Harshman v. Heavilon

• Decision Date: 24 April 1884
• Docket Number: 10,472
• Citation: 95 Ind. 147
• Parties: Harshman v. Heavilon
• Court: Indiana Supreme Court

95 Ind. 147

Harshman v. Heavilon

No. 10,472

Supreme Court of Indiana

April 24, 1884

From the Clinton Circuit Court.

Judgment affirmed.

J Claybaugh and B. K. Higinbotham, for appellant.

T. H Palmer, for appellee.

OPINION

Elliott J.

The complaint of the appellant is in three paragraphs. The first counts on a written contract, the second on an oral agreement, and the third is for the use and occupancy of the land. The fourth paragraph of the answer sets forth the same written contract as that counted on in the complaint, and as the controlling question in the case is the construction to be given this instrument, it is necessary to set it out, although it is of considerable length. It is as follows:

"Be it witnessed by this memorandum of agreement, made this 20th day of June, 1878, by and between Samuel Ayers, Enos Harshman and Amos Heavilon, that for and in consideration of the sum of $ 1,500, cash in hand, to be paid to Samuel Ayers by said Amos Heavilon, said Samuel Ayers does hereby sell, assign and set over to said Amos Heavilon, all his right, title and interest in and to eight promissory notes executed July 6, 1872, seven notes of $ 500 each, and one of $ 600, executed by Enos Harshman to Rebecca Bailey, secured by mortgage on the east half of the southwest quarter of section twenty-two, and the east half of the north west quarter of section twenty-seven, all in township twenty-one north, of range two west, in Clinton county, Indiana; that suit has been brought on said notes and to foreclose said mortgage against said Harshman and one Leonidas Mitchell; that said cause is now pending in the Supreme Court; that said Heavilon agrees to pay to said Ayers the further sum of $ 500, whenever said case is decided in favor of said Ayers, and a foreclosure of said mortgage is obtained in said cause, in favor of said Ayers, or to his assignee; that in case said Leonidas Mitchell should, by the decision of said cause in the Supreme Court, obtain judgment in his favor, vesting in him the one-half interest in the said notes and mortgage, then said Heavilon is not to pay said Ayers any further sum than the $ 1,500, but is to pay said Harshman $ 500, to be paid on the Mitchell claim. Said Harshman and wife are to execute a deed of conveyance for said land to Amos Heavilon. It is further agreed, on the part of said Enos Harshman, that said Amos Heavilon shall obtain the judgment and foreclosure in the case of Amos Heavilon v. Enos Harshman and wife, now pending in the Clinton Circuit Court, and that judgment shall be taken immediately; that said sum of $ 1,500 so paid by said Heavilon to Samuel Ayers shall operate as a payment of that amount on the purchase of the Harshman lands by said Heavilon; that in case the said Mitchell shall gain said case in the Supreme Court, then shall said Heavilon pay the said $ 500, money that he obtains from the $ 2,000 to be paid Ayers, and $ 500 additional that he agrees to pay to satisfy said Mitchell's claim in case that he is successful in the Supreme Court, and Harshman is to pay the remainder, so as to satisfy the said Mitchell's claim; and in case said Mitchell shall be defeated in the Supreme Court, then shall the said Heavilon pay said Ayers the additional $ 500, so as to make the $ 2,000 to be paid said Ayers for his interest in said mortgage, and shall be released from the payment of the additional $ 500 to satisfy Mitchell's claim; that said Amos Heavilon is to receive from said Harshman and wife the title to 653 1/2 acres of land, situate in Perry township, Clinton county,...