184 Ind. 623 | Ind. | 1916
This- was an action to foreclose a mortgage executed by appellee to appellant. The trial resulted in a judgment for appellant for the sum of $375 and a deeree of foreclosure of said mortgage. ' The court also ordered a reconveyance of a certain ten acres of real estate out of which this controversy arose, to appellee Eliza J. Drake. The court trying the case rendered special findings of fact and stated conclusions of law thereon. Appellant questions certain rulings of the court as erroneous, and appellee, Eliza J. Drake, assigns cross errors, which challenge the sufficiency of the complaint. As the findings present every fact essential to a full understanding of the matters in issue we
The findings of fact are as follows: “(1) On the 31st day of October, A.D., 1892, the defendant, Eliza J. Drake, Lulu Drake and Cecil Drake were the owners of the south half of the south half of the northwest quarter of the southwest quarter of section eight (8) in township fourteen (14) north in range six (6) east, containing ten (10) acres, more or less. The said Eliza J. Drake owning a life estate therein, and said Lulu Drake and Cecil Drake owning the fee simple in remainder. (2) On said day the said Eliza J. Drake, bargained and sold said real estate to the plaintiff, William H. Russell, for the price and sum of Four Hundred Dollars, but in paying the consideration for said purchase, the said Russell paid to Eliza J. Drake the sum of Three Hundred and Seventy-five Dollars in cash, and agreed that she might harvest the then growing crops, upon said real estate in the payment of the residue. (3) At said time said Lulu Drake and Cecil Drake were the only children of the defendant Eliza J. Drake, and were at said time under the age-of twenty-one years. (4) That subsequently, said Lulu Drake intermarried with one Frank Shoemaker and the said Cecil Drake intermarried with his present wife, Beulah Drake. That Lulu Shoemaker arrived at the age of twenty-one years on the 8th day of August, 1904, and Cecil Drake arrived at the age of twenty-one years on the 3rd day of April, 1910. That said Eliza J. Drake is now past forty-eight years of age. On the 31st day of October, 1892, at the time of the purchase of said real estate, by the plaintiff, William H. Russell, and the payment of said purchase money to said Eliza J. Drake, the said Eliza J. Drake, intending to convey and did con
The seventh and eighth finding of fact are in substance that demand was made of Eliza J. Drake, her
“(9) That at the time the said Eliza J. Drake and David R. Drake, her husband, executed to said plaintiff, William H. Russell, the said deed conveying him the said ten-acre tract of land, they bargained, sold and undertook and agreed to convey to him the full entire fee-simple title and it was no part of the said agreement that the life estate of Eliza J. Drake was only to be conveyed to plaintiff; That said defendants have never secured the execution of a deed by their children nor have they refunded to the plaintiff the said $375, but have expressed a Willingness to refund the amount upon the reconveyance to the said Eliza J. Drake the said ten-acre tract of land which the. plaintiff refused so to do. (10) That the said Lulu Shoemaker, and the said Cecil Drake were at said time of the execution of said mortgage and contract and continuous unto this time and now are the only children of said Eliza J. Drake and are still the owners in fee in said ten-acre tract and were at the time of the bringing of this action each of the full age of twenty-one years and capable of executing said deed. (11) The court further finds for the plaintiff, William H. Russell, as against the defendants Eliza J. Drake and David R. Drake upon' their first and second paragraph of cross-complaint; and finds for the defendant Eliza J. Drake.upon her third paragraph of cross-complaint, that at the time of the execution of the deed of conveyance, to wit: October 21st, 1892, the said plaintiff did not contract to purchase the life estate of said defendant, Eliza J. Drake, nor did plaintiff intend to purchase the same, that said Eliza J. Drake is entitled to a reconveyance of said real estate, to wit: South half of the south half of
The court upon the foregoing facts stated its conclusions of law as follows: “(1) Upon the foregoing facts the court finds for the plaintiff, William H. Russell, as against the defendant, Eliza J: Drake, and David R. Drake,, and that the material allegations of the complaint are proven and true. (2) And the court further finds that the said sum of $375 is now due and unpaid and owing to the said plaintiff, William H. Russell, and that the same is a lien upon the following described real estate situated in Shelby County, Indiana, to wit: The southwest | of the southeast J of section 8, in township 14 north in range 6 east, containing 40 acres, more or less. The court finds that the plaintiff should recover from the defendants, Eliza J. Drake and David R. Drake, the sum of $375, and that said real estate be sold upon a decree of this court to pay and satisfy said sum. (3) And the court further finds that upon defendant, Eliza J. Drake’s cross-complaint she is entitled to a reconveyance from said William H. Russell to said Eliza J. Drake of the following real estate, to wit: The south half of the south half of the northwest | of the southwest | of section 8, in township 14 north in range 6 east, containing ten acres.”
Note. — Reported in 111 N. E. 186. As to elementary principles governing rights on breach of contract, see 33 Am. St. 791. See, also, under (1) 39 Cyc 2000, 2069; (2) 16 Cyc 134; (3) 16 Cyc 140.