveyed or offered to convey the title to said real estate back to her or paid or accounted to her for any of the income therefrom.

The plaintiff prayed that defendants be declared trustees and decreed to convey the title to said real estate to her and for an accounting.

By answer, the defendants set forth a detailed history of the circumstances culminating in 1925 with their being bound as sureties for the plaintiff and her husband for $7,879.90, with no indemnity against ultimate loss, excepting a mortgage on the real estate, which is the subject matter of this action, second to a first mortgage for $4,800, and that the real estate was not worth more than $7,000 at the time. They alleged that plaintiff and her husband jointly owed this amount, for which the defendants were sureties, and had paid substantially nothing on either debt for years, and that the bank to which the debt of $7,879.90 was owing was insisting upon payment, and that as a result and in order to avoid the expense of foreclosure and to meet the demands of the bank, this real estate was conveyed to them.

The defendants also alleged that at and prior to the time this deed was executed and delivered to them there were pending negotiations by plaintiff and her husband for the sale of this property, but that the bank refused to wait until said negotiations were concluded, and that the agreement referred to by plaintiff related to those negotiations, that part of the agreement was in writing and part was oral, that the 'written portion of this agreement was wholly contingent upon a sale being consummated' to the prospective purchaser (an oil company), and that the plaintiff and her husband would relieve the defendants of their obligation as sureties not later than 90 days after February 3, 1925, or as soon as the property was sold to the prospective purchaser, with whom negotiations were pending, and that the written portion of said agreement was to have no force or validity unless said property was sold to said purchaser.

The defendants also alleged that the plaintiff and her husband agreed to relieve the defendants of their liability as sureties within 90 days of February 3, 1925.

The defendants also alleged that the negotiations for the sale were abandoned, that the plaintiff and her husband did not relieve the defendants of their liability as sureties, and, on the contrary, the defendants were required to, and did from income from this property and from their own funds pay all the liens against said property, and that they had managed, controlled, operated, leased, and possessed said property as their own from February 3, 1925, forward.

We take it that the foregoing constitutes an explanatory denial of the contract as alleged by the plaintiff.

In addition, the defendants pleaded the failure of the plaintiff to institute an...