Baldwin v. Siddons

• Decision Date: 25 February 1910
• Docket Number: No. 6,722.,6,722.
• Citation: 90 N.E. 1055,46 Ind.App. 313
• Parties: BALDWIN et al. v. SIDDONS et al.
• Court: Indiana Appellate Court

46 Ind.App. 313

90 N.E. 1055

BALDWIN et al.

v.SIDDONS et al.

No. 6,722.¹

Appellate Court of Indiana, Division No. 1.

Feb. 25, 1910.

Appeal from Circuit Court, Madison County; John F. McClure, Judge.

Action by Mary L. Baldwin and others against Walter L. Siddons and others. Judgment for defendants, and plaintiffs appeal. Reversed, with instructions.

John R. Brown, Manley & Stricler, Lovett & Slaymaker, and Hiram Brownlee, for appellants. Chipman, Keltner & Hendee and Mead S. Hays, for appellees.

HADLEY, J.

Appellants brought this suit against appellees to declare and foreclose a vendor's lien upon certain real estate in Grant county. It is averred, in effect, in the complaint: That on August 3, 1897, one Jesse D. Wright was the owner in fee simple of said real estate, and on said date he executed to appellants a title bond wherein he agreed to convey the same to appellants upon their making the payments provided for in said bond. That appellants paid, as part of the purchase price of said real estate, $506, and gave their notes for the balance in the sum of $450, and appellants then took actual possession of said land, occupied it, and paid the taxes on it until November 2, 1900. That some time prior to said 2d day of November appellees, Siddons and Siddons, entered into an agreement with appellants, whereby they were to pay appellants the sum of $2,000 for said land, $500 of which, or an amount sufficient to satisfy the claim of Wright, to be paid at once to Wright for the purpose of fulfilling the terms of the bond and procuring a deed from said Wright, and the remainder of said sum to be paid upon the completion and the beginning of operation of an ice plant to be erected by said appellees on said land. At the same time it was agreed by appellants that they would give the right to appellees to use a flowing well belonging to appellants, located on an adjoining tract of ground. For this right appellees were to pay $500. In pursuance of this agreement, which was oral, appellants assigned their title bond to appellees and also orally informed Wright of said agreement, and procured said Wright and wife to execute and deliver a deed conveying said tract to appellees, Siddons and Siddons, said Siddons and Siddons paying the sum of $506 to said Wright, as agreed upon. That thereupon said Siddons and Siddons took possession of said land and still hold the same. That said ice factory was completed and in operation June 1, 1901, and thereafter appellants frequently demanded payment of the balance of said purchase price for said land, which payment had been refused. Prayer for judgment for balance due and foreclosure of vendor's lien.

The title bond of Wright to appellants contained the provision that upon the full payment of said purchase money with interest, as the same should fall due, and the performance of all their agreements in said instrument, said Wright would convey said real estate to appellants by warranty deed. It also provided that in the payments time was the essence of the contract, and the failure to pay any installment with interest at or before the time it fell due, or to perform any other undertaking, within 30 days after the same became due, should, at the election of said Wright, forfeit said contract and release said Wright from any and all obligations growing out of the same, and all payments for improvements made by appellants should be forfeited and held by said Wright as liquidated damages. There was ample evidence adduced by appellants to sustain all the averments of the complaint. It was also shown by undisputed evidence that appellants were in default in two of their payments of principal and interest of the installments under said bond; but it was also shown by undisputed evidence and the testimony of Wright himself that he had never exercised his election to forfeit said bond, but, on the contrary, had received interest thereon after default and was at all times, even after default, ready and willing to comply with its terms upon the receipt of the money therein provided for, and had made the deed to appellees upon the request of appellants. Appellees insist that, under this state of facts, appellants had forfeited their rights under the bond and had no enforceable interest in the land and therefore nothing to sell, and hence have no right to recover purchase money therefor. We cannot sustain this contention of appellees. Appellants were in undisputed possession of the land, and the forfeiture described in the bond was at the election of Wright, and so long as he waived or refused to...