Butsch v. Swallow

• Decision Date: 30 March 1922
• Docket Number: No. 11144.,11144.
• Citation: 134 N.E. 877,78 Ind.App. 101
• Court: Indiana Appellate Court
• Parties: BUTSCH et ux. v. SWALLOW.

78 Ind.App. 101

134 N.E. 877

BUTSCH et ux.

v.SWALLOW.

No. 11144.

Appellate Court of Indiana, Division No. 1.

March 30, 1922.

Appeal from Probate Court, Vanderburgh County; Elmer Lockyear, Judge.

Action by Clarence B. Swallow against Jacob W. Butsch and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

Daniel H. Ortmeyer, of Evansville, for appellants.

John W. Spencer and John W. Spencer, Jr., both of Evansville, for appellee.

ENLOE, J.

This was an action by the appellee against the appellants, upon a complaint in two paragraphs. In the said 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 appears from this record that in 1913 the appellee was the owner in fee of the lands described in his complaint herein, subject to the life estate of his father; that, under a verbal agreement between the parties hereto, the appellee furnished the money to appellant Jacob Butsch in the sum of $1,600, for the erection of a dwelling house on said premises; and that by arrangement between the parties the appellants entered into possession of said property and began living therein. It further appears that on the 1st day of September, 1916, the parties hereto signed the following written instrument, which was afterward duly acknowledged and placed of record in the recorder's office of said county, and which instrument is “Exhibit A” to appellant's said third paragraph of answer and is as follows:

“This agreement witnesseth that whereas Clarence B. Swallow, widower, of Vanderburgh Co., state of Indiana, has furnished money to the amount of sixteen hundred dollars and with said money Jacob Butsch erected a dwelling on the land of Clarence B. Swallow, being described approximately as a strip off of the west end of lot No. four (4) of Olmstead's Sub. of part sec. 17-6-10 Vanderburgh county, state of Indiana, being a parallelogram having a frontage of 114 feet more or less on Olmstead Ave.; and whereas the said Clarence B. Swallow, at the time said dwelling was erected (in 1913) could not convey the aforementioned real estate, by reason of his late father having a life interest in said property; but it was the verbal agreement that Jacob and Carrie Butsch, husband and wife, were to pay to the said Clarence Swallow a monthly payment on the above-mentioned property and dwelling of twelve dollars a month and have the use of said property. At the end of five years expiring September 1, 1918, should the said Jacob and Carrie Butsch decide to buy said property they were given the option to purchase the same from the said Clarence B. Swallow his heirs or assigns, and in that event the value of the above-described real estate shall be determined at the date just named, by what other property in the adjacent locality is being sold for, and the accrued market value of the real estate herein described shall be added to the $1,600 invested in the building by the said Clarence B. Swallow, and the said Jacob and Carrie Butsch are to have the option to purchase said property at such price. The said verbal agreement and option are hereby confirmed.

It is further agreed that in the event the said Jacob and Carrie Butsch shall not purchase the property, the said Clarence B. Swallow, his heirs or assigns shall pay the said Jacob and Carrie Butsch, their heirs or assigns the costs of all additional improvements erected or constructed thereon, such as barn, outbuildings, walks, and for repairs to the improvements on said property and for insurance thereon; and he shall reimburse all money paid by them in excess of the twelve dollars a month paid by them.

In witness whereof, the said Clarence B. Swallow and Jacob and Carrie Butsch have signed this in duplicate this first day of September, 1916.”

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, 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 required a consideration of said contract.

It will be noted that the only positive agreement on the part of appellant 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...