Stringer v. Montgomery

• Decision Date: 15 June 1887
• Parties: Stringer v. Montgomery, Jr., and others.
• Court: Indiana Supreme Court

111 Ind. 489

12 N.E. 474

Stringer

v.Montgomery, Jr., and others.¹

Supreme Court of Indiana.

June 15, 1887.

Appeal from circuit court, Hendricks county.

Ballard & Ballard, M. E. Clodfelter, and S. M. Bruce, for appellant. Hadley, Hogate & Blake, for appellees.

Elliott, J.

The questions which control this case arise on the facts stated in the special finding, and those facts may be thus summarized: The appellant's husband, Henry D. Stringer, and Bedford Shobe, were partners doing business in Sedalia, Missouri, under the firm name of Stringer & Shobe. They were the owners, by a defective title, of a house and four lots in Sedalia, and one Mrs. Henry was the owner of a large tract of land in Monroe county, Missouri, which she proposed to exchange for the house and lots and a business block to be acquired by the firm. A contract was entered into between the parties, wherein Mrs. Henry agreed that, in consideration of the payment to her of $4,000 in money, and the conveyance of the house and lots and the business block in Sedalia, she would convey to Stringer & Shobe the land owned by her in Monroe county. In order to enable Stringer & Shobe to effect the exchange, it became necessary to raise $10,800 for the purpose of paying for the business block “to cover the house and four lots,” and to pay Mrs. Henry the four thousand dollars agreed upon. Stringer & Shobe employed one J. R. Stewart to assist them in raising the money required, and agreed to pay him one-half of all the profits that might be realized. Stewart obtained from James C. Thompson a loan of the money, and it was agreed that, instead of one-half of the profits, the compensation should be $2,500. Montgomery was employed to render services as an attorney, and it was agreed that he should receive one-third of the $2,500 as his compensation. The money was obtained on a mortgage executed on the Monroe county land, and both Stringer and Shobe were insolvent.

Without any consultation with Mrs. Stringer, it was agreed that the title to the land should be placed in her name; but she paid no part of the consideration, and took no interest in the transaction, beyond executing the necessary conveyances and papers. Pursuant to this agreement, deeds were executed and exchanged on the twenty-sixth day of June, 1883, and on that day three mortgages were executed on the Monroe county land, the first to T. W. Marshall, for $8,000, the second to John Montgomery, one of the appellees, for $2,800, and the third was also executed to him to secure $2,500. Some personal property was also purchased of Mrs. Henry by Stringer & Shobe. Possession of the Monroe county land was taken by them, and repairs were made with money received from rents. On the thirteenth day of December, 1883, pursuant to an agreement between Stringer & Shobe and Montgomery and Thompson, the appellant and her husband conveyed, by a warranty deed, part of the Monroe county land to Lewis S. Watts, and received from Watts, in exchange, the property in controversy, situate in Danville, in this state. The sole consideration for the conveyance of this property was the conveyance of part of the Monroe county land, and the mortgages on that land were, by agreement of the parties interested, to be transferred to the property in Danville. The appellee Montgomery, in execution of this agreement, released his mortgage on that land, and accepted mortgages on the Danville property, but the holder of the $8,000 mortgage refused to transfer his mortgage security to Indiana. In December, 1883, at the special request of Stringer & Shobe, the appellee, Montgomery, accepted a warranty deed, absolute on its face, for the Danville property, executed by the appellant and her husband. The consideration for the conveyance was the payment by Montgomery of incumbrances on the property, and of $150 in money, and the payment of certain debts owing by Stringer & Shobe. At the time this deed was executed an instrument in the nature of a defeasance was...