Smith v. Tomlin

• Decision Date: 20 April 1936
• Docket Number: 15253.
• Parties: SMITH v. TOMLIN et al.
• Court: Indiana Appellate Court

1 N.E.2d 297

102 Ind.App. 103

SMITH v. TOMLIN et al.

No. 15253.

Appellate Court of Indiana, in Banc.

April 20, 1936

Appeal from Superior Court, Marion County; John W. Kern, Judge.

Action by James L. Tomlin and another against Wilhelmine Smith. From a judgment for plaintiffs, defendant appeals.

Reversed with instructions.

Karabell & Lipman, of Indianapolis, for appellant.

Wilbur A. Royse, of Indianapolis, for appellees.

Kime Presiding Judge.

This was an action by one paragraph of amended complaint instituted by appellees against appellant seeking to recover from appellant the sum of $5,000 as damages resulting from an alleged breach of a warranty against incumbrances contained in a general warranty deed of conveyance of certain real estate executed by appellant to the appellees.

To this amended complaint appellant filed an answer in four paragraphs, the first of which was a general denial, and the remaining paragraphs alleged affirmative defenses. To the second, third, and fourth paragraphs of answer, appellees answered in general denial. The issues were thus closed, and the cause was submitted to the court for trial. Judgment in the sum of $250 (being the amount paid to one Hunter, lessee in a certain lease with option to purchase on the real estate herein, in which appellant was lessor, for a quitclaim deed to said real estate), together with costs, were rendered against appellant and in favor of appellees.

Appellant's motion for new trial containing the grounds that the decision of the court was not sustained by sufficient evidence and that it was contrary to law was overruled and this appeal followed; the error properly assigned being the overruling of that motion.

The evidence discloses that at the time of the conveyance herein there was in existence a lease with option to purchase; that at that time appellees had actual knowledge of the existence of such lease with option to purchase, and accepted assignment thereof; that on a certain day every month Hunter, the lessee in said lease with option to purchase offered to pay rent for said premises to appellees; that they would not accept the same; that the attorneys for a tentative purchaser of said real estate from appellees refused to accept the title for the reason that said Hunter held this lease with the option to purchase, and that said Hunter never asked for a deed to said real estate. The evidence does not disclose that...