Bryson v. Collmer

• Decision Date: 02 June 1904
• Docket Number: No. 4,870.,4,870.
• Parties: BRYSON et al. v. COLLMER.
• Court: Indiana Appellate Court

33 Ind.App. 494

71 N.E. 229

BRYSON et al.

v.COLLMER.

No. 4,870.^*

Appellate Court of Indiana, Division No. 1.

June 2, 1904.

Appeal from Circuit Court, Elkhart County; J. D. Ferrall, Judge.

Action by George F. Collmer, as guardian, against Anna Z. Bryson and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Van Fleet & Van Fleet and Davis & Davis, for appellants. Davis & Davis and B. G. Schaefer, for appellee.

BLACK, C. J.

In the suit of the appellee as guardian of Mary Hazel Himes, a minor, against the appellants, Anna Zeitler Bryson and her husband, Frederick G. Bryson, one Mary Zeitler also was made a party defendant. The court rendered a special finding, and the Brysons, husband and wife, have separately assigned that the court erred in its first conclusion of law. Mary Zeitler also assigned errors, but the appeal, so far as she is concerned, has heretofore been dismissed on her motion. It was specially found that August 9, 1890, Mary Zeitler was the owner of certain land described, in Elkhart county, being 115 acres, and on that day she conveyed this real estate to her son Henry Zeitler, who then was unmarried and resided with her in the city of Elkhart. In this conveyance the grantor reserved to herself a life estate in the land, which she still retains. In consideration of this conveyance to him, the grantee agreed with the grantor to pay $1,000 to Mary Hazel Himes, a granddaughter of the grantor, within one year from that date. Mary Zeitler was not indebted to Mary Hazel Himes, who was then an infant 1 year old, and at the date of the court's finding was 13 years old, and the appellee, George F. Collmer, is her guardian, duly appointed as such by the court below January 4, 1902. Henry Zeitler never paid said $1,000 to Mary Hazel Himes, or to any person for her, and, if the appellee was entitled to recover in this cause, the sum due him was $1,640. August 14, 1892, Henry Zeitler intermarried with the appellant Anna, and November 15, 1897, he died, leaving her his widow and sole heir at law, and she, June 1, 1901, intermarried with her co-appellant, Frederick G. Bryson. April 1, 1895, Henry Zeitler and the appellant Anna, then its wife, conveyed the land to one Van Fleet, who the next day conveyed it to Henry Zeitler and Anna Zeitler, his wife, as tenants by entireties. These two conveyances were voluntary and wholly without consideration, and, at the time of the execution thereof, Henry Zeitler was wholly insolvent, and so continued until his death. We omit some of the facts not affecting the question before us.

The first conclusion of law-the only one questioned here-was that the appellee was entitled to a vendor's lien on the land, subject to the life estate of Mary Zeitler, and that there was due the appellee, as the amount of that lien, $1,640, and that he have foreclosure of his lien. The theory upon which the appellants base their opposition to this conclusion is that the cause of action upon the promise of Henry Zeitler to pay a portion of the purchase price of the land to Mary Hazel Himes was in Mary Zeitler, his grantor, to whom the promise was made, and that the cause of action remained in Mary Zeitler until after the death of Henry Zeitler, more than six years after the cause of action accrued, and that it thereby became barred by the statute of limitations before his death; and an answer to such effect was filed by the appellants, on which an issue was made. The right of Mary Hazel Himes to maintain a suit for the enforcement of a grantor's lien was not dependent, as counsel seem to suppose, upon an assignment by the grantor of such lien, or of a chose in action for a portion of the purchase money. As a part of the contract by which the grantee obtained the legal title, and in consideration of the conveyance thereof, he, by the consent and procurement of the grantor, made his promise to pay a definite and certain sum- being part of the purchase money-to the third person within a specified time. If an indebtedness was thereby created, and an equitable lien upon the land for the payment thereof was enforceable, the lien was an incident of the debt for purchase money, and the right to enforce the lien...