Gardenhire v. Rogers

• Decision Date: 16 June 1900
• Citation: 60 S.W. 616
• Parties: GARDENHIRE v. ROGERS.
• Court: Tennessee Supreme Court

60 S.W. 616

GARDENHIRE v. ROGERS.

Court of Chancery Appeals of Tennessee.

June 16, 1900.

Appeal from chancery court, Rhea county; T. M. McConnell, Chancellor.

Action by W. C. Gardenhire against T. L. Rogers to recover possession of real estate or to enforce an oral contract of sale. From a judgment for complainant, defendant appeals. Affirmed.

Burkett, Miller & Mansfield, for appellant. A. P. Haggard, for appellee.

NEIL, J.

The bill alleges, in substance, that in August, 1890, the complainant sold to the defendant a lot in the city of Dayton, this state, at the price of $1,000, to be paid at the expiration of five years; that he had tendered both a title bond and a deed to the defendant, according to the terms of their oral contract; and that the latter refused to accept either of these instruments, and had failed to pay the purchase money. It is also alleged that the defendant had built a house upon the lot, and that the complainant had advanced him $372 to assist in the erection of the house. There are other allegations in the bill, but they are not now of any consequence, in the present attitude of the case, although proper enough at the time the bill was filed. The prayer of the bill is that complainant be restored to the possession of the lot, and, if this cannot be done, then that the contract be enforced by a sale of the property for the payment of the purchase money. The defendant filed his answer, denying that any consideration had been agreed upon at all, but admitting that he had verbally purchased the lot from the complainant, and had built a house thereon, and that the complainant had advanced him a sum of money in the neighborhood of $372, but the exact amount was not stated in the answer. The defendant agreed upon a rescission, but insisted that he was entitled to compensation for his improvements and for taxes paid. He pleaded the statute of limitations as to the $372, money advanced. The chancellor referred the cause to the master to take proof and report concerning the enhanced value of the lot by reason of the improvements put thereon by the defendant; also as to rents, taxes, and the money advanced by the complainant to the defendant. The master reported that the improvements which the defendant had placed upon the land had enhanced its value $850; that the lot had no rental value until the improvements were placed thereon, and after that was worth $40 a year; that defendant had paid taxes, $89.25; that complainant had advanced to the defendant the following sums of money:

                  1890. October  28 ................... $ 25 00
                   "    November  1 ...................   35 00
                   "      "       6 ...................   17 00
                   "      "      14 ...................   30 00
                   "      "      20 ...................   50 00
                   "      "      13 ...................   20 00
                   "      "      29 ...................   20 00
                   "    December 23 ...................   20 00
                   "      "      31 ...................    6 00
                 1891.  June     16 ...................   25 00
                                                        _______
                      Aggregating ..................... $248 00
                

He also reported that, in addition to these sums, defendant accepted an order for $100 drawn by H. C. Schafer in favor of D. J. Hindman, dated December 24, 1890, accepted January 1, 1891, the amount of which was afterwards paid on March 16, 1891, by complainant to Hindman, without request from defendant; but it was an indebtedness of defendant incurred in the building of the house. He further reported that complainant lent defendant's wife, on January 23, 1891, $5 on written order, and also about the same time he paid a store account of $10 to E. Phillips, and also about December, 1890, paid a store account to E. P. Phillips of $10 for defendant by his request; that on December 20, 1891, complainant paid $4.80 for an insurance policy taken out in the name of T. L. Rogers. The master thereupon further reported that, of all these sums, the following were advanced for use upon the house: $248; the Schafer order, $100; and one $10 Phillips account, — making a total of $358. He computed interest on this from January 1, 1891, to August 1, 1898; making the sum, principal and interest, of $520.48. He thereupon struck the following balance between the parties:

                           W. C. Gardenhire, Debtor
                  Enhanced value of lot ............... $850 00
                  Taxes and interest thereon ..........   89 25
                                                        _______
                     Total ............................ $939 25
                   Credited by
                  Phillips account .... $ 10 00
                  Written orders above   248 00
                  Schafer order .......  100 00
                                        _______
                  Total, with interest ........ $520 48
                 Seven years' and seven months'
                  rent, at $40 per year, with
                  interest annually ...........  371 67
                                                _______
                   Total ..............................  892 15
                                                        _______
                   Balance due defendant .............. $ 47 10
                

Exceptions were filed by both parties. On consideration of these exceptions, the chancellor reduced the charge for enhanced value to $750. He raised the rental value to $50 per year for the time covered for the use of the property after the improvements were put upon it. He did not disturb the master's finding as to the rental value of the property prior to the time the improvements were placed upon it. He left undisturbed the master's findings as to taxes. As to the items of money advanced, he modified the report as follows: So as to relieve the defendant of any indebtedness to complainant on account of the insurance advanced of $4.80 and the $10 item for indebtedness on the store account of E. P. Phillips, and $5 advanced to defendant's wife, on the ground that these items did not appear in complainant's bill. His further decree upon this subject was as follows: "The court further finds complainant advanced respondent $248 at various times in the building of said house, and paid a $100 order to H. C. Schafer, and that defendant's plea of the statute of limitations as to these items, aggregating $348, is not sustained by the proof, except as to the extent hereinafter shown, and it is accordingly so decreed. And it appearing from the entire record and the report of the master, modified as shown above, that complainant is chargeable with the sum of $89.25, principal and interest, for taxes paid on said property, and the sum of $750 for enhancement of the premises, making a total of $839.25, which is subject to a set-off to the amount of $379.16 as principal and $75.25 interest, making a total of $454.41, leaving a balance in respondent's favor of $384.75; and it further appearing that complainant advanced to respondent the sum of $348, which was used in construction of the buildings on said premises, — it is decreed, therefore, that the said sum of $384.75 in respondent's favor is subject to the further set-off, with the amounts advanced by complainant to respondent, being $248, with interest from January 1, 1891, and $100, and interest from March 16, 1891, making a total of $505.10; and that the said sum of $384.75 will be discharged by a similar amount of $505.10 for money advanced by complainant to respondent, with interest thereon as before stated; but, as to any overplus left after offsetting the $384.75, complainant is denied any recovery; and defendant's plea of the statute of limitations is held good, and is accordingly so decreed. In accordance with the above and foregoing modifications, the report of the master is changed by the court so as to conform, and, thus modified, is confirmed." It thus resulted that the chancellor made the defendant and complainant even upon the account. He decreed the property to the complainant, and taxed him with one-third of the costs of the cause, and the defendant with two-thirds, and rendered judgment over against the complainant for his two-thirds, subject to the issuance of an execution and a return nulla bona against the defendant. From this decree the defendant prayed a broad appeal. The complainant prayed no appeal.

The complainant assigns no errors, but, as a precautionary measure, takes the preliminary point that, inasmuch as he was willing to comply with the verbal contract of sale, and tendered the defendant both a title bond and a deed, and he refused to receive either instrument, he (the compla...