Kenton v. Robbins

• Decision Date: 28 November 1855
• Parties: Kenton and Others v. Robbins
• Court: Indiana Supreme Court

7 Ind. 81

Kenton and Others v. Robbins

Supreme Court of Indiana

November 28, 1855

From the La Grange Circuit Court.

The decree is reversed with costs. Cause remanded.

R Brackenridge, jr., for appellants.

J. B Howe, for appellee.

OPINION

Davison J.

Bill in chancery by the appellee against the appellants, to enforce a vendor's lien, &c. The facts are substantially these:

In January, 1839, Caleb Van Ausdol sold a tract of land in La Grange county to Kelly and Ford, for 2,000 dollars, on which they paid 300 dollars, and then sold the same land to John and Frederick Robbins, who refunded the last-named sum to Kelly and Ford, and agreed to pay the residue of the purchase money, viz., 1,700 dollars, to Van Ausdol. At this time John and Frederick held the receipt of an attorney residing at Marion, Ohio, for a claim of 1,000 dollars, in his hands for collection, which claim they gave to Van Ausdol in part payment of the 1,700 dollars, and at the same time delivered him the above receipt. After this, Van Ausdol purchased the land back from them for 1,800 dollars, it being stipulated in the contract of sale that he should retain the money which he had collected on said claim, and the balance then due on it; whereupon he gave them two notes, one for 450 dollars, and another for 647 dollars, for the amount due on account of said purchase. When these notes were given, the parties understood them to be a lien on the land at that time sold and conveyed to Van Ausdol. The latter note, which is the subject of the present suit, was afterwards sold and delivered by John and Frederick Robbins to Isaac Robbins, the appellee.

In May, 1843, Van Ausdol died in Ohio, where he then resided, and one William Holler, under the laws of that state, became his administrator. At his death he was still the owner of the land for which the above notes were given, and another tract situated in Jasper county, containing one hundred and sixty acres. When Van Ausdol died, he left a widow and ten heirs, who, with one Alexander Fleming, are the appellants, and were the defendants below; the said Fleming having purchased of said heirs three-tenths of the land bought of John and Frederick Robbins. About the 13th of August, 1840, Isaac Robbins, the appellee, Elizabeth Van Ausdol, the decedent's widow, and Cornelius Van Ausdol, one of said heirs, met together at LaGrange, when it was agreed between them that Robbins was to receive the land in Jasper county, in satisfaction of his note. Pursuant to this agreement, Elizabeth and Cornelius executed to Robbins a bond in the penalty of 750 dollars, conditioned that they would make, or cause to be made to him a deed in fee for said land, conveying to him a clear title to the same. Thereupon Robbins delivered up the note in question to Holler, the administrator, who was then present. After this, the administrator placed the note in the hands of Cornelius Van Ausdol, with directions to cut the signatures off of it. This was done; and in that condition the said Cornelius handed the note to Robbins, at his request, and under a promise to return it, which he failed to do. The note, thus mutilated, is exhibited in the bill. When the bond was given, and the note delivered to Holler, Robbins was told that the most of Van Ausdol's heirs were minors; and he then knew that Elizabeth Van Ausdol was only entitled to a dower right in the premises, and that the interest of Cornelius was not more than a title to one undivided tenth of the lands sold. Further, it was then understood by the parties that Robbins would, at his own cost, make an effort to procure title through the Probate Court. With this view, Robbins obtained letters of administration on Van Ausdol's estate, and about the same time took possession of the land for which he held the title-bond; but having failed to procure such title, he was, some two or three years afterwards, removed from office as administrator, and being notified by the guardian of some of said heirs to leave the premises, he accordingly left them. It appears that Holler, the first named administrator, having shown to the Court that the note was liquidated in the manner above stated, was permitted to make final settlement, &c.

The bill prays that a special equitable lien, in favor of Isaac Robbins, on the land in La Grange county, be decreed; that the same be sold for the payment of said debt, &c., and should said land prove insufficient for the purpose, then that the land in Jasper county be sold, &c.;...