Ditchey v. Lee

• Decision Date: 26 October 1906
• Docket Number: No. 20,786.,20,786.
• Citation: 78 N.E. 972,167 Ind. 267
• Parties: DITCHEY v. LEE
• Court: Indiana Supreme Court

167 Ind. 267

78 N.E. 972

DITCHEY

v.LEE

No. 20,786.

Supreme Court of Indiana.

Oct. 26, 1906.

Appeal from Circuit Court, Clinton County; Joseph Claybaugh, Judge.

Action by Jacob Ditchey against Charles W. Lee. From a judgment in favor of defendant, plaintiff appealed and the appeal was transferred from the Appellate Court, under section 1337n, Burns' Ann. St. 1901. Affirmed.James V. Kent and H. C. Sheridan, for appellant. John C. Farber, for appellee.

MONTGOMERY, J.

Appellant brought this action for money paid upon a contract for the purchase of certain real estate. The complaint comprises five paragraphs. The answer consists of a general denial and an affirmative paragraph, to which a reply in three paragraphs was filed. Appellee also filed a cross-complaint founded upon a promissory note, which was answered in four paragraphs, to which answers appellee replied in denial. The errors assigned and relied upon are that the cross-complaint does not contain facts sufficient to constitute a cause of action, that the court erred in each conclusion of law stated upon the special finding of facts, and in overruling appellant's motions for a new trial, in arrest of judgment, and to modify the judgment. The merits of the controversy are most concisely exhibited by the special finding of facts; and appellant's exception to the conclusions of law stated thereon renders it unnecessary to consider separately the charge that the facts averred in the cross-complaint are insufficient. Ross v. Van Natta et al., 164 Ind. 557, 74 N. E. 10.

The following is a summary of the facts found by the court: That on August 15, 1903, appellee was the owner in fee simple of lands particularly described, in Clinton county, containing 97.50 acres, more or less; that in the year 1892 Wilson Cohee died testate, the owner in fee of said lands, and his last will was afterwards duly probated, by item 7 of which he devised the same to his daughter, Rebecca F. Mushlitz, upon the condition that she pay to her mother, Susannah Cohee, during life $100 anually, which annual payment was made a charge thereon; that on March 23, 1892, said Susannah Cohee duly filed her election in writing to take the provision made for her in said will in lieu of her statutory rights in the estate of her deceased husband; that on August 20, 1902, said Rebecca F. Mushlitz sold, and, together with her husband, by warranty deed conveyed, said lands to James P. Dudley, subject to an annual dower of $100 payable to Susannah Cohee, the first payment to begin March 1, 1904, which deed was duly recorded February 26, 1903; that on February 26, 1903, said Dudley, a single man, executed a mortgage on the lands to said Rebecca F. Mushlitz to secure the payment of a promissory note for $2,500, payable 60 days after the death of said Susannah Cohee, being the unpaid balance of purchase money for said real estate, and in the mortgage it was expressly stipulated that said Dudley as and for interest upon the debt thereby secured should pay annually to said Susannah Cohee $100, beginning March 1, 1904, and continuing each year thereafter during the life of said Susannah Cohee, which mortgage was duly recorded February 27, 1903; that on February 28, 1903, Dudley sold and by warranty deed conveyed said lands to appellee subject to said mortgage and subject to an annual payment of $100 to Susannah Cohee during her natural life, which charges appellee assumed and agreed to pay as a part of the purchase money for the lands, which deed was duly recorded March 3, 1903; that on August 15, 1903, appellant, with full knowledge of the provisions of said will and of said mortgage and of the deed from Dudley to appellee, and of the title to the lands, entered into a contract with appellee for the purchase of the lands, in pursuance of the terms of which appellee prepared, and, together with his wife, signed and duly acknowledged, a warranty deed conveying the same to appellant, for a stated consideration of $9,000, this deed containing provisions by which appellant assumed the payment of taxes commencing with the spring installment of 1904, the Dudley mortgage of $2,500, and $100 annuallyto said Susannah Cohee during her life as part payment of the purchase money for the lands; that appellant read, examined, and approved said deed when so prepared and signed, and thereupon paid appellee $900 in cash, and executed and delivered to him his promissory note for $1,375, payable on or before March 1, 1904, with 6 per cent. interest and attorney's fees, being the note sued upon in the cross-complaint, and appellant also signed four promissory notes for $1,000 each, payable in one, two, three, and four years after date, and four notes for interest on the principal notes calculated at 6 per cent. to maturity, and a mortgage on the lands to secure the payment of said four principal and interest notes; that appellant and appellee further agreed that said principal and interest notes and said mortgage should be placed in an envelope, sealed and deposited in the Clinton County Bank until March 1, 1904, at which time appellant was to pay the $1,375 note, cause the mortgage to be dated, signed by his wife, properly acknowledged, and delivered, together with the notes secured, to appellee, and thereupon said deed from appellee should be delivered to appellant; that the deed, notes, and mortgage were placed in an envelope, sealed up, and taken by appellant and appellee and deposited with an officer of the American National Bank of Frankfort, the change of depository having been mutually agreed upon, and these papers so remained with said bank until the trial of this cause; that a memorandum of the contract for the purchase and sale of said lands was, at the time, made in writing and signed by appellant and appellee, in which reference was made to said notes, mortgage, and deed; that on September 12, 1903, appellant paid appellee $250 on the $1,375 note, and on the 29th day of February, 1904, notified him that he would be unable to raise the money for the payment of the balance of said note, and on the 1st day of March, 1904, by one McClamroch, offered appellee the sum of $1,165.33 in payment of said note, on condition that appellee would release the lands from the annual payment, or charge, of $100 to Susannah Cohee; that appellee thereupon declared that he could not release the annual charge, and had not contracted to do so, and offered to accept the money in payment of said note, but appellant refused to pay except upon condition that such charge be released; that on the 1st day of March, 1904, appellee requested appellant to have said mortgage signed, acknowledged, and delivered, together with said notes, and to pay the balance of the $1,375 note, and, upon the same being done, offered to deliver said deed, and ever since has been able, willing, and ready to deliver the deed and to convey the lands in accordance with said contract, but appellant failed to do as requested; that the balance of principal and interest due on the $1,375 note is $1,200, and a reasonable attorney fee thereon is $70, which amounts are due and owing from appellant to appellee upon the note sued upon in the cross-complaint and remain unpaid; that said ...