Wysong v. Sells

Citation88 N.E. 954,44 Ind.App. 238
Decision Date30 June 1909
Docket Number6,472
CourtCourt of Appeals of Indiana

From Cass Circuit Court; John S. Lairy, Judge.

Action by Elvira M. Wysong against Charles H. Sells. From a judgment for defendant, plaintiff appeals.


Mock & Sons and George W. Funk, for appellant.



Appellant was the owner of 200 acres of real estate in Cass county which was heavily encumbered by numerous mortgages, amounting to between $ 9,000 and $ 10,000. Under an arrangement between appellant and appellee, appellee was to provide the funds with which to pay off the debts on said land. To secure the payment of the funds thus advanced, appellant, together with her husband, executed to appellee a warranty deed to said land, and appellee in turn executed to appellant a title bond for the reconveyance of the same upon conditions hereinafter set out. A quitclaim deed to appellee for said land was also executed by appellant and her husband, and was placed in escrow. The land was afterwards sold, and the purchase price paid to appellee, who deducted therefrom the amount of the funds advanced by him, together with seven per cent interest thereon and certain costs and expenses incurred in discharging the debts. The residue--less about $ 1,000--he paid over to appellant, who brought this action to recover the amount retained by appellee, over and above the amount expended, with interest.

The complaint is in two paragraphs. The first is an action for money had and received. The second avers the facts in detail, setting out the title bond and the various encumbrances. To this complaint appellee answered in three paragraphs: (1) A general denial; (2) payment; (3) want of consideration. Trial was had by the judge who found for appellee. Appellant moved for a new trial, which motion was overruled, and this ruling is assigned as error.

Appellee has not seen fit to aid this court by filing a brief in his behalf, and we would therefore be warranted in determining the case against him as on confession of error (People's Bank v. State, ex rel. [1902], 159 Ind. 353, 65 N.E. 6; Union Traction Co. v. Forst [1904], 162 Ind. 567, 70 N.E. 979; Cobe v. Malloy [1909], ante, 8) but this is a matter in the discretion of the court (Berkshire v. Caley [1901], 157 Ind. 1, 60 N.E. 696; Neu v. Town of Bourbon [1901], 157 Ind. 476, 62 N.E. 7; Cobe v. Malloy, supra).

We shall determine the questions presented by appellant's brief. The only questions presented are that the evidence is insufficient to sustain the finding and that the decision of the court is contrary to law. Appellant in her brief has set out what purports to be the evidence given in narrative form. Under the rules and decisions of this court this statement of the evidence is taken as true, unless denied by appellee. Brewer v. Bridges (1905), 164 Ind. 358, 73 N.E. 811; Pittsburgh, etc., R. Co. v. Seivers (1904), 162 Ind. 234, 67 N.E. 680; McElwaine-Richards Co. v. Wall (1902), 159 Ind. 557, 65 N.E. 753; Rule 22, subd. 5, Supreme and Appellate Courts.

It is clear from the deeds executed, and the title bond to secure a reconveyance upon the payment of the money to be advanced by appellee, that the warranty deed to appellee was in fact nothing more than a mortgage, and appellee's rights thereunder were no greater than if the writings had been in the form of a mortgage. Cross v. Hepner (1855), 7 Ind. 359; Ferguson v. Boyd (1907), 169 Ind. 537, 81 N.E. 71; Loeb v. McAlister (1896), 15 Ind.App. 643, 41 N.E. 1061; Crane v. Buchanan (1868), 29 Ind. 570.

The title bond expressly stipulated that if the amount of all liens against said real estate paid by appellee should be repaid to him by appellant on or before February 15, 1905, with interest thereon at the rate of seven per cent per annum from the date of payment of said several sums by said appellee, the land should be reconveyed to appellant. It also provided that if said appellant should procure a purchaser for said real estate, in a sum sufficient to cover the sums invested by appellee, with his interest, that he should, upon demand, execute a deed for said real estate. There was no stipulation that appellant should pay anything more. This bond measured the duties and liabilities of the parties. It was in writing and it will be presumed to be the repository of the final agreement of the parties in regard to the subject-matter of the transaction, and all prior or contemporaneous parol stipulations or agreements will be presumed to be merged therein. Pierse v. Bronnenberg (1907), 40 Ind.App. 662, 81 N.E. 739; Diven v. Johnson (1889), 117 Ind. 512, 3 L. R. A. 308, 20 N.E. 428.

Under this bond, all that appellant was required to pay to appellee was the money invested by him, together with seven per cent interest. There is nothing in the bond obligating appellant to pay anything for services or any commissions whatever, so that it was not competent to prove what was said by appellant or her agent prior to, or at the time of, the execution of the deeds and title bond, with reference to paying appellee for his time or trouble, or any other compensation, since an agreement in writing cannot be varied or contradicted in this way. The writings taken together must speak for themselves, and the agreement and transaction which they disclose cannot be varied or contradicted by parol evidence or proof of a contemporaneous parol contract. Pierse v. Bronnenberg, supra, and cases cited.

So to entitle appellee to any compensation or payment not provided for in the writings, the burden was upon appellee to show a valid subsequent contract therefor. Appellee claimed $ 500 as commission for selling the land, but did not show, at the trial, a valid contract whereby appellant agreed to pay him any such commission. Such a contract, to be valid, must be in writing. § 7463 Burns 1908, Acts 1901, p. 104; Price v. Walker (1909), 43 Ind.App. 519, 88 N.E. 78.

There was some evidence, however, that appellant in her settlement with appellee, through her husband acting as her agent assented to this payment, with full knowledge of what it was for and the amount. Upon this point the evidence is conflicting, and there is no averment in the complaint that there was any mistake in connection therewith. We therefore do not decide whether, under the evidence, appellee was entitled to retain this sum. The land was sold on April 10,...

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