Miller v. Fletcher Savings and Trust Company
| Decision Date | 02 December 1921 |
| Docket Number | 11,025 |
| Citation | 133 N.E. 174,78 Ind.App. 183 |
| Parties | MILLER ET AL. v. FLETCHER SAVINGS AND TRUST COMPANY ET AL |
| Court | Indiana Appellate Court |
Rehearing denied April 7, 1922.
From Marion Circuit Court (31,959); Louis B. Ewbank, Judge.
Action by the Fletcher Savings and Trust Company and others against Lewis G. Miller and others. From a judgment for plaintiffs the defendants appeal.
Affirmed.
S Mahlon Unger, for appellants.
Joseph & Abrams, for appellees.
Action by appellees against appellant to quiet title to four lots in Indianapolis, with an amended second paragraph of complaint by which appellees sought to have certain contracts of sale canceled of record in the recorder's office of Marion county, Indiana.
Appellant Lewis G. Miller, hereinafter mentioned as appellant, filed five paragraphs of cross-complaint claiming an interest in the lots and seeking a return of the purchase-money paid before his default and abandonment.
On motion of appellees certain parts of these paragraphs of cross-complaint were stricken out and upon this ruling of the court as hereinafter appears, appellant predicates error.
Appellant Alice A. Miller filed an answer of disclaimer and is therefore not further considered in this appeal.
The cause was put at issue by general denials to the amended second paragraph of complaint and to the cross-complaint. There was a trial by the court with a special finding of facts, the substance of which, so far as here involved, is as follows:
Appellee Sanborn was on May 4, 1915, the owner in fee simple of the real estate here involved which real estate, on said day he, his wife, Grace A. Sanborn, joining, conveyed by a trust deed unto appellee company with full power of sale in it as such trustee. Thereafter, pursuant to the powers vested in it, said trustee, on July 19, 1915, contracted with appellant for the sale by it to him, of the said real estate, which contracts, four in number, one for each of said tracts, were in writing, of the same terms, tenor, and effect, and by each of which it was agreed in substance, so far as here involved that appellant should pay for each tract of said real estate the sum of $ 2,250, $ 25 down, then $ 25 per month in advance until all of the purchase price had been paid. All deferred payments to bear six per cent. interest computed semi-annually on the balance of the purchase price. The trustee was to pay all taxes against said real estate due and payable on or before January 1, 1917, and appellant should pay all taxes and public assessments, if any, thereafter. It was agreed that if any tax or public improvement assessment be not paid when due, or any payment on the purchase price should become more than thirty days delinquent, the trustee might at its option, either declare the entire balance of the purchase price due and collectible, or it might rescind the contract to sell and convey said real estate and take possession thereof; and in the event of said rescission all payments already made by the purchaser should be taken and retained by the trustee, not as penalty, but as rent for said lot, and as liquidated damages for breach of the contract. Failure or delay to exercise such option, should not be nor operate as a waiver of the right to exercise such option at any time thereafter. It was agreed that a letter addressed by United States mail to the purchaser at 2260 N. Pennsylvania street should be sufficient notice of the exercise of this option. It was agreed that such sale contract should not be sold, assigned or transferred before the lot was fully paid for, or had been deeded to the purchaser, without the written consent of the trustee; and in the event of any attempted sale, assignment or transfer without such written consent, the trustee should have the right to exercise the option as above set out. None of said contracts was acknowledged by the trustee at any time but said contracts were acknowledged by appellant April 27, 1918, for himself alone, and all of said contracts were placed of record on April 27, 1918, in the mortgage records of the recorder's office of Marion county. Said contracts were delivered July 19, 1915, and appellant took possession of said real estate and made payments of installments on the purchase price thereof, upon each of said contracts, a total of $ 650, being $ 2,600 upon the four of said contracts, as follows:
On each contract in 1915: July 20, $ 25; Aug. 19, $ 25; Sept. 20, $ 25; Oct. 19, $ 25; Nov. 19, $ 25; Dec. 17, $ 25. In 1916: Jan. 19, $ 25; Jan. 21, $ 75; May 1, $ 50; July 8, $ 25; July 25, $ 25; Oct. 17, $ 25; Dec. 30, $ 75. In 1917: Apr. 16, $ 100; May 19, $ 25; June 21, $ 25; July 23, $ 25; Nov. 24, $ 25; which sums were accepted by said trustee upon said contracts as payments of installments on the purchase price of said real estate. At no time since November 24, 1917, has appellant paid or offered to pay any money to appellees or either of them or to anybody on said contract of purchase. Appellant was more than thirty days delinquent upon payments as follows: Oct. 19, 1916, forty-two days over the thirty days delinquency; Nov. 19, 1916, eleven days over the thirty days delinquency; Jan. 19, 1917, fifty-seven days over the thirty days delinquency; Feb. 19, 1917, twenty-six days over the thirty days delinquency; Aug. 19, 1917, sixty-seven days over the thirty days delinquency; Sept. 19, 1917, thirty-six days over the thirty days delinquency; Oct. 19, 1917, six days over the thirty days delinquency; which payments made as above stated, were received by said trustee, in each separate instance upon each contract, after they had become delinquent said number of days over the thirty days permitted by the contracts. Said sums of money as above recited are all that were ever paid on the purchase price of said lands under said contract.
February 16, 1918, appellant was in arrears in his payments on each of said contracts in the sum of $ 125, and on said date the trustee sent a letter to him by the terms whereof said trustee gave notice that it rescinded said contracts on account of the delinquency in payments, and that said trustee would no longer be bound by said contracts, which letter was received by appellant on or about said day, whereby said trustee rescinded said contracts and took possession of said lots at the time, which rescission was accepted by appellant prior to the commencement of his cross-action herein, and who delivered possession of said real estate to said trustee. Prior to the commencement of his cross-action herein, appellant demanded of each of appellees the repayment of said money he had paid on said contracts, to wit: $ 2,600, but each refused payment of said sum or any part thereof, and no part thereof has been repaid or tendered. On said February 16, 1918, appellant was delinquent 120 days in his payments in excess of the thirty days delinquency authorized by the sale contract. Before the commencement of this action said trustee sold and conveyed one of said lots to Harold E. Egan, and thereafter, in order to release the said lot from the contract in regard thereto, appellant executed to said Egan a quitclaim deed to said lot in consideration of the payment by said Egan of the sum of $ 80 but same was done without prejudice to any of the rights of appellant against appellees under said contracts for the recovery of any sum he might deem himself entitled to against them or either of them.
On December 29, 1917, appellant executed an assignment of all of said contracts to his daughter Alice A. Miller, who in this action has disclaimed any and all interest in said real estate. Said daughter thereafter on said day reassigned said contracts to appellant which assignments and reassignments were made without any considerations whatsoever, but were made in the expectation that said daughter might be able to put said contracts into a real estate transaction she was about to make, but that they were not so put into said transaction, and were never disposed of. Said trustee had no knowledge until after March, 1918, of the assignment and reassignment of said contract as aforesaid and not until the said assignments and reassignments were recorded by appellant. The daughter is not elsewhere mentioned. The existence of the record of said contracts operates to make it more difficult for the trustee to sell said lots to purchasers on the open market. The damages to said trustee, if there be any damages by reason of the failure and refusal of appellant to complete the performance of said contracts for the purchase of said real estate do not exceed the sum of one cent unless said trustee is entitled to retain the payments made by appellant as and for liquidated damages for the breach of said contracts and as rent for the use of said real estate, which liquidated damages and reasonable rent for said real estate for the time that they were in possession of said Miller, if said stipulations in the contracts are binding, amounts to $ 2,600. Said real estate is and at all times has been unimproved and has produced no rental income. Said contracts and assignments have never been acknowledged by the said trustee, but they have been acknowledged by appellant for the purpose of having them recorded. On each of said tracts of real estate taxes accrued and were paid by the trustee as follows: May 1, 1917, $ 8.16; Nov. 1, 1917, $ 7.32, being 1916 taxes; May 1, 1918, $ 7.85 Nov. 1, 1918, $ 7.30, being 1917 taxes; May 1, 1919, $ 7.32; Nov. 1, 1919, $ 7.32, being 1918 taxes; May 1, 1920, $ ...., being first half of 1919 taxes. Appellant objected to the trust company charging his account with the taxes paid May 1, and November 1, 1917, amounting to $ 15.48, but that said trust company so entered...
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