Kelso v. Kelso

• Decision Date: 16 October 1896
• Docket Number: 1,888
• Citation: 44 N.E. 1013,16 Ind.App. 615
• Parties: KELSO v. KELSO ET AL
• Court: Indiana Appellate Court

44 N.E. 1013

16 Ind.App. 615

KELSO v. KELSO ET AL

No. 1,888

Court of Appeals of Indiana

October 16, 1896

Rehearing denied January 27, 1897, Reported at: 16 Ind.App 615 at 628.

From the Knox Circuit Court.

Affirmed.

George G. Reily and James W. Emison, for appellant.

William A. Cullop and Clarence B. Kessinger, for appellees.

OPINION

ROSS, J.

This cause was transferred to this court by the Supreme Court, as belonging within this court's jurisdiction.

The appellee, Joseph B. Kelso, filed his complaint against his co-appellee, Kate Brouillette and the appellant James I. Kelso, as follows:

"The plaintiff complains of the defendants, and says, that heretofore, on the 19th day of November, 1882, one Jerome T. Kelso was largely involved financially, and had been for a long time prior thereto, and that on said day and for a long time prior thereto, plaintiffs were and had been securities for said Jerome T. Kelso, for the purpose of saving him from financial disaster, and that on said day above mentioned, plaintiff and defendants were securities for said Jerome T. Kelso, in the sum of six thousand four hundred dollars ($ 6,400.00), evidenced as follows, to-wit: One promissory note payable to the First National Bank of Vincennes, Indiana, in the sum of one thousand four hundred and fifty dollars ($ 1,450.00), one promissory note payable to the First National Bank of Vincennes, Indiana, in the sum of two thousand dollars ($ 2,000.00), and also one promissory note payable to the Vincennes National Bank, of Vincennes, Indiana, in the sum of four thousand dollars ($ 4,000.00). That prior to said date said parties had been and were securities for said Jerome T. Kelso, for said sums and divers other sums herein mentioned. That at said time and for a long time prior thereto the said Kate Brouillette was the mother-in-law of said Jerome T. Kelso, and that said James I. Kelso and Joseph B. Kelso were her brothers; at said time Kate Brouillette was the owner of a large amount of valuable real estate situated in Knox county, Indiana. That said James I. Kelso for a long time prior to said date, aforesaid, had become alarmed at the financial condition of Jerome T. Kelso, and had, during their said suretyship aforesaid, refused to stand longer as surety for said Jerome T. Kelso, unless he was in some way indemnified or secured against loss thereby, and the said Kate Brouillette, Julia E. Kelso, the wife of the said Jerome T. Kelso, joined by said Jerome, as Julia's husband, executed to him, said James I. Kelso, a mortgage on certain real estate in Knox county, Indiana, on the day of January, 1882, on what was known as the river farm, said Julia E. Kelso being the owner of an undivided one-third of said river farm. That said Kate and said Julia owned as tenants in common, two-thirds of said river farm. Said mortgage was executed as an indemnity to secure said James I. Kelso against any losses he might sustain on account of his said suretyship from said Jerome T. Kelso. That said Julia E. Kelso was then the wife of Jerome T. Kelso, and so continued to be until the present time, and has ever since been. That said mortgage on said real estate was executed to indemnify and secure said James I. Kelso as a surety of said Jerome T. Kelso, and for no other purpose whatever.

"That while acting as such surety for said Jerome T. Kelso, as aforesaid, on said debts, aforesaid, at said time aforesaid, the plaintiffs and defendants entered into the following agreement, to-wit: 'This agreement made and entered into this 25th day of November, 1882, between James I. Kelso, of Knox county, Indiana, the party of the first part, and Kate Brouillette, of Vincennes, Indiana, and Joseph B. Kelso, of Knox county, witnesses, of the second part, whereas the parties of the first and second parts are jointly and severally liable, and subject to the conditions hereinafter stated, as securities for one Jerome T. Kelso, as follows, viz.: On one promissory note to the First National Bank of Vincennes, Indiana, for the sum of $ 1,450.00; one promissory note to the First National Bank of Vincennes, Indiana, for two thousand dollars ($ 2,000.00); one promissory note to the Vincennes National Bank, of Vincennes, Indiana, for four thousand dollars ($ 4,000.00). Whereas the said party of the second part has a mortgage made and executed to them by the said Kate Brouillette on her farm, known as her river farm, to secure him against any loss, as to the note of $ 1,450.00; and whereas, the party of the first part being a co-surety with the parties of the second part on the two notes of two thousand and four thousand dollars each at the request of the parties of the second part, and upon their promise and agreement that the party of the first part should ever be, by them, saved harmless from any payment thereof; and that he consented to become such co-surety simply to aid the parties of the second part from having to pay the said notes at once, and thereby get them further time in which to pay the said notes, or to succeed in getting the principal, Jerome T. Kelso, to pay him, and whereas the said principal, the said Jerome T. Kelso, has failed in part and in whole to pay these said notes, all of which are now past due; now, therefore, be it here understood that the party of the first part is willing and hereby agrees and covenants to pay off and satisfy in full the said note of $ 1,450.00, and also agrees and covenants to release his said mortgage at a certain time hereinafterward named. And be it further understood that the parties of the second part hereby covenant and agree to pay off and satisfy in full the two said notes of $ 2,000.00 and $ 4,000.00 each, provided that at the time they are prepared to pay off the sum the party of the first part will release his said mortgage hereinbefore mentioned.

'"Any and all property which all or either of the parties may be able to secure from the said Jerome T. Kelso is to be divided pro rata among the parties hereto. This is an agreement for a final settlement of matters herein mentioned between the parties hereto, James I Kelso, Joseph B. Kelso and Kate Brouillette.' Plaintiff avers that said parties thereto did pay, and become liable to pay, said notes as therein stipulated; that each and all paid the sum as therein agreed upon. Plaintiff also avers that James I. Kelso paid, of said liabilities aforesaid, the sum of $ 1,450.00, and that he, plaintiff, and said Kate Brouillette paid the sum of $ 6,000.00, to-wit, the sum of $ 3,000.00 each, and that he has refused to repay plaintiff any part thereof, or any part of the excess over and above said liabilities before said * * * be received therefor. Plaintiff says that he kept his part of said agreement as therein stipulated, and that the defendant, Kate Brouillette, also kept her part of said agreement as therein stipulated, but that the defendant, James I. Kelso, failed and refused to keep his part of the agreement as therein stipulated, in this, to-wit, that each and every one of the parties to said agreement has paid and satisfied the notes that each and every one thereto assumed and agreed to pay, and that the same has been fully satisfied and paid so far as the parties to said agreement are concerned. That the defendant, James I. Kelso, failed to keep his part of said contract in this, to-wit, that during the pendency of their said suretyship for said Jerome T. Kelso, his wife, Julia E. Kelso, was the owner as a tenant in common with Kate Brouillette and Elizabeth Brouillette, of a hundred and twenty-nine acres of real estate situated in Knox county, Indiana, of the value of ten thousand dollars ($ 10,000.00). She was the owner in fee simple of an undivided one-third thereof. And that during the pendency of their said suretyship aforesaid, said defendant, James I. Kelso aforesaid, procured Jerome T. Kelso, the husband of said Julia E. Kelso, for the sole and exclusive purpose of securing the above sum of money for which the plaintiff and defendants were surety for him, as an indemnity against loss on account of such suretyship, to induce his said wife, the said Julia E. Kelso, to convey to him the said real estate, which she then owned, to secure him and said plaintiff and said defendant, Kate Broulliette, as such surety for said Jerome T. Kelso, and that for said purpose, and only for the purpose of securing said parties against loss on account of their said suretyship for said Jerome T. Kelso, and his said wife, Julia E. Kelso, executed to said James I. Kelso, a deed of conveyance for her said real estate situated in Prairie Surveys numbers 14, 15, 16, 17, 18, and 19, in township three (3), of range ten (10) west, in Knox county, Indiana; that by said deed an undivided interest was conveyed in said real estate, and afterwards, to-wit, the said defendant, James I. Kelso, brought suit in the Knox Circuit Court against the aforesaid, Kate Brouillette and Elizabeth Brouillette, as owners as tenants in common with him in said real estate aforesaid, and as the interest which he acquired under said deed, by the judgment of the Knox Circuit Court, there was set off to him the following as the interest conveyed him by said deed, to-wit: Part of Upper Prairie Surveys 17, 18, 19 in Township number three (3) north, of range ten (10) west; bounded as follows: Beginning where the line between Upper Prairie Surveys 16 and 17 intersects the southeast line of right of way of the Indianapolis and Vincennes Railroad; thence south 32 degrees and 8 minutes east, 17 30-100 chains; between said surveys 16 and 17 to a stone from which an ash 15 inches in diameter bears north 35 3-4 degrees east, a hundred and eighty-one (181) links; thence north 75 3-4 degrees east, 6 53-100 chains to the...