Feichter v. Korn

• Decision Date: 15 May 1919
• Docket Number: 10,372
• Citation: 123 N.E. 355,70 Ind.App. 205
• Parties: FEICHTER v. KORN ET AL
• Court: Indiana Appellate Court

123 N.E. 355

70 Ind.App. 205

FEICHTER v. KORN ET AL

No. 10,372

Court of Appeals of Indiana

May 15, 1919

From Allen Circuit Court; J. W. Eggeman, Judge.

Action by Jacob H. Feichter against John Korn and another. From a judgment for defendants, the plaintiff appeals.

Affirmed.

John H Aiken, for appellant.

Breen & Morris, for appellees.

OPINION

NICHOLS, J.

Appellant filed his complaint against appellees, in the Allen Circuit Court, for the specific performance of an alleged contract, so much of such complaint as is necessary for this decision being as follows:

"The above-named plaintiff complains of the above-named defendants and says: That on the 28th day of September, 1916, this plaintiff was the owner of lot 52, and the east 2 feet of lot 51, in Thompson's Second addition to the city of Fort Wayne, Allen county, Indiana, and also, the west 48 feet, of block 4, and the west 48 feet of the north 1/2 of block 3 all in Evans' Place, in the city of Fort Wayne, Allen county, Indiana, the last-described property being known as No. 1129 Maple avenue, in said city of Fort Wayne. That at said time said defendants were the owners in fee simple of lot 1 in Ninde's Second addition to the city of Fort Wayne, Allen county, Indiana, excepting therefrom such portion as was taken off for the widening and straightening of Taylor street, in said city. That on the 28th day of September, 1916, this plaintiff and said defendants entered into a certain written agreement, portions of which agreement bear date of September 26th, whereby in consideration of mutual covenants and agreements, said defendants promised and agreed that they would convey to this plaintiff in fee, by warranty deed, said lot No. 1 in Ninde's Second addition to the city of Fort Wayne, Allen county, Indiana, in consideration whereof this plaintiff promised and agreed to convey to said defendants in fee simple, by warranty deed, the said real estate first herein described as belonging to said plaintiff. That on said 28th day of September, 1916, after said defendants had had possession of said portions of said written contract bearing date of September 26th, and which provided that the deal was to be closed before October 1, 1916, and on signing such portions of said agreement and as a consideration for the closing of said contract, this plaintiff executed and delivered to said defendants that portion of said contract contained on the third page of said contract, by which plaintiff agreed to do certain repairs to the buildings on the property which he was exchanging to said defendants. A copy of said written contract is filed herewith, made a part of this complaint, and marked Exhibit "A," 1, 2 and 3. Plaintiff further alleges that he duly performed all the conditions of said contract and agreement to be by him performed. That he did fix the roof and put in the bath fixtures and light wires and performed all other requirements of said contract on his part to be performed * * * and thereupon plaintiff executed his warranty deeds, plaintiff's wife joining therein, conveying plaintiff's said real estate to said defendants in accordance with the terms of said contract, and then and there demanded of said defendants a deed for their said above-described real estate so to be conveyed to this plaintiff; that plaintiff's said warranty deeds were properly acknowledged and this plaintiff tendered to said defendants said warranty deeds, and said defendants refused to accept said deeds, so tendered, and refused to execute a deed for their real estate or to deliver the same to this plaintiff, and still refuse to do so but, on the contrary, refuse to be bound by their said contract. * * * Wherefore, plaintiff demands judgment that said defendants be decreed to specifically perform said agreement. * * *

Exhibit "A" 1

"'Fort Wayne, Indiana.

September 26, 1916.

"'I the undersigned, agree to sell, trade and convey by warranty deed and good title, Lot No. 1 in Ninde's 2nd addition in this city of Fort Wayne, Ind. and will take in trade lot No 52 Thompson's 2nd add. lot 38 and 170, and one house and lot 1129 Maple ave. lot 48-150 both in the city of Fort Wayne, Ind. and will assume or agree to pay a mortgage of $ 2,300. on Scott ave. home and $ 1,100. on Maple ave. home. Will also pay interest on $ 5,600. mortgage up to date of transfers and pay this fall tax on lot No. 1 and will give and take possession in 30 days from date of transfers. If this deal is made it must not be later than October 1, 1916. P. S. The street pavement is to be assumed by me in...