32 Ind. App. 540 | Ind. Ct. App. | 1904
Action by appellee to foreclose a mortgage on a lot in Indianapolis, executed to it by John P. Leyen
The facts found, so far as necessary to a determination of the issue stated, are as follows: Prior to July 12, 1897, appellant Olaypool was the owner of lot 200 in Morton Place in Indianapolis, it being the lot described by said mortgages. On that day he conveyed it to Leyendecker, by ■warranty deed, in consideration of $1,600, $450 of which was paid in cash, and promissory notes secured by the mortgage referred to in .the complaint wrere given for the residue. This mortgage was recorded within forty-five days after its execution, and said notes were, when the suit was begun, all due and unpaid. There was an understanding at the time of the transaction, between the parties thereto, that if the mortgagor should desire to build on the lot, the mortgagee would waive the priority of his mortgage in favor of a second mortgage executed by Leyendecker to one who would lend him money with which to build. Pursuant to this agreement, Olaypool did on October 27, 1897, execute a written waiver to appellee, which instrument was of the following tenor: “This indenture witnessetli, that whereas I hold a mortgage for $1,150, secured on lot No. 200, in Morton Place, an addition to the city of Indianapolis, Indiana, dated August 16, 1897, recorded in Record Book 333, on page 272, of the records of Marion county, and executed by John P. Leyendecker, and whereas said
Leyendecker had previously made an, agreement with appellee by which it was to loan him $3,000, to be secured by a mortgage on said lot; the loan not to be añade until Claypool should exeeaate a waiver of his prior mortgage. After the executioaa of such waiver, as aforesaid, appellee did loaai him $3,000. A house was in process of constante
On April 27, 1898, the coupon interest note payable to appellee became due, and was not paid, and by reason of such default the entire debt to it became due. It served notice upon Claypool, and was notified by him to foreclose its mortgage; he, however, denying its priority. There is due appellee the principal sum, interest, and attorneys’ fees, $5,078.15, including delinquent taxes and assessments paid, and the amounts due for labor and material, and secured by lien, as aforesaid. Exclusive of the two latter amounts there is due to it $4,367. The amount due on the mortgage to Claypool is $1,628.76.
The conclusions of law subordinated Claypool’s mortgage to the lien of appellee’s mortgage, and the amounts paid by it for the protection of its security. The correctness of the conclusions depends upon the terms and construction of the instrument above set out. Appellant’s position is that the waiver was conditional upon the house being free from liens and the waiver therefore is inopera
“The word ‘condition’ is not necessary to the creation ,of a condition. Any words that convey the proper meaning will create a condition.” Stilwell v. Knapper, 69 Ind. 558, 570, 35 Am. Rep. 240; 8 Am. & Eng. Ency. Law (2d ed.), 60; 2 Parsons, Contracts, 526.
The terms used must be construed in the light of established rules of construction. Eo language will be held to import a condition which does not expressly and clearly indicate that stick was the intention of the parties. Forfeitures are odious, and conditions are not favored in law. Phenix Ins. Co. v. Lorenz, 7 Ind. App. 266; Halstead v. Jessup, 150 Ind. 85; Ellis v. Elkhart Car Works, 97 Ind. 247, 252.
In doubtful cases the words of an instrument will be taken most strongly against the party using them. Wilson v. Carrico, 140 Ind. 533-536, 49 Am. St. 213; Davenport
Counsel for appellant argue that inasmuch as the instrument recites that the -waiver is made'in consideration of the performance of certain acts, that it is therefore ineffective unless such acts are performed. This contention implies that the undertakings of the parties are dependent.
Where a contract consists of dependent promises, the failure to perform by one party excuses the failure to perform by the other; but where the promises are independent the failure of one party to perform does not excuse a failure to perform upon the part of the other, but confers upon him a right of action for damages. McAlister v. Howell, 42 Ind. 15, 22, 23; Keller v. Reynolds, 12 Ind. App. 383; Knight v. New England, etc., Co., 2 Cush. 271-286.
Where the mutual promises which constitute a contract are not to be performed simultaneously, but where the acts to be performed by one party must or may precede those to be performed by the other, the promises are independent, and not dependent. Mountjoy v. Mullikin, 16 Ind. 226; Watson v. Deeds, 3 Ind. App. 75; Wile v. Rochester Improv. Co., 24 Ind. App. 422.
The intention of the mortgagor and appellant Claypool was to induce some one to loan the former money with which to build a house upon land owned by him, and in the; improvement of which the latter was interested. It can hardly be said that the insurance of the house, not yet built, or the payment of interest' upon a loan not yet made,
An opinion was filed in this case on February 2, and the judgment on that day was affirmed. Whether or not the sum of $188.93 retained by. appellee, as heretofore set out, was included in the finding of the amount due, was at that time left to inference by appellants and not referred to by appellee. In the argument on petition for rehearing, appellant showed by reference to the record that such sum was so included. Desiring that the result be as devoid of severity to either party as the circumstances permit, a rehearing was granted, and the point is treated as presented in the,original brief. The appellant’s right to priority exists only to the extent that its money was used in the construction of the house. The sum of $188.93, as aforesaid, was not so used. Such sum, therefore, ought not to have been included.
Judgment reversed, and cause remanded, with instructions to state the twenty-first conclusion of law in accordance herewith, and for further proceedings.