Sims v. Burk
| Decision Date | 08 January 1887 |
| Docket Number | 12,889 |
| Citation | 9 N.E. 902,109 Ind. 214 |
| Parties | Sims et al. v. Burk |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
Judgment reversed, with costs and a new trial ordered.
W. H Thompson, J. West and W. B. Herod, for appellants.
E. C Snyder, T. H. Ristine and H. H. Ristine, for appellee.
Burk brought suit against Sims and wife to procure the cancellation of a deed made by the plaintiff below to Mrs. Sims. Mason was made a party defendant.
The complaint discloses the following facts: In September, 1884, Burk owned a certain fourteen-acre tract of land in Montgomery county. He contracted to sell the land to Sims for $ 420.
Mason at the same time owned a six-acre tract adjoining that owned by Burk. He in like manner sold his tract to Sims for the agreed price of $ 300.
Burk, having previously owned the six-acre tract, held an unpaid purchase-money mortgage on this tract, to secure a debt due from Mason to him for $ 180.
It was mutually agreed between all the parties, that Burk should convey both the fourteen and six-acre tracts to Mrs. Sims; Mason agreeing that he would convey the six-acre tract owned by him to Burk. Sims agreed to pay the latter $ 600, which was to liquidate the purchase-price of the fourteen acres, and the $ 180 mortgage due from Mason to Burk. Sims also agreed to pay Mason $ 120, the balance of the purchase-price of the six-acre tract, after paying off and releasing the Burk mortgage.
Pursuant to this arrangement, Burk made a warranty deed to Mrs. Sims for the twenty acres. Sims paid and secured to Burk $ 600, as agreed, but failing to receive the $ 120 due him from Sims under the arrangement above stated, Mason refused to deliver the deed to Burk for the six-acre tract. Thereupon Burk tendered back what he had received from Sims, and brought this suit to rescind the contract, and cancel his conveyance to Mrs. Sims.
The court overruled a demurrer to the complaint.
Sims and wife answered to the effect, that Burk agreed to purchase and pay for the six-acre tract of Mason, and convey it to Mrs. Sims, as had been done, and that he, Sims, owed Mason nothing. Otherwise the facts stated in the answer did not differ materially from those stated in the complaint.
The court, upon request, found the facts specially, and stated conclusions of law thereon.
The facts are found substantially as they are stated in the complaint. From the special finding it appears that the refusal of Mason to convey the six acres to Burk resulted entirely from the default of Sims, in failing to pay the $ 120 due Mason on the purchase-money.
The conclusions of law stated by the court were that Burk was not entitled to a rescission of the contract or the cancellation of the deed, except as to his covenants of warranty in respect to the six acres, which Mason refused, for the reasons stated, to convey. A decree was entered accordingly. Both parties excepted to the conclusions of...
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