The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-03-12
THE COURT RECORD.
Supreme court Occasions.

Hon. j A. 5. Mitchell. chief Justice.
1923 James Fl Turpie ct al vs.. Hugh Lowe.
White O. 9. Reversed. Collars, J.-Briefy
stated 1t is averred in appellants complaint that
they were indebted appellee, that certain real
estate In Indiana and Ohio was greatly incum-
bered; that they conveyed the same TO appellee
under verbal agreement that the latter would
pay of the mount ORANGES and certain other
debts owing by appellants; taat when this was
done, the amount due appellee was TO be ascer-
tain@d and appellants were to execute their
note TO him for the same, due in one year, with
per cent interest; thst appellee was to make
sale OF the real estate at his own discretion. and
out OF the proceeds of such sales TO pay himself
the amount of appellants present Indebtedness
to him. and also the amount to be advanced by
him In dlscnarglng such membranes and debts,
together with costs, etc. and to pay the surplus
and to reconvey the residue of the real estate to
the appellants. IL was further agreed that
should said Lowe at any time after said agree
ment and before the full execution thereof de-
sire elect to retain any or all Of said real es-
tate as his own in fee that he should have the
right 20 do so by paying the fair cash value
thereof in satisfaction of any part OF said agree
ment 1t is further averred that appellee, in
about four days after the contract was made.
notified appellants that he would not carry out
the trust and refused to pay said lncumbrances
and debts. Damages to the amount of ths debts
and membranes which the appellee was to
pay. and the value of the real estate
less the amount of such debts and in-
cnmbrances, are sought to be recovered.
The complaint further charges that supple
mental agreement had been made IN regard to
for the consideration that Lowe should paw of
all the liens and membranes in OHIO. aRgre-
eating 500. 900. he was to receive an undivided
half Of the Ohio real estate and that he should
relaase from the trust an undivided half of sucn
real estate, and that certain lots in Colum bus,
o. should be conveyed by Lowe clear of incum-
5raDces to the wives of plaintiffs. It was fur
Their alleged that Lowe had failed TO execute the
trust. The deeds absolute conveyances.
Held That the deeds from appellants to Lows
with the accompanying parcl agreement is clear
ly mortgage. Held. also, that the part of the
agreement thac Lowe was TO have the land st q
fair cash value did not have she effect of cut
ting OF the right of redemption and thus change
the character of the deed from a mortgage.
Held, also, that under the first agreement ap-
pellant could not recover damages, measured By
the value OF the lands conveyed but only spe-
cial damages, and that the complaint so far as it
rests thereon does not make case for more
than nominal damages Held. also. that as Lowe
holds possession of the Columbus lots with the
agreement TO convey halt interest to plaintiffs
wives, which he has failed to do, the complaint
shows cause of action for more than nominal
damages.
1884 VIM Wheeler ct al. VS.. John A.
Haines. Ripley G. G. Affirmed. Howk. j.
Under Section 74f Revised Statutes, the lien of
thirty days from the time of the return. and,
when further execution is not issued within
such time. the levy will be deemed vacated
between the judgment plaintiff and bona dde
mortgage of such properly.
1865. Board of Commissioners ct al vs.
Thomas Fahior. Wells G. g. Affirmed Mitch
eli, 4. J.--Wlen an asSos6QonE Tor q Tree SraVe1
road has been placed upon q special duplicate
so as to become lien upon the real estate
sessed. the Board of Com missioners has
power to order the assessment increased with
out notice to the land owners, and without
new reference TO the committee, and, such an
assessment being void, sale of the land there
on will be enioined.
1908 L. b. g. w Railway Company VS..
Elan S. McBroom Warren g. G. Reversed
Elliott. J.-When n party buys land. at the time
knowing that work g grade for railroad was
being done on a strip of such land. and such
road is after completed in 1870. and he acquisces
until 1885, he cannot recover tbs land.