Nature of the Case
To access this section all you need to do is click here and register.
Facts
Davenport (P) contacted D for the purchase of a lot for $13,500. Under the terms of the sale, P was to take the property under a contract for deed and pay $100 per month at 6% interest and build a house on the land. As soon as 10 payments were made, D agreed to convey the property to P and take a first mortgage for the unpaid balance to be liquidated by continued payments. P took possession and performed and got a deed for the property because they executed a promissory note, and a mortgage in favor of D. After the instruments were executed Ps began paying $100 per month to D. On January 5, 1976 P wrote D that the enclosed check represented the final payment on the note and mortgage dated October 15, 1964, and that he wanted a release on the property. D declined to execute a release and P sued D asking the court to quiet title against mortgagees and grant a penal judgment of $135 per day against D beginning in January 16, 1976 until they released the mortgage. D denied that the note was fully paid and cross-petitioned alleging a clerical error was made, and the number of payments should have been 226 instead of 135. D asked that the court to reform the note and give them judgment for $7,318.68 against P. At a pretrial conference, the judge found that there is no issue as to any material fact and he set the trial date. Three weeks later, D filed an offer of evidence asking the court to consider additional evidence bearing on true intent; an amortization schedule, a copy of the contract for sale, and written correspondence wherein P calculated interest on the note in making the $100 monthly payments, etc. The parties then appeared a week later on November 3rd for trial at which time the court held that P was not entitled to relief and gave judgment to D for $7,318.68 to be paid at the rate of $100 per month. P appealed.
Support@ bsmsphd.com
Casebriefs Co