77 Ind. App. 171 | Ind. Ct. App. | 1921
On February 26, 1918, Tecumseh S. McNaught filed his complaint in the Owen Circuit Court, against appellant Thomas E. McNaught and others, seeking to quiet his title to a certain described tract of land, situate in said county, and containing thirty-three acres. Such proceedings were thereafter had in said cause, that the venue was changed to the Morgan Circuit Court. This complaint was answered by a general denial.
- In September, 1919, the appellants filed in said court their amended cross-complaint naming as defendants therein, Tecumseh S. McNaught, individually, and'as executor of the will of Thomas A. McNaught, deceased.
To this cross-complaint demurrers were interposed by the appellee as executor of the will of Thomas A. McNaught, and also in his individual capacity. These demurrers were each sustained and the appellants electing to abide by said ruling, suffered judgment to be rendered against them on their said cross-complaint.
On the issues formed by the complaint and answer thereto, a trial was had before the court which resulted in a finding and decree in favor of appellee Tecumseh S. McNaught and quieting his title in and to said lands. The appellant’s motion for a new trial having been overruled they prosecute this appeal and rely for reversal upon the alleged errors of the court in: (a) The sus
In said cross-complaint it was, among other things, alleged that on January 29, 1897, one Thomas A. Me-Naught was the owner of certain lands, particularly describing them, and including the lands described in the complaint herein; that on said date he conveyed said lands to one Ascenith J. MeNaught, since deceased, and who was the wife of appellant, Thomas E. MeNaught, in which deed of conveyance the grantor reserved to himself the possession, rents and profits of said lands during his life. It was further averred that on the same date, and as a part of the same transaction, an agreement was entered into between said grantor and the grantee in said deed and her husband, whereby said grantor gave to said grantee and her husband, all the rents and profits of said lands not collected and used by him during his lifetime; that the said Thomas A. Me-Naught in violation of his-covenants and agreements, failed and refused to pay to said Ascenith J. MeNaught and said Thomas E. MeNaught, or either of them, the rents and profits of a certain portion of said real estate, to wit: (here the real estate described in plaintiff’s complaint is described).
It is also averred that said Thomas A. MeNaught collected of rents from said property about $10,000, which he wrongfully converted to his own use, which said sum was over and above for the support and living expenses of said Thomas A. MeNaught; that of the moneys so collected said Thomas A. MeNaught without any consideration therefor, gave and delivered to Tecumseh S. Me-Naught the sum of, to wit: $5,000.
It is further averred: “That it was mutually understood by the parties to said written agreement that the language, ‘the said Thomas A. grants and gives to said
It is further averred that said Thomas A. McNaught departed this life, testate, in Owen county, Indiana, on .March 9, 1919, and that said Tecumseh S. McNaught was executor of his last will.
Copies of said deed and said contract as exhibits “A” and “B” respectively were attached to said complaint as a part thereof. There was a demand for judgment against the estate of Thomas A. McNaught in the sum of $10,000. The cross-complainants also asked that a certain quit-claim deed executed by said Thomas A. McNaught to said Tecumseh S. McNaught on February 7, 1918, to the lands in suit, be set aside and canceled and that said land be declared subject to execution to pay and satisfy said indebtedness; there was also a prayer for general relief.
“Exhibit B,” which is the contract referred to in said cross-complaint, among other things, provided that in consideration of certain undertakings therein set forth to be done by said Ascenith-J. McNaught: “The said Thomas A. grants and gives to said parties of the second part all rents and profits of said land not collected and used by him the said Thomas A. McNaught during his lifetime; and the said parties of the second part, nor either of them shall be liable to the estate of the said
This cannot be allowed. In the absence of fraud or mistake, contracts will be enforced by the courts as the parties have made them. Any other rule would only tend to cause litigation. The “mutual understanding” as to the meaning thereof would in such cases always prove to be, on the trial, a mutual misunderstanding. See Beard v. Lofton (1885), 102 Ind. 408, 2 N. E. 129; Shenk v. Stahl (1905), 35 Ind. App, 493, 74 N. E. 538.
The contract shows on its face that the parties of the second part thereto were to take possession of said demised lands,' as tenants, and the agreement simply provided that at the death of said Thomas A. McNaught, any sum which they might then be owing, as rental for said premises should be forgiven and canceled. It had no reference to rentals collected from any other person or persons. There is no promise in said contract, by Thomas A. McNaught, to pay to the other parties thereto any sum of money whatsoever. It is simply an agreement to forgive any rental debt which might be uncollected, at the time of his death, and nothing more.
Under the issues upon which this cause was tried thr court did not err in Overruling appellant’s motion for a new trial, as there was no error committed in excluding the offered evidence, of which complaint is made.
The judgment is affirmed.