Turpie v. Lowe

• Decision Date: 10 March 1888
• Citation: 114 Ind. 37,15 N.E. 834
• Parties: Turpie et al. v. Lowe.
• Court: Indiana Supreme Court

114 Ind. 37

15 N.E. 834

Turpie et al.

v.Lowe.^a1

Supreme Court of Indiana.

March 10, 1888.

Appeal from circuit court, White county; J. G. Adams, Judge.

Action by James H. Turpie and William Turpie against Hugh Lowe, to recover damages for breach of contract. Demurrer to complaint sustained, and plaintiffs appeal.

A. W. Reynolds, E. B. Sellers, Lyman Walker, and Wm. B. McClintick, for appellants. R. P. Davidson, E. P. Hammond, W. B. Austin, and R. Gregory, for appellee.

Zollars, J.

The court below sustained a demurrer to each paragraph of appellant's complaint. That ruling is assigned as error. The complaint is in three paragraphs. For the purposes of this decision, it will be sufficient to refer to the third paragraph, as that embraces all that is contained in the other two. We set out below a summary of the third paragraph furnished by counsel:

“(3) The said plaintiffs, James H. Turpie and William Turpie, for a third and further cause of action against said defendant, Hugh Lowe, say that on the 12th day of December, 1885, they were the owners of the following described real estate in the state of Indiana, county of White, [description.] Also the following described real estate, in the county of Starke, in said state, to-wit, [description.] Also the following described land, in the county of Jasper and state of Indiana, to-wit, [description.] Also the following described lands, in the county of Franklin and state of Ohio, to-wit, [description.] Also the following described lands, in the county of Franklin and state of Ohio: First parcel, [description;] second parcel, [description;] third parcel, being the undivied one-half ( 1/2) of the following described premises, situated in Clinton township, Franklin county, Ohio, [description.] Also the following described real estate in said county of Franklin and state of Ohio, [description.] Also the following real estate, situated in the county of Franklin and state of Ohio, in the township of Clinton, and being part of the third quarter, ( 1/4,) township one, (1,) range eighteen, (18,) United States military lands, bounded and described as follows, to-wit, [description.] Also the following real estate, in the county of Franklin, in the state of Ohio and city of Columbus, [description.] Also the following described real estate, in the county of Union and state of Ohio, [description.] That on said 12th day of December, 1885, the said defendant and plaintiffs entered into a parol agreement touching said real estate, as follows: The said plaintiff undertook and promised to convey, and cause to be conveyed, to said defendants, all of said real estate, by good and sufficient deeds, but subject to the liens and incumbrances thereon; in consideration of which, and in further consideration of the sum of three thousand dollars promised by plaintiffs to be paid to defendant, and included in a note theretofore executed by plaintiffs to defendant, the said defendant undertook and agreed that he would bid off and purchase for plaintiffs all of said plaintiffs' personal property, which at that time was levied on and advertised for sale by the sheriff of White county, Indiana, on executions then and there held by such sheriff against the property of plaintiffs, and pay for the same to said sheriff the purchase price therefor; that he would pay off all judgments then existing and unpaid that had theretofore been rendered against them, or either of said plaintiffs, in the White circuit court of Indiana, a list of which is filed herewith, marked ‘Exhibit A,’ and made part hereof; that he would pay off all judgments then existing and unpaid, rendered against said plaintiffs, or either of them, before any justice of the peace of Monon township in said county of White, a copy of which is filed herewith, marked ‘Exhibit B,’ and made part hereof; that he would pay all taxes, liens, assessments, and incumbrances then subsisting against said lands, or any part thereof, so to be conveyed to him as aforesaid, a copy of which is filed herewith, marked ‘Exhibit X;’ that he would pay in full a certain debt then due and owing from said plaintiffs to one Cornelius M. Horner, amounting to about the sum of thirteen hundred and thirty-five dollars; that he would pay in full a certain debt then due and owing from said plaintiffs to one John Miller, amounting to about the sum of one thousand dollars, on which said debt the said Cornelius M. Horner was surety; that he would pay in full a certain debt then due and owing by said James H. Turpie to one William H. Bradford, amounting to about the sum of nine hundred dollars; that he would pay in full a debt then due and owing by said James H. Turpie to one ------ Hamilton, amounting to about the sum of seven hundred and fifty dollars; that he would pay in full a debt then due and owing one John Ball from said plaintiffs, amounting to about the sum of forty-seven dollars. Said Lowe further covenanted, as part of said agreement, that he would convey, at the request of said plaintiffs, to any person named by them, such part of said lands as at a fair valuation would satisfy or pay three several judgments rendered against said Turpies in the Carroll circuit court, then remaining unpaid; said payment to be made by transfer of said lands, or out of the proceeds thereof, when sold.

It was further stipulated, as a part of said agreement, that the said several payments above mentioned, agreed to be made by said Lowe, should be made immediately, in order to avoid costs and interest, and to remove the liens on said lands, so as to facilitate their immediate sale; that when said amounts so agreed to be paid by said Lowe were fully paid, and the amount thereof correctly ascertained, the said plaintiffs were to execute their note or notes, payable in one year from the date thereof, to said Lowe, which were to be so executed for the purpose of evidencing the amount of said payments so made by him; but the same were to be paid off and satisfied only in the manner hereinafter stated. It was further in said contract agreed that said Lowe, after receiving said conveyances, was to make sale of any part or all of said property, in his own discretion, and out of the proceeds derived from such sales he was to pay off all the amounts so paid and expended by him, and the amount of said note theretofore executed by said plaintiffs to him, and all costs and expenses of the execution of said agreement, and accruing taxes and assessments on said property, with 8 per cent. interest per annum on each and all of said items.

It was further agreed that should the said Lowe, at any time after said agreement, and before the full execution thereof, desire or elect to retain any or all of said real estate as his own in fee, he should have the right so to do, by allowing or paying the fair cash value thereof, in satisfaction of any part of said agreement. The said defendant further stipulated in said agreement that after the application of said lands, or the proceeds thereof, to the uses and purposes heretofore stated, that all the surplus remaining, either in real estate or money, he would convey or pay to the said plaintiffs, or to such parties as they might designate. And these plaintiffs say that, in pursuance of said agreement, they forthwith conveyed, and caused to be conveyed, to said defendant, all of the real estate hereinbefore described; that said real estate, so conveyed as aforesaid was of the value of seventy-five thousand dollars; and said defendant accepted said deeds, so executed and delivered, and entered upon the execution of the agreement on his part by paying, or causing to be paid, a small portion of the debts or liabilities covered by said agreement. And plaintiffs further allege that on the -------- day of January, 1886, subsequent to the matter hereinbefore stated, the plaintiffs were the owners of the following described real estate, in the state of Ohio, to-wit, [description.] That the following described real estate, in the county of Franklin and state of Ohio, to-wit, [description,] had been purchased by plaintiffs from one R. P. Woodruff, at said day last named, and payment made therefor in full by them, excepting a small amount, to-wit, the sum of three hundred dollars, on payment of which a deed was to be made by said Woodruff to said plaintiffs. That on said date said defendant and plaintiffs entered into a supplemental agreement in regard to said property in the cities of Columbus and Mount Vernon, Ohio, and in modification of said agreement of the 12th December, 1885, as follows: It was on said -------- day of January, aforesaid, agreed by and between said parties, for the consideration hereinafter named, that the said Hugh Lowe should pay off all the liens and incumbrances upon the property hereinbefore described, situated in the state of Ohio, which liens and incumbrances amounted in the aggregate to about the sum of twenty thousand dollars,-a copy of which is filed herewith marked ‘Z;’ and that he should further pay the amount necessary to be paid to procure said deed from said Woodruff. It was further stipulated in said agreement that, in consideration of such payments, the said Lowe was to be entitled to and receive the undivided one-half in fee of all said real estate in the state of Ohio, except certain lots in said city of Columbus, hereinafter named. And it was then, for the considerstions hereinbefore mentioned, agreed between said parties that said Lowe should receive the said deed from said Woodruff for said property in Columbus; that the wives of said Turpies should convey to him the undivided one-half of said property in the city of Mount Vernon, aforesaid; and that he should hold, released from the trust aforesaid, the undivided one-half of all the real estate in the state of Ohio theretofore conveyed to him under the said agreement of December 12, 1885. It was further in said agreement stipulated, on the considerations...