155 Ind. 316 | Ind. | 1900
— Snit by appellee for an accounting and to have certain deeds declared a mortgage.
The errors assigned all rest on the third paragraph of the complaint. The substantive facts alleged in this paragraph follow: The appellee, being the owner of 1,300 acres of described land in Lake county, sold and conveyed it to one Krech for $242,000. Krech paid a part of the purchase price, assumed to pay certain mortgages placed thereon by appellee and held by the Eirst National Bank of Crown Point, and executed his notes and mortgage back to appellee for the residue. Afterward appellee borrowed more money from the bank, and secured it by assigning to the
As against tbe other appellants, it is alleged as to'Tbakaberry that be claims some interest in tbe land, but, if be has any, it is subject to tbe rights of appellee; and as to Adelaide Brown, that slie is tbe wife of Harry Spencer Brown, and has no interest in tbe land "except such as may spring from her marital relation. Harry Spencer Brown has bad possession of and collected tbe rents of tbe lands for three years, and such rents amount to tbe sum of $2,500 per annum. Prayer for an accounting, and that tbe deeds from tbe bank and appellee to appellant Harry Spencer Brown be adjudged a mortgage for tbe security of tbe amount due tbe appellant Brown, and that appellee be declared tbe owner of said lands subject to said mortgage, etc.
Tbe errors assigned call in question tbe sufficiency of tbe above facts to constitute a cause of action against either of tbe appellants. Ho reason is suggested by counsel why tbe complaint is not sufficient as against Thakaberry, but eight reasons are urged on behalf of Harry Spencer Brown and Adelaide Brown why tbe complaint is not good as to them:
We do not perceive the pertinency of these objections — ■ except fhe fourth and eighth — to the question before us. Neither the First National Bank of Crown Point nor any of its officers are parties to this action. No complaint is lodged against either. This complaint proceeds upon the theory that the appellant Harry Spencer Brown has violated his contract with the appellee, to her injury. It is charged therein that the appellant Brown loaned appellee $48,000 with which to discharge certain indebtedness to the bank, upon an agreement that appellee should cause the 1,300 acres of land to be conveyed to him by deeds absolute upon their face, but which were to be accepted and held by him only as a security for the repayment of the loan. Appellant’s demurrer admits these averments to be true, and further admits that, in violation of his said agreement, he now claims that said deeds were not a security, but absolute conveyances, and that he is, in virtue thereof, the absolute owner in fee of the lands. Thus situated, appellant has no right to excuse his wrong upon the ground that he had
Appellant’s fourth objection to the complaint is also without foundation. The law is firmly settled in this State that wherever real estate is transferred as the mere security
The cases of Kemp v. Mitchell, 36 Ind. 249, and Dawson v. Overmyer, 141 Ind. 438, relied upon by appellant in support of his eighth proposition, were actions to redeem, and, though they contain a correct statement of the law, can not be accepted as authority in this case. This is hot an action to redeem, but for. an accounting, and to have the right to redeem declared upon disputed written contracts. The prayer is that the appellant Brown be required to account for the rents received by him during the three years that he held the land, and that the sum be credited upon the amount due him from the appellee, and that the deeds to appellant be declared to be a mortgage only to secure said indebtedness, and that appellee be given a reasonable time to redeem, or that, upon an ascertainment of the amount due appellant, he be permitted to proceed to forclose his mortgage as other mortgages are foreclosed.
The rule applicable in actions to redeem, that requires the plaintiff to tender the amount due, or aver his ability and readiness to perform the decree upon his part, does not apply to a case which has for its object only the construction of a contract, and the determination thereunder of the rights of the parties. Under the averments of the complaint that the appellant denies that appellee has any interest in the land, or the rents arising therefrom, and that he claims and asserts that his deeds thereto are absolute conveyances, and not a mortgage, and that he is .the absolute owner in fee of the land, we think it is within the equity powers of the court to entertain the action for a statement of account between the parties, and to declare the legal effect of the disputed instruments. We hold, therefore, that the complaint is sufficient.
The court gave the appellant judgment against the appellee for the amount of principal and interest due from appellee, but disallowed the bonus of $10,000 stipulated for. And this appellant claims was error. The court form’d the transaction to be a simple loan of money, and, therefore, the agreement to pay the lump sum of $10,000, over and above the legal rate of interest, for the loan, is clearly usurious and void, under §7046 Burns 1894. There is no merit in the contention that it was the consideration promised for the right to redeem. This right is perfect in appel
The court taxed to appellee all the costs accrued in the action up to the filing of the answer, and the balance to the appellant; and appellant complains that his motion to tax it all to the appellee was overruled. The motion was properly overruled. If appellant had disclaimed any interest in the land beyond holding it as security for the money he had loaned appellee, the costs would have ended with the answer, and been all rightfully taxable to the appellee. But he denied that he so. held the land, and claimed to be the absolute owner, and the issue he thus tendered was tried and decided against him. That the court should require him to pay only the costs of that issue is quite as fair to him as he should ask. Numerous questions are reserved upon the admission and exclusion of evidence. The alleged erroneous character of the action of the court with respect to these questions is merely suggested by counsel, and, after considering them in detail, so far as they relate to material matters, we fail to perceive how the appellant can be injured by the rulings. We find no error in the record. Judgment affirmed.