Spoden v. Krause
| Decision Date | 03 October 1946 |
| Docket Number | 17505. |
| Citation | 68 N.E.2d 654,117 Ind.App. 14 |
| Parties | SPODEN v. KRAUSE et al. |
| Court | Indiana Appellate Court |
Appeal from Howard Circuit Court; Forrest E. Jump, Judge.
Action by Karl Krause and others against Parrie Spoden and Fred G Spoden, for specific performance of a contract to sell real estate. After the death of defendant Fred G. Spoden, Parrie Spoden, as executrix of the last will and testament of the late Fred G. Spoden, deceased, was substituted. From a judgment decreeing specific performance, defendant Parrie Spoden appeals.
Affirmed.
George C. Uhlir, of Kokomo, for appellant.
McClure & Shenk, of Kokomo, for appellees.
Appellees brought this action against appellant Parrie Spoden and her husband, Fred G. Spoden, for specific performance of a contract to sell real estate. After the trial court overruled the motion for a new trial Fred G. Spoden died and appellant executrix was duly substituted here.
The facts as disclosed by the pleadings and special findings of fact are substantially as follows:
On or about the 3rd day of April, 1945, Fred G. Spoden caused to be inserted in the Kokomo Tribune an advertisement offering for sale certain described real estate owned and occupied by the Spodens as tenants by entirety. On the same day the appellees, in response to said advertisement, called at the Spoden home and inspected the property. After some discussion appellees agreed to purchase this property for the sum of $4000. On April 4, 1945, the contract which is the subject of this controversy was entered into by and between said parties. Omitting signatures we set this contract out in full:
'This Contract, made and entered into this the 4th day of April 1945, by and between Fred G. Spoden and Parrie Spoden husband and wife, hereinafter known and referred to as the Parties of the First Part, and Karl Krause and Josephine Krause, husband and wife, hereinafter known and referred to as the Parties of the Second Part, Witnesseth:
'That for and in consideration of the payment to them of the total sum of $4000.00 to be paid at the times and in the manner below herein set out, they agree to sell and convey unto the said parties of the Second Part, the following described real estate, to-wit:
'Thirty-eight (38) feet off of the entire East Side of Lot Number Ten (10) in W. T. Chambers First Addition to the City of Kokomo, Indiana.
'The said Parties of the Second part agree to pay for the above described real estate the said sum of $4000.00 at the time and in the manner below herein set out, to-wit:
'$160.00 cash in hand paid to the said First Parties, the receipt of which is hereby acknowledged; $3840.00 to be paid in cash as soon as the abstract has been continued down to date to the satisfaction of the said purchasers.
'Upon the full and final payment of the above sum of $4000.00 as herein provided, then and at that time, the said Parties of the First Part do hereby agree to convey unto the said Parties of the Second Part, heirs or assigns, the said described real estate by a good and sufficient warranty deed together with an abstract of title showing the same to be free and clear of any and all liens of every kind and description, EXCEPT the fall installment of the taxes for the year 1944, due and payable in November, 1945, and thereafter.
'Possession shall be given on or before May 1st, 1945.
'Witness our hands this 4th day of April, 1945.'
The deed was prepared and executed by the Spodens and delivered to the Abstract Company as Escrow Agent. Thereafter, on or about the 26th of April, 1945, the Spodens attempted to cancel and repudiate this contract and sent to appellees a bank draft for $160 as a refund of the payment they had made pursuant to this contract. On or about said last mentioned date appellees paid the Abstract Company for the benefit of said Spodens the sum of $3840 and also the bank draft for the $160 which the Spodens had sent appellees in an effort to cancel the contract, thereby paying the full agreed purchase price for said real estate. Appellees were ready, able and willing to and did in fact fulfill all of their obligations under the contract. Prior to the...
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