Kimberlin v. Templeton
| Decision Date | 17 June 1913 |
| Docket Number | No. 8,040.,8,040. |
| Citation | 102 N.E. 160,55 Ind.App. 155 |
| Parties | KIMBERLIN et al. v. TEMPLETON et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; Vinson Carter, Judge.
Action by Leroy Templeton and others against Albert G. Kimberlin and others. From a judgment for plaintiffs, defendants appeal. Affirmed.
John O. Spahr and James A. Ross, both of Indianapolis, for appellants. Barrett & Barrett, Denny, Bowen & Denny, Ayres & Ayres, and Jones, Hammond & Jones, all of Indianapolis, for appellees.
This action was brought by appellee Leroy Templeton against appellants and his coappellees, Horatio S. and Annie M. Garner, Mary C. Kimberlin, and Mamie E. Wilson, to recover damages for an alleged breach of certain covenants in a chain of warranty deeds executed by Horatio S. Garnerand Annie M. Garner, his wife, James A. Wilson and Mamie E. Wilson, his wife, Albert G. Kimberlin and Mary C. Kimberlin, his wife, in the order named. The alleged breach consisted in the existence of and subsequent discharge by appellee Templeton of a certain municipal assessment, which is alleged to have become a lien on the land conveyed prior to the first conveyance by Garner and his wife. This cause was tried by the court, a special finding of facts made, and conclusions of law stated thereon.
The substance of the special findings is as follows: On and prior to May 3, 1906, Horatio S. Garner was the owner in fee simple of certain described real estate in Marion county, and on that day entered into a written contract with George Brannon as follows:
“Indianapolis, Indiana, May 3, 1906.
“Cline & Wilkins, Agents.
“I will give the sum of eighteen thousand ($18,000.00) dollars payable as follows: Seven thousand ($7,000.00) dollars in cash, balance in two equal payments payable on or before one and two years after date, with five per cent. (5%) interest; payable semiannually, for the real estate described as follows: [Here follows description of real estate], being all the land I own in said section and township, same to be free and clear of all incumbrances, excepting taxes for the year 1906 payable in 1907, warranty deed and abstract showing good title to be furnished me.
“[Signed] G. H. Brannon.
“I accept the above proposition with the above alterations this 3d day of May, 1906.
“[Signed] H. S. Garner.
“I accept H. S. Garner's alterations in the above proposition this 3d day of May, 1906, at 4:30 o'clock p. m.
“[Signed] G. H. Brannon.”
On May 8, 1906, Garner furnished an abstract of title to the real estate, which he claimed showed a good title in him, to said Brannon. The latter's attorneys claimed some question might be raised by future purchasers, and a decree quieting the title should be secured. Garner, while claiming this was unnecessary, did institute suit, and on April 4, 1907, secured a decree quieting title to the land. Thereafter he demanded that Brannon accept a deed for the land and pay purchase price. Brannon delayed doing so, and made another claim of an apparent defect, demanding that there be a second suit to quiet title and decree obtained. Garner then informed Brannon he had an offer for the land in a much larger sum than that stipulated in the contract, and offered to rescind the contract. This Brannon refused to do, stating he would hold Garner on his contract. In the meantime Cline & Wilkins, real estate brokers, sued Garner and obtained a judgment for $360 for commission in making the sale to Brannon. Brannon then proposed to pay this judgment, same to be considered a credit on the purchase price of the land, to which Garner consented. Brannon made the payment and procured Garner's receipt therefor, which included an agreement to procure another decree quieting title, and reads as follows:
“Indianapolis, Ind., February 1, 1907.
Garner instituted a second suit to quiet title and secured a decree to that effect on June 24, 1907. On July 13, 1907, appellant Wilson informed Garner that he (Wilson) was the owner of the contract dated May 3, 1906, and demanded that the land be conveyed to him. This Garner declined to do because Brannon had not assigned his contract in writing. Wilson then had Brannon indorse upon the contract: On June 6, 1906, the board of public works of the city of Indianapolis, Ind., adopted a resolution for the construction of a sewer in said city, and on July 13, 1906, the contract for the improvement was let to the Julius Keller Construction Company. The sewer was constructed and accepted by the board, and the real estate involved in this action was assessed with benefits amounting to $2,774.95, which assessment was confirmed on February 10, 1908, and became a lien upon the real estate on July 13, 1906. On July 13, 1907, appellees Garner and wife executed to appellant Wilson their warranty deed for the tract of land, which was duly recorded July 15, 1907. That on December 23, 1907, appellant Wilson and his wife Mamie E. Wilson (appellee) executed to appellant Kimberlin a warranty deed for the real estate, which was duly recorded December 26, 1907, and Wilson received the consideration therefor. On January 22, 1908, appellant Kimberlin and Mary C. Kimberlin, his wife (appellee), executed and delivered to appellee Templeton their warranty deed for the land, which was recorded the same day, and Templeton paid the consideration therefor to Kimberlin. Templeton became and is now the owner of the real estate. The municipal assessment became a valid and enforceable lien against the real estate on July 13, 1906. That same was not paid, and the assessment was assigned to the German Investment & Securities Company. On May 27, 1908, said company instituted proceedings to foreclose the lien of the assessment; Garner, Wilson, Kimberlin, Templeton and their wives being made defendants in the action. The German Investment & Securities Company obtained a judgment and decree foreclosing the lien in the sum of $3,148.94. Templeton, in order to save the real estate from sale, on July 15, 1909, paid to the sheriff of Marion county the sum of $3,261.14, in full satisfaction of the lien and judgment, no part of which has been repaid to him. The court found there is due and owing Templeton from appellants, on account of said assessment, interest, and costs and judgment rendered thereon and attorney's fees, a total of $3,411.14 with 6 per cent. interest from July 15, 1909, to the date of entering of this judgment, and he is entitled to recover costs of these proceedings from appellants. At the time of the execution of the deed by Garner to Wilson, said Garner and wife and Brannon and Wilson had no actual knowledge of the existence of the sewer assessment lien, but had such constructive notice as they are chargeable with by law.
Upon these facts the court stated its conclusions of law to be: “(1) That the lien for the sewer assessment which was made after the contract of sale of the real estate in controversy is not an incumbrance within the meaning of the warranty of appellees Horatio S. and Annie...
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