161 Ind. 484 | Ind. | 1903
— This action was brought by appellee James Ewing against appellant for an accounting and dissolution of partnership, and to quiet title to certain real estate in the partnership which was held in the name of appellant and claimed by him to be his individual property, and for the appointment’of a receiver to dispose of the property of the firm, collect claims, and pay its debts. A trial of the cause by the court resulted in a special finding, conclusion of law, and judgment against appellant, and the appointment of a receiver to take charge of and sell the' partnership property, collect the claims due said firm, and pay its debts. Said special finding was made, conclusion of law stated, and final judgment rendered November 25, 1901. On the same day the receiver filed his bond and entered upon the discharge of his duties.
It appears from the record that several tracts of real estate in Huntington county, Indiana, which appellant claimed to own, were adjudged by the court to be the property of the firm, and the receiver was ordered by the court in said judgment to sell the same and apply the proceeds to the payment of the. debts of said firm, and that, until said real estate was sold, said receiver was to collect the rents and profits thereof. It is alleged in said verified answer that on the day said final judgment was rendered the parties to this cause entered into a written agreement under which appellant’s attorney was to collect the rents for said real estate from that date until May 1, 1902, and that in consideration thereof appellant surrendered any claim to collect rent thereafter, and that rents amounting to $108.97 were received by appellant’s attorney under said -agreement. By virtue of the judgment the receiver was entitled to receive the rent of said property until sold. Under the agreement, however, appellant was given the rent until May 1, 1902, after which date appellant surrendered all claim thereto. By said contract, appellant, in effect agreed that die rights of the parties to said judgment should be determined thereby, except as changed by said agreement. Having recognized said judgment by said contract, and having obtained the consideration therefor, appellant is estopped from asking its reversal for alleged error. Said agreement and the receipt of the rent must bo treated as a release or waiver of error, if any. Stauffer v. Salimonie Mining, etc., Co., 147 Ind. 71, and cases cited; Manlove v. State, 153 Ind. 80, and cases cited; McGrew v. Grayston, 144 Ind. 165, 167, and authorities cited; Glass-
The motion to dismiss the appeal is therefore sustained, and appeal dimissod.
