Mishawaka, St. Joseph Loan & Trust Co. v. Neu
| Decision Date | 24 May 1935 |
| Docket Number | 26574 |
| Citation | 196 N.E. 85,209 Ind. 433 |
| Parties | MISHAWAKA, ST. JOSEPH LOAN & TRUST CO. et al. v. NEU et al |
| Court | Indiana Supreme Court |
Action by Daniel H. Neu, as guardian of James Downey, and another against the Mishawaka, St. Joseph Loan & Trust Company and others, wherein defendant trust company and another filed cross-complaints. From a judgment for plaintiffs, defendants appeal and plaintiffs move to dismiss the appeal. Transferred from Appellate Court under section 4-215, Burns' Ann. St 1933.w
Motion to dismiss overruled, and judgment reversed, with instructions.
Superseding opinions of Appellate Court 191 N.E. 187 rehearing of which was denied in 192 N.E. 268.
Appeal from Superior Court, Elkhart County; William B. Hile, judge.
Walter R. Arnold, of South Bend, Ralph S. Feig, of Mishawaka, and Harman & Wider, of Elkhart, for appellants.
Raymer & Olds, of Elkhart, for appellees.
Appellees began this action against appellants, Herbert R. Huffman and Flora C. Huffman, his wife, for specific performance of a contract to convey certain real estate consisting of a five-acre tract of ground and the residence thereon. Appellants, Mishawaka, St. Joseph Loan & Trust Company, under the name of Mishawaka Loan & Trust Company, and the Penn Finance & Building Company, Inc., were made parties defendant to answer as to their rights under certain mortgages on the real estate in question executed to them by the Huffmans, which plaintiffs claim are of no force and effect as liens on the premises. The Huffmans answered in general denial. The finance company and the trust company answered, asserting their mortgages as liens upon the premises, and by separate paragraphs of cross-complaint prayed foreclosure of their mortgages or subrogation to the rights of the holders of certain mechanics' and materialmen's liens, and a lien for purchase money under the contract between the Huffmans and one Stryker, which were paid out of the money borrowed from them by the Huffmans.
There were special findings of fact, on which the court rendered conclusions of law. There was a decree that Herbert R. Huffman execute a warranty deed to the plaintiffs for the property in question, and in default thereof a commissioner was named to make the deed; that the trust company and the finance company recover of the Huffmans $ 2,466.34 and $ 1,329.46, respectively, on the notes and mortgages sued on, and that they release their mortgages of record, and in default thereof a commissioner was named to do so; that the plaintiffs execute to Herbert R. Huffman a warranty deed for certain real estate, which under their contract they were to convey to him as part of the purchase price for the property in question, and in default thereof a commissioner was named so to do; and quieting title in plaintiffs as against Flora C. Huffman.
The only errors assigned are predicated upon the conclusions of law.
The facts appearing from the special findings, necessary to a consideration of the questions presented, are: On June 15, 1929, Arthur J. Stryker and wife were the owners of the five-acre tract in question. Appellant Herbert R. Huffman was at that time engaged in developing real estate and building homes, under the name 'Home Modernizing Company.' Some time between June 15, 1929, and September 16, 1929, Herbert R. Huffman made an agreement with the Strykers, 'the exact nature of which is not shown by the evidence, but which was in substance that said Herbert R. Huffman might purchase said 'five-acre tract' at a price agreed upon, and that title thereto was to be retained until the said purchase price was paid in full and that said Herbert R. Huffman might, in the meantime, enter upon such 'five-acre tract' and erect improvements thereon; that pursuant thereto said Herbert R. Huffman did enter upon said 'five-acre tract' about July 1, 1929, and did erect thereon a dwelling house, garage, well and other residence conveniences under and by virtue of such right aforesaid, which improvements were completed on or before September 12, 1929, with the exception of the hanging of a door.' On June 15, 1929, Huffman entered into a contract with the Downeys, by the terms of which it was agreed that Huffman would sell the land in question to the Downeys, and that he would improve the same by building a residence and garage thereon; that upon completion of the improvements he would convey the property to the Downeys, free and clear of encumbrance. As consideration, the Downeys agreed to pay, and did pay, $ 100 in cash upon the signing of the contract, and at the same time conveyed to Huffman three certain lots, with the agreement that, when the improvements were completed and ready to turn over, the Downeys were to convey certain additional real estate consisting of a residence and other buildings, and pay the further sum of $ 150. About July 1, 1929, Huffman began the construction of the improvements and continued the work to completion, with the exception noted, on September 12, 1929, and on September 14, 1929, he turned over the complete possession of the property to the Downeys. It is found that the 'plaintiffs Downeys' residence was established and their possession perfected on said 'five-acre tract' on September 14, 1929, and they have ever since, had and still do have, open, notorious, exclusive and complete possession thereof, and have occupied the same as a residence.' It was found that Downeys had moved various articles of personal property to the premises from time to time, but 'that the great bulk of their personal belongings were not moved to said 'five-acre tract' until said September 14, 1929.' On or about September 12, 1929, Huffman negotiated with the trust company and the finance company for a loan on the property, and on September 12, 1929, before the Downeys were in possession, representatives of those companies inspected the premises, but did not inspect the inside of the dwelling, and found no one in possession of the premises. On September 16, 1929, Herbert R. Huffman, representatives of the Strykers, the appellant mortgagees, and of the materialmen and laborers, who had furnished material and labor which had gone into the construction of the buildings in question, and which had been furnished 'between July 17, 1929, and September 16, 1929, and who had claims that were due and unpaid and owing by Herbert R. Huffman,' amounting to $ 1,404.45, had a meeting. The representative of the Strykers 'had in his possession for delivery upon payment of the balance of the purchase price, amounting to $ 1125.00,' a warranty deed for the property to Herbert R. Huffman as grantee. At that meeting, on the 16th day of September, 1929, the Strykers' deed was delivered to a representative of the appellant mortgagees in the presence of Huffman. Huffman, his wife joining, executed and delivered to the trust company a mortgage for $ 2,000, and a second mortgage to the finance company for $ 1,000, by the terms of which both agreed to pay the notes executed by Huffman and which were secured thereby. Out of the proceeds of the loans, the mortgagees paid to the representative of the Strykers 'the balance of the purchase price of said 'five-acre tract in the sum of $ 1125.00,' and the claims of materialmen and laborers amounting to $ 1,434.45. Certain expenses of abstracts, examining titles, recording fees, etc., were deducted, and the balance was paid to Herbert R. Huffman. All of those transactions were found to have been completed 'contemporaneously in all respects.' The deed from the Strykers to Herbert R. Huffman, and the mortgages were filed for record on September 18, 1929. Neither of said mortgagees had on September 16, 1929, any actual knowledge of the rights of the plaintiffs in the property in question. On the 5th day of December, 1929, appellees tendered the Huffmans their warranty deed for the remaining lots, which they were to convey as part of the purchase price, and demanded a deed to the property in question. The tender was not accepted, and the demand was not complied with. On September 14, 1929, James Downey knew who held the legal title to the property.
Appellees moved to dismiss the appeal on the ground that the Mishawaka, St. Joseph Loan & Trust Company was not a party to the proceeding below. The Mishawaka Loan & Trust Company was made a party defendant. The special findings refer to that company as .' The judgment described the company in the same manner. We are bound by the judgment of the court that the corporation is the same and that the name was changed. The assignment of errors in the present name is sufficient. In parts of the record there is a reference to the Mishawaka Loan & Trust Company as trustee. It clearly appears, however, that whatever cause of action or defense this company had was in its own right, and in such case the descriptive words may be disregarded as surplusage. Marion Bond Co., Trustee, v. Mexican, etc., Co. (1902) 160 Ind. 558, 65 N.E. 748; Ditton v. Hart (1911) 175 Ind. 181, 93 N.E. 961.
Dismissal is asked upon the ground that Shreiner & Sons., Inc., was a party to the proceeding below and to the judgment, and is not made a party to the assignment of errors, but we do not find its name mentioned in the judgment and decree. The other specifications in the motion to dismiss refer to the manner of preparing the transcript and briefs, which we find comply with the rules. The motion to dismiss is overruled.
Upon the merits of the controversy, appellants say that they make no contention against the universally accepted doctrine that when persons deal in respect to real estate, 'the fact that a third person is...
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