Epitomized Opinion

Published Only in Ohio Law Abstract

Original action below in the nature of a creditor’s bill, whereby it sought to have the proceeds of the sale of certain real estate subjected to the payment of certain judgments. *458On Oct. 10, 1918, one Stewart contracted to sell a farm to John and Andy Shaffer for the consideration of $13,000; $5,000 of which was to be paid by transfer of certain real estate in Pennsylvania, the balance of $8,000 to be paid in installments commencing Oct. 1, 1920. The Shaffers made a deed to Stewart of the land in Pennsylvania, and possession of the farm was given to the Shaffers on Jan. 1, 1919. ,

On April 1, 1920, John and Andy Shaffer had a quarrel and John compelled Andy to leave the premises. Later, Andy returned and demanded one-half of the amount he had put in the farm, i. e., $2500, and said to his brother, John, that he would make no more payments. Later John failed to make payments on the contiact and on Jan. 1, 1921, John delivered possession of the farm over to Stewart, who had never given any deed to the Shaffers. This action was commenced in November, 1921, based on judgment taken against John. Andy Shaffer filed his cross-petition herein to be allowed $2500. On appeal the case was heard by the Court of Appeals which held:

By the land contract Andy was invested with a certain equitable interest. That interest could not be divested by any amicable agreement made by John with Stewart. Andy’s abandonment of the contract gave Stewart the right to rescind but Stewart could only do so upon refunding to Andy the amount Andy had paid. 27 R. C. L. 625. Stewart will be ordered to pay to Andy the sum of $25.00