Mason v. Burk
| Decision Date | 27 September 1889 |
| Citation | 22 N.E. 119,120 Ind. 404 |
| Parties | Mason v. Burk.<SUP>1</SUP> |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Montgomery county; Peter S. Kennedy, Judge pro tem.L. J. Coppage, for appellant. Ristine & Ristine, for appellee.
The record in this case is very imperfect, and in the condition in which we find it we are in some doubt as to whether the questions which counsel for the appellant seeks to present by his assignment of errors are before us. But as we are able to understand the course of the case from the facts stated in the special finding of the court, we will not regard the imperfections in the transcript. The appellee filed his complaint October 6, 1884, against George Sims, Jane Sims, and George Mason, the appellant. The cause was put at issue and tried by the court, and a special finding of facts and conclusions of law made by the court, a judgment rendered for the appellee against the Simses, and a judgment in favor of the appellant for his costs. From the judgment the Simses appealed to this court, giving to the appellant, their co-defendant, notice of the appeal, as required by the statute. The appellant filed a paper in this court which he styled a “disclaimer.” The appellee filed cross-errors. The judgment of the lower court was reversed and the cause remanded, with directions to grant a new trial and for further proceedings not inconsistent with the opinion of this court. See Sims v. Burk, 109 Ind. 214, 9 N. E. Rep. 902. After the case again reached the Montgomery circuit court a new trial was granted, in obedience to the order of this court, and the appellant ordered to file a cross-complaint against the Simses; but afterwards, on his motion, the order requiring the appellant to file a cross-complaint was rescinded. After the court had granted a new trial the appellant filed a demurrer to the complaint, which the court overruled, and he excepted. He then filed a motion to strike his name from the record as a defendant to the action, which the court overruled, and he took an exception. He then filed an answer in four paragraphs, the first being a general denial. To the second, third, and fourth paragraphs the appellee filed demurrers, which were overruled to the second and third paragraphs, and sustained to the fourth, and exceptions were reserved by the parties respectively. The appellee then filed a reply in two paragraphs to the second and third paragraphs of the appellant's answer, the first paragraph being a general denial. The appellant filed his demurrer to the second paragraph of reply, which was by the court overruled, and he excepted. The cause being at issue was, by agreement, submitted to the court for trial, and afterwards the court, having been requested so to do by the appellant, made a special finding, and to the conclusions of law as stated the appellant excepted, and thereupon a judgment was rendered for the appellee. The appellant assigns errors as follows: (1) The court erred in overruling appellant's demurrer to the complaint; (2) the court erred in overruling appellant's motion to strike his name from the record; (3) the court erred in sustaining the appellee's demurrer to the fourth paragraph of the appellant's answer; (4) the court erred in overruling appellant's demurrer to the second paragraph of reply; (5) the complaint does not state facts sufficient to constitute a cause of action; (6) the court erred in each and all of its conclusions of law upon the facts found.
It will not be necessary for us to consider the errors assigned separately. We will set out the special finding of the court, which states the facts clearly and concisely, and what we shall say with reference to the facts as found will dispose of all the questions presented.
“Ellis Burk v. George Sims et al. Come again the parties, and the defendant Mason requests the court to find specially the facts and state the conclusions of law thereon, and the court now specially finds the facts as follows:
(1) That on the 24th day of September, 1884, the plaintiff, Ellis Burk, was the owner of fourteen (14) acres of land situated in Montgomery county, Indiana, being part of the west half of the south-east quarter of the south-west quarter of section thirty, (30,) in township twenty (20) north, range four (4) west, bounded as follows: Beginning at the center of said south-west quarter, and running thence south fifty-six rods; thence east 40 rods; thence north 56 rods; thence west 40 rods to the beginning.
(2) That on the said 24th day of September, 1884, George Mason was the owner in fee of six acres of land in said county, being all of that part of the west half of the south-east quarter of the south-west quarter of said section thirty, (30,) in township and range aforesaid, which lies south of and adjacent to the 14-acre tract owned by said Burk, as set forth in the finding last above; that upon said six acres there was a mortgage in favor of the plaintiff, and owing by said George Mason, for $180, for unpaid purchase money.
(3) That prior to said 24th day of September, 1884, defendant George Sims entered into a parol contract with said Burk for the purchase, of said Ellis Burk, of this said 14 acres of land thereinbefore described, at $30 per acre, amounting to the sum of $420, and that prior to said day Sims also entered into a parol contract with said Mason for the purchase of said six acres of land at $50 per acre, amounting to the sum of $300, and out of the purchase money of said six acres that said Sims agreed with said Mason to pay to Burk the mortgage thereon on his farm, amounting to $180.
(4) That on the 24th day of September, 1884, when the parties met for the purpose of executing deeds of conveyance in pursuance of said contracts of purchase, the defendantGeorge Sims requested said George Mason that he convey his said 6-acre tract to Ellis Burk, and that said Ellis Burk then convey the said 14-acre tract and said 6-acre tract to Jane Sims, the wife of said George Sims, in one deed, to which request Mason and Burk severally assented, said Mason only on condition it would not interfere with his trade with Sims; but of this condition Burk had no knowledge.
(5) That on said 24th day of September, 1884, said Burk and wife executed to said Jane Sims a warranty deed for said twenty acres of land, and thereupon said Sims paid to said Burk, on his purchase of said 14-acre tract of land, in cash $70, by note on J. W. Goben $150, and at the same time he executed to him (Burk) his two promissory notes for $100 each, and secured said two notes by mortgage on the whole of said 20-acre tract of land. And at the same time, in pursuance to his contract with said Mason, for the purchase of said six-acre tract of land, and in part payment of the purchase money therefor, he paid in cash to said Burk for said Mason the further sum of $180, being the full amount of mortgage held by said Burk on said six-acre tract, and due him from said Mason, and that said Burk then released said mortgage upon the proper record in the county recorder's office.
(6) That said George Mason and his wife signed and acknowledged a warranty deed to said Burk on said day for said six-acre tract of land, but failed and refused to deliver the same to said Burk, for the reason that said George Sims refused to pay to said Mason the sum of $120 due him as the balance of the purchase money of said six acres over and above the said $180, according to their said contract of purchase.
(6 1/2) That said six-acre tract of land was included in said deed of Burk to Sims, under the expectation and belief on the part of the plaintiff, Burk, that the contract for the purchase and sale of the same which had been made between said Sims and Mason would then and there, on said 24th day of September, be fully consummated by the execution of a deed therefor to the said Burk, as part of the transaction, in accordance with the understanding of all the parties, as above found.
(7) That on October 4, 1884, and before the beginning of this suit, the plaintiff demanded a rescission of said contract, and made demand therefor of said George Sims and Jane Sims, at the same time tendered to them $250 United States currency, commonly called ‘Greenbacks,’ and also tendered to them the note on J. W. Goben for $150, and the two notes of $100 each, which had been executed by them September 24, 1884, together with the mortgage securing the same,...
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