45 Ind. App. 535 | Ind. Ct. App. | 1910
xlppellee sued appellants, James and Margaret Boyee, husband and wife, for specific performance of a contract for the sale and conveyance of certain real estate. A demurrer to the complaint for want of sufficient facts was
Prom the complaint it appears that appellant James Boyce, was on May 5, 1906, and for some time prior thereto had been, the owner of a certain tract of land in Jay county, Indiana, which was enclosed by a wire fence; that prior to said date said tract had. been platted into town lots, streets and alleys, and was a part of what was designated on the plat book of said county as “James Boyce’s First and Second Additions to the Town of Redkey;” that the streets and alleys hacl not been graded nor improved, and there was nothing to indicate their location, or the location and boundaries of the lots, or to indicate that said tract of land had been platted into lots, and said tract was without any buildings thereon; that on said May 5 defendant James Boyce and plaintiff, both of whom resided at Muncie, went to Redkey to view said premises and to negotiate for the purchase and sale thereof; that said defendant then pointed out to plaintiff said tract of land enclosed by said fence, and represented to plaintiff that he owned all the lots and lands thus enclosed, except lot No. 39, in the southwest corner thereof, and possibly two lots in the southeast corner of the enclosure, which he had already given, sold or conveyed; that said defendant then offered to sell and convey to plaintiff, by a warranty deed, subject to all the taxes for the year 1906, all the lands then held and owned by him lying within said enclosure, at and for the price of $700, which offer plaintiff then accepted, and agreed to pay said defendant said sum for the lands within said enclosure, then held and owned by him. On May 7, 1906, in pursuance of said contract of purchase and sale, defendants made and executed to plaintiff a proper deed of conveyance for all of said lots within said enclosure in said second addition, but wrongfully and fraudulently, and with fraudulent intent to cheat and defraud plaintiff, omitted from said deed a description of all lots and tracts then owned by them in said first addition
The offer to pay a certain price was based upon the representation of ownership of all the field except one lot and possibly two other lots, the location of the excepted lots being designated. The vendee expressed his willingness to purchase the remainder, leaving it to the vendor to execute a deed by which he would convey all he owned of the land pointed out. The vendor received the full price agreed upon and put the vendee in possession of all the land contemplated in the agreement, but omitted a definite portion thereof from the deed. There is no uncertainty or indefiniteness in the description of the land for the conveyance of which this suit was brought, the transfer of which was within the meaning and terms of the contract.
The description of the land in the contract was sufficient to furnish the means of identification. While it may be incomplete, yet its completion does not require the contradiction or alteration of that given. The boundary of the land was distinctly fixed by the fence which surrounded it. The contract was for the sale and conveyance of all the land appellant owned within the boundary fixed by the fence, with the exception of certain lots, the location of which was pointed out, providing the vendor should ascertain that they had been conveyed by him to others. The agreement left the excepted lots to be determined by appellants. This they assumed to do honestly and correctly, and to execute a deed in accordance with the terms of the contract. It is immaterial whether there was fraudulent intent on the part of the vendors on May 5, or in the execution of the deed on May 7; it is sufficient that it would be a fraud on the part of the vendors not to fulfil their agreement, it being within their power to do so according to its terms.
Judgment affirmed.