55 Ind. App. 492 | Ind. Ct. App. | 1914
Appellees instituted this suit to quiet their title to certain real estate described in the complaint. The adult defendants filed a joint answer in general denial and also a pleading designated as a second paragraph of answer and the guardian ad litem filed similar answers on behalf of the infant defendants. The appellees demurred to the second paragraph of answer filed by the guardian ad litem and also to the second paragraph of answer filed by the adult defendants. Both of these demurrers were sustained. The cause was tried by the court upon the issues tendered by the complaint and closed by the general denial, and the finding and judgment were in favor of appellees, quieting their title as prayed.
“Memorandum of agreement made this 30th day of May, 1878, by and between Henry Drebing and Gustavus Drebing, both of Laporte, witnesseth: That Henry Drebing hereby agrees to sell and reconvey to Gustavus Drebing, the twenty foot and eighteen inch of the middle part of lot 128 O. S. Laporte, Indiana, this day conveyed by warranty deed by the said Gustavus Drebing to the said Henry Drebing. This sale and reconveyance to be made at any time when the said Gustavus Drebing shall pay to said Henry Drebing the amount of*496 certain notes and obligations held by the said Henry Drebing vs Gustavus Drebing, and upon the payment of whatsoever mortgages there are now upon said premises and which the said Henry Drebing has assumed and agreed to pay. Witness our hands and seals this 30th day of June, 1878. Signed, Henry Drebing, Gustavus Drebing.”
The judgment of the trial court is reversed with direction to overrule the demurrers filed by plaintiffs to the second paragraph of answer of the guardian ad litem and also to the second paragraph of answer of the adult defendants, and for further proceedings not inconsistent with this opinion.
Note.—Reported in 104 N. E. 46. As to what is an equitable mortgage, see 4 Am. St. 696. See, also, under (1) 31 Cyc. 320; (2) 31 Cyc. 46, 225, 226; (3) 3 Cyc. 291; (4) 32 Cyc. 1361; (5) 27 Cyc. 1032; (6) 25 Cyc. 1401.