Kurtz v. Carr

• Decision Date: 11 March 1886
• Citation: Kurtz v. Carr, 105 Ind. 574, 5 N. E. 692 (Ind. 1886)
• Parties: Kurtz v. Carr, Adm'r.
• Court: Indiana Supreme Court

105 Ind. 574

5 N.E. 692

Kurtz

v.Carr, Adm'r.

Supreme Court of Indiana.

Filed March 11, 1886.

Appeal from Carroll circuit court.

W. F. Hayes, for appellant.

Reynolds & Sellers, for appellee.

Howk, J.

This was a verified claim filed by the appellant, Kurtz, in the clerk's office of the White circuit court, against the appellee, Carr, administrator de bonis non of the estate of Benjamin D. Petit, deceased. Afterwards, such claim not having been allowed by the appellee at the time prescribed by law, it was duly transferred to the issue docket of the White circuit court, for trial, and thereupon, on appellant's application, the venue of the cause was changed to the court below. There the parties appeared, and appellant filed a second paragraph of his verified claim. The cause, being at issue, was tried by the court; and, at the request of the parties, the court made a special finding of facts, and thereon stated its conclusions of law in favor of the appellee, the defendant below. Over appellant's exceptions to the conclusions of law, the court rendered judgment against him for appellee's costs.

In this court several errors have been assigned by the appellant upon the record of this cause; but, in the outset of his brief, his counsel says: “The appellant rests his appeal upon his exceptions to the finding of facts, and the conclusions of law, as found by the court.” We shall consider this case, therefore, as it is presented by the special finding of facts, and decide the question whether or not the trial court erred in its conclusions of law. The facts found by the court were substantially as follows: It is found that on the thirteenth day of September, 1876, one Cormican Hays conveyed to said Benjamin D. Petit, then in life, by warranty deed, for the expressed consideration of $25,890, certain lands in White county, Indiana, containing 511 1/2 acres, which deed was dated August 1, 1876, but was not delivered until September 13, 1876; that on the day last named Benjamin D. Petit executed to Cormican Hays his written promise, as follows:

“Brookston, September 13, 1876.

I hereby assume and agree to pay the sum of twenty-one thousand and eighty-one dollars, as follows, to-wit: The sum of fourteen thousand dollars to the heirs of John Ritchie, deceased; thirty-seven hundred and seventy-five dollars to the Second National Bank of La Fayette, Ind.; fifteen hundred and six dollars to the La Fayette Savings Bank; and eighteen hundred dollars to George Chamberlain. Should Cormican Hays pay me the above amount, with the interest thereon at the rate of ten per cent. per annum, within three years from this date, or cause the same to be paid, then I bind myself, my heirs and administrators, to make the said Cormican Hays a good and sufficient deed to a certain tract of real estate contained in a deed of said Hays to Benjamin D. Petit, dated August 1, 1876.

[Signed] B. D. Petit.”

In July, 1883, Cormican Hays assigned this writing obligatory to the appellant, by indorsement thereon in these words: “La Fayette, Ind. I hereby assign the within contract to Charles Kurtz. [Signed] C. Hays.”

It is found that on the thirteenth day of September, 1876, Cormican Hays was indebted to the La Fayette Savings Bank in the sum of $4,300, with interest thereon from October 29, 1875. This indebtedness was evidenced by a promissory note dated October 29, 1875, executed to such savings bank by Hays, as principal, and Charles Kurtz, Benjamin D. Petit, Joseph H. Krom, and Samuel H. Powell, as sureties. Powell was then insolvent, and suit had been instituted on such note. On the twenty-sixth day of November, 1876, Kurtz, Petit, and Krom paid the interest due on such note, and the costs accrued in the pending suit, and each, in payment of such note, executed his separate note to the savings bank for the sum of $1,433. These notes became due six months after November 26, 1876, and Kurtz, Krom, and Petit each paid his note when due. And it is found that the sum of $1,506, which Petit assumed and agreed to pay to such savings bank, embraces and constitutes the one-third of such note of $4,300, together with one-third of the interest due thereon and one-third of such costs, and that Petit fully paid the sum which he thus assumed to pay to such savings bank. It is further found that, at the time of the execution of the aforesaid agreement, Hays was indebted to George Chamberlain in the sum of $1,800, with interest, evidenced by a joint promissory note executed by Hays, as principal, and Petit as surety. On the fourteenth day of February, 1877, Chamberlain commenced an action upon such note in the White circuit court against Hays and Petit. On the twenty-seventh day of February, 1877, Petit conveyed to Chamberlain 40 acres of land, at the agreed price of $1,000, for which Chamberlain agreed to release Petit from any further liability on such note, and, on the next day, dismissed his action as to Petit, and Hays not appearing, judgment by default was rendered against him for $2,058.87, and costs of suit. This judgment was rendered pursuant to the agreement between Petit and Chamberlain; and it was further agreed between them that, if Chamberlain should succeed in collecting his judgment against Hays, he would repay to Petit the sum of $1,000, the agreed price of such land. It is found that Hays was ignorant of the agreement between Petit and Chamberlain, at the time it was made, and at the time such judgment was rendered, and the evidence does not disclose the time when Hays first acquired knowledge of such agreement and of such payment of $1,000. This judgment against Hayes is still in force and remains unpaid. Chamberlain assigned the judgment to the plaintiff, Kurtz, in August, 1883, receiving therefor $300. At the time this agreement was made between Petit and Chamberlain, the latter was ignorant of the agreement between Hays and Petit, whereby Petit had agreed to pay such indebtedness. It is further found that on the twenty-seventh day of October, 1882, Hays filed his claim, in the White circuit court, against John P. Carr, administrator of the estate of Benjamin D. Petit, deceased. His claim or complaint was in three paragraphs.

In the first paragraph Hays stated that on September 13, 1876, he conveyed by warranty deed to Benjamin D. Petit the following-described lands, to-wit, (description,) containing 511 1/2 acres, of the value of $30,000, the consideration expressed in such deed being, however, but $25,890. Benjamin D. Petit, on the day last named, in consideration of the execution of such deed, agreed with Hays to pay the sum of $21,081, in the aggregate, to certain individuals and banking corporations, and relieve Hays from all liability upon the same; that, in addition to the payment of such sum of money, Petit agreed to insure to Hays the undisturbed and quiet possession of such lands for at least three years from September 13, 1876, and that he would supply Hays with 600 yearling steers, to be grazed and matured upon such lands and other lands then under Hays' control; and that, at the end of such three years, Petit was to reconvey to Hays, upon the payment of such sum of $21,081, with interest; but that Petit violated the terms and conditions upon which such conveyance was made, in all their essential features; that, instead of paying off the sum of money he agreed and covenanted with Hays to pay off, he suffered judgment to be taken against Hays, and execution to issue for the possession of such lands, soon after the making of such deed, and a long time prior to the time when Hays was to yield possession, and that Petit became an active participant in such suit for possession, by aiding Alice J. Elliott and Rettie McCoy, the heirs of John Ritchie, who were the holders of a mortgage upon such lands for the sum of $14,000, which sum was one of the several sums assumed by Petit to pay immediately upon the execution of such deed, and which indebtedness Petit did not pay, but fraudulently sought to obtain title to such lands, and avoid the covenants under which he obtained his deed from Hays and wife, by procuring and permitting the sale of such lands, under a decree of foreclosure by said Elliott and McCoy, at the same time contracting and colluding...