Overbay v. Fisher

• Decision Date: 09 March 1917
• Docket Number: 9,228
• Citation: 115 N.E. 366,64 Ind.App. 44
• Parties: OVERBAY ET AL. v. FISHER
• Court: Indiana Appellate Court

115 N.E. 366

64 Ind.App. 44

OVERBAY ET AL. v. FISHER

No. 9,228

Court of Appeals of Indiana

March 9, 1917

From Daviess Circuit Court; James W. Ogdon, Judge.

Action by Felda A. Fisher against Robert E. Overbay and others. From a judgment for plaintiff, the defendants appeal.

Affirmed.

John L Summer and Gardiner, Tharp & Gardiner, for appellants.

H. W Carpenter and F. E. Ely, for appellee.

OPINION

IBACH, P. J.

This is an action by appellee against appellants to rescind an executed contract for the exchange of certain lands upon the ground of fraud. The complaint is in one paragraph; the answer is a general denial. Trial was had by the court and a general finding was made for appellee.

The court finds "that in making the trade and exchange of the plaintiff's real estate in Pike county, * * * (setting out description) containing 55 acres for the real estate of the defendant, Robert E. Overbay, in Martin county * * * (setting out description), containing 75 acres, more or less, the defendant Grant Lemmon was duly authorized and empowered by the defendant Robert E. Overbay to act for and as his agent in carrying on the negotiations for and in consummating the trade and exchange of the plaintiff's said real estate in Pike county, Indiana, for the real estate of the defendant Robert E. Overbay, in Martin county, Indiana, including the execution of the deeds in making said trade and exchange and the execution of a note by the plaintiff and her husband, Charles Fisher, to the defendant, Robert E. Overbay, for the payment of $ 2,000, and the execution of a mortgage by the plaintiff and her said husband on said real estate in Martin county, Indiana, to secure the payment of said note. * * * That the defendant Grant Lemmon, while acting for and as agent of the defendant, Robert E. Overbay, in carrying on said negotiations and securing the consummation of the trade and exchange of said real estate in Martin county, Indiana, for said real estate in Pike county, Indiana, the execution of deeds to effect said trade and exchange, and the execution of said note and mortgage, was guilty of the perpetration of a fraud upon the plaintiff by making false and fraudulent representations as to the character and value of said real estate in Martin county, Indiana, and * * * that solely by reason of said false and fraudulent representations, the plaintiff and her said husband, while relying upon said representations, as being true and having no knowledge or information to the contrary, were induced thereby to and did execute a deed to the defendant Robert E. Overbay for the plaintiff's said real estate in Pike county, Indiana, and the said note for $ 2,000 and the said mortgage to secure the payment of the same, as above found. * * * That the said real estate in Pike county, Indiana, was on the 20th day of November, 1913, of the value of $ 1,500, and that at the same time the said real estate in Martin county, Indiana, was of the value of $ 2,000. * * * That said deed, note and mortgage executed by the plaintiff and her husband to the defendant, Robert E. Overbay, as above found, are invalid and wholly void and ought to be set aside cancelled and held for naught. * * * That in making said trade and exchange, the defendant, Robert E. Overbay, as a part of the consideration for said trade and exchange, paid to the plaintiff the sum of $ 50. * * * That before the commencement of said suit, the plaintiff duly tendered to the defendant Robert E. Overbay the sum of fifty dollars in United States gold coin and a deed duly signed and acknowledged by the plaintiff and her husband for the reconveyance of said Martin county real estate to him, and demanded of said Robert E. Overbay a reconveyance of the said Pike county real estate to the plaintiff, and that the defendant, Robert E. Overbay refused to accept said fifty dollars and deed so tendered, and refused to reconvey to the plaintiff said real estate in Pike county, Indiana." The court further finds that appellee kept her tender good and that she was damaged more than $ 1,000 on account of the fraud perpetrated against her.

The judgment of the court is, in substance, that the deed for the Pike county farm, the note and the mortgage on the Martin county farm to secure it, be set aside, cancelled and held for naught; that the clerk deliver the $ 50 to defendant Robert E. Overbay; that plaintiff take nothing by way of damages; that a commissioner appointed by the court execute a good and sufficient deed for the Pike county farm to plaintiff; and that plaintiff recover her costs.

Appellants filed a motion to modify the judgment, which motion reads as follows: "The defendants * * *...