46 Ind. App. 440 | Ind. Ct. App. | 1910
Suit by appellants. The court sustained a demurrer to the complaint. Appellants refused to plead further, and appeal to this court.
‘1 This agreement made this February 14, 1898, by and between Minnie Gawthrop and John Gawthrop, her husband, of Van Burén township, Kosciusko county, Indiana, and Yanton O. Foulk, trustee, of Cleveland, Ohio, witnesseth, that said Minnie Gawthrop and John Gawthrop, their heirs, executors and administrators and assigns, for and in consideration of the sum of $65 per acre for each and every acre of the tract or parcel of land hereinafter described, or so much thereof as said Yanton O. Foulk, trustee, his heirs or assigns shall elect to purchase under the terms of this agreement, to be paid as hereinafter set forth, shall on or before August 15, 1898, at the option of said Yanton O. Foulk, trustee, his heirs or assigns, all or any part thereof, as said Yanton O. Foulk, trustee, his heirs or assigns shall elect, of that tract or parcel of land situated in Kosciusko county, Indiana, and described as follows, to wit: * * * That said conveyance shall contain the usual covenants that said premises, at the time of such conveyance, are free and clear of all demands and encumbrances whatsoever, and all other usual and reasonable covenants; that said Yanton O. Foulk, trustee, his heirs or assigns, in consideration thereof, shall well and truly pay or cause to be paid to said Minnie Gawthrop and John Gawthrop, their heirs, executors, or administrators, the aforesaid sum of $-at the time of the execution and delivery of this conveyance; that in ease said Yanton O. Foulk, trustee, his heirs or assigns, shall not well and truly pay, or cause to be paid', to said Minnie Gawthrop and John Gawthrop, their heirs, executors, or administrators, the aforeáaid sum on or before August 15, 1898, then and in that case this agreement shall be null and void as to both parties hereto, and neither of said parties shall in any manner whatsoever be bound thereby; that said Yanton O. Foulk, trustee, his heirs or assigns, shall erect, or cause to be erected, at or near the town of Milford Junction, Indiana, in Yan Burén township, a factory for the manufacture of Portland cement, the capacity of which shall not be less than 50,000 barrels of finished product annually, said .factory to be completed and in operation within a period*442 of eighteen months from the date of the execution and delivery of the conveyance herein provided for; that in cage said factory shall not he completed as herein set forth, said Yanton O. Foulk, trustee, his heirs or assigns shall reconvey the tract or parcel of land herein-before described to said Minnie Gawthrop and John Gawthrop, their heirs or assigns, and upon execution and delivery of such conveyance the said Minnie Gawthrop and John Gawthrop, their heirs or assigns, shall pay, or cause to be paid, to said Yanton O. Foulk, trustee, his heirs or assigns, a sum in lawful money equal to one-half the purchase price of the tract or parcel of land as hereinbefore described, paid by said Yanton O. Foulk, trustee, his heirs or assigns, under the terms of this agreement; that said Minnie Gawthrop and John Gawthrop shall have the right to use for pasturage or other farming purposes such part or parts of the tract of land herein described as may not be in use or be required by said Yanton O. Foulk, trustee, his heirs or assigns, in the process or for the purpose of the manufacture of Portland cement; that said John Gawthrop shall have the right to take off all growing crops and to remove all dmsion fences located on the tract of land herein described; that said Minnie Gawthrop and John Gawthrop shall have the right to build temporary fences for the purpose of retaining his stock in pasture on the within described parcel of land, provided such construction of fences does not in any manner interfere with the taking of the marl from such land or with the manufacture of Portland cement.
Minnie Gawthrop,
John Gawthrop,
Yanton O. Foulk, trustee.”
It is shown by proper averments that appellants have succeeded to the rights of the Gawthrops, and appellee has succeeded to those of Foulk; that the Gawthrops remained in actual and open possession of the premises until the time of their conveyance to appellants, who have since had full possession thereof; that the conveyance by the Gawthrops was made in pursuance of said contract; that the undertaking on the part of Foulk, to erect a factory for the manufacturing of cement, has not been performed; that nothing
' Judgment reversed and cause remanded, with instructions to overrule demurrer.