Rector v. Shirk

• Decision Date: 13 December 1883
• Docket Number: 10,719
• Citation: Rector v. Shirk, 92 Ind. 31 (Ind. 1883)
• Parties: Rector et al. v. Shirk et al
• Court: Indiana Supreme Court

92 Ind. 31

Rector et al. v. Shirk et al

No. 10,719

Supreme Court of Indiana

December 13, 1883

From the Wabash Circuit Court.

The judgment is reversed, at the costs of the appellees, and this cause is remanded, with instructions to overrule the demurrer to the second paragraph of the complaint.

M. H Kidd and N. G. Hunter, for appellants.

J. L Farrar, J. Farrar, W. C. Farrar, C. Cowgill, H. B. ShiveleyC. E. Cowgill, W. G. Sayre and J. T. Hutchens, for appellees.

OPINION

Bicknell C. C.

This was a suit to redeem land sold on foreclosure of a mortgage.The year for redemption had expired before suit brought.

The complaint was in two paragraphs, to each of which a demurrer for want of facts sufficient was sustained.

Judgment was rendered upon the demurrers, and the plaintiffs, who were husband and wife, appealed.

They assigned for error the sustaining of said demurrers.

There was no exception taken to the ruling on the demurrer to the first paragraph of the complaint; therefore, the error assigned on that ruling presents no question.Hutts v. Hutts,62 Ind. 214.

The second paragraph states that the land belonged to the plaintiff Mrs. Rector, but was held in trust for her by Daniel Butt; that her said trustee intended to redeem the land from the mortgage sale, and was preparing so to do, but before the end of the redemption year, the defendant Shirk verbally agreed with said trustee, that he would purchase the certificate of sale from the holder thereof, and would hold the same for the benefit of said Butt as such trustee, who might have six years within which to redeem, and in the meantime might retain possession of the land and enjoy its rents and profits; that Shirk did purchase the certificate of sale; that Mrs. Rector and her said trustee, relying on said agreement, did not redeem within the year, as they would have done without said agreement; that at the end of the redemption year said Shirk took a deed for the land from the sheriff, and then sold the land to the defendantWilliam Butt, in consideration of Butt's agreement to assume and pay what Shirk had paid for the land, and to fulfill the agreement of Shirk to give Daniel Butt six years to redeem for the benefit of Mrs. Rector; that Shirk accordingly conveyed the land to William Butt, who accepted the conveyance with full notice of Mrs. Rector's rights and subject to said agreement between Shirk and Daniel Butt as trustee; that thereupon William Butt took possession of the land and has since enjoyed the rents and profits thereof of the value of $ 1,200; that before suit brought Mrs. Rector demanded from William Butt an accounting as to said rents and profits and as to the amount required for redemption under said agreement, and offered to pay the same and demanded a conveyance of the land, which he refused and denied that she had any interest in the land or any right to redeem it; that said William has not paid said Shirk for the land, but has...