Nelson v. Reidelbach
| Decision Date | 06 June 1918 |
| Docket Number | No. 9709.,9709. |
| Citation | 119 N.E. 804,68 Ind.App. 19 |
| Parties | NELSON et al. v. REIDELBACH et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Cass County; James P. Wason, Judge.
Suit by Louis Reidelbach and others against James Nelson and others. From a decree for plaintiffs and the denial of a new trial, defendants appeal. Affirmed.
Palmer & Carr, of Monticello, and McConnell, Jenkines & Jenkines, of Logansport, for appellants. Rabb, Mahoney & Fansler, of Logansport, and Sills & Sills, of Monticello, for appellees.
This action was commenced by Edward Weaver against appellants Nelson and Nelson and others. Appellant Ferguson was afterwards made a party defendant. Edward Weaver subsequently died, and appellee was substituted as plaintiff in his stead. The cause was tried on an amended complaint in two paragraphs. By the first paragraph appellee sought a judgment on a certain note of $2,500, executed by appellants Nelson and Nelson, and a decree foreclosing a mortgage on certain real estate given to secure the same. By the second paragraph appellee sought a judgment on a certain note of $400, executed by appellant James Nelson, and a decree foreclosing a purchase-money lien therefor on the same real estate. Each paragraph alleged that appellant John H. Ferguson was claiming an interest in said real estate; that his interest, if any, was inferior and subordinate to appellee's said liens; and that said appellant was made a defendant to answer as to any interest he had therein. A demurrer was filed to this complaint and afterwards overruled, but the demurrer itself is not shown in the transcript. Appellants Nelson and Nelson filed an answer in abatement to which a demurrer was sustained. They subsequently filed an amended answer in abatement, in which they alleged in substance that during the life of appellee's decedent, while this action was pending in his name, said decedent and appellant James Nelson, acting for himself and his wife, entered into the following written agreement:
“This agreement made and entered into by Edward Weaver, of Winamac, Ind., and James Nelson of Monticello, Ind., this 5th day of September, 1914, witnesseth:
That whereas, the said Edward Weaver has commenced proceedings of foreclosure of a mortgage and action for $400 in money as against said James Nelson et al. in the White circuit court of Indiana, and is there pending for action in the September term of said court. Now, therefore, the said Edward Weaver, in consideration of the acts and performances on the part of the said Nelson, hereinafter set forth, said Weaver, does hereby agree to defer and postpone further action upon said foreclosure procedure and said suit for $400 until said Nelson shall have paid to one J. D. Timmons a sum of money in satisfaction of a tax lien, and pay to George Connell a sum of money in satisfaction of a sheriff's sale, all of which is a lien upon said real estate described in said foreclosure. Said Weaver does hereby agree that when said Nelson shall have satisfied said J. D. Timmons and George Connell and said liens held by them released, that he (Weaver) shall accept, and said Nelson hereby agrees to execute to said Weaver, a new mortgage on said real estate named in said foreclosure proceedings. Said mortgage to be in the amount of the principal of the amount of the mortgage now held by him plus the $400 evidenced by a promissory note held by said Weaver, said mortgage to extend to the time when said original mortgage extended and at the rate of interest therein named. When said new mortgage is so executed said Weaver shall dismiss such proceedings now pending in relation to said real estate herein involved.
In witness whereof the parties hereunto have set their hands and seals the date and year above mentioned. Edward Weaver.
James Nelson.”
It is further alleged that appellants Nelson and Nelson had paid said Timmons the full amount of his said tax lien and secured the cancellation thereof; that they had paid the said Connell the amount required to fully satisfy his sheriff's certificate, and had secured the surrender and cancellation of the same; that they had executed and tendered to appellee a new mortgage on the real estate named in said agreement according to the provisions thereof, for the amount provided therein, and had performed all the things by them to be performed by the terms thereof; that appellee refused to accept said mortgage, and notified them that he would accept nothing less than the payment of the full amount due upon the two promissory notes in suit, and that it was not necessary and he would not require a formal tender of said new mortgage or the interest due on said indebtedness. To this answer in abatement appellee filed a demurrer for want of facts, which was sustained.
On the 12th day of January, 1916, appellant Ferguson filed an answer in abatement, which contained substantially the same averments as the answer in abatement of appellants Nelson and Nelson with reference to the pendency of this action in the name of appellee's decedent and the execution of the contract set out therein between said James Nelson, on behalf of himself and wife, and appellee's decedent. It is then alleged that after the execution of said agreement, to wit, on the 23rd day of January, 1915, the said Nelson and Nelson, who are husband and wife conveyed said mortgaged real estate to him for a valuable consideration by the general warranty deed, subject to all the incumbrances on the same, and put him in possession thereof, and that since said date he has been, and now is, the bona fide owner of the same in fee simple; that at the time the said Nelson and Nelson conveyed said real estate to him they executed to him for a valuable consideration the following written assignment of said contract:
It is further alleged that he had paid said Timmons the full amount of his said tax lien, and had secured the cancellation thereof; that he had paid the said Connell the amount require to fully satisfy his sheriff's certificate, and had secured the surrender and cancellation of the same; that he had executed and tendered to appellee a new mortgage on the real estate named in said agreement, according to the provisions thereof, for the amount provided therein, and he and appellants Nelson and Nelson have done and performed each and all of the requirements of said agreement on their part to be performed; that appellee refused to accept said mortgage, and notified him that he would accept nothing less than the payment of the full amount due upon the two notes in suit, and that it was not necessary and he would not require the formal tender of said new mortgage or the interest due on said indebtedness; that he (Ferguson) was worth, over and above all debts and liabilities, in property subject to execution at the time said contract was executed, more than the sum of $20,000. On the 1st day of February, 1916, a demurrer was filed to this answer, and afterwards sustained, but the demurrer itself is not shown in the transcript.
On the 3d day of April, 1916, appellant Ferguson filed an answer to appellee's complaint in three paragraphs; the first being a general denial, and the second a plea of payment. The third is in all material respects the same as his answer in abatement, with the additional averment that he now brings into court the said new mortgage and the accrued interest on the notes in suit for the use and benefit of appellee, and that by reason of the facts alleged appellee's rights under the notes and mortgage in suit have been compromised and settled, and this cause should be dismissed. Appellee filed a demurrer to said third paragraph of answer, which does not appear to have been ruled upon. Appellant Ferguson subsequently filed a fourth paragraph of answer in which he alleged that he purchased the real estate described in the second paragraph of complaint and paid a valuable consideration therefor, without any knowledge or notice at the time of the purchase and conveyance to him of the outstanding promissory note of his...
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