61 Ind. App. 209 | Ind. Ct. App. | 1916
Appellee recovered a judgment in the court below against the estate of his son in the sum of $855.68. From this judgment an appeal has been prosecuted by appellant, assigning as error the
Briefly tbe theory of appellant’s right to recover as against bis son’s estate, and which was embodied in proper pleadings is tbat subsequent to tbe year 1884, and prior to tbe year of 1891, appellee sold a portion of bis real estate to bis three sons. This be did on account of ill health, being unable to cultivate tbe same, and being desirous of procuring an income therefrom during tbe remainder of bis natural life.
Tbe agreement made with bis sons was tbat as to twenty acres to be conveyed to each of bis sons respectively, there was to be an income of 6 per cent on á named consideration of $800 to be paid by tbe sons each year during tbe remainder of tbe life of appellee. Appellant’s decedent, Patrick H. Elliot, became tbe owner many years before bis death of tbe three tracts of real estate burdened with tbe covenants to pay tbe gross sum of $144 per year; tbat many years elapsed without any payment having been made, so tbat at tbe date of tbe death of Patrick H. Elliot there was due appellee including principal and interest tbe sum of $3,160, and tbe further sum of $75, being tbe purchase price of a horse.
A sister of the decedent testified that she heard her brother, Pat, say on July.7, 1899, in the presence of Mr. Weeks and Mr. Devore that, “We were to-pay 6 per cent on $800”; that the twenty he got of Will and the east forty were to pay 6 per cent on $800 as to each twenty. Mr. Weeks testified that, in July, 1899, the deceased told him that he owed his father some interest, as his father was to receive 6. per cent interest on $800 for each twenty-acre tract as long as he lived, and that the decedent owned the three twenties at that time. Outside the deeds of conveyance there is no further written evidence that-
The execution of the deeds being uneontroverted, and taking into consideration the relation of the parties and all the surrounding circumstances, together with the verbal admissions testified to on the part of the decedent- and the written memorandum, as aforesaid, we can not say that there was no evidence establishing the contract. The nature and character of the cause is such that when it came before the able trial court on the motion for a
Note. — Reported in 111 N. E. 813. As to admissibility of declarations of deceased persons, see, 94 Am. St. 673. As to competency of a coparty of decedent’s representative to testify as to transaction with decedent, see 17 Ann. Cas. 216. See, also, under (1) 38 • Cyc 1748, 1778; (2) 38 Cye 1693; (3) 38 Cyc 1711; (4) 40 Cyc 2330; (5) 4 C. J. 850; 3 Cyc 348.