184 Ind. 80 | Ind. | 1915
Appellant, Eliza, J. Aylesworth, as administratrix of the estate of her deceased husband, John Aylesworth, petitioned the circuit court for an order to sell 120 acres of land to secure assets to pay debts. §2852 Burns 1914, §2336 R. S. 1881. Issues were formed, and hearing had before the court with special findings of fact and conclusions of law, and judgment for appellees. The error here assigned is based on the court’s legal conclusions.
Prom the finding it appears that in November, 1906, decedent was the father of four adult children, viz., Carrie Cásbon, Glen, Clarence and Clyde Aylesworth, and that the father and children then agreed orally that the father should purchase a 166-aere tract of land for $11,000, for which decedent was to pay $3,000 in cash, and to execute his eight notes for $1,000 each, one payable each year, with six per cent interest, and to secure the same by his mortgage, on the land; it further provided that each child was given the privilege of paying to decedent, to be applied on the purchase price of the land, any sum of money desired, in which case such child should own an interest in the tract measured by the ratio of the sum paid to the original purchase price, but any child failing to make such payment should have no interest in the land. Thereupon the land was purchased, and the deed was executed to decedent conveying the title in fee. simple, and he executed the notes and mortgage as provided by the agreement. Of the $3,000 cash payment made by decedent, appellant Clyde Aylesworth furnished $1,000. Shortly after the purchase decedent sold to a stranger, for $2,392, forty-six acres of the tract, and applied the proceeds on the $8,000, purchase-price debt. ' Subsequently, in December, 1909,
“This agreement made and entered into this 12th day of May, 1911, by and between John Aylesworth, party of the first part, and Clarence Aylesworth, Clyde Aylesworth, Glen Aylesworth and Carrie Casbon, parties of the seeond part, witnesseth: That on the-day of -, in the year -, the said John Aylesworth, party of the first part, and Clarence Aylesworth, Clyde Aylesworth, Carrie Casbon and Glen Aylesworth, parties of the second part, entered into a verbal agreement to purchase for the price of sixty-six dollars and fifty cents ($66.50) per acre the following described lands in Porter County in the State of Indiana, to wit: * * * , under and upon the following conditions, to wit: That the said John Aylesworth, party of the first part, should contract for and- purchase the said above described land for and at the said price of sixty-six dollars and fifty cents ($66.50) per acre. That a certain sum of money should be paid therefor in cash. That the said John Aylesworth, party of the first part, should execute his certain notes, secured by a mortgage upon the above described land, for the deferred payments thereon.
And it was further agreed by and between the parties hereto that there should be a partnership between each and all of the parties hereto, in and for the purchase of said land only, at the price hereinabove stated, and that said partnership should be and continue, under and upon the following conditions, to wit: That, the said Clarence Aylesworth, Carrie Casbon, Clyde*83 Aylesworth and Glen Aylesworth should make to the said John Aylesworth payments in cash from time to time, such sums as they might accumulate and see fit to pay toward extinguishing the indebtedness and make payment for said land; and that each of the said parties, Clarence Aylesworth, Clyde Aylesworth, Carrie Casbon and Glen Aylesworth, should be and become part owners of the said land at the said price above named, in proportion to the amount so paid upon said land by each of said parties herein named, and that in case of a dissolution of the partnership so established, or in case that one, either or all of said parties neglect or refuse payment of any sum whatever upon or toward the purchase price of said land, then in so far as that said party is concerned this partnership shall be null and void; but if each, any or all of the said parties, Clarence Aylesworth, Clyde Aylesworth Carrie Casbon or Glen Aylesworth, shall make payments from time to time, as hereinbefore stated and agreed upon, said payment shall be endorsed upon this contract and the amount of said payment shall be the value held by said partner in and to the fee simple of the real estate hereinabove mentioned. And it is mutually agreed by all the parties hereto that in the event of the sale of any of the lands hereinabove described, that the sale price, if more, shall be taken into consideration in the final settlement and adjustment of partnership, and if the sale price be less, the sale price shall be taken into consideration in the adjustment of said partnership and deduction made therefor accordingly. It is further agreed by the parties hereto that this contract and agreement shall be in full force and effect from and after the date of the purchase by the said John Aylesworth, party of the first part, from Labon Funk, the former owner of said lands, for the reason that there was a verbal contract existing between the parties hereto from and after the date of the pur*84 chase of said lands, down to and including the 12th day of May, 1911. Witness our hands and seals this 12th day of May, 1911. John Aylesworth, Clarence Aylesworth, Carrie Casbon, Glen Aylesworth, Clyde Aylesworth.”
After the execution of the written contract, decedent endorsed on it the payments theretofore made by Clyde, aggregating $3,000. In October, 1911,-Clyde made a further payment to his father of $1,000, for application on the purchase price of the land. This payment was likewise endorsed on the contract. Decedent died intestate in January, 1912, leaving surviving his widow and said four children as his only heirs. During his life no child, except Clyde (who paid in all $4,000), made any payment under the terms of the contract. At his death decedent owed no debts except $4,600, representing the balance due on the purchase price of the land. He left a personal estate sufficient to pay the widow’s $500, statutory allowance and expenses of administration, and owned 308 acres of other land. In June, 1912, the son Clarence died intestate and solvent, leaving as his only heirs appellees Grace Aylesworth, his widow, and Carroll, Howard, Marguerite and Ida Aylesworth, minor children. In December, 1912, said Clyde paid to the vendor of the land the sum of $600 representing the balance due on one of the $1,000 purchase-money notes. In May, 1913, appellee, Grace Aylesworth, over the objection of Eliza Aylesworth, administratrix, paid to the holder of two of the $1,000 purchase-money notes the sum of $2,056, representing the principal and unpaid interest of the two notes and took an assignment thereof to herself and children. After-wards in June, 1913, appellant, Clyde Aylesworth, paid the holder of the two remaining $1,000 purchase-money notes the sum of $2,000 and also
The court concluded (1) that John Aylesworth took and held the title to the land in trust .for his said four children; (2) that Clyde Aylesworth owns the undivided 66/86 of the land in fee simple as tenant in common with the heirs of Clarence Aylesworth, deceased, who own the remaining interest; (3) that the notes, of the face value of $4,600, taken up by Clyde and Grace, after decedent’s death, do not represent any indebtedness against decedent’s estate and should be cancelled; (4) that the petition to sell should be denied.
In a lengthy brief, evincing painstaking research, the counsel for appellees has presented for our consideration many propositions and numerous, authorities in support thereof. He particularly invokes the doctrine of especial favor shown family settlements by courts of equity. Harvey v. Hand (1911),48 Ind. App. 392, 95 N. E. 1020. In view of our interpretation of the contract it is unnecessary to consider the many equitable doctrines presented by appellees’ learned brief, for, as we view the question, Clarence Aylesworth, through whom appellees claim, was never, in John Aylesworth’s lifetime, invested with any beneficial interest in the land. Judgment reversed, with instructions to restate the conclusions of law and for further proceedings not inconsistent with this opinion.
Note. — Reported in 109 N. E. 750. As to partnership as distinguished from joint adventure, see 115 Am. St. 407. See, also, under (1) 39 Cyc 113, 114, (2) 30 Cyc 360-363.