Baldwin v. Siddons , 46 Ind. App. 313 ( 1910 )

Hadley, J.

Appellants brought this suit against appellees to declare and foreclose a vendor’s lien upon certain real estate in Grant county. It is averred in the complaint that on August 3, 1897, Jesse D. Wright was the owner in fee simple of said real estate, and that on said date he executed to appellants a title bond, wherein he agreed to convey said real estate to appellants upon their making the payments provided for in said bond; that appellants paid, as part of the purchase price of said real estate, $50, and gave their notes for the balance in the sum of $450, and that appellants then took possession of said land, occupied it and paid the taxes on it until November 2, 1900; that some time prior to November 2, appellees Siddons and Siddons entered into an agreement with appellants, whereby they were to pay to appellants the sum of $2,000 for said land, $500 of which, or an amount sufficient to satisfy the claim-of Wright, was to be paid at once to Wright, for the purpose of fulfilling the terms of the bond and procuring a deed from said Wright, the remainder of said sum to be paid when an ice plant, to be erected by said appellees' on said land, was completed and in operation; that at the same time it was agreed by appellants that they would give to appellees the right to use a flowing well belonging to appellants, located on an adjoining tract of ground; that for this right appellees were to pay $500; that, in pursuance of this agreement, which was oral, appellants assigned their title bond to appellees, and also orally informed Wright of said agreement, and procured said Wright and wife to execute and deliver a deed conveying said tract to appellees Siddons and Siddons, said Siddons and Siddons paying the sum of $506 to said Wright, as agreed upon; that thereupon said Siddons and Siddons took possession of said land and still hold it;- that said ice factory was completed and in operation June 1, 1901, and thereafter appellants frequently demanded payment of the remainder of said purchase price for said land, which payment had been refused. Prayer for judgment for balance due and for the foreclosure of a vendor’s lien.

1. The title bond of Wright to appellants contained the provision that upon the full payment of said purchase money with interest, as it should fall due, and the performanee of all their agreements in said instrument, said Wright would convey, by warranty deed, said real, estate to appellants. It also provided that in the payments time was the essence of the contract, and the failure to pay any instalment with interest at or before the time it fell due, or to perform any other undertaking within thirty days after it became due, should, at the election of said Wright, forfeit said contract and release said Wright from any and all obligations growing out of the contract, and all payments made by appellants for improvements should be forfeited and held by said Wright as liquidated damages. There was ample evidence adduced by appellants to sustain all of the averments of the complaint. It was also shown by undisputed evidence that appellants were in default in two of their payments of principal and interest of the instalments under said bond, but it was also shown by undisputed evidence and by the testimony of Wright himself that he had never exercised his election to forfeit said bond, but, on the contrary, had received interest thereon after default, and was at all times, even after default, ready and willing to comply with its terms upon the receipt of the money therein provided for, and had made the deed to appellees lipón the request of appellants. Appellees insist that, under this state of facts, appellants had forfeited their rights under the bond, and had no enforceable interest in the land and therefore nothing to sell, and hence have no right to recover purchase money therefor. We cannot sustain this contention of appellee. Appellants were in undisputed possession of the land, and the forfeiture described in the bond was at the election of Wright, and so long as he waived or refused to exercise this right appellants could require the performance of the stipulation of the bond upon compliance, or tender of compliance, with its terms. 29 Am. and Eng. Ency. Law (2d ed.) 682-685; Spath v. Hankins (1876), 55 Ind. 155; Delaney v. Shipp (1905), 34 Ind. App. 456; Bellamy v. Ragsdale (1853), 14 B. Mon. (Ky.) 364; Cook v. Wardens, etc. (1876), 67 N. Y. 594; Robinson v. Trufant (1893), 97 Mich. 410, 56 N. W. 769; Iglehart v. Gibson (1870), 56 Ill. 81; Baker v. Bishop Hill Colony (1867), 45 Ill. 264.

2. The interest thus held by appellants was the subject of sale, and under the averments of the complaint they were entitled to a vendor’s lien to enforce payment of the purchase price therefor. Brumfield v. Palmer (1844), 7 Blackf. 227; Barrett v. Lewis (1886), 106 Ind. 120; Smith v. Mills (1896), 145 Ind. 334; Dwenger v. Branigan (1884), 95 Ind. 221; Fleece v. O’Rear (1882), 83 Ind. 200.

3. Upon the trial, appellees, in defense, sought to prove that. they purchased the land in question from Wright for the sum of $506, under an agreement with Lewis J. Baldwin, son of appellants, whereby said Lewis agreed to convey said land, said well and certain personal property consisting of horses, wagons, tools, etc., together with $1,000 in money, in consideration of thirty shares of the capital stock of appellee company. It was conceded by appellees that all of these negotiations were had with Lewis J. Baldwin in the absence of appellants; that Lewis J. Baldwin was unable to pay the claim of Wright, and at his request appellees paid said sum of $506 and took the deed thereto, but never gave Lewis J. Baldwin any stock therefor. It is insisted by appellants that the testimony of conversations introduced to show this contract with Lewis J. Baldwin was inadmissible, for the reason that it was not shown that said Lewis J. Baldwin was authorized by appellants to make any such contract or representations, or that they had any knowledge that such contract or representations had been entered into or made. We have read carefully the record of the evidence, and from it we must sustain the contention of appellants in this regard. We find no direct evidence of such authority, or any evidence from which it might reasonably be inferred that Lewis J. Baldwin was authorized by appellants either to act for them or to bind them in any way, or that appellees were justified in believing that he had such authority. This being true, the evidence was wholly incompetent, and should not have been admitted.

4. The position of appellees Siddons and Siddons does not appeal to the conscience of a court of equity. It is perfectly clear that they had knowledge of the interest of appellants in said land before they procured the deed from Wright. The evidence is undisputed that they knew that appellants were in possession of the land, and had been for some time; that they claimed to own it and had a title bond for it. They also knew, under their own statements, that appellants were getting nothing for their interest. They do not claim that they issued any stock to Lewis J. Baldwin for it, nor that they paid more than $506 for the land, which the undisputed evidence shows was reasonably worth $2,000. They seek to avoid payment upon technical legal grounds. Standing thus, they should be held to a strict proof of their rights.

5. Appellants insist that they were entitled to recover on the theory of quantum meruit. It is apparent from the record that no such theory was advanced in the court below, appellants specifically disowning any such theory. It therefore cannot be made to avail them in this court. West v. State, ex rel. (1907), 168 Ind. 77.

•Judgment reversed with instructions to grant a new trial, and other proceedings not inconsistent with this opinion.