39 Ind. App. 315 | Ind. Ct. App. | 1905
Appellant was plaintiff below, and brought this suit against appellee, by which he sought to redeem certain real estate sold upon a decree of foreclosure, under a verbal contract with appellee’s ancestor. His complaint was in three paragraphs, to each of which a demurrer for want of facts was addressed. Such demurrer was sustained as to the first paragraph and overruled as to the second and third. Appellee filed an answer in several paragraphs, to which a demurrer .was sustained as to some of them and overruled as to others. To the affirmative paragraphs of answer, which the trial court held good as against the demurrer, appellant replied by way of general denial. Trial by the court resulted in a general finding and decree for appellee. Appellant’s motion for a new trial was overruled. Sustaining the demurrer to the first paragraph of complaint and overruling the motion for a new trial are assigned as errors.
The material averments of the first paragraph of the complaint may be epitomized as follows! That on May 14, 1884, appellant was the owner of certain real estate, which is specifically described, and on that day it was of the value of $10,000; that on said date the Aetna Life Insurance .Company, to whom appellant had theretofore mortgaged the real estate to secure a loan of $3,000, foreclosed the mortgage and obtained a decree of sale to satisfy the judgment rendered thereon in the sum of $3,459.12; that the real estate was duly sold upon the decree by the sheriff on June 14, 1884, and was purchased by the judgment plaintiff for the sum of $3,574.07, and thereupon the sheriff issued to the purchaser a certificate of sale; that on May 23, 1885, the holder of the certificate assigned it to Erancis M. Harned; that on June —, 1885, before the expiration of the year for redemption from said sale, appellant and
It is further alleged that, in pursuance of the modified agreement, the certificate of sale aforesaid was purchased from Harned, for the sole use and benefit of appellant, at and for the sum of $4,660, with the money loaned by Lee to appellant; that, but for said modified agreement and the loan by Lee to appellant and the assignment of the certificate to Lee for the purpose aforesaid, appellant could and would have procured the money to enable him to redeem- said real estate, and he would have redeemed the same before the end of the redemption period of one year, but he relied solely and confidently upon the good faith of Lee that he would carry out said agreement on his part, as he, said Lee, well knew; that thereafter appellant fully paid and satisfied all of the judgments which were liens against said real estate, except the judgment in favor of said insurance company.
It is then averred that if said Lee had held said certificate as he had agreed to do for a period of one year from June 13, 1885, and had not taken a sheriff’s deed thereon, appellant could and would have sold said described real estate for the sum of $10,000, out of which he could and would have paid Lee the full amount of said loan and interest; that, if Lee would have executed to him, or to a purchaser from him, a deed of conveyance for said described real estate, he could and would have sold the same for a sum largely in excess of said loan and interest, to wit, for the sum of $10,000, and out of the same could and would have paid off said loan, all of which said Lee refused to do, and at no time thereafter would said Lee receive from appellant, or any other person for him, the amount of said loan with interest, nor upon such payment
The second paragraph of the complaint sets out substantially the same facts, except that it is averred that, by the terms of the agreement, Lee was to furnish the money, purchase the certificate of sale and extend the time to redeem for one year from June 14, 1885. The third paragraph is in all essential respects like the second, except it is averred that under the contract between appellant and Lee the time for redemption was extended to a period of five years from June 14, 1885.
Decree affirmed.