Pierse v. Bronnenberg's Estate
| Decision Date | 28 June 1907 |
| Docket Number | No. 5,831.,5,831. |
| Citation | 40 Ind.App. 662,81 N.E. 739 |
| Parties | PIERSE v. BRONNENBERG'S ESTATE et al. |
| Court | Indiana Appellate Court |
On rehearing. Former opinion reversed, and judgment below reversed and remanded.
For former opinion, see 79 N. E. 419.
This is an appeal from a judgment upon a claim against a decedent's estate; the assignment of errors having been amended pursuant to permission granted by this court. The claim was for damages because of a breach of the covenant against incumbrances in a deed of conveyance of certain lands in Madison county with general warranty executed by the intestate to the appellant. The court rendered a special finding. We will state the facts so far as necessary for the decision of the questions in dispute here, as shown by said special finding. Frederick Bronnenberg, the decedent, being the owner of said lands, he and others August 16, 1893, filed in the Madison circuit court a petition asking for an order establishing a public drain for the purpose of draining wet lands in that county, including those of said Bronnenberg. Such proceedings were had on the petition that, after notice, etc., the drainage commissioners filed their report in said court, in which said Bronnenberg was assessed for benefits by 40-acre tracts of said lands; the total assessment being for $672. Remonstrances were filed by landowners, among them said Bronnenberg. Afterwards, on June 14, 1900, said ditch was ordered established by the court, and said assessment against the lands of Bronnenberg were confirmed and the ditch duly constructed. After its construction payment of said assessment was demanded of appellant, who paid the same September 17, 1901, under protest, in order to free his said land from said lien. The sum paid was $672, which sum has never been repaid to appellant by Bronnenberg or his estate; Bronnenberg having died June 20, 1901. January 19, 1899, Bronnenberg entered into a written contract with the appellant, by which the former agreed to sell the lands to the latter for $45 per acre; the quantity being stated to be 223 1/3 acres, and the total price being stated to be $10,049.85, of which the sum of $3,000 was to be paid as soon as a good and sufficient deed of conveyance to the appellant should be made and Bronnenberg should procure a complete abstract of title to be made showing a clear and unincumbered title in him to the lands, that he had a right to sell and convey the same, and that there were no liens or incumbrances of any nature on the same; that upon the payment of said $3,000 the deed should be deposited in a certain bank in escrow until March 31, 1899, and, if at that time the abstract should show a good and sufficient title in Bronnenberg at the time of the conveyance, without any liens or incumbrances thereon, then the appellant should pay the residue of the purchase money and receive the deed, but, if it should appear that there were any defects in the title or cloud thereon which it would require suit in court to remove, then Bronnenberg was to have a reasonable time to quiet the title and remove the clouds and pretended liens and claims therefrom, and, as soon as that was done, the residue of the purchase money was to be paid by the appellant and he was to receive the deed, and, if a good title could not be made within a reasonable time, the contract was to be void.
The contract with great particularity states the price appellant was to pay, and also with great particularity states what he is to receive therefor. It is clear and explicit as to just how the contract shall be carried out, when the payments shall be made, that the title must be clear and unincumbered by any liens of any nature whatsoever except the tenancy on said land, and the contract specifically details now this tenancy shall be cared for, even going so far as to name the man who is to make the abstract. In fact, it is much more clear and explicit than contracts of this nature usually are. It is complete in every detail, the consideration is made specific and contractual, and the whole contract clear and unambiguous. February 3, 1899, Bronnenberg executed the deed of conveyance, whereby it was witnessed that he did convey and warrant to the appellant for the sum of $10,065 the real estate in question. February 4, 1899, the appellant paid Bronnenberg $4,000 of the purchase money, and the deed was deposited in the bank. An abstract of title was afterward prepared, which showed certain clouds upon the title. Bronnenberg brought suit, and March 28, 1899, secured a decree of the Madison superior court quieting title to the land in him. On that day the abstract of title was completed, but it contained no reference to said ditch and assessment here in controversy. March 29, 1899, the appellant paid the balance of the purchase money, except $25 paid later, and received the deed from the bank.
It was further found that at the time of the execution of said written contract of sale, January 19, 1899, the subject of the assessmentfor the construction of the ditch in controversy was discussed between the appellant and Calvin Bronnenberg, who was then acting for said Frederick Bronnenberg in making the sale, and it was then orally agreed that, in the event that said ditch should afterward be established and said assessment should become payable, the appellant was to pay the same in addition to the cash consideration named in the contract and the deed.
The court stated as its conclusions of law: (1) That the assessments of benefits mentioned in the finding of facts “became and were liens upon the lands of said Frederick Bronnenberg, in the amounts named on the several tracts, respectively, and that said liens attached as of the date of the filing of said original ditch petition, to wit, August 16, 1893.” (2) “That the existence of said liens and the payment of the same by the plaintiff did not constitute a breach of warranty sued on in this cause.” (3) “That the plainttff is not entitled to recover anything on his claim filed in this cause.” The appellant excepted to each of the second and third conclusions of law.
Although there is no cross-assignment of error, and no exception was taken on behalf of the appellee to the first conclusion, counsel for the appellee have contended in argument that the first conclusion is erroneous, and it is proper to consider the...
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