Butsch v. Swallow
Decision Date | 30 March 1922 |
Docket Number | 11,144 |
Citation | 134 N.E. 877,78 Ind.App. 101 |
Parties | BUTSCH ET AL. v. SWALLOW |
Court | Indiana Appellate Court |
From Vanderburgh Probate Court; Elmer Q. Lockyear, Judge.
Action by Clarence B. Swallow against Jacob W. Butsch and another. From a judgment for plaintiff, the defendants appeal.
Affirmed.
Daniel H. Ortmeyer, for appellants.
John W Spencer and John W. Spencer, Jr., for appellee.
This was an action by the appellee against the appellants, upon a complaint in two paragraphs. In the first paragraph appellee sought to recover possession of certain described real estate, and damages, for the alleged unlawful detention thereof. The second paragraph was the usual complaint to quiet title. The answers by appellants to said first paragraph of complaint were, (1) A general denial; and (2) an affirmative paragraph alleging that they were in possession of said real estate under a contract for the purchase of the same. Various allegations of this paragraph of answer need not be herein set out. Attached to said paragraph of answer as an exhibit was the alleged contract under which the appellants were claiming a right in and to said property. To said paragraph of answer the appellee replied first by general denial and second by alleging matter in avoidance.
To the second paragraph of complaint the appellants answered first by general denial, and second, an affirmative answer wherein they alleged that they were the equitable owners of said real estate by reason of certain facts in said answer alleged. To this paragraph of answer appellee replied first by general denial and second by pleading matter in estoppel.
The cause was submitted to the court for trial and resulted in a finding in favor of the appellee, that he was the owner of the premises in question and entitled to the immediate possession thereof and awarding him damages in the sum of $ 84 as for the wrongful detention thereof by appellants, and also quieting his title thereto as against any claims of the appellants herein.
The appellants filed separate motions for a new trial. The appellant Jacob W. Butsch assigning as reasons therefor, that the decision of the court was not sustained by sufficient evidence, and was contrary to law; and the appellant Carrie L. Butsch assigning in her motion the additional cause that the court erred in admitting in evidence a certain exhibit therein specified. These motions were overruled with separate exceptions to the appellants, after which this appeal was duly prosecuted. The appellants have separately assigned as error the overruling of their separate motions for a new trial.
It further appears from this record that the owner of the life estate in and to said property died in January, 1915.
It is contended by the appellants that under the provisions of said agreement and upon the undisputed facts in evidence in this case that they are the equitable owners of the property in question, that they are and were at the time of the trial of this case rightfully in possession of said property and that therefore the decision of the court in this case is not sustained by sufficient evidence and is contrary to law. This contention requires a consideration of said contract.
It will be noted that the only positive agreement on the part of appellants set forth in said contract was "to pay to the said Clarence Swallow a monthly payment on the above mentioned property and dwelling, of twelve dollars a month and to have the use of said property." Reading the said instrument from its four corners, it is clear to our minds that this payment was simply as and for rental of the property. The contract in question gives to the appellants an...
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