81 N.E. 71 (Ind. 1907), 21,040, Ferguson v. Boyd

Docket Nº:21,040
Citation:81 N.E. 71, 169 Ind. 537
Opinion Judge:Gillett, J.
Party Name:Ferguson v. Boyd et al
Attorney:Frank J. Hall, George W. Campbell and Ulric Z. Wiley, for appellant. Robbins, Starr & Robbins, and Watson, Titsworth & Green, for appellees.
Case Date:May 03, 1907
Court:Supreme Court of Indiana
 
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Page 71

81 N.E. 71 (Ind. 1907)

169 Ind. 537

Ferguson

v.

Boyd et al

No. 21,040

Supreme Court of Indiana

May 3, 1907

Rehearing Denied December 19, 1907, Reported at: 169 Ind. 537 at 553. Modified Opinion on Petition for Rehearing Filed January 9, 1908, as of Date December 19, 1907.

From Rush Circuit Court; Will M. Sparks, Judge.

Suit by Horton J. Ferguson against James A. Boyd and another. From a decree for defendants, plaintiff appeals. Transferred from Appellate Court under subd. 2, § 1394 Burns 1908, Acts 1901, p. 565, § 10.

Affirmed.

Frank J. Hall, George W. Campbell and Ulric Z. Wiley, for appellant.

Robbins, Starr & Robbins, and Watson, Titsworth & Green, for appellees.

OPINION

[169 Ind. 539] Gillett, J.

This was a suit instituted by appellant against appellees, to declare a deed a mortgage, and for an accounting with appellees as mortgagees in possession. Appellees answered by general denial, and they filed a cross-complaint against appellant to quiet title, to which appellant addressed a general denial. There was a trial by the court upon the issues thus formed, which resulted in a finding and decree for appellees. Error is assigned on the overruling of appellant's motion for a new trial. The chief contention of counsel for appellant is as to the sufficiency of the evidence to sustain the finding.

April 29, 1891, appellant conveyed to appellee Boyd, by general warranty deed, 360 acres of land in Rush county, for the recited consideration of $ 1,400, subject to a mortgage of $ 9,000. Contemporaneously with the execution of said deed appellant and Boyd, respectively described as the first and second parties, executed a writing, which recited Ferguson's conveyance of said land (describing it) by deed to Boyd, subject to said $ 9,000 mortgage, upon the consideration [169 Ind. 540] of the payment by the latter of $ 1,400, laid out and expended in redeeming said land from sheriff's sale. The agreement then proceeded as follows:

"It is agreed that the party of the second part will aid in preventing a foreclosure of said $ 9,000 mortgage, if possible, and guarantee the payment of eight per cent interest instead of seven per cent until September 1, 1891, from this date, in order to prevent the owner from foreclosing the same, but the extra per cent shall not be paid in case foreclosure proceedings are begun and additional expense added to the debt. Now it is agreed by the parties hereto that the party of the second part will reconvey and convey back said real estate to the party of the first part on or before March 15, 1892, upon the repayment of said sum of $ 1,400, together with the interest thereon at the rate of eight per cent per annum, together with any and all amounts that the party of the second part may have paid on said $ 9,000 mortgage debt, and interest, but the party of the first part shall keep and retain possession of said real estate, and cultivate the same and keep it in good condition, until March 15, 1892, and shall give a mortgage on the growing crops, and on his corn crop, when planted, to secure the interest to the party of the second part, on said entire sums of money, so paid and with which said lands are encumbered. The parties hereby further agree that in case the party of the first part fails to pay all of said sums of money by March 15, 1892, the party of the first part shall deliver up full and peaceable possession of the aforesaid real estate, without process of law, and in reasonable condition. The party of the first part shall also pay the taxes that accrue out of the growing wheat on said lands."

The

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above instrument was not recorded. At the time of its execution Ferguson made a chattel mortgage to Boyd on his growing crop and on certain live stock, to secure the interest on $ 1,400, and the interest on such sum as Boyd might pay on the $ 9,000 mortgage which was a lien on said land. Further chattel mortgages were subsequently executed by Ferguson to Boyd, but, as the account on which they were executed may perhaps be said to be in dispute, we shall not [169 Ind. 541] further refer to them. On the 1st or 2d day of May, 1891, appellee Smith agreed with Boyd to take a half interest with him in the transaction, and they subsequently purchased the $ 9,000 note and mortgage, taking an assignment of them to their banking firm, Boyd, Smith & Company, to hold for them. Smith did not take a deed, and his interest rests in parol. Many letters from Boyd, Smith & Company were introduced in evidence which tended to show that a debt existed, or at least that it was contemplated that Ferguson might redeem. In 1895 Boyd and Smith took possession of the farm. Ferguson claims that the agreement at that time was that Boyd and Smith should farm the land, and thus pay off the debt. An accounting was demanded by him, through his attorneys, in 1904. Appellees claim that this was the first notice they had after Ferguson left the farm, that their title was in question. Boyd testified that in the latter part of 1895 he proposed to Ferguson that if he would take his horses (then under mortgage to Boyd), get off the farm, and give up the rights and interest he had in it, he (Boyd) would release him from all claims; that Ferguson answered that he would do this; that he (Boyd) told Ferguson to come up right away, and they would cancel the mortgage, and give him all his papers; that Ferguson never called for the papers, although they were afterwards kept, subject to his call, in an envelope marked "Horton Ferguson papers;" that Ferguson took the horses and left the farm, and witness never saw him afterwards until he appeared in court; that within one week after said conversation the tenant upon the farm attorned to witness and Smith, and that they have ever since, by themselves or tenants, been in possession. During their possession they expended considerable sums in improvements, particularly in the erection of a large barn. It is claimed, however, by a witness who appears to have represented Ferguson in some capacity, that he caused Boyd and Smith to be notified that if they built the barn it must be at their own expense, and said witness [169 Ind. 542] claimed that Boyd answered that they would build the barn anyway, as they could make money a good deal faster if they had a place for their stock in winter. This conversation is denied. There is much dispute as to the value of the property, but there is testimony tending to show that at that time the debt equaled the value of the farm. Ferguson was, and since has been, a dissipated man. He spent but little time in Indiana after he left the farm, and he admits that he did not seek an accounting until 1904. He claimed, however, that he had the witness, before referred to, employed to see if he could find a buyer for the farm, but he (Ferguson) did not appear to know what his agent had...

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