Hutchinson v. Lemcke
| Decision Date | 19 June 1886 |
| Docket Number | 11,303 |
| Citation | 8 N.E. 71,107 Ind. 121 |
| Parties | Hutchinson v. Lemcke et al |
| Court | Indiana Supreme Court |
From the Vanderburgh Circuit Court.
The judgment affirmed at appellant's costs.
A. C Tanner and W. W. Ireland, for appellant.
C Denby, D. B. Kumler, P. Maier and A. Gilchrist, for appellees.
Appellant brought this action to recover from Willard Carpenter, Alvin B. Carpenter and J. Augustus Lemcke, the undivided one-half of "the southwest half of lot 86," in the old plan of Evansville.
The facts in the case, as developed by the record, are substantially as follows: In 1838 Abraham Hutchinson, appellant's husband, and one Francis Amory were the owners in fee simple of lot 86, in the old plan of Evansville, as tenants in common.
On the 17th day of June, 1840, Amory conveyed his interest in the southwest half of the lot to Abraham Hutchinson and his wife appellant, which deed was duly recorded on the 21st day of July, 1840. Abraham Hutchinson being indebted to Alvin B. and Willard Carpenter, he and appellant, on the 25th day of October, 1841, executed and delivered to the Carpenters what appellant's attorneys call a trust deed, and what appellees' attorneys insist was a mortgage, covering the portion of the lot here in dispute.
The granting portion of the instrument is in form an absolute warranty deed, in consideration of $ 1,960. It closed with the following:
This instrument was recorded on the 9th day of November, 1841.
Abraham Hutchinson died on the 30th day of May, 1842, without having paid to the Carpenters the $ 1,960, or any portion of it. It has not been paid, unless, as alleged in the complaint, it has been paid by the rents and profits of the premises, in the possession of appellees, or paid by Hutchinson's administrator. The premises were never sold by the Carpenters, nor by any one else as provided in the trust deed or mortgage, nor has that instrument ever been satisfied of record.
Abraham P. Coleman was appointed administrator of the estate of Abraham Hutchinson. On the 11th day of August, 1842, Coleman, as such administrator, filed a bill in the probate court of Vanderburgh county against appellant and her children, all minors, and the Carpenters, in which he alleged, amongst other things, that the personal estate was insufficient to pay Hutchinson's debts; that he died possessed, and the owner, of the half-lot here in dispute; that it was mortgaged to the school commissioners to secure the payment of $ 179.40; that in 1841 Hutchinson was indebted to the Carpenters upon a judgment in the sum of $ 187.68, which they were threatening to enforce by execution; that being thus pressed, and in danger of being financially ruined by such execution, and being induced by threats and promises by the Carpenters, he agreed to, and did, take a loan from them of $ 805.75, which, with the amount of the judgment, made his indebtedness to them $ 1,000; that $ 960, by way of interest, was added, but was to be treated as a part of the principal debt, making the whole $ 1,960 to be paid in one year, with 6 per cent. interest thereon, and secured by the trust deed or mortgage; that the Carpenters, to avoid a possible defence of usury, assigned to Hutchinson worthless accounts, to the amount of $ 960, with an agreement that whatever portion of them could not be collected during the coming year, would be accepted back at fifty cents on the dollar, and the amount be deducted from Hutchinson's indebtedness, on condition that he would first satisfy the prior mortgage to the school commissioners; that to further avoid a possible defence of usury, the Carpenters insisted that there should be inserted in the trust deed or mortgage the power of sale, as above set out. The prayer in the bill was, that the conveyance to the Carpenters might be declared to be a mortgage; that they be compelled to take back the accounts at their face, and accept $ 1,000 and interest thereon in discharge of the mortgage, and that the administrator might have an order to sell the half-lot for the purpose of paying off the mortgages thereon, and other debts against the estate, and that appellant might be subpoenaed to answer the bill.
She and the Carpenters having been subpoenaed and not appearing, the bill was taken as confessed, and it was adjudged and decreed that the Carpenters were entitled to $ 1,067.56, that all of the balance was usurious and void, that the deed from Hutchinson to the Carpenters was intended to be, and was, a mortgage, and that the widow and children had the right to redeem. An order was made authorizing the administrator to sell the real estate, and directing him to apply the proceeds to the payment of the Carpenters' claim, and the residue, if any, to the payment of the general debts against the estate.
On the 27th day of December, 1843, the administrator sold the half-lot in suit to Willard Carpenter for $ 1,000, the building having been burned before the sale. On the 12th day of February, 1844, the sale was reported to and approved and confirmed by the court. The administrator's deed to Carpenter, executed on the 24th day of February, 1844, was recorded on the 16th day of August, 1844. On the 29th day of May, 1844, Alvin B. Carpenter and wife, in settlement of his partnership affairs with his brother, executed and delivered to Willard Carpenter a quitclaim deed for several tracts of real estate, among which was the half-lot described in the trust deed or mortgage by appellant and husband to the Carpenters. On the 12th day of April, 1858, Willard Carpenter conveyed the half-lot, with his other property, to Allis and Walker, assignees, for the benefit of his creditors. On the 2d day of June, 1858, Allis and Walker, as such assignees, sold and conveyed the half-lot to Alvin B. Carpenter. On the 11th day of March, 1863, Alvin B. Carpenter, in consideration of $ 10,000, and by warranty deed, conveyed the half-lot to Schapker and Bussing. On the 1st day of January, 1872, Schapker and Bussing, in consideration of $ 31,000, sold and by warranty deed conveyed the half-lot to Bernard Nure. On the 2d day of May, 1881, Bernard Nure, in consideration of $ 33,000, sold and by warranty deed conveyed the half-lot to the appellee Lemcke. Shortly before the sale by the administrator, the buildings on the half-lot were burned.
There was evidence adduced upon the trial, that shortly after the fire, and before the sale by the administrator, Willard Carpenter assumed to be in the possession of the half-lot, by going upon it and removing the debris therefrom.
For the purposes of a decision upon the instructions, if such a decision shall be found to be necessary, such possession may be taken as an established fact. There was evidence also that no possession was taken by either of the Carpenters until after the sale by the administrator and the execution and delivery of his deed to Willard Carpenter, and that possession was taken by Willard Carpenter under and by virtue of the administrator's deed, and not otherwise. For the purposes of a decision of the case upon the evidence, that fact must be taken as established. The evidence shows that in March, 1845, after the execution of the administrator's deeds, Willard Carpenter took complete and exclusive possession of the half-lot, and, at an expense of at least $ 2,000, erected permanent business buildings thereon, which with out-buildings, covered the whole, or nearly the whole, of the half-lot. From that time forth until his assignment in 1858, he held the exclusive possession of the premises, rented the buildings, received the rents, and paid the taxes. After his purchase from the assignees in 1858, until he sold in 1863, Alvin B. Carpenter had the exclusive possession of the premises, rented the buildings, received the rents, and paid the taxes. Schapker and Bussing expended upon the property from $ 15,000 to $ 20,000, enjoyed the use of the property, and paid the taxes until they sold it in 1872. In like manner, Nure held the exclusive possession, paid taxes, etc., until he sold the property in May, 1881. Since then Lemcke has held the property in like manner. During all the years from the death of her husband, in 1842, until a short time before the beginning of this action, on the 1st day of June, 1881, appellant made no claim to the property, nor...
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Harvey v. Fink
...too late, as it belonged to a class of motions which must be entered at the earliest practicable moment to be made available. Hutchinson v. Lemcke, 107 Ind. 121, 8 N. E. Rep. 71. No formal argument has been submitted against the sufficiency of the third paragraph of the defendant's answer, ......
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Harvey v. Fink
... ... which must be entered at the earliest practicable moment to ... be made available. Hutchinson v. Lemcke, ... 107 Ind. 121, 8 N.E. 71 ... No ... formal argument has been submitted against the sufficiency of ... the third ... ...