Melrose v. Besser

• Decision Date: 29 November 1921
• Docket Number: No. 11028.,11028.
• Parties: MELROSE v. BESSER et al.
• Court: Indiana Appellate Court

77 Ind.App. 3

133 N.E. 27

MELROSE

v.BESSER et al.

No. 11028.

Appellate Court of Indiana, Division No. 2.

Nov. 29, 1921.

Appeal from Circuit Court, Jasper County; Moses Leopold, Special Judge.

Action by Frank Melrose against Emil Besser, in which Dessie Melrose was admitted a party defendant and filed a cross-complaint. Judgment for defendants, and plaintiff appeals. Affirmed.

John A. Dunlap, of Rensselaer, for appellant.

Jasper Guy, of Remington, and Abraham Hallick, of Rensselaer, for appellees.

NICHOLS, J.

This was an action to review a proceeding had in the Jasper circuit court wherein appellant was plaintiff and appellees defendants, in which original action the plaintiff sought to compel the defendant Besser to convey to said plaintiff certain real estate which Besser had contracted by written contract to sell to the said Melrose, the plaintiff in said action alleging full performance on his part, bringing the balance due under said contract into court, and demanding a deed of conveyance according to the terms of said contract. The defendant Dessie Melrose contended that said contract had been transferred by assignment to her. The action as originally brought was against the defendant Besser. Upon application of the defendant, Dessie Melrose was admitted as a party defendant. Both defendants filed answer, and Dessie Melrose filed a cross-complaint seeking to have said contract reformed and to compel the defendant Besser to execute a conveyance of said real estate to her. Upon answers being filed said cause was submitted, which resulted in a finding for the defendants and on the cross-complaint of Dessie Melrose in her favor.

The court sustained the separate demurrers of the appellees to appellant's complaint for review, and there was judgment that the plaintiff take nothing by his action for review, and that he pay the costs thereof.

Appellant on appeal assigns as error that the court erred in sustaining the separate demurrers of the appellees to appellant's complaint.

The substantial facts involved in the court's rulings and decision in the original action, and which rulings and decision are challenged in this appeal, are set out in appellee Melrose's second paragraph of answer, which is in substance that at the time said contract of sale was executed plaintiff and defendant were husband and wife, and were living together. For a long time before their home life had been very unsatisfactory to both parties, and their difficulties continued to increase, until they finally agreed between themselves to live separate and apart from each other; that in contemplation of such separation they entered into a mutual agreement in writing, a copy of which is made a part of the answer, by the terms of which the plaintiff in settlement of the property rights between the parties agreed to assign to the defendant, his wife, all his right, title, and interest in the contract executed by the defendant Besser to the plaintiff for the conveyance of the real estate involved, and to pay all unpaid installments of purchase money due on said contract as they matured, and also the taxes on said property until the purchase price therefor was duly paid, and in consideration of said assignment this defendant agreed not to institute any suit against the plaintiff for support or maintenance, and to take care of and maintain the two daughters of the plaintiff and this defendant, now eight and ten years of age; that the plaintiff executed to this defendant an assignment in writing of said contract, and delivered to this defendant both the original contract for the conveyance of the real estate and the assignment thereof. Relying on said agreement and said assignment of contract, this defendant brought suit against the plaintiff and procured a decree of divorce, without making any claim for alimony or support, or prosecuting any action for an interest in the property of the plaintiff. A divorce was granted to this defendant without alimony or any provision for her support or the support of the two minor children. Since the granting of said divorce this defendant has been caring for and supporting her said two daughters, and performing all of the provisions of said contract of property settlement on her part to have been performed.

The agreement, omitting formal parts, is as follows:

“That in order to settle matters and property rights between the said parties said Frank Melrose agrees to assign to Dessie Melrose all his right, title, and interest in and to a certain contract for the purchase of lot seven (7) in block twelve (12) in the original plat of Remington, Ind., and further agrees to pay all unpaid installments yet due on said contract of purchase of said lot and to pay all taxes on said property until said contract is fully paid out and deed is made to said Dessie Melrose; said property to be in lieu of further support, maintenance, and alimony in favor of said Dessie Melrose. Said Dessie Melrose agrees to accept said property to be in full of her rights and interest in and to the property of said Frank Melrose. Said Dessie agrees not to institute suit, other than for divorce, against the said Frank Melrose...