Miller v. Miller

• Decision Date: 03 February 1926
• Docket Number: 12,069
• Citation: Miller v. Miller, 87 Ind.App. 544, 150 N.E. 378 (Ind. App. 1926)
• Parties: MILLER, ADMINISTRATOR, ET AL. v. MILLER, ADMINISTRATRIX, ET AL
• Court: Indiana Appellate Court

150 N.E. 378

87 Ind.App. 544

MILLER, ADMINISTRATOR, ET AL. v. MILLER, ADMINISTRATRIX, ET AL

No. 12,069

Court of Appeals of Indiana

February 3, 1926

Rehearing denied June 22, 1926.

Transfer denied June 22, 1928.

From Rush Circuit Court; Willis S. Ellis, Special Judge.

Petition by Lena Miller as administratrix of the estate of Pleasant A Miller, deceased, to sell real estate to pay debts, to which Henry C. Miller was made a defendant.After his death, his administrator, William H. Miller, and his heirs were substituted as defendants, and they filed cross-complaints.From a judgment for petitioner, the cross-complainants appeal.

Affirmed.

Chauncey W. Duncan, Wolf & Barnes, C. W. Roll and George B. Shenk, for appellants.

William J. Henley, Donald L. Smith, John D. McGee and William L. Newbold, for appellees.

OPINION

MCMAHAN, J.

AppelleeLena Miller, as administratrix of the estate of Pleasant A. Miller filed a petition for the sale of certain real estate for the purpose of paying debts.Henry C. Miller was made a defendant, it being alleged that he claimed to have an interest adverse to the administratrix and heirs of the decedent.The Equitable Life Assurance Society, the Rush County National Bank, the Building AssociationNo. 10 of Rushville, Farmers' Trust Company of Rushville, each having mortgages upon certain parts of the real estate were made defendants.There was a prayer that the respective liens attach to the funds arising from the sale of the real estate covered by the several mortgages.About a month after being served with the summons, Henry C. Miller died intestate, without having entered an appearance.William H. Miller, administrator of his estate, and the other appellants who are his heirs were then made defendants.These defendants other than the administrator filed an answer in denial and a cross-complaint alleging that Henry C. Miller had paid $ 17,676.67 which was alleged to have been one-half of the purchase price of the real estate, when the land was conveyed to the decedent, Pleasant A. Miller, and asking that they be declared to have a vendor's lien and that the same be foreclosed.

Six or seven weeks after the evidence had all been heard and the cause taken under advisement, William H. Miller, as administrator of the estate of Henry C. Miller, also, by leave of the court, filed a cross-complaint alleging payment of part of the purchase price of the real estate by his decedent and asking for the foreclosure of a vendor's lien.The court thereupon, without any answer being filed to this cross-complaint, and without any further evidence, signed and filed a special finding of facts which, so far as necessary to an understanding of the questions involved in this appeal, are, in substance, as follows:

Pleasant A. Miller, at the time of his death, owned certain described real estate in the city of Rushville on which he and his wife had theretofore placed three mortgages, one to appelleeBuilding Association to secure a loan of $ 4,000, on which there is a balance of $ 4,188 due and unpaid; one to the Farmers' Trust Company, on which there is a balance of $ 1,789 due and unpaid, and which is junior to the Building Association mortgage, and another to the Rushville National Bank, on which there is a balance of $ 1,391 due and unpaid, and which is junior to the mortgage to the Farmers' Trust Company.Henry C. Miller was Pleasant A. Miller's uncle, and, after being divorced from his wife in 1916, came to Rushville, and thereafter roomed and boarded with his nephew, Pleasant A. Miller, until January 27, 1923, when the latter died.After that time Henry C. Miller continued to make his home with appelleeLena Miller, widow of Pleasant A. Miller, until his death, intestate, June 29, 1923.Appellants are the heirs of Henry C. Miller, and appellees, other than the three mortgagees, are the heirs of Pleasant A. Miller.

On August 29, 1919, one Leslie B. Brown was the owner of a 212-acre farm in Rush county, theretofore owned by Pleasant A. Miller, and which Brown on August 5, 1919, had sold to John G. and David Hammond, and had signed a deed for the same, which deed had been placed in escrow, to be delivered February 1, 1920, on payment of the purchase price.On August 29, 1919, Brown, the two Hammonds, and Pleasant A. Miller entered into a written agreement, in which, after reciting that the Hammonds had resold the said farm to Pleasant A. Miller for $ 42,400 and that in order to save expense and multiplicity of deeds, it was agreed that Brown and his wife should execute a deed to Pleasant A. Miller and place the same in escrow, to be delivered on payment by Miller of the balance of the purchase money, February 1, 1920, Pleasant A. Miller to assume the payment of mortgages aggregating $ 24,000, the deed to the Hammonds to be destroyed and not delivered.Brown and his wife, on August 29, 1919, signed a deed to Miller for said land and placed it in escrow in accordance with said agreement, with direction that it be delivered to Pleasant A. Miller on payment of $ 18,400, that being the balance of the purchase price.Henry C. Miller was not present when said agreement and deed were made and never discussed the purchase of said farm with the Hammonds or Brown.On January 31, 1920, the Hammonds, Brown and Pleasant A. Miller met at a certain law office for the purpose of concluding said sale, Henry C. Miller not being present.When calculation of the interest on the mortgages was made, it was found that the actual amount to be paid in cash by Pleasant A. Miller was $ 17,928.35.Pleasant A. Miller then left the law office and in about an hour came back and turned over checks aggregating $ 17,928.35 in payment of balance then due.Among the checks was one signed by Henry C. Miller on the Rush County National Bank for $ 17,676.67.The deed was then delivered to Pleasant A. Miller and recorded.

In order to procure the money to make said payment, Pleasant A. Miller made arrangements with appellee, Rush County National Bank, for a loan of $ 17,676.67 to be made to Henry C. Miller, at which time Henry C. Miller and Pleasant A. Miller informed the cashier of said bank that Pleasant A. Miller was buying the land and that the money was to be used by Pleasant A. Miller for that purpose.At the time of making this loan, Henry C. Miller executed his note to said bank for $ 17,676.67, and pledged to the bank, as collateral security, Liberty bonds of the face value of $ 2,000, and a certain note and mortgage for $ 15,900.

In March, 1921, Pleasant A. Miller executed a note and mortgage to an Indianapolis bank to secure $ 7,000, for the purpose of paying the mortgage then held by the Equitable Life Assurance Society, and which was one of the mortgages which had been assumed by him when he purchased the land.This note and mortgage were later assigned to the Equitable Life Assurance Society, and the amount due thereon is $ 7,736.This mortgage is a first lien on the 212-acre farm.

The total purchase price of said 212-acre farm was $ 42,400 and was paid as follows: By Pleasant A. Miller assuming a mortgage for $ 17,425 thereon given to himself by Brown; by assuming a mortgage to the Equitable Life Assurance Society for $ 7,046.65; by check of Henry C. Miller to John G. Hammond for $ 17,676.67; and by check of Pleasant A. Miller for $ 251.68.

Prior to December 20, 1921, Pleasant A. Miller was indebted to the Rush County National Bank in the sum of $ 7,600 and desiring to borrow an additional amount of $ 2,400, he, on said last named date, executed his note to said bank for $ 10,000, and, his wife joining, gave a mortgage on the 212 acres, said mortgage being junior to the Equitable Life Assurance Society mortgage, the amount due thereon being $ 11,538.There is no evidence that any part of the $ 17,676.67 has ever been repaid to Henry C. Miller or to any one for him.The Rush County National Bank at all times knew that Henry C. Miller paid $ 17,676.67 on the purchase price of said farm.There is no evidence that Pleasant A. Miller ever gave Henry C. Miller any receipt, note, mortgage, or other evidence of indebtedness for said $ 17,676.67.The note given by Henry C. Miller to the Rush County National Bank, January 21, 1920, to procure said money has not been fully paid, but has been renewed several times.The Liberty bonds and payment on the note put up as collateral have been applied on the said note of Henry C. Miller, so that the amount due thereon is $ 12,223, and is held by said bank as a claim against the estate of Henry C. Miller.

Henry C. Miller, subsequent to January 31, 1920, talked to numerous people concerning Pleasant A. Miller, saying, in substance, that he had given everything he had to the latter; that he had some money out and he had given it to Pleasant A. Miller to take care of; that all the money he had given to Pleasant A. Millerhe expected him to have; that he did not expect any of his (Henry C. Miller's) children to have any of it; that, if he had not given the money to Pleasant A. Miller, the latter would have gone broke; that Pleasant A. Miller had been his best friend; that, after his folks had kicked him out, he came and made his home with Pleasant A. Miller; that, what money he had, he had given Pleasant A. Miller, expected to give him all he had left when he was gone, and did not expect his children to have any more of his property.Henry C. Miller worked on the farm, but there is no evidence whether for wages or not.

Upon these facts, the court concluded, as a matter of law, in substance, that the claims of appellants were unfounded, that they had no vendor's lien, that Pleasant A. Miller was the owner of the land, and that the same should be sold and the proceeds applied in payment...