Williams v. Hoffman
| Decision Date | 12 December 1905 |
| Docket Number | No. 5,087.,5,087. |
| Citation | 76 N.E. 440,39 Ind.App. 315 |
| Parties | WILLIAMS v. HOFFMAN. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Pike County; E. A. Ely, Judge.
Action by Fayette Williams against Stella Hoffman. From a judgment for defendant, plaintiff appeals. Affirmed.Gardiner & Slimp and Padgett & Padgett, for appellant. O'Neall & O'Neall, C. K. Tharp, W. Hefferman, and E. Mattingly, for appellee.
Appellant was plaintiff below, and brought this action against appellee, by which he sought to redeem certain real estate sold upon a decree of foreclosure, under a verbal contract with appellee's ancestor. His complaint was in three paragraphs, to each of which a demurrer for want of facts was addressed. Such demurrer was sustained as to the first paragraph and overruled as to the second and third. Appellee filed an answer in several paragraphs, to which a demurrer was sustained as to some of them and overruled as to others. To the affirmative paragraphs of answer, which the trial court held good as against the demurrer, appellant replied by way of general denial. Trial by the court resulting in a general finding and judgment for appellee. Appellant's motion for a new trial was overruled. Sustaining the demurrer to the first paragraph of complaint and overruling the motion for a new trial are assigned as error.
The material averments of the first paragraph of the complaint may be epitomized as follows: That on May 14, 1884, appellant was the owner of certain real estate, which is specifically described, and on that day it was of the value of $10,000; that on said date, the Ætna Life Insurance Company, to whom appellant had theretofore mortgaged the real estate to secure a loan of $3,000, foreclosed the mortgage and obtained a decree of sale to satisfy the judgment rendered thereon in the sum of $3,459.12; that the real estate was duly sold upon the decree by the sheriff on the 14th of June, 1884, and was purchased by the judgment plaintiff for the sum of $3,574.07, and that thereupon the sheriff issued to the purchaser a certificate of sale; that on the 23d day of May, 1885, the holder of the certificate assigned it to Francis M. Harned; that on the - day of June, 1885, before the expiration of the year of redemption from said sale, appellant and one Clement Lee entered into an agreement whereby it was agreed between them that Lee would loan appellant the money required to redeem the real estate from the sheriff's sale, and take a mortgage from appellant on the real estate to secure repayment of the amount so loaned, with interest thereon at the rate of 8 per cent. per annum; that Lee went to the courthouse to effect said redemption with the money so loaned, and, upon investigation of the records, he found that there were other judgments against plaintiff which would be liens ahead of the mortgage to be executed by appellant to him; that thereupon the agreement was modified, and it was then agreed between appellant and Lee that, instead of taking a mortgage, Lee should purchase from the holder the sheriff's certificate with the money so loaned to him, and hold said certificate in lieu of said mortgage to secure the payment of said loan and interest; that, in pursuance of said agreement, Lee purchased the certificate from the holder with the money so loaned to appellant, and took an assignment thereof; that under the agreement Lee was to hold the same for one year as a security for said loan; that on the 13th day of July, 1885, Lee, without the knowledge or consent of appellant, procured from the sheriff of said county a deed for the real estate, based upon said sale and certificate; that on the - day of October, 1885, Lee, without right and in violation of his agreement, wrongfully demanded of the tenant occupyingsaid real estate the possession thereof and procured from the tenant such possession; that ever after October, 1885, until his death, July 24, 1900, Lee held possession of said land wrongfully and without right kept plaintiff out of possession; that Lee also received the rents and profits from the real estate during that period, which were of the value of $1,000 per annum; that after his death, July 24, 1900, the lands of Lee, including the land in controversy, were partitioned among his heirs, and the lands in controversy were set off to appellee; that Lee left an estate of the value of $200,000; that said estate was solvent, and that the administration thereof was still pending; that after said partition appellee held possession of the real estate and received the rents and profits thereof. It is further alleged that, in pursuance of the modified agreement, the certificate of sale aforesaid was purchased from Harned for the sole use and benefit of appellant at and for the sum of $4,660, with the money loaned by Lee to appellant; that, but for said modified agreement and the loan by Lee to appellant and assignment of the certificate to Lee for the purpose aforesaid, appellant could and would have procured the money to have enabled him to have redeemed said real estate, and he would have redeemed the same before the end of the redemption period of one year, but he relied solely and confidently upon the good faith of Lee that he would carry out said agreement on his part, as he, the said Lee, well knew; that thereafter appellant fully paid and satisfied all of the judgments which were liens against said real estate, excepting the judgment in favor of said insurance company. It is then averred that, if said Lee had held said certificate as he had agreed to do for a period of one year from the 13th day of June, 1885, and had not taken a sheriff's deed thereon, appellant could and would have sold the said described real estate for the sum of $10,000, out of which he could and would have paid Lee...
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