Trook v. Trook
| Decision Date | 04 January 1916 |
| Docket Number | No. 9287.,9287. |
| Parties | TROOK v. TROOK et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Grant County; Robert M. Van Atta, Judge.
Action by Orrin H. Trook against William H. Trook and another. From an order of the superior court setting aside an order granting a new trial as of right made by the circuit court before change of venue, the defendant named appeals. Affirmed.
W. S. Marshall, George A. Henry, W. D. Lett, and John A. Kersey, all of Marion, for appellant. Marshall Williams, of Marion, G. D. Dean, of Indianapolis, and Blacklidge, Wolf & Barnes, of Kokomo, for appellees.
On July 8, 1910, appellee Orrin H. Trook commenced an action in the Grant circuit court against his coappellee, Richard M. Crouch, and appellant, William H. Trook. From the complaint, it appears that appellee Crouch was the owner of several tracts of land in Miami and Grant counties, Indiana, which were heavily incumbered. One Milton Shirk held a mortgage on all of said real estate, and appellee Orrin H. Trook held a mortgage on a part of the same, which was a prior lien to the Shirk mortgage as to the real estate covered. Prior to February 8, 1898, appellee Crouch entered into an agreement with Shirk, by which Shirk was to foreclose his mortgage and purchase the real estate, and hold the title under certain conditions for Crouch. While the foreclosure proceedings were pending, and on the date last mentioned, appellee Crouch and wife entered into an agreement with appellee Orrin H. Trook whereby his mortgage was to be foreclosed in connection with the foreclosure of the Shirk mortgage as junior, although it was senior, as to the real estate included therein. In consideration thereof appellees, Crouch and Orrin H. Trook, were to own the balance of the real estate or proceeds derived therefrom in common after the payment of an indebtedness of some $14,000, which included the mortgages and other indebtedness owing by Crouch. Part of the real estate was platted into lots as an addition to the town of Converse, Ind., and by the agreement Crouch was to sell the part platted into lots, or so much as was necessary to discharge the indebtedness, the money derived from the sale of the lots to be placed in bank at Converse in the name of Crouch as trustee for Orrin H. Trook and Shirk. Pursuant to the agreements the mortgages were foreclosed and the real estate sold at sheriff's sale; the certificate of purchase of the various tracts of real estate taken in Shirk's name. Thereafter Crouch sold several of the lots, and applied the proceeds to discharge the liens. The transfer of the title to the lots sold was by assignment of the certificates of purchase held by Shirk at the request of Crouch and Orrin H. Trook. After part of the liens specified were discharged, the remainder of the real estate by assignment of the sheriff's certificate passed to one Wilson with the consent of Orrin H. Trook and Crouch, under an agreement that Wilson was to convey said real estate thereafter to Crouch and Trook or to whomsoever they directed, after Wilson's indebtedness to the amount of $1,200 was paid, and Wilson was to hold the real estate in trust for Orrin H. Trook and Crouch. Orrin H. Trook and Crouch turned over to appellant, William H. Trook, as their attorney, the sum of $1,500, which was used by him as far as necessary to discharge the Wilson indebtedness, and thereupon he took the conveyance of the real estate in his own name from Wilson, as trustee for his clients, which real estate consisted of several lots in Central Park addition to Converse, Ind., together with two tracts of farming land. While he was holding the real estate as trustee for said parties he acquired certificates of purchase at tax sales for many of the lots. The money to purchase the same was furnished by Crouch and Orrin H. Trook. After taking the title as trustee, William H. Trook collected rent and failed to account for the same, disposed of lots without the consent of the owners and denied holding the real estate as trustee, and offered the real estate for sale. A trust was asked to be declared in favor of appellees, Orrin H. Trook and Crouch, that he be ordered to convey the same to appellees, Orrin H. Trook and Crouch, and to account for the moneys collected for rent and the sale of lots, and that a receiver be appointed during the pendency of the litigation. The pleading embodying these facts was verified. Appellee Crouch refused to join with Orrin H. Trook as a party plaintiff, but filed a cross-complaint, which set up practically the same facts and asked the same relief.
Appellant, William H. Trook, filed a cross-complaint setting up that he was the owner of the real estate described in the complaint, and asked that the title to the real estate be quieted in him. The issues being closed as to the complaint and cross-complaints by answers of general denial by the respective parties, a trial resulted in judgment for appellees, Orrin H. Trook and Crouch, that they were the owners of the real estate described in their pleadings and were entitled to the immediate conveyance from William H. Trook as their trustee; that he had no right or title to the real estate, except as held for the benefit of Orrin H. Trook and Richard M. Crouch, and that they were entitled to recover the rents and profits that accumulated less any credits due William H. Trook as trustee; that they were entitled to recover the sum of $312 of the Flint Elevator Company, which was made a party to the action, the value of grain sold from the real estate; that Orrin H. Trook was indebted to Richard M. Crouch under their agreement; and that certain real estate was set off to Crouch and certain other real estate to Orrin H. Trook and Crouch as tenants in common, the division being made as agreed by them, and that appellant, William H. Trook, convey to Crouch certain real estate, and convey jointly to Orrin H. Trook and Richard M. Crouch certain real estate within ten days from the 1st of July, 1911, and, if not made within that time, William H. Carroll was appointed commissioner to make the conveyance. Judgment was rendered against appellant on his cross-complaint.
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