Tyler v. Tyler

• Citation: 40 N.E.2d 983,111 Ind.App. 607
• Decision Date: 13 April 1942
• Docket Number: 16781.
• Parties: TYLER v. TYLER et al.
• Court: Indiana Appellate Court

40 N.E.2d 983

111 Ind.App. 607

TYLER v. TYLER et al.

No. 16781.

Appellate Court of Indiana, in Banc.

April 13, 1942

L Russell Newgent, of Indianapolis, and Gilbert W. Butler, of Martinsville, for appellant.

Theodore R. Dann, of Indianapolis, and Homer Elliott, of Martinsville for appellees.

STEVENSON Judge.

The appellant brought this action to enforce a vendor's lien against the real estate held by the appellees located in the city of Indianapolis, Indiana.

Her complaint was in four paragraphs, The first paragraph of amended complaint alleged that on the 9th day of May, 1932 the appellant and one Clifford L. Tyler were the owners of an equitable interest in the real estate described, by virtue of a contract to purchase, on which they had paid approximately $2,000. The complaint alleged that on the date mentioned the appellant entered into an agreement with Clifford L. Tyler for the settlement of property rights in a divorce case then pending, by which contract it was agreed that the said Clifford L. Tyler would pay to the appellant the sum of $300 for her interest in the real estate, said payment to be made within thirty days after the decree of divorce was granted. The complaint alleged that this amount has never been paid that the said Clifford L. Tyler died intestate on the 7th day of September, 1933; that prior to his death he had conveyed the real estate above described to the appellees for no consideration; and that the appellees accepted said conveyance with full knowledge of appellant's claim. The complaint prayed for judgment establishing a vendor's lien against the real estate, and for foreclosure thereof.

The second paragraph of amended complaint alleges substantially the same facts, but contains the additional fact that on the 9th day of May, 1932, the appellant was granted a divorce from the said Clifford L. Tyler, and, by said decree, the property settlement made between the parties was approved, and the said Clifford L. Tyler was ordered to pay to the appellant the sum of $300 thirty days after date. The appellant alleges that she has complied with all the provisions of the decree, but that the said Clifford L. Tyler, during his lifetime, failed and refused to satisfy said judgment, and the consideration for the release of her interest in the real estate has failed.

The third paragraph of amended complaint alleges the same facts, and sought to establish a trust in the real estate conveyed.

To these paragraphs of complaint, the appellees filed answers in general denial, and also affirmative answers pleading the six year statute of limitation. The cause was submitted to the court for trial without a jury. The court, after hearing the evidence, found for the appellees and against the appellant. Judgment was entered accordingly. A motion for new trial was filed and overruled, and this appeal has been perfected. The only error assigned on appeal is the alleged error in overruling the appellant's motion for a new trial. Under this assignment of error, the appellant contends that the evidence conclusively shows that the appellant released and transferred to Clifford L. Tyler all her interest in the real estate described in consideration for the payment of $300 within thirty days after the decree of divorce was entered. The appellant contends that this is in effect purchase money, for the nonpayment of which she is entitled to enforce a vendor's lien.

The record discloses that on the 31st day of July, 1928, one Jacob C. Hazel and Beatress Hazel, his wife, entered into an agreement with Clifford L. Tyler and the appellant, his wife, by which agreement the lessors, Hazel and Hazel, "demised and leased" to Clifford L. Tyler and the appellant, as husband and wife, the real estate described, for a period of four years beginning the 1st day of August, 1928, with a monthly rental of $48 per month payable in advance on the first day of each calendar month beginning September 1, 1928. The agreement contained the usual covenants found in a real estate lease contract, and it contained the further agreement as follows:

"'* * * that for and in consideration of the sum of Fifteen Hundred ($1500.00) Dollars, this day paid to lessor by lessee, the receipt whereof is hereby acknowledged, lessor hereby grants and gives to the lessee the right and option, at any time while this lease is in effect to purchase said real estate of lessor at and for the sum and price of Sixty three hundred ($6300.00) dollars, together with interest thereon from this date at the rate of 6 1/2 per cent per annum, computed semiannually on January 1 and July 1, and if said option is exercised by lessee as herein provided, it is agreed that credit shall be given on said purchase price for the cash payment this day made for the consideration of this option, and lessee shall further have credit on said purchase price for a sum equal to the monthly rental payments herein stipulated and heretofore paid, and the balance of said purchase price shall be payable in cash. * * *

"'The lessee agrees, when possible to do so, to borrow from a building and loan association a sufficient sum of money to pay in full to the lessor the unpaid balance, including the interest at the rate aforesaid, then unpaid, on this contract, at the time of procuring and receiving such loan.

"'In the event, however, that if at any time before or after the lessee has exercised this option to purchase, this lease is forfeited or lessee's right and interest therein lost by failure to comply with the terms and provisions herein, or in the event of said lessee's failure to exercise this option, having the right to do so, then said cash payment for this option shall be kept and retained by the lessor, as and for the consideration for this option and the right thereby given; and the monthly amount paid by said lessee together with any other payments by lessee shall be kept and retained by lessors as and for rent and liquidated damages, and that this agreement or any part thereof shall not be construed, either in law or equity, to vest in the lessee hereof any title or color of title in or to the above described real estate."'

The...