Mauzy v. Flint

• Decision Date: 28 February 1908
• Docket Number: No. 6,282.,6,282.
• Citation: 83 N.E. 757,42 Ind.App. 386
• Parties: MAUZY et ux. v. FLINT.
• Court: Indiana Appellate Court

42 Ind.App. 386

83 N.E. 757

MAUZY et ux.

v.FLINT.

No. 6,282.¹

Appellate Court of Indiana, Division No. 2.

Feb. 28, 1908.

Appeal from Circuit Court, Johnson County; John W. Morgan, Special Judge.

Action by James Flint against James Mauzy and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

Miller & Barnett and Anderson Percefield, for appellants. W. C. Duncan, for appellee.

COMSTOCK, J.

Appellee, plaintiff below, brought suit against appellants, alleging that on the 20th of November, 1902, appellant, being the owner and seised in fee simple of certain real estate (describing it), sold and conveyed the same by a good and sufficient warranty deed to appellant James Mauzy; that as a part of the purchase price appellant executed to appellee three several promissory notes for $600 each, payable on the 1st days of January, 1904, 1905, and 1906, respectively, with interest on each note at 7 per cent. from date and attorney fees, and to secure the payment of said notes said James Mauzy executed a mortgage on said real estate, in which mortgage his wife, the appellant Hamitie, joined. Judgment is asked on the notes, with interest and attorney fees with a foreclosure of the mortgage.

To this complaint appellant James Mauzy filed his amended first and his second, third, fourth, fifth, and sixth paragraphs of answer, in each of which, except the second, it is alleged that the notes and mortgage were executed to appellee by appellant to secure the payment of the notes in suit, which were executed by appellant, evidencing the unpaid purchase money of the real estate described in the mortgage, and on the day and at the time the notes and mortgage were executed was sold and conveyed with covenants of warranty by appellee to appellant. In the amended first paragraph it is further alleged that there is a shortage of acreage, and that appellee, at the time of the conveyance, was the owner of only eleven-twelfths of said real estate, and that the agreed price was $39.18 per acre, that the shortage was 19 acres, and asking a set-off at the agreed price for that number of acres. The third paragraph is in set-off on account of shortage in acreage in the sum of $500. The fourth alleges that the note and mortgage sued upon were executed by appellant for the unpaid purchase money for the real estate described in the mortgage, and that at the time of the execution of the deed therefor appellee fraudulently represented that the description of the land in the deed contained 114 58/100 acres, when appellee well knew the he could only convey 11/12 undivided interest in the same, and that Dorothy J. Hickey was tenant in common and owner in fee of the undivided 1/12 of said real estate, and that, by reason of the defect of title, the appellant was greatly inconvenienced in securing a loan from a trust company or others who might loan money to appellant with which he could discharge his obligation to appellee and asking the set-off for $1,500 for this reason. The fifth paragraph is an answer in set-off in the sum of $450. The sixth alleges that a judgment was rendered in the Brown circuit court, decreeing that Dorothy J. Hickey was the owner of one-twelfth of the real estate mentioned in the complaint; that the appellant did not know of the existence of same, but that appellee did, and fraudulently concealed the fact that, by reason of same, the appellant was deprived of selling and conveying the right of way to the Indianapolis Southern Railway Company for $500 and securing a switch, side track, and depot on said real estate, and thereby inconvenienced, and asking a set-off for any amount that may be found due on the notes in suit. The second paragraph of answer was a joint answer in general denial. Appellee's demurrers for want of facts to the amended first and sixth paragraphs of answer were sustained, and overruled as to the third, fourth, and fifth paragraphs. The cause was put at issued by reply in denial. Upon proper request, the court made a special finding of facts, stated conclusions of law, and rendered judgment thereon in favor of appellee for $2,045.40, including the sum of $282.75 attorney fees.

The facts found by the court show substantially that on the 20th day of November, 1902, plaintiff and his wife, Isabel Flint, executed a warranty deed for certain real estate (describing same, being the same real estate described in the mortgage, a copy of which is filed with the complaint and in the deed filed with the answer); that said deed was accepted by defendant, and that on said date said defendant executed to said plaintiff three promissory notes, copies of which are set out and filed with the complaint as parts thereof; that they were for the balance of the purchase money of said real estate, and that afterwards, on the 27th day of December, 1902, said defendant, and his wife, Hamitie, joining therein, executed to plaintiff a mortgage on said real estate to secure the payments of said notes; that immediately after the execution of the conveyance and the notes and mortgage as aforesaid the said defendant was given possession of the real estate described in said deed, and that ever since he has had, and now has, exclusive, uninterrupted, peaceful possession thereof, without any interference or molestation, and that the defendant's immediate grantor had held for more than 20 years the exclusive, uninterrupted, and adverse possession of said real estate; that said defendant was not induced to enter into the agreement to purchase said real estate by any misrepresentation as to title of plaintiff, or by the fraudulent conduct of the plaintiff herein; that at the April term, 1878, of the Brown circuit court, in an action by Ellen Shank et al. v. David S. Campbell et al., in an action to quiet title, the court appointed a commissioner, who conveyed by a deed duly approved by the court, to Dorothy J. Hickey, one of the parties to the action, an undivided one-twelfth of about 36 acres (describing it), and being a part of the real estate described in the mortgage filed with the plaintiff's complaint. The court finds that said real estate has been...