Foster v. Pruett

• Decision Date: 31 May 1938
• Docket Number: 16012.
• Citation: 15 N.E.2d 121,105 Ind.App. 367
• Parties: FOSTER et al. v. PRUETT et al.
• Court: Indiana Appellate Court

15 N.E.2d 121

105 Ind.App. 367

FOSTER et al. v. PRUETT et al.

No. 16012.

Appellate Court of Indiana, in Banc.

May 31, 1938

Cloe Campbell, Cloe & Cloe, of Noblesville, and Rogers &amp Smith, of Lebanon, for appellants.

McTurnan & Higgins, of Indianapolis, and Parr, Parr & Parr, of Lebanon, for appellees.

LAYMON Judge.

On August 1, 1931, appellees purchased, for $2,800, a certain tract of land sold by the sheriff of Hamilton county, to satisfy a decree foreclosing a lien of a second mortgage, and received from the sheriff a certificate of sale which was subject and inferior to a prior existing mortgage in the sum of $10,800, subject to certain taxes, and also subject to the statutory period of redemption which expired on August 1 1932. On July 16, 1932, the taxes on the real estate were delinquent and unpaid, and the interest on the first mortgage was past due and unpaid. On the same date appellants and appellees entered into a written contract, by the terms of which appellants agreed to pay the interest on the first mortgage, the taxes on the real estate, and to keep the interest and taxes paid during the life of the contract. The contract further provided: That the sheriff's certificate of sale be assigned to appellants, and, in the event the real estate was not redeemed by the judgment debtor in accordance with the sheriff's certificate, appellants were to present said certificate, together with the assignment thereon, and receive a sheriff's deed. The contract contained this stipulation: "That said first parties [appellants] shall hold title for said real estate, and during one year from this date said first parties and said second parties [appellees] shall offer said real estate for sale at a minimum price of not less than $100 per acre, and if said real estate is sold during said period said first parties shall receive out of the proceeds of said sale all moneys paid as delinquent interest, taxes and other improvements that may be necessary, in full, together with 6 per cent. interest thereon from the date of such payment, and the proceeds of said sale above said minimum price per acre after the deduction of the amount so paid by said first parties, shall be divided between the respective parties to this contract, share and share alike." It was further provided that appellees were to have possession of said premises after the year of redemption, during the life of the contract, without charge; that appellants were to keep an account of all crops grown upon said premises, the crops then growing, the interest, if any, due the landlord, and credit the net proceeds thereof received from said crops in accordance with and against the amounts thus paid in proportion to the interest of both appellants and appellees; that in the event the real estate was redeemed, then out of the money paid in redeeming the real estate, appellants were to be repaid the amount of money which they expended for taxes and delinquent interest up to the date of said redemption, and the balance thereof was to be paid to appellees; that the possession of the premises by appellees included the house, garden, truck patches, chicken lot, and hen houses; that appellants were to have the renting of the fields and the management of the farm premises; and that appellants were to account for the net proceeds received therefrom. A copy of this contract, marked Exhibit A, was filed with and made a part of appellees' complaint, which is in one paragraph, and which, in addition to the above facts, alleges substantially: That, in accordance with the contract, appellants did, on or about August 3, 1932, receive in their names, a sheriff's deed to said land, under and by virtue of the sheriff's certificate; that appellants thereafter paid the taxes on said land and the interest on the mortgage, and operated and managed the farm, except the premises reserved by the agreement to appellees, until about July 1, 1933; that during such period, and since July 16, 1933, appellants received the rents, income, and profits thereon; that appellants held the same and refused to inform the appellees of the amount thereof or to pay the appellees any of the same; that prior to August 1, 1933, appellants demanded that appellees pay them, on or before August 1, 1933, all sums of money, with interest, that appellants had advanced on account of and under said contract, and informed the appellees that the amount so advanced and paid, with interest, was $1,577.57; that on or before August 1, 1933, appellees were prepared and ready, willing and able to pay said demanded amount to appellants and offered to pay the same to the appellants, and each of them, in money of the United States, but each of the appellants wholly refused to receive or accept the money, unless and except on the condition that appellants be paid a further sum of $1,500; that about November 1, 1933, appellants entered upon that portion of the real estate reserved under the contract to appellees and declared their intention to control, rent, and use the land without regard for any claim of right appellees might have or make under the contract; that, in December of 1933, appellants instituted an ejectment action in the circuit court against the lessees of appellees who were then in possession of the portion of the land reserved to appellee...