154 Ind. 588 | Ind. | 1900
Action by appellee against appellants to enforce a lien against real estate.
Appellants’ demurrer to' the complaint for want of facts was overruled. Appellants filed separate answers to the complaint. Appellee filed replies to said answers. The demurrers of appellant, Harriet Eorsythe, to two paragraphs of appellee’s reply to said appellant’s answer were overruled. The cause was tried by the court, and a special finding of facts made, and conclusions of law thereon stated in favor of appellee, and, over a motion for a new trial, judgment was rendered against appellants, and the real estate ordered sold to pay the same.
The errors assigned call in question the first conclusion of law, the action of the court in overruling the demurrer to the complaint, in overruling the demurrers of appellant, Harriet Eorsythe, to said paragraphs of the reply, and in overruling the motion for a new trial.
If the first conclusion of law was not erroneous, the court properly overruled the demurrer to the complaint, and the errors, if any, in overruling the demurrers to the paragraphs of reply were harmless.
It appears from the finding of facts that Moses Brandenburg, who was the father of appellee, Samuel E. Brandenburg, one of the appellants, and six other children, died testate, seized in fee simple of the real estate described in appellee’s complaint. Said Moses Brandenburg by his last will, which was duly admitted to probate, gave a
Upon the facts found the court stated as a conclusion of law that appellee is entitled to recover the sum of $906.95, and that said sum is a lien on the land described in the complaint as against all the defendants in said cause, and that it is a paramount lien and claim to that of the appellant Harriet Forsythe by virtue of her deed or otherwise. The court did not err in this conclusion of law.
The substance of the transaction between the executor, Samuel E. Brandenburg, and appellee was that appellee signed and delivered receipts for her legacy of $500 and $260, her share as devisee of the proceeds of the sale of said real estate, in all $760, and thereby released and satisfied her claim for said sum against said executor and the estate, in consideration of which said Brandenburg, the purchaser of said real estate, promised to pay her $760 of the purchase money for said land. When said transaction was completed said Brandenburg was indebted to appellee for said $7 60 of the purchase money, instead of the executor, and the executor and the' estate had thereby paid appellee her legacy of $500, and her share of the proceeds of said land as devisee, amounting to $260. There was a lien on said real estate for said purchase money, and the same vested in her with
It was said in Otis v. Gregory, supra, p. 513: “Equity has regard in such cases, as in others, for the substance, and not for the mere form. If, upon looking through the transaction, it appears that the debt which the party owes is in fact part of the purchase price of land, acquired in the transaction out of which the debt arose, a lien will be declared upon the land in favor of the person to whom such debt is due.”
Mrs. Eorsytlie was not an innocent purchaser, for the reason that her husband, who was acting as her agent in making said negotiations and purchasing said land, received notice of appellee’s claim before the deed was made, and before any part of the purchase money was paid. The real estate was therefore subject to said lien in her hands. Hawes v. Chaille, 129 Ind. 435, 436; Strohm v. Good, 113 Ind. 93; Higgins v. Kendall, 73 Ind. 522.
The fact that the purchaser, under the agreement with appellee, had the option of paying said purchase money by conveying a part of said real estate instead of paying the same in money, does not prevent the enforcement of the lien, neither did the agreement on the part of appellee to receive said real estate in payment of said indebtedness waive said lien. Warvelle on Vendors, 707; 28 Am. & Eng. Ency. of Law, 165, 166; Harvey v. Kelly, 41 Miss. 490, 93 Am. Dec. 267; Deason v. Taylor, 53 Miss. 697, 700; Winters v. Fain, 47 Ark. 493, 1 S. W. 711; Plowman v. Riddle, 14 Ala. 169, 48 Am. Dec. 92,
The evidence, though conflicting on some points, is sufficient to sustain all findings necessary to uphold said conclusion of law.
Judgment affirmed.