Rooker v. Fidelity Trust Company

• Citation: 109 N.E. 766,185 Ind. 172
• Decision Date: 05 October 1915
• Docket Number: 22,658
• Parties: Rooker et al. v. Fidelity Trust Company
• Court: Supreme Court of Indiana

109 N.E. 766

185 Ind. 172

Rooker et al. v. Fidelity Trust Company

No. 22,658

Supreme Court of Indiana

October 5, 1915

Rehearing Denied June 28, 1916.

From Hamilton Circuit Court; James M. Purvis, Special Judge.

Action by Dora E. Rooker and others against the Fidelity Trust Company, which filed a counterclaim, and others. From a judgment for the Fidelity Trust Company, plaintiffs appeal.

Reversed.

William V. Rooker, for appellants.

Henry Seyfried and Smith, Remster, Hornbrook & Smith, for appellee.

OPINION

Spencer, C. J.

On October 11, 1909, appellants, Dora E. Rooker and William V Rooker, as first parties, and the appellee, Fidelity Trust Company, as second party, entered into a certain trust contract and executed as evidence of such contract the following memorandum in writing, omitting the formal parts:

"Witnesseth:

"Paragraph 1. That concurrently herewith and as a part of the contract evidenced by this memorandum, the said first parties have this day by their certain written instruments in the form of a general warranty deed conveyed to second party as trustee, ever upon the conditions and trust and upon the powers and for the uses and purposes herein more particularly set forth, the following real estate in Marion County, in the State of Indiana, to-wit:--(Here follows description of same.)

"Also the following real estate in Hamilton County, in the State of Indiana, to-wit:--(Here follows description of same.)

"That reference is hereby made to the said warranty deeds and to the several descriptions therein for greater certainty.

"Paragraph 2. That said warranty deed is made ever upon the conditions and trust and upon the powers and for the uses and purposes herein more particularly set forth, that is to say:

"Whereas the said Dora E. Rooker, the grantor in said deed and first party herein is the owner in her own and separate right and estate of the said above described lands situate in said Hamilton County and the said Dora E. Rooker and William V. Rooker, her husband, grantors in said deed and parties of the first part are the owners as tenants by the entireties of said real estate situate in said Marion County and

"Whereas the said Dora E. Rooker in and about the improvement of her said real estate in Hamilton County, Indiana, has heretofore undertaken to erect and construct a dwelling house and out buildings appurtenant thereto and other necessary and proper structures and to equip the same with modern utilities and conveniences and in so doing has been obliged to lay out and expend large sums of money and has been obliged to incur obligations beyond her reasonable expectations and beyond her present means to pay, and

"Whereas, the said improvements have been carried so far toward completion as that they cannot now be abandoned or the work thereon stopped or delayed without great sacrifice and loss to the said Dora E. Rooker and without great injury to her estate, and

"Whereas, it requires Six Thousand ($ 6,000) Dollars to complete said improvements and to pay off indebtedness of said Dora E. Rooker incurred by her arising out of the making of the said improvements and in the completion and installation thereof, and said Dora E. Rooker represents that all such indebtedness was incurred by her for her own benefit arising out of the making of said improvements.

"Now, therefore, it is agreed that the said Fidelity Trust Company, second party herein, shall and it does hereby accept the title of, in and to said real estate ever upon the conditions and trust and upon the powers and for the uses and purposes following, that is to say:--

"Clause A. The Fidelity Trust Company shall pay and it does hereby agree to pay from time to time upon the written order and directions of said Dora E. Rooker not exceeding the sum of Six Thousand ($ 6,000.00) Dollars for and on account of the erection and construction of said dwelling house, out buildings and improvements and the equipment and installation thereof, it being expressly understood and agreed that if a part of said indebtedness is held or may hereafter be held by banks on account of advancements made and which may hereafter be made to said Dora E. Rooker, or to the said William V. Rooker, as the undisclosed principal of said Dora E. Rooker, it is ever understood and agreed that the written order and direction of the said Dora E. Rooker that an indebtedness be paid for her use and benefit, notwithstanding the form of said indebtedness, shall be forever binding and conclusive on all parties concerned that such debt or debts so ordered to be paid is and are in fact and in law the debts of the said Dora E. Rooker, any evidence to the contrary notwithstanding.

"Clause B. The said Fidelity Trust Company may let out and expend any such sum or sums of money other than those above specified in Clause A of this paragraph as said Trust Company may deem necessary to protect its interest in and to said real estate and to perform or better promote the performance of the trust herein and hereby created and every such advancement or payment so made shall be deemed and taken to be the debt of the said Dora E. Rooker as fully as if the same were made upon her express written direction.

"Clause C. That the said Fidelity Trust Company may obtain or cause to be obtained from any bank or banks upon the promissory note or notes of the said Dora E. Rooker any such sum or sums of money, whether within or in excess of the sum of Six Thousand ($ 6,000.00) Dollars as may be necessary to the true and better and complete performance of this contract and to the successful maintenance of and care for said real estate and the business thereon conducted.

"Clause D. Said Fidelity Trust Company is hereby appointed, empowered and authorized as the true and lawful attorney in fact of the first parties and in their separate deed, joint name, place, right and stead to execute a deed of general warranty conveying said real estate or any part or parts thereof upon the limitations hereinafter stated and provided.

"Paragraph 3. Said Fidelity Trust Company shall have and receive for its compensation, Trustee's fee of one Hundred and Fifty ($ 150.00) Dollars and a commission of two per cent on all loans and advancements and on any and all moneys laid out and expended by it to protect its interest or to promote the true and better performance of this trust, together with the interest on all such moneys at the rate of six per cent per annum, to be credited semiannually to said Fidelity Trust Company as a debit and charge against said Dora E. Rooker, and said Fidelity Trust Company shall be entitled to have and receive the usual real estate commission on all or any part of said real estate sold by said Fidelity Trust Company pursuant to this agreement and said Fidelity Trust company shall be entitled to have and receive a brokerage fee of one-eighth (1/8) of one (1) per cent of all notes for ninety (90) days or less for moneys obtained from any bank to the credit of said Dora E. Rooker on her paper originally made.

"Paragraph 4. It is further ever understood and agreed that at any time within one year after the date of these presents said second party may execute and perform so much of the power to sell and convey as is hereinbefore granted as pertains to said Marion County real estate provided always that the sum received in consideration therefor shall be net to the credit of said Dora E. Rooker Eighteen Thousand ($ 18,000.00) Dollars after the payment of the commission hereinbefore mentioned. Should it so happen that said Marion County real estate be not sold within said period of one year for said sum of Eighteen Thousand ($ 18,000.00) Dollars plus commission, then after ninety (90) days notice in writing to be given to first parties by second party, the said second party may publicly advertise said Marion County real estate and sell the same at whatever sum it may bring and if said Marion County real estate does not sell for lack of a bid, then second party may upon ninety (90) days notice in writing to be given to the first parties by the second party sell and convey said Hamilton County real estate for whatever it will bring over and above the upset price of Sixty-five Thousand ($ 65,000.00) Dollars. If said Hamilton County real estate does not sell for said sum of Sixty-five Thousand ($ 65,000) Dollars for lack of a bid of that sum, then the said second party hereto may publicly advertise and sell said Marion County real estate after ninety (90) days notice given in writing to first parties by second party at public auction for whatever sum and price said real estate may bring. And if said Marion County real estate upon such sale do not fetch enough to pay the moneys and perform the obligations herein charged upon and against said real estate then said second party may proceed to sell and sell said Hamilton County real estate in the manner and form prescribed as to said Marion County real estate, after thirty (30) days notice given in writing to first parties by second party.

"It is ever understood and agreed that said Fidelity Trust Company shall apply the proceeds of any sale or sales of said real estate made pursuant to this agreement, as follows:--

"(1). To the payment of any mortgage or other valid liens, charge, adverse interest or incumbrance upon and against said real estate or any part of any of the real estate herein described, which may be prior and superior and adverse to the interest of said Fidelity Trust Company.

"(2). To the payment of moneys advanced by second party to first parties or paid to the use and benefit of first parties as herein authorized and provided.

"(3). To the payment of moneys obtained by said second party from any bank or banks to the use and benefit of said

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