103 Ind. 23 | Ind. | 1885
The complaint of the appellee,sets forth the’ following contract:
“January 29th,’1879.
“ Memoranda of contract between Solon H. Brown, of the first part, and Elijah C. Brown, of the second part. This is to certify that we, of the first part, did obtain of Elijah C. Brown, of the second part, three thousand dollars, part in a claim against John S. Gray of $2,640, and the remainder in. his own paper, with which we did purchase of the said John S. Gray and others, the following described tract of land in Montgomery county, Indiana, known as the ‘ Folse farm/ and described as follows: The west half of the west half of the southwest quarter of section thirty-five (35), in township nineteen (19) north, range six (6) east; and also the east half of the southeast quarter of section thirty-four (34), in township and range aforesaid, together containing one hundred and twenty acres. The use and control of which we do hereby turn over to the said Elijah C. Brown, of the second part, until sold, and when sold the $3,000 above named and one-half of the advance over, together with the said $3,000 that may be obtained on the sale of said land, we will pay to Elijah C. Brown, of the second part; and, also, we, of the first part, do herein agree to put on said lands two hundred dollars ($200) worth of improvements in clearing, fencing
“ In testimony whereof we do hereunto subscribe our names, respectively the day and year above named.
“ (Signed) . Solon H. Brown.
“Mary J. Brown.
“Elijah C. Brown.”
It is alleged that Solon H. Brown died testate, in January,, 1883, leaving surviving him the appellants as his only heirs;, that prior to his death the testator borrowed of the appelleethe $3,000 mentioned in the written contract, for the purpose-of purchasing the land therein described. It is also alleged that, on the 29th day of January, 1879, Solon H. Brown, becoming dissatisfied with his purchase of the land, on account of his inability to pay the notes which he had executed to secure the $3,000 borrowed of the appellee, executed the written contract. It is also averred that the appellee has performed his part of the contract, and that the testator and Mary J. Brown have failed to perform their part, in that they have not expended $200 in improvements; that the real estate has not been sold. Prayer that the plaintiff be decreed to have an equitable interest in the land; that it be ordered sold, and that the appellee’s claim be paid out of the proceeds of the sale..
The case is a peculiar one, but.we think the facts stated entitle the appellee to relief. The instrument is badly drawn and was evidently prepared by an unskilful person, but it is not meaningless.
A cardinal rule in the construction of contracts is, that they
It is true that no time is fixed for the payment of the three thousand dollars, but this, surely, does not relieve the debtor from his obligation. If a man promises to pay money borrowed of another, the failure to fix a time for payment does not invalidate the contract, for the law supplies the omitted element, and prescribes that payment shall be made within a reasonable time. So, here, the law entered into the agreement and made it the obligation of the debtor to pay the creditor within a reasonable time.
The instrument is not a lease; it has none of the features of a lease except that of possession, and that is a feature not peculiar to leases. The instrument is a mortgage, for it evidences a debt, contains a promise to pay i.t out of the land, and puts the land in the possession of the creditor until payment of the debt. It is not the usual mortgage, perhaps not a complete one, but it is sufficient to vest in the creditor a right to have the land,pledged to him and put into his possession, sold to pay the debt; in short, it is an equitable mortgage. 1 Jones Mortg., section 162. .
What we have said disposes of all the questions in the case, and renders it unnecessary to discuss the rulings on the answers. Judgment affirmed.