OPINION
Willoughby, J.
This
case is a resumption of proceedings under the mandate of this
court in Rooker v. Fidelity Trust Co.
(1915), 185 Ind. 172, 109 N.E. 766. The appellants, as
settlors of a trust in lands, sued appellee, who was the
trustee, alleging a violation and repudiation of the trust
and demanding damages, an accounting, that the appellee
trustee be removed, and that a receiver be appointed for the
trust estate to administer it under the terms of the trust
agreement. Appellee on its part filed a cross-complaint in
which it set up the same trust and its duties under it as
trustee, its performance of all its duties save the sale of
the trust estate, its reason for not making such sale, its
purpose to carry out the sale and its hindrance by
appellants' interference and claim of title. It asked an
accounting, that its title as trustee be quieted, that
appellants be enjoined, and that it be decreed to make sale
pursuant to the trust agreement and distribution of proceeds
accordingly.
Appellants'
complaint was answered by appellee trustee by general denial.
Issue was formed on the cross-complaint of appellee trust
company by answer of general denial and by special partial
answers, the issues on the latter being made by replies in
general denial. On these issues the cause was submitted to
the court for trial and the following special
finding of facts and conclusions of law were made and stated
by the court.
The
court finds the facts to be:
(1)
That on and prior to October 11, 1909, the plaintiff, Dora E
Rooker, was the owner in fee simple of certain real estate
situate in Hamilton county, Indiana.
(2)
That on and prior to October 11, 1909, the plaintiffs,
William V. Rooker and Dora E. Rooker, husband and wife, were
the owners in fee simple as tenants by entireties of certain
real estate situated in Marion county, Indiana.
(3)
That on said October 11, 1909, said plaintiff Dora E. Rooker
and William V. Rooker, her husband, executed and delivered to
said cross-complainant, Fidelity Trust Company, as trustee,
their warranty deed for the lands in Hamilton county--
"* * * To have and to hold, said real estate, however,
in trust for the use and benefit of said Dora E. Rooker and
to protect and discharge the obligations arising out of
claims and liens or the right of liens by reason of
improvements made on the above described real estate.
"Said Fidelity Trust Company of Indianapolis, Indiana,
as aforesaid, to sell and convey said lands or any part of
them at such prices and upon such terms as may be from time
to time dictated in writing by said Dora E. Rooker; to
execute the proper trustee's deed or deeds conveying the
title thereto in fee simple to the purchaser; it being hereby
understood and agreed that any deed so executed by said
Fidelity Trust Company of Indianapolis, shall convey a good
and indefeasible title in fee simple to such purchaser or
purchasers as fully as this grantor could herself do, and any
such purchaser or purchasers shall in no wise be responsible
for the application of the proceeds arising from such sale in
the hands of the said Fidelity Trust Company of Indianapolis,
Trustee.
"And said Fidelity Trust Company of Indianapolis, as
such trustee, shall have full power and
authority to make contracts in writing for the sale of the
foregoing real estate, or any part or all of said real estate
and convey same free and clear of any incumbrance or convey
the same subject to any existing incumbrances. And to do any
and all acts and to execute any and all papers, which may be
necessary to protect the interests of this grantor, the
mortgagee and other lien holders in and to said real estate
and to conserve the trust hereby created.
"And in the event any such liens or charge against said
real estate be paid by the Fidelity Trust Company, Trustee,
the said Fidelity Trust Company, Trustee, shall be subrogated
to all the rights of such original lien holders and the same
shall be enforcible by it and collectible with interest at
the rate of 6% per annum, to be credited semi-annually as a
debit and charge against said real estate.
"This conveyance is made subject to the taxes for the
years 1908 and 1909 and subject also to a certain mortgage
executed to the American Central Life Insurance Company, by
this grantor and William V. Rooker, her husband, on November
19th, 1908. Said mortgage secured the payment of a certain
principal note of said grantor in the sum of Fourteen
Thousand ($ 14,000) Dollars, together with interest thereon
and recorded in mortgage record 52, page 84, in the office of
the Recorder of Hamilton county, Indiana."
That
said indenture by Dora E. Rooker and William V. Rooker, her
husband, was received for record on October 14, 1909, and
recorded in record 97, at page 117, in the recorder's
office of Hamilton county, Indiana.
(4)
That on said October 11, 1909, the plaintiffs William V.
Rooker and Dora E. Rooker, husband and wife, executed and
delivered to said cross-complainant Fidelity Trust Company,
as trustee, their warranty deed for the lands in Marion
county--
"* * * To have and to hold said real estate, however, in
trust for the use and benefit of said grantors, William V.
Rooker and Dora E. Rooker, and to protect and
discharge the obligations of the trust herein with the powers
and limitations as follows:
"Said Fidelity Trust Company of Indianapolis, Trustee,
as aforesaid to sell and convey said real estate according to
the terms of a certain contract of even date herewith, within
one (1) year after the date of these presents for a
consideration fixed in said contract and should it so happen
that said real estate be not sold within said period of one
(1) year, for the sum nominated in said contract, then after
ninety days notice in writing, to be given to the grantors by
the trustee herein, the trustee may publicly advertise said
real estate and sell the same at public or private sale at
such price as it may bring and upon the consummation of such
sale as may be made by said Fidelity Trust Company of
Indianapolis, as such trustee to execute the proper
trustee's deed conveying the title thereto in fee simple
to its said purchasers. It being hereby understood and agreed
that any deed so executed by said Fidelity Trust Company of
Indianapolis, Trustee, shall convey a good and indefeasible
title in fee simple to such purchaser or purchasers as fully
as these grantors could themselves do, and any such purchaser
or purchasers shall in no wise be responsible for the
application of the proceeds arising from such sale in the
hands of the said Fidelity Trust Company of Indianapolis,
Trustee, but said Fidelity Trust Company is directed to apply
the proceeds arising from such sale in the manner and for the
purposes set out in the contract entered into between said
grantors and said Fidelity Trust Company, Trustee, on this
date.
"The said Fidelity Trust Company of Indianapolis, as
such trustee shall have full power and authority to make
contracts in writing for the sale of the foregoing real
estate or any part or all of said real estate and convey the
same free and clear of any incumbrances or subject to any
existing incumbrances, and to do any and all acts and to
execute any and all papers which may be necessary to protect
the interest of the grantors in and to said real estate and
to conserve the trust hereby created and it is hereby further
understood and agreed that if the said Fidelity Trust Company
of Indianapolis, as trustee, shall elect to
pay any lien, charge or incumbrance existing against said
real estate, the said Fidelity Trust Company of Indianapolis,
Trustee, shall be subrogated to all the rights, title and
interest held by the original parties thus paid and the same
shall be collectible and enforcible in its hands, together
with interest thereon at the rate of 6% per annum, to be
credited semi-annually to said Fidelity Trust Company as a
debit and charge against the grantors and the real estate
above described.
"This conveyance is made subject to the taxes for the
year 1908 and 1909 and subject also to a certain mortgage
executed March 12, 1909, by the grantors, William V. Rooker
and Dora E. Rooker husband and wife, to the Indianapolis Life
Insurance Company to secure the payment of one principal note
of the sum of six thousand ($ 6,000) dollars and interest
coupon notes thereon which mortgage is recorded in mortgage
record 523, page 128, in the office of the Recorder of Marion
county, State of Indiana."
That
this indenture was received for record on October 14, 1909,
and recorded in Record 52, page 101, in the office of the
recorder of Marion county, Indiana.
(5)
That contemporaneously with the execution of the two warranty
deeds executed on October 11, 1909, to said Fidelity Trust
Company, trustee, and as part of the same transaction, the
plaintiffs, Dora E. Rooker and William V. Rooker, as first
parties and the defendant and cross-complainant, Fidelity
Trust Company of Indianapolis, Indiana, as second party,
executed in duplicate on October 11, 1909, a memorandum or
contract in writing. (This memorandum or contract in writing
is set out in full in the opinion in Rooker v.
Fidelity Trust Company, supra, beginning on
page 173.)
(6)
That since the execution of said warranty deeds and said
written memorandum, the plaintiff, Dora E....