Higham v. Harris

• Decision Date: 15 September 1886
• Citation: 108 Ind. 246,8 N.E. 255
• Parties: Higham and Wife v. Harris and others.
• Court: Indiana Supreme Court

108 Ind. 246

8 N.E. 255

Higham and Wife

v.Harris and others.^a1

Supreme Court of Indiana.

September 15, 1886.

Appeal from Switzerland circuit court.

Friedley & Korbly, for appellant. C. E. Walker, for appellee.

Mitchell, J.

In 1863, John Higham and William G. Krutz executed a mortgage to the executor of the estate of Nicholas Longworth, deceased, on a tract of land in Switzerland county, containing 800 acres. The mortgage was to secure a debt-part of the purchase price of the land-of $30,000, evidenced by six promissory notes of $5,000 each. This was a proceeding by the executor to foreclose the mortgage.

Hosier J. Harris and Stephen H. Scranton were made parties defendant, they having acquired Krutz's interest in the lands mortgaged. As between the Longworth estate and the defendant it was found, without serious controversy, that there remained due of the mortgage debt the sum of $7,446.68. A personal judgment for the amount found due was rendered against Higham and Krutz. This was followed by a decree of foreclosure against all the defendants.

The matters in contest arose between Higham on the one side, and Krutz, Harris, and Scranton on the other. These parties, by way of cross-complaints against each other, and answers and replies thereto, set forth their respective claims at such length as to forbid any attempt to present even a synopsis of the pleadings. It was conceded that Higham and Krutz purchased the land described in the mortgage from the executor of the Longworth estate, and received a warranty deed therefor as tenants in common. It was also conceded that Higham and Krutz afterwards made partition between themselves, each conveying to the other, as tenants in severalty, the shares agreed upon, and that Harris and Scranton subsequently purchased the part set off to Krutz, taking a conveyance therefor, in which they assumed to pay his share of the unpaid mortgage debt.

Higham filed a cross-complaint, in which he set up that he had paid his full share of the purchase money, and that, so far as it remained unpaid, it was equitably the debt of Krutz. He prayed that the amount remaining unpaid should be adjudged a prior lien on the land set off to Krutz, and by him conveyed to Harris and Scranton. In their answers, and by way of cross-complaint, Harris and Scranton set up a written agreement between Higham and Krutz, by the terms of which they claimed that Higham had agreed, or that the result of the agreement and settlement was, that so much of the mortgage debt as remained unpaid should fall upon him. To this the latter responded, by way of reply and answer, that Krutz had obtained the pretended settlement by fraud, undue influence, and without consideration, while he (Higham) was in a state of intoxication.

Issues were thus joined, which were tried by the court, who, upon request, made a special finding of the facts, and stated conclusions of law thereon adverse to Higham and wife. The facts found by the court, so far as they are material to develop the questions for consideration, may be stated in an abbreviated form as follows:

On the twelfth day of October, 1863, Higham and Krutz purchased a tract of land, called the “Mexico Bottom,” of the Longworth estate, for $40,000. Of this sum they paid, each paying the one-half, between the date of purchase and March 1, 1864, $10,000, at which time they received a deed, and executed their joint notes, secured by mortgage on the land purchased, for the deferred payments. The notes were for $5,000 each, payable in from one to six years, inclusive. Subsequently the land was partitioned by agreement; Krutz taking 349 1/2 acres, Higham 200 acres more, the latter paying to the former $6,000 in cash as the difference in the division of the land. In 1870, Krutz conveyed the portion set off to him to Harris and Scranton for $31,000; they agreeing, out of this sum, to pay his share of the unpaid purchase money to the Longworth estate, and to render the balance to Krutz. At the time Higham & Krutz purchased the land, they made an arrangement by which Krutz went into possession. As part of the arrangement the latter agreed to cut and sell timber, and make improvements on the land, and, out of the anticipated profits, pay the purchase price. In 1870, Krutz claimed that, instead of profits, a loss of $7,000 had resulted from the timber enterprise. He sent Higham a statement, which was afterwards designated as the “Mexico bottom bill,” and demanded to be reimbursed for one-half of the alleged loss. Higham disputed the claim, and refused to pay.

Shortly after the conveyance from Krutz to Harris and Scranton, the latter undertook to ascertain how much of the unpaid purchase money due the Longworth estate was chargeable to them under the assumption contained in their deed from Krutz. Higham and Krutz were unable to agree. Thereupon, on the twelfth day of June, 1871, Krutz commenced a suit against Higham, claiming that the latter owed him one-half the loss arising out of the timber adventure, besides $6,000 on the agreement for partition, and $3,000 which he claimed to have paid more than his share of the cash payment of the purchase money on the land. In previous statements of accounts rendered by Krutz to Higham no mention had been made of any claim of the items last named; the matter in controversy being the account growing out of the timber transaction, or the “Mexico bottom bill.”

On the second day of August, 1871, Higham, who was addicted to drink, met Krutz, upon the invitation of the latter; and, being solicited by him, took several drinks of whisky, after which a settlement of the “Mexico bottom bill” was proposed. They were unable to agree. Continuing to drink, Higham proposed that, if Krutz would dismiss his suit, he (Higham) would surrender certain notes, amounting to $2,200 or $2,300, which he held against Krutz.

Higham had on deposit in a Cincinnati bank $1,384.48 in money, which he also let Krutz have, taking the latter's note for its repayment, due in one year, without interest. Krutz thereupon accepted the surrender of his notes as proposed by Higham, and agreed to dismiss the suit. At the time this occurred, Krutz had in his possession what purported to be a statement of the account of payments made by Higham and Krutz, respectively, to the Longworth estate. This account or statement was in the handwriting of the book-keeper of the Longworth estate, but it was not taken from the estate's books. It was made by the book-keeper at the dictation of Krutz, and was not a true statement, as Krutz knew.

At the time the lawsuit was settled, Krutz told Higham that he wanted an order from him to Harris and Scranton, so that he might get the money due from them on the sale of his share of the land. He then produced the account made by the book-keeper, which had never been seen before by Higham, and, turning it over, wrote in part himself, and procured Higham to write the balance as he dictated, the following:

“ Mr. J. R. Harris-Sir: You will please pay William G. Krutz the within bill, which is due him as made out by Longworth heirs, which leaves Krutz $14,682. You can deduct from the thirty-one thousand dollars. Pay Krutz the balance, which leaves $16,318, which you will owe Krutz, and interest from the first of March, 1870. William G. Krutz has agreed with John Higham, and Higham agrees, Longworth's account is correct, making Wm. G. Krutz's account $14,682; Higham's account $13,064.44.

March 1, 1870. John Higham.”

Higham, at the same time, by the procurement of Krutz and his son, signed the following written statement:

“This instrument of writing, made and entered into this second day of August, 1871, by Wm. G. Krutz and John Higham, is to certify that Wm. G. Krutz has this day executed to said John Higham his promissory note, bearing even date herewith, for $1,384.48, due one year after date, and that they have made a full settlement of all their affairs and difficulties up to date; and said Krutz hereby agrees with said John Higham, that he (Wm. G. Krutz) will withdraw his suit, instituted against said John Higham, and pay all costs that have accrued on the same, made by said Wm. G. Krutz; and the said John Higham hereby agrees that the account or statement rendered by the agent of Nicholas Longworth's heirs at Cincinnati, showing the sum of $14,682 as due from Wm. G. Krutz to the Longworth heirs, is correct and right, showing the matter in full up to the time said bill or statement was rendered; and the said John Higham hereby authorizes Jacob R. Harris to pay to said Wm. G. Krutz all his money due on this land purchased by him, deducting therefrom only $14,682, as is shown by said Longworth statement, a copy of which is attached to this agreement. This is a full settlement of all claims and accounts between the said parties to date, including the ‘Mexico bottom bill,’ all other acc'ts or claims of any description whatever for securities, notes, or any other claims to date.

[Signed] William G. Krutz.

[Signed] John Higham.”

This statement was written partly by Krutz, and in part by his son and book-keeper. A copy of the pretended Longworth account was attached to the agreement. At the time Higham signed the paper showing the settlement, he was drunk, having indulged his habit to excess, at the request of Krutz. He knew that he had surrendered the notes above mentioned to Krutz in settlement of the lawsuit, and that he had taken the note of the latter for $1,384.48 for money which he had loaned or “let Krutz have.” He also knew that he signed some papers.

The court found that the statement purporting to be from the books of the Longworth estate was in fact Krutz's own statement, copied in the handwritingof the book-keeper of the estate, and was known by Krutz to be false. This statement gave Krutz credit for a large sum above the amount he had actually paid, while it gave Higham credit for less than he had paid.

Krutz and his son, who assisted...