Kritz v. Moon
| Decision Date | 03 October 1928 |
| Docket Number | No. 13004.,13004. |
| Citation | 163 N.E. 112,88 Ind.App. 5 |
| Parties | KRITZ v. MOON. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, St. Joseph County, No. 1; J. Fred Bingham, Judge.
Two actions by Fannie Kritz against Marvin C. Moon and others. From the judgment, plaintiff appeals. Reversed, with directions.Seebirt Oare & Omacht, of South Bend, for appellant.
Lemuel Darrow, of La Porte, and Alfred E. Martin, of South Bend, for appellee.
In January, 1925, appellant filed her complaint in the instant case against Marvin C. Moon, herein referred to as appellee, and Delbert Neddo, for possession of certain real estate in St. Joseph county, and for damages for unlawful detention. On January 29, 1926, appellee, while in possession of the real estate in question, filed an answer in two paragraphs, the first being a general denial. The second paragraph alleges that on May 10, 1915, appellant leased the land in controversy, a 51-acre farm, to Edward B. Moon for a term of five years from the expiration of a prior lease dated August 21, 1914, which by its terms expired September 12, 1919; that the lease of May 10, 1915, contained an option wherein the “defendant” might purchase the farm for $5,000, $1,000 payable at time of execution of deed, and $4,000 in annual installments of $500; that appellant in said lease and option agreed with the answering defendant that any and all improvements made on the property should be applied upon the first payment of the purchase; that Edward B. Moon, in writing, assigned the lease of May 10, 1915, to appellee; that thereafter appellee paid the rent to appellant, who knowing of such assignment accepted such rent from appellee and made no objection to such assignment; that appellee had paid on the “contract to purchase” $1,600; and that although requested so to do, appellant had refused to execute a deed to appellee, or return the money so alleged to have been paid by appellee.
At the time of filing such answer appellee also filed a “cross-complaint” against appellant, the first paragraph of which alleges the execution by appellant and Edward B. Moon of the leases of August 21, 1914, and May 10, 1915; that in June, 1922, Edward B. Moon in writing assigned the last lease and option to appellee, who before the expiration of the lease paid appellant $1,600; that appellant refused appellee's demand for a deed; that appellee at all times had been and was ready and willing to give appellant a mortgage for the balance of the purchase money, and asking judgment for $1,600 alleged to have been paid by Edward B. Moon on the purchase price.
The second paragraph alleges that on May 10, 1915, appellant in writing agreed to sell the land in controversy to Edward B. Moon for $5,000; that Edward B. Moon made improvements thereon in value in excess of $1,600, and assigned his right, and interest to appellee; that pursuant to and after the assignment appellee gave appellant a statement of the cost of the improvements and offered her in addition thereto $1,000, and his notes and mortgage on the land to secure the same, and demanded that appellant convey the real estate to him, which she refused to do, although appellee and his assignor had performed all the conditions of the contract which they were required to perform, and demanded judgment for $2,500 because of appellant's alleged breach of the contract.
The lease of May 10, 1915, a copy of which is filed with and made a part of the cross-complaint, gave Edward B. Moon an option to purchase the real estate at any time before the expiration of that lease, which by its terms expired September 12, 1924, for $5,000, payable as follows: $1,000 at time of execution of deed, and $4,000 in annual installments of $500, to be evidenced by the promissory notes of Edward B. Moon and secured by mortgage on the leased real estate. The lease also provided that the cost of any improvements made to the property by Edward B. Moon at his own expense should be deducted from and applied on the first payment of the purchase price, at the time of the execution of the deed. The covenants of this lease were by the terms thereof made binding upon the heirs, executors, and administrators of the parties thereto.
No question as to the sufficiency of either paragraph of cross-complaint or of the second paragraph of answer was presented to the trial court or to this court. In this connection, however, we call attention to the fact that neither answer nor cross-complaint alleges an acceptance of the option to purchase. Attention is also called to the fact that at the time the answer and cross-complaint were filed, and at the time of trial and rendition of judgment which was seventeen months after the expiration of the lease, appellee was in possession of the land in controversy. As to the right of one in possession of real estate under a contract of purchase, to maintain an action to recover money paid on the contract without rescinding and surrendering, or offering to surrender, possession, see Brumfield v. Palmer, 7 Blackf. 227;Calhoun v. Davis, 2 Ind. 532;Wiley v. Howard, 15 Ind. 169;De Ford v. Urbain, 48 Ind. 219;Gwynne v. Ramsey, 92 Ind. 414;Refeld v. Woodfolk, 63 U. S. 318, 16 L. Ed. 370;Hurst v. Means, 2 Swan (32 Tenn.) 594.
In October, 1925, appellant filed a complaint against appellee and one Wilcox, a tenant under appellee, to quiet her title to the premises and to enjoin them from removing therefrom the corn crop raised thereon by Wilcox after the expiration of the lease. To this complaint appellee filed a cross-complaint alleging and setting out the two leases; the assignment by Edward B. Moon to appellee of the last lease and option; the payment of rent from July, 1922, to September 12, 1924, by appellee; that Edward B. Moon made improvements on the land to the value of $1,600; that in July, 1922, appellee exercised his option to purchase the land and tendered appellant $1,000, and six notes each for $500, signed by appellee, payable 1, 2, 3, 4, 5, and 6 years after date and secured by a mortgage on the land and signed by appellee and his wife; that appellant refused to comply with appellee's demand for a deed; that in August, 1924, appellee again tendered appellant $1,000 in cash and six notes for $500 each, secured by a mortgage on the land and demanded a deed; that appellant refused to accept the said tender, and to execute the deed; that the improvements made on the property exceeded the $1,000 to be paid on execution of the deed; that the improvements to the extent of $1,000, the $1,000 tendered and the notes for $3,000 aggregated the purchase price; that appellee exercised his option to purchase and fully performed the contract on his part, but that appellant refused to carry out the contract and convey the property to appellee, and asking judgment for the value of the improvements made by “appellee” or for a specific performance of the option.
The two causes were tried together, without jury, and on February 19, 1926, separate judgments were rendered. In the action for possession and for damages for unlawful detention, the court found appellant was entitled to the possession of the farm and to $238 for unlawful detention, and that appellee, Moon, was entitled to recover damages on his cross-complaint in the sum of $2,272. Judgment was rendered in favor of appellant for possession and in favor of appellee for $2,034 damages. In the second action there was a decree quieting appellant's title and awarding the crop raised in 1925, to appellee and Wilcox. Appellant's motion for a new trial in the first action was overruled, hence this appeal.
Appellant contends that the option given Edward B. Moon to purchase the land was not accepted in accordance with the terms of the option, and that the option was not assignable to the extent that the assignment to appellee gave him the right or option to purchase the land, and substitute his notes and mortgage for the notes and mortgage of Edward B. Moon.
According to the terms of the first lease, appellant was to pay all taxes and keep the premises in good repair during the life of the lease, and the lessee was to keep the premises in a “husbandlike manner.” The option contract in the second lease without releasing appellant from the obligation imposed by the first lease, to keep the premises in good repair, provided that, if Edward B. Moon made any “improvements” to the property at his expense, and accepted the option to purchase, he was to be allowed a credit on the first payment of purchase price, for the cost of such improvements.
If Edward B. Moon made no improvements on the land and accepted the option to purchase, he would have been required to pay $5,000, $1,000 cash and the balance of $4,000 by giving his personal notes secured by a mortgage. If he made improvements costing $1,000 he would have been required to give but $4,000 for the land, all evidenced by his notes secured by mortgage-an anomalous situation, and one that involved personal confidence in Edward B. Moon and one coupled with financial liabilities on the part of Edward B. Moon. It is a contract that the average person would not make with a stranger. It is such a contract that a person would make only with one in whom he had confidence. The whole of the purchase price might be evidenced by the promissory notes of the purchaser. And as was said in Tarr v. Veasey, 125 Md. 199, 93 A. 428: “It is a well-settled principle that rights which are coupled with liabilities under a contract cannot be assigned.” To the same effect see Sprankle v. Trulove, 22 Ind. App. 577, 54 N. E. 461;Arkansas Valley Smelting Co. v. Belden, 127 U. S. 379, 8 S. Ct. 1308, 32 L. Ed. 248; Rudd v. Savelli, 44 Ark. 145; Hussey v. Roquemore, 27 Ala. 281; Smith v. Pitts, 57 Tex. Civ. App. 97, 122 S. W. 46;Menger v. Ward, 87 Tex. 622, 30 S. W. 853:Hounchin v. Salyards, 155 Iowa, 608, 133 N. W. 48;Edison v. Babka, 111 Mich. 235, 69 N. W. 499;Sims v. Cordele Ice...
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