78 Ind. App. 183 | Ind. Ct. App. | 1921
— Action by appellees against appellant to quiet title to four lots in Indianapolis, with an amended second paragraph of complaint by which appellees sought to have certain contracts of sale canceled of record in the recorder’s office of Marion county, Indiana.
Appellant Lewis G. Miller, hereinafter mentioned as appellant, filed five paragraphs of cross-complaint claiming an interest in the lots and seeking a return of the purchase-money paid before his default and abandonment.
On motion of appellees certain parts of these paragraphs of cross-complaint were stricken out and upon this ruling of the court as hereinafter appears, appellant predicates error.
Appellant Alice A. Miller filed an answer of disclaimer and is therefore not further considered in this appeal.
The cause was put at issue by general denials to the amended second paragraph of complaint and to the cross-complaint. There was a trial by the court with a special finding of facts, the substance of which, so far as here involved, is as follows:
Appellee Sanborn was on May 4, 1915, the owner in fee simple of the real estate here involved which real estate, on said day he, his wife, Grace A. Sanborn, joining, conveyed by a trust deed unto appellee company with full power of sale in it as such trustee. Thereafter, pursuant to the powers vested in it, said trustee, on July 19,1915, contracted with appellant for the sale by it to
On each contract in 1915: July 20, $25; Aug. 19, $25; Sept. 20, $25; Oct. 19, $25; Nov. 19, $25; Dec. 17, $25. In 1916: Jan. 19, $25; Jan. 21, $75; May 1, $50; July 8, $25; July 25, $25; Oct. 17, $25; Dec. 30, $75. In 1917: Apr. 16, $100; May 19, $25; June 21, $25; July 23, $25; Nov. 24, $25; which sums were accepted by said trustee upon said contracts as payments of installments on the purchase price of said real estate. At no time since November 24, 1917, has appellant paid or offered to pay any money to appellees or either of them or to anybody on said contract of purchase. Appellant was more than thirty days delinquent upon payments as follows: ' Oct. 19, 1916, forty-two days over the thirty days delinquency; Nov. 19,1916, eleven days over the thirty days delinquency; Jan. 19, 1917, fifty-seven days over the thirty days delinquency; Feb. 19, 1917, twenty-six days over the thirty days delinquency; Aug. 19,1917, sixty-seven days over the thirty days delinquency; Sept. 19, 1917, thirty-six days over the thirty days delinquency; Oct. 19, 1917, six days over the thirty days delinquency; which payments made as above stated, were received by said trustee, in each separate instance upon each contract, after they had become delinquent said number of days over the thirty days permitted by the
February 16, 1918, appellant was in arrears in his payments on each of said contracts in the sum of $125, and on said date the trustee sent a letter to him by the terms whereof said trustee gave notice that it rescinded said contracts on account of the delinquency in payments, and that said trustee would no longer be bound by said contracts, which letter was received by appellant on or about said day, whereby said trustee rescinded said contracts and took possession of said lots at the time, which rescission was accepted by appellant prior to the commencement of his cross-action herein, and who delivered possession of said real estate to said trustee. Prior to the commencement of his cross-action herein, appellant demanded of each of appellees the repayment of said money he had paid on said contracts, to wit: $2,600, but each refused payment of said sum or. any part thereof, and no part thereof has been repaid or tendered. On said February 16, 1918, appellant was delinquent 120 days in his payments in excess of the thirty days delinquency authorized by the sale contract. Before the commencement of this action said trustee sold and conveyed one of said lots to Harold E. Egan, and thereafter, in order to release the said lot from the contract in regard thereto, appellant executed to said Egan a quitclaim deed to said lot in consideration of the payment by said Egan of the sum of $80 but same was done without prejudice to any of the rights of appellant against appellees under said contracts for the recovery of any sum he might deem himself entitled to against them or either of them.
On December 29, 1917, appellant executed an assignment of all of said contracts to his daughter Alice A. Miller, who in this action has disclaimed any and all
On these facts the court states its conclusions of law that: (1) Appellees are entitled to have the instrument which has been recorded in the recorder’s office of Marion county, canceled; (2) appellant Lewis Miller is not entitled to recover anything as against appellees or either of them upon his cross-complaint; (3) appellees are entitled to recover from Lewis G. Miller appellant their costs; (4) appellees are entitled to quiet their title as against appellants to the real estate described in their complaint.
Appellant complains that the court erred respectively in striking out certain parts of his cross-complaints.
Many authorities are cited to sustain the rule from only one of which we quote, it being the case of Ketcham v. Everston (1816), 13 Johns. (N. Y.) 358, 7 Am. Dec. 384, in which the court says: “It may be asserted, with confidence, that a party who has advanced money, or done an act in part performance of an agreement, and then stops short, and refuses to proceed to the ultimate conclusion of the agreement, the other party being ready and willing to proceed and fulfill all his stipulations, according to the contract, has never- been suffered to recover what has been thus advanced, or done. * * * It would be an alarming doctrine, to hold, that the plaintiffs might violate the contract, and, because they choose to do so, make their own infraction of the agreement the basis of an action for money had and received. Every man who makes a bad bargain, and has advanced money upon it, would have the same right to recover back that the plaintiffs have. The defendant’s subsequent sale of the land does not alter the case; • the plaintiffs have not only abandoned the possession, but have expressly refused to proceed, and renounced
In the case of Krisky v. Bryan (1917), 63 Ind. App. 611, 115 N. E. 70, there was involved the sale of a town lot for $700, $250 cash, and the balance in monthly installments of $25 each. It was stipulated in the contract that should the payments remain unpaid for two
In Glock v. Howard & Wilson Colony Co., supra, a case involving the same question as here, it was held that if it be said that the clause for stipulated damages is void, still the vendor is entitled to retain the money.
The judgment is affirmed.