Heck v. Selig
| Citation | 188 N.E.2d 118,134 Ind.App. 336 |
| Decision Date | 19 February 1963 |
| Docket Number | No. 2,No. 19570,19570,2 |
| Parties | Gladys M. HECK, Harold R. Heck, Appellants, v. Stanley SELIG, Dona Selig, Appellees |
| Court | Indiana Appellate Court |
Scifres & Hollingsworth, Lebanon, Campbell, Campbell, Malan & Kyle, Noblesville, Albert W. Ewbank, Indianapolis, for appellants.
Smith & Jones, Harold W. Jones, Douglass R. Shortridge, Indianapolis, for appellees.
Appellees as plaintiffs below filed this action against appellants alleging that the appellee, Stanley Selig, is one of the owners in fee simple and entitled to the immediate possession of certain real estate therein described of the estimated value of $20,000.00 and of the estimated rental value of $100.00 per month; that the appellants have maintained a nuisance by keeping the property in an unsanitary and unsightly condition to appellees' damage; that the appellants unlawfully retained possession thereof of said appellees' real estate.
The complaint asked for an order directed to the sheriff to seize the real estate; that appellees be awarded a judgment for possession of the real estate and damages including attorney's fees.
Appellants filed an answer admitting that appellees were the record owners of the real estate and the alleged value of the real estate and denied other allegations. They also filed their counterclaim alleging that appellees were the owners in fee simple of the real estate on June 20, 1956, on which date they made, executed and delivered a written contract to sell the real estate to appellants and setting forth a copy of the contract; that the contract provides that appellants shall have the privilege of paying larger sums in addition to the payments required; that they elected to pay the entire balance due; that they made arrangements to make a loan on said real estate to pay the balance; that appellees refused to accept the balance or attend a closing meeting or execute their deed to appellants or to meet with appellants to receive the balance; that as a part of the down payment appellants did convey to appellees real estate of the agreed value of $11,572.66, made monthly payments in the total sum of $750.00, and paid taxes; that they are in possession of said real estate pursuant to the contract; that they are ready, willing and able to pay all sums of money due appellees under the contract. Appellants prayed that the appellees be required to execute their deed to appellants upon payment by appellants of any amount the court might adjudge due and payable or that a commissioner be appointed to make such conveyance and for damages sustained by reason of the conduct of appellees.
The appellees answered the counterclaim in admission and denial under Rule 1-3 admitting the making, execution and delivery of the contract; admitting that the real estate described in the contract is the identical real estate described in the complaint; that it provides that the buyers shall have the privilege of paying any sums of money in addition to the payments required and denying any other allegations.
The description of the real estate in appellee's complaint and in the contract set forth in appellants' counter-claim consists of a metes and bounds description of an irregularly shaped 15.19 acre tract of land followed by these words:
'The part of the above described parcel of ground that is being sold herein to Gladys M. Heck, an unmarried adult, and Harold R. Heck, an unmarried adult, is that part of the above described tract that starts at an imaginary line that is approximately 50 feet by parallel lines north of the kennels (dog kennels) imaginary line running from east boundary of the above described tract of ground to the west boundary of the above described tract of ground, and thence taking in the entire part of the above described tract of ground that would lie south of the imaginary line. * * *.'
The court's findings and judgment are as follows:
'1. The Court finds for the plaintiff upon their complaint in ejectment, that there was a mutual mistake of a material fact in the entering into the contract at issue in this cause concerning the description of the land involved and that therefore, no meeting of the minds occurred and thus no contract was actually entered into.
'2. The Court further finds that there was no fair rental value of the land established by the testimony and likewise, there was no testimony concerning the return the plaintiffs received upon the moneys and property of the defendants paid to plaintiffs upon the contract.
'3. The Court finds that the down payment of $11,576.66 made by the defendants to the plaintiffs should be returned to the defendants.
'4. The Court finds that the monthly payments made by the defendants to the plaintiffs amounting to $850.00 should be returned to the defendants.
'5. The Court finds that the defendants should pay to the plaintiffs the sum of $115.00 representing 7/12 of the 1959 taxes due in 1930 which in turn represents taxes payable upon the property up to and including occupation until August 1, 1960, and that this amount should be deducted from the amount owing from plaintiffs to defendants.
'6. The Court finds against the plaintiffs and for the defendants upon the plaintiff's complaint for damages for nuisance, there being no reasonable amount of damages proved by plaintiff.
'7. The Court finds against the plaintiffs and for the defendants concerning attorney fees for plaintiff's attorneys since the theory of attorney fees only applies under the contract and the Court has already found there to have been no contract.
'8. The Court finds against the defendants for the plaintiffs upon defendants counterclaim denominated a cross-complaint for specific performance of the contract, and therefore, finds that no damages are due defendants, nor are they due attorney fees from the plaintiffs.
'It is therefore considered, ordered adjudged and decreed that upon the tender of the sum of $12,422.22 by the plaintiffs to the defendants, the plaintiffs be given possession of the property at issue in this cause, defendants bond remaining in force until the above decree is effectuated.
'Costs are taxed to the defendant.' (Our emphasis).
The complaint referred to a sale to appellants; the counterclaim set forth a contract alleged to have been made, executed and delivered by appellees and appellees by their answer to the counter-claim admitted the making, execution and delivery of the contract. As stated in 23 West's Indiana Law Encyclopedia, Pleading, § 22, p. 264:
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...directly before us. As authority for its contentions, the appellant cites § 2--1065, Burns' 1946 Replacement and Heck et al. v. Selig (1963), 134 Ind.App. 336, 188 N.E.2d 118 which the appellant contends support the 'well established principle' that a plaintiff's proof must sustain the theo......
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