Nash v. Hall

• Decision Date: 02 December 1853
• Parties: Nash and Others v. Hall and Others
• Court: Indiana Supreme Court

4 Ind. 444

Nash and Others v. Hall and Others

Supreme Court of Indiana

December 2, 1853

ERROR to the Switzerland Circuit Court.

The decree is reversed with costs, and the proceedings subsequent to the answers set aside. Cause remanded.

J. G Marshall and D. Kelso, for the plaintiffs.

J Sullivan, for the defendants.

OPINION

Davison J.

Bill in chancery by the defendants in error against Isaac Nash, Cyrus Betts and Stephen Reed, to recover a tract of land in Switzerland county.

The bill states that Benjamin Hall, on the 19th of May, 1830, purchased the land in dispute from one Cornelius Culp, from whom he received a deed. Hall died in possession of the land, leaving Martha Hall, his widow, and the following named children and heirs at law, viz., George Hall, John Hall, Phebe Hall, Eleanor Hall, (since married to Jonas Miles) Elizabeth Hall, (since married to William C. Froman) James Hall, Peter Hall, and Isaac Hall. Isaac Hall has since died, leaving Isaac M. Hall, Martha Hall and James Hall, his heirs. The said widow and heirs, Jonas Miles and William C. Froman, were the complainants.

Stephen Reed, one of the plaintiffs in error, brought ejectment against these heirs for the recovery of said land, and at the October term, 1839, of the Switzerland Circuit Court, obtained a judgment. They were, however, entitled to the benefits of the occupying claimant law; and, upon their application, the land was valued at 762 dollars, and the improvements at 700 dollars. Reed elected to take the value of the land; whereupon, the Court adjudged that the occupants pay into the clerk's office of said Court, for the use of the successful claimant, 762 dollars, within ninety days from the 20th of April, 1840, provided the successful claimant should, within that period, tender into said office to said occupants a deed for the land. And if, on such tender being made within said period, they should fail to pay as aforesaid, the successful claimant should have his writ of possession, &c.

The bill charges that Reed, the successful claimant, did not, within the time specified, tender in said office a deed for the land, nor do any other act which required the complainants, who were the occupants, to pay the said 762 dollars; that one Robert N. Cochran, the agent of Reed, on the 13th of August, 1840, received said money of Martha Hall, the widow of the decedent, and, upon the margin of the record of said judgment, executed a receipt therefor. This receipt is set forth in the bill as follows: "Received of Martha Hall, by the hands of Isaac Nash, 762 dollars, and interest, being the amount of the subjoined judgment. August 13, 1840. [Signed] Robert A. Cochran, agent for Stephen Reed." It is alleged that upon this payment, it became the duty of Reed to convey the land to the complainants; but, instead thereof, he, by his agent conveyed it to Nash. The deed to Nash is dated August 13, 1840. In that year he got possession of the land. On the 17th of July, 1841, he conveyed it to Cyrus Betts, who is now in possession. Nash and Betts have received the rents, &c., which were worth 100 dollars a year. Betts, when he took his conveyance, had full knowledge of all the facts recited in the bill. The complainants tender back the said 762 dollars, with interest from the 13th of August, 1840.

The bill prays that Nash and Betts, or one of them, be compelled to receive the money, &c., and to convey the premises in question to said heirs, &c.; that an account be taken of all rents, &c., received by them; and for general relief, &c.

Reed, being a non-resident, was notified by publication, and having failed to appear, was defaulted. Nash and Betts answered.

Nash, in his answer, avers that Reed executed a deed to said occupants, and, within the period specified in the judgment, deposited it for them in the said clerk's office.

He alleges that they never paid the 762 dollars; that while said deed was in the clerk's office, and the time designated for the payment of that sum had expired, it was agreed between him and the said Martha Hall, that he should purchase the land and take a deed for it in his own right, and if she would, by the 1st of March, 1841, pay him 900 dollars, with 10 per centum interest from the 13th of August 1840, he was to re-sell and convey the land to her. Pursuant to this agreement, Nash bought the land of Reed's agent, paid him the 762 dollars, and in addition paid her 200 dollars. He also gave her a bond, obligating himself to make her a deed for the land upon payment of the money advanced by him, with interest as aforesaid, by the said 1st of March, 1841. The bond is set out in his answer, and bears date August 13, 1840. In April, 1841, Martha Hall called on Nash, and informed him that she could not comply with her contract--that she would abandon it. He then proposed to give her 50 dollars, if she would abandon her contract and give up possession of the premises. She accepted the proposition; the 50 dollars was paid; she removed from the land, and he took possession of it.

The answer sets up, that the entire consideration given by Benjamin Hall to Culp for the land in controversy, was the conveyance of a tract of land in Ohio county. At the time this tract was conveyed to Culp, it was worth only 200 dollars; while in his possession, he made improvements on it of the value of 200 dollars. After said recovery in ejectment, Culp re-conveyed said tract to the complainants; and, besides, paid said Martha Hall 200 dollars. This re-conveyance and payment were made in satisfaction of the claim of said heirs for improvements on the land set forth in the bill. In the year 1842, the said Martha took possession of the land re-conveyed by Culp. She has occupied it ever since, and herself and said heirs have received the rents, &c.

The answer of Betts alleges, that he is not advised as to whether the charges in the bill are true or false. He cannot, therefore, admit or deny them. When Nash purchased the land, he, Betts, was a minor. Nash was his guardian. The land was bought for him, Betts, and partly with his money. He had nothing to do with the transaction. He admits the conveyance to him from Nash; states that he has made improvements on the land worth 700 dollars; that the land thus improved is worth 100 dollars a year. He denies all fraud, &c.

The cause was submitted on bill, answers, exhibits and depositions. The Court decreed that the complainants had the right, and were thereby permitted, to redeem the premises, on payment of 1,223 dollars, that being the principal sum, with...