25 Ind. App. 695 | Ind. Ct. App. | 1900
—Appellee’s complaint avers that on June 26, 1895, one Cook by his promissory note, a copy of which is made an exhibit, promised to pay appellee $500, July 26, 1898, which is due and unpaid; it is further averred that on the same date appellee and Cook entered into a written contract whereby appellee, in consideration of certain payments and the performance of certain covenants by Cook, agreed to convey to Cook in fee simple certain described lands, Cook agreeing to pay appellee $3,500 as follows: $500 in thirty days from date of contract; $500 July 26, 1896; $500 July 26, 189J; $500 July 26, 1898; $500 July 26, 1899; $500 July 26, 1900; $500 July 26, 1901, evidenced by notes of date of contract; Cook having the privilege to pay at any time the entire amount unpaid, when he should be entitled to a deed; Cook also to pay all taxes, assessments,
The contract between appellee and Cook is novel but it is
Appellant went into possession, under a contract which, if fully performed by it, would result in its ownership of the land. But if it failed to perform the agreement the stipulated payments were to become rent. It is quite true that if a person goes into possession of real estate under a contract to purchase, he does not thereby become the vendor’s tenant so as to become liable for rent in case the contract is rescinded. Hopkins v. Ratliff, 115 Ind. 213. But we know of nothing to prevent the parties from agreeing that, although the contract is originally one of purchase, it may become, under certain conditions therein named, a lease. It is a matter about which the parties might rightfully contract and the contract when made may be enforced.
Appellant, as assignee of the contract, went into possession whereby it might ultimately become the owner of the
The contract and its assignments are made part of the complaint, but the suit is not to recover the sum named in the contract as rent. The theory of the complaint is an action on the note, but as appellant is not liable on the note the demurrer to the complaint should have been sustained.
Judgment reversed.