Esch v. Leitheiser
| Citation | 69 N.E.2d 760,117 Ind.App. 338 |
| Decision Date | 04 December 1946 |
| Docket Number | 17523. |
| Parties | ESCH v. LEITHEISER. |
| Court | Court of Appeals of Indiana |
Appeal from Randolph Circuit Court; John W. Macy, Judge.
Suit by Rose M. Leitheiser against Ruth Richey Esch for possession of realty and damages. Judgment for plaintiff, and defendant appeals.
Judgment affirmed.
Francis A Shaw and Lesh & Lesh, all of Muncie, for appellant.
W T. Haymond and George W. Pierce, both of Muncie, for appellee.
The appellee filed a complaint alleging that the appellant occupied, as a tenant under a written lease with appellee, a certain house and lot in Muncie, Indiana, owned by appellee. It alleged appellant's failure to pay one installment of rent due in advance, and also alleged the termination of appellant's tenancy by written demand for possession more than one month prior to the date upon which possession was demanded.
Appellant's answer admitted execution of the rental agreement, but alleged herself to be the equitable owner of the real estate and not a tenant. It further alleged that the appellee was not the owner of the real estate, but was actually a mortgagee thereof to secure an indebtedness owing from the appellant. It further alleged a tender of all amounts due before suit was brought, and that the appellant had accepted payments due after suit was brought. Appellee replied by way of denial.
The court found the facts specially, stated conclusions of law thereon, and by its judgment awarded appellee the possession of the real estate and $420 damages for the unlawful detention thereof.
We summarize the facts as found by the court as follows: The appellant owned the real estate in 1934 and mortgaged it to the HOLC, which corporation foreclosed and received a sheriff's deed in May 1937. On January 26, 1938, HOLC and the appellant entered into an agreement of lease with option to purchase, whereby the payment of $2000 by the appellant was acknowledged and she was given the right to purchase the real estate from HOLC during the effective period of the lease, at a stated price less the $2000 and a sum equal to the rentals paid.
On the same day, to secure a loan of $1200 from the appellee, the appellant assigned said lease-option agreement to appellee by a writing which provided that on default in the payment of the note, appellee should become the owner of appellant's interest in said lease-option agreement and should have the right to pay and receive a deed from HOLC.
On March 11, 1940, proceedings were pending to cancel appellant's lease with HOLC because of her default, the appellee loaned appellant an additional $900.04 on her note to save the property, and both notes were secured by an assignment of the lease-option agreement, which reserved to the appellant the right to pay her obligations to appellee and recapture her rights in the premises.
On December 13, 1940, the appellant executed a quit claim deed for said real estate to the appellee. The deed contained a recital to the effect that it was an absolute conveyance transfer and assignment of all rights of the grantor in and to the real estate; that it was not intended as a mortgage trust conveyance or security of any kind; that the consideration thereof was a full release of all debts, obligations, costs and charges theretofore subsisting against the grantor in favor of the grantee, and in particular the two notes above mentioned; and that all said obligations were completely satisfied by the conveyance. She also unconditionally assigned to the appellee all her right, title and interest in the HOLC lease-option agreement, and signed and delivered to appellee an affidavit in which she stated that the consideration for the deed was the cancellation of her obligation to appellee; that the deed was an absolute conveyance in effect as well as form and was not intended as a mortgage, trust conveyance or security of any kind; that the cancellation of her obligation was a fair consideration for her interest in the real estate; and that she had executed the deed without duress, misrepresentation or undue influence.
Three days later, on December 16, 1940, the appellee, as lessor, and appellant, as lessee, entered into an agreement of lease with option to purchase. This lease ran for one year at a stipulated rental, and entitled appellant to purchase while the lease was in effect for a stated amount, with interest. There was no provision for the application of rentals against the purchase price.
On December 16, 1941, the parties entered into another lease-option agreement similar to the one of December 16, 1940, except that it ran to June 15, 1942, and the rental and option price were somewhat higher.
During the term of the latter lease, and on March 26, 1942, the HOLC and the appellee entered into a written lease-option contract which acknowledged receipt of $3,768.33 from the appellee, and gave the right to purchase the real estate for a stated amount, less the cash payment and an amount equal to rentals paid thereunder.
On June 16, 1942, the appellee and appellant entered into another lease-option agreement similar to that dated December 16, 1940. On August 26, 1943, the HOLC deeded the property to appellee subject to a purchase money mortgage for $3523.99.
On Suptember 25, 1943, and on December 26, 1943, appellant and appellee entered into further lease-option agreements similar to that of December 16, 1940, except that the rental and option prices were somewhat higher. The December 26, 1943, agreement was the last made by the parties, and expired March 26, 1944. Thereafter the appellant continued to pay appellee the stipulated rental of $60.00 per month until September 26, 1944, and received receipts which were marked 'rentals.'
On October 25, 1944, the appellee notified the appellant in writing to deliver up the possession of the real estate on or before November 27, 1944, at the expiration of the next month of her tenancy. The appellant did not make the payment due on October 26, 1944, and on November 24, 1944, the appellee notified the appellant in writing to deliver up the possession of the real estate for non-payment of rent.
This case was filed December 1, 1944. Judgment by default was entered against appellant on December 13, 1944. Appellant filed application to set the default aside, and on December 18, 1944, the court made the following entry:
'Comes now the defendant in the above entitled cause by her attorney, Francis A. Shaw, and withdraws her petition for relief from judgment by default.
'Comes now the parties by their respective attorneys and by the agreement of the parties it is ordered, adjudged and decreed by the Court that the judgment for possession and damages heretofore on the 13th day of December, 1944, entered herein on default be and it is hereby set aside and the defendant is hereby permitted to appear and defend in this proceedings.
'And defendant is ruled to answer said complaint in 20 days from this date.
'It is further ordered, adjudged and decreed by the court that the defendant pay to White & Haymond, attorneys for the plaintiff, the sum of $120.00 on or before ten days from this date, the sum of $60.00 on the 26th day of each month hereafter until this litigation is terminated, and said sum shall, be applied by White & Haymond as follows:
Pursuant to the terms of said order, the appellant paid $125 on December 20, 1944, $120 on January 26, 1945, and $60 on May 28, 1945. Up to the time of trial seven additional payments of $60 each were due under the court order.
Upon the execution of the quit claim deed the appellee surrendered the two notes above referred to. The consideration for the deed was the cancellation of all of appellant's obligations to the appellee. The fair cash market value of the property, in December 1940, was $6500.
On March 27, 1943, after the giving of the deed, the appellee had sued appellant for possession of the real estate and for failure to pay $330 past due rentals. In that action the appellee was adjudged to be the owner of the real estate and she was awarded possession and damages for the unlawful detention thereof. The judgment was paid and no appeal taken.
The appellant at no time prior to the beginning of this action made any tender of the option price for said real estate. In the various options to purchase, the option price was sometimes fixed at an amount equal to appellee's investment, and in other instances the option price was fixed at round figures representing the amount the appellee was willing to accept for the property. For thirty years prior to the filing of this action the appellant had been engaged in the business of buying and selling real estate in Muncie, Indiana, as a real estate broker, and was familiar with lease, option and deed forms.
The court rendered conclusions of law as follows:
'(1) That the law is with the plaintiff.
'(2) That the plaintiff is the owner and is entitled to the immediate possession of the real estate described in her complaint and in these findings.
'(3) The plaintiff is entitled to recover of the defendant the sum of $420.00.'
Judgment was rendered awarding appellee possession of the premises, $420 damages for the unlawful detention thereof, and costs.
In her motion for new trial, the appellant questions the sufficiency of the evidence and the legality of the decision. We have,...
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Esch v. Leitheiser
...117 Ind.App. 33869 N.E.2d 760ESCHv.LEITHEISER.No. 17523.Appellate Court of Indiana, in Banc.Dec. 4, Appeal from Randolph Circuit Court; John W. Macy, Judge. Suit by Rose M. Leitheiser against Ruth Richey Esch for possession of realty and damages. Judgment for plaintiff, and defendant appeal......